Fox contributor conclusively debunks Fox-promoted attack on SCOTUS nominee Ketanji Brown Jackson

Fox News, along with other far-right media, has been running segments accusing Supreme Court nominee Judge Ketanji Brown Jackson of being soft on child pornography, even though the attacks, which were popularized by Sen. Josh Hawley (R-MO), have been debunked by a number of independent observers.

But perhaps the most interesting debunk came from former federal prosecutor and Fox News contributor Andrew McCarthy, writing for National Review. McCarthy dismantled the entire line of attack (you should read the post because he gets well into the details, which, as is often the case with legal issues, matter much more than ideological priors):

For now, I want to discuss the claim by Senator Josh Hawley (R., Mo.) that Judge Jackson is appallingly soft on child-pornography offenders. The allegation appears meritless to the point of demagoguery.

Senator Hawley is a bright guy, but if he ever handled a child-pornography case in the brief time he spent as a practicing lawyer before he sought public office, that is not apparent. Nor does it appear, from the admittedly sparse research that I’ve done, that child pornography was a priority of the Missouri Attorney General’s Office during Hawley’s two-year stint as AG.

Hawley cites Jackson’s record as a judge and “policymaker.” The latter refers to her service on the U.S. Sentencing Commission, which advises Congress on sentencing issues and promulgates the federal sentencing guidelines — advisory standards that heavily influence but do not control sentencing. (Congress ultimately controls sentencing by setting statutory maximum and minimum penalties, and judges consult the guidelines in each case but are not required to follow them.) What has the senator especially exercised is Jackson’s support for eliminating the existing mandatory-minimum sentences for first-time offenders who receive or distribute child pornography.

Judge Jackson’s views on this matter are not only mainstream; they are correct in my view. Undoubtedly, Jackson — a progressive who worked as a criminal-defense lawyer — is more sympathetic to criminals than I am. If I were a judge, I’m sure I’d impose at least marginally more severe sentences than she has. (Contrary to Hawley’s suggestion, however, she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.) But other than the fact that Congress wanted to look as though it was being tough on porn, there’s no good reason for the mandatory minimum in question — and it’s unjust in many instances.

It’s not soft on porn to call for sensible line-drawing. Plenty of hard-nosed prosecutors and Republican-appointed judges have long believed that this mandatory minimum is too draconian. Moreover, judges and prosecutors generally need no convincing to enforce the harsher mandatory minimums that Congress has prescribed against hands-on child abusers and producers of child pornography. But the receipt and distribution sentencing provisions are so heavy-handed that judges and lawyers end up engaging in the unsavory practice of “fact-pleading” — i.e., ignoring facts that suggest the defendant was up to more than simple possession in order to avoid triggering the mandatory minimum. That is an abuse of process, but it allows for a reasonable sentence, which may well be a non-prison sentence, with the proviso that it could turn into prison if the offender recidivates.

Fox News’ coverage of this smear is miles away from McCarthy’s clear, level-headed dismissal  – which still leaves space for reasonable people to disagree about Jackson’s nomination to the nation’s highest court.

Here’s Fox host Sean Hannity and Hawley promoting the smear:

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Citation From the March 17, 2022, edition of Hannity 

SEAN HANNITY (HOST): You say that this came both as a judge and a policymaker, meaning her background, and you are concerned that this is a record that will endanger children and you cite other cases. I mean, how do somebody facing a 10-year sentence for something this serious only get three months in prison? 

SEN. JOSH HAWLEY (GUEST, R-MO): Yeah, that's the problem, Sean. If you look at what she's done as a judge on the bench when she had the chance to put away child predators over and over again when it comes to these child porn cases, these are pedophiles we're talking about, she chose to give them the lightest sentence possible in case after case. I mean, you mentioned one, the guidelines recommended ten years. She gave him three months. And we could go on and on. The problem is I haven't been able to find a single case where she has had a child porn offender, a pedophile, in front of her where she hasn't given him the most lenient sentence she possibly could. 

And again, this is someone since law school who has been saying that the offender registries may be unconstitutional, that notifying parents about sex offenders in their neighborhood may be unconstitutional, and who voted as a member of the U.S. Sentencing Commission, she voted to get rid of the mandatory minimum sentences for child porn. So this is a long pattern. It stretches over many years and we need to get answers on this.

That interview has been promoted across the network in the days since. Here’s a sample news read from over the weekend:

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Citation From March 20, 2022 Fox News programming

On Sunday, Fox & Friends Weekend promoted the smear with far-right Judicial Crisis Network spokesperson Carrie Severino:

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Citation From the March 20, 2022, edition of Fox News' Fox & Friends Weekend

The show also circled back to it later:

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Citation From the March 20, 2022, edition of Fox News' Fox & Friends Weekend

The smear was also mentioned on Monday’s Mornings with Maria, including a clip of Sen. Marsha Blackburn (R-TN) echoing Hawley from Fox’s “straight news” program Sunday Morning Futures:

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Citation From the March 21, 2022, edition of Fox Business Network's Mornings with Maria

On Monday morning, Fox & Friends conducted another interview with Hawley to respond to Sen. Dick Durbin’s (D-IL) dismissal of the allegations:

McCarthy finally showed up on Fox later Monday morning to debunk the line of questioning.

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Citation From the March 21, 2022, edition of Fox News' America's Newsroom

But by that point, things had already spiraled out of control, and this QAnon-level smear had spread to the GOP base writ large. And that’s the point: The Fox opinion side can mainstream the most baseless smear before the news side even has a chance to react.