What happened on Day 3 of Judge Ketanji Brown Jackson's confirmation hearings

The Senate Judiciary Committee concluded its second day of questioning Judge Ketanji Brown Jackson around 7:35 p.m. ET.

Committee Chairman Dick Durbin, D-Ill., said the panel would meet to consider Jackson's nomination on March 28 at 3 p.m., but it's unlikely the vote will take place that day since committee rules allow any one senator to delay the proceedings for one week. That means the vote will likely take place April 4.

In the meantime, outside witnesses will provide testimony to the committee on Thursday starting at 9 a.m. Jackson will not be present for the witness testimony.

In the final round of questioning Wednesday, Sen. Marsha Blackburn, R-Tenn., asked Jackson about abortion rights and attempted to get her to weigh in on the right to an "effective abortion," cases where a pregnancy is not effectively terminated in a first attempt.

"Issues like the one that you have raised are in the court system now, and as a result, as a nominee to the Supreme Court, I am not able to opine about the constitutionality or not of the kinds of legislation that you mentioned," Jackson said.

Blackburn later turned to gun rights, asking Jackson to detail the high court's precedent on the matter.

"Current Supreme Court precedent says that under the Second Amendment there is an individual fundamental right to keep and bear arms in the home," Jackson said.

Blackburn asked Jackson if she considers it an "individual right," not only reserved for militias.

Jackson responded saying the Supreme Court has established it is an individual right.

Sen. Alex Padilla, D-Calif., asked Jackson to offer her advice on inspiring young people who doubt their abilities.

"I hope to inspire people to try to follow this path because I love this country, because I love the law, because I think it is important that we all invest in our future, and the young people are the future," Jackson said. "I want them to know that they can do and be anything."

The nominee then became emotional as she described her own experience arriving at Harvard from Miami as a freshman and feeling homesick while questioning whether she belonged there.

She said she encountered an unidentified Black woman as she walked through Harvard Yard, and the woman leaned over as they passed each other and told her to "persevere." She said she would use that same word in encouraging young people on their path today: "I would tell them to persevere."

Sen. John Kennedy, R-La., pressed Jackson to say whether crack cocaine and powder cocaine were "equal" in danger.

Jackson rebuffed the line of questioning, saying Kennedy was delving into a "policy matter."

"That's a policy determination. That's what policymakers do," she said.

When pressed further about what she’s seen in her own experience on the bench, Jackson cited findings from the U.S. Sentencing Commission, which studies and develops policies for federal courts.

"I have seen evidence through the Sentencing Commission that the two compositions are chemically similar — so similar as to be indistinguishable," she said.

Sen. Alex Padilla, D-Calif., asked Jackson about her choice of words in writing opinions, noting she has used terms such as “undocumented” and “noncitizen” instead of “alien” or “illegal immigrant.”

He asked if she thinks the language used by judges carries important weight in society.

Jackson responded by saying judges, unlike other government officials, “are required to write our opinions, to explain our decisions.”

“I have long believed, in that capacity, that our clarity and language matters,” she said. “So they do matter.”

After a 26-minute break, the hearing resumed at 6:06 p.m. ET, with Sen. John Kennedy, R-La., asking the next round of questions.

The committee took a dinner break starting at 5:40 p.m. ET. Once it returns, there are only five senators left to ask questions.

Sen. Dick Durbin, D-Ill., took a moment between speaking slots to respond to a letter signed by 10 GOP senators on the committee that requested additional information related to child pornography convicts she’d sentenced.

He said his Republican colleagues, when it came to such information, had “exactly what the Democratic side and White House had” — including probation office recommendations in the cases that senators like Ted Cruz, R-Texas, and Josh Hawley, R-Mo., had highlighted during their questioning of Jackson.

Durbin said he did not wish to request pre-sentence reports — as the letter signed by the 10 senators had asked for — because doing so could endanger or compromise the victims of the crimes.

He explained that such reports are “typically filed under seal,” that they “can contain highly sensitive personal information” about defendants and “innocent third parties and victims” — and that they’d never been turned over to the committee previously.

“I would not want it weighing on my conscience that we are turning over these pre-sentence reports to this committee for the first time in history,” Durbin said, adding that doing so could “somehow compromise or endanger any victim as a result.”

“That's a bridge too far for me,” he added.

Cruz, replying to Durbin, reiterated the request but added that he would agree to redact sensitive information.

Cotton pushed Jackson on specifics of a child pornography case he said has been in the news cycle for days.

