U.S. Sen. Ted Cruz (R-Texas), member of the Senate Judiciary Committee and Ranking Member of the Subcommittee on The Constitution, led nine other Republican senators on the Judiciary Committee in writing a letter to Chairman Durbin asking for Judge Ketanji Brown Jackson’s confirmation hearing to be adjourned until probations reports and all information that Chairman Durbin and the Democrats on the committee have access to are released to Republicans.

During the middle of Judge Jackson’s first day of testimony before the Senate Judiciary Committee, after more than half of Republicans had finished their questions, a Democrat member disclosed that she had access to probation recommendations that were not in the public record. After initial pushback, Democrat staff members admitted that the White House provided them with a summary spreadsheet of probation office recommendations in Judge Jackson’s sentencing cases involving sex offenders. Sen. Cruz and nine other Republicans are now seeking the information underlying the White House’s summary spreadsheet.

Judge Jackson has said the probation documents, which the White House used to create the summary spreadsheet, are necessary to understand the cases where she repeatedly issued sentences for child pornographers that were lower than what the prosecution asked for and Sentence Guidelines called for. 

The full text of the letter can be seen here and below: 

Chairman Durbin,

We write to ask that you provide documents to the Republican members of the Senate Judiciary Committee in connection with President Biden’s nomination of Judge Ketanji Brown Jackson to be Associate Justice of the Supreme Court of the United States.  As you know, Judge Jackson served on the United States District Court for the District of Columbia from 2013 to 2021.  During this time, she sentenced approximately 100 defendants in criminal cases.  Thirteen of those cases involved child pornography or sex offenses.  Members of the Senate Judiciary Committee have asked Judge Jackson about her judicial record and the individual facts of each of these cases. 

However, it appears that not all participants in this nomination process are playing on a level field.  In response to questions about her sentences, Judge Jackson has defended her record by pointing to her sentences in relation to sentencing recommendations of the U.S. Probation and Pretrial Services (“probation”).  Similarly, the White House has made political defenses of her sentencing decisions by pointing to the same comparison to these probation recommendations.  During today’s hearing, after a majority of Republicans had concluded their questions, a Democrat member of the Committee identified that she had information about the probation office’s sentencing recommendations in several of those sex offense cases.  In contrast, Republicans have been asking for access to information about those probation reports so that all members of the Committee can accurately and fairly assess her record.

In response to concerns from Republicans that they had not received probation information, you said that some information is a matter of public record.  That is only partially true.  You referenced an article in the Washington Post,[1] which includes probation recommendations on six cases: United States v. StewartUnited States v. CooperUnited States v. ChazinUnited States v. DownsUnited States v. Hawkins, and United States v. Sears.  But this article did not include the records for Judge Jackson’s seven remaining cases.  Presentencing probation reports are often sealed, leaving Republican staffers to review only the probation recommendation information available from sentencing hearing transcripts and documents available on the public dockets.

To set the record straight: Several Republican members requested access to probation records that were not reported.  When staff for Republican members asked your staff about whether Democrats had access to the probation records, your staff declined to elaborate as to the source of their knowledge concerning the recommendations from probation.  Eventually your staff admitted that the White House provided a spreadsheet with probation records for all of Judge Jackson’s sex offender sentencing decisions earlier this afternoon. 

In past confirmation processes, Senate Democrats have raised concerns when documents from nominees records were released to the Senate Judiciary Committee without significant notice—but at least in those circumstances, all members of this Committee were at equal disadvantage.  Whether or not you agree with a line of questions cannot be the basis to withhold documents.  To do otherwise will shatter what little remaining public trust exists in the confirmation process. 

Moreover, the Senate Judiciary Committee has statutory authority and jurisdiction to request Sentencing Commission reports and the underlying documents.  Under federal law, “[t]he Chief Judge of each district court shall ensure that, within 30 days following entry of judgment in every criminal case, the sentencing court submits to the [U.S. Sentencing] Commission, in a format approved and required by the Commission, a written report of the sentence, the offense for which it is imposed, the age, race, sex of the offender, and information regarding factors made relevant by the guidelines. The report shall also include … the presentence report.”[2]  Additionally, “[t]he Commission shall, upon request, make available to the House and Senate Committees on the Judiciary, the written reports and all underlying records accompanying those reports described in this section, as well as other records received from courts.”[3]

To that end, we are asking that you adjourn the nomination hearing until you produce all documents and information that you have regarding sentencing and probation recommendations in Judge Jackson’s criminal cases that have not been shared with Republican members of the Committee.  In particular, please provide (1) the pre-sentence report associated with each case sentenced by Judge Jackson that involved charges concerning child pornography; and (2) all minutes and other records of the U.S. Sentencing Commission during the years when Judge Jackson served as the Commission’s vice-chair.  Additionally, please provide answers to the following questions by the morning of Wednesday, March 23, 2022. 

  1. When did your staff receive access to the spreadsheet compiling probation recommendation information for Judge Jackson’s thirteen sex offender cases from the White House?
  1. Which members of the Committee received access to the probation recommendations spreadsheet prior to Senator Hirono’s questions on March 22, 2022?
  1. Was any of the information about probation recommendations filed under seal or only available to court personnel at the United States District Court for the District of Columbia?
  1. If yes, how and when were these sealed court records provided to the White House and to your staff?

Sincerely,

/s/

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