Ketanji Brown Jackson’s Supreme Court confirmation hearing Day 2 – 3/22 (FULL LIVE STREAM)

[Music] sometimes you have to see to believe and witness history as it unfolds when the news is breaking watch with the newsroom of the washington post we explain what's happening and why it matters thank you for choosing to watch the headlines as they're being written by our journalists you can subscribe with a special offer at watch subscribing through that link lets everyone hear from the front lines to the control room know that you care about our continued efforts to inform the public protect the first amendment and foster a healthy democracy we could not do this without you [Music] and if i'm fortunate enough to be confirmed as the next associates justice of the supreme court of the united states i can only hope that my life and career my love of this country and the constitution and my commitment to upholding the rule of law and the sacred principles upon which this great nation was founded will inspire future generations of americans judge katanji brown jackson undergoes the toughest public phase of her confirmation process to the supreme court questioning from the senate judiciary committee begins this morning and lasts two days this is a washington post special report i'm libby casey today's hearing is an opportunity for senators to probe jackson's history and philosophy and for the senators to grab the spotlight each of the 22 committee members will have a half hour with the nominee let's preview what's in store and talk about how yesterday's opening statements set the stage for this week with our washington post team rhonda colvin james homan and ann marimo welcome to you all rhonda is on capitol hill and we start there rhonda good morning lay out this long day for us good morning yes it is a long day this is the first of two days where she will be questioned this panel will question her and today is the longest of the two each member of the committee there are 22 they will have a half hour up to a half hour if they take all of that time to question her and they will do that in the order of seniority starting with the chair of the committee dick durbin and the ranking member chuck grassley so that's what we're going to see today a very long day of course this is not new to her this is her fourth time in front of this panel for a senate confirmation process so what we can expect we did get a bit of a glimpse yesterday in how republicans may stage their line of attacks what questions they might ask we heard questions about her or we heard statements about her work with guantanamo bay detainees she represented them as a public defender she also wrote friend of the brief friend of the court briefs after going into private practice on those matters so she'll likely get some questions about that also her work with the sentencing commission she was on that commission for a few years she was appointed there by president obama she was there during a time when drug offenses the federal guidelines for sentencing on drug offenses was being reformed so expect questions on that from the democrats i would expect some friendly questions they will likely want to highlight her career also highlight that fact that this is not a new process for her that she has been in front of this committee before she's been through the process before and received bipartisan votes when her confirmation went to the senate floor for a vote so that's what we can expect from both sides of the aisle today again long day if you multiply you know half hour times 22 members it becomes a very long day it could be up to at least 20 hours between today and tomorrow in terms of how long she will be questioned so rhonda you know you mentioned that she's appeared before this committee three times but what's different this time is the national spotlight right so so rhonda the cameras are rolling all eyes are on her all eyes are on this committee so how much grandstanding and and how much will the senators use this opportunity for themselves to to have their moment in the spotlight you know we've covered a lot of these over the years and there is a fair amount of grandstanding or political theater in most senate and house proceedings so i would expect that that might happen in this proceeding here that will happen in about a half hour it's something that i did ask the chair of this committee dick durbin about when i sat down with him a few weeks ago i want to get a sense of how he was preparing for this moment how he intended to run this process and here's what he had to say we are dealing with an unusual committee circumstance this judiciary committee is evenly divided 11 democrats and 11 republicans and there's no reason why you would follow it on a daily or weekly basis but i have virtually every meeting of this committee i know that there are several senators on the republican side of the aisle who have their own style i may not agree with it but it's their right to use their office for that purpose so i'm hoping that we can keep this in the realm of respectability as well as professionalism so that's uh dick durbin on how he plans to run this he is very aware that members on the other side of the aisle may use this opportunity for their own reasons and and that typically happens but the timing of this is also interesting because of course we're in a midterm primary season so this is one of at least one of the planned opportunities that members may have where they know uh the nation and perhaps the world's eyes are on these proceedings because they're so historical so members are fully aware of that in fact you have members on here who are seeking to keep their seats in that midterm election in november most of those members are safe right now if you look at some of the ratings from their their states but nonetheless members are very very aware that this is an opportunity for them to to win some to win points for their side so i would expect that that theater may be present today may be present tomorrow and of course we'll have more after we start seeing these questions come out thanks so much rhonda colvin let's go to james holmen here in the washington post newsroom so james the midterms are around the corner but also 2024 and presidential politics and there i'm looking at the committee list there are a lot of members of this committee who have presidential aspirations let's talk about how much republicans are in line with marching orders in terms of what they should be trying to accomplish today and how much of this is sort of personal personal agendas and trying to have a moment in the spotlight for themselves yeah absolutely libby they're trying to do both mitch mcconnell has made clear to his members that he wants uh his his senators to be sort of cautious to tread carefully to not give any ammunition to the other side but he can't really control ted cruz tom cotton josh hawley marcia blackburn all four of those people have larger ambitions and aspirations and will be trying to create moments that can go viral on youtube and can get them booked on sean hannity or tucker carlson tonight on fox news and so they'll act accordingly it is interesting because the committee goes by seniority we'll start with the members who've been around the longest pat leahy noted uh yesterday that this is his 25th supreme court confirmation hearing uh which is a pretty remarkable uh number when you consider there's only been about 116 justices ever a and so uh you know the the old guard like chuck grassley the ranking republican will will approach the questioning differently than a lot of the younger newer members uh i i will say that katanji brand jackson champion debater uh this is as rhonda was saying her fourth appearance uh she has been doing murder boards uh in the eisenhower executive office building including through this weekend and they have had white house officials and others pretending to be each of these senators asking what they expect each of these senators to raise practicing trying to make judge jackson lose her cool and we saw yesterday she was very capable of keeping her poker face but today she's actually you know sometimes the best thing to say during these things is nothing at all uh to be evasive and not give an answer but some pretty scurrilous and serious uh allegations are being made about her being not just soft on crime but soft on child pornography and today is the first time we're going to hear from her directly and she does sort of have to forcefully respond to some of that it won't be like brett kavanaugh you know which lent itself to saturday night live parodies she obviously has to be careful sadly because of the racial and gender dynamics there uh but she is going to have to defend herself against uh pretty mean-spirited questions from some of these members and james murderboards we're talking about this sort of practice right they're gaming this out they're putting her through her paces and preparing her for how this will go today they literally they recreate the committee room uh they have her sitting at the witness desk they don't stop for breaks and she has to sit there for the full 30 minutes and you know someone is playing the part of ted cruz trying to needle her trying to get her to lose her cool asking follow-ups and these are our trained lawyers from the white house counsel's office a lot of these people used to work on the senate judiciary committee uh and so they are well versed in how senators are prepared for these they've been through three adversarial processes as democrats against republican nominees for the supreme court in the last five years and so they're they're they they've practiced intensively uh and they it is kind of amazing the the the level to which you're able to predict where republicans are going to be coming from and there's always coordination behind the scenes about uh getting you know your own party to ask friendly questions or to help with clean up or to allow you to revise and extend uh and a lot of that is happening behind the scenes during these hearings uh and you know the the white house is is heavily involved in managing this process and you know because dick durbin is a democrat uh they're able to coordinate pretty closely thanks so much james let's bring in ann marimo who covers legal issues for the washington post so and first i just want you to reflect on yesterday and what we learned in terms of lines of questioning we may expect today as well as how judge jackson may field this scrutiny yeah so as we anticipated republicans did preview some of their lines of questioning about her work as a public defender representing detainees in guantanamo about her role on the u.s sentencing commission and her role on the district court as a judge for eight years and as we've heard this morning some of the republican senators suggesting that she was soft on child pornographers i think we'll hear more about that today and as ronda said she's done this this is her fourth time before the committee and she did sit there with a neutral expression for much of the hearing and then when it was her turn to speak we heard her emphasize her independence as a judge that she's not going to be a rubber stamp for democrats that she knows her role and that is to follow the law and the facts of the case and that that's what she'll do so i think we'll hear more of that this morning you know and it was more than even a neutral expression on her face it was neutral but it was also friendly uh open i mean this is you know there women can often be criticized if they're just sort of stonely looking forward of you know whether that is fair or not um so it really did seem to be that she was able to keep this consistent and calm expression on her face which i'm sure she has practiced doing as a judge but she managed to do it the entire day that's true she was still engaged and did smile at times when cory booker was talking about the historic moment she looked back at her parents when he talked about how proud they must be and yes that is an impressive thing to do for four hours while people were making some pretty harsh accusations and this will be her turn to respond today we'll talk more about that sort of parrying and and and what effort judge jackson will make but also what effort democrats may make to counter uh some of the republican questions but first i want to talk about what we learned about judge jackson's philosophy and and what we discovered about how she approaches her work at the end of jackson's opening statement yesterday she did share a description of of how she approaches work as a judge so let's listen if i am confirmed i commit to you that i will work productively to support and defend the constitution and this grand experiment of american democracy that has endured over these past 246 years i have been a judge for nearly a decade now and i take that responsibility and my duty to be independent very seriously i decide cases from a neutral posture i evaluate the facts and i interpret and apply the law to the facts of the case before me without fear or favor consistent with my judicial oath that's from the opening statement yesterday by judge jackson and marimo let's talk about those words a neutral posture what does that mean well i've spoken at length with many of judge jackson's law clerks over the years and they say that one of her trademark lines is always start with the books her chambers has gold and maroon embossed u.s code books and they're not there just for decoration she wants her her clerks when they have a case to start with the law and what does the law say and then apply the facts and precedent and that's her approach her methodology i think though because she is a nominee now for the supreme court that lawmakers are going to want to hear more about her philosophy her role on the district court and the appeals court was to apply precedent supreme court president but as a supreme court justice as we've seen the justices are shaping what the law and the precedent looks like so i do think that we'll hear more from lawmakers today pressing her on that we just saw the chairman dick durbin walking by james helman let's go to you for more on judicial philosophy and and just what we should be listening for in terms of how republicans broach the questions but also the insights that judge jackson may give us on how she approaches the law yeah we saw less of an elucidation or an elaboration of what her judicial philosophy is during that opening statement than we have from other recent nominees and in fact during her confirmation for the circuit court last year she said and i'm quoting i don't have a judicial philosophy per se uh and you know she's presented herself as she did again yesterday as being very much in the mold of her uh justice stephen breyer whom she clerked for and whom she'd replace uh but that's not really uh gonna be enough to satisfy republicans what i found this is my sixth supreme court confirmation hearing levy is that often the most elucidating answers uh that really are revelatory are the ones that come from the same party as the the president who nominated uh the justice because judge jackson will be on her guard when republicans are pressing her uh she'll kind of try to be narrow in her answers uh but a lot of times the friendly questions uh you know are the ones that that lead to something more expansive uh and and i've always found in these sorts of hearings that the broader questions that really get it how you think about you know the constitution being a living document or not uh are are much more revealing than you know what do you think about roe v wade uh and so you know it can be very tempting to sort of tune out when it's the the president's own party asking the questions because they sound like softballs but a lot of times those can be the answers that teach us the most about this person okay no tuning out no turning out rhonda colvin we just saw former senator doug jones there he's been playing the role of sherpa throughout this process talk to us about the meetings that jackson has had with members of this committee but also members of the senate at large yeah as soon as president biden made it official and announced that she would be his nominee for this position she started touring the hill which is standard practice most supreme court nominees come to the hill they start off meeting with the leadership of the senate and then they meet with most if not all members of the senate judiciary committee and that's what she's been doing for the last month i was here for one of those meetings when she met with senator klobuchar and of course given that senator klobuchar is a democrat it was a pretty friendly meeting but judge jackson has also been meeting with republicans on this committee too and many of them highlighted that in their opening statement yesterday that they thanked her for the meeting said it was cordial but they would have some tough questions for her so she's doing what a standard practice when these nominees come to light and uh she has it's pretty much been a an ongoing process for the last three or four weeks with her here and as you mentioned doug jones he's a former senator u.s senator from alabama he played the role of sherpa which is that person who is sort of the liaison between the white house and the hill during these confirmation processes so he led her through the meet and greets the photo ops and he's also been sitting in this room yesterday and probably for the next two days kind of being that that guide and that presence from the white house rhonda let's talk about the significance of this moment because we did hear some emotional uh opening statements yesterday for members of the committee i'm thinking of senator cory booker in particular reflecting on the historic significance of seeing a black woman surrounded by her family uh there before this committee preparing to become the next supreme court justice [Music] yeah when cory booker spoke yesterday it kind of reminded everyone in the room and everyone watching that this is a historical moment he had so much enthusiasm and next to the you know the person that came before and after him it kind of stood out and it also reminded us that cory booker is the only black person on this committee he's one of only three black senators right now in the u.s senate and there you know has been a lot of discussion over the last few years about the absence of black perspective in the u.s senate out of 100 senators you only have three and they are all men there are no uh currently no women black senators so after kamala harris went on to be vice president uh so when cory booker was making those statements that that's that's something that does come to light it's a reminder of uh the lack of diversity within the body that is uh uh thinking about her confirmation right now so he didn't spend much time going over any sort of lines of questioning he might have he spent most of his time talking about the history and what it meant as a black person on this committee i i want to play a little bit of judge jackson talking about her personal life rhonda so we are reminded of who she is before we get into like the the nitty gritty of the intense round of questioning this is judge jackson talking about her childhood here in washington dc and how her parents chose to give her an african name let's listen when i was born here in washington my parents were public school teachers and to express both pride in their heritage and hope for the future they gave me an african name kitanji onyika which they were told means lovely one my parents taught me that unlike the many barriers that they had had to face growing up my path was clearer so that if i worked hard and i believed in myself in america i could do anything or be anything i wanted to be judge jackson was actually raised in florida uh ronda and and you know i want to talk to you about the the florida senators because often times these nominees are introduced by senators from their home state we did not see that yesterday because what do we know about the senators from florida in terms of their support or lack thereof for this nominee yeah so florida senators marco rubio and rick scott are both republicans and you're right it is typical usually on introduction day that the home state senators would introduce the nominee and that did not happen yesterday instead we heard from a former district court judge as well as her harvard roommate who gave a a personal uh bio biographical account of who she is uh so yes that was a slightly different from some of these nomination processes that we've seen play out over the years we know from marco rubio that he did meet with her last week he did say in his statement after that meeting that they don't share the same views on the constitution and he said from the beginning when she was announced as the nominee that he was not likely to support her so that's a little bit of behind the scenes on how this process usually involves the home state senators and what we've been hearing right now from republican senators from her state and marimo let's talk a little bit about judge jackson's professional background and what is likely to be sort of picked apart and examined under the microscope today um dig into us on this question of representing uh guantanamo bay detainee because we have heard the phraseology in a prior hearing uh did you represent a terrorist uh so explain yes um i expect we'll hear more along those lines today and judge jackson has talked about her time two and a half years as a federal public defender in d.c as formative and informing her work on the bench she did spend time challenging the bush administration's detention of guantanamo bay suspecteris suspects and she said that was her role that's part of our constitution that everybody is entitled to a defense if they can't afford it they have a federal public defender who will represent them she was part of a really small group of academics and some pro bono council who were on the forefront of challenging the detention she did this as a public defender and then in private practice she filed briefs at the supreme court on behalf of retired federal judges who said that the tribunal system that the bush administration had set up was not constitutional she challenged the detention of a u.s citizen at a military base as well so i do expect that we'll hear these types of questions again today when she was asked about it as a dc circuit nominee she brought up that her brother a former baltimore police detective who is also in the army was serving in iraq at the time and so that she understood very well the threat to the u.s but she was doing her duty to you know serve the constitution and the rights of the accused and you know it has sort of been boiled down or reduced to a liberal justice replacing a liberal justice right uh if she has confirmed a future justice jackson replacing justice breyer someone who she considers to be a mentor and role model in many ways but is it is it a one for one swap what would a justice jackson bring to the bench that's different i think that's right her if she is confirmed that does not change the balance on the court you still have a conservative six to three majority but she brings her own life experience to the justices conferences and she there are some differences i think also in private practice she continued to advocate for the rights of criminal defendants in two cases that were before the supreme court the position she took was what the majority went along with but in both cases justice breyer dissented and sided with law enforcement and not with criminal defendants so there may be some some daylight there when it comes to the rights of criminal defendants but just her life experience again to have her in the room really makes a difference james homan who has the responsibility today to correct the record uh when republicans because they are the opposition uh before uh you know with this nominee whose responsibility is it to correct the record to clean things up or to push back uh is it the role of the nominee judge jackson or is it the role of democrats well it's really both you know judge jackson cannot just entirely keep a stiff upper lip as her character is being questioned and there are you know everything that ann is talking about there are very valid defenses you know john adams represented uh the british soldiers who were accused of massacring uh colonists there's a long tradition of people being entitled to counsel and that is very much an ethos of the legal profession so to some extent judge jackson does have sort of a responsibility and a burden to defend her very defendable career choices on the other hand there are 11 democrats on this committee and it would be kind of mind-blowingly uh irresponsible and a missed opportunity if they don't come to her defense and do some of that uh defense for her you know there's there's so much paper uh in the parlance of of capitol hill in the white house that moves during these things the white house has a war room set up uh the durbin's office has a war room set up grassley's office has a war room set up the congressional black caucus is uh determined to defend judge jackson a race so you know literally you get hundreds and hundreds of emails during the course of a day like today with fact sheets and fact checks and and all these different things but you know most people are only seeing what happens in the room and you have to really make the case so it's it's incumbent upon both of them and there is a real risk that if democrats don't push back uh the narrative coming out of this week will be uh that this is part of the broader republican case that the left is is somehow soft on crime well jim so let's talk about you said uh attacks on our characters let's talk about attacks on our character versus attacks on judicial philosophy a record uh which of course people can have differing opinions about yeah and so the you know the the marsha blackburn speech which came toward the end of the day yesterday was sort of one of the most eyebrow-raising because she did sort of get uh past the we disagree on judicial philosophy uh and more into the you're supporting a school that has these views you mentioned the 1619 project once and uh so does that mean that you view all of your legal decisions not neutrally but through the lens of you know what has become a buzz term on the right critical race theory and in in doing so she's essentially impugning her uh character as a neutral judge uh whereas you know some of the other critiques even the josh hawley critique uh it is based on decisions that she made as a senate confirmed uh public official and and those are about you know sentencing guidelines and what the probation officers recommended and whether she was or wasn't uh in line with the judicial mainstream and the various post colleagues including glenn kessler our fact checker have reviewed the underlying cases and said that she actually was within the judicial mainstream in those decisions and so you know that's something judge jackson can say she can defend her judicial thinking uh in those cases uh but i i do expect that from cruz cotton and blackburn we will get questions that veer into impugning personal character personal motives and and there it will be interesting to see to what extent she pushes back because you know part of what the white house is thinking about as they come out of a day like today is what are going to be the two or three clips the sound bites and so you know judge jackson is surely going to be careful not to give a sound bite that would play into the the hands of the republicans on the committee and our fact checker glenn kessler will be with us later on today uh so he will be joining us as we take breaks as the committee takes breaks we go into action and we will be with you as the committee breaks for lunch possibly dinner as well our team will be here analyzing what's going on and previewing what is next to come and marimo there may be areas where judge jackson says she can't talk about what she would do as a justice what should we be listening for in terms of answers she can give on on how she would decide something or how she has decided something perhaps her past record versus forecasting in the future where she would fall on a tough case right so judge jackson has been on the federal bench for almost a decade but she has not had much engagement with some of the big issues that come before the supreme court like abortion like affirmative action and the second amendment i do think we'll hear lawmakers asking her about those areas and i think she will go back to what she said before about her methodology and that it would be inappropriate for her to comment in advance on these issues that might come before the court so i would say look for her again to refer to her methodology as she says about the law and the facts and the precedent rhonda colvin what will you be listening for this morning as things get underway and just to check on to what anne said too it reminds me of uh back when amy coney barrett was in front of this panel she was asked by democrats very specific questions about her views on abortion and she kept saying that she could not answer those so i i expect especially after we heard judge jackson's opening statement yesterday that she will not be answering two hypotheticals and and you wonder how that might play with the other side will they say she's evading these questions or will they respect that that is in a juris position not to talk about hypotheticals uh what i'll be looking for today is is again this is the the start of the questioning period so i'll be looking to see if republicans are coalescing around one theme we know the guantanamo bay detainee representation might come up we know about the sentencing commission are there any other things that the republicans might bring up and will they all just focus on one thing or all of these things in order to put their side's views out there especially when they know this is a highly anticipated and highly watched uh confirmation process right now so i'll be i'll be listening to that i'll also be listening to uh how how democrats are getting around uh some of the attacks by the republicans as was said uh by james i believe earlier the white house is of course watching this they want to see how this plays out they want to see what they can tell at the end of the day as perhaps a success because uh you know when a president picks a nominee for the supreme court they're very aware that this is a part of their legacy often times that supreme court justice is on that bench far longer than most remember the presidency that chose that person so president susie this is a very important process especially when it comes to their legacy thanks rhonda colvin who will be with us from capitol hill throughout the day today uh thanks so much rhonda um you know james let's talk about this question of uh of how forthcoming nominees are in terms of how they would rule hypothetically right in the future there's something known as the ginsburg rule um so let's talk about the ginsburg rule but i want to point out and and just say a little pre-bottle here subsequent nominees have gone far farther than ruth bader ginsburg did in terms of what they would not commit to or answer exactly and and the ginsburg rule is a term both sides have accepted both uh parties had senators mentioning the ginsburg rule yesterday offhandedly and when you actually look at what it was it was her not wanting to weigh in on a specific abortion case uh and you know the the judicial wars have certainly escalated uh in the generation since that confirmation hearing uh and you know one interesting way to get at it is to ask a judge about how they were thinking what their thinking was on decisions they've already made and so i do expect you'll have republicans pressing her on some of her uh decisions against the trump administration uh when she was on the d.c district court because it is harder to say i'm not going to engage in a hypothetical