Republican senators characterized Supreme Court nominee Ketanji Brown Jackson’s judicial views as extremist and soft on crime, using her confirmation hearings to air a line of conservative grievances that relied at times on distortions of her record.
Over the first two days of hearings, Jackson was the subject of misleading rhetoric on critical race theory, her pandemic-era rulings and the Guantanamo Bay, Cuba, detainees she represented as a public defender.
A look at how some claims compare with the reality:
South Carolina Sen. Lindsey Graham: “What’s the recidivism rate at Gitmo? ... It’s 31 percent. How does that strike you? Is that high, low, about right? ... You know how it strikes me? It strikes me as terrible ... Of the ... detainees released from Gitmo — 729 released, 229 have gone back to the fight.” — remarks made Tuesday.
The facts: Those numbers about the detainees at Guantanamo, or Gitmo, are misleading. The actual recidivism rate is 17 percent, not 31 percent, according to the government, and has been far lower — down to about 5% — since the start of the Obama administration.
To get to 31 percent, Graham is adding cases also listed by the government where detainees are suspected — but not confirmed — to have reengaged in terrorist or insurgent activity. And his numbers don’t reflect the pace of recidivism currently or over the last decade.
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What's this got to do with Jackson? As a public defender before becoming a judge, she was assigned to represent four men who had been held at Guantanamo, and some Republicans are arguing that makes her soft on terrorism.
Most detainees who were determined to have reengaged as bad actors were released under President George W. Bush, whose administration released 532 detainees overall. Under President Barack Obama, whose administration released 187 detainees, the U.S. introduced measures to screen detainees and determine if they could be safely released.
The Obama administration also required security conditions on detainees in the countries where they were sent. As a result, the re-engagement numbers plummeted.
Of the detainees released after January 2009, 10, or 5 percent, were confirmed as reengaging and 20, or about 10 percent, are suspected. It is these lower figures that more accurately represent the reality.
There are now 38 men at Guantanamo, following the release of two each under Presidents Donald Trump and Joe Biden.
Texas Sen. John Cornyn: “Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing?"
Jackson: "I don’t remember that particular reference ... I did not intend to disparage the president or the secretary of defense.”
Graham: “I’ve been a lawyer, too, but I don’t think it’s necessary to call the government a war criminal in pursuing charges against a terrorist. I just think that’s too far. I don’t know why you chose those words.”
Sen. Dick Durbin, Democratic chairman of the Judiciary Committee: “So to be clear, there was no time where you called President Bush or Secretary Rumsfeld a quote, war criminal, close quote.”
Jackson: “Correct, senator.”
The facts: Everyone is partly right. No one is completely right.
Jackson did not accuse Bush and former Defense Secretary Donald Rumseld of being “war criminals” explicitly, as the Republicans claimed she had. But she did accuse them of committing “war crimes," a fact omitted by Durbin.
In 2005, as an assistant public defender, Jackson signed a petition for habeas corpus on behalf of one of the detainees she represented, alleging he was being held under conditions that violated his rights to dignity and freedom from torture and cruel punishment.
“President Bush has ordered the prolonged, indefinite, and arbitrary detention of individuals including Petitioner Khiali-Gul, without due process of law, and the remaining Respondents have implemented those orders,” the petition said.
“By the actions described above, Respondents’ acts directing, ordering, confirming, ratifying, and/or conspiring to bring about the torture and other inhumane treatment of Petitioner Khiali-Gul constitute war crimes and/or crimes against humanity in violation of the law of nations under the Alien Tort Statute.”
The detainee, identified by the Pentagon as Khi Ali Gul, was repatriated to Afghanistan in 2014.
By any common understanding, accusing people of war crimes is to accuse them of being war criminals. But there are legal reasons to name the president and others; the relevant procedural rules require it, according to Steve Vladeck, a University of Texas legal scholar.
Graham, raising the fact that five former Afghan prisoners now hold senior positions with the Taliban following the U.S. withdrawal from Afghanistan: “These were five people that we had in our control. They’re now helping the Taliban run the country. Would you say that our system in terms of releasing people needs to be looked at?” — remarks Tuesday.
The facts: Graham somehow seeks to tie Jackson to an unrelated decision made by the White House. The five former prisoners were exchanged for the release of captive Army soldier Bowe Bergdahl.
Obama, who approved the 2014 prisoner exchange, acknowledged at the time that the U.S. was aware the five detainees might work against the U.S. if released. But the administration decided to go ahead with the exchange because of concerns about Bergdahl’s deteriorating health.
Some of the same prisoners took part in peace talks between the Trump administration and the Taliban that led to the U.S. withdrawal from the country.
Texas Sen. Ted Cruz: “You described in a speech to a law school what you were doing as critical race theory.” — remarks Tuesday.
Tennessee Sen. Marsha Blackburn: “You have made clear that you believe judges must consider critical race theory when deciding how to sentence criminal defendants.” — remarks Monday.
The facts: They’re both incorrect. Jackson never called for it to be incorporated in federal sentencing nor said it should be used as part of the work as a judge.
“Critical race theory” is a broad-based term. It started as a line of thinking in law schools that racism is systemic in the nation’s institutions. Many Republicans have since cast it as a culture-war effort to rewrite American history and convince white people that they are inherently racist. Still, there is little to no evidence that critical race theory itself is being taught to K-12 public school students, though some ideas central to it, such as lingering consequences of slavery, have been.
Blackburn was referring to a 2015 speech in which Jackson described how she encouraged students to study federal sentencing policy as an academic area implicating many topics.
“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,” Jackson said in her speech. “And if that’s not enough to prove to them that sentencing is a subject ... worth studying, I point out that sentencing policy implicates and intersects with various other intellectual disciplines as well, including philosophy, psychology, history, statistics, economics, and politics.”
In other words, she indicates that critical race theory might be one of many potential factors in play in sentencing, not a mandatory consideration.
Asked Tuesday about her speech, Jackson said her comments referred to “the entire laundry list of different academic disciplines that I said relate to sentencing policy” as set by sentencing commissions or legislatures, not courts.
“None of that relates to what I do as a judge,” she told the hearing.
Blackburn: “At the start of the COVID-19 pandemic, you advocated and again I quote, ‘for each and every criminal defendant’ in the D.C. Department of Corrections custody, ‘should be released.’ That would have been 1,500 criminals back on the street if you had had your way.” — remarks Monday.
The facts: Blackburn is quoting Jackson out of context. As a federal court judge, Jackson actually did not release criminal defendants en masse onto the streets.
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.
At the time, COVID-19 was spiking unabated across the U.S., more than 40 D.C. inmates had tested positive and even prosecutors in the case acknowledged a health threat. The Justice Department in 2020 and 2021 separately decided to release thousands of inmates to home confinement as the pandemic ravaged federal prisons.
“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 said in her ruling.
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.
The nonpartisan Congressional Research Service, in reviewing her wider judicial record, said Jackson was “case-specific” when weighing whether criminal defendants should be released based on COVID concerns and “did not rely on it to grant release automatically.”