Jackson said she couldn't specifically remember the details of one case that involved a re-sentencing.

"I've sentenced over 100 people, and supervised release, which is the kind of post-incarceration condition that judges ordinarily impose, is something that is done on a standard form," Jackson said.

Cotton went further to say Jackson had been asked about the case numerous times "and I just don't find it credible that you weren't prepared for that matter."

Cruz interrupted Hirono right before she began her questioning in an attempt to submit a letter about Democrats on the panel allegedly withholding documents as it pertains to child pornography cases.

"This letter that is signed by 10 senators on the committee addressed to you makes the point that the White House gave you probation information for Democrats that was not provided to the minority on this committee," Cruz said, speaking directly to Durbin who had just yielded to Hirono.

"I know the junior senator from Texas likes to get on television, most of us have been here a long time trying to follow the rules," said Leahy, who added Cruz could very easily enter the letter into the record.

"Let's get back to regular order," said Leahy.

Hawley, picking up where Cruz left off, resumed attacks on Jackson for what they and other conservatives have said were a series of lenient sentences she handed down to child pornography convicts.

Jackson attempted to defend herself, only to be repeatedly interrupted by Hawley.

Hawley jumped right into asking Jackson if she had misgivings about a three-month prison sentence she handed down to one particular offender.

“Do you regret it?” he repeatedly asked.

Eventually, Jackson replied, “What I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we’ve spent a lot of time focusing on this small subset of my sentences, and I’ve tried to explain many times.”

Before she could continue, Hawley interrupted her to resume firing off questions.

Eventually, interrupting Jackson once again, Hawley said, “Well, I regret it.”

Cruz and Durbin engaged in a bitter back-and-forth after Cruz ran out of time but was still shouting questions and demanding answers.

Durbin repeatedly hit the gavel trying to make Cruz be quiet, but Cruz continued to hammer Jackson for issuing what he said were lenient sentences for child pornography offenders.

With a poster behind him outlining those sentences, Cruz launched into additional questions, even as his 20-minute allotment expired.

“Times expired,” Durbin said, as he hammered his gavel.

“I know you want to interrupt, I know you don’t like this line of questions,” Cruz shot back.

“I’d like you to play by the rules,” Durbin said.

“I’m going to ask my questions,” Cruz replied.

For several minutes, Cruz repeated his demands that Jackson answer questions about the “U.S. v. Stewart” child pornography case.

“Are you going to allow her to answer the questions,” Cruz yelled.

“You won’t allow her to answer the questions,” Durbin replied, banging his gavel.

“You can bang it as loud as you want," Cruz said.

“At some point you’re going to need to follow the rules,” Durbin said.

Eventually, Durbin called on Coons, the next senator to speak, to begin talking.

Cruz pressed Jackson on gender discrimination by using himself as an example.

"Under the modern leftist sensibilities, if I decide I'm a woman, does that mean that I would have Article 3 standing to challenge a gender based restriction?" Cruz asked, referring to the constitutional requirement that lawsuits require the plaintiff to prove they suffered some actual injury.

Jackson replied that since lawsuits related to gender are working their way through the courts, she is unable to comment.

Cruz further pushed more hypotheticals, such as "I'm a 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?"

Jackson wouldn't comment given it is a hypothetical.

Cruz asked Jackson about a case currently before the Supreme Court in which groups allege that Harvard University discriminates against Asian American applicants in its undergraduate admissions process.

Cruz asked Jackson, if she were confirmed, if she’d recuse from the case, given that she is on Harvard’s Board of Overseers. Jackson said she would.

“That is my plan, senator,” she said.

After a lunch break, the hearing resumed at 2:50 p.m. ET with Sen. Ted Cruz the first scheduled to ask questions.

Klobuchar asked Jackson about what she thinks of the idea of justices' dissents in rulings being blueprints for future cases.

"There are actually many justices in history who have used the dissent mechanism to discuss the law in ways that others find over time to be more persuasive," Jackson said.

One example is Justice John Marshall Harlan who "dissented famously," she said, in the landmark Plessy v. Ferguson case.

"He dissented alone," Jackson said about Harlan. "All of the other justices agreed with the proposition of separate but equal and he said 'no' in a dissent and his dissent generations later became, according to Justice Thurgood Marshall, the blueprint for Justice Marshall to make arguments that led to Brown v. the Board."

Jackson added, "So there is the opportunity for justices to describe their views in ways that become persuasive to others in the future."