when there actually was a ruling that she made especially in the instances where those rulings and that injunction was ultimately overturned by the higher court that she now sits on yeah and marimo back in 1993 when ruth bader ginsburg was before this committee we actually did learn a lot about where she stood on issues it was just that one case that she wouldn't get pinned down on and we've heard that invoked by subsequent nominees i'm thinking of neil gorsuch in particular it was it was very it was sort of sphinx-like in terms of what he would reveal and say in this process right we knew that ginsberg's support for abortion rights was was well known and as james said subsequent nominees have not gone that far and have invoked it to avoid answering questions on many issues i think most of the nominees have said they think brown v board which ended segregation in public schools was correctly decided but most have not gone further than that and what should we be listening for today in terms of how judge jackson answers questions maybe phraseology uh ways that she may be able to give us some insight but but not sort of throw open the doors wide on on how she stands on issues i think we'll hear her invoke her family as she did before when she's asked about being a public defender i think you'll hear about again her family's tradition of public service her parents having been public school teachers her brother having and uncles having worked in law enforcement so i think she will refer to that when asked about her her background and and are there things that we should be listening for in terms of how nominees talk about their legal decisions and philosophy yeah i think that she will be asked as james said about her decisions against the trump administration i can see republican lawmakers suggesting that she's a partisan and always ruled against the trump administration i think she can point out that there was a case environmentalists brought against trump's border wall that she ruled against the environmentalists and said that the homeland security officials did have the power to go ahead with the border wall but i think they will be asking her about the many times she did rule against trump's efforts to stop a close advisor from testifying before congress and against trump trying to shield white house records from the congressional committee investigating the january 6 attacks on the capitol the nominee katanji brown jackson accompanied by her husband as she prepares to undergo this day before this committee rhonda colvin remind us of the format today well senators will have 30 minutes each up to 30 minutes i say that because some may not take all of it or some may go over we just don't know but they will have about a half hour each to question her and that will start with seniority the chair and the ranking member and go down from there we're expecting this to be quite a long day i know i've heard from staff on the the committee that they expect that there will be a lunch and dinner break as well so they're expecting to go at least into the early to mid evening on this and then tomorrow uh the same thing but senators this time will only have 20 minutes to question her and then senators will go in a closed door session after that's over and go over her fbi investigation some of those documents that they've found about her public and private record the nominee kataji brown jackson has taken her seat this is hart senate office building room 216 site of this historic confirmation process day two officially let's go now to the committee good morning mr chairman this second day is known affectionately by a term of medieval justice known as the trial by ordeal this will be your opportunity to speak but each member of the committee has 30 minutes to ask and i know that they're going to be careful to stay within time limits of those 30 minutes i do want to remind my colleagues that history has proven that speeches don't have to be eternal to be immortal president lincoln learned at gettysburg that 275 words were enough so i hope my my colleagues and friends will stick to the 30-minute guideline i'll tap on the gavel if you're getting perilously close to extending beyond we'll take a few breaks throughout the day a number of them are scheduled one for lunch one for dinner and several perhaps shorter ones in the meantime if votes are called on the senate floor which is a possibility we'll do our best to keep the hearing going as members go back and forth and as i mentioned yesterday we welcome all of our friends in the audience and ask that they be quiet and respectful during the hearing so let's get started with the questioning and i'll begin at this point judge jackson there are two issues that came up repeatedly yesterday from the other side of the aisle that i want to address at the outset one of them was a question of judicial philosophy no one questions either your academic law school credentials or your service as clerk and as federal judge but time and again you have been asked what is your judicial philosophy does it fit into scalia's originalism kavanaugh's textualism is it strict construction is it liberal is it conservative lo and behold i've discovered the answer it turns out that during the course of your time as a judge you have actually had written opinions 573 to be exact i think maybe i'm off by one or two and they more or less express your view of the law as the facts are presented to you in each one of those cases and then some 12 000 pages from the sentencing commission transcripts of deliberations on important issues for most of us as elected senators if people asked what what's your philosophy we'd point to our voting record you have a record when it comes to court decisions and this committee for the fourth time is delving into everything that you've published as a judge and even before so would you like to comment at the outset of those who are looking for a label what your position is on judicial philosophy yes thank you mr chairman over the course of my uh almost decade on the bench i have developed a methodology that i use um in order to ensure that i am ruling impartially and that i am adhering to the limits on my judicial authority i am acutely aware that as a judge in our system i have limited power and i am trying in every case to stay in my lane and so what i do is i essentially follow three steps the first step is when i get a case i ensure that i am proceeding from a position of neutrality this means that you know you you get a case and it's about something and it's submitted by certain parties i am clearing my mind of any preconceived notions about how the case might come out i'm setting aside any personal views it's very important that judges rule without fear or favor the second step is once i've cleared the decks so to speak in this way i am able to receive all of the appropriate inputs for the case that is the party's arguments they've written briefs sometimes we have a hearing sometimes we hear from other parties amiki in a case and then there's the factual record i am evaluating all of the facts from various perspectives i think my experience uh all of the various experiences that i've had really helps me uh at this stage to see the perspectives of all of the parties and to understand their arguments and then the third step is the interpretation and application of the law to the facts in the case and this is where i'm really observing the constraints on my judicial authority there are many constraints in our system importantly because just judges have limited authority and so i am first of all looking at my jurisdiction threshold matter in every federal case is to make sure that you even have the power to hear the case um in evaluating jurisdiction you're looking at all sorts of things the the text of a jurisdictional provision for example precedent related to it if i can get to the merits of the case if i have jurisdiction then i am uh observing the limits on my authority concerning the questions so if it is a statue for example or a provision of the constitution i'm looking at the text the adherence to text is a constraint on my authority i'm trying to figure out what those words mean as they were intended by the people who wrote them so at this point um i'm looking at original uh documents i am focusing on the original public meaning because i'm constrained to interpret the text sometimes that's enough uh to to resolve the issue in terms of the merits judges also look at history and practice uh at the time of the the document was created if it's a statute i'm looking at congress's purposes because again i am not importing my personal views or policy preferences the entire exercise is about trying to understand what those who created this policy or this this law intended i'm also looking at precedent which is a another constraint on judicial authority i am looking at prior cases and trying to understand what other judges have said as a lower court judge i'm bound by the president and even in the supreme court if i was fortunate enough to be confirmed there's starry decisis which is a binding kind of principle that the justices look at when they're considering precedence so all of these things come into play in terms of my judicial philosophy another issue which has come up to my surprise and i've spoken to my republican colleagues about their fascination with it is the notion of the composition of the supreme court which euphemism euphemistically is referred to as court packing i have said on the floor and i will repeat here there is exactly one living senator who has effectively changed the size of the supreme court that was the republican leader senator mcconnell who shrank the court to eight seats for nearly a year in 2016 when he blocked president obama's nomination in merrick garland now that question on court packing was opposed to amy coney barrett justice in the court when she appeared before this committee she was asked about it she said and i quote could not opine on it and on many other policy issues then judge barrett said repeatedly she could not share her views stating and i quote i will not express a view on a matter of public policy especially one that is politically controversial because that is inconsistent with the judicial role i do believe we should have rules and traditions and precedents but we shouldn't have a separate set of rules for republican nominees and democratic nominees so judge jackson if a senator were to ask you today about proposals about changing the current size of the supreme court what would your response be senator i agree with justice barrett in her her response to that question when she was asked before this committee again my north star is the consideration of the proper role of a judge in our constitutional scheme and in my view judges should not be speaking in to political issues um and certainly not a nominee for a position on the supreme court so i agree with with justice barrett let me address another issue that came up yesterday in the opening phase of this nomination hearing and it's the issue involving child pornography i want to turn to that issue because it was raised multiple times primarily by the senator from missouri and it was he was questioning your sentencing record in child pornography cases that do not involve the production of pornographic material they're known as non-production cases i wanted to put some context here the senator from missouri has in his tweets said of your position on this issue judge jackson has a pattern of letting child porn offenders off the hook for their appalling crimes both as a judge and a policy maker she's been advocating it since law school this goes beyond soft on crime the senator said i'm concerned this is a record that endangers our children i thought about his charges as i watched you and your family listening carefully yesterday and what impact it might have had on you personally to know that your daughters husband parents family and friends were hearing the charges that your implementation of this law sentencing endangered children could you tell us what was going through your mind at that point thank you senator um as a mother and a judge who has had to deal with these cases i was thinking that nothing could be further from the truth these are some of the most difficult cases that a judge has to deal with because we're talking about pictures of sex abuse of children we're talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases and there's a statute that tells judges what they're supposed to do congress has decided what it is that a judge has to do in this and any other case when they sentence and that statute that statute doesn't say look only at the guidelines and stop the statute doesn't say impose the highest possible penalty for this sickening and egregious crime the statute says calculate the guidelines but also look at various aspects of this offense and impose a sentence that is quote sufficient but not greater than necessary to promote the purposes of punishment and in every case when i am dealing with something like this it is important to me to make sure that the children's perspective the children's voices are represented in my sentencings and what that means is that for every defendant who comes before me and who suggests as they often do that they're just a looker that these crimes don't really matter they've collected these things on the internet and it's fine i tell them about the victim statements that have come in to me as a judge i tell them about the adults who were former child sex abuse victims who tell me that they will never have a normal adult relationship because of this abuse i tell them about the ones who say i went into prostitution i uh fell into drugs because i was trying to suppress the hurt that was done to me as an as an infant and the one that was the most um telling to me that i describe at almost every one of these sentencings when i look in the eyes of a defendant who is weeping because i'm giving him a significant sentence what i say to him is do you know that there is someone who has written to me and who has told me that she has developed agoraphobia she cannot leave her house because she thinks that everyone she meets will have seen her will have seen her pictures on the internet they're out there forever at the most vulnerable time of her life and so she's paralyzed i tell that story to every child porn defendant as a part of my sentencings so that they understand what they have done i say to them that there's only a market for this kind of material because there are lookers that you are contributing to child sex abuse and then i impose a significant sentence and all of the additional restraints that are available in the law these people are looking at 20 30 40 years of supervision they can't use their computers in a normal way for decades i am imposing all of those constraints because i understand how significant how damaging how horrible this crime is it is it should be noticed as well that the cases which the senator from missouri referred to yesterday all resulted in incarceration of some magnitude in the one case the hilly case i want to quote what you said on the record this family has been torn apart speaking to the defendant by your criminal actions you saw it on the faces of those women you heard it in their voices and the impact of your acts on those very real victims who are still struggling to recover this day makes your crime among the most serious criminal offense this court has ever sentenced and you imposed a sentence of 29 and a half years on that defendant so the notion that you look at this casually or with leniency as the senator said your record belies that and in fact what we're dealing with here is an issue which even this committee and members on the committee have been loathed to address again the original law was written at least nine or ten maybe longer years ago and the quantity of material was relevant to the sentencing and now that we have computer access to voluminous amounts of material it is raised question has it not within the judiciary as to the appropriate sentencing in today's circumstances this was a question that was raised before the sentencing commission was it not it was senator the sentencing commission um has been at least one report it did when i was there looking at the operation of this guideline as you said the guideline was based originally on a statutory scheme and on directives specific directives by congress at a time in which more serious child pornography offenders were identified based on the volume based on the number of photographs that they received in the mail and that made totally total sense before when we didn't have the internet when we didn't have distribution but the way that the guideline is now structured based on that set of circumstances is leading to extreme disparities in the system because it's so easy for people to get volumes of this kind of material now by computers so it's not doing the work of differentiating who is a more serious offender in the way that it used to so the commission has taken that into account and perhaps even more importantly courts are adjusting their sentences in order to account for the change circumstances but it says nothing about the court's view of the seriousness of this offense judge the uh there have been several news organizations that have taken a look at the senator from missouri's charges abc news cnn news the washington post and others have concluded that they are inaccurate and unfair to you in their conclusions in fact one writer has said they are meritless to the point of unacceptable levels nationally in 2019 only 30 percent of non-production child pornography offenders received a sentence within the guidelines range fewer than 30 percent between 2015 and 2020 in the dc district court where you served judges imposed below guideline sentences in non-production cases 80 percent of the time for the reasons you've just explained judges in missouri the home state of the senator who has criticized your record did so 77 percent of the time one particular judge whom the senators supported to become a federal judge by appointment of president trump uh unfortunately has a 77 percent record if i'm i'm sorry let me make sure that this is accurate here it is in the united states versus klotz tr trump appointed judge sarah pitlik the senator's choice for the eastern district of missouri sentenced an individual convicted of possession of child child pornography to 60 months well below the 135 to 168-month sentence recommended by the guidelines she appears to have run into the same issue same challenge that you have described here so going forward in terms of this issue it seems that we at least share the burden by your interpretation as to define this statute in modern terms in terms of technology as it exists today is that the way you see it senator congress is tasked with the responsibility of setting penalties congress tells judges what we're supposed to do when we sentence and what i'd say is that congress has to determine how it wishes for judges to handle these cases but as it currently stands the way that the law is written the way that congress has directed the sentencing commission appears to be not consistent with how these crimes are uh committed and therefore there's extreme disparity as you pointed out there are judges who are varying because our ultimate charge from this body is to sentence in a way that is sufficient but not greater than necessary to promote the purposes of punishment judge jackson we've heard criticism from some about your previous work representing detainees at guantanamo bay in fact for years we've heard criticisms leveled against lawyers who have provided guantanamo detainees with legal representation this criticism misses one critical point the right to counsel is a fundamental part of our constitutional sense sentence system even for the most unpopular defendants i want to thank senator graham who served as an air force lawyer for decades for offering his perspective yesterday he said and i quote the fact that you're representing gitmo detainees is not a problem with me senator graham said everyone deserves a lawyer you're doing the country a great service when you defend the most unpopular people and then judge roberts said during his confirmation hearing it's it's a tradition of the american bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients the most famous example probably was john adams chief justice said who represented the british soldiers charged in the boston massacre this sentiment is shared by lawyers across the political spectrum i want to give you an opportunity to address this issue because it applies not just to gitmo detainees but to your work as a public defender in terms of the wisdom if acceptability of providing counsel in those cases and what impact it's had on you personally in terms of your rulings on the bench thank you senator september 11th was a tragic attack on this country we all lived through it we saw what happened and there were many defenses important defenses that americans undertook there were americans whose service came in the form of military action my brother was one of those americans those brave americans who um decided to join the military to to defend our country there are others of you in this body who have military service and i honor that to protect our country after 9 11 there were also lawyers who recognized that our nation's values were under attack that we couldn't let the terrorists win by changing who we were fundamentally and what that meant was that the people who were being accused by our government of having engaged in actions related to this under our constitutional scheme were entitled to representation we're entitled to be treated fairly that's what makes our system the best in the world that's what makes us exemplary i was in the federal public defender's office when the supreme court excuse me right after the supreme court decided that individuals who were detained at guantanamo bay by the president could seek a review of their detention and those cases started coming in and federal public defenders don't get to pick their clients they have to represent whoever comes in and it's a service that's what you do as a federal public defender you are standing up for the constitutional value of representation and so i represented uh as an appellate defender some of those detainees in the early days the legal landscape was very uncertain this had never happened before not only the attack but also the use of executive authority to detain people in this way and there were a lot of questions that the court was asking the supreme court had taken a series of cases to try to understand what are the limits of executive authority which is important all of our liberty is at stake if we don't get it right in terms of what the executive can do supreme court has recently reaffirmed that the constitution does not get suspended in times of emergency and so lawyers were trying to help the court to figure out figure out what the executive's power was in this circumstance and as an appellate defender i worked on the habeas petitions of some of these detainees my petitions were virtually identical because we had very little information part of the issue at the very beginning of these cases was that most of the factual information was classified so defense counsel were appointed to represent these defendants we had no facts and i was making legal arguments about the circumstances that is what gave rise to my representation and i would just emphasize that that's the role of a criminal defense lawyer criminal defense lawyers make arguments on behalf of their clients in defense of the constitution and in service of the court judge jackson those of us who read about the workings of the supreme court realize it's a close relationship among the justices you've seen it personally as clerk and as an attorney yourself uh i'm going to close with one question here that comes to my mind i was in the house of representatives when the war on drug measure was passed 30 years ago or so it was at the advent of crack cocaine it scared the hell out of us the notion of a cheap narcotic highly addictive destructive to mothers and their fetus led us to impose a sentencing disparity between crack and powder cocaine that was unprecedented a hundred to one our notion was to come down hard make it clear that it was a federal standard imposed that standard and stopped the advance of crack cocaine we failed from the outset the price of cocaine crack cocaine on the street went down and up instead of down the i'm sorry did that wrong down instead of up and the number of users went up instead of down and we found ourselves in a position where we were filling the federal prisons uh with violations primarily for possession of crack cocaine hundreds of thousands being incarcerated at that time i came here to this committee in an effort to try to change it negotiated a revision of that measure from a hundred to one to eighteen to one with senator jeff sessions it was passed by the committee by the senate and by the house representatives and signed into law by president obama then you on the sentencing commission had to consider what to do with these new guidelines coming from congress and you achieved a consensus i think most people don't realize the sentencing commission is a pretty diverse group and very transparent could you close in the last minute or so and tell tell me about that effort to find consensus on an issue that controversial yes senator um as you mentioned the sentencing commission uh is a very diverse group of people who've been appointed by presidents of different parties by law and at the time that i was on the commission we had a range of of people judges from different backgrounds who had different views about the criminal justice system but we had a directive from congress in so far as congress had changed the penalties as you mentioned related to crack cocaine and so we work together to make a determination about whether or not the guidelines needed to change and if so whether or not to impose those changes retroactively in light of all of the evidence that you point out all of the um the congress's changes and the need to avoid unwarranted sentencing disparities which is exactly the charge that this body has given to the commission and we worked together we reached unanimous agreement that the change in the guidelines that was necessitated by the change in the statute should apply retroactively to people who had been convicted and sentenced under the prior regime and then congress followed shortly thereafter by making it a statutory change to to apply those changes retroactively thank you to jackson senator grassley thank you mr chairman welcome again to our committee i got home last night about eight o'clock the first thing i heard was my wife's opinion that you did very good in your opening statement thank you she didn't have anything to say about my state also uh besides the fact that we might have some votes on the united states senate just so you know i'm not being rude to you i may have to go across the hall to finance committee on some issues with tariffs and down to the agriculture committee for some issues on rural health care do you believe well let me ask it this way do the first amendment free speech protections apply equally to conservative and liberal protesters yes senator do you believe the individual right to keep and bear arms is a fundamental right senator the supreme court has established that the individual right to keep and bear arms is a fundamental right could you tell me how you might go about deciding what a fundamental right is under the constitution well senator um i don't know that i can tell you that in the abstract in the sort of way that that you may have posed the question um there is precedent in the supreme court related to various rights that the court has recognized as fundamental the court has some precedence about the standards for determining whether or not something is fundamental the the court has said that the 14th amendment substantive due process clause does support some fundamental rights but only things that are implicit in the ordered concept of liberty or deeply rooted in the history and traditions of this country they're the kinds of rights that relate to personal uh individual autonomy and they've recognized a few things in that category and that's the tradition of the court for for determining whether something is fundamental in that way okay uh on another subject kind of personal me over a long period of time and about half of this committee but it's a controversial issue with even within this committee i favor allowing supreme court hearings to be televised what's your view on this how would you feel about cameras in the courtroom which about 40 50 or 40 or 45 of our states allow well senator i would want to discuss with the other justices their views and and understand all of the various um potential issues related to cameras in the courtroom before i took a position on it i think that's a fair answer at this point uh i'm going to ask you about a bill that i got passed a long long time ago and it's something that at some level of course sometimes the district court sometime with the circuit court and even a once or twice at the supreme court they tend these courts tend to do damage to a bill called the false claims act this bill has brought 70 billion dollars of fraudulently taken money back into the federal treasury since it's been passed and courts of weakness and then senator leahy and i usually find ourselves having to pass legislation to say to the courts you got it wrong in fact there's a very controversial bill right now before the united states senate on that very subject it's fought fraud in the department of defense healthcare industry the pharmaceutical industry 70 billion dollars is pretty important so when you get if you're approved to be on the supreme court and the issue of false claims comes up i hope you think of chuck grassley it's it's one of the well and leahey [Laughter] the false claims act is one of the best tools that we have to fight against government fraud and to recover taxpayers money i've worked for decades to protect whistleblowers who shine a light on fraud waste and abuse in the government so i'd like to ask you a couple questions uh and i'm going to start with a former attorney general unnamed once suggested that ketam's suits were in his words patently unconstitutional and another word he used was dangerous he argued that it violated the appointments laws so understanding that you may get a case before you on the false claims act but maybe this appointment is uh sound enough you could answer do ketam suits violate the appointments clause so senator i'm i am not familiar with that um representational answer in writing then well i i'd be happy to do whatever i'm just trying to assess um i'm sorry i shouldn't have interrupted you no no that's all right sorry um i am trying to i'm not familiar with the quotation or what the attorney may have said about them i know that the supreme court has considered um various key tam actions and has issued opinions in the area and has not at least today found them to be unconstitutional but i don't know if that issue has been squarely presented to the court and i um would be loath to comment on it um just because if if it's being litigated it's something i wouldn't be able to address let me uh on the same subject also this former attorney general also argued that ketam suits also violate a broader separation of power principles are the can you tell me whether you think the president's constitutional powers are violated when private citizens are allowed to sue in the name of the united states and that's what key tam suits are all about private citizens going to court um well senator it's a it is an important concern there are statutes that do allow for the kinds of lawsuits that you are articulating [Music] i am not aware of impediments to those