Judge Ketanji Brown Jackson, the first Black woman nominated to the Supreme court, returned to Capitol Hill on Wednesday for the third day of her historic confirmation hearings.

What You Need To Know

  • Judge Ketanji Brown Jackson returned to Capitol Hill on Wednesday for the third day of her historic confirmation hearings

  • A Gallup poll released Wednesday says 58% of Americans support her confirmation to the Supreme Court, the highest the survey has measured since Chief Justice John Roberts in 2005

  • Jackson said she would rule “without any agendas” as the high court’s first Black female justice, rejecting Republican efforts to paint her as soft on crime in her decade on the federal bench

  • The Senate Judiciary committee will meet in executive session on Monday to consider Jackson’s nomination, with a vote set for April 4; Senate Democrats are hoping to vote to confirm Jackson before the Easter recess on April 11

Jackson faced a number of follow-up questions from the full Senate Judiciary committee Wednesday, including about her upbringing, her judicial philosophy and her sentencing record as a federal judge.

Jackson declared she would rule “without any agendas” as the high court’s first Black female justice, rejecting Republican efforts to paint her as soft on crime in her decade on the federal bench. Democrats defended her and heralded the historic nature of her nomination.

“America is ready for the Supreme Court glass ceiling to shatter,” Sen. Dick Durbin, the chairman of the Senate Judiciary Committee, said in Jackson’s second and last day answering questions at her confirmation hearings.

Missouri Republican Sen. Josh Hawley on Wednesday continued to press Jackson on the specific child pornography case U.S. vs. Hawkins, where she sentenced a man to three months as opposed to the two years requested by the prosecution. 

Hawkins, who was 18 when he was sentenced, was convicted of uploading videos and images showing child sexual content. 

Jackson appeared visibly frustrated that the line of questioning continued from Tuesday's session, after she answered several queries on the case.

"No one case can stand in for a judge's entire record," she said.

Jackson on Tuesday had called the case particularly “unusual" for a few reasons, including because the defendant's age when he committed the crimes was close to the age of some of those included in the images, as well as the intent behind uploading the content. Judges must consider all of those factors, she said, when considering handing down a sentence.

Hawley asked her: "Judge, you gave him three months. My question is: Do you regret it or not?"

She answered: "Senator, what I regret is that in the hearing about my qualifications to be a justice on the Supreme Court, we've spent a lot of time focusing on this small subset of my sentences, which I've tried to explain."

The sustained focus on her record suggested that, contrary to Democratic hopes, Jackson’s confirmation vote in the full Senate is unlikely to garner much, if any, Republican support. Still, several Republicans acknowledged that she is likely to be on the court. Democrats can confirm her without any bipartisan support in the 50-50 Senate as Vice President Kamala Harris can cast the tiebreaking vote.

In response to questioning about a case over affirmative action at Harvard University, her alma mater where she now serves on the Board of Overseers, Jackson said she would recuse herself. “That’s my plan,” she responded when Texas Sen. Ted Cruz asked her about it.

The court will in the fall take up challenges to the consideration of race in college admissions, in lawsuits filed by Asian American applicants to Harvard, a private institution, and the University of North Carolina, a state school. The court currently plans to hear the suits against the two schools together but could separate them and give Jackson a chance to take part in what will be one of next term’s biggest issues.

Jackson earlier Wednesday told Democratic George Sen. Jon Ossoff that her younger brother, Ketajh, a former police officer who served in the Army and was deployed to Iraq, helped inform her views on public service.

"I understand the need for law enforcement, the importance of having people who are willing to do that important work, the importance of holding people accountable for their criminal behavior," she said. "I also as a lawyer and a citizen, believe very strongly in our Constitution and the rights that make us free."

"As proud as we are of his service, as much as we know it's important, law enforcement is a dangerous profession,” she continued. “As family members, you worry when you don't get the phone call, when you haven't heard for a couple of days, when you hear about things in the news in the community."

Still, Republicans continued to focus on her criminal sentencing record, suggesting her personal approach could be too lenient.

"It seems as though you’re a very kind person, and that there’s at least a level of empathy that enters into your treatment of a defendant that some could view as maybe beyond what some of us would be comfortable with, with respect to administering justice," Republican Sen. Thom Tillis of North Carolina said, asking about Jackson's record of sentencing.

"My attempts to communicate directly with defendants is about public safety, because most of the people who are incarcerated — via the federal system and even via the state system — will come out, will be a part of our communities again," she said in response to Tillis' questioning. "So it is to our entire benefit, as Congress has recognized, to ensure that people who come out stop committing crimes."