At about 1:45 p.m. ET, the committee took a 30-minute break for lunch. Durbin said if the remaining senators stick to their 20 minutes of alloted time each, there are about 4 hours remaining in the hearing.

Jackson has tied with Justice John Roberts in receiving the highest approval rating from the public for any recent Supreme Court nominees, according to a Gallup poll released Wednesday.

The poll, which was conducted in the first half of March leading up to her confirmation hearings, found that 58 percent of people are in favor of Jackson serving on the high court.

By contrast, 30 percent said they are not in favor of Jackson serving on the Supreme Court. She would be the first Black woman to serve on the court if confirmed by the Senate. Twelve percent of people surveyed said they have no opinion.

Similarly, Gallup found during the period leading up to Roberts' confirmation hearings in 2005, 59 percent supported his nomination while 22 percent said they didn't.

Out of the current justices on the court, Brett Kavanaugh had the lowest approval rating measured by Gallup before his confirmation. A plurality of 41 percent said they supported him, while 37 percent opposed his nomination. Twenty-two percent said they had no opinion.

Cornyn further questioned Jackson on the viability of a fetus at 20 weeks gestation, to which Jackson stated, "I'm not a biologist. I haven't studied this. I don't know."

"What I know is that the Supreme Court has tests and standards that it's applied when it evaluates regulation of the right of a woman to terminate their pregnancy," said Jackson.

Cornyn also asked, "Is it your understanding under the current precedent of the Supreme Court that there is a right to abortion up to and including the time of delivery of the child?"

To which Jackson responded, she is "not aware of the court having made a pronouncement about whether or not regulation can extend all the way up until birth. I'm just not aware of that."

Sen. Patrick Leahy, D-Vt., told reporters that he was upset by Sen. Lindsey Graham's "beyond the pale" questions Wednesday for Jackson.

"As the dean of the Senate ... I'm just distressed to see this kind of a complete breakdown of what's normally the way the Senate's handled," Leahy told NBC News.

The line of questioning by Graham, R-S.C., pressed Jackson on her involvement in sentencing guidelines for child pornography, during which he repeatedly interrupted Jackson.

Leahy responded to questions about if Graham was "badgering" Jackson, saying, "Of course he's badgering [her] ... She came out ahead."

Leahy, however, expressed optimism that Jackson will be confirmed to the court, saying, "She'll be confirmed. It'll be a tremendous improvement to the Supreme Court, but it's been a sad day for the U.S. Senate."

Toward the end of Graham's second round of questioning, the GOP senator went off on a tangent and pressed Jackson about Democrats' handling of the 2018 confirmation process for Justice Brett Kavanaugh.

Kavanaugh faced allegations of sexual misconduct including one made by Dr. Christine Blasey Ford who said he sexually assaulted her at a gathering when they were teenagers in high school in the early 1980s.

"How would you feel that if I had had a letter from somebody accusing you of something, or crime or misconduct for weeks and I give it to Senator Durbin, just before this hearing is over, and not allow you to comment on the accusation? How would you feel about that?" Graham asked Jackson, who said she didn't understand the context of his question.

Graham asked Jackson if she watched the Kavanaugh hearings. "No, sir," said Jackson, who added that she was generally familiar with what happened during them.

"You were here for Kavanaugh. If she's confused about what happened, some people on the other side had an accusation against Judge Kavanaugh during high school, he sexually assaulted somebody and the rest is history that was known to the people on the other side and never revealed during the meetings they had with Judge Kavanaugh, it was literally ambushed. He was ambushed. How would you feel if we did that to you?" Graham said.

After a back-and-forth with Jackson, Durbin interjected, telling Graham: "Senator, she's had nothing to do with the Kavanaugh hearings."

"No, but I'm asking her about how she may feel about what y'all did," Graham shot back angrily.

After Graham interrupted Jackson several more times, Jackson responded, "Senator, I don't have any comment on what procedures took place in this body regarding [Justice Kavanaugh]."

Graham and Jackson sparred over the details of expedited deportations — an issue at the center of a ruling she handed down as a district judge.

In 2019, Jackson temporarily blocked the Trump administration’s plan to expand fast-track deportations of people in the country illegally. The Trump administration plan sought to expand the terms of fast-track deportations for any person who had been in the U.S. for up to two years. (Previously, the rule had been that the Department of Homeland Security had the authority to fast-track deport people only within 100 miles of the border and who had been in the country for up to 14 days). Her ruling was the subject of Republican attacks in Tuesday’s hearings.

