On the first day of questioning in her confirmation hearings, Supreme Court nominee Ketanji Brown Jackson defended herself against Republican attacks about her record even before GOP senators had a chance to ask.

Senate Judiciary Committee Chairman Dick Durbin, D-Ill., preemptively inquired about Jackson’s views on child pornography offenders as well as her work as a public defender representing Sept. 11 terror suspects.

Sen. Josh Hawley, R-Mo., indicated before Tuesday's hearing that he would ask Jackson about what he called in a tweet last week “an alarming pattern when it comes to Judge Jackson’s treatment of sex offenders, especially those preying on children.” He accused her of “having a “pattern of letting child porn offenders off the hook for their appalling crimes” as a district court judge and former vice chair of the U.S. Sentencing Commission.

Jackson, the first Black woman to be nominated for the Supreme Court, gave a forceful, impassioned answer when asked about Hawley’s accusations.

“As a mother and a judge who has had to deal with these cases, I was thinking that nothing could be further from the truth,” she said.

Jackson, who currently serves on the U.S. Court of Appeals in the District of Columbia, called child pornography a “sickening and egregious crime” and said she has tried to ensure that “the children's voices are represented in my sentences.”

“I tell them (the offenders) about the adults who were former child sex abuse victims, who tell me that they will never have a normal adult relationship because of this abuse,” she said. “I tell them about the ones who say, ‘I went into prostitution, I fell into drugs because I was trying to suppress the hurt that was done to me as an infant.’” 

She defended her decision to hand out some sentences that were lighter than what federal guidelines called for, suggesting those recommendations, which take into account the volume of pornographic material an offender had, might be outdated in the internet age because “it's not doing the work of differentiating who is a more serious offender in the way that it used to.”

In most of the child pornography cases where she imposed lighter sentences than federal guidelines suggested, prosecutors or others representing the Justice Department generally argued for sentences that were lighter than those recommended by federal guidelines.

The topic was broached by Sen. Ted Cruz, R-Texas, who said in part: “In every single case, 100% of them, when prosecutors came before you with child pornography cases, you sentenced offenders to substantially below not just the guidelines, which are way higher, but what the prosecutor asked for.”

Cruz, who mentioned he was a classmate of Jackson's at Harvard Law School, asked the judge why — in cases like U.S. v. Nickerson – she delivered sentences below what prosecutors requested.

Jackson first pointed out that Cruz did not “include all of the factors that Congress has told judges to consider, including the probation officers recommendation,” when sentencing those convicted of crimes against children.

“The evidence in these cases are among the worst that I have seen and yet, as Congress directs, judges don't just calculate the guidelines and stop,” she said. “Judges have to take into account the personal circumstances of the defendant. Because that's a requirement of Congress. Judges have to consider things like the victims and when I was talking about making sure that victims' circumstances are heard, it was about my sentencing practices.”

Sen. Chris Coons, D-Del., pushed back against Cruz’s line of questioning during his own remarks, pointing out that “two of the largest, most substantial law enforcement advocacy organizations in our country, the National Fraternal Order of Police and the International Association of Chiefs of Police, have spoken up in support of [Jackson’s] qualifications and [Jackson’s] capabilities.”

“I find it hard to believe that these organizations, having looked closely at your judicial decisional record, your sentencing decisions, your lifetime conduct, would have taken those unusual steps to be that forceful in supporting you if in fact, you had somehow a disturbing record of coddling child pornographers or being soft on crime,” Coons added. “In fact, Judge, your record, in my view, demonstrates you're an even-handed and impartial judge.” 

Jackson went on to outline the factors she does consider when analyzing a case, which include looking at the arguments presented by all parties, as well as the facts of the case developed by the Court of Appeals or a lower court. 

“I'm looking at the law, I'm looking at any statutes, I'm hewing to the text. I'm looking at constitutional provisions, to the extent that they are applicable, at any precedents related to the case at issue,” Jackson said of her judicial process. “Those are the inputs that are appropriate for a judge to consider. And those are the only things that I use in my decision making.”

The highly anticipated back-and-forth between Hawley and Jackson came late in Tuesday's hearing. Sen. Hawley opted to discuss specific sentencing choices Jackson made in a number of separate cases, focusing primarily on 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. 

“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. 

Hawley continued to press Jackson on her departure from prosecutorial recommendations, a practice she said is widely implemented by judges across the country. 

"In my district and nationwide you would see a very similar exercise of attempting to do what it is that judges do, attempting to take into account all of the relevant factors and do justice individually in each case," she said.

