Senator Ted Cruz
Today, during the second round of questioning in the confirmation hearing for Judge Ketanji Brown Jackson, U.S. Sen. Ted Cruz (R-Texas), member of the Senate Judiciary Committee and Ranking Member of the Subcommittee on The Constitution, pressed the judge on whether or not she would recuse herself from the Supreme Court’s consideration of the case concerning discrimination of Asian Americans at Harvard, where Judge Jackson is on the Board of Overseers, on gender discrimination and the definition of ‘woman,’ and her pattern of giving child pornographers sentences below what the prosecutor has asked for. Watch Sen. Cruz’s full round of questioning here. Excerpts are included below.
Sen. Cruz asked Judge Jackson for her thoughts on standing under Article III of the Constitution and the lawsuit brought against Harvard for Harvard’s policy of discriminating against Asian Americans:
“Under Article III of the Constitution, federal courts have jurisdiction over only cases and controversies. Which means under the Constitution, it has to be an actual dispute—that federal courts cannot simply issue advisory opinions on a question they may have a view on. And one component of Article III jurisdiction is the requirement of standing, that in order for a plaintiff to have standing to bring a case, that plaintiff, at least generally speaking, must have a real and concrete injury. Is that right?”
“So for example, that means that even if I might have a disagreement with some particular policy, or some particular law, that I can’t bring a case unless I am personally aggrieved by that policy or that law. So for example, your and my alma mater, Harvard, is currently being sued for its explicit ,and in my view, egregious policy of discriminating against Asian Americans. Even though I think that policy is egregious, I as an individual plaintiff could not bring a lawsuit challenging it, because I’m not Asian American. Is that right?”
Sen. Cruz continued, asking Judge Jackson about her statement that she cannot define what a ‘woman’ is:
“We discussed yesterday how the standard for race discrimination was strict scrutiny. The court has laid out a different standard for gender discrimination. What is the constitutional standard that applies to gender discrimination?”
“So yesterday, under questioning from Senator Blackburn, you told her that you couldn’t define what a woman is, that you are not a biologist. Which I think you’re the only Supreme Court nominee in history who has been unable to answer the question, ‘What is a woman?’ Let me ask you, as a judge, how would you determine if a plaintiff had Article III standing to challenge a gender based rule, regulation, policy, without being able to determine what a woman was?”
“But let me ask, under the modern leftist sensibilities, if I decide right now that I’m a woman, then apparently I’m a woman. Does that mean that I would have Article III standing to challenge a gender based restriction?”
“Okay, if I can change my gender, if I can be a woman, and then an hour later, if I decide I’m not a woman anymore, I guess I would lose Article III standing. Tell me, does that same principle apply to other protected characteristics? For example, I’m an Hispanic man. Could I decide I was an Asian man? Would I have the ability to be an Asian man and challenge Harvard’s discrimination because I made that decision?”
Sen. Cruz also asked Judge Jackson about child pornography cases where she gave defendants lower sentences than what the prosecution asked for 100 percent of the time:
“Okay, let’s go back to your favorite topic of this hearing, which is the criminal law cases you had as a district judge, and in particular the cases involving child pornography. Now, your defenders, both on the Democratic side of the dais and also in the press, have suggested that the criticism that has been raised has been somehow cherry picked, that it’s only some specific examples. So I’m going to give you an opportunity to discuss each and every case you’ve had, because looking at your cases, and I’ve now examined all of the child porn cases you’ve had as a federal district judge, there is a very consistent pattern. So let’s start and by the way, I’m excluding the cases—so Sen. Durbin and Sen. Coons focused on the Nickerson case, the Fyffe case, the Nguyen case, the Hillie case. I’m excluding those because those are not child porn cases. Those are actual sexual assault of a child, which is markedly different. And I will concede when you’re dealing with sexual assault, you have been willing to impose stricter penalties. So let’s focus on actual child pornography cases. And let’s go through each of them. Because if it’s right that we’re cherry picking, then you should be able to explain quite powerfully. Now your justification is that you’re following the statute. And as you know, 18 U.S.C. § 3553 lays out the factors that as a district judge, you had to consider in sentencing. And let’s start with the Hess case, United States v. Hess. Now in that case, a man sent six pictures of a prepubescent girl that he claimed was his daughter, to an undercover law enforcement officer. Officers found over 600 images of child pornography, including images of sexual acts being performed on prepubescent children. The defendant pled guilty, and I believe in all of these cases, the defendant pled guilty. So there’s no question about guilt. They came in and pled guilty in your courtroom. The charge carried a mandatory minimum sentence of five years and a mandatory maximum sentence of 20 years. The sentencing guidelines recommended 151 to 188 months sentence. The government, as part of a plea deal agreed to argue for 60 months but didn’t agree that that would be the sentence, simply that they would advocate it. And you in turn sentenced Hess to 60 months. So under the terms of the statute, why did you choose to sentence Hess to the absolute lowest possible sentence you were allowed to sentence under law?”
Sen. Cruz further asked about Judge Jackson’s light sentencing of child pornographers in United States v. Chazin and United States v. Stewart:
“Chazin is equally horrifying. And you say in Chazin, and this is something Sen. Graham asked you. So the guidelines lay out different enhancements, and you say repeatedly, and this is true in all your cases, you say you disagree with the guidelines, you think they’re wrong. And the two guidelines you disagree with is one, there’s an enhancement for use of a computer and you say the world has changed and now all of these are on a computer. And I understand that. I don’t agree with you, but I understand that. That is an understandable thing to say. But the second thing you say over and over again, is there’s an enhancement for the number of images. And you say repeatedly, for example, in Chazin, you say ‘Whatever the state of the law and technology at the time of the guidelines were first adapted, neither the use of the computer, nor the number of images are especially aggravating factors today.’ Now I find that bizarre and you say it in every case—you say the number of images, it’s not an aggravating factor, it doesn’t matter and you won’t apply the enhancement. Do you really believe that a predator that has hundreds or thousands of images of hundreds or thousands of children being sexually violated has not committed an offense that is more serious than someone that has a single picture of a single child? A single picture of a single child is horrifying. But hundreds of children that have been violated? Do you really believe that is not a more serious offense?”
“Well, I will point out that you have a pattern, it doesn’t matter how egregious the case is. Sen. Hawley talked about the Hawkins case where you had an 18 year old with pictures of boys as young as eight being sexually assaulted and raped, and you sentenced him to just three months in jail. And I will point out the Stewart case, the last one on this list, because we’re running out of time, the Stewart case you describe that he had over 6,700 images and videos. So that’s a lot—6,700. That’s a lot of kids being sexually assaulted.
Judge, in the Stewart case, you said from the bench: ‘Thus, although this is not necessarily an a-typical case, your child pornography possession crime was egregious in the court’s view.’ Okay, so this is a bad one. If you’re actually sentencing defendants, you said this was egregious. What did you sentence Stewart for? The guidelines said 97 to 121 months, the prosecutor said 97 months. You said it’s egregious—6,700 images. You come in at 57 months….why did you sentence him for half the amount?”
Watch Sen. Cruz’s opening remarks during day one of the confirmation hearing here. Watch Sen. Cruz’s full Q&A with Judge Ketanji Brown Jackson on Day two of the Senate Judiciary confirmation hearing here.