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Ketanji Brown Jackson finishes her testimony in Supreme Court confirmation hearings

ARI SHAPIRO, HOST:

Judge Ketanji Brown Jackson faced another day of questions during her confirmation hearing for the U.S. Supreme Court. And things got a little heated today, so we'll warn you that there may be some profanity ahead in the conversation we're about to have with NPR legal affairs correspondent Nina Totenberg and senior political editor and correspondent Domenico Montanaro. Good to have you both here.

DOMENICO MONTANARO, BYLINE: Thanks for having us.

NINA TOTENBERG, BYLINE: Nice to be here.

SHAPIRO: Before we get to today's hearing, Nina, could you just briefly bring us up to speed on Justice Clarence Thomas, who has been hospitalized since last Friday night?

TOTENBERG: Well, we really don't know anything more than we were told initially. He has an infection and is being treated with intravenous drugs. But initially, the court's press office said that he was expected to be discharged on Monday or Tuesday. And now it's Wednesday, so he's been there five days, suggesting that perhaps there's something fairly serious going on. And that underlines the importance of these hearings.

SHAPIRO: And let's talk about what happened at these hearings today. Judge Jackson's sentencing record for child pornography cases once again became a focal point of questions from some Republican senators.

TOTENBERG: That's exactly right. Judge Jackson again got hammered over a handful of child pornography cases in which she sentenced defendants to less time than recommended by prosecutors or that would have been required under the sentencing guidelines or were at the low end. Now, this record, we should note, is the same as some 70 to 80% of other judges. And that's because when the law was written in 2003, almost all pornography was traded by mail. And one of the sentencing enhancements was based on the amount of pornography purchased or distributed by mail. Today, of course, on the internet - and that's how everybody does this - one click can transmit thousands of images. So most judges don't necessarily consider one or two or three clicks as an aggravating factor. But some Republicans see things differently, like Lindsey Graham.

(SOUNDBITE OF ARCHIVED RECORDING)

LINDSEY GRAHAM: I think the best way to deter people from getting on a computer and viewing thousands and hundreds and, over time, maybe millions - the population as a whole - of children being exploited and abused every time somebody clicks on is to put their ass in jail, not supervise their computer usage.

TOTENBERG: So you can see the kind of rhetoric that was on display from Graham, as well as Josh Hawley and Ted Cruz and Tom Cotton.

SHAPIRO: Rhetoric and also tone. Domenico, what was your takeaway from the Republicans on the committee?

MONTANARO: Yeah. I mean, overall, Republicans on the committee really were in the business of airing a lot of grievances and giving us kind of a healthy dose of some midterm messaging. You know, they pledged to treat Judge Jackson respectfully from a personal standpoint, not bring in a lot of these outside affiliations which they're upset Democrats have done to past nominees. That was mostly true, with the notable exception of Senator Cruz, as Nina mentioned. You know, he brought up her sitting on the board of the Georgetown Day School here in Washington, an elite school. And that turned into really a discussion about critical race theory, how children are taught about racism, which, as we know, has been a huge issue for Republicans in political campaigns over the past year or so. And at one point during the hearing, the Republican National Committee even sent out an image of Judge Jackson with her initials, KBJ, crossed out and replaced with CRT.

But I have to say, the biggest area where Jackson obviously was on defense over these last three days, including this afternoon, again, was on sentences that she meted out, as Nina had mentioned. The implication is that she's lenient and she's soft on crime, which also has been a huge part of the Republican messaging heading into this election year midterms.

SHAPIRO: Do you think this is all going to mean she won't get any Republican votes?

MONTANARO: Well, you know, look; it was contentious. I'm not sure if anybody on the committee will vote for her. We'll see. But the White House is still hopeful that some Republicans could cross over. I mean, think about people like Mitt Romney of Utah, Lisa Murkowski of Alaska, Susan Collins of Maine. Murkowski and Collins, we should say, voted for her to her current position. And so did Lindsey Graham, by the way, but he seems more doubtful this time since he was among the most animated questioners, as you could hear there - angry at Democrats' conduct in past confirmation hearings.

Overall, though, what matters is whether Democrats stick together since they narrowly control the Senate. And, really, her calm and steady performance likely helped with that. You know, Republicans know they can't stop her nomination, so they were going to make sure that with all the attention and TV time that they are being given to these hearings, that they were going to get in their political points, stress their political values and try and make Democrats as uncomfortable as possible.

SHAPIRO: Nina, you've covered confirmation hearings for every justice on the court and then some. How is Judge Jackson doing?

TOTENBERG: She did fine. She wasn't, you know, the best nominee ever. That would go to Chief Justice Roberts. But she did fine.

SHAPIRO: And, Domenico, what do you think all of this tells us about the tenor of future hearings?

MONTANARO: Well, look; it's been bitter on this confirmation hearing. You can hear it from Senator Patrick Leahy of Vermont, who criticized the tone of the questions being posed by Senator Graham to Judge Jackson. Let's take a listen to that.

(SOUNDBITE OF ARCHIVED RECORDING)

PATRICK LEAHY: I don't know what the motivation might be, what political motivation it is, but to see the badgering of this woman as she's trying to testify I thought was outrageous.

MONTANARO: It makes you wonder whether a president will ever be able to get through a nominee to the court when the opposite party holds the chamber. We haven't seen that before. We got a glimpse of it when President Obama - former President Obama nominated Merrick Garland to the court and Republican Leader Mitch McConnell didn't even give Garland a hearing. The job of the Senate is to advise and consent. But right now, with tensions being what they are, we really have a broken system in the Senate. It's unclear what's going to happen in the future with that.

SHAPIRO: Nina, what are your takeaways from the hearing so far?

TOTENBERG: Well, you know, we had an enormous amount of posturing and grievances from senators - Republican senators - this week, and some Democrats, too, I suppose. And occasionally, there was some honest reflection. To my surprise, Republican Senator Ben Sasse seemed to disassociate himself from some of the questioning of Judge Jackson on his side by urging the Supreme Court not to allow cameras in the court chamber. Take a listen.

(SOUNDBITE OF ARCHIVED RECORDING)

BEN SASSE: For intellectual discourse, it is not a friend. And I think we should recognize that the jackassery (ph) we often see around here is partly because of people mugging for short-term camera opportunities.

SHAPIRO: And there is the vulgarity we promised you in the intro.

TOTENBERG: (Laughter).

SHAPIRO: NPR's Nina Totenberg and Domenico Montanaro, thank you both.

MONTANARO: You're welcome.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.