but again you know this is the kind of thing that may be litigated and i would have to look as i do consistent with my methodology at any arguments that are raised about the constitutionality or lawfulness of those actions remember in about all of these suits that involve the courts in making interpretations of false claims act most of them are brought by whistleblowers and remember the government would not even know about these fraudulent use of taxpayers without whistleblowers coming forth and they ought to be given some credit for wanting the government to do what the laws say it ought to do and spend the money the way that the constitution or the the congress implies that that money be spent i want to move on at an event at the university of chicago school of law in 2020 you quoted martin luther king jr who dreamt of a time when quote the sons of former slaves and the sons of former slave owners would be able to sit down together at the table of brotherhood end of quote you talked about how quickly things in the country then changed including the civil rights laws over the next few years because the civil rights movement you added that quote less than a decade after dr king's words that was the world that you inhabited dr king hoped for a country where we would all be judged by the content of our character rather than our race do these quotes still reflect your views on this very important topic today yes senator um in that speech i talked about my background my upbringing the fact that my parents when they were growing up in miami florida attended and had to attend racially segregated schools because by law when they were young white children and black children were not allowed to go to school together and my reality when i was born in 1970 and went to school in miami florida was completely different i went to a diverse public heist junior high school high school elementary school um and the fact that we had come that far was to me a testament to the the hope and the promise of this country the greatness of america that in one generation one generation we could go from racially segregated schools in florida to have me sitting here as the first floridian ever to be nominated to the supreme court of the united states so yes senator that is my that is my belief and i think it's good that the country had an opportunity to hear what you just told us about your experience i'm going to go to something that the chairman brought up and i i've written down the 3.3 steps you go through no another question but also one that he brought up on court packing and your opinion i heard what you said and you said it should be a policy question but i want to go to something in 2013 during your hearing to be a district court judge senator coburn asked you whether you believed in the theory that the constitution is a living document whose meaning evolves over time you said no in 2021 however during your circuit court nomination hearing you declined to answer the same question when asked why the answer when asked why the answer to your question of 2013 and not in 2021 in in written questions you noted that you weren't a sitting judge so please explain to me or describe for us the difference between ethical rules for sitting judges versus judicial nominees who are not already judges senator i don't know that there are ethical rules that um are different what what i'll say is with respect to my um approach to judging um there is not a label i think that fits what it is that i do and and how i've approached my role as i mentioned to the chairman i'm very acutely aware of the limitations on the exercise of my judicial power those limitations come in the form of adherence to the text when you assuming you even get to that stage of the process that you have you have subject matter jurisdiction you can reach the merits then you are looking at the text and i do not believe that there is uh a living constitution in the sense that it's changing and it and it's infused with my own policy perspective or uh you know the policy perspective of the day um instead the supreme court has made clear that when you're interpreting the constitution you're looking at the text at the time of the founding and what the meaning was then as a constraint on my own authority and so i apply that constraint i look at the text to determine what it meant to those who drafted it on the same subject i want to point out a difference between you and a couple people that have sat on the supreme court justice breyer said that a structural alteration of the supreme court motivated by perception of political influence can only feed the perception of political influence that's my parenthetical further eroding that trust justice ginberg also cited court packing as being quote unquote a bad idea court packing is creating new seats for political purposes for a president to appoint more judges do you agree with justice breyer and justice ginberg that court packing is a bad idea before you respond i'd like to say that you say this question should be left to congress is a policy issue i'd reiterate that sitting supreme court justices have spoken on that matter so i don't think it'd be inappropriate for you to do if other people sitting there have said that it's a bad idea well respectfully senator other nominees to the supreme court have responded as i will which is that it is a policy question for congress and i am particularly mindful of of not speaking to policy issues because i am so committed to staying in my lane of the system because i i i'm just not willing to speak to issues that are properly in the province of this body okay then i would interpret your answer and you don't have to respond to this but i think you're saying breyer and ginsburg should not have stated their views on that issue during his opening statement yesterday one member of this committee suggested that the supreme court has been bought by dark money groups do you agree that the supreme court has been bought by dark money groups senator i don't have any reason to believe that that's the case i have only the highest esteem for the members of the supreme court whom i i hope to be able to join if i'm confirmed and for all of the members of the judiciary thank you for that answer i'm going to go to international law during an aba panel on international law last year justice breyer said that as a federal judge quote you can't do your job properly under quote without considering international law and quote again in some cases and it's a growing number end of quote and i assume a growing number of opportunities use international law in 2018 op-ed justice breyer said that quote the best way to preserve american values may well be to take account of what happens abroad end of quote under what circumstances is it appropriate to consider international law when interpreting our constitution thank you senator i have nothing but the highest esteem and respect for my former boss who i've spent the better past better part of the past couple decades calling my justice having clerked for him but i do think that the use of international law is very limited in in our scheme and in our judging there are certain cases in which it is relied upon um where congress directs or where the standards are such the case involves a treaty for example and you have to interpret international law in order to be able to address it um but there are very very few cases i think in which international law plays any role and certainly not in interpreting the constitution i'm i think you probably have answered my next two questions but if you say you have nothing to add i would still want to ask the questions do you think it's appropriate to look to international law when interpreting enumerated and unenumerated constitutional rights uh no senator which specific again i think you've answered this but i want to ask it anyway which specific constitutional causes or rights has the supreme court held that can be interpreted by looking to international law i'm not aware of any that are properly illuminated by reference to international law now i want to go to a question that senator durbin asked i'll probably go a little more but i remember when this is about your judicial philosophy and you made three points three steps you take to go through a case and apply the law and uh and and you say your methodology is limited power and stay within your lane i'd like to ask you well you've served on the district court for several years and spent eight months on the dc circuit during yesterday's opening statement we heard a lot about the importance of judicial philosophy in your own words you've described that so you don't have to go through that again with me but if congress writes a law that does not explicitly allow private parties to sue do you believe that the federal courts have the authority to create implied causes of action and i'd like to have you elaborate if you say yes to that i would say that as a general matter no senator i mean our our obligation as judges is not to create policy and if congress has enacted a statute that establishes a cause of action or restricts causes of action then as a general matter i don't think that courts can impose one now you know i'm saying generally because um there may be circumstances that i'm not thinking of there i know that the supreme court has in very narrow circumstances at times discussed implied causes of action but i think the charge of the judge is to impose the law as written there's 115 justices that serve before you if you are approved by the senate uh is there any of them now or in the past that has a judicial philosophy that most closely resembles your own you know i haven't studied the judicial philosophies of all of the prior justices i will say that i come to this position to this moment as a judge who comes from practice that i was a trial judge and my methodology has developed in that context i don't know how many other justices other than justice sotomayor have that same perspective but it informs me with respect to what i understand to be my proper judicial role what aspect of your record as a judge do you believe have been the most important for the good of the country well um i think that all of my record is important to some degree because i think it clearly demonstrates that i'm an independent jurist that i am ruling in every case consistent with the methodology that i've described that i'm impartial um i don't think that anyone can look at my record and say that it is pointing in one direction or another that it is supporting one viewpoint or another um i am doing the work and have done the work for the past 10 years that judges do to rule impartially and to stay within the boundaries of our proper judicial role let's go to immigration um congress gave the attorney general quote unquote sole and unreviewable discretion decide whether expedited renew removal would apply to quote an alien who has not been paroled or admitted to the united states you decided a case called make the road new york where you seem to agree that congress gave the department of homeland security sole and unreviewable discretion to decide which illegal immigrants would be subject to expedited re removal but you still went on to review the department's decision in fact you issued a nationwide injunction blocking a department of homeland security from removing illegal immigrants who had been in the country for less than two years in that hearing you told us that if the text was clear that entered the question the law specifically says that homeland security not the courts was responsible for making the decision could you please explain why you believed a federal court could review something congress called unreviewable thank you senator for allowing me to address that opinion and my analysis with respect to it as you said make the road was a case involving a challenge to expedited removal which was a a way in which congress had given the authority to homeland to the department of homeland security to make a decision about how to deport people who are non-citizens prior to the challenge that i heard the department of homeland security um since it received that authority several decades ago had decided that people who were in this country for up to 14 days and are found within 100 miles of the border are subject to expedited removal the challenge that i heard involved the department's sudden shift to a determination that expedited removal would be applied to anyone who was found anywhere in the country and who had been here up to two years importantly the challenge was not about the actual determination the challenge was about the procedures that the agency undertook to make that determination and so the statute said as you rightly pointed out that the agency had sole and unreviewable discretion to decide and in interpreting that i took into account the language of that statute and the language of another statute that congress has enacted to direct agencies with respect to the manner in which they exercise their discretion so i said and i believed that seoul meant that the department of homeland security was the only agency who got to make this determination as to how many months a person should be in the united states and unreviewable meant it was final once the agency decided um then there was no ability to review substantively their determination and i should say that importantly the statute that congress enacted gave the agency the discretion to make this determination between zero and 24 months there is a limit in the statute it says congress you i mean excuse me department of homeland security you get to decide where between 0 and 24 months a person who's been in this country can be subject to expedited removal so i read the statute dhs gets the sole ability to make that decision dhs makes that decision and it's final what wasn't clear to me based on that language was whether congress intended to preclude its procedural requirements for the exercise of agency discretion and in the dc circuit there was precedent that indicated that even when congress gives a great deal of discretion to an agency procedural requirements may still apply it is presumptive that the apa applies meaning that an agency can't act arbitrarily and capriciously when it undertakes to exercise discretion it has to do certain things in order to make the determination that congress has given it i looked at those statutes oh i'm sorry no no i looked at those statutes and i've considered the canons of construction that say that statutes should be read harmoniously that you're that as a court you're supposed to understand that congress has directed sometimes in more than one statute what is supposed to happen and so i read them together to mean that the court could still do what it almost always does in a case involving a challenge to the manner in which an agency makes its decision and in fact i thought as i say in my opinion that congress intended for the apa to imply because it had not excluded it which it had done expressly in other parts of the of the ina it had not excluded it here and it made sense to uh require the agency to use its expertise if congress wanted the agency to act arbitrarily in picking a number congress could have done that congress said you can do it up to 24 months it could have randomly picked a number but it was giving it to the agency i thought and reasoned precisely because it wanted the agency to use its expertise to do its research and to figure out what amount of time is sufficient and so it was important i thought to lay that out in the statute and i determined that both of those statutory directives of congress should apply thank you senator grassley senator leahy thank you chair durbin judge congratulations again on your your nomination to our nation's highest court you're an impressive jurors i hope the broader public sees that and enjoyed the opportunity to meet your family here yesterday and i thought before i begin my questions i was going to respond to something the junior senator from texas said yesterday he suggested democrats exactly the political agenda by opposing the nomination then judge corsage to the supreme court i kind of chuckled at that because along with others i and others repeatedly and clearly stated substantive concerns with justice course's nomination i explained my votes on the record there's no political agenda i contrast that with republicans treatment of then judge merrick garland we're still waiting today for republicans to explain on the record what kind of substantive concerns they had with merrick garland that they blocked them for over a year and would not allow even allow a vote on his nomination apparently because of a politically driven agenda all i'm saying is let's make history this week but let's not rewrite it this is historical time judge jackson one of the topics we discussed in our meeting was our respective experiences you as a former federal public defendant myself as a prosecutor as a federal public defender here in washington you were assigned to and then represented clients who couldn't otherwise afford a lawyer one of the valuable lessons i learned as a prosecutor was this for a criminal justice system to function properly you have to have skilled dedicated lawyers on both sides of the issue both the prosecutor and the defense attorney it's equally essential for judges to have a nuance and a balanced understanding of our criminal justice system if we're going to have justice done now it's really concerning it's confusing that some view your background as a federal public defender some kind of a liability those of us who have spent time in courtrooms know you have to have both a skilled prosecutor and a skilled defender i believe that in fact i don't think of it as a liability i think it's going to be a major asset to you i think it should be welcome uh on the supreme court in fact if you're confirmed to the court as i look back over you're going to be the first former federal public defender on the court you're going to be the first nominee since justice third good marshall with a significant background in criminal defense that's pretty impressive so all of us should want that representing the supreme court because decisions on the supreme court can have a lasting impact on our criminal justice system my question is this i believe that your experience as a federal public defender has made you a better judge helped you maintain an impartial and balanced perspective and criminal and other cases and i assume you would agree with that yes senator i think that experience in the criminal justice system whether as you say on on the prosecution side or the defense side having actual experience um is an asset as a judge you understand the way the system works and as a defense counselor you have interacted with defendants in a way that as a judge at least as a trial judge i thought was very beneficial one of those ways is it helped me to develop a sense of the need to communicate directly with defendants and you know it didn't change i think in any way the outcomes of the cases when i was a trial judge but i understood from my time as an appellate defender that a lot of defendants go through the system and don't really understand it and the problem with that from our society's standpoint is that when people go through the criminal justice system and don't have a good understanding they tend to not take responsibility for their own actions they tend to be bitter and feel as though the justice system has wronged them and so while they're doing their time rather than reflecting on the fact that this is the consequence that they have to face for actually um committing a crime instead of doing the work to rehabilitate themselves they're you know focusing on how wronged they are how victimized they feel and so what i decided as a trial judge was that i was going to make sure that everyone who was in my courtroom and especially the defendant understood all of the procedures that we were going through all of the steps i spoke directly to them i asked them do you understand what's happening because i wanted them to know and then even perhaps more importantly as i said about my my child pornography cases i focused on the harms of the behavior that was at issue when i sentenced a defendant i made clear in every case here is the problem this is what you've done here is the damage to our society and i don't know that i would have done that um if if i had not been a criminal defense lawyer well and that's sort of what you know i was getting to the fact that you have that experience i also it's obvious you don't get as a public defender you don't get the right to you don't get to choose your clients it's not like you're going out there picking and choosing you're told you're going to defend this person but they're given that right under the sixth amendment and we we all you're a member of the bar or judge or public defender you take an oath to uphold the constitution and the six amendments a pretty important part of it wouldn't you say absolutely senator and it's also a pretty important part for indigent defendants is that not correct that is correct especially for indigent defendants because they are determined to not be able to afford counsel and as you said senator for a judge uh it is crucial that you have arguments that are being made and presented on both sides of the issue that is what allows for judges to reach just results in cases and it's what makes our system so exemplary it also guarantees that our constitution is going to be fall i you know i i think it's important you went around with uh senator doug jones who's highly respected in the center on both sides of the aisle but you got to meet um other other senators i i was delighted you came to uh to spend time in my office and you noted in your public remarks at the white house when you were nominated that you've been your parents were married for 54 years and both public servants in their own right and they are proudly watching you uh being announced by the president and i must admit watching them to uh the last couple of days they're probably watching you here as have other members of your family your younger brother became a police officer detective in baltimore before serving the army two two tours of duty in the middle east two uncles that served as police officers so i'm not really surprised that you understand law enforcement the national fraternal order police has expressed strong support for your nomination in fact their letter dated february 25th 2022 they said you have considered the facts and applied the law consistently and fairly on a range of issues and they went on to say there's little doubt do you have the temperament intellect legal experience and family back on earned disappointment and they added we are reassured reassured that should she be confirmed to the approach of future cases an open mind treat issues related to law enforcement fairly and justly a chair german had asked consent that the letter from the fraternal order please be included in the record objection now that's a statement from the largest law enforcement labor organization in the united states what do you say to people say you're soft on crime or even anti-law enforcement because you accepted your duties as a public defender thank you senator i i would make um i'd make three observations in response to those critiques um the first is that as someone who has had family members on patrol and in the line of fire i care deeply about public safety i know what it's like to have loved ones who go off to protect and to serve and the fear of not knowing whether or not they're going to come home again because of crime in the community as you said my brother my brother patrolled the streets of baltimore and i had two uncles who were career law enforcement including one who became the chief of police of the city of miami police department in the 1990s so crime and the effects on the community and the need for law enforcement those are not abstract concepts or political slogans to me the second observation that i would make is that as a lawyer and as a citizen i care deeply about our constitution and about the rights that make us free as you say criminal defense lawyers perform a service and our system is exemplary throughout the world precisely because we ensure that people who are accused of crimes are treated fairly very important to me in that capacity as a lawyer and as a citizen oh i'm sorry i was just going to say the third thing i would say is is as a judge as a judge i care deeply about the rule of law and i know that in order for us to have a functioning society we have to have people being held accountable for committing crimes but we have to do so fairly under our constitution as a judge who has to decide how to handle these cases i know it's important to have arguments from both sides to have competent counsel and it doesn't mean that lawyers condone the behavior of their clients they're making arguments on behalf of their clients in defense of the constitution and in service of the court and it is a service well i i know in our conversation i i'd mentioned my own experience as a prosecutor i wanted the best defense attorney on the other side because you want to make sure that as the trial went on everything was done properly and let's talk about guantanamo bay uh it's been controversial and we've had two presidents one republican one democratic who said they wish it could be closed but the fact is individuals were detained there the whole world was watching this we i know i heard from people i respect throughout the world asking questions about guantanamo and that's precisely the situation we want our best and our brightest lawyers to step into the prey however politically controversial we have to make sure that we do not become uh unmoored from our core commitments to the rule of law but that also both in our own country and outside our country people can see that we're following that so you were in private practice uh when you took on these cases uncharted legal waters more uh what principles drove you to get involved with cases in such a a difficult time in guantanamo bay well thank you senator and i i do want to clarify when i first started working on these cases i was an assistant federal public defender the supreme court in 2004 issued two opinions that began this group of cases and these issues and this was in the wake of the tragic and terrible attack on this country uh in 9 11 and the executive's use of authority to detain enemy combatants at guantanamo bay in 2004 the supreme court ruled that the executive did have the authority to make those detentions in one case and then in another case the supreme court ruled that anyone so detained could file a legal challenge they had habeas rights and as you know habeas is in the constitution in 2005 i joined the federal public defender's office and those cases started coming in the requests from detainees asking for legal representation consistent with our constitutional scheme to have help to file their habeas petitions this was very early in the days of these kinds of legal actions there was a lot unknown about what these petitions could look like what the arguments could be made and considered by the court and and perhaps most importantly what the facts were related to any of these individuals because almost everything was classified so defense counsel was getting these these people in with no information i was in the appellate division of my office and as an appellate defender i worked on legal issues i was paired with my i was assigned by the federal public defender i was an assistant federal public defender and i was paired with a trial defender who attempted to do the fact gathering who traveled to guantanamo bay i never traveled there or anything like that i worked on the law and as you noted the law was very uncertain this was brand new and people were trying to figure out what are the limits of executive authority in this context we knew that the constitution was not suspended even though we had this emergency so what did that mean with respect to these individuals i filed as a federal public defender i was assigned to work on four cases and i filed almost identical petitions because what you're doing especially when you have no facts is just preserving legal arguments for your clients that is consistent with what lawyers do and then you mention private practice so i went into private practice in i believe it was 2007.

