Judge Jackson's appearance before the Judiciary Committee last year was the first time the Democratic Senate majority questioned any of Biden's nominees, and it set the tenor of hearings for Biden's judicial picks over the next year.
Her appearance before the committee as a nominee for a seat on the D.C. Circuit also offers a potential road map for what Judge Jackson will face next week as she endures multiple days of questions from the same 22 committee members, seeking to win support for her historic confirmation to the Supreme Court.
The upcoming hearings will be much more intense than the relatively quick vetting she received for the circuit court seat. Judge Jackson will appear alone on the panel, after appearing alongside another appellate nominee last year, and she will be questioned for two days rather than approximately three hours.
Although the heat is likely to be turned up, the topics and questions raised during her D.C. Circuit nomination could preview some of the cross-examination to come, given that her record has changed little since she was approved for her current seat.
"We know her and know her well in the Senate Judiciary Committee," Sen. Dick Durbin, D-Ill., the committee chairman, told reporters shortly after Biden announced the nomination. "Just last year, she came before us in consideration for the D.C. Circuit and I thought did a masterful job during the course of some tough questioning, which she has to expect for this Supreme Court opportunity."
Judicial Philosophy
Republicans meeting with Judge Jackson have acknowledged her qualifications to join the high court, but have said probing her judicial philosophy will be key to the confirmation process. She faced numerous questions regarding her views on the court's role last year.
Sen. Ted Cruz, R-Texas, asked a series of questions on her judicial philosophy, beginning by asking for a definition of judicial activism. Judge Jackson defined it as a judge being "unable or unwilling to separate out their own personal views of a circumstance or a case and they rule consistent with those views, rather than the law as they're required to do."
Judge Jackson responds to a series of questions from Sen. Ted Cruz, R-Texas, about her judicial philosophy, judges setting aside personal beliefs, and the question of whether the Constitution is a living document.
Cruz followed up by asking what a judge should do if stuck between the law requiring one outcome, and personal policy views to the contrary.
"Absolutely, the judge is duty bound to follow the law," Judge Jackson said.
Cruz also pressed for her belief on whether the Constitution is a living document. She declined to answer specifically, saying she had "not had any cases that have required me to develop a view on constitutional interpretation of text in the way that the Supreme Court has to do, and has to have thought about the tools of interpretation."
In a written follow-up, Sen. Chuck Grassley, R-Iowa, reminded Judge Jackson that she had answered "no" when asked during her district court confirmation if she agreed with the interpretation that the Constitution was a living document.
Judge Jackson responded to Grassley that as a sitting judge, she's "bound by the methods of constitutional interpretation that the Supreme Court has adopted" and has a duty to avoid commenting on disputed legal matters such as "the most appropriate method of interpreting the Constitution."
"I'm sure those questions will come up again," Cruz said in a brief interview last week when asked about his questions on Judge Jackson's philosophy. "I'm still reviewing her record and determining what questions I'm going to ask."
Political Issues
Majority Leader Mitch McConnell gave a speech on the Senate floor after meeting with Judge Jackson this month, pointing to several areas of GOP focus. He called her the "anointed favorite" of "fringe" groups, referencing progressive criticisms about the court's legitimacy and calls to expand beyond nine justices among groups that have supported her nomination.
Republicans are unlikely to get much commentary from Judge Jackson on those topics, if her previous hearing is any indication. She was asked multiple times by GOP senators about expanding the size of the court, and she said as a sitting judge and judicial nominee, it would be inappropriate to comment since she would be bound by Supreme Court precedent. She declined to answer several questions on the liberal group Demand Justice, which had named her to its Supreme Court vacancy short list.
Judge Jackson responds to a question from Sen. John Cornyn, R-Texas, about a progressive group and whether the Supreme Court is "broken," saying she will not comment on the size, structure or functioning of the high court.
"I've never said anything about the Supreme Court being broken and again, you know, I'm not able to comment on the structure, the size, the functioning even, of the Supreme Court," she said.
Asked if the justice system was systemically racist, she cited social science research on disparate outcomes for defendants, particularly in sentencing. But she said as a judge she doesn't focus on systemic effects but on individual cases.
