Jackson’s hearings could inspire the GOP’s next line of legal battle

With Jackson on a seemingly firm, if not almost partisan, path to confirmation in the Senate, Republicans are opening up the possibility of making sentencing choices for justice candidates an issue again. Senator Lindsey Graham (RS.C.) has even left the door open to scrutinize the sentencing decisions of J. Michelle Childs, her preferred Home State choice for High Court nomination, while Democrats are already drawing a line against future requests for records that contain sensitive information.

“That clearly shouldn’t be a problem. Because pre-sentence reports are written with the promise of confidentiality and their disclosure could cause extraordinary harm to innocent parties,” said Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee. “Hopefully we’ve seen the last of this issue, and Republicans understand that this should be off limits. “

But the more politicized court confirmations become, the less likely the GOP is to forgo the opportunity to apply the most rigorous scrutiny possible — especially amid nationwide concerns about rising crime. While Jackson’s conviction record in child pornography cases is in line with the vast majority of federal judges, Republicans may well raise the issue again given that many appellate court candidates share his court experience. of federal districts.

In interviews, several Senate Republicans predicted that the push for pre-sentencing reports would not go away. And they pushed back against Democrats’ concerns, arguing that lawmakers often review sensitive and classified documents.

Graham said “you better believe” he will present the conviction records at future confirmation hearings, if the candidates have similar records. Asked if he would push for pre-sentencing documents for Childs, who is vying for a DC Circuit appellate seat that would involve a Judiciary Committee appearance, Graham replied, “If it became a problem, if she has a pattern of condemning people like the other lady does, yeah.

“We have a right to see these reports,” said Sen. John Neely Kennedy (R-La.), another member of the panel. He added that he doesn’t buy the argument that it would put people at risk because “you can always redact individual names”.

During Jackson’s hearings, Sen. Ted Cruz (R-Texas) and nine other Senate Republicans requested probation records and pre-sentence reports, an unusual request. They did so after the White House initially provided some members of the Judiciary Committee and the media — not those GOP senators — with information showing that Jackson’s sentencing record often aligned with the office’s recommendation. probation, to counter the “soft-on” of the Republicans. “criminal” attacks.

The Republicans finally had access to the same files. Jackson also noted during his testimony that federal sentencing guidelines are outdated and do not take into account the use of the Internet to download child pornography.

But the White House did not provide pre-sentencing reports. For one of the child pornography cases, in which Jackson handed down a three-month sentence, she provided the Judiciary Committee with the two separate sentencing memoranda filed by the U.S. Attorney’s Office and defense attorneys, along with her judgment. , according to a White House official. .

Although sentencing recommendations are included in pre-sentence reports, only the final propositions they contain are usually read aloud at the hearings of these cases. And some Democrats have questioned whether Congress would even have the power to compel the release of these reports, given that they fall within the purview of the judiciary.

“Pre-conviction reports aren’t even written by the executive branch,” said Sen. Sheldon Whitehouse (DR.I.), who is also on the judicial panel. “They are carried out by the judiciary. … So the idea that we need to tell the judicial branch of government, ‘Give us those pre-sentence reports’ is ridiculous.

The GOP’s push for pre-sentencing reports caught the attention of some former district court judges, who wrote a letter Monday to Judiciary Chairman Sen. Dick Durbin (D-Ill.) and to ranking panel member Sen. Chuck Grassley (R-Iowa) who cautions against the effort. In the letter, led by former District Court Judge Nancy Gertner, an appointee of then-President Bill Clinton, the judges noted that — beyond the parties to the case — the preliminary report at sentencing is only available to the FBI and the Bureau of Prisons. .

And even this “for the sole purpose of facilitating ongoing investigations” related to terrorist activity, deportation proceedings and the safe placement of the accused.

“It would be totally inappropriate to publish a [pre-sentencing report] for any other purpose,” the former justices wrote. “Some information, such as medical information, cannot be disclosed. … Other information could endanger a defendant and his family.

Durbin reiterated this week that providing the reports would be “dangerous” because “there are many innocent people whose names appear in these reports with information that should in no way compromise them.” He added that these people “are promised from the moment they attend these hearings that everything is confidential”.

Some Republicans were less inclined to say a push for sentencing papers will become the norm after Jackson’s hearing, saying his nomination was different because of his stint on the US Sentencing Commission. Cruz predicted it would only be raised if there was a dispute over a candidate’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 his conviction record for child pornography cases, acknowledged that pre-trial reports sentencing could become a priority at future confirmation hearings. But he added that candidates from both sides should be held to the same standard.

“If we do it, we have to do it fairly,” Tillis said. “Whether it’s a Republican presidential nominee or a Democratic nominee, if we want to do that, we should also set that as a standard that both parties have to live up to.”

Josh Gerstein contributed to this report.


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