and by that time lots of private practices around the country had started taking on these cases because there were lots of people who needed representation and so pro bono practices were receiving requests usually through non-profits and one of the individuals that i had represented as a defender ended up being assigned to my firm unbeknownst to me so i arrived at my firm and the partners realized this same person um was someone that according to the docket i had previously represented and they asked if i would review some of his materials and continue the representation that was the only person that i represented in the context of my private firm who was a detainee i worked on a couple of habeas briefs for judges and for um a variety of ins of of non-profits including the rutherford institute the cato institute and the constitution project who were all interested in making arguments to the supreme court that was considering these very novel legal issues you know i i sit here and i i think of the 20 uh supreme court nominees i've gotten to vote on over my years here and i think of the remarkable praise you got from former republican house speaker paul ryan whom most of us know well he did mention his politics may be different than yours but his praise for your intellect for your character for your integrity is unequivocal that's powerful praise and i i think it goes to a really fundamental point and that's this one doesn't have to have the same political beliefs or ideologies as a judicial nominee to recognize their integrity and intellect when i voted to confirm chief justice john roberts of the supreme court i cast that vote knowing very well that he and i would disagree on many policy and political issues but i voted yes because i believed that he had what it takes to serve as an impartial fair chief justice who would uphold the rule of law and i want to take it out of partisan politics now what would you say to people whose politics may be different than yours like speaker ryan who has endorsed you what would you say to those people about your readiness to serve as an even-handed unbiased supreme court justice thank you senator i would say that i am committed to serving as an even-handed supreme court justice if i'm confirmed by this body and i have a record over the past decade that's precisely how i've treated all of my cases and i've been serving in the district of columbia both as a trial judge and as an appellate judge and we see some of the most politically contentious issues my record demonstrates my impartiality well i'd go along with that because uh when i i watched this court i i used to go there as a young lawsuit and sit in the back and just watch it i continue to watch it i see the chief judge of the federal district court judge barrel howe who i i was privileged to have her serve as my chief counsel on on this committee and learn from her then i learned from her now but i also as a lawyer i i hear a lot of talk about reversal rates now no judge has goals without being reversed somewhere if they they're never reversed they haven't heard many cases but your time in the district d.c district court less than two percent of your more than 550 cases were reversed uh considering the fact that the dc circuit reverses an average of 13 of the cases it um in here's you get a pretty good record and uh but what is the judge who's been reversed what do they take from that reversal what are they what what do they or what should they think about it well you obviously look at it very carefully what it means is that a panel of judges who've reviewed what you determined for some reason has decided differently and there are times when um panels of judges decide differently because they are making new a new statement about the law or they're establishing a standard that um had not previously been the case in the area and so you learn oh this is a new standard now that i need to apply there are times when you disagree that people can disagree about the way in which the law works and that's why we have panels because people have different judges can have different perspectives and in good faith reach different results and so um obviously when you're on the trial court the the court of appeals uh is binding and they tell you um in this case no we're gonna the result is something different and so you learn but you know um anytime i had an opportunity to argue case at a power level i don't think i ever thought about who nominated or appointed the judges as before i just want to know what i would think about their experience and i would think about that when i made the argument not i don't think i've ever had the opportunity to argue before anybody had your breadth of legal experience here you served as a federal trial court a federal appellate court just for almost 10 years you've clerked at all three levels of the federal judiciary you practice law as a federal public defender in private practice and i know we uh confirmed you as a member of the u.s sentencing commission this may seem like an easy question but i just ask you that you've had such products experienced but they're all different in a way how does that uh how does that shape your approach when deciding a case oh thank you senator um as i mentioned at the beginning i have a methodology that i apply when i'm deciding cases and maybe my various experiences helped me to get to the point of understanding the importance of impartiality staying in my lane as a judge because the prior experiences were different roles in the system because i saw the different roles i think i have a good appreciation of what it means to be a judge and the limitations on my own authority the sentencing commission was a policy-making branch of the judicial branch that the the commission and the commissioners develop sentencing policy um congress delegated that authority to create the the commission and so they're doing the the policy work gathering data making recommendations that is totally different than the work that i do as a judge advocacy on behalf of your clients making critical arguments the best arguments you can come up with is a service to the court but it's a totally different thing than operating as a judge and so i think that having had those various experiences i'm now really mindful of my role and limitations in the the judicial branch well and and the president referred to you as a proven consensus builder and i think he was also thinking of your predecessor justice breyer in that regard and i think over the years how important that is even in a body like the u.s senate i see senator tillis here he and i have worked together on i.p issues senator cornyn and i on freedom of information issues senator grassley and i and other issues senator graham and i on various issues and um and usually in the senate at least if you work across the ideological spectrum you get better results so let me ask you how would you describe your approach to building consensus on cases related to issues like intellectual property that are less likely to break up break along traditional ideological lines thank you um thank you senator one of the things that i was able to do when i worked on the sentencing commission was work with people who had very different perspectives than i did about the criminal justice system and come to consensus it's very important as you said to try to find common ground and justice breyer was such a wonderful model a role model for that kind of ability as a supreme court justice it's something i learned from him and something i tried to model in my work on the commission that i try to model in my work as an appellate judge and that i would model or or do if i were confirmed to the supreme court dane thank you chair thank senator leahy and now senator graham thank you uh judge again congratulations i want to talk to you a little bit about family and faith because in your opening statement and the people who uh introduced you to the committee uh that was very glowing praise of uh you as a person a good friend you have a wonderful family you should be proud and your faith matters to you what faith are you by the way senator i am um protestant okay um non-denominational okay could you fairly judge a catholic senator i have a record of i mean the answer would be judging everyone believe you can i'm just asking this question because how important is your faith to you senator personally my faith is very important but as you know there's no religious test in the constitution under under article 6 and there will be none with me and um it's very important to set aside one's personal views yeah about things in the role of a judge i couldn't agree with you more and i believe you can so uh on a scale of one to ten how faithful would you say you are in terms of religion you know i go to church probably three times a year so that speaks poorly of me or do do you attend church regularly well senator i am reluctant to talk about my faith in this way just because i want to be mindful of the need for the public to have confidence in my ability to separate out my personal views well how would you feel if a senator up here said your faith a dogma lives loudly within you and that's of concern how would you feel if somebody up here on our side said you know you attend church too much for me or your faith is a little bit different to me and they would suggest that it would affect your decision would you find that offensive senator i'm i'm i would if i were you i found it offensive when they said about judge barrett the reason i asked these questions is i have no doubt that your faith is important to you and i have zero doubt that you can adjudicate people's cases fairly if they're an atheist if i had any doubt i would i would say so but the only reason i mention this judge you're reluctant to talk about it because it's uncomfortable just imagine what would happen if people on late night television called you an f nut speaking in tongues because you practiced the catholic faith in a way they uh couldn't relate to or found uncomfortable so judge you should be proud of your faith i am convinced that whatever faith you have and how often you go to church it will not affect your ability to be fair and i just hope going in the future that we all can accept that and that uh judge barrett i thought was treated very very poorly so i just wanted to get that out let's talk about family uh do you know janice rogers brown yes i do know her how do you know her she was a judge on uh the court that i now serve we didn't overlap and i'm struggling to remember whether i ever met her but she was a judge on the circuit court right and you were a district court judge is that right i was but i don't know whether she had i think you were are they in the same building they are in the same building they are so you really don't know her i know of her yes what do you know of her what's her reputation um i know that she's a very well-respected judge on my circuit okay in terms of family she was the daughter and granddaughter of sharecroppers she was raised in alabama under jim crow despite this adversity she put herself through law school as a single working mother that's pretty impressive isn't it yes senator your background is very impressive you seem to have a great family uh if family mattered we would not have done to her what was done to her here in the united states senate do you realize that she was filibustered for two years when she was appointed the dc circuit i didn't know that did you know that joe biden actively filibustered janice rogers brown i did not know that did you know that he told face the nation if bush nominates her for the supreme court i can assure you that would be a very very very difficult fight and she probably would be filibustered is that news to you too yes okay now that you know that how do you feel about it senator i can't speak to something that i just learned two seconds ago and you're okay fair enough conversation with me fair enough um you're in the black law school society all right law students association okay black law student association yes you remember at harvard yes and then sometime the mr jeffries thing do you remember that whole dust-up he got only in um preparation for this and i think i was in college at the time it was my senior year of college okay so you were actually in the group when he was invited to speak i don't know which group invited him to speak i was a black student at harvard both in the harvard undergraduate black students association and the harvard law school black students association do you remember going to a speech given by mr jeffries i think he's the uncle of king jeffries i did not go to a speech given by mr jeff are you now familiar with the press reports about what mr jeffrey's views are just in preparation for this okay and you do do you associate yourself with those views i do not senator as a matter of fact he's been called by many as very anti-semitic he called you skunk who stink up the place you don't agree with that do you i do not senator and it would be wrong for me or anybody else to hold his statement against you because he spoke at some group you're a member of right senator i don't have yes it would be yeah that's right that's the right answer i thought that was the right answer with judge alito when they made a big deal about some group he was in that had views that he didn't agree with and tried to call him basically a racist and found out that senator kennedy god rest his soul who beat the crap out of the guy for being part of some supper club that was actually in some organization called the owl that didn't admit women so i guess the reason i'm bringing all this up is it gives me a chance to remind this committee in america there are two standards going on here if you're an african-american conservative woman you're fair game to have your life turned upside down to be filibustered no matter how qualified you are and if you express your faith as a conservative all of a sudden you're a effing nut and we're tired of it and it's not going to happen to you but it just appalls me that we can have such a system in america that if a conservative woman wants to stand out and say i love my family just as much as you love yours and my faith means just as much to me as it does you that all of a sudden there come some kind of weirdo a guy like justice alito who's in the same type situation you're in being in a group doesn't agree with everything they do or what people may say at a meeting he didn't go to all of a sudden they own it you know this stuff needs to stop our people deserve better respect and i hope when this is over people will say you were at least well treated even if we don't agree with you uh so now let's talk about gitmo being a public defender did you consider that rewarding senator yes i did because public service is very important to me it is an important family value it is something that now i've dedicated my career to yes and do you think it's important to the system that everybody be represented absolutely it's a core constitutional value you'll get no complaint from me that was my job in the air force i was a area defense counsel i represented anybody that came in the door or i liked them or not i did my best is that what you did yes sir okay good now so the american people deserve a system where everybody is represented where you like them or not and anybody takes up that cause no problem with me you're just doing your job and i think you make our country stronger but there's the other side of the story that never gets mentioned when i talk about gitmo the american people deserve a system that can keep terrorists off the battlefield they deserve a system that understands the difference between being at war and a crime do you consider 9 11 you said a terrible tragic event would you consider it an act of war yes senator okay i would too i think it was an act of war about al-qaeda and associated groups against the people of the united states so as you rightfully are proud of your service as a public defender and you represented get mo detainees which is part of our system i want you to understand in the nation to understand what's been happening at gitmo what's the recidivism rate at gitmo senator i'm not aware it's 31 percent how does that strike you that am i low about right i don't i don't know how it strikes me over you're all like me it strikes me it's terrible yes that's what i was gonna say okay good we found common ground of the 229 detainees uh released from gitmo of 729 release 229 have gone back to the fight here's some of the notables uh former gitmo detainee zakir was named the interim defense minister of afghanistan i don't know exactly what his job is today but during the transition they made him the defense minister and he was in gitmo of the five men we released from gitmo as part of prisoner swap for sergeant bergdahl here's what here's where they're at mohammed fazal was appointed deputy minister of defense noor was appointed acting minister of borders and tribal affairs waziki was appointed as acting intelligence director care again acting minister of information culture defense omar was appointed as the new governor of the southeastern province of coast these were five people that we had in our control they're now helping the taliban run the country would you say that our system in terms of releasing people needs to be re-looked at senator what i'd say is that that's not a job for the courts in this way that um as an american or does that bother you well obviously senator any um repeated criminal behavior or repeated attacks acts of war bother me as an american well it bothers me while i will not hold it against you nor should i the fact that you represent gitmo detainees i think it's time to look at this system new folks when 31 percent of people are going back to fight to kill americans and and now running the taliban government we have gone wrong somewhere are we still at war um so the aumf the authorization for military force is still in effect congress has authorized uh the use of force against people in um in this way but do you personally believe that al qaeda isis-type groups are still at war with us i think yes i mean i think we so we're still in a state of war with certain elements of radical islam to this very day i believe that's documented yes okay now what's the process to determine whether one's an enemy combatant under our law well i believe that the executive branch makes an assessment of whether or not someone is taking up arms against the united states somewhere in the world related to all of this okay so it's an executive branch function to determine whether or not this person qualifies as an enemy combat well i believe that they make it this is the current law under current law um i believe that determination is made by the executive branch and the person is put into is detained um and then the question becomes whether they are able to bring some sort of legal challenge to that they have that right yes okay so the law is that the executive branch determines if you're an enemy combatant and under our law you can appeal that decision to a federal court through habeas is that correct i believe that's correct okay is it your view that we can hold enemy combatants as long as they're a threat to the united states i believe that's what the supreme court has determined okay did you argue that that should not be the case before in an amicus breathe i'm trying to think i had two amicus briefs that i worked on or three technically but two different cases um i will have another visit tomorrow yes go back and check yes i'm pretty sure that in your brief you argued that the executive branch should not have the ability to hold an enemy combatant and definitely you need to try through some process or release them yes senator as you were talking i my clients the cato institute the rutherford institute and the constitution project made that argument um and asked me to draft their brief yes well do you agree with that argument senator my um responsibility was to make my clients arguments and as a nominee to the supreme court that's the kind of issue the supreme court did not address that issue they in fact um the case became moot so did you organize an effort to get 20 judges to to file a brief the supreme court on this issue not on that issue no on another issue yes senator okay did you actively go out and recruit 20 judges to help you follow brief on another issue regarding world war detention not technically um what do you mean by that what i mean is that i was at morrison in forster which was my law firm in the supreme court and appellate group one of the partners at morrison and forester was a former federal judge who wanted to make this argument and who said we i have former federal judges who are friends of mine who would like to join with me to make this argument so i worked with her the partner at my firm who was a former federal judge to make it was her idea to get former judges to write this yes it's yours and you just helped in the implementation of that idea so senator as a member of the supreme court and appellate group in a law firm that is the practice right now yes so now there are people still held at gitmo today do you do you understand that yes okay what system is in place regarding their future i am not aware of the system right now um i i'm not sure exactly let me tell you what it is yes there's a periodic review process and made up of an interagency where they go through the files of these folks and they determine whether or not they still present a threat to the united states or the world at large and i think it's six months maybe a year but that goes on at least on an annual basis and if there's a determination that this person still represents a threat to the united states they're continued to be confined that's the way the system works are you okay with that as a policy matter senator i'm i'm not speaking to my views that that's my understanding is that the periodic review system is an executive branch determination of whether or not they're going to continue to hold people that they does that make sense to you as a way to deal with these detainees senator i'm not in a position to speak to the policy or the discretion of the executive branch regarding how they're going to handle detainees the reason i mentioned it is because in one of the briefs you argued that the executive branch doesn't have that option that if we if you had had your way the executive branch could not do periodic reviews about the the danger the detainee presents to the united states they would have to make a decision of trying them or releasing them is that not accurate respectfully senator it was not my argument i was filing an amicus brief on behalf of clients including the rutherford institute the cato institute and the constitution project when you when you sign on to a brief does it not become your argument it does not senator if you are if you are an attorney and you are representing a client in america is that your position uh when you were in private practice i mean you you sign on to this brief making this argument but you say it's not your position i mean why would you do that if it's not your position why would you take a client that has a position like that this is voluntary nobody's making you do this oh senator i would i would refer you to the same sorts of statements that chief justice roberts made when he came before the committee which is that lawyers represent clients i i get that i'm not holding the client's views against you the like that the people you represent at gitmo they deserve representation but this is a amicus brief where you and other people try to persuade the court to change policy the policy i described is a periodic review if the court had taken the position argued in the brief that you signed upon we'd have to release these people or try them in some of them the evidence we can't disclose because it's classified you're putting an america in an untenable position this is not the way you fight a war if you tried to do this in world war ii they'd run you out of town we hold enemy combatants as long as they're a threat there's no magic passage of time that you got to let them go so my question is very simple do you support the idea did you support then the idea that indefinite detention of an enemy combatant is unlawful respectfully senator when you are an attorney and you have clients who come to you whether they pay or not you represent their positions before the court i'm sure i'm sure everybody at gitmo wants out now i got that this is an amicus brief and i just don't understand what you're saying quite frankly i'm not holding against you because you represented a legal position i disagree with i mean that happens all the time i'm just trying to understand what made you join this cause and you say somebody hired you but did you feel okay in adopting that cause i mean when you signed on to the brief were you not advocating that position to the court senator as a judge now in order to determine the lawfulness or unlawfulness of any particular issue i need to receive briefs and information making positions on all sides i got what a judge is all about i listen i'm not asking you to decide the case in front of me right here i'm asking me to explain a position you took as a lawyer regarding the law of war and i am beyond confused i know what you said in your brief what i agree with or not is not the point i just want you to understand that it's important for all of us to know where you were coming from if that brief had been accepted by the court it would be impossible for us to fight this war because there's some people going to die in jail and get mo and never go to trial for a lot of good reasons because the evidence against them is so sensitive we can't disclose it to the public that we're not charging them with a crime what we're doing is saying that you engage in hostile activities against united states that you are an enemy combatant under our law and you will never be released as long as you're a danger until the war is over or you're no longer a danger that's the difference between fighting a crime and a war did you ever accuse in one of your habeas petitions the government of acting as war criminals for holding the detainees the holding of the detainees by our government that we were acting as war criminals senator i don't remember that accusation but i will say that you believe that's true that america was acting as war criminals in holding these detainees senator the supreme court held that the executive branch has the authority to detain people who are designated as enemy combatants for the duration of the hostilities and what i was doing in the context of the habeas petitions at this very early stage in the process was making allegations to preserve issues on behalf of my clients a habeas petition is like a a complaint that lawyers make allegations i've been a lawyer too but i don't think it's necessary to call the government or war criminal in pursuing charges against a terrorist i just think that's too far i don't know why he chose those words that's just too far but we are where we are so let's talk about um the nomination process have you ever had any interaction with a group called demand justice no directly or indirectly no uh have you ever had an interaction with a group called american prospect no do you know anything about uh our our bella is that the right term have you ever heard of a group called arbella i've heard of a group that i think is arabella or yeah like that you're right yes yeah do you know anything about them have you had any contact with them no okay uh in your nomination did you notice that people from the left were pretty much cheering you on a lot of people were cheering me on something true that's true did you know that a lot of people from the left were trying to destroy michelle chiles did you notice that senator a lot of people were supporting various people for this nomination so you're saying you didn't know there was a concerted effort to [Music] disqualify joe's child from south carolina because she was a union busting unreliable republican in disguise senator i was i'm a sitting judge i was focused on my cases no i didn't know that no i didn't know that would it bother you if sir if that happened senator it is troublesome that people are or were doing things related to i think that's the best way to say it people have a right to speak out and pick the person of their choice but all i can say is that if you miss the fact that there was an organized effort well here's president biden has only a certain amount of political capital for keeping his party united if he needlessly angers progressives on this scotus pick that could create all sorts of problems for him down the line jeff hauser revolving door projects uh let's see i just got so many quotes it's difficult to imagine someone with a record like judge charles winning votes from criminal justice advocates like senator cory booker even dick durbin uh child's experience is nothing like the diversity of experience that dubai administration has championed let's just let's see picking her child's would demoralize the base side with corporate america the fact that lindsey graham was vouching for her should give the white house pause our revolution joseph jerivanji or whatever his name is i'm sorry about that joseph he's bernie sanders pac director you didn't know that all these people were declaring war on judge childs senator i did not okay well no i'm i'm not saying you did and you said you didn't know i'll take it your word but i am saying that what is your judicial philosophy so i have a methodology that i use in my cases in order to ensure that i am uh ruling impartially and that your judicial philosophy is to rule impartially no my judicial philosophy is to rule impartially and to rule consistent with the limitations on my authority as a judge and so my methodology actually helps me to do that in every case so you wouldn't say that you're an activist judge i would not say that okay and so we'll have a 20 minutes more later on but here's what i would say that every group that wants to pack the court that believes this court is a bunch of right wing nuts are going to destroy america that consider the constitution trash all wanted you picked and this is all i can say is the fact that so many of these left-wing radical groups that would destroy the law as we know it declared war on michelle chiles and supported you is problematic for me thank you thank you senator graham let me mention a few points here uh congressman jim clyburn was a strong supporter of michelle childs and now i believe he is publicly supporting your nomination and michelle childs has been nominated by president biden to be a circuit judge and she will be considered by this committee as quickly as possible on the issue of guantanamo there are currently 39 guantanamo detainees remaining the annual budget for guantanamo is 540 million dollars per year which means each of these detainees is being held at the expense of 12 or 13 million dollars per year if they would be incarcerated at florence colorado the super max prison federal prison the amount would be dramatically dramatically less since 9 11 nearly 1 000 convicted in the united states on terrorism charges since 2009 with the beginning of the obama administration the recidivism rate of guantanamo detainees released is five percent mr chairman according to the department director of national intelligence is 31 somebody is wrong here if you're going to talk about what i said i'm going to respond to what you said if we close gitmo and move them to colorado do you support indefinite detention under the law of war for these detainees i would just say uh i'm giving the facts and the answer is no i want to make sure that it's clear the 31 percent you referred to goes back to the year 2009 2000 what does it matter when it goes back to we had them and they got loose and they started killing people well i could just say that if you're one of the people killed in 2005 does it matter to you when we release them just the president of your own party released him and i'm suggesting the system has failed miserably and advocates to change this system like she was it was advocating would destroy our ability to protect this country we're at war we're not fighting a crime this is not some passage of time event as long as they're dangerous i hope they all die in jail if they're going to go back and kill americans it won't bother me one bit if 39 of them die in prison that's a better outcome than letting them go and if it costs 500 million to keep them in jail keep them in jail because they're going to go back to the fight look at the freaking afghan government it's made up of former detainees at gitmo this whole thing by the left about this war ain't working let me also note that larry thompson who served as deputy attorney general under president george w bush oren kerr special counsel viet den who served as assistant attorney general for legal policy in the george w bush administration john bellinger and former d.c circuit judge associate general and independent counsel ken starr were also prominent conservative lawyers signing a letter defending attorneys who represented guantanamo bay detainees i don't believe that we should associate that activity as being inconsistent with our constitutional values we are going to represent are going to this point recognize senator feinstein and then take a break after she has completed her questioning senator feinstein thank you very much mr chairman and i just would like to compliment the witness i think you're doing very well and as you can see this is a bit of a tough place so a judge one of the issues that i often discuss with nominees particularly to the supreme court is the issue of abortion i have asked the three most recent supreme court nominees about this issue and so i'd like to discuss it a bit with you today in 2017 i asked justice gorsuch about this during his confirmation hearing i asked him to expand on a comment he had made about his belief that precedent is important because it adds stability to the law in response justice gorsuch reiterated his belief that precedent is important because and i quote once a case is settled that adds to the determinancy of the law end quote he also stated that roe has been reaffirmed many times i also spoke with judge kavanaugh about this issue in 2018 i asked him whether he believes that roe was settled raw and if so whether it was correctly settled justice kavanaugh said that roe quote is settled as a precedent of the supreme court end quote he said that roe quote has been reaffirmed many times over the past 45 years and most prominently most importantly reaffirmed in planned parenthood v casey end quote and he described casey as having the value of a precedent on precedent end quote i most recently spoke about this issue with justice barrett in two thousand twenty i asked her whether she agreed with justice scalia's view that roe was wrongly decided she committed to quote obey all the rules of starry decisis end quote if faced with the question of whether to overrule casey she said she had quote no agenda to try to overrule casey end quote so here's the question do you agree with justice kavanaugh that roe v wade is settled as a precedent and will you like justice barrett commit to obey all the rules of starry decisis in cases related to the issue of abortion end quote thank you senator i do agree with both justice kavanaugh and justice barrett on this issue uh roe and casey are the settled law of the supreme court concerning the