Jackson’s historic confirmation wouldn’t shift the ideological balance of the nation’s highest court, which has a 6-3 conservative majority, and Democrats had hoped to avoid the bitter partisan fights that characterized previous Supreme Court nominations.
But last week, Sen. Josh Hawley, a Republican who sits on the committee that will question Jackson, leveled allegations against her that fact-checkers have called misleading.
Hawley, who has been touted as a potential GOP presidential candidate for the 2024 election, accused her of having a “pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker.”
Checking the Facts
Fact checks, including by The Associated Press and The Washington Post, have found Hawley’s claims to be misleading.
“If and when we properly contextualize Judge Jackson’s sentencing record in federal child porn cases, it looks pretty mainstream,” Doug Berman, an expert on sentencing law and policy at The Ohio State University School of Law, wrote on his blog.
White House Press Secretary Jen Psaki called Hawley’s claims “a last-ditch, eve-of-hearing desperation attack on her record on sentencing in sexual offense cases.”
At a briefing on Friday, Psaki told reporters: “We’re going to continue from here to reiterate what the actual facts are, and we hope that those who are taking this process seriously—or state that they are taking this process seriously—will also look to the facts and not disingenuous attacks.”
Still, some believe that the allegations could hurt Democrats politically in an election year.
Attacks lobbed at Jackson during the confirmation hearings might not help Democrats win over parents furious about pandemic-related school closures and being courted by the GOP over “wedge” topics like critical race theory and transgender issues.
Ahead of the midterm elections, Republicans will likely seek to follow the playbook that propelled Glenn Youngkin to a stunning victory in the Virginia governor’s race—a state that President Joe Biden had carried by 10 percentage points in 2020. His campaign successfully tapped into culture wars and centered on parental concerns over school policies. Youngkin’s campaign also seized on a comment made by his opponent, Terry McAuliffe, using it in ads that sent his rival’s poll numbers plummeting.
“The idea that [Jackson] is soft on crime seems to be the critique that has been most heavily levied against her, but also, I think, hard to find evidence to support in her record,” New York University law professor Melissa Murray told Newsweek.
“It’s really about having a durable sound bite that can be then deployed later for political purposes against the entire Democratic Party.”
Murray described Jackson’s record as “unassailable” and called the allegations against Jackson “manufactured” and a distortion."
But she noted that the difficulty in rebutting Republican attacks is that “it’s hard to find an explanation that registers as easily as the accusation does.”
She said: “I think the Democrats need to continue hammering on it. I don’t think that difficulty is because there isn’t a good rebuttal. There isn’t a good rebuttal that can be packaged into a 20-second soundbite that Americans can understand, unless they are already familiar with some of the vagaries of the United States sentencing policy.”
The bigger picture
Murray said Republican attacks weren’t necessarily aimed at derailing Jackson’s nomination, but riling up voters ahead of the midterms.
“This is about painting the entire party, the Biden administration, as soft on crime and the vehicle for doing that is this Black woman, who historically has been nominated to the Supreme Court,” she said.
In a speech last week, Senate Minority Leader Mitch McConnell argued that Jackson’s previous work as a federal public defender and with the U.S. Sentencing Commission gives her “special empathy for convicted criminals.”
“Much has been made of the fact that she has been a public defender,” Murray said.
“What Republicans don’t mention is that the prospect of indigent defence isn’t just the thing that liberals want, it is actually a constitutional commitment that’s required under the Sixth Amendment, and has been recognized by the Supreme Court since 1963… it doesn’t suggest she is soft on crime. It does suggest that she is someone who believes very much in fidelity to the rule of law.”
She added: “The real question is why do they think an attack as being soft on crime is something that sticks if someone’s like Judge Jackson? She doesn’t have a record that is soft on crime.
“What she is is a Black woman and I think there are many in the Republican Party and perhaps in the country, who are more likely to think that a Black woman is likely to be more amenable to criminal justice issues than other people and I think that is something worth probing.”
