Ketanji Brown Jackson Confirmation Hearings Takeaways

David and Sarah discuss Ketanji Brown Jackson’s Supreme Court confirmation hearings and a disruption at ...

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David and Sarah discuss Ketanji Brown Jackson’s Supreme Court confirmation hearings and a disruption at Yale Law School. They drill down on claims that Judge Jackson is soft on child porn crimes and amplify their objection to both intolerant students and cowardly administrators. Throughout the podcast, a courageous Sarah fights through COVID to podcast in the face of adversity.

Show Notes:

–The Dispatch: “Ketanji Brown Jackson Weathers a Marathon Day Two”

–National Review: “Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography”

–National Review: “Ho-Hum: The Cases Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases”

–Washington Post: “Josh Hawley’s misleading attack on Judge Jackson’s sentencing of child-porn offenders”

–Original Jurisdiction: “Free Speech At Yale Law School: One Progressive’s Perspective”

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  1. Avatar photo
    Andrew Richards

    Thanks for another great episode that I can use to evangelize AO/The Dispatch to my friends and family! AO is definitely my favorite podcast. I'm a 2L who definitely falls in the same idealogical camp, but I enjoy that David and Sarah often both challenge and go in depth on my priors. I was wondering if our fearless hosts, or anyone else in the community, was aware of an equal and opposite moderate left legal podcast? I want to make sure I'm balancing my intake a bit more!

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  2. Paul

    I would be very interested to hear you discuss the court’s finding in the Eastman claim-of-attorney-client-privilege case that it’s more likely than not that Trump committed the crime of obstructing or impeding (or attempting to obstruct or impede) an official proceeding, and in particular, what did you think about what the court said about the mental state element of that crime. Here’s my reading of what the court said: To commit the crime one must act with “corrupt” intent. In finding this element, the court found that Trump likely knew there was no factual or legal basis for the plan to have Pence delay the count or reject electoral votes outright. To focus on the “no legal basis” finding, there were two parts to it. (This is on page 36.) First: “The illegality of the plan was obvious,” and Eastman’s argument that “the plan was legally justified [because] it ‘was grounded on a good faith interpretation of the Constitution’” is meritless because “ ‘ignorance of the law is no excuse,’ ….” Second: “believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.” Have I read this right? And what to you think about the basis for rejecting the argument about having a good faith belief in the legality of the plan? And also, what to you think of the reasoning in the part that said “believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it.”

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  3. Katie

    Great episode! In the podcast you had discussed mandatory minimums for child pornography crimes and that updating/changing them can only be done with new legislation. I want to do a shout out for my dad who is the House of Representatives here in Minnesota, and has been working to do just that! He is and has been an advocate for change, and through the Protect Minnesota's Kids Act, has been working with the Child Protection League Action to hold those offenders more accountable.

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  4. Avatar photo
    David Sneath

    Isn't David's comment about Andrew McCartney's column being long superfluous? All of Andy's columns are LOOOOONNNNGGGG!

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  5. Avatar photo
    Something Borrowed

    Hi David and Sarah!

    RE: definition of a woman: the definition of a woman is an adult human female. In categorizing sexes, female is the sex that produces large gametes, and male is the sex that produces small gametes. You will notice that the concept of XX/XY chromosomes to determine sex is not universal across all animals. Almost all intersex people have the "body plan" for male or female gametes, whether or not they actually produce them.

    Sarah, I'm not sure that the athletes barred from competing would meet David's definition of a woman (or mine). If Mboma and Masilingi have a DSD which is causing their high levels of testosterone (the most likely cause IMO), they may have XY chromosomes and testicles. The Nambian Olympic committee has denied this, but the rules in question only apply to athletes with DSDs. The medical records are confidential, so we don't even know whether their testosterone levels were only slightly higher than the cutoff or significantly so. If the athletes weren't intersex, why wouldn't they want more transparency around their medical records? They could even publish their own report from their own doctor, showing that they have ovaries and XX chromosomes. Just to give some context: the normal blood testosterone results for an adult woman is between 0.5 and 2.4 nmol/l. The olympic cutoff is 5 nmol/l. At 6.9 nmol/l, doctors begin running tests for ovarian or adrenal tumors. The normal result for an adult man is between 10-35 nmol/l. There is a LOT of room for edge cases in the Olympic committee's rules.

    If Sarah and David don't feel that trans women are "similarly situated" to compete with men because of their advantages due to male puberty, I'm not sure why an intersex athlete with XY chromosomes and testicles is similarly situated to compete with women, just because those testicles are internal and the athlete's genitalia are female. I really feel for athletes with DSDs who didn't know that they were intersex until they went to compete, and I understand that there's still tremendous stigma around being intersex. That doesn't mean they should be competing with women.

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  6. Avatar photo
    Philo

    Your discussion of KBJ’s non-answer on definition of a woman took me in a different direction. Marsha Blackburn missed an opportunity to follow up on that line of questioning. In view of POTUS’ stated goal to put a “black woman” on the Supreme Court maybe she should have followed up by asking Judge Jackson what gender she is. IF…. she answered that she is a woman, Sen Blackburn might follow up with “How do you know?”. Also got me wondering if it’s legal to ask a person their gender in a job interview?

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    Rachel

    Hi there! I'm a healthcare safety person (and donut aficionado) and I'm really hoping AO will cover the Vanderbilt medication error in a future podcast! Not your normal beat, i know, but as a nurse, this strikes me as a terrible miscarriage of justice, and i would love your thoughts on the case!

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  8. Jason

    Thanks for mentioning the point about the Senators raising policy questions that are more appropriately handled by legislators than judges. Republicans, since the votes on the Contract with America, have gotten less and less interested in legislating, regardless of how much grandstanding they do to evade this point. It's easier to punt to the other branches.

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    KMG

    David and Sarah, I so appreciated your observations that the adults at Yale (and other law schools) have an obligation to reject student intimidation and preserve free inquiry. But your observation got me thinking: didn't those same adults have a hand in creating these conditions? If we Balkanize our law schools by using grievance categories to choose our students, to choose journal editors, to hire our faculty, and to teach our courses, why are we surprised when our law schools look and sound like Sarajevo?

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  10. Avatar photo
    Shereedf

    Why are so many people concerned about how to define a woman, while how to define a man is ?…

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