Republican senators painted Supreme Court nominee Ketanji Brown Jackson as hostile to anti-abortion views, twisting words from a legal brief she co-signed years ago as evidence she would rule broadly against abortion opponents.
That’s a misrepresentation.
A look at some of the statements during three days of confirmation hearings:
TENNESSEE SEN. MARSHA BLACKBURN: “I want to go to you on something you said when you were in private practice. You made your views on pro-life and the pro-life movement very clear. And in fact, you attacked pro-life women. And this was in a brief that you wrote. You described them, and I’m quoting, ‘Hostile, noisy crowd of in-your-face protesters.’ … How do you justify that incendiary rhetoric against pro-life women? … Let me ask you this. When you go to church, and knowing there are pro-life women there, do you look at them, thinking of them in that way, that they’re noisy, hostile, in-your-face?” — remarks Tuesday.
NORTH CAROLINA SEN. THOM TILLIS: “I’m not necessarily saying you put those words in the brief, but they were in there, and they were ‘hostile, noisy crowd.’” — remarks Wednesday.
THE FACTS: Blackburn takes a line in a legal brief out of context and unfairly suggests it represents Jackson’s broader judicial and personal views. Tillis was more measured. The brief, which Jackson co-signed as a young attorney in a law firm, did not refer to all anti-abortion women as “hostile” and “noisy” but was making a legal argument on behalf of a client in regards to protesters outside abortion clinics.
The case involved a Massachusetts law that provided for an 18-foot buffer zone around the clinics that would give women space from protesters from both sides of the abortion debate, who might try to approach them. Despite what Blackburn suggests, the case did not involve or refer to “pro-life women” more broadly.
The opening lines of the factual statement in the 2001 brief state:
“Few American citizens who seek to exercise constitutionally protected rights must run a gauntlet through a hostile, noisy crowd of ‘in-your-face’ protesters. Still fewer citizens, when seeking medical or surgical care — particularly care involving deeply private matters — must confront a crowd swarming around them, shouting in their faces, blocking their way, and thrusting disturbing photographs and objects at them.”
“Yet on any given day, patients of reproductive health clinics may face all of these. A woman may be on her way to take an HIV test, to undergo day surgery, to receive a mammogram, or to receive counseling about an intimate physical matter. But regardless of her condition or her needs, when a woman’s intention to enter one of these clinics becomes manifest, she becomes an occasion for protest. Demonstrators may swarm around her or her vehicle. Simply to get in the door, she may have to endure physical and emotional intimidation, heightened stress resulting in increased physical pain for surgery patients, unwanted exposure, and violations of personal space.”
Asked about the brief on Tuesday and Wednesday, Jackson said she worked on the case after joining a private law firm that represented a group advocating for a buffer zone. She said the Massachusetts law was not directed at abortion rights opponents but rather women and men protesting on both sides. The Supreme Court in later years struck down the law after the buffer zone was widened to 35 feet.
Tillis was more sympathetic to the judge than Blackburn was on this point. He said he realized Jackson may not have been the author of the “hostile, noisy” characterization in the brief she signed. Even so, he said the matter may raise questions about her commitment to free speech.
“Look, I’m somebody who has had protesters come to my house, get in my face, and be very nasty,” he said. “Four times by land and two times by sea. I live on a lake. OK with them doing (that) as long as they stay off my lawn. In the last case, they didn’t.”
TEXAS SEN. TED CRUZ: “So yesterday under … questioning from Senator Blackburn, you told her that — that you couldn’t define what a woman is, that you are not a biologist. … I think you’re the — the only Supreme Court nominee in history who’s been unable to answer the question, what is a woman.?
THE FACTS: To state what might be obvious, Supreme Court nominees through history were typically not asked, if they ever were, to define a woman.
Cruz, like fellow Republican Sen. Marsha Blackburn the day before, was trying to score points on transgender issues by pointing to her reluctance to be drawn into the question of defining a female.
Jackson told Cruz: “So, senator, I know that I’m a woman. I know that Senator Blackburn is a woman and the woman who I admire most in the world is in the room today, my mother.”
BLACKBURN: “There were 1,561 that were detained in DC Department of Corrections. And your statement and this was in the opinion that you issued, it was U.S. vs. Wiggins, you stated, and I’m going to quote you, each and every criminal defendant in the DC Department of Corrections custody should be released because of the COVID-19 pandemic. And in that same opinion you lamented the fact that you as a federal judge were limited in your ability to order the universal release of criminals back onto the streets.” — remarks Wednesday.
THE FACTS: That’s a distortion of what Jackson ruled.
As a U.S. district court judge, Jackson wrote in an April 2020 case that the health dangers of COVID-19 could “reasonably suggest” that defendants in the D.C. correctional facilities should be released from there. Ultimately, however, the judge ruled against releasing a prisoner who was requesting home detention after review of his individual health history and severity of offenses, concluding he was a danger to society.
With more than 40 D.C. inmates testing positive in the early weeks of the pandemic and even prosecutors in the case acknowledging a health threat, Jackson in her ruling first noted the extraordinary circumstances of COVID-19, which was spiking across the country.
Jackson wrote this to start her opinion:
“The obvious increased risk of harm that the COVID-19 pandemic poses to individuals who have been detained in the District’s correctional facilities reasonably suggests that each and every criminal defendant who is currently in D.C. DOC (Department of Corrections) custody — and who thus cannot take independent measures to control their own hygiene and distance themselves from others — should be released.”
Jackson, however, then proceeded to lay out the law and concluded it falls to the courts to rule “case by case” whether to release inmates consistent “with the dictates of the law.”
In the case at hand, Jackson ruled that the young, healthy and violent criminal who wanted out did not merit release. Jackson also indicated it would be up to Congress or other bodies — not judges like herself — to decide if the broader health circumstances might warrant wider releases in certain situations.
The Justice Department in 2020 and 2021 separately did decide to release thousands of inmates to home confinement as the pandemic ravaged federal prisons.
Explaining her ruling Wednesday, Jackson said she wanted to note the potentially compelling circumstances of the COVID-19 threat in the opinion before making her “actual ruling, in which I said, we’re not releasing everybody. We’re not opening jails.”
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