Jackson, probed on Wednesday by Graham to explain how she interpreted the statute in question in arriving at her ruling, attempted to explain that, “It was not the authority given to the agency to deport everyone who has been here for up to 24 months; it was the authority to determine what length of time a person has to be here in order to be subjected to expedited removal.”

Graham, however, argued that, “What the Trump administration did was use the discretion given to it by the statute in a way different than prior administrations.”

“This is an example to me,” he added, “where the plain language of the statute was wiped out by you. You reached a conclusion because you disagreed with the Trump administration.”

“That to me is exhibit A of activism,” he added.

Jackson, reiterating a response to questions on the matter from Grassley on Tuesday, explained that Graham’s interpretation didn’t address the fact that her ruling was based, in part, on another statute establishing procedural details of administrative law.

Graham’s comments did “not address that Congress has another statute that is presumptively applied in agency cases to tell agencies how to exercise discretion,” she argued.

Graham directly addressed child pornographers during the hearing Wednesday.

"If you're listening to my voice today and you're on a computer, looking at child pornography, and you get caught, I hope your sentence is enhanced because the computer and the internet is feeding the beast," he said.

Graham questioned Jackson regarding her cases as it related to child pornographers and suggested she did not consider computer usage as an enhancement.

"To me, putting somebody in jail for using a computer is more of a deterrent than supervising their activity of watching the computer that's just a difference that we have," he said.

Dr. Patrick Jackson, the husband of Jackson, has attended each day of the hearing in a different pair of political-themed socks.

The hearing resumed at 11:38 a.m. ET, with Sen. Lindsey Graham the next to ask questions.

Senate Minority Leader Mitch McConnell, R-Ky., used his Senate floor speech Wednesday to criticize Judge Ketanji Brown Jackson's responses in her confirmation hearings, saying that some of her answers have been "evasive and unclear."

"Judge Jackson is receiving a calm, respectful process, unlike the treatment that Senate Democrats typically inflict on Republican presidents' nominees. But unfortunately, thus far, many of Judge Jackson's responses have been evasive and unclear," McConnell said. "She's declined to address critically important questions and ameliorate real concerns."

McConnell specifically pointed to her responses to questions about whether she supports expanding the size of the court — an issue that Jackson said was a policy matter for Congress to decide on — as she said Tuesday that "judges should not be speaking to political issues."

"Judge Jackson has refused to follow in the footsteps of Ginsburg and Breyer. She refuses to rule out what the radical activists want," McConnell said, adding that Jackson will have "another chance" to follow in their footsteps Wednesday.

The committee recessed for a brief break at 11:17 a.m. ET.

The ears of legal scholars must have perked up during a particular substantive exchange about the nuances that separate nationwide injunctions from rulings that invalidate federal agency rules.

Asked by Grassley whether nationwide injunctions were constitutional — he claimed “you’ve issued them” — Jackson noted that what she has issued aren’t technically nationwide injunctions.

Rather, she explained, Grassley was referring to rulings she’d made that invalidate federal agency rules that are deemed procedurally faulty — which “may have nationwide effects.”

“That’s different than a nationwide injunction” which deals with “a particular case in which something has happened … and the court says, based on what happened in this, I’m going to tell everyone in the country that the defendant can’t operate in this way anymore.”

Asked by Grassley if the Supreme Court should “overrule a precedent when it’s clear to justices that precedent was wrongly decided,” Jackson delivered a detailed response.

“Stare decisis, which is the principle that the Supreme Court uses at the outset — the sort of background rule of judicial maintenance or precedence, in order to have predictability, stability in the law — is the kind of principle the court begins with, if it’s asked to overrule or revisit a precedent,” Jackson said.

She listed off several “factors” she said the court had developed that it looks at when considering whether to reverse a precedent.

Those included, she said: “the view that the precedent it’s reconsidering is wrong,” “whether there has been reliance on that prior precedent,” “whether the precedent has proven workable,” “whether the cases in the area have shifted such that the precedent itself is no longer on firm foundation” and “whether there have been new facts, or a new understanding of the facts that give rise to the need to revisit the precedent.”

Durbin responded to Cornyn's remarks from earlier in the hearing when the GOP senator expressed confusion about how saying people committed war crimes is different than calling them war criminals.

