As I watched the Senate Judiciary Committee hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court I could not help but conclude that we are missing the point of what we are learning about our criminal justice system that goes beyond and is more important than Judge Jackson’s specific qualifications to serve as an associate justice.

From the standpoint of her qualifications, Judge Jackson is absolutely worthy of having been nominated.  Furthermore, her approach to applying the law is consistent with the general pattern exhibited throughout our judiciary system. It is, however, this second larger point that is the most troubling and should give us pause relative to her confirmation yet  seems to be lost on those questioning her and on the media covering the hearings.

Some of the most pointed questions posed to Judge Jackson related to her sentencing of convicted child pornographers.  Those questioning her offered evidence that in passing sentences in these cases she as the sitting judge, in the majority of cases, assigned sentences well below federal sentencing guidelines and below what was even being recommended by the prosecution, which was already below sentencing guidelines. Those who support her nomination, including much of the media, point out that her sentences were in the mainstream, i.e., most judges imposed sentences below the guideline…for some reason thinking that fact is supposed to make us feel comfortable with her decisions. As Mitt Romney opined relative to this issue,” …there is no there, there.”  I would characterize that as quite a cavalier attitude, one that completely misses the point. More specifically, are we, as a society, willing to appoint judges to the bench who more often than not tip the scales of justice in favor of the perpetrators as opposed to the victims of their crimes?

Of course the counter to that is the question of whether we also expect judges to exercise their discretion in meting out punishment taking into consideration various circumstances as opposed to strict adherence to the law.  Certainly justice is not always served by such strict adherence; however it seems that the prevalent pattern is to exercise that discretion in favor of criminal defendants out of some misplaced sentiment that our system of justice is, in fact, unjust and must be corrected.

In the case of federal sentencing guidelines for those trafficking in child pornography the law already distinguishes between those who receive or possess (although that distinction is lost on me), produce or distribute  and transport as well as whether it is a first offense or a second offense with a prior sex offense conviction. It also distinguishes between mandatory and statutory minimum sentences.

The reality is that, according to the U. S. Sentencing Commission,”federal judges feel that many child pornography sentences are too long” and (since the Supreme Court has ruled that federal sentencing guidelines are advisory not mandatory) routinely impose lesser sentences.  I would ask these judges (and Judge Jackson) whether these lesser sentences are justified considering the lifetime psychological sentence imposed on the children exploited to produce the child pornography.

This brings us full circle back to Judge Jackson’s nomination.  She did not refute in any way that she sentenced well below the guidelines in these cases.  Rather she sought to explain it away, as did her supporters, as being consistent with the sentences being imposed by her fellow judges and well within her discretion as a judge.  But her actions belie her pledge to “stay in my lane’’ and not make policy or legislate from the bench.

Certainly Judge Jackson possesses the right credentials to qualify as an associate justice of the Court. She appears to be, and by all accounts is, a decent, intelligent woman with a good, if not excellent, legal mind. But when I think of a Supreme Court justice I would prefer someone who is independent of thought who administers the law consistent with the intent of those who passed the law and those they charge with implementing it. Neutrality and adherence to the statute should be the initial basis for any judgment rendered.   As they say, the exception proves the rule, not the exception is the rule. Despite the description she offered of her approach to interpreting and applying the law (which sounded like that of an originalist) I very much question the accuracy of her claims given her record.

There is no doubt that Judge Jackson will be confirmed in light of the historic opportunity this nomination offers – confirmation of the first black women to the Court.  Of course, I, nor should anybody, have any issue with the goal of expanding the diversity of the court.  But in doing so the person chosen needs to rise above his or her identity and be the right person, chosen for the right reasons.  We already see the result of choosing a person for the wrong reason in our Vice President, a mistake that can be corrected in the short term. 

Lifetime appointments to the bench however require a more sober, considered approach focused on creating a judicial system weighted in favor of the victims of crime.