right to terminate a woman's pregnancy they have established a framework that the court has reaffirmed and in order to revisit as justice barrett said the supreme court looks at various factors because starry decisis is a very important principle it provides and establishes predictability stability it also serves as as a restraint in this way on the exercise of judicial authority because the court looks at whether or not uh precedents are relied upon whether they're workable um in addition to whether or not they're wrong um and and other factors as well so i agree with both of the statements that you read well let me add one to that and then we'll move on i'm particularly interested in the case of roe v wade roe was decided by nearly nearly 50 years ago and it's been reaffirmed over a dozen times since then so my question is this does roe v wade have the status of being a case that is a super precedent and what other supreme court cases do you believe have that status well senator all supreme court cases are presidential they're binding and they their principles and their rulings have to be followed row and casey as you say have been reaffirmed by the court and have been relied upon and reliance is one of the factors that the court considers when it seeks to revisit or when it's asked to revisit um revisit a precedent and in all cases those the presidents of the supreme court would have to be reviewed uh pursuant to [Music] those factors because starry decisis is very important thank you if you are confirmed you would be one of only two justices who has also served on a federal district court the other being justice sotomayor in your eight years as a trial judge on the d.c district court you wrote nearly 600 opinions and presided over nine jury trials and three bench trials as you know from your service on the district court it's important for appeals courts and especially the supreme court to be clear in their decisions the clarity is necessary as you well know for trial judges to effectively do their job and properly apply legal precedents that are fair and consistent as a district judge you were responsible for applying precedent from the supreme court and the courts of appeal to your case and now as a judge in the d.c circuit you're drafting those precedents your experience as a trial judge is one of your most significant assets and i just want to add a personal comment this is a tough place and you are handling it very well and i appreciate your directness and think that's important here's a question i have two related questions how did you make sure that you were properly applying the relevant precedence as a district court judge and if you're confirmed to the supreme court what would you do to make sure your opinions are clear so they could be applied correctly by district courts thank you senator as you noted in my time as a district court judge i had the opportunity to apply precedents that were handed down by the court of appeals and the supreme court the district court is bound by the law as stated by those other tribunals and i was very focused on making sure that i found the right precedence and applied them faithfully as i mentioned with respect to my methodology part of the process is receiving information from the parties in a case and the parties write briefs and in most cases they identify the precedents that they at least believe are applicable and then the court does its own legal research as well to determine whether all of the relevant cases have been identified and then you look to see whether there's anything that directly controls and if it does that's your answer in many cases the precedence might be a little bit different in certain ways and you are assessing the party's arguments and determining within your proper role whether what the appellate courts have said the law of decision for the case but what's important as you've mentioned is the clarity by which courts of appeals in the supreme court need to operate and so so that the lower courts can actually follow the precedence and i'm very conscious of that as you said as someone who has had to follow precedent and i would think carefully about that and and use um use my communication skills to ensure that the precedents are clear so that lower courts can follow them thank you i'd like to discuss quickly a letter this committee received in support of your nomination from the international association of chiefs of police and as you know this is the world's largest professional association of law enforcement leaders and the letter states judge jackson has several family members in law enforcement and we believe this has given her a deep understanding of and an appreciation for the challenges and complexities confronting the policing profession during her time as a judge she has displayed her dedication to ensuring that our communities are safe and that the interests of justice are served and so mr chairman i'd like to put this letter in the record if i may without objection thank you i understand that your brother served with the baltimore police department for several years so here's the question how if at all has having several family members in law enforcement impacted your understanding of the law or your approach to your judicial service thank you senator some of my earliest memories in addition to my father at the kitchen table with his law books were of my uncles two of my uncles were career law enforcement and one was a detective uniform detective one was city of miami police department officer patrol officer for a long time before he became the chief and i remember very well we would go to my grandmother's house on sundays and she would make a big dinner for our family and my uncles would sometimes come off of their shifts so i see in my mind their uniforms um coming in and they would always um they'd be carrying their weapons and they'd take them off and put them way up high on the china cabinet so the kids couldn't get to them and i remember feeling very proud of them and the service that they provided and i think it's probably what led my brother who is 10 years younger than i am to decide that after he graduated from college he would want to also be in law enforcement so i'm very familiar with law enforcement the important service that they provide the perils of being out on the street protecting and serving and having a family that cares about you and worries about your safety um and so this is not something that is that is unfamiliar and and i'm very gratified by the support of the group that you mentioned and other law enforcement groups as i go through this process i joined this committee in january of 1993 and a few months later we considered the nomination of ruth bader ginsburg to the supreme court justice ginsburg's confirmation made her only the second woman to ever serve on the supreme court after justice sandra day o'connor so we have come a very long way since then though still not far enough women now make up about 35 percent of active judges on the federal district bench and 37 percent of active judges on the federal appeals courts judge jackson if confirmed you would become the sixth woman to ever serve on the supreme court you would join justices sota mayor kagan and barrett on the bench this would be the nearest we have ever come to gender equity on the supreme court there would be four women on a court with nine justices so i have my own thoughts about why gender balance is important on our nation's courts but i'd really like you to tell us all what are your thoughts on what it means for our country to have women serve in meaningful members meaning meaningful numbers on the federal bench and in particular what it would mean to have four women serving on the supreme court for the first time in history thank you senator um i think it's extremely meaningful one of the things that having diverse members of the court does is it provides for the opportunity for role models um since i was nominated to this i have received so many notes and letters and photos from little girls around the country who tell me that they are so excited for this opportunity and that they have thought about the law in new ways because i am a woman because i am a black woman all of those things people have said have been really meaningful to them and and we want i think as a country for everyone to believe that they can do things like sit on the supreme court and so having meaningful numbers of women and people of color i think matters i also think that it it supports public confidence in the judiciary when you have uh different people because we have such a diverse society well i just want to say thank you very much uh this is often a hard place and how you go through those hard times i really think is um the most important thing and it's pretty clear to me that you go through hard times by holding your head up high and doing well so i thank you very much thank you senator thank you uh senator feinstein we're going to take a break uh let's see let's take 15 minutes starting now and then we'll return to more questions we'll have a lunch break this later this afternoon in the early part of the afternoon a break in today's marathon hearing five of the 22 members of the judiciary committee have asked questions so far if you're keeping count this is a special report from the washington post i'm libby casey i'm joined by james homan to talk about what we've heard so far this morning they jumped right into it james the first questioner the chair dick durbin tackling some of the the toughest issues or the most critical questions that judge jackson would likely get from republicans later on yeah and he really helped preempt a lot of the attacks that we know are coming later in the day he gave judge jackson a chance to explain her sentences for child pornography offenders to defend her representation of guantanamo detainees to elaborate on her judicial philosophy to talk about reducing or making retroactive sentences for non-violent drug offenders as a member of the sentencing commission which judge jackson explained uh was uh unanimous uh but i i was really struck by how much she sort of established herself as her own person as an independent judge during those first couple rounds of questioning libby it was quite striking chuck grassley the ranking republican asked do you agree with stephen breyer who you clerked for about looking to international law and she said stephen breyer is my justice that's what i call him because i clerked for him but no i disagree she also disagreed with sheldon whitehouse the democratic senator from rhode island who will hear from soon who said yesterday that the supreme court has been captured by dark money she said i don't think that's true and i have huge respect for all the conservative and liberal justices on the court kind of a a notable departure from otherwise pretty opaque answers james yeah has there been uh uh a theme in terms of tone like what are you hearing from republicans and these are just the first few and they are people who've been on this committee for a long time we haven't reached that sort of that one might say back bench in terms of seniority but but republicans who really want to be stars in their own right we haven't reached them yet um but what are you hearing in terms of tone from the republicans and from the democrats the tone really was pretty friendly positive until lindsey graham you know chuck grassley the ranking republican started his questioning by saying when he got home from the capitol last night his wife uh complimented judge jackson's statement didn't have anything to say about his own statement it was sort of funny she really did help herself with that uh round of questioning lindsey graham really changed the the tone uh you're re-litigating uh some confirmation battles in the past such as amy coney barrett being asked about her catholicism and uh janice rogers brown uh who was filibustered by democrats an african-american woman uh who who joe biden opposed when she was considered by george w bush for the supreme court and then graham went hard on guantanamo bay on the laws of war it got a little testy judge jackson who's maintained such composure clearly uh expressing frustration uh with the the kind of questioning and the implications of it uh but the the the democrats have done much better today than yesterday at helping uh kind of inoculate her against some of the the tougher questions and you saw what was a pretty unusual moment libby uh dick durbin after graham had finished the questioning the chairman of this evenly divided committee uh reading off uh from basically a script defending the the policies toward guantanamo bay saying that it's not a democratic issue challenging some of the numbers that graham had thrown out about the recidivism rate of former detainees at guantanamo bay and that prompted graham to respond and it did feel very partisan in a way that the first hour and a half of of this day did not you know james it's important to note that decision by democrats to push back because yesterday it as can often happen in these hearings it's almost like you're watching two different channels because the republicans would launch attacks some of which were personal uh on judge jackson some of which were political some of which were about her record and the democrats would pick up on their own tangent right they weren't countering they were staying focused on the script they'd come prepared with so when we do see them shift to address as the chairman did there it is noteworthy because it shows their sort of approach uh how they're doing things today i i i want to go to a bit of tape this gives us a sense of how we were talking about democrats trying to inoculate the nominee this is just the second question from the hearing today the chairman dick durbin pointed out that the last nominee to face his committee amy coney barrett demurred and did not weigh in on whether the court should grow to more than nine justices barrett at the time said it was not her place to weigh in and so durbin turned the question to judge jackson let's watch my north star is the consideration of the proper role of a judge in our constitutional scheme and in my view judges should not be speaking in to political issues um and certainly not a nominee for a position on the supreme court so i agree with with justice barrett let's go uh james that's the clip we were just talking about there let's go now to robert barnes supreme court reporter and bring him into this conversation uh thank you so much for joining us bob so so let's talk about uh the examples that we're getting of issues that the nominee would weigh in on and would not weigh in on of course we just heard that one where she decided not uh to to make a stand on how much are we getting commitments from her on future decisions or clarity on past decisions you know not that much but she hasn't been pressed uh in a way that some of the most recent nominees have i thought i think that that will come later in the day she was asked about roe v wade and was sort of invited by senator feinstein to call it a quote super precedent and she declined that she said that all rulings of the supreme court are precedents you know it may not matter much by the time she is on the court if she is confirmed because the court right now is considering whether or not to overturn roe v wade and and there will be some decision by the end of the term and so there was not as much as i think we've seen in the past let's go to rhonda colvin on capitol hill who's been tracking all of the proceedings so far this morning and will continue to be with us throughout the day rhonda where are things going to go from here we've only gotten through five members on this committee so far that's right we're going to hear from the rest of the senators on this committee so we still have a ways to go here and each of them gets that half hour up to a half hour to ask judge jackson their questions most of the senators have been filling that time i believe the last senator dianne feinstein she didn't use every minute of it although she did end on a note that we've typically heard from her in in this setting before where she's questioned judicial nominees and talked about being a woman and of course she holds some history as one of the first women to be on the senate judiciary in american history carol mosley broad both of them were placed on this committee by president biden when he headed up the judiciary committee so there is always history when you you listen to her in her questions there for the most part we are hearing uh with the exception of course i think james pointed out of lindsey graham most of this has been going on a very even pace democrats are certainly trying to highlight her accolades her professional achievements the expected lines of attacks that we have heard from some of these senior republicans who have gone so far have included what we we had talked about which is the her representation of guantanamo bay detainees and she pretty much stood her ground on that saying back then after 9 11 the federal legal community did not want the events of 9 11 and the terrorists to change the way the u.s constitution works in terms of representing all people so she felt it was her duty as that public defender to represent those terrorists she also brought up a personal anecdote about her brother signing up to fight after 9 11 signing up for the military so we've heard some of these arguments and these attacks that we already kind of previewed yesterday when we heard these senators give their opening statements of course as we go on later on today you're going to hear from more of the more outspoken members of this committee especially on the republican side some of the ones that might be considered fire brands who might be coming with some harder questions or or tougher moments that we've been expecting one of the questions she of course was asked by dick durbin to sort of get out in front of it was that question senator hawley brought up about her giving lighter his claim that she gave lighter sentences to defendants who were involved in child pornography the first thing she said is that is far from the truth and she really detailed what it's like to be a judge going over cases like that and the personal impact on the victims and that she said is pretty much front of mind for her when she has those cases and that her sentences have been in line with other judges who have judged in similar cases so for now not major fireworks of course things have been going pretty steady i expect a few of the upcoming members to perhaps change the dynamic a little bit if we think about some of the things they said in their opening statement yesterday if they're going to be like that today thanks so much rhonda bob barnes the first thing we heard talked about was judicial philosophy so let's take a step back and just talk about what that phrase really means uh what are they trying to get at when they ask her about her judicial philosophy well they're trying to get a look at how she views the constitution how it should be interpreted i mean it's it's kind of been easy for some of the republican nominees recently who consider themselves originalists they say that they look at the constitution and what the words meant at the time it and the various amendments were adopted you know judge jackson uh said that she agreed that that was a starting point uh to look at too she really didn't want to be pinned down on what a philosopher judicial philosophy she continually uh talked about it as a methodology and the way she goes through a case all of that's fine as a judge she is now on a district judge and now an appeals court judge where you are bound by precedent of course it's different when you're on the supreme court and you can change uh presidents or or try to convince others to change precedents that you think were wrongly decided and aren't working she was asked if basically she was an activist judge and of course she said that she wasn't i want to talk about the question of international law and and the role that international law might have in deciding american law what did we learn well she said that she thought that international law came into play and a very very few cases i think is what is the way she put it you know only when there are treaties for instance or or something that in the case that really requires looking at it she says international law never in looking at how to interpret the constitution you know i i was listening to her and thinking that you know justice scalia uh might be more approving of her answers than her old boss justice breyer the two of them used to debate this point all the time and justice breyer's view is you do look at international law not to decide the case but as he puts it anywhere you can look to get good ideas about the right outcome of a case is a good idea i think that just uh judge jackson knows that that's a controversial view among some and she was playing it safe there do you see any other areas that you'd like to point out that make her different than than a justice breyer of course if she is indeed confirmed the power balance the dynamic on the court does not change but she will be her own person on this court yeah i think that's right i mean i think if you uh if you look at her record and what she's done in the past perhaps there will be a difference between the two of them on some criminal procedure cases she might be more likely to see it from a defendant's point of view than justice breyer did sometimes but you know it's hard to sort of extrapolate those things from the cases she's heard as a district judge and the few that she's heard as an appeals court judge to what she would do on the supreme court once she's freed up a bit bob her time on the sentencing commission how is that featuring into what we heard yesterday and what we're likely to hear talked about today yeah not so much yet i think it will um come up obviously there are a number of senators who raised that yesterday and said that they're going to question her about it she has been defended in those decisions by a fairly wide range of people the sentencing commission took a lot of its positions unanimously it was composed of republicans and democrats and so it's a little hard to sort of single out judge jackson for her role on the sentencing commission when usually as i say those decisions were more of a consensus decision what do you make bob of the sort of clapbacks that senators are giving to past confirmation processes yeah the republicans are seem particularly aggrieved by what's happened in the past certainly senator graham went out of his way to talk about that and he also seemed quite offended that president biden didn't pick someone else for the job judge childs from his home state of south carolina who senator graham had championed i thought that was a little odd to spend so much time on that but you know that's what they do you've heard democrats talk a little bit about merrick garland and how as president obama's nominee he was not even afforded a hearing there it doesn't have a whole lot to do with judge jackson's uh qualifications or confirmation but you know uh you can tell that they still sting among some of the some of the senators we heard the chair uh dick durbin talk about the senator who had changed the number of members of the supreme court and that being mitch mcconnell because he reduced the number when he sat on merrick garland's nominee nomination right went to more than a year uh with that position not filled bob since you covered the supreme court you are expert on that i want to talk about clarence thomas and what we know about his health situation we know he was hospitalized over the weekend but we just found that out on sunday night yeah unfortunately supreme court justices are it's up to them what they disclose about their health there are no real requirements and so it was a surprise that he went into the hospital on friday night we didn't learn about it until sunday night they said that he went in with what they called flu-like symptoms it was diagnosed as an infection and he's being treated with antibiotics what i've heard from other sources is that he is doing well that they expect him to be released in a day or two but he's not participating in this week's oral arguments even remotely it sounded from the statement though like he would essentially play catch-up after the fact that he could still be involved in those cases yeah that's right when when justices miss oral arguments they still rely on the briefing transcripts of those oral arguments they still participate in the outcome of the case you know the the oral argument is kind of the pro the public portion of the court's consideration of a case but it's not often considered the most important part the briefs and the sort of other things that justices do about a case or are really what they rely on to make their decisions we saw judge jackson her husband and one of their daughters entering uh this hearing room in the heart senate office building so we will go back to these proceedings as they resume bob before we let you go what should we be listening for this this afternoon i think that there will be a lot more uh attempts to get her to talk about these child pornography sentencing cases that are out there trying to pin her down a little more on how she views the constitution and how she views precedent you know how successful that will be i don't know but i think that you heard from dick durbin's uh questions the places that the democrats consider her vulnerable and that is the child pornography cases the gitmo cases and so i think we'll hear a lot more about those all right robert barnes rhonda coleman james homan thank you so much let's go back to the hearing room somewhere around an hour from now senators cornyn and white house will be recognized in succession first senator cornyn thank you mr chairman judge i won't want you to do me a favor um will you nerd out with me a little bit uh i will try something and we'll start with starry decisis yes and i've never figured out why lawyers speak in latin rather than in english uh when described describing these concepts by which judges apply precedent but would you agree with me that even under an appropriate story decisis analysis that dred scott and plessy versus ferguson were appropriately overruled by the supreme court well senator i'm not engaged in the actual analysis but i think it is well established now that the cases um that overruled uh dred scott and plessy were correctly decided yeah i mean there is the means by which the courts can correct their mistakes correct by overruling previous decisions if the various considerations that the supreme court has uses to make that determination and satisfied have you ever heard a federal judge talk about super duper president or super president i have not i've never seen it either in any opinion i've heard it here in the judiciary committee on a number of occasions when somebody has a favorite case or outcome that they don't want to see the supreme court revisit um let me ask a minute obviously your uh nomination by president biden is historic and i congratulate you again congratulated you previously and i think it's been long overdue when clarence thomas the second african-american who was uh nominated to and confirmed by the supreme court was nominated the court did you celebrate that as a historic event i'm trying to remember where i was at the time i believe i did yes when we're talking about staying in your lane and i appreciate your responses to a number of the questions even though i'd love to get your answer to the question but where you've deferred answering saying you want to stay in your lane and not be seen as a policy maker would you agree with me that one of the most important questions under our constitutional form of government and the separation of powers is who decides in other words some questions are appropriately decided by judges who are elected unelected excuse me served for life insulated from politics and other decisions are appropriately within the left up to the legislative branch because they are we are accountable to the people who can vote for us they can vote against us if they don't like the policies that we that we enact in legislation would you agree with that who decides is an important question in terms of determining the appropriate role for both the judiciary and the legislature as a general matter i agree it rarely comes directly like that as an issue it's it's it's usually not a jump ball between um between the legislature i get it you don't get a lot of easy easy questions um but you as a general proposition you won't disagree with me what i'd say is that the courts are properly tasked with resolving legal questions and cases or controversies right exactly in every case and congress is not similarly constrained we can pass broad policies comprehensive legislation changing policy but the difference is one of the differences is the voters can unelect us if they don't like what we're doing that is true i want to ask you what did you study under lawrence tribe when you were at harvard i did not well as you know justice breyer your mentor wrote a little book called active liberty and um lawrence tribe who uh was a formerly a law professor at harvard wrote a review of that book in the new york times review of books and the title of it is politicians and robes are you familiar with that article i'm not well in the article professor tribe accuses justice breyer of engaging in what he calls a noble lie and he said he talks about the morality of resorting to falsehoods and delusions to conceal usually from the masses but sometimes from oneself the truths whose revelation would wreak havoc or at least do more harm than good professor tribe goes on in criticizing justice breyer's book he says in his stubborn stubborn of a vowel that the court even with its current far-right supermajority remains an apolitical body he perpetuates a lie that is anything but noble you've talked about staying in your lane not making policy decisions not being seen as political do you agree with justice breyer that or with professor tribe senator i believe that judges are not policy makers that we have a constitutional to decide only cases and controversies that are presented before us and within that framework judges exercise their authority to interpret the law and not make the law so you would you would agree with me that judges should not be politicians yes let me talk to you a little bit about some of the decisions that have been made by the supreme court over many years starting perhaps with dread dred scott that adopts the substantive due process argument to determine the constitutionality of of various laws perhaps the most recent decision by the supreme court that was a dramatic departure from uh from previous laws in the states and in the nation was the oberfeld case which dealt with same-sex marriage in the opinions that were written there it was noted that here we are 200 at the time 234 years after the constitution had been ratified 135 years since the 14th amendment had been ratified that the supreme court articulated a new fundamental right which is a right to same-sex marriage you're familiar with that case aren't you i am at the time it was noted that 11 states including the district of columbia had had passed laws sanctioning same-sex marriage but also at the same time there were 35 states who put it on the ballot and 32 of those states decided to maintain the traditional definition of marriage between a man and a woman do you agree with me that uh marriage is not simply a governmental institution it's also a religious institution well senator um marriages are often performed in religious institutions well when the when the you agree with me that many of the the major religions that i can think of in their christianity judaism islam embrace a traditional definition of marriage correct i am aware that there are various religious faiths that define marriage in a