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Members of the American Bar Association (ABA) panel that investigated Judge Ketanji Brown Jackson‘s legal record rejected GOP claims that President Biden‘s Supreme Court nominee has been soft on child pornography offenders.
Members of ABA’s Standing Committee on the Federal Judiciary testified before the Senate Thursday that their confidential interviews with lawyers who have interacted with Jackson, as well as their review of her cases, revealed that Jackson was an unbiased, brilliant jurist with an “impeccable” record.
Senate Judiciary Committee Chairman Sen. Dick Durbin, D-Ill., referenced a tweet from Sen. Josh Hawley, R-Mo., where he accused Jackson of letting child porn offenders off the hook and endangering children. Durbin asked the ABA whether such concerns came out in their investigation.
“We did not find any evidence of that,” said Joseph M. Drayton of the ABA Standing Committee on the Federal Judiciary.
“No evidence of it?” Durbin pressed.
“No evidence,” Drayton said.
Earlier this week, Hawley and several other Republicans on the Judiciary Committee repeatedly peppered Jackson with questions about her sentencing of child porn offenders as a federal court judge and implied she was too lenient on criminals when her sentences were less than what prosecutors and sentencing guidelines recommended.
“All I can say is that your view of how to deter child pornography is not my view,” Sen. Lindsey Graham, R-S.C. told Jackson during one exchange. “I think you’re doing it wrong. And every judge who does what you’re doing is making it easier for the children to be exploited.”
On the fourth and final day of the Senate Judiciary Committee confirmation hearings, Durbin also sought to debunk GOP claims that Jackson was too lenient on defendants, in part, because of her past work as a federal public defender representing Guantanamo Bay detainees.
“The assertion was made over and over and over again that Judge Jackson was soft on crime when it came to prosecution versus defense. … Did you find any evidence from all the people that you interviewed of that assertion?” Durbin asked.
“None whatsoever,” said Ann Claire Williams, the chair of the ABA committee and former federal appellate judge.
D. Jean Veta, another member of the ABA panel, said their interviews with defense counsel and prosecutors revealed how “unbiased Judge Jackson is. We heard phrases like ‘doing things by the books.'”
The ABA’s standing committee has for six decades evaluated the professional qualifications of Supreme Court nominees, as well as other federal judicial nominees. The ABA’s Standing Committee has unanimously rated Jackson “Well Qualified,” its highest evaluation standard.
The ABA panel evaluates nominees based on integrity, professional competence and judicial temperament. Of the current justices, seven (Chief Justice John Roberts, Stephen Breyer, Samuel Alito, Sonya Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh) were unanimously rated “Well Qualified.”
Barrett was rated “Well Qualified” by a substantial majority of the ABA committee, and “Qualified” by a minority of the committee. Justice Clarence Thomas was rated “Qualified” – the second-highest standard – by a majority of the committee, and “Not Qualified” by a minority of the committee.
Members of the committee in both cases cited, among other things, the nominee’s relative lack of judicial experience when they were nominated to the Supreme Court. Both Barrett and Thomas had only been on the federal appeals court bench for just a few months before their high court nomination. Elena Kagan had no judicial experience, but was nonetheless unanimously rated “Well Qualified.”
At Thursday’s hearing, Republican senators revived an old complaint that the ABA is allegedly biased against Republicans.
“Your voice is important, but… in past some Supreme Court nomination proceedings, it’s appeared that the American Bar Association has taken sides, so to speak, in controversial nominations,” Sen. John Cornyn, R-Texas, said.
“I’m not suggesting that that’s the case today,” Cornyn added. “But I’m just saying that that causes concern about whether we should take the testimony of the standing committee at face value, or whether you’re a combatant in the political battles that rage here in Washington, sometimes over judicial nominations.”
Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa, grilled the ABA over its policy of keeping interviews for its ratings confidential. Williams, representing the ABA in the hearing room, said it’s critical that interviewees feel they can speak freely during the ABA evaluation process.
Grassley responded: “Just give me some justification without having that information that the interviews are not stacked for or against a particular nominee.”
Williams responded that those conducting the interviews take being nonpartisan as “almost like a sacred oath.”
Alleged ABA bias was a common complaint in the GOP during President Donald Trump’s time in office, when the ABA would sometimes rate Trump judiciary nominees “Not Qualified.”
One instance that peeved Republicans was the ABA’s “Not Qualified” rating for Judge Justin Walker when he was appointed to a district court in Kentucky. The group gave Walker, an ally of Senate Majority Leader Mitch McConnell, R-Ky., the low rating because he lacked significant trial experience. It later gave him a “Well Qualified” rating when he was appointed to the D.C. Circuit Court of Appeals, where Jackson currently sits.
The ABA also rated 9th Circuit Court of Appeals Judge Lawrence VanDyke “Not Qualified” when he was nominated, a move that particularly stung Republicans because he was on Trump’s Supreme Court shortlist. The ABA rating said some interviewees called VanDyke “arrogant, lazy, an ideologue, and lacking in knowledge of the day-today practice including procedural rules.”
Carrie Severino, the president of the conservative Judicial Crisis Network, wrote in National Review at the time that the ABA had “really outdone itself” with the VanDyke rating. She alleged that, in fact, the ABA allowed a professional opponent of VanDyke’s to lead his evaluation process.