• Wed. Aug 10th, 2022

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Blackburn Miscasts Jackson’s Views and Record

WASHINGTON — Senator Marsha Blackburn, Republican of Tennessee, ripped into Judge Ketanji Brown Jackson on Monday during her Supreme Court confirmation hearing, tying the nominee to a wide range of conservative grievances. But the lawmaker’s accusations appeared to often be based on quotes taken out of context. Here’s a closer look at some of her apparent sources.

Ms. Blackburn portrayed as excessive the progressive push for transgender rights, decrying a recent victory at the N.C.A.A. swimming championships by a transgender female athlete. She also declared that “educators are allowing biological males to steal opportunities from female athletes in the name of progressivism.”

The senator did not point to anything specific Judge Jackson has said or ruled about transgender athletes. But a few sentences later, she purported to quote Judge Jackson in a way that used similar catchwords — as having praised “the transformative power of progressive education.”

The senator did not say where that quotation came from. But she appeared to be slightly mangling and taking out of context a quotation in a profile in a magazine for Georgetown Day School, a liberal-leaning private school in Washington, after the judge joined its board.

Judge Jackson did not mention transgender female athletes in the article. Instead, she said that since enrolling a child there, she had “witnessed the transformative power of a rigorous progressive education that is dedicated to fostering critical thinking, independence and social justice.”

The senator said that Judge Jackson is on the board of a school that tells kindergartners “that they can choose their gender and teaches them about so-called white privilege.” The school, the senator said, “pushes an anti-racist education program for white families.” (A spokeswoman for Georgetown Day School did not return a request for comment on this description.)

The senator accused Judge Jackson of endorsing “progressive indoctrination” and said that raised concern about how she might rule on cases about parents’ right to control their children’s education.

The issue of parental rights in education was a focus of the 2021 campaign for governor in Virginia, which a Republican, Glenn Youngkin, won. But that debate involved public schools, rather than private schools that parents can choose.

Accusing Judge Jackson of having “consistently called for greater freedom for hardened criminals,” the senator quoted her as having “advocated,” at the start of the Covid-19 pandemic, that “each and every criminal defendant in the D.C. Department of Corrections custody should be released.”

Judge Jackson did write, in an April 2020 opinion, that the increased risk of harm that the pandemic posed to people confined in close quarters “suggests” that “each and every” detained person at the lockup should be released.

But those words came in an opinion in which she refused to release a man because the facts of his case showed he was dangerous. She cited legal limits on judge-ordered releases that, she explained, stem from the recognition that releasing dangerous people poses substantial risks to others.

Ms. Blackburn also described three instances in which Judge Jackson ordered the release of inmates, including “a convict who murdered a U.S. marshal.”

The cases appeared to match three Covid-era rulings by the judge under a compassionate release law. The senator omitted the context: The man who killed a U.S. marshal, for instance, did so in 1971, had since served 49 years, and was 72 at the time of his release, with myriad health problems.

Ms. Blackburn said that Judge Jackson “once wrote that every judge has, and I quote, personal hidden agendas, end quote, that influence how they decide cases.” The lawmaker suggested the judge might have a hidden agenda of letting violent criminals, killers of police officers and child predators back on the streets.

That quotation came from Judge Jackson’s undergraduate college thesis, which criticized the plea bargaining system.

But the future judge did not write that “every judge” has a hidden agenda. As part of a discussion of how lawyers and judges might favor plea bargains to save the effort of a trial, she wrote, “Before we can effectively analyze plea bargaining, we must attempt to identify the personal hidden agendas of various court professionals.”

The senator accused Judge Jackson of praising the 1619 Project, a 2019 collection of essays in The New York Times Magazine that described itself as seeking to “reframe the country’s history by placing the consequences of slavery and the contributions of Black Americans at the very center of our national narrative.” Many conservatives denounce the project, which the senator portrayed as arguing that America is fundamentally racist.

In 2020, Judge Jackson gave a speech on Black female leaders in the civil rights movement. A 27-page transcript contains two paragraphs in which she described the “provocative” thesis of the 1619 Project as saying that America was not perfect in 1776 and that “it is actually only through the hard work, struggles and sacrifices of African Americans over the past two centuries that the United States has finally become the free nation that the framers initially touted.”

Ms. Blackburn said that Judge Jackson had “made clear that you believe judges must consider critical race theory when deciding criminal defendants.”

Critical race theory” is a malleable term. It originally described a field of study in law schools that argued that laws and institutions can incorporate structural racial bias. More recently, it has become a catchall term in culture-war discourse, used primarily by conservatives to refer disparagingly to topics like white privilege.

Ms. Blackburn’s accusation appeared to refer to a line in a speech Judge Jackson made on federal criminal sentencing policy. But whatever critical race theory means, the judge was describing why she finds that subject “fascinating,” not prescribing what judges should consider when handing down individual sentences.

“Sentencing is just plain interesting on an intellectual level, in part because it melds together myriad types of law — criminal law, of course, but also administrative law, constitutional law, critical race theory, negotiations and to some extent, even contracts,” Judge Jackson said. She also cited the subject’s links to philosophy, psychology, history, statistics, economics and politics.