traditional way do you do you see that when the supreme court makes a dramatic pronouncement about the invalidity of state marriage laws that it will inevitably set in conflict between those who ascribe to the supreme court's edict and those who have a firmly held religious belief that marriage is between a man and a woman well senator these issues are being litigated as you know throughout the courts as people um raise issues and so it's i'm limited in what i i can say about them i'm aware that there are cases i'm not asking you to decide a case or predict how you would decide in the future i'm just asking isn't it apparent that when the supreme court decides that something that is not even in the constitution is a fundamental right and no state can pass any law that conflicts with the supreme court's edict particularly in an area where people have sincerely held religious beliefs doesn't that necessarily create a conflict between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the land well senator that is the nature of a right that when there is a right it means that there are limitations on regulation even if people are regulating pursuant to their sincerely held religious beliefs you agree with marriage is not mentioned in the constitution is it it is not mentioned directly no and religious freedom and um is mentioned in the first amendment explicitly correct it is do you share my concern that when the court takes on the role of identifying an unenumerated right in other words it's not mentioned in the constitution and creates a new right declaring that anything conflicting with that is unconstitutional that it creates a circumstance where those who may hold traditional beliefs like something as important as marriage that they will be vilified as unwilling to assent to this new orthodoxy so senator i understand that concern and because there are cases that are addressing these sorts of issues i'm not in a position to comment about either my personal views or whether i'm not asking and i'm not asking you to um i mean justice alito in the in the oberfeld case wrote he said i assume those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes but if they repeat those views in public they will risk being labeled as bigots and treated as such by government employers and schools so the overfelt case we to nerd out with you again was was decided under a doctrine known as substantive due process correct if memory serves yes substantive due process and i think there might have been equal protection concerns and the court the supreme court has uh applied that some how mis fairly mysteriously by saying it's created by the confluence of the fifth amendment and the fourteenth amendment to the united states constitution but historically it's been applied in ways that seem to sanction explicit policy making by the courts for example the the lochner versus new york case which i know you talked to senator lee about in particular which it was a new deal case which set limitations on how long bakers could work in new york the supreme court struck that down and said it violated the right of free contract now lochner as you know was overruled 30 something years later but it's also been applied in a number of different circumstances for example it's been suggested that dred scott which treated slaves as chattel property was a product of substantive due process justice hugo black has criticized the doctrine of substantive due process as the arbitrary fiat of the man or men in power or the court declaring a law invalid because it shocked the consciences of at least five members of the court he went on to say this use of judicial review thus subverts the liberty of government by the people overturning laws and enacted by legislators legislatures who are ansible to the electorate rather than a majority of the supreme court finally he said finally for the purpose of my question he said the adoption of such a loose flexible uncontrolled standard for holding laws unconstitutional if ever it is finally achieved will amount to a great unconstitutional shift of power to the courts which i believe justice black that is and am constrained to say will be bad for the courts and worse for the country judge justice jackson why is it substantive due process analysis just another form of judicial policy making what you've suggested policy making is not in your lane or and you strive to be apolitical something i i applaud but why isn't substantive due process just another way for judges to hide their policy making under the guise of interpreting the constitution well senator the justices have interpreted the due process clause of the 14th amendment to include a substantive provision the the um the rights to due process they have interpreted that to me not just procedural rights relative to government action but also the protection of certain uh personal um rights related to intimacy and autonomy they include things like the the right to rear one's children i believe the right to travel the right to marriage interracial marriage the right to an abortion the contraception treating uh treating uh slaves as chattel property i'm i don't quite remember the basis for the dred scott opinion but but i'll trust you that that's well the fact is is it not that you can use substantive due process to justify basically any result well the court whether it's conservative or liberal libertarian or conservative whatever you would like to call it's just a it's a mode of analysis by the court that allows the court to substitute its opinion for the elected representatives of the people and um and would you agree the court has um identified standards for the determination of rights under the 14th amendment substantive due process and who who gives them the right to to do that if it's not mentioned in the constitution where does the right of the court to substitute its views for that of the elected representatives of the people where does that come from well the court has interpreted the 14th amendment to include this component the unenumerated right to substantive due process and the court has said that um that the kinds of things that qualify are implicit in the concept of order ordered liberty liberty excuse me or deeply rooted in our nation's history and tradition those are standards that identify a narrow set of activities well judge judge the in the oberfeldt case uh justice roberts in his descent noted that the court invalidated marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis for human society for millennia so that was the basis for the institution of marriage is the practice for millennia and the recognition that marriage was between a man and a woman now don't get me wrong i'm not arguing the merits or lack of merits of same-sex marriage i believe the states and the elect and the voters can choose what they will and that's their prerogative and i think that's legitimate but when the court overrules the decisions made by the people as they did in 32 of the 35 states that decided to to to recognize only traditional marriage between a man and a woman that is a act of judicial policy making is it not senator the supreme court has considered that to be an application of the substantive due process clause of the 14th amendment right and it doesn't the scot the constitution doesn't mention anything about substance when it talks about due process the fourth 14th amendment and the fifth amendment don't talk about substantive due process it talks about due process of law correct correct well one of the things that concerns me is here is an example of the courts finding a new fundamental right that is mentioned nowhere in the document of the constitution that's the product of simply court made law that we're all supposed to salute smartly and follow because nine people who are unelected who have lifetime tenure whose salary cannot be reduced while they serve in office they did they decide five of them decide that this is the way the world should be what other unenumerated rights do you believe exist and how could we possibly anticipate what those might be for example the ninth amendment says the enumeration in the constitution of certain rights shall not be construed to deny or disparage other rights retained by the people which suggests to me that their other as yet unidentified rights out there and somehow some someday some court is going to tell us we've identified an unenumerated right and we're going to reject the right of the american people to determine what the policies ought to be as regards that right because we the nine people sitting on the supreme court have decided we've discovered a new unenumerated right and it shall be the law of the land and no legislature can pass any law that conflicts with it what other unenumerated rights are out there or can you say senator i can't say um it's a hypothetical that i've not i'm not in a position to comment on um the the rights that the supreme court has recognized as substantive due process rights um are established in in its case law but your honor this is not a trick question oh i understand okay i'm just not i'm just not in a position to speak to them but can you understand why why ordinary folks wonder who do these people think they are and where does this authority come from i think the authority comes from we the people that's the source of legitimacy of government but when the courts decide to identify an unenumerated right and negate anything that conflicts with it can't you see how they might just might feel that this is illegitimate or a sort of policy making that you that you have disavowed by saying that you don't want to make policy you want to stay in your lane can you understand the concern absolutely senator i do understand it and how do you and how because i believe the court's legitimacy is very important that's why i agree with justice breyer that notwithstanding what anybody else says that that should be an aspirational goal of the judges because we're all concerned about the legitimacy of our institutions and particularly i would say the institution of our judiciary so how do how do you as a judge when you are approaching your decisions how do you try to avoid being seen as a policy maker by embracing doctrines like substantive due process which is essentially gives judges carte blanche to do whatever they want well senator i've not had that particular situation but i do i have a methodology that is designed to avoid my importation of policy perspectives um the judges are constrained in our system that's part of the constitutional design and so in all cases i am looking neutrally at the arguments of the parties and presumably in a case like this there would be arguments made on both sides of the issue your honor if you'll forgive me yes one one reason um i think the supreme court's different is because in your previous capacity as a trial judge of course you were bound by circuit court precedent and on the circuit court you're bound by the supreme court president but as a member of the united states supreme court you will be bound by nothing you will be unaccountable to the voters and so you said you can well respectfully senator i mean yes so you're not going to be able to find the answer in some law book somewhere you're going to be presented with a case and the argument's going to be made this is an unenumerated fundamental right and the voters whatever they've said is irrelevant because we five members of the supreme court are going to decide what the law of the land should be and anybody who disagrees with us will be labeled a bigot or be accused of discrimination even if those their beliefs happen to flow from sincerely held religious conviction like the definition of a of a marriage between a man and a woman but you've already told me that you unders you see why the this is a concern i see why it is a concern and i would just say that although the supreme court is not you know bound in the sense of having to apply prior precedent there is starry decisis in our system there are now standards in the starry decisis world that the supreme court applies when it when it's asked to um well thank goodness the supreme court has been willing to revisit its precedent or we'd still be living with plessy versus ferguson or dred scott you know one of the things senator whitehouse and i agree on is he he and others frequently ask nominees for the supreme court do you think brown versus board of education has settled law and believe it or not some nominees won't answer the question i mean it boggles the mind i tend to think that nominees from both parties tend to be over coached and not uh and told you can't be if you don't answer the question you have a better chance of being confirmed but some of these things are obviously settled and i wish we had a more candid conversation about the the source of the power that unelected lifetime tenured judges have to basically rule rule america when they decide that something is an unenumerated fundamental right let me uh in the minute 48 seconds i have asked you about a specific case you remember u.s versus brown this was a guilty plea and where you were asked to assess a punishment and at one point in you in the proceedings you said i'm going to state for the record however that this court has a long-standing policy disagreement with the criminal history guidelines with respect to the application of the two-point enhancement do you remember when you said that i don't remember that particular statement how is that policy disagreement different from other disagreements ah where you said that you're not gonna get out of out of your lane you're not gonna get into the policy lane yes senator um the supreme court in the sentencing realm has made the guidelines the sentencing guidelines advisory they used to be mandatory judges used to have to calculate the guidelines for sentencing purposes and then essentially apply a sentence within the guideline range in a case called united states versus booker the supreme court determined that the guidelines were are advisory now so they don't have to be uh applied in every case you have to calculate them but judges have more freedom to give effect to congress's um uh the various provisions in the statute related to sentencing in booker and in the in its progeny the supreme court made clear that judges at sentencing judge i only have i only have a limited amount of time so um let me just close on one other question and forgive me for interrupting you but but there's such a thing as a judicial filibuster too sorry i was trying to get to the point let me just let me just ask i don't know you well but i've been impressed by our interaction and you've been gracious and charming why in the world would you call secretary of defense rumsfeld and george w bush war criminals in a legal filing it seems so out of character for you senator you may have been talk are you talking about briefs that i or habeas petitions that talking about when you were representing a member of the taliban and uh the department of defense identified him as an intelligence officer for the taliban and you referred to the secretary of defense and the sitting president of the united states as war criminals why would you do something like that it seems so out of character well senator i don't remember that particular reference in i um was representing my clients and making arguments um i'd have to take a look at what you what you meant i did not intend to disparage the president or the the secretary of defense well wart being a war criminal has a huge ramifications you could be subject to the jurisdiction of the international criminal court and hall before that international tribunal and tried for war crimes so it's not a casual comment i would suggest thank you thank you senator cornyn senator whitehouse thank you chairman judge jackson good to be with you again good to be with you um i know that a great many people are extremely proud that you are here today um i don't know that there are a great many who are prouder than bruce celia and so with your permission i'll take a moment and offer into the record some of his comments about you and then maybe give you a chance to reciprocate with a word about him but yesterday in my opening remarks i mentioned the boston globe article in which judge celia said that about you she has absolutely everything you would want in the supreme court justice she has all the tickets in terms of her intelligence her education her work experience and her demonstrated judicial temperament i see some of the same qualities in her that i saw in ruth bader ginsburg humility the ability to inspire others in a quiet way not at the top of her voice some people have the capacity to inspire by example in the force of their reason intellectually she is very smart very well informed and she is very hardworking and focused she gets the big picture masculine arms consent that the globe article be admitted to the record without objection but he didn't stop there your honor he went on to wpri uh a local station in rhode island and said about you she's worked hard she deserves it and i literally don't think that the president could have made a better choice i think she'll be a terrific addition to the supreme court she listens to what other people have to say but makes up her own mind she has a very scholarly approach toward the law she has a very winning personality she's kind to the people she comes in contact with and she has a certain humility that i find very attractive in people may ask unanimous consent that the statement from uh wpri be put into the record without objection um judge tell you went on law 360 and said um i sense that she you she has the same sort of desire to achieve consensus and a pragmatic streak that has characterized some of justice breyer's work i think she will be quite balanced i have not found her to be an ideologue she understands what the job of being a judge or being a justice is she wants very much to do it in the right way and she will bend her considerable talents to that direction and won't get distracted by any extraneous considerations or side issues i think the country will appreciate that and will appreciate that this is a woman who understands the imports of the position and will give 100 percent of her talents every day to do that job in the right way and in accordance with her oath of office unanimous consent that that be put into the record without objection and then finally the providence journal our home state newspaper uh katie mulvaney uh in an interview uh judge celia say i think it's a terrific appointment she's a very thoughtful person and wonderfully well qualified i'm happy not only for her but for the whole country she listens well she gets the whole picture has great respect for the rule of law i think she's got the whole package unanimous consent that that article be put in the record that objection so any reflections on judge celia oh well that was very moving thank you senator for reading his lovely remarks it's exactly who i know judge celia to be always eloquent always insightful and i'm so flattered by his [Music] by his admiration because he is someone that i have admired my entire um professional life he he taught me how to look at issues very carefully how to write in a lot of ways because of the way in which he's so fastidious with his opinions and he's been an extraordinary mentor and role model for me well we are very proud of him in rhode island as you know he's on senior status and when he went on senior status we're able to recommend the rosary thompson to succeed him of whom i think rhode islanders are equally proud and she has now gone on senior status and mr chairman i hope we'll be considering shortly an equally impressive biden nominee for for her position um on an unrelated subject and um it relates to yesterday's activities uh you can relax a moment your honor this will not be a question for you but a lot was said in this room yesterday about dark money by our republican friends to the point where one of the headlines about yesterday read republicans hammer dark money groups and i'll be the first to concede that there is dark money on both sides and i hope very much we can get rid of it on both sides shortly by legislation but there is a difference i believe between a dark money interest rooting for someone and right-wing dark money interests having a role in actually picking the last three supreme court justices now how do we know that they had a role in doing that well we know because everybody involved said so it was pretty straightforward stuff president trump said we're going to have great judges conservative all picked by the federalist society that's pretty plain uh senator orrin hatch former chairman was asked some of the was said some have accused president trump of outsourcing his judicial selection process to the federalist society i say damn right the co-founder of the federalist society said that the administration is relying on the federal society to come up with qualified nominees and then don mcgahn who ran the operation for trump in the white house said i've been a member of the federal society since law school still am so frankly it seems like that role has been insourced so there's pretty clear and pretty broad agreement that that selection process took place out of the public eye and it appears to have been informed heavily by dark money interests they were not alone in saying this here's laura ingram on fox news concerned about abortion cases coming up before the court we have six republican appointees on this court after all the money that's been raised the federal society all these big fat cat dinners if this court with six justices cannot do the right thing then i think it's time to circumscribe the jurisdiction of this court that's the way to change things finally so we have people who are in a position to know what was going on behind the scenes describing the six republican appointees on the court who got there after all the money that has been raised the federalist society and all these big fat cat dinners and threatening that they don't do what she considers to be the right thing they'll be punished by circumscribing the jurisdiction of the court that's pretty big talk but it's backed up by pretty big dollars if you go back to before this enterprise got underway the uh money that came into the federal society from what's called donors trust which has been described as the dark money atm of the right a koch brothers affiliated operation back say in 2002 it got five thousand dollars no big deal by 2019 when this operation was in full swing it got seven million dollars we don't know who the real donor was because that's the job of donors trust is to de-identify the donor to launder the identity off the donation so you can't connect the dots any longer but seven million dollars i think is quite a lot of money and unfortunately the federal society was not alone right down the hallway is something called the judicial crisis network its offices on the same hallway of the federal society in the downtown washington building although jcn's website and tax filings list a mailing address at a different location an address shared by multiple companies and right down that hallway at that judicial crisis network there's even more money pouring and here's how much poured into the last three nominations via the judicial crisis network 21 million dollars related in time to the gorsuch nomination 17 million dollars to the kavanaugh nomination 14 million dollars to the barrett nomination and of course we don't know who the actual donor is could be the same donor who knows and because we don't know who the donor is we don't know what business they might have had before the court and i think it matters when people are seeking to influence the makeup of the court that the public understand what business they may have before the court and anonymity hides all of that and they didn't stop with the trump nominees they got up on the air a dark money group using dark money to accuse biden's supreme court nominee at that point a player to be named later judge jackson had not been selected at this point of being a tool or stooge of liberal activist dark money this is a screenshot from their advertisement paid for by the judicial crisis network so it's worth understanding for a moment what the judicial crisis network is and where it lies and it lies in a network of organizations the um prevailing way that political mischief is accomplished these days is with a paired 501c3 and 501c4 organization the 501c3 gets the tax deduction the 501c4 gets to participate in political activity and sure enough there's an 85 fund and a concord fund that are twinned together as a 501c3 and 501c4 organization and they filed under virginia corporation law to operate under what they call fictitious names that's the term of law under which they file fictitious names and there's the judicial crisis network one of the fictitious names of the conquered fund it has a parallel judicial education project that is a fictitious name of the 85 fund if you're interested in voter suppression you can move down to the honest elections project action another fictitious name and it's 501c3 twin the honest elections project and they've even got new ones that are less active free to learn action and free to learn so these are eight organizations that are essentially one organization as lawyers we think from time to time about piercing the corporate veil that's corporate veiling that you could pierce with a banana and it runs back and forth with three groups called crc advisors crc strategies and crc public relations that take and send money to these organizations as part of the sort of planning element you might say that crc advisors crc strategies and crc public relations this trio is the command center and this is the operational torso of the creature so i show this all because it shows considerable effort when somebody goes to that much trouble to create that many organizations to hide how much money they've spent to control the nomination process to the court and it's no small amount of money in the original washington post research they pegged it at 250 million dollars further research led to testimony in my court subcommittee that um the number was actually 400 million dollars and we have a recent report that we have in fact checked that the number is actually even higher than that so i may amend this number upward once we're done with our fact checking 400 million dollars funding conservative activists behind the scenes campaign to remake the nation's courts that operation is a very different thing than a group rooting for somebody and i want to make sure that that difference is clear since our friends on the republican side of made dark money such a big focus of their attention already there is a drastic difference between rooting for somebody and controlling the turnstile that decides who gets on the court controlling the funding of the political campaigns that pursue the folks on the court and actually once you get on the court we're working now with the judiciary itself to try to clean up the mess of that same anonymous money appearing before the court through phony front groups that file amicus grips and little flotillas or if it's an important enough case in a full armada of dark money-funded front groups so that bears not at all on this nominee but because this is a very public forum and because we've heard all that so-called hammering of dark money groups i wanted to make sure that it was clear to everybody how this game is played and what the difference is in the way the two sides play it the um so now back to our business judge jackson um you have served as a um trial court judge i have you have served as an appellate court judge i have and with any luck you are on your way to serve as a supreme court justice now one of the things that is very different about trial court judges and appellate court judges is what their role is with respect to fact-finding it's my belief from my time spent as a practicing lawyer that the role of fact-finding belongs at the trial court level that's where you can look the witnesses in the eye that's where the evidence can be amassed that's where the trial judge has the responsibility of sifting through it uh if there's a jury then the jury of course is the ultimate fact-finder but if you're in a non-jury trial the trial judge is the fact-finder then the case goes up on appeal and it comes up with a record a record of fact in the case and in my view that record of fact that comes up to the appellate court is actually a constraint on the power of the appellate court to go wandering off the court is obliged to consider the appeal based on the factual record that was adduced in the district court so you having lived in both of those houses the trial courthouse and the appellate court house tell me a little bit about what that change meant to you as you went from being a trial judge to an appellate judge thank you senator it is a really big difference as you mentioned at the trial court you are on the ground level parties have filed the case you have all of the issues usually at the trial level because you'll have the complaint if it's a civil case and there'll be a lot of litigation about the development of the facts in the case in civil cases you have a period of discovery in many cases that is really about the development of the record what actually happened um in this case sometimes there's even a trial um and that too is a part of the development of the facts in the case because the jury will be charged with the responsibility of determining what happened who's guilty for example if it's a criminal case or who's liable if any if it's a civil case and sometimes there are even questions presented to the jury that they have to determine the facts at the appellate level as you said there is um already a record and the court is looking primarily at the law the legal principles that guided the decision below based on the factual record and importantly at the appellate level there are standards of review that the court of appeals applies when it decides how to review whether or not to reverse or affirm the judgment of the lower court and i've been very mindful especially as a trial judge of the standards of review when i was prepping lawyers for oral argument before appellate courts i would often say please don't quarrel with the facts unless you have a knock down case because if you want to get the appellate court to relitigate the facts you're up against the harshest standard of review available the clearly erroneousness test and clear error is no small thing outside of that narrow finding by an appellate court that somehow the district court got it wrong filtered through that clear error standard are there other circumstances in which it's proper for appellate courts to do their own independent fact-finding outside of the record of the case that they're reviewing i am not aware of any uh there might there may be but um in my experience the fact-finding is done at the trial level the court of appeals only looks at facts under standards like clear error um and so therefore the record is usually set and established by the time you get to the court of appeals yeah and i think that um it's actually one of the constraints on the judiciary that they don't get to go and do free range fact-finding they have to be tethered to the record of the actual case before them it's related to the case or controversy requirement that is correct senator and in that regard um civil juries are i think um something that americans have prided themselves on for a long time you go back to the colonial days and the civil jury was one of the immediate imports from england every colony set up civil juries when the crown tried to interfere with the civil juries in the colonies it became castle's bellai for the revolution it was in the declaration of independence of what the king had done wrong that offended the colonists and caused the revolution and the documents around the founding and around