In a thinly sourced Twitter thread on Thursday, Sen. Josh Hawley (R-Mo.) made a series of inflammatory attacks against Ketanji Brown Jackson, who is President Joe Biden’s nominee for the Supreme Court and currently a judge on the U.S. Court of Appeals for the D.C. Circuit.
The tweets dealt with some of Jackson’s past statements on sex offender registries and civil commitment, as well as her views on mandatory minimums. He claimed, without evidence, that Jackson “has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker.”
It was a preview of a tactic Republicans will likely deploy next week when Jackson testifies before the Senate Judiciary Committee, of which Hawley is a member. But despite his claim that she is soft on sex offenses, nothing is particularly unusual about her judgments in such cases.
“I’m concerned that this is a record that endangers our children,” Hawley tweeted Thursday, in a thread that contained out-of-context screenshots of Jackson’s past statements and no links to the underlying material he was criticizing.
Among the things he took issue with was an unsigned note that Jackson wrote about sex offender registries in the Harvard Law Review when she was a student. He tweeted a screenshot of the last paragraph of Jackson’s note in which she wrote that a “principled approach” to sex offender statutes involves assessing whether “they operate to deprive sex criminals of a legal right in a manner that primarily has retributive or general-deterrant effects.”
Hawley glossed over what Jackson was actually arguing here, which is that sex offender registry laws, which severely restrict the physical spaces that people can inhabit, should be evaluated based on whether they work in reducing recidivism. There is an abundance of research showing that sex offender registries do not make children safer, but do prevent nearly 1 million Americans from securing housing and employment. This is largely because most child sex abuse cases involve parents, other kids, and authority figures that victims trust — not anonymous serial predators lurking in bushes near elementary schools.
Hawley went on to say that Jackson “has also questioned sending dangerous sex offenders to civil commitment,” which again appears to be a reference to Jackson’s law school writings. Hawley notably does not define civil commitment, a little-known practice that continues incarcerating people who have completed their prison sentences, because of a psychological finding that they are likely to commit sex offenses again if released. The result is indefinite detention without charge. The American Psychiatric Association has repeatedly stated its opposition to the civil commitment of sex offenders.
Hawley went on to claim that, during her time as a member of the U.S. Sentencing Commission, which creates sentencing guidelines for federal courts, Jackson “advocated for drastic change in how the law treats sex offenders by eliminating the existing mandatory minimum sentences for child porn.”
Hawley appears to be referring to a unanimous recommendation in a 2012 report by the bipartisan commission. As New York University Law Professor Rachel Barkow wrote on Twitter, one of the members who joined the report was Dabney Friedrich, who is now a federal judge appointed by former President Donald Trump.
In the report, the authors explain that sentencing guidelines have not kept up with technologies that make it easier to share and store files. As a result, the report concludes, “The existing sentencing scheme in non-production cases no longer adequately distinguishes among offenders based on their degrees of culpability.”
Hawley further claimed that, as a judge, Jackson “put her troubling views into action.” He cited several court cases in which she deviated from federal sentencing guidelines in cases involving people who possessed child sexual abuse imagery.
But this isn’t unusual behavior for a federal judge. In fiscal year 2019, just 30% of non-production child pornography offenders received a sentence that fell within federal guidelines “because just about [every] federal judge realizes these Guidelines are too severe,” Barkow wrote on Twitter.
Part of the reason Congress hasn’t adjusted the guidelines is “because people like Hawley create the false impression that fixing this would somehow harm children,” she added.
White House spokesman Andrew Bates dismissed Hawley’s criticisms, saying the senator is intentionally misrepresenting Jackson’s record by selectively highlighting her writings.
“This is toxic and weakly-presented misinformation that relies on taking cherry-picked elements of her record out of context – and it buckles under the lightest scrutiny,” Bates told HuffPost in an email. “It’s based on a report unanimously agreed to by all of the Republicans on the US Sentencing Commission … and on omitting that her rulings are in line with sentencing practices across the entire federal judiciary regarding these crimes.”
He added, “In the overwhelming majority of her cases involving child sex crimes, the sentences Judge Jackson imposed were consistent with or above what the government or U.S. Probation recommended.”
But this is clearly a line of attack that Republicans have settled on. Sen. Mike Lee (R-Utah), also a member of the Judiciary Committee, tweeted Thursday that the White House’s response to Hawley was “dismissive, dangerous, and offensive.”
The attacks that Hawley and Lee are setting up against Jackson are in line with how they’ve been going after Biden’s court picks all year, accusing them of being “soft on crime,” a political message they’ve chosen to push ahead of the 2022 midterms. They’ve been so eager to paint Biden’s nominees as soft on crime that they’ve been throwing around the term even when it makes no sense, like when they accused one judicial nominee of driving up violence across America because she has helped get innocent people out of prison.
Republicans know they have to be careful not to look like they are opposed to Jackson, who would be the first Black woman on the Supreme Court, for any other reason than her judicial ideology. Sen. Chuck Grassley (Iowa), the top Republican on the Judiciary Committee, has vowed to avoid a repeat of the ugly 2018 confirmation hearing of Supreme Court Justice Brett Kavanaugh, which involved credible allegations of sexual misconduct. And Senate Minority Leader Mitch McConnell (R-Ky.) on Thursday told conservative radio host Hugh Hewitt that Jackson would be “treated respectfully” in her hearing, saying she is “highly likely” to be confirmed.
But delving into sensitive questions about sexual abuse may not work out in Republicans’ favor.
Sen. Dick Durbin (D-Ill.), who chairs the Judiciary Committee, has already bluntly accused the GOP of being unfairly harsh toward Black women nominees who have come before the committee. He told reporters earlier this month that he is “very concerned” with how they’ll treat Jackson.
Republicans should go “out of their way” to avoid dangerous rhetoric around Jackson’s confirmation process, Durbin said, noting that a previous Black woman nominee received death threats after particularly hostile treatment by Republican members of the committee.
“To subject them to that kind of abuse is inexcusable,” he said.