As a public defender, she said, many defendants did not take responsibility for their offenses because "they were bitter, they were angry, they were feeling victimized because they didn't get a chance to say what they wanted to say, because nobody explained to them that drug crimes are really serious crimes."

"Nobody said to them, ‘Do you understand that there are children who will never have normal lives because you sold crack to their parents, and now they're in a vortex of addiction?'" Jackson continued, adding that as a judge, she sought to convey "that I am imposing consequences for your decision to engage in criminal behavior."

"I was the one in my sentencing practices who explained to those things in an interest of furthering Congress's direction, that we're supposed to be sentencing people so that they can ultimately be rehabilitated to the benefit of society as a whole," Jackson said.

The first tense moment of the day came when Sen. Graham, R-S.C., opened up the 20-minute questioning portion of the hearings by questioning Jackson about child sexual abuse and child pornography, undocumented immigrants voting, abortion and treatment of past judicial nominees.

"Do you believe illegal immigrants should be allowed to vote, Judge Jackson?" he asked, kicking off a rapid-fire exchange.

"Under our laws, you have to be a citizen of the United States in order to vote," Jackson replied.

"So the answer would be no?" Graham followed up.

"It's not consistent with our laws, so the answer is no," Jackson said.

"Why don't they do that in New York?" Graham asked.

"Senator, I'm not aware of the circumstances," Jackson said.

"Okay, all right, well that's a good answer," he said, adding: "The answer is no."

"Can an unborn child feel pain at 20 weeks in the birthing process?" Graham asked, with Jackson replying: "Senator, I don't know."

Graham asked Jackson if she watched any part of the Kavanaugh hearings, which she said she did not. Durbin replied that and she "had nothing to do with the Kavanaugh hearing" Jackson said she did not "have any comment on what procedures took place in this body regarding Justice Kavanaugh."

Jackson and Graham went back and forth in a fiery exchange about child pornography, with the South Carolina lawmaker alleging that the judge "doesn't use the enhancements available to her" in terms of sentencing. "She takes them off the table. And I think that's a big mistake, judge. I think that every federal judge out there should make it harder for somebody to go on a computer and view this filth."

"Senator, all I'm trying to explain is that our sentencing system, the system that Congress has created, the system that the sentencing commission is the steward of, is a rational one," she responded.

"It's a system that is designed to help judges do justice in these terrible circumstances by eliminating unwarranted disparities, by ensuring that the most serious defendants get the longest periods of time in prison," she continued. "What we are trying to do is be rational in our dealing with some of the most horrible kinds of behavior."

"All I can say is, your view of how to deter child pornography is not my view," he said. "I think you are doing it wrong and every judge who does what you are doing is making it easier for the children to be exploited."

"She filibustered every single answer," Graham, who interrupted and spoke over Jackson numerous times when she attempted to answer his questions, said.

Graham, who supported Jackson's confirmation last year to the D.C. circuit court, immediately left the hearing room following his questioning. Leahy called his comments "beyond the pale."

"You had a Republican member who went way the over time allotted, ignored the rules of the committee, badgered the nominee, would not ever let her answer the questions," Leahy said. "I've never seen anything like it. I've been here 48 years."

"I’m just distressed to see this kind of a complete breakdown of what’s normally the way the Senate’s handled," Leahy added. "He's badgering her."

The questioning was briefly paused as the committee discussed a request from a group of ten Republicans to release pre-sentencing record reports for a number of sentences handed down by Jackson, records that are typically sealed from public view. 

“This information was not requested before, it's never been requested by this committee,” committee chairman Durbin said in part. “And I think we ought to think long and hard about whether or not we even consider going into pre-sentence reports. [...] I would not want it weighing on my conscience that we are turning over these pre-sentence reports to this committee for the first time in history.”

Sens. Cruz and Mike Lee, R-Utah, pushed back against Durbin, with the latter saying Republicans would be “happy to review [the records] on a redacted basis.” Durbin again declined to request the records. 

“I would suggest that the information contained in these reports is dangerous, dangerous to the victims and to the innocent people who are mentioned in these reports and unnecessary at this point,” Durbin said. “It's never been requested by this committee. It's merely a fishing expedition in dangerous territory.” 

Sen. Tom Cotton, R-Ark., followed the interruption with another series of questions on Jackson’s sentencing choices in U.S. vs. Hawkins, asking what happened when the defendant violated terms of his probation and was ordered to return to a residential treatment facility for 180 days. 

