Republicans’ Missed Opportunity in the Judge Jackson Hearings

O ne of the main reasons I thought it was a blunder for Senator Josh Hawley to brand Judge Ketanji Brown Jackson as indulgent of “sex offenders” who “prey on children” is that it would undermine a legitimate inquiry into her sentencing practices across the board.

As I’ve tried to demonstrate, if you wanted to make that case, you could not choose a worse subject matter than child pornography. The frustration with the federal sentencing guidelines in these cases is intense and bipartisan. It has emerged from the hearings that, in most cases, judges depart from the guidelines. As I showed with respect to the seven specific cases Senator Hawley cited, and as was illuminated by the senator’s very civil and fair questioning of Judge Jackson during the Supreme Court confirmation hearing late Tuesday afternoon, it is common for the prosecutors to recommend a sentence below the guidelines range, so it should hardly be surprising that the judge would do so.

In fact, it has been quite remarkable to me, having been a prosecutor for nearly 20 years, to hear Republican senators — Senator Ted Cruz most recently — express bewilderment during the hearing that a judge would impose a sentence more lenient than what the prosecutor recommended. The judge is not a rubber stamp for the prosecutor. The judge is the arbiter between the government and the defendant. It makes no more sense to deride a judge for sentencing below the prosecutor’s recommendation than it would to do so for sentencing above the defendant’s recommendation. It is very common for federal judges to impose sentences that are more lenient than what the U.S. attorney recommends.

A more objective measure might be to compare the judge’s sentence to the report prepared by the Probation Office, which is an arm of the court. In my post on the child-porn cases cited by Hawley, I noted that most of the time, Judge Jackson’s sentences equaled or exceeded (and sometimes substantially exceeded) Probation’s recommended sentence.

To be sure, Judiciary Committee Republicans make a good point that I did not address (because I wasn’t aware of it): Probation reports are not public-record information (because a great deal of personal information goes into them) and have not been made available to the committee (as Senator Cruz pointed out). The executive branch has access to the probation reports and has leaked information in them to the media in order to push back against some of the attacks on Jackson. That is abusive: If the White House disseminates highly relevant information to, say, the Washington Post, it should share it with Senators Hawley, Cruz, et al. But that said, the main consideration, in our evaluation of Judge Jackson’s sentencing practices, is whether the information is accurate. If it is, then the sentences Jackson imposed are unremarkable — which, presumably, is why the government did not appeal them. What’s more, while it is unfair for this information to have been withheld from Republicans, anyone familiar with federal sentencing knows this information exists and is highly relevant. Shouldn’t they have made a concerted effort to get the information before leveling an explosive allegation against Jackson?

Here is the most consequential point. Because Senator Hawley and now Senator Cruz have put so much emphasis on child pornography, Republicans have obscured the fact that Judge Jackson’s testimony effectively guts the sentencing guidelines.

Unlike a prosecutor’s sentencing recommendation, the guidelines — assuming they have been correctly calculated — are an undeniably objective standard against which to assess a judge’s sentencing practices. For the reasons explained above, the guidelines don’t perform this function well with respect to child-pornography cases; but overall, across the broad spectrum of federal offenses, they are very useful.

When senators have pointed out that Jackson sentenced below the guidelines in various places, she has insisted that the guidelines are just one factor in sentencing. Congress, she maintains, has instructed judges to consider other factors (principally in Section 3553 of the penal code), particularly characteristics of the defendant. Jackson told Hawley during his questioning that judges are supposed to assess, regardless of the guidelines, what would be the least severe sentence that would be consistent with the statutory objectives of federal sentencing.

That is a skewed reading of the sentencing statute. Section 3553 directs the court to consider the guidelines, and what Jackson is portraying as other factors are actually factors that the guidelines take into account. Indeed, the guidelines embody the objectives of federal sentencing, and every guidelines sentence includes a calculation of offender characteristics (that is half of the equation, which is combined with factors about the offense to arrive at a sentencing range).

Yet, what Jackson is saying is that, after the judge considers the guidelines calculation, which has already factored in the defendant’s characteristics, the judge should then look at the defendant’s characteristics a second time, independent of the guidelines calculation, for the purpose of rationalizing a sentence different from — and invariably below — the guidelines range. By that theory, we are to believe, the statute that enables the guidelines and directs judges to apply the guidelines nevertheless cancels out the guidelines.

Hard to believe, no? Congress goes to the trouble of creating a Sentencing Commission (on which Jackson served), which makes exhaustive efforts to break every offense into various weighted factors and to construct a multifaceted formula for grading an offender’s history. The stated purpose for this massive project is to reduce disparities in sentencing that resulted when, in the absence of this guidance, judges with different law-enforcement philosophies sentenced similarly situated defendants. And yet, according to Judge Jackson, after going through the required guidelines exercise, Congress wants judges routinely to ignore the guidelines calculation based on their own assessment of the purposes of federal sentencing and the defendant’s characteristics. Inevitably, that creates exactly the disparity Congress was trying to end: Judges who faithfully apply the guidelines impose harsh sentences; judges who follow Jackson’s theory find ways not to apply the guidelines.

That is not very convincing. It might thus have been worthwhile if, rather than child-porn tunnel vision, Republicans had compared all of Jackson’s sentences to the guidelines calculations in those cases. If she routinely comes in materially under the guidelines, and she has developed a theory for not following the guidelines, that would be a meaningful strike against her. It would undermine her claim to be a judge who has followed the law and can be depended on to follow the law on the high court.

Instead of making this case, committee Republicans have buried it under provocative claims about child pornography. Hopefully, they can still unearth it.