the creation of the constitution all reflect passionate belief in the importance of the jury including the civil jury which as you may know from your experience in the trial court is getting to be a rarer and rarer creature um and in fact there are trial judges who have written about how do we serve how do we keep the civil jury alive and i'd like to hear your thoughts about whether there's more to the civil jury than just a fact-finding appendage of the trial judge whether it was seen by the founders and whether it belongs in our constitutional structure as a part of the responsible self-governance that was established by our constitution uh yes senator it is part of our ordered liberty it is a mechanism by which citizens can participate in governance they can be called upon by the court to [Music] sit in judgment of other people in the community and it was something that was a part of the democratic vision of the founders from from the very beginning blackstone was one of the legal experts um who the early lawyers of the united states relied on i suppose there were lawyers who had nothing but blackstone's commentaries in the bible on their shelf and blackstone described the jury as having a role to make sure that the power and clout of big and powerful interests could be protected against that it was a refuge from the power of what he called the more powerful and wealthy citizens there was long experience in government of corruption whether it was getting to a chief executive and getting them to do things your way for improper reasons or whether it was controlling a legislature a legislative body but the jury is fundamentally different because they don't stick around they're there for one case and one case only then they disappear you can't fix them so that they decide your way over time and if in that one case you try to fix them you've likely committed a criminal offense tampering with the jury is a pretty significant thing is it not it is if anybody tampered with the jury of yours how would you respond oh very seriously good so the jury lives in a protected environment from a lot of the political power and the danger of corruption that the elected branches often suffer and do you have thoughts about the importance of the civil jury in that regard as the bastion where people can go where they'll get a square deal from regular citizens and can stand toe-to-toe with the lawyers for however big or mighty an opponent they may have with almost no danger let's put it that way little danger lesson danger of the fix being put in well certainly the jury system is designed in that manner that citizens are brought in from the community um when we pick juries we ask as judges do any of you in this pool have any connection to anyone you know i've i've so you screen them for conflicts of interest you screen them heavily that's part of the what we call the void or the sort of we don't do that with people who come to congress well in in the courts they come with their conflicts of interest often right on their lapels sometimes hidden in their back pockets but jewelry is not so correct not so and in fact that would be a reason to exclude someone from the jury and we even ask um you know do any of you as judges we say do any of you know me um and if you do you'll have to let me know and and be removed because the idea as you've indicated is to get people from the community who have no connection to the case and can hear the evidence that's presented in the courtroom and the arguments of of the lawyers and make a decision um that is unconnected to any sort of personal interest they might have protecting the jury against the dangers of bias or corruption giving the parties before it a clean and fair shot yes senator so with any luck you will be on the supreme court before long and i hope you will remember all of this because it seems to me that the court has been on something of a campaign to deprecate and diminish the civil jury including by allowing big corporations to build into their standard contracts buried way down in the fine print that folks often don't read and even if they do read it they'll never get through the phone tree to find somebody to complain about it try to strike it out of the contract it's a take it or leave it adhesion proposition and they build into that that you've given up your right to a jury your seventh amendment right to a civil jury it's right actually in the bill of rights and i cannot think of another right that the court pays less attention to or throws more readily under the bus if you read the mandatory arbitration cases there's rarely a mention of the seventh amendment and it seems to me that it flies in the face of the purpose of the jury to allow the citizens of the greatest power and wealth who are today corporate citizens to actually be able to take on the ability on their own through contracts that the customer has no chance to negotiate the employee has no chance to negotiate to actually take away that right that was at the heart of our founding without a squeak of objection or even notice by the court and i think it's created a dramatic shift in power towards big corporations and i think it has harmed innumerable employees and customers so i am extremely happy that you have been able to answer these questions with such clarity about the role and the history and the value of the civil jury and its importance not just as your fact-finding adjunct but as an important part of our constitutional structure part of our structured liberty as americans i wish you well i'll see you again tomorrow and uh thanks so much for your patience with all of us here today thanks senator whitehouse and let me just say a positive word to follow up this committee in the last few weeks has passed legislation signed into law by president biden which in cases of sexual harassment provide that individuals who are complaining have the option of a jury trial despite efforts to steer them into mandatory arbitration it is the decision of the complainant the venue that they will seek i think that is a step in the right direction and we passed out of this committee on a bipartisan basis and so i'd like to ask everyone to consider returning promptly at 1 30 for the much anticipated senator lee of utah the senate judiciary committee is now on a lunch break if you're keeping track we've had seven members of this committee ask questions 15 more to go they each get a half hour today another round tomorrow 20 minutes each you see their senator kennedy of louisiana talking with the nominee and it looks like a young friend this is a washington post special report i'm libby casey with me right now james homan and amber phillips james one of the privileges of being a member of the senate is you do get to make some introductions sometimes whether they're constituents or someone you know uh at one of these historic moments yeah and it ends up being you know for that little guy a really memorable life experience that he was there for history we've been talking so much about ukraine obviously hugely consequential but assuming that she gets confirmed judge brown jackson was born in 1970 she could be on the court for 40 years she will be a very historic figure in her own right james let's talk about uh what we've heard so far today uh what's standing out to you in terms of lines of questioning and tone i've been struck that uh the judge has established herself as an independent jurist she has been opaque as we've come to expect during these kinds of hearings uh you know dodging a lot of questions uh in in avoiding going into specifics we saw that uh during her back and forth with john cornyn from texas but uh she has you know distanced herself somewhat from stephen breyer um even though she calls him my justice she is i think shown rather than just told that she is her own judge she has unique experiences that uh no one else on the court has and so some of that is a mix of bio uh and some of that is a mix of experience and so i i've been struck by the civility of the tone uh with the exception of some of the lindsey graham back and forth you know this we're now we've heard from seven of the 22 senators and uh i think that there will be a less civil tone in the afternoon but so far uh yeah no one has really landed a punch or in any way sort of changed the trajectory of this confirmation process amber is the question whether the trajectory can be changed what are senators trying to achieve here today on both sides of the aisle yeah well for democrats today is all about helping judge jackson defend herself and we saw that within the first few minutes the chairman of the senate judiciary committee dick durbin opened not with his own talking points but with rebuttals to what republicans were saying so he elevated these republican attacks and then one by one tried to guide judge jackson to help knock them down and that's been a recurring theme every time a democrat speaks some of those attacks that they democrats and judge jackson as well immediately tried to knock down against her were these questions about her judicial philosophy you know they talked at length about how she has a record of 10 years as a judge how could her judicial philosophy or the way she approached cases be vague as senator cornyn in particular accused her of yesterday she talked at length about being a public defender and explained what that is that you don't get to choose your client and that allowed her to very pointedly and i thought in a politically wise approach talk at length about her ties to police and she said i'm paraphrasing here but i understand what it's like to have family members go out in the line of fire not sure if they're going to come back and to me the value of law enforcement is a very real thing it's not a political slogan and of course child porn sentencing libby that was a big big attack against her elevated in part by one senator on the committee senator josh hawley but it got a lot of attention in part because it was so scandalous and eyebrow-raising it turns out that these attacks are misleading the washington post glenn kessler has a great fact check on this i urge everyone to go read but today judge jackson for the first time got to approach that and she talked about it in a very direct way she said i'm a mother to to come across these cases and see these photos is really painful and then she explained how she once sentenced the defendant who was weeping because he was going to jail for a long time for some of these crimes and she told him about a victim who was so traumatized from her experience she can't go outside so judge jackson tried very very hard with the help of democrats to distance herself broadly from these soft on crime attacks most notably from these accusations that she's soft on sentencing child sex defenders amber we have that tape why don't we play that and as you set that up for us you know you mentioned and i want to be specific here that senator hawley was just not questioning the sentencing that she had doled out in some cases she was claiming that the judge had a history of quote letting child porn offenders off the hook and that's in part what we saw judge jackson push back against so forcefully and poignantly as she described the experience of being a judge let's watch some of her response when i look in the eyes of a defendant who is weeping because i'm giving him a significant sentence what i say to him is do you know that there is someone who is written to me and who has told me that she has developed agoraphobia she cannot leave her house because she thinks that everyone she meets will have seen her will have seen her pictures on the internet they're out there forever at the most vulnerable time of her life and so she's paralyzed i say to them that there's only a market for this kind of material because there are lookers that you are contributing to child sex abuse and then i impose a significant sentence and all of the additional restraints that are available in the law these people are looking at 20 30 40 years of supervision they can't use their computers in a normal way for decades i am imposing all of those constraints because i understand how significant how damaging how horrible this crime is that was in the first round of questions with our very first questioner the chair dick durbin providing essentially a friend friendly sounding board amber for these very tough issues and once the republicans are critical on did the judge dispatch with this how likely are we to see this hammered repeatedly throughout this hearing oh we'll see it again senator josh hawley comes up later today and he's made this his issue and republican operatives i talked to say they want him to go after this they think they think this is a good idea but on the facts i mean this is such an outlandish claim by senator josh hawley the way he's making it that it was pretty easy for judge jackson to knock this down today it's it defies belief to argue that one of the most prominent judges in america right now is somehow soft on child porn defenders and therefore may be somehow supportive of this horrendous practice that's just not the case and not what her records show so it was a pretty easy thing for her to knock down i think what we could see come up later today is this debate that judge jackson was at the center of and it's a debate still going on as our colleague glenn kessler explains very well in this piece about this legal nuance how much do you punish people who are in possession of these images versus who created and distributed them and judge jackson got at that today where she said listen we're adjusting our sentences in order to change for these circumstances the fact that computers allow people to receive images and should they be punished the same amount as someone who's creating these images and she said and i'm quoting but it says nothing about the court's views of the seriousness of these events so she was trying to say if i sentence someone to less than the federal guidelines indicate it's because there's this broader debate about how much someone in possession of these images should really be punished whether these punishments are too extreme but that doesn't mean that's my view it means i'm trying to follow these guidelines within this legal debate about this very delicate question that has a lot of nuance and so i think that's an avenue we could see senator josh hawley and perhaps some other republicans explore later today thanks so much amber let's go to rhonda coleman who's live on capitol hill rhonda rondae i'm sorry you're in the news you're on capitol hill yes okay thank you rhonda i'm so sorry i thought somehow you transported back to the newsroom i i just i miss having you nearby um rhonda you know i want to talk more about sort of how this gets at the broader republican attempts to talk about democrats as being quote soft on crime or portrayed this judge the nominee of president biden as someone who may be soft on crime but as we've been talking about of course she keeps referring back to her law enforcement connections tell us more about some of the the politics at play here behind the scenes well both democrats and republicans know that this hearing is is coming before a midterm election it's coming during a primary season right now so they're well aware that people and voters are watching this and following uh they'll be looking for the clips on twitter and social media through the day to see what were the highlights so they're very well aware that they can use their time for those political purposes and what we're seeing is of course republicans follow some of the themes that they brought up in their opening statement yesterday we're also seeing perhaps some strategy from the democrats and this is not unusual both sides prepare extensively for this nomination process i remember covering the amy koenig barrett hearing and i remember democrats were preparing in in terms of how they were lining up their questions they're they're aware of who's going before them and who's coming after them and you're saying that uh two play out today for instance in that last exchange that we just watched with senator whitehouse he spent most of his time going over the dark money issue claims by the republicans that this nomination was being pushed by dark money liberal groups and he put up the numbers of some of the interest groups on the republican side that put money toward the the last three republican nominated judges on the scotus bench and he was saying in comparison uh groups that may have advocated for judge jackson are not the same as those putting money into uh packing courts so that was something that had not yet been brought up that much today but he was trying to get ahead of it because you may likely hear that from other members of this committee from the republican side so it also speaks to this preparation that both sides are going through right now to ensure that perhaps not to derail the nomination when it gets to a poor vote but to get their their minutes in their time in and see if they get some wins for their side it gets very very political even though at this point today we we don't have a sense that a vote would fail her nomination would fail once it gets to the senate i want to play uh one of the questioners today this is republican texas senator john cornyn and he was asking judge jackson about her views and the role of the court in setting policy he was focusing specifically on same-sex marriage and the precedent that has been set from this court let's listen one of the things that concerns me is here is an example of the courts finding a new fundamental right that is mentioned nowhere in the document of the constitution it's the product of simply court made law that we're all supposed to salute smartly and follow because nine people who are unelected who have lifetime tenure whose salary cannot be reduced while they serve in office they do they decide five of them decide that this is the way the world should be rhonda senator cornyn's interpretation is that this was a discovered fundamental right and he was pressing the judge to identify any future fundamental rights tell us more and she answered by saying she can't get into hypotheticals that is not her place right now in this setting and as a judge um seeking the you know to be on the highest court in the land to get into hypotheticals or get into what she believes are fundamental rights and cornyn also pointed out that he was asking these hard questions because of course this is a lifetime appointment supreme court justices are not removed by voters every you know four or six years they're there for life the only way they can be removed is if they're impeached and that is incredibly rare so uh he was he was trying to get her to answer questions she followed some of the same uh the template basically that other justices who have been in front of this committee have followed by not delving into those those issues and getting on the record about things they feel are not their place james the exchange of senator cornyn was was interesting because he was sort of going through with her how in many cultures and traditions a marriage is considered between one man and one woman and then tracking from there and really questioning what is a fundamental right yeah libby that was a fascinating exchange because we haven't heard very much talked about uh same-sex marriage in the last three uh judicial nomination hearings for justices and you know neil gorsuch upset a lot of social conservatives like john cornyn when he actually endorsed some of the underlying findings about uh people's using kind of a textualist analysis of the constitution a baker's right to deny uh he said basically he supported non-discrimination statutes that were on the books that was quite surprising to a lot of people what john cornyn didn't say but what that exchange was really about in addition to what rhonda was saying was abortion uh you know dianne feinstein asked going in to the break is roe v wade a super precedent uh that that term was used in some of the previous confirmation hearings by republican picks to say roe is is in this category of super precedent because so many other decisions have relied on that underlying precedent notice notably judge jackson would not say that she considers roe a super precedent but she did say that she considers abortion and established right so john cornyn started his 30-minute round by saying were the justices right to overturn dred scott and plessy v ferguson plus eve ferguson is the 1896 statute that upheld separate but equal dred scott was the decision before the civil war that said that african-americans aren't citizens of the united states and therefore don't have standing to bring a case in court both among the most egregious black eyes in the history of the united states and both overturned by supreme court justices so essentially what cornyn is trying to do is uh get kind of lay the groundwork for what republicans hope will be the overturning of roe v wade uh when the supreme court wraps up this term in june but that's going to happen you know she's not the judge wouldn't be joining the court until after this term ends so she won't be party to that but it is obviously very relevant and one important way to think about the senate judiciary committee is that it really is as far as the senate's concerned the front line of the culture wars i want to go back and and play the exchange with lindsey graham uh he started his line of questioning by asking judge jackson directly about her personal faith uh let's listen how to how he dug into that on a scale of one to ten how faithful would you say you are in terms of religion you know i go to church probably three times a year so that speaks poorly of me or do do you attend church regularly well senator i am reluctant to talk about my faith in this way just because i want to be mindful of the need for the public to have confidence in my ability to separate out my personal views it turns out that senator graham's questioning took a bit of a turn amber phillips which we can talk about here because he then basically referred back to the last time we saw someone come before this body to sit on the supreme court judge amy coney barrett and he railed about how she was treated and asked about her faith i i want to give some context to that and then come back to you about this what he was critical of was senator dianne feinstein back in 2017 when amy coney barrett was before this committee to be on the circuit court feinstein asked about her faith let's listen to that i think whatever a religion is it has its own dogma the law is totally different and i think in in your case professor when you read your speeches the conclusion one draws is that the dogma lives loudly within you amber phillips that last line there has really become a rallying cry for conservatives yeah that's right so much so that when amy coney barrett came before the senate judiciary committee in 2020 democrats senator feinstein included stayed very much away from her catholic faith in fact it was republicans asking her these questions you know could you set aside your catholic faith well yes of course i could so that's the background what happened today was senator lindsey graham was one of the first republicans and one of the first really conservative republicans to talk to judge jackson and he started by asking her some uncomfortable questions and you could see she was like scooting in her seat going where is this going what is my faith how often do i attend church and then as you said libby graham revealed that he was purposefully asking her these uncomfortable questions to make a point to try to underscore that he felt that's what liberals did to conservative justices judges amy coney barrett in particular graham has a point you as that clip showed that uh you know their senator feinstein asked this question and it was an uncomfortable one for judge coney barrett it underscored perhaps that there should be questions about religion from senator feinstein's point of view and whether you're able to serve as a judge which our constitution says should be separated and so democrats stayed away from that but i think where republicans risk getting into trouble with the strategy and we should see more of it later today based on yesterday's opening statements is when they try to compare how justice kavanaugh was treated in his confirmation hearing or even clarence thomas for example with how democrats might be treating some of these republican nominees and and kavanaugh and clarence thomas in particular had legitimate allegations against them particularly of sexual misconduct and assault so much so in kavanaugh's case the fbi ended up doing a small investigation into this and so i think there's a difference between and and some reasons why some of these republican nominees had some really contentious hearings and you'll see graham and others try to muddy that point by saying democrats are just being unfair to conservatives period because they're conservatives you know amber there is some irony of course yeah intentional that even as he's trying to prove a point he is also putting her on the spot and putting her in a situation where she's not receiving a friendly question about her religion as amy coney barrett got in 2020 but essentially kind of a confrontational or i'm trying to pin you down get some specifics here situation yeah that's right libby and i noticed that throughout this morning that republicans understandably this is their line of attack are trying to pin her down as a liberal senator chuck grassley the first republican to talk to her said do you believe that the first amendment supports conservative speech as well as liberal speech that was an easy yes for her well what do you think about the second amendment is there you know is that defined as the right to bear arms yes that is we talked about senator john cornyn asking her questions about same-sex marriage and trying to get her opinion on that senator lindsey graham probed her about the war on terror in her work defending guantanamo bay detainees and so i think that's a running theme is that republicans are trying to pin her down as this liberal and not without cause she's been a judge and she challenged them and he said look at my rulings for the past 10 years i challenge you to find something that points me to the right or to the left but republicans point out and they're correct that liberal groups she was a favorite of she was the number one pick for liberal groups and so they're using that to try to find a way to somehow portray her as this uber liberal pick and give them a reason to oppose her in votes coming up as republicans decry partisanship i want to play a moment from yesterday's opening statement this is tennessee senator marsha blackburn and she posed a sort of series of questions to judge jackson who of course couldn't answer because this was a one-way conversation this was about her seat on a dc private school board and how she may rule on cases related to parental rights but let's listen to uh the line of questioning she or the line of issues that she gets at here you serve on the board of a school that teaches kindergartners five-year-old children that they can choose their gender and teaches them about so-called white privilege this school has hosted an organization called kindergarten and pushes an anti-racist education program for white families your public endorsement of this type progressive indoctrination of our children causes one great concern when it comes to how you may rule on cases involving parental rights that's from yesterday rhonda colvin we are seeing uh marcia blackburn really throw at the wall sort of every issue that has become sort of a hot button culture war issue of this moment and throw it at this judge that's right we saw that in her opening statement yesterday we'll likely see it come up again she is usually the last person the last republican to have a line of questioning if they go on the order of seniority so we'll be hearing from her probably late today but uh you are seeing that from republicans and that's what's kind of interesting about this nomination process typically both sides develop what their strategy is what's the issue that they feel is the vulnerable issue for the judge in front of them or the nominee in front of them for instance with amy coney barrett we heard democrats you know one after the other go after uh her views on abortion uh with the republicans this time we're not seeing just one issue that they're all coalescing around that that's going to be their strategy and and i have to wonder if it's because of the time we're in we're in this midterm season and it seems like republicans are using uh these types of questions not so much because they're big parts of judge jackson's background or her work record but more so because they are about issues that many conservatives may have very deep views about so we're hearing wedge issues like abortion we're hearing uh you just played the clip on critical race theory those are things that aren't exactly well represented in judge jackson's work record however they are issues that voters who are watching this will care about so members once again are know that they've got 30 minutes today 20 minutes tomorrow to get her on the record about things and usually clips go out emails go out to bases to to show how those particular senators ask questions so that sort of shows you the politicization of this process and i actually did some some research earlier this morning about the history of the nomination process and the fact that nominees come in front of the senate judiciary committee for such a long time we're talking almost about 20 hours between today and tomorrow and that was not always the case in fact it was 1925 when the first supreme court justice to be nominated by a president was in front of the judiciary committee that was because he was a sitting attorney general there was a little bit of a scandal after the the teapot dome scandal and president coolidge said you know senate judiciary fine you can ask him some questions for about five hours that process was something that senators really enjoyed and that is the template for what we're seeing today this marathon session of questions and of course with the advent of television the sessions have gotten a little longer a little livelier than they might have been back in 1925 but this is a very political process even when there are you know presumably votes for this nomination to go ahead through rhonda i love that bit of history and we heard senator leahy talking about just how many of these he's been through maybe when he's on his 40th these will run you know five days long uh with with four rounds of questions uh yet yet to be seen thanks so much rhonda coleman james i want to go to you uh back to this question of the cultural issues of the day right i mean if you were playing bingo uh on and your card was all of the the red meat issues right now for conservatives marsha blackburn would have hit all of them right are we seeing an evolution in what the driving issues are uh in terms of things they are bringing in here because she talked about masks she talked about critical race theory she talked about transgender children she mentioned the 1619 project she bingo is exactly the right way to put it libby she uh checked all those boxes uh you know ronda makes a good point about how television has changed these hearings antonin scalia famously smoked a pipe during his confirmation hearing which was wrapped up in a couple hours and he was confirmed unanimously the last supreme court nominee to be so voted out instead of these long hearings senators like marsha blackburn who's literally a former image consultant by background she's thinking in terms of youtube clips it's all about you know one getting booked on on fox news for her but two you know getting the the crt buzzword out there so that it it reaches a certain kind of conservative audience and she was very good at that in the house and it's one of the reasons