“I understand you've done a lot [of cases], but none of them have been the centerpiece of your hearing for the last two days,” Cotton said. “Do you really expect this committee to believe that you don't remember what happened in this Hawkins case when it came back to you?”

“Yes, senator, I do expect you to believe that’s my testimony,” Jackson answered.

“Well, I don't find it credible,” Cotton shot back. 

Cotton was followed by Sen. Cory Booker, D-N.J., who told Jackson to “sit back for a second because I don't have questions right away, I actually have a number of things I just want to say,” going on to criticize his Republican colleagues – in particular, Sen. Hawley’s line of questioning – as disappointing. 

Booker, one of three Black senators currently serving in Congress, described how much Jackson’s nomination means to him, saying in part: “I just look at you and I start getting full of emotion.” 

Jackson, too, appeared emotional, wiping away tears at the height of Booker's address.

“You are a person that is so much more than your race and gender. You are a Christian, you are a mom, you are an intellect, you love books,” Booker said. “But for me, I'm sorry, it's hard for me to look at you and not see my mom, not see my cousins [...] I see my ancestors and yours.”

"Any one of us Senators can yell as loud as we want that Venus can't serve, that Beyonce can't sing, that astronaut Mae Jamison didn't go that high," Booker said. "As it says in the bible, 'let the work I've done speak for me'. Well, you have spoken."

“Nobody is going to steal that joy,” he added. “You have earned this spot. You are worthy. You are a great American.”

Another emotional exchange came from Sen. Alex Padilla, D-Calif., who – after listing Jackson’s many accomplishments – said some lines questioning have "been a reminder, and in some ways, a new ‘Exhibit A,’ that for people of color, particularly those who have the audacity to try to be the first, often have to work twice as hard to get half the respect.” 

Padilla, who is the son of Mexican immigrants, said he was reminded of his own high school experience last week while discussing Jackson’s nomination with students at a school in San Francisco. 

“As I was speaking with the students, I couldn't help but be reminded of my own high school experience,” Padilla began. “When one of my teachers discouraged me from applying to MIT, because they didn't want me to be disappointed. I turned that discouragement into motivation.”

“Judge Jackson, I know that you, too, have been doubted on your way,” he continued. “To the seat that you find yourself in today. Even after the last three days of this hearing, your experience and qualifications have been called into question by some despite your clear, lengthy record of talent, achievement, and accomplishment.”

"On behalf of the young people I visited with last Friday in South San Francisco and for the many others across the country who are watching this confirmation hearing today [...] what do you say to some of them who may doubt that they can one day achieve the same great heights that you have?” Padilla asked.

Jackson, after wiping away tears, responded in part: “Thank you, senator. That was very moving. And I appreciate the opportunity to speak to young people. I appreciate it very much."  

“I hope to inspire people to try to follow this path because I love this country, because I love the law, because I think it is important that we all invest in our future,” she said. “And young people are the future. And so I want them to know that they can do and be anything.”

Padilla, in turn, responded: "You don't have to hope. I'll tell you right now, you do inspire. You are an inspiration."

A new Gallup poll released Wednesday says that 58% of Americans support Jackson's confirmation to the Supreme Court, the highest support measured by a recent candidate since Chief Justice John Roberts' nomination in 2005. 

According to Gallup, most other nominees were in the low 50% range, including current Justices Sonia Sotomayor (54%), Clarence Thomas (52%), Amy Coney Barrett (51%) and Samuel Alito (50%), the late Justice Ruth Bader Ginsburg (53%) and Merrick Garland (52%), whose nomination was blocked by Republicans. Justices Elena Kagan, Brett Kavanaugh and Neil Gorsuch all came in below 50%, per Gallup.

Jackson's nomination has the overwhelming support of Democrats, 88-6, as well as a majority of independents, 55-33, according to Gallup; Republicans oppose Jackson's nomination 53-31. For contrast, 89% of Republicans supported Barrett, compared to 15% of Democrats.

Despite the support, it's unclear how many Republican senators will vote to back Jackson's confirmation.

Republican Sens. Tillis and Cornyn both said they are open to voting in favor of Jackson, despite not supporting her appeals court confirmation last year.

"I think it's reasonable to suggest that because I didn't support her at the circuit judge level it's like I'm starting with a 'lean no,'" Tillis told NBC News. "Give me a basis for getting to 'yes.'"

"I'm still open to the possibility of supporting the judge," Cornyn told NBC News, but added that he is leaning toward a no.

Senate Minority Leader Mitch McConnell, R-Ky., seemed to clearly indicate he would not support Jackson's confirmation.