Speaking to reporters outside of the hearing, Hawley insisted the recommendations from probation offices are an “irrelevant factor,” saying he believes judges should skew closer to Congressional sentencing guidelines or the prosecutorial proposals. 

Federal judges in criminal cases must consider the recommendations given by the probation officers when handing down a sentence, but the guidance is non-binding and given on a case-by-case basis. The recommendations depend on the unique facts of the case and the judge ultimately has the final say. 

“I think [Jackson] ought to follow the guidelines, the standard rule,” Hawley said. “She's not going to do that, at least [follow] the prosecution.”

Hawley commended Jackson for her thorough answers to his “tough” questions, saying while she was “very responsive” and that he “applaud(s) her for not saying things like, well, I can’t talk about that,” there are professional disagreements between the two meaning he likely “just can’t vote” for her Supreme Court nomination. 

“I doubt it. We’ll see,” Hawley said when asked if he would vote in Jackson’s favor.

Other senators took issue with Jackson's work with certain federal inmates. While working in the federal public defender’s office in the District of Columbia, Jackson was assigned four Guantanamo Bay detainees, later continuing some of her work with them in private practice.

“Federal public defenders don't get to pick their clients,” she testified Tuesday. “They have to represent whoever comes in, and it's a service. That's what you do as a federal public defender. You are standing up for the constitutional value of representation.”

But she also said she believed there were legitimate questions about whether the U.S. judicial system was treating suspects fairly. 

“This had never happened before — not only the attack, but also the use of executive authority to detain people in this way,” she said. “And there were a lot of questions that the court was asking. The Supreme Court had taken a series of cases to try to understand what are the limits of executive authority, which is important. All of our liberty is at stake if we don't get it right, in terms of what the executive can do.”

Those 9/11 suspects Jackson represented who were charged had those charges dropped, and all were eventually released. None was convicted by the military commissions created to try detainees.

In his questioning, Sen. Lindsey Graham, R-S.C., said he had no issue with Jackson defending Guantanamo detainees. He, however, grilled her on filing briefs as a private attorney that argued against the executive branch ordering their indefinite detention.

“Respectfully, Senator, it was not my argument,” Jackson explained. “I was filing an amicus brief on behalf of clients including, the Rutherford Institute, the Cato Institute and the Constitution Project.”

“When you sign on to a brief, does it not become your argument?” Graham asked.

“It is not, Senator, if you are an attorney and you are representing a client,” Jackson answered.

“Advocates to change this system, like she was advocating, would destroy our ability to protect this country,” Graham told Durbin in a heated exchange. “We’re at war; we’re not fighting a crime. This is not some passage-of-time event. As long as they're dangerous, I hope they all die in jail if they're going to go back to kill Americans.”

Graham, who earlier had cited recidivism rates of Guantanamo detainees, stormed out of the hearing room immediately after that rant.

Sen. John Cornyn, R-Texas, asked Jackson why she accused of former President George W. Bush and former Defense Secretary Donald Rumsfeld of being “war criminals” in a legal filing when she was a public defender. 

“I don't know you well, but I've been impressed by our interaction and you've been gracious and charming,” Cornyn said. “Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing? It seems so out of character for you.”

Jackson said she didn’t recall making such a reference, but added: “I was representing my clients and making arguments. I'd have to take a look at what you what you meant. I did not intend to disparage the president or the secretary of defense.”

In a 2005 district court filing that named Bush and Rumsfeld as respondents, Jackson did not directly refer to them as “war criminals.” But she made a claim on behalf of one Guantanamo detainee that Bush and Rumsfeld sanctioned torture, which constituted “war crimes and/or crimes against humanity” in violation of federal and international laws.

Graham publicly lobbied for President Joe Biden to nominate U.S. District Court Judge J. Michelle Childs, a fellow South Carolinian, for the Supreme Court seat being vacated by the retiring Stephen Breyer. The South Carolina Republican accused progressive groups of engaging in an organized campaign to damage Childs’ chances in order to push Biden into nominating a more liberal candidate.

“All I can say is the fact that so many of these left-wing radical groups that would destroy the law as we know it declared war on Michelle Childs and supported you is problematic for me,” Graham said.

Sen. Dianne Feinstein, D-Calif., opened up her line of questioning by asking about reproductive rights, which comes as the country awaits the high court's ruling in a major case related to Mississippi's 15-week abortion ban and could significantly weaken the landmark decisions in Roe v. Wade and Planned Parenthood v. Casey.

"Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy," Jackson said.

Jackson also refused to weigh in on questions about expanding the Supreme Court, calling it a “policy question for Congress.” She said she believed judges should not answer questions about political issues. She also said the Supreme Court has established an individual’s right to bear arms as a “fundamental right.”

