Jackson’s hearings could inspire the GOP’s next line of legal battles
With Jackson on what appears to be a firm, if almost bipartisan, path to Senate confirmation, Republicans are allowing leeway to make trial nominees’ sentencing decisions an issue again. Sen. Lindsey Graham (RS.C.) even left the door open to scrutinize the sentencing moves of J. Michelle Childs, his preferred home state choice for the High Court nomination, while Democrats are already drawing a line against future demands search for records containing sensitive information.
“It clearly shouldn’t be a problem. Because pre-conviction reports are prepared with promises of confidentiality, and their disclosure could cause extraordinary harm to innocent parties,” said Senator Richard Blumenthal (D-Conn.), a member of the Judiciary Committee. “I hope we’ve seen the last of this issue and Republicans will understand it should be banned. “
But the more politicized court confirmations become, the less likely the GOP will back down from an opportunity to conduct the most rigorous scrutiny — especially amid nationwide concerns about rising crime. While Jackson’s conviction record in child pornography cases is in line with that of the vast majority of federal judges, Republicans may revisit the issue as many appellate nominees share their background in federal district courts.
In interviews, several Senate Republicans predicted the urge for pre-sentencing reports would not abate. And they pushed back Democrats’ concerns, arguing that lawmakers often review sensitive and classified material.
Graham said “you’d better believe that” that he will bring up the sentencing files at future confirmation hearings if the candidates have similar files. When asked if he would be pushing for documents for Childs’ prior conviction, who is running for a DC Circuit appeals seat that would include an appearance before the Judiciary Committee, Graham replied, “If it becomes a problem if she has a pattern, People.” to judge like the other lady does, yes.”
“We have the right to see these reports,” said Senator John Neely Kennedy (R-La.), another member of the panel. He added that he doesn’t accept the argument that doing so would put people at risk because “you can always black out individual names”.
During Jackson’s hearings, Sen. Ted Cruz (R-Texas) and nine other Senate Republicans requested the parole records and pre-sentencing reports, an unusual request. They did so after the White House initially provided some members of the Judiciary Committee and the media — and not these GOP senators — with information that showed Jackson’s conviction record was often consistent with parole board recommendations, as a counter to the “soft- On the Republicans’ “crime” attacks.
Republicans eventually gained access to the same records. Jackson also noted during her testimony that state sentencing guidelines are outdated and do not address the use of the Internet to download child pornography.
But the White House did not provide the actual reports prior to the sentencing. For one of the child pornography cases in which Jackson served a three-month sentence, she gave the Judiciary Committee the two separate sentencing memos filed by U.S. Attorneys and defense attorneys, as well as her verdict, according to a White House official.
Although sentencing recommendations are included in prejudice reports, in these cases only the final suggestions are typically read aloud at hearings. And some Democrats questioned whether Congress had any authority to compel the release of these reports, given that they fall within the purview of the judiciary.
“Pre-sentencing reports aren’t even made by the executive branch,” said Sen. Sheldon Whitehouse (DR.I.), who is also a member of the Judiciary Panel. “They are made by the judiciary. … The idea that we have to tell the judiciary, ‘Give us these prejudice reports,’ is ridiculous.”
The GOP’s push for pre-sentencing reports caught the attention of some former district court judges, who on Monday wrote a letter to Judiciary Chairman Sen. Dick Durbin (D-Ill.) and senior panel member Sen. Chuck Grassley (R- Iowa), wrote warns of the expense. In the letter, led by former District Judge Nancy Gertner, a commissioner for then-President Bill Clinton, the judges noted that the pre-conviction report is available only to the FBI and the Bureau of Prisons, aside from the parties to the case.
And even that is done “solely to support ongoing investigations” related to terrorist activities, deportations and the safe detention of the accused.
“It would be totally inappropriate to release a [pre-sentencing report] for any other purpose,” the former judges wrote. “Certain information, such as medical information, cannot be made public. … Other information could endanger a defendant and his family.”
Durbin reiterated this week that making the reports available is “dangerous” because “there are many innocent people whose names are appearing in these reports with information that should not in any way compromise them.” He added that these individuals “are promised from the moment they sit down for these hearings that everything is confidential.”
Some Republicans were less inclined to say that a drive for sentencing documents would become the norm after Jackson’s hearing, saying her nomination was different because of her time on the US sentencing committee. Cruz predicted it would only be raised in the event of a dispute over a nominee’s record, while Grassley suggested it was too early to speculate on future nominees.
Sen. Thom Tillis (RN.C.), who during Jackson’s confirmation hearing did not focus his questions on her conviction record in child pornography cases, acknowledged that pre-conviction reports could become a focus of future confirmation hearings. But he added that nominees from both parties should be of the same standard.
“If we do this, we have to do it fairly,” Tillis said. “Whether it’s a Republican presidential nominee or a Democratic nominee, if we do that, then we should also set that as a standard that both sides have to live up to.”
Josh Gerstein contributed to this report.