"Judge Jackson's responses have been evasive and unclear," McConnell said  She's declined to address critically important questions and ameliorate real concerns. First and foremost is a simple question of court packing."

In response to a question about court packing, Jackson said Tuesday: "In my view judges should not be speaking to political issues, and certainly not a nominee to the Supreme Court."

(It should be noted that then-Judge Barrett, in her 2020 confirmation hearings, said this about court packing: "I will not express a view on a matter of public policy, especially one that is politically controversial because that is inconsistent with the judicial role." McConnell voted to support her confirmation.)

"The nominee made sure to quietly signal openness, openness to the radicals’ position," McConnell said of Jackson on Wednesday. "She told senators, she could see both sides of the court packing debate."

But most lawmakers on both sides of the aisle concede that Jackson is likely to be confirmed as the first Black woman to serve on the high court.

"You will - and you will - become a member of the U.S. Supreme Court," Vermont Sen. Patrick Leahy said.

"America is ready for the Supreme Court glass ceiling to shatter," said Durbin.

Of the historic nature of her confirmation, Jackson said that diversity in the judiciary is important "because it lends and bolsters public confidence in our system."

"We have a diverse society in the United States," she continued. "There are people from all over who come to this great nation and make their lives. And when people see that the judicial branch is comprised of a variety of people who have taken the oath to protect the Constitution and who are doing their best to interpret the laws consistent with that oath, it lends confidence that the rulings that the judge, that the court is handing down are fair and just."

"I have been so touched by the numbers of people who've reached out to me in this period of time, to say how much it has meant to their daughters, to their sons, to the next generation, that I've been appointed, nominated and hopefully confirmed," she added.

The third day of hearings ended as the first day did, with Sen. Marsha Blackburn, R-Tenn, sparring with Jackson on a series of questions centered as much on possible future Supreme Court cases as they were in cultural flashpoints.

However, Blackburn’s line of questioning wasn’t necessarily revelatory. She, like some of her GOP colleagues earlier, pressed Jackson on the topics of child pornography and sentencing. “Is it your position that child pornography offenders are not pedophiles?” Blackburn asked.

“Senator, I believe that all child predators are dangerous, that the behavior that they engage in is horrible,” Jackson replied. “It needs to be taken seriously by the court and by Congress in setting the penalties for their behavior.”

Blackburn also confirmed that Jackson agreed that the Supreme Court had, indeed, set precedent regarding Second Amendment rights, referring to the landmark case of District of Columbia v. Heller.

However, Jackson twice sidestepped further questions regarding both gun rights and abortion rights, as two high-profile cases centered on those matters are currently before the Supreme Court: New York State Rifle and Pistol Association v. Bruen, and Dobbs v. Jackson Women’s Health Organization, respectively.

The senator also alleged that Jackson had previously lamented that she could not “order the universal release of criminals onto the streets” during a hearing regarding COVID-related compassionate release.

“That was not my position in that opinion,” Jackson clarified, saying that the government “can’t release everyone; there are too many people who are too dangerous to release.”

The hearings, Chairman Durbin said, had proven Jackson to be “extraordinary,” praising her “patience, dignity and grace in the face of what was, frankly, some offensive treatment.”

“My colleagues promised a fair and respectful hearing; most, including my Republican colleague, Senator Grassley, followed that admonition — he always does,” Durbin said. “But there were a few obvious, glaring exceptions. I’m sorry for that.”

The hearings will continue Thursday, including testimony from the American Bar Association.

The Senate Judiciary committee will meet in executive session on Monday to consider Jackson’s nomination, with a vote set for April 4. Senate Democrats are hoping to vote to confirm Jackson before the Easter recess on April 11.

Hawkins, who was 18 when he was sentenced, was convicted of uploading videos and images showing child sexual content. 
“I'm questioning how you use your discretion in these cases,” Hawley said to Jackson in part, adding: “It really bothers me when, in every child porn case [where] you've had discretion, you sentence below the guidelines and below the government's recommendation.” 
Jackson said, while she did not have the entire case summary in front of her, that the Hawkins case was particularly “unusual” as far as child pornography cases go for a number of reasons, not least of which being the defendants age when he committed the crimes, the age of some of those included in the images and the intent behind uploading the content. 
Judges must consider all of those factors, she said, when considering handing down a sentence.
“Congress has given the judges not only the discretion to make the decision, but requires judges to do so on an individualized basis, taking into account not only the guidelines, but also various factors, including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, the harm to the victims — all of these factors are taken into account and the probation office assists the court in determining what sentence is sufficient, but not greater than necessary,” Jackson said.