'A lot of hiding': Senators kept from seeing Sentencing Commission records on Supreme Court nominee

Senate Judiciary Committee Chair Dick Durbin is "hiding" records from Ketanji Brown Jackson's time as vice chair of the Sentencing Commission, where she championed leniency for child predators, says Michael Davis, former chief counsel for the committee.

Published: March 21, 2022 9:59pm

Updated: March 21, 2022 11:47pm

The Biden administration is keeping more than 48,000 pages of records about Supreme Court nominee Ketanji Brown Jackson from senators reviewing her nomination, including documents about her time at the U.S. Sentencing Commission that she has made a central part of her professional story.

Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) is "hiding" records from Jackson's time as vice chair of the Sentencing Commission, where she championed leniency for child predators, says Michael Davis, former chief counsel for the Senate Judiciary Committee.

Sen. Chuck Grassley (R-Iowa) said Monday that 16,000 pages of substantive content has been released on Jackson, compared to the 48,000 pages withheld by the White House under the Presidential Records Act and FOIA exemptions.

Grassley, ranking member of the Senate Judiciary Committee, revealed the obstruction during his opening statement at the Jackson Supreme Court confirmation hearings.

Senate Republicans are seeking records specifically from 2010 to 2014, when Jackson served on the U.S. Sentencing Commission. The government agency works to reduce disparities in sentencing while increasing transparency, and Jackson's involvement on the commission has been touted as a qualification to be confirmed to the Supreme Court. 

"Durbin has refused a request by Republican senators to look at her records on the sentencing commission," Davis told "Just the News – Not Noise" on Monday, hours after Jackson's first day of testimony in front of the committee weighing her nomination to replace retiring Supreme Court Justice Stephen Breyer.

"Judge Jackson's history of sentencing below guidelines, particularly in cases involving child exploitation, raises legitimate questions about her views on penalties for these crimes," Grassley said. "This is exactly why I asked for her Sentencing Commission records — the same types of records the committee traditionally reviews when vetting a Supreme Court nominee."

Judge Jackson has been criticized for her public defender work supporting terrorism suspects and for advocating softer sentences for child pornography offenders while on the Sentencing Commission.

On the commission, Jackson argued publicly "to lessen the sentence for people who are convicted of possession and distribution of child pornography," according to Davis, the founder of Article III Project

"We don't know what she did behind the scenes," he said. "We want to see what her thought process, what her deliberations were, behind the scenes when the cameras were off when there weren't transcripts." 

"Unfortunately, somebody somewhere doesn't want us to see that information," Grassley said. "How can this be a thorough review, if this information is withheld? And why aren't Democrats interested in allowing the committee to have this information to conduct a thorough review?"

People convicted of possession and distribution of child pornography face a mandatory minimum sentence of 5 years. 

"Judge Jackson, for whatever reason, has been maneuvering to try to lessen the punishment for child pornographers," Davis claimed.

The former Senate Judiciary attorney said that a "major problem" is that Jackson operates on the "empathy standard," which he defines as "whatever the heck that judge feels that day."

"When she goes on the Supreme Court, she can just do whatever the heck she wants, under her empathy standard," Davis said. "She's not bound by anything. She's not bound by the law at all. It's just whatever she feels."

As a student at Harvard Law, Jackson wrote a paper criticizing what she saw as "excessiveness" in punishments for sex offenders. 

"This is a 25-year pattern," Davis said. "This proves to me that she doesn't think that people who possess and distribute child pornography are that bad."

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