At one point in the previous hearing, Sen. Thom Tillis, R-N.C., criticized her ruling in the case of Don McGahn, President Donald Trump's first White House counsel. Tillis played a clip of MSNBC host Rachel Maddow saying it appeared as if the ruling was written with a "broad audience in mind" and he also said Judge Jackson was included on a short list from Demand Justice for the Supreme Court after that ruling was issued.
Judge Jackson explains her approach to judicial independence while serving as a U.S. district judge for the District of Columbia.
"I've been a federal judge for eight years and I have a duty of independence," Judge Jackson said in response. "I clerked for three federal judges before I became a judge, and they were models of judicial independence. And what that has meant is that I know very well what my obligations are, what my duties are, not to rule with partisan advantage in mind, not to tailor or craft my decisions in order to try to gain influence or do anything of the sort."
When Justice Stephen Breyer announced his retirement, some Republicans were immediately critical of Biden's decision to declare ahead of time that he would nominate a Black woman to the court, though Democrats have defended it as consistent with the way previous presidents have approached vacancies. Cruz asked in writing whether it was appropriate or constitutional to consider skin color or sex when making a judicial appointment.
Judge Jackson responded that she could not comment on the constitutionality of factors the executive considers for political appointments.
Time as a Public Defender
Democrats' questions of Judge Jackson during her circuit court confirmation underscored her diverse background prior to joining the bench. Multiple Democrats asked about her time as a public defender, and how it informed her decisions.
Sen. Dianne Feinstein, D-Calif., asked her to respond to critics who say public defenders could not be impartial judges. Judge Jackson said being a former public defender could help a judge consider facts and circumstances approaching a case, but also help the system overall in terms of interactions with defendants.
Judge Jackson talks about her experience as a federal public defender after being questioned by Sen. Dianne Feinstein, D-Calif., about critics who say that background limits impartiality. She would be the first former public defender on the high court, if confirmed.
"I would think that there would be no difference between defender experience and prosecutorial experience from the standpoint of whether or not someone can do what the law requires, and many, many prosecutors have been appointed as judges," she said.
Sen. Chris Coons, D-Del., asked about critics who pointed to areas where she ruled against Trump's administration as evidence of bias. He asked what would be missed by judging a record based on score-keeping between different administrations.
Judge Jackson answers a question from Sen. Chris Coons, D-Del., about critics who accuse her of bias because of rulings against the Trump administration. She discussed the methodology she uses for each individual case.
"I do think it misses quite a bit, because I am applying a methodology as I go through my cases and it involves fastidiously looking only at the arguments that the parties are making, the facts and the law," Judge Jackson responded. She added that she's testing the merits of the claims and how the law applies to the claims being made.
"If the judge is going to do their duty, they're not focused on the same political dynamics that you're talking about that other people try to find in their rulings," she said.
She faced several questions during the hearing on her representation of detainees at Guantanamo Bay and at the appellate level in private practice. Several senators followed up with more extensive questions on the topic in writing, including whether she considered resigning rather than represent them. She said she was assigned the briefs in private practice because of the knowledge accumulated during her time as a public defender. And she said it would be inappropriate to comment on whether she'd disagreed with her client or considered resigning rather than representing him.
Prep Work
Former Sen. Doug Jones, who is accompanying Judge Jackson in the traditional "Sherpa" role as she meets with senators, said reviewing her previous hearing was among myriad ways she was preparing for the current confirmation.
"They had access to basically everything then except her record on the court of appeals," Jones said.
Nick Xenakis, a special counsel at Covington & Burling and former chief counsel for Feinstein, said that in preparing for a Supreme Court hearing, staff and senators look for a new approach, but are cognizant of what came in the past hearing.
"It would not surprise me if a lot of themes that got brought up last time are brought up this time again and expanded," Xenakis said.
Jones told reporters they expect different lines of questions, given the gravity of the Supreme Court compared to lower courts. But he said her previous experience before the committee helps the preparation.
"It's the same committee, the same senators are going to be asking probing questions," Jones said. "I think you see kind of some highlights of where people want to go and the questions they want to ask, and I think that helps any nominee to have sat in that chair before."
--Editing by Robert Rudinger.
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