Dissecting the questions senators are asking Supreme Court nominee Ketanji Brown Jackson

Supreme Court nominee Ketanji Brown Jackson spent hours on defending her representation of Guantanamo Bay detainees and denying she'd been too lenient in child pornography cases. Saikrishna Prakash, a University of Virginia law professor and former clerk to Justice Clarence Thomas, and Margaret Russell, a law professor at Santa Clara University, join Judy Woodruff to discuss the hearing.

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  • Judy Woodruff:

    And for more insight on today's hearing, I'm joined now by Saikrishna Prakash. He's a law professor at the University of Virginia and a former clerk to Justice Clarence Thomas. And Margaret Russell, she is a law professor at Santa Clara University.

    Welcome to both of you.

    Sai Prakash, let me start with you.

    Were these the lines of questioning that you expected going into this hearing? We have talked about the child pornography. We have talked about Critical Race Theory, questions about — well, you tell me. I mean, is this what you were expecting?

    Saikrishna Prakash, Former Clerk to Justice Clarence Thomas: Judy, I think with respect to the child pornography cases, very much. So I think those were in the news beforehand.

    Regarding the Critical Race stuff, Senator Cruz brought up information that I wasn't aware of about what was being taught at that private school in Georgetown. And so I think that was something new that I hadn't expected. And I think she handled it the best way she could.

  • Judy Woodruff:

    And just staying with you, Sai Prakash, is this — are these the kinds of questions that you think help us understand what kind of justice she would be?

  • Saikrishna Prakash:

    To some extent, Judy.

    I think the better questions are more about how you approach cases, rather than discussing, I think, particular cases and how you ruled on them. I think part of what's going on with respect to some of the senators is, they're thinking about their public persona. They're thinking about running for offices, or another office in particular, and they have got to speak to their base, and they're doing so by asking these questions.

    And, Margaret Russell, to you. I mean, taking these questions along with the others that have been posed to Judge Jackson, are we getting a sense of her, how she would judge, how she would rule from the bench if she's confirmed?

    Margaret Russell, Santa Clara University School of Law: Well, I think we're getting an excellent sense of her demeanor, because she has had to answer rapid-fire questions, and some that are really more speeches and accusations then questions.

    And I think she has been very composed, but full-throated at some times, when it is clear that what is being lobbed at her is unfair. And I think they are the child pornography questions that she got.

  • Judy Woodruff:

    And, staying with you, Margaret Russell, are there — are there lines of questioning that, in your sense — you have watched Supreme Court nomination hearings before — that you would expect that would be focused on here?

  • Margaret Russell:

    So far — and this is day two — I actually think back to what I know about Thurgood Marshall's nomination hearing, which was in 1967.

    And when I read some of the transcript of that, I thought, oh, times have changed, because, back then, the Southern Democrats, or Dixiecrats, would just openly ask questions like, are you prejudiced against white people? What are you going to do about the rate of crime?

    And these were very explicitly racialized questions. So I think what surprised me, compared to them is, here they are again in a different form, Critical Race Theory. Can we trust you to like white people?

  • Judy Woodruff:

    One question that struck me, Sai Prakash, was, she was asked to explain — I think it was Senator Ben Sasse of Nebraska asked her to — which justices she admires or identifies with, and he named the three current liberal justices, Kagan, Sotomayor and Breyer, and asked her which.

    And she really did not want to be pinned down. Is that in keeping with how previous nominees have handled these kinds of questions when they have been asked about who on the court they most admire and that kind of question?

  • Saikrishna Prakash:

    That's a great question, Judy.

    I think Justice Barrett, when she was up before the Supreme Court, she insisted that she would be her own justice, that she wouldn't just be a clone of Justice Scalia. And so I think what Judge Jackson has said is consistent with what — how Judge Barrett handled that question.

    On the question of philosophy more generally, she wouldn't put a name to it. She talked about her methodology. But what was striking about what she said is how she repeatedly referred to judicial restraint, original public meaning, how the court now is focused on original public meaning.

    And, in many ways, she sounded like a nominee that a Republican president might have made to the court.

  • Judy Woodruff:

    Margaret Russell, do you think we're getting a sense of her judicial philosophy?

    I remember hearing one of the senators say, well, it sounds to me like you're describing your methodology, but we don't yet know what your philosophy of judging is.

    How does that come across to you?

  • Margaret Russell:


    And who knows where we draw the line between those two words. But I was actually very impressed by her description of methodology as a district court judge, because the district court, as people may know, is where almost all federal cases start, in the district court. It's the trial court. And she was a trial court judge, which gives her a particular kind of experience that is logical and it's people-based at that level, not the appeals.

    So what she described her methodology of, make sure I'm neutral, pay close attention to the facts and the law, apply the law, to me, that sounded like — it sounded like a judicial philosophy of faithfulness to the instrument and the office of the job, which she later did describe in the ways that the professor mentioned.

  • Judy Woodruff:

    And just picking up on that, Sai Prakash, I mean, we keep being reminded that she's handed down decisions in well over 500 different cases, which leaves her work, her body of work open for questioning.

    Does that make her more vulnerable or less? I mean, how do you see this fitting in with other nominees who have come before the Senate Judiciary, before the Senate?

  • Saikrishna Prakash:

    Well, I don't think the opinions are a vulnerability for her.

    I know that several Republicans are trying to make it a vulnerability for or are trying to score points and other fora by talking about those opinions, but I don't think they're a vulnerability. And, of course, the Biden administration would have taken those opinions into account in nominating her.

    I don't think she's going to have a problem getting through the Senate. I think she's going to get through with Republican votes. The only question is how many she will get. So I don't think the opinions are a problem for her at all, even if you can quibble here and there with some of those decisions or some of those sentences.

  • Judy Woodruff:

    Just a very quick final question, Margaret Russell.

    So, much attention on the fact that she'd be the first Black woman to serve on the Supreme Court. Has that made it harder for her, do you think, going through this nomination process?

  • Margaret Russell:

    Two hundred and thirty-three years, yes.

    So, I think, because of the way the outside world and we all view it, is harder. Internally. I'm not so sure, because she does — she has enormous gravitas. I have never met her, but she just seems to have an inner direction that does — she was asked a couple of times about what was going on in the world, and did she read this?

    She just seems to have sort of an inner sense of what her job is. And she obviously loves it. She's been doing it for so long. And she wants to bring that seriousness along, without having people think so much about her being the first.

  • Judy Woodruff:

    Margaret Russell, Saikrishna Prakash, thank you both. We appreciate it.

    And we want you to tune in for the second day of questioning of Ketanji Brown Jackson. That's tomorrow starting at 9:00 a.m. Eastern. You can watch our gavel-to-gavel coverage here on your local PBS station. Check your local listings. And you can watch on our Web site and our YouTube page.

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