The Democratic chair of the committee noted that as a federal public defender, Jackson was one of several lawyers representing detainees at Guantanamo Bay prison who said the U.S. government committed torture, acts that are considered war crimes. He said that the lawyers named then-President George W. Bush and then-Defense Secretary Donald Rumsfeld in their official capacities in their habeas petition but didn't call them war criminals or accuse them of personally committing war crimes.

Asked to comment, Jackson repeated her remarks from Tuesday. She said that public defenders don't choose their clients, but have to provide "vigorous advocacy" on their behalf.

"As a judge now, I see the importance of having lawyers who make arguments, who make allegations," she said. "In the context of a habeas petition, especially early in the process of the response to the horrible attacks of 9/11, lawyers were helping the courts to assess the permissible extent of executive authority by making arguments and we were assigned as public defenders. We had very little information because of the confidentiality or classified nature of a lot of the record and as an appellate lawyer, it was my obligation to file habeas petitions on behalf of my clients."

Sen. Thom Tillis, R-N.C., questioned Jackson on her level of compassion when hearing cases as a trial judge.

"It seems as though you're a very kind person and there's at least a level of empathy that enters into your treatment of a defendant that some could view as maybe beyond what some of us would be comfortable with with respect to administering justice," said Tillis.

Jackson rebutted his comment saying she follows the statute that applies to judges "that Congress has set forward, including the nature and circumstances of the offense, the history of the character and characteristics of the defendant."

Jackson added, "And so what I convey or did when I was a trial judge, as I sentenced people to very lengthy periods of incarceration was you are getting your day in court. You are able to say what you want to say, but you have to sit here and listen to my reading into the record."

The first round of questions that began Tuesday ended Wednesday at 10:25 a.m. ET. Durbin said the second round will now begin, with 20 minutes allotted per senator.

Tillis used a large chunk of his time to talk about dark money interests he said are influencing the judicial nomination process on the left. 

“There is an ecosystem out there on both sides,” Tillis said, pointing to a poster that featured at its top the name “Arabella Advisors,” a consulting firm that works with left-leaning dark money groups.

“It would be interesting, if we could for the record, determine if you have had any interactions,” with the names on the poster, Tillis told Jackson. She responded that she had not.

Tillis then went on a lengthy riff imploring Jackson to “study the risks thoroughly” of what it would mean to expand the court beyond its current size of nine justices — an idea Jackson, earlier this week, declined to weigh in on.

Sen. Jon Ossoff, D-Ga., said that the nominee will likely have to consider complex cases involving new technologies as a justice on the Supreme Court.

Ossoff said that "virtual spaces are increasingly akin to physical spaces," which will require the court to consider "complex questions." He then asked Jackson how the high court should seek out technical expertise and know the source and funding of that information.

"One of the ways in which the court receives information other than directly from the parties in the case is through a practice and established practice of receiving amicus briefs," Jackson said.

Jackson said that this would likely be the "primary mechanism" by which the court could learn about technical expertise. She said she hasn't looked at the Supreme Court's rules about this matter in terms of how it's determined what amicus briefs are received, as well as their disclosures, but would like to discuss that with the other justices.

The fourth day of hearings will bring a change of pace to the committee when, instead of questioning Jackson, it will hear from witness panels.

The committee lists three sets of panels ranging from three to five people.

Notable witnesses include:

• Rep. Joyce Beatty, D-Ohio
• American Bar Association representatives
• Steve Marshall, attorney general of Alabama

Capt. Frederick Thomas, president of the National Organization of Black Law Enforcement Executives

The third day of Jackson's confirmation hearings was gaveled in at 9:07 a.m. ET.

On Tuesday, the Senate Judiciary Committee began its first round of questions with each senator given 30 minutes. By the time the hearing wrapped up after 10 p.m., 20 of the 22 senators on the panel had gone.

On Wednesday, the final two senators — Republican Thom Tillis, of North Carolina, and Democrat Jon Ossoff, of Georgia — will get their 30-minute periods.

And then, a second round of questions will begin. During the second round, each senator will have 20 minutes to question Jackson.

Judge Ketanji Brown Jackson appeared Tuesday for what may end up being the most important day of her Supreme Court confirmation hearings, taking questions from senators during a marathon session before the Judiciary Committee.

The questioning began with Judiciary Committee Chair Dick Durbin, D-Ill., and ranking member Chuck Grassley, R-Iowa, with 30 minutes allotted to each of the panel’s 22 members. The last two senators will pose their questions Wednesday morning.

Read the highlights and revelations from Tuesday’s hearing.