The 51-year-old jurist also described her three-pronged judicial philosophy. She said she first tries to ensure she’s “proceeding from a position of neutrality” by clearing her mind of “any preconceived notions about how the case might come out and setting aside any personal views.” She said she then takes into account the parties’ arguments and the factual record. The final step is the “interpretation and application of the law to the facts in the case” as well as court precedent, Jackson said. 

“I have developed a methodology that I use in order to ensure that I am ruling impartially and that I am adhering to the limits on my judicial authority,” she said. “I am acutely aware that as a judge in our system, I have limited power and I am trying in every case to stay in my lane.”

She later added that she thinks her record “clearly demonstrates that I am an independent jurist that I am ruling in every case consistent with the methodology that I've described, that I'm impartial. I don't think that anyone can look at my record and say that it is pointing in one direction or another, that it is supporting one viewpoint or another.”

Not only would Jackson make history as the first Black woman on the high court, she would be just the third Black person, the second woman of color and the sixth woman to become a justice. If nominated, there would be four women on the court — accounting for nearly half the seats — for the first time. 

“Since I was nominated to this position, I have received so many notes and letters and photos from little girls around the country who tell me that they are so excited for this opportunity and that they have thought about the law in new ways — because I am a woman, because I'm a Black woman, all of those things people have said have been really meaningful to them,” Jackson said, answering a question from Feinstein. “And we want, I think, as a country, for everyone to believe that they can do things like sit on the Supreme Court. And so having meaningful numbers of women and people of color, I think, matters. I also think that it supports public confidence in the judiciary when you have different people because we have such a diverse society.”

After a break, Sen. Tom Cotton, R-Ark., sought to pin down Jackson’s feelings on public safety, beginning with a current political flashpoint, asking if America needs more police or fewer police. Jackson began responding by noting her familial background in law enforcement, before being cut off.

“I asked a simple either-or question,” Cotton interjected. “Does the United States need more or fewer police?”

Jackson responded by saying that’s a policy matter belonging to a different branch of the government. “It’s not something that judges have control over, and I will stay in my lane in terms of the things that are properly in the judicial branch,” she said.

Cotton’s line of questioning continued in a similar vein. He would ask a yes-or-no question about public safety. “Is 17 years too long, or not long enough, for a criminal to spend in prison for murder?” he asked. Jackson would respond by noting that sentencing guidelines are in the province of sentencing commissions and legislative bodies — that they’re policy questions left to someone who is in the legislative branch, not the judicial branch. He asked her about law enforcement. “Should we catch more murderers, or fewer of them? ... do you think we imprison too many violent criminals, or not enough?" he asked.

He then got to the meat of his question.

Jackson, he said, had previously called sentencing a “discretionary act,” to which she clarified that judges make sentences based on the bounds of a prescribed sentencing range. “I am not Congress, I am not making policy around sentencing,” Jackson said. “My job is to look at a particular case and decide what the penalty should be within the range that Congress prescribes.”

Cotton then lept at her, citing her sentencing of a “drug kingpin.” Keith Young had been convicted of trafficking cocaine, and owing to a previous minor drug charge, faced a mandatory minimum sentence of 20 years, which Jackson imposed during her time on the federal bench. After COVID struck, Young filed a petition for a compassionate release, based on his medical history. Jackson did not grant him an early release — but she reduced his sentence, siting a Trump-era criminal justice reform law. That law, the First Steps Act, said that mandatory increases on drug crimes would only apply if the previous crime was a felony.

“Congress changed the law. Congress decided that the old penalty, the old crime, was no longer eligible for the increase,” Jackson said. “One of the things Congress says to judges is to care about unwarranted sentencing disparity, to care about the fact that the person you’re sentencing is being treated differently than someone else who committed exactly the same crime.” She thus decided to resentence Young “to the penalty that Congress had decided was the appropriate penalty that he committed at the time of his motion.”

Sen. Cory Booker, D-NJ, took a decidedly softer tact on Jackson, essentially offering her a 40 minute reprieve after Cotton’s examination. His questions sought to give Jackson an opportunity to talk about her background, her family and the faith that grounds her. He also offered her a high compliment.

“I just watched you with dignity and grace field what I can only imagine is behind those questions, this doubt being sown,” Booker said. “I just want America to know, when it comes to my family’s safety, when it comes to Newark, to my state — god — I trust you.”

Jackson said that her values were inherited from her parents, and her grandparents, that she “stands on the shoulders of people from that generation,” and that she hopes to provide a similar example for her children.

