In recent years, conspiracy theorists on the right have become obsessed with accusing liberals of being involved in child rape and child trafficking (see Pizzagate, QAnon, and their use of the term “grooming” to describe opposition to Florida’s “Don’t Say Gay” bill, for just a few examples). It was probably only a matter of time until a Republican politician weaponized the issue against an individual political target.
But who would be so scummy as to use it against a Supreme Court nominee, who also happens to be the first Black female nominee to the court?
In a tweetstorm last week, Sen. Josh Hawley ranted about an “alarming pattern” regarding Judge Ketanji Brown Jackson’s “treatment of sex offenders, especially those preying on children.” (Hawley also brought up his concerns during Monday’s confirmation hearing.)
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It’s no surprise that the ambitious Mr. Hawley—the first Republican senator to announce he would object to certifying Joe Biden’s election, and who infamously gave a clenched-fist salute to Capitol protesters on Jan. 6 and then tried to monetize it—would make such a disrespectful allegation.
The only trouble? As noted by National Review’s Andrew McCarthy—a former federal prosecutor in the Southern District of New York—the allegations don’t hold water.
Hawley is smearing Judge Jackson and her sentencing track record, plan and simple.
As McCarthy explains, Hawley’s “allegation appears meritless to the point of demagoguery.” For example, Hawley does not make the distinction between rapists and kidnappers—or purveyors of illicit content and consumers of it. We might agree that all of these crimes are serious, but the idea that some crimes warrant less severe punishment than others is not evidence of someone being soft on crime.
There are other distinctions, too. Drawing on his experience as a prosecutor, McCarthy recalls, “If the offender was a day short of his 18th birthday, we would drop the case; but if it was a day later, and we took the case, he’d be looking at a mandatory-minimum sentence of several years’ imprisonment.”
Should the same sentence be given to an 18-year-old male in possession of nude pictures texted to him by his 17-year-old girlfriend and a 50-year-old man in possession of graphic photos of a young child? Should the 18-year-old go to jail with hardened criminals for five years and be stigmatized for eternity? Common sense would seem to suggest these two scenarios belong in entirely different categories.
Ultimately, McCarthy writes, “the implication that [Judge Ketanji Brown Jackson] has a soft spot for ‘sex offenders’ who ‘prey on children’ because she argued against a severe mandatory-minimum prison sentence for the receipt and distribution of pornographic images is a smear.”
It’s worth noting that such dishonest political attacks are, sadly, not uncommon. Democrats routinely and unfairly smear Republican nominees to the high court—hence the term, “Borking”.
But rather than continuing this sorry bipartisan tradition, Republicans should instead (barring some truly disqualifying information that somehow escaped her last three Senate confirmation hearings) focus on Jackson’s judicial philosophy.
In my opinion, this includes resisting the temptation to criticize her tenure as a public defender—where it was literally her job to defend people with no other means to defend themselves.
Both the left and the right can be hypocrites when it comes to attacking lawyers based on the sins of their clients. But whether you represent Enron, Big Tobacco, an accused terrorist, Harvey Weinstein, or (as was the case with John Adams) British soldiers after the Boston Massacre, everyone deserves due process and the right to counsel.
That’s not to say I would vote to confirm Judge Jackson. I wouldn’t. I’m anxious to watch the hearings, but it seems pretty clear that as a conservative, our philosophies are at odds. I want justices in the mold of the late Antonin Scalia. It’s fair game for any intellectually honest conservative senator to view a nominee’s non-textualist methodology to be disqualifying. But aside from this categorical approach, I don’t see anything outrageous about Judge Jackson—so far.
But doesn’t President Joe Biden deserve his nominee?
While there may be some merit to generally deferring to a president (who nominates a qualified candidate), this is a lifetime appointment, and the Senate is charged with providing advice and consent. Biden, for example, voted against Robert Bork, Clarence Thomas, John Roberts, and Samuel Alito (who then-Sen. Barack Obama famously tried to filibuster). Each of these nominees were highly qualified.
Perhaps Hawley’s decision to smear Judge Jackson as being soft on child porn was a depraved attempt to destroy this nominee while steering clear of anything remotely close to the race issue. But the abuse and exploitation of children is especially heinous, and to unfairly accuse someone of enabling it could destroy their reputation.
Whatever Hawley’s rationale, this latest move links him with politicians and activists across the aisle who have made shameful and desperate attempts to block a qualified nominee.
Republicans can vote against Judge Jackson with their heads held high. Doing so would be completely legitimate. What’s not acceptable is misrepresenting her record and attempting to assassinate her character.
Hawley, the Big Lie proponent, might not be better than that. But his fellow GOP senators should be. The “loyal opposition” should not be the “dishonest opposition.”
(Disclosure: My wife worked as a fundraising consultant on Hawley’s 2016 campaign for Missouri attorney general.)