she was able to win a competitive primary to get to the senate uh in it using these buzzwords helps just cast doubt especially in those opening statements where judge jackson didn't have the chance to respond uh even you mentioned a couple minutes ago libby lindsey graham's question where he said on a scale of one to ten how religious are you uh she didn't answer because that is a very uncomfortable question uh she wouldn't say whether she goes to church or where because it's an uncomfortable question and you know she explained that she doesn't want to look like she's tipping the scales of justice the point of that is lindsey graham was trying to make a point about amy coney barrett but he's also trying to do things to cast doubt on the nominee with their base of support and the reality is that republican voters historically and continually care more about courts than democratic voters it just is always more of a motivating issue for the gop based in the democratic base and that's why you see this kind of behavior from lindsey graham and marsha blackburn let's bring mariana sotomayor into the conversation marianna we do see these questions asked in order of seniority and so we are seeing these long-time committee members some of who whom have been around a long time senator feinstein senator leahy senator grassley kick off the questions let's talk about the tone that they are setting and how that is likely to change throughout the day yes absolutely you are hitting it right at the spot when you say that there is going to be a change there is going to be a change in tone and it's likely because you do get this newer generation if you want to call them that of both democrats and republicans those who have come in to the senate in just the last several years they haven't had you know multiple i think even like he has said he's had overseen a dozen different kinds of judicial nominations and of course many of those to the supreme court so for them it very much is a moment of weighing for some including those who are going to be likely running for president in 2024 you know getting those social media clips being able to make a moment and it's both a consideration for the democrats as well as the republicans but many of course will be watching those republicans those senators tom cotton josh hawley ted cruz they are ones that have you know more or less suggested that they have political ambitions in the future and yesterday we got a preview as you all have already noted of what they are likely to ask a judge jackson about many of those of course are those cultural issues that tend to inflame the republican base and that is very different like you said than what we have already heard from senators of course we've seen senator lindsey graham get a little heated on issues that he thought were of importance but they of course were trying to set a more deferential tone a a bit of more line of questioning that was more direct and serious and followed a theme for some of these senators including democrats as well you did also see a lot of those democratic senators playing some cleanup already from what uh some of those republican senators were asking on on multiple fronts whether it was things like campaign excuse me campaign finance reforms and pacs influencing the court as well as uh you know you also sell the chairman actually try and preempt a number of questions that senator republican senators down the diocese will likely be asking and really hammering jackson on things like of course you know holly is expected to ask her about what he sees as lenient sentencing um that she's given to those convicted of child pornography and also issues that come with talking about critical race theory something that senator marsha blackburn has already uh suggested that jackson has a record of doing which of course is is not the case so you definitely will expect should expect at least a change in tone and i should mention in terms of cleanup senator cory booker is someone to watch we saw him very much portray and talk about the importance of what it means to him as a black man the only black senator uh to be sitting on the diocese he is expected too to also play cleanup in some ways and point to her record as one that does embrace a lot of diversity um and and will be representative of the country as a whole in a different way than we've seen before mariana i know you've been tracking the congressional black caucus and how they are monitoring this and preparing any rebuttals or pre-bottles what is their assessment so far for the various members as well as the caucus itself as a whole as to how this is going well you know they've been actually pretty quiet today you've seen some tweets some statements come out in support and in some ways that is intentional we saw yesterday how they tried to preempt any attacks by pointing out that they will be the front line of defense if situations get ugly and you know i've been talking to a number of aides and staffers in the cbc and they themselves have said that you know they will be responding to the most egregious attacks with facts and you know it's worth pointing out the fact that they haven't been pretty quiet this morning you know you have seen some members tweeting um moments of support for her it's worth mentioning the house and these members are actually in their district so they aren't actually in the hearing room today and likely will see any responses through statements or interviews or through tweets but that does not mean that because they've been a bit quieter this morning that they aren't at the ready for any of these republican senators to you know respond to them any attacks that they see as potentially sexist racist um they have been planning for months to essentially brainstorm those lines of responses um to those attacks so if it gets to that point it is likely you will see a lot of more momentum coming out from the cbc to try and defend the first black woman who will likely sit on the supreme court thanks so much marianna let's go back to james homan now who is at our wall looking at how katanji browns jackson's history compares with the other supreme court justices that are currently on the court and this is a graphic made by adrian blanco and shelly tan our colleagues james and it is so useful talk us through it yeah libby it's a graphic that has gone viral because it it really demonstrates two things one judge jackson has an incredible pedigree that puts her uh you know in the very traditional ranks of people who would become a justice on the other hand she also is quite unique not only would she be the first african-american woman on the high court she would be the first public defender first federal public defender ever and in fact you have to go all the way back to thurgood marshall to have someone who had experience as a defense attorney she also would be the only justice on the supreme court besides sonia sotomayor to have district judge experience that's trial court judge everyone else you know the traditional thing with the exception of elena kagan is to be on a circuit court of appeals elena kagan was nominated by barack obama after serving as the solicitor general the government's top lawyer but being a trial judge really matters and judge jackson talked earlier today about how it really shapes the way you talk to defendants how you actually are making decisions about how long someone should be sentenced to jail she'd be unique uh in in that regard as well and like her mentor stephen breyer who she'd be replacing she's the only other person who served on the federal sentencing commission thinking through how long people should serve for crimes how mandatory minimums should be implemented on the other hand going back to that other part of her background of the very traditional pedigree you know she she went to a public high school which only three current members of the court should replace breyer who also did she noted that she'd be the first floridian ever to serve on the the supreme court uh she noted that her parents went to uh non-integrated schools that she was the first in her family to go to a school that had african-american and white students but then she went to harvard and harvard law school she clerked for briar who she'd replace and she then was appointed to the district court and then the circuit court and now would be on the supreme court and uh in in that traditional pedigree lane as well the only justice who does not have an ivy league degree is amy coney barrett who went to notre dame for undergraduate and law school or actually notre dame for law school another college for undergrad james that it's so helpful to see that if you can stay there for a minute i want to bring america to the conversation though too amber just talk about some of the things you can tease out of this and see where there are the similarities and the differences between this nominee and everyone else who currently sits in the court yeah well like we've been talking about yesterday and today and james just illustrated for us she has a different background than the traditional supreme court nominee in in modern days presidents tend to pick people if they have lawyer experience who have been on the other side of the courtroom maybe their prosecutors maybe their corporate lawyers um they've been judges although i think it was amy coney barrett correct has not been a judge ever she's the only one right now on the court and so biden is is he picks someone perhaps purposefully who has a different background than these modern justices and and we're not just talking about her being a black woman of course her career choices have been distinct she is someone who one of the few justices in excuse me judges in recent supreme court confirmation hearings who can say i chose this public service to be a public defender certainly that's how she's framing it i i went out there and i chose to be a living embodiment of the way the constitution is set up that everyone has a right to counsel whether they can pay for it or not because it's so different i think that's why we're getting so many questions from republicans on how that has shaped her career she has spent the better part of the morning saying it's made me more empathetic she talked about how when she worked with these criminal defendants she realized that they were really bitter that they just didn't understand what was happening to them they felt victimized by it and that shaped her role she said when she was on the other side sentencing these criminal defendants as a judge and she wanted to talk to them and say do you know what's happening to you do you understand why do you understand why society thinks what you did was wrong and she said i wouldn't have done that probably as a judge if i hadn't been a public defender and amber you know i want to go back to the to the graphic that that james has there it was elena kagan that didn't come from the bench james um amy coney barrett you know went through that process this you know the the confirmation process with the senate and everything else but there are so many uh paths that one can take to the supreme court within a box right there's only so many routes you can go yeah uh absolutely and i should add amy barrett went to rhodes college in memphis but it there is a very traditional background and the reality is that traditional box until 50 years ago was white christian men and uh that has has changed dramatically but it still is you know the ivy league law school remains a major calling card uh and that was something that even though joe biden didn't go to one of those schools he cares about deeply you know he was the he likes to tell people that he's the first president since martin van buren to have chaired the senate judiciary committee he went actually chaired the uh the the judiciary committee for the hearing for justice thomas and in justice breyer so he has been through this process a lot he cares about a lot of these uh traditional backgrounds but he also is you know not he's very proud to have nominated the first african-american woman to be on the high court it also was a campaign promise uh that that he would do this he made it in order to get jim clyburn's endorsement to win the south carolina primary rhonda colvin let's talk about what is in store for the rest of the afternoon and how long this day may stretch talk to us about what's to come well we aren't exactly halfway through yet we're still a couple senators away from being at the halfway point this committee has 22 members on it they each get that half hour today 20 minutes tomorrow so we can expect a few more hours more than a few more hours this will probably go into night time we are expecting the committee to perhaps even take a dinner break because they'll be here for so long so we'll likely hear more of the same some of the same themes that we have been talking about and hearing uh you're probably going to hear some of those so-called fire brands on the republican side who are readying their lines of questioning to go underway shortly so it's still very much a long day it just it shows you that this process is something where senators are at least taking seriously their 30 minutes in terms of keeping with that length we haven't seen too many of them just do a few questions and then move on to the next senator i don't know if that will be the case tomorrow of course this is her fourth time in front of this committee so she's already been scrutinized at a certain level before for some of her previous jobs but of course this is a lifetime appointment and these senators want to appear to have done their due diligence so again it'll be a long day and go into the evening lindsey graham is one of the people who has supported her in the past rhonda so it's interesting because as he was raising concerns about guantanamo prisoners for example today this was on her record before when she's been before him and this very committee yeah that's right she's faced some of these same questions before as well and you know that that's one thing that's really interesting right now to see when we do get to that floor vote uh democrats are they're hoping for a bipartisan vote margin but i'm wondering how bipartisan will it be and are you going to see some senators who supported her in the past for these other confirmations and don't vote for this time around i suspect that we might see that so that's that's going to be very interesting i know yesterday i was asked by one of our colleagues what am i looking at for this week uh what are some things that they should be looking for and i'm like i'm already thinking ahead to that floor vote and looking at the margins to see who supported her before and who didn't now and why was that [Music] marianna as we've talked about judge jackson is trying to show that she is in line with what other nominees who've come before this body have done have have in their record but she is also showing her some of her individuality some of the ways that she does stand out with her work on the sentencing commission with her work as a public defender how does she capitalize on those without having them turn into liabilities by republicans yeah you know it's been interesting to just see her personality every single judge who turned justice who comes before this committee really has shown their own personality at different points in time of course pointing to their record um what they are proud of and and the moments that you know they at times did face a harder questioning from from senators and i've been texting sources both republicans democrats mostly on the house side who have been tuning in here and there and one of the things that is a common thread is the fact that they say that she is coming off very confident very knowledgeable in her own record and of course there are times where she and and other uh judges now justices in the past have abated questions um and she has pointed to to those moments um especially when it came to the question on court packing she noted how um previous um justices have also said and at least skirted the question saying that it is you know a question about policy she's not there to determine policy and that is in some ways how she's tried to skirt um any of those questions that have come forth by republicans um but that of course will not stop republicans further down the line in the dice to ask similar questions or at least try and pressure her to answer in some way or the other um but you know it's going to be interesting to see how that her own demeanor keeps up as same goes with these senators because it is a long day ahead likely go into the night time and we'll see how that comportment can change or how she continues to reflect on her own record james human talk to us about some of the qualifications that members of this committee have we often see lawyers join the judiciary committee although not always uh but how do they line up with that comparison chart that you were showing us earlier yeah you know chuck grassley was actually the first chairman of the senate judiciary committee in u.s history to not be a lawyer by background one of the things i'm kind of looking forward to this afternoon is that mike lee who's going to be the first senator to ask questions here when they come back from their lunch break and ted cruz who i believe will be the republican senator who follows lee after a democrat is in between both clerked on the supreme court and they both love to talk about it ted cruz always makes a joke about playing basketball at the supreme court when he clerked for william rehnquist and uh jokes about how it's the highest court on the land and gets uh fewer and fewer laughs every time he tells that story before this committee uh but they'll they use it to establish that like katanji brown jackson they understand the inner workings of the court and to try and kind of give themselves some gravitas and credibility as they level what will be tough questions you know we have seen some members of of the house come over here from the congressional black caucus uh james it looks like uh it looks like bob congressman bobby from illinois who's retiring uh he uh he was the he's the only person barack obama ever lost to obama challenged him in a 2000 democratic primary uh he's uh kind of a senior statesman of the congressional black caucus we can we can nerd out about what other members of the house we see later on let's go back to chairman durbin during the break judge jackson earlier senator cornyn said that you had called former president george w bush and secretary of defense donald rumsfeld a quote war criminal unquote i noticed a little surprise in your reaction and i was surprised by the allegation during your service as a public defender you filed several habeas petitions against the united states naming former president bush and former secretary rumsfeld in their official capacities you were advocating on behalf of individuals who argued they were civilians wrongly classified as enemy combatants of the united states and your filing was part of your professional responsibility to zealously advocate for your clients in those petitions the individuals raised more than a dozen claims for relief one of which was an allegation that the government had sanctioned torture against the individuals which constituted war crimes under the alien tort statute the alien tort statute allows courts to hear cases for alleged violations of the law of nations or the treaties of the united states apparently this is what senator cornyn was referencing so to be clear there was no time where you'd call president bush or secretary rumsfeld a quote war criminal close quote no thank you that was correct thank you very much we now recognize senator lee thank you uh mr chairman thank you judge jackson for being here i want to talk uh today about some things you you heard about yesterday there was a lot of talk from members of this committee about judicial philosophy i want to talk a little bit about what that means and and why it's important we'll start with what it means at least to me one of the things that you you heard from a lot of members of the committee whether they couched it in terms of judicial philosophy or not relates to the idea that justice should be blind that justice properly administered within our system is blind and that therefore individual justices and judges serving in article 3 courts should should be blind in the sense that they are able to see and understand and interpret the law understand what the law is uh while understanding that the idea of what the law should be is left to other branches of government not to the judiciary in this respect we recognize that blind justice and blind justices those who are blind to the things they're supposed to be blind to or those willing to recognize that if there is a policy flaw in the law and if there's a policy change that needs to be made it's not the role of the court to change it that belongs to two different branches of government primarily to congress this of course requires judicial restraint it requires judicial humility um and it gets back to what i was describing yesterday uh when i refer to justice barrett uh drawing on the analogy from the odyssey of odysseus binding himself to the mast of the ship most of us refer to this judicial philosophy as textualism contextualism is neither liberal nor neither liberal nor conservative it's neither republican nor democratic it it uh it's just the approach that says what the law says matters and the job of the jurist is to look at the text and figure out what the text means to ascertain the original public meaning of the text in question well i doubt there are any members of this committee who would disagree with the idea that justice should be blind in this respect and that policy changes need to be made by the political branches of government primarily by the legislative branch and not by the courts you did hear some statements that i think are uh at least a little bit at odds with that concept of justice one one of my colleagues mentioned that uh you should interpret the constitution in a way that works for the people of today uh fair enough we certainly don't want to interpret the constitution in a way that doesn't work but again that's not the objective the objective is not to ascertain good policy uh the objective is to ascertain what the law requires you were urged to consider the effects of the court's actions on people's lives uh there again and so far as this relates to policy it's not really the job of the courts you were admonished that you must quote be able to see the real people at the other end of the court's rulings like americans who are one supreme court decision away from losing their health insurance or one court decision away from the ability to make their own health care choices and the list goes on and on now that type of judicial philosophy would would have you step into the role of policymaker and decide what the law should be rather than what the law is you also heard quoted a couple of times yesterday quoted or paraphrased or otherwise referenced federalist 78 in which alexander hamilton refers to the difference between law between will and judgment will as expressed by hamilton refers to what the law should be judgment pertains to what the law is the judicial branch has the latter power but not the former the legislative branch as the former but not the latter judge jackson i'd love to get your your thoughts on on this discussion uh about what it means what blind justice is why that's important let's start with with this formulation of it though uh does does the law determine the outcome of a case or does the outcome of the case determine the law thank you senator the law determines the outcome of case and so anytime you're looking at a case and you're looking at the outcomes for ordinary americans for day-to-day americans if you're looking beyond the scope of deciding that case and if you're looking even within that case beyond what the law says you would be stepping into a province of a different branch is that right i believe so the law and the facts uh of the case determine the outcome of cases i think that's that's an accurate statement it's important to emphasize this this is also something that hamilton describes in federalist 78 where he goes on to say anytime you start to see the courts start to exercise will instead of judgment the result is is supplanting the will of the people as expressed through their elected representatives uh through the courts and that tends to undermine the the whole system you see there's a reason of course why we give life tenure to article three judges and justices and that is because we want to make sure that they have the power the authority the discretion and the confidence to issue a decision that they might not be comfortable with in fact a judge who always agrees with and is always comfortable with his or her own opinions is this justice scalia used to say not a very good judge so we wanted them you all to have confidence in being able to make the right decision even knowing that you and the public at large might be uncomfortable with the result it produces congress makes laws that you won't always agree with congress is accountable to the people at regular intervals you can fire every member of the house of representatives every two years you can fire one third of us in the senate every two years we insulate judges and supreme court justices from that same accountability precisely for this reason it's because political accountability is so important this is borne out in the judicial oath uh one of the oaths that you'll take if confirmed to this position as an associate justice in which you'll you'll swear or affirm that you'll administer justice without respect to persons and that you'll do it faithfully and impartially i read this to mean that you do it without consideration of external circumstances external considerations policy considerations or otherwise now this relates to uh um some interaction that you and i had when you came before this committee for your confirmation to the u.s court of appeals for the dc circuit where you now sit um in connection with that hearing i submitted some questions to the record uh in which i asked you whether to what extent the constitution protects rights that are not enumerated in the constitution itself and and if so to specify uh what those rights were you responded by citing a number of cases including griswold versus connecticut roe vs wade loving versus virginia and a handful of others you also suggested that the ninth amendment uh uh uh was something was a source for such rights unenumerated rights the ninth amendment of course states uh quote that the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people judge jackson what specific rights has the supreme court identified as flowing from the ninth amendment and by that i mean specifically from the ninth amendment rather than uh um in sort of an also ran list of other features um of the constitution that might back up a particular ruling uh what rights has the constitution identified as flowing specifically from the ninth amendment thank you senator um the supreme court as i understand it has not um identified any particular rights flowing directly from the ninth amendment although as you said the text of the amendment suggests that there are some rights that are not enumerated right right it's very it's very existence and its very language uh suggests that which opens up other questions as to how those are to be resolved uh it's led to considerable debate among uh scholars and jurists alike as to whether to what extent in what way this is enforceable those rights are enforceable by the courts but how would we go about deciding that how would how would jurists go about deciding this question appropriately in other words would it be would it be more appropriate to say um we will ascertain the existence of rights protected by the ninth amendment based on the contemporaneous understanding at the time of the ratification of the ninth amendment or would it be more open-ended to protect rights that we think are important today thank you senator the supreme court now very clearly has determined that in order to interpret provisions of the constitution we look to the time of the founding and we ascertain based on what the original public meaning of the words the constitution were at the time um sometimes that yields a particular answer other times you may have to look to practices historically from that time but that that is that would be the way in which you would go about interpreting the ninth amendment could it also be that it leaves this um to be decided at the at the discretion of the supreme court itself in other words not not based on any historical precedent but based on what the supreme court justices themselves deem appropriate at the moment i don't think so um why and why is that because the way in which the supreme court interprets the constitution is with reference to the meaning of the text at the time that it is one of the constraints as i mentioned in terms of my own way of handling interpreting the law one of the constraints is that you're bound by the text and what it meant to those who drafted it at the time i got you yeah now on february 1st of this year uh president biden said that he was he was looking uh for a supreme court nominee uh this was as i recall right after justice breyer announced that he would be stepping down and before he had announced to whom he might nominate um that he was looking for a nominee quote with quote a judicial philosophy that's more one that suggests that there are unenumerated rights to the constitution and all new members mean something including the ninth amendment um so do you share the judicial philosophy that president biden described in that statement senator i i haven't um reviewed that statement but i have not discussed anything about enumerated rights unenumerated rights with with the president yes did uh so did president biden uh ask you either about your judicial philosophy more broadly separate and apart from the ninth amendment or or ask you uh uh about your approach to the ninth amendment he did not in a in a primary election debate um that he had as a presidential candidate in nevada in 2007 joe biden stated quote i would not appoint anyone who did not understand that section 5 of the 14th amendment and the liberty clause of the 14th amendment provided a right to privacy that's the question i'd ask them if that is answered correctly that that is the case that it answers the question which means they would support roe vs wade i assume uh his reference to the liberty clause i assume he's referring to the to the due process clause of the 14th amendment in context that appears to be what he's he's saying did president biden ask you whether you agreed with his analysis of the 14th amendment as it relates to the right to privacy he did not tell me this when we look at any provision of the constitution um one of the many reasons it's it's it's helpful to look at the original understanding in addition to the the fundamental reason that you described um it can can help us understand what motivated it and it can help us understand the actions of those who voted within congress to propose text uh to be amended to the constitution and those who voted to ratify it um we've got a number of amendments including the amendment that he referred to in that last quote i read that that had an understanding at least an understanding that include included certain thou shalt knots for government um the equal protection clause i think is is a provision of the 14th amendment that people understood uh among anything else it might do restricts government's ability to treat people differently on the basis of race consistent with the equal protection clause of the 14th amendment when is it permissible for government to treat a person differently on the basis of race thank you senator the supreme court has interpreted the equal protection clause as you say to generally