“Seeing me ... they can know that you don’t have to be perfect in your career trajectory, and you can still end up doing what you want to do, that you just have to understand that there are a lot of responsibilities in the world and that you don’t have to be a perfect mom. But if you do your best and you love your children, that things will turn out,” Jackson said.

After a break, Sen. John Kennedy, R-La., called Jackson “very intelligent and very articulate,” before noting that he is “still a little uncertain” on how she would approach cases as a jurist.

He then asked if she supports efforts to delegitimize the United States Supreme Court.

“Senator, I have nothing but esteem for the United States Supreme Court,” Jackson replied.

Kennedy’s question, it turned out, was based on proposals to “pack the court” with liberal justices — and he wanted to know if Jackson supported that idea.

“Senator, I think that would be for you to decide,” Jackson said, stating that she is “not in a position to give my opinion on issues that would be policy issues.” She hadn’t really thought about it, she said, but she hears arguments from both sides.

“Would it make a difference to you if you were one of nine, or one of 28?” Kennedy asked.

“If that’s Congress’s determination, yes. Congress makes political decisions like that,” Jackson said.

Kennedy then asked the determinations Jackson would consider in overturning precedent.

“Whether the decision is egregiously wrong, whether there’s been reliance on the decision that is being revisited, whether the decision is workable or unworkable ... whether there are new facts that have come to light, or the circumstances are such that there’s a new understanding of prior facts, and whether case law in the area has shifted,” Jackson said.

“Is age a factor?” Kennedy asked, wondering if the court was more likely to overturn a case that was 49 years old, rather than three years old. (Roe v. Wade, the landmark abortion case, was decided in 1973 — making it 49 years old.)  

The court, Kennedy noted, has ruled that there are unenumerated rights, leaving Jackson to expand that certain personal rights “related to individual autonomy that are implicit in the concept of ordered liberty or deeply rooted in our nation’s history or tradition.”

Kennedy danced with Jackson about enumerated and unenumerated rights, as well as due process, until he got to his point. “When does life begin, in your opinion?” Kennedy asked.

Jackson was taken aback for a moment before stating that she has personal, religious believes that she says have “nothing to do with the law.”

Sen. Alex Padilla, D-Calif., then took the floor, offering Jackson another 40 minutes of relatively gentle questioning. Drawing on his experience as California’s Secretary of State, he asked Jackson about the Supreme Court’s role in setting precedent with regard to voting rights cases.

“The Constitution makes it clear that no one is to be discriminated against in terms of their exercise of voting,” she replied.

Padilla then asked Jackson about her takeaways from her time as a public defender.

“Rehabilitation is impeded if the people who are in the system aren’t actually understanding the process: that one of the goals of our system is to ensure that consequences are handed down from criminal behavior and as a result that people stop committing crimes,” Jackson said. The goal of her sentences, she said, was to ensure that rehabilitation was happening in the long run.

The hearing closed with questioning from Sen. Marsha Blackburn, R-Tenn., who sought to assess Jackson’s culture war bona fides, starting with a brief in which Jackson, while in private practice, wrote that anti-abortion protestors were a “hostile, noisy crowd of in-your-face protestors.” Jackson clarified that she was writing on behalf of clients regarding a buffer zone outside of abortion clinics in Massachusetts. “We filed it on behalf of our client, to advance our client’s arguments that they wanted to make in the case.”

“Do you think of pro-life women, like me, that way?” Blackburn said. Jackson said that's not the way she characterizes people. Blackburn replied that she thinks “even zealous advocacy doesn’t allow the type of rhetoric on a free speech issue.”

That set the tone for a series of questions on hot-button cultural issues — on abortion, on critical race theory and on gender identity — which Jackson parried, as Blackburn politicked.

“The fact that you can’t give me a straight answer about something as fundamental as what a woman is underscores the dangers of the kind of progressive education that we are hearing about,” Blackburn said after Jackson hesitated to provide a definition for the word “woman.”

When Blackburn asked if Jackson would “jolt the court in a progressive direction,” though unenumerated rights, Jackson fired back.

“Senator, the role of a judge is to decide cases and controversies based on the facts and the law, mindful of their obligation to rule impartially and to remain in consideration of only the law and their constraints under the Constitution,” Jackson replied.

On Monday, Jackson and Judiciary Committee members gave their opening remarks. 

Wednesday’s session will further consist of lawmakers questioning Jackson. On Thursday, outside witnesses and the American Bar Association — which on Friday said Jackson was “well qualified,” its highest rating — will deliver testimony.

This article is about an ongoing hearing. Please check back for updates.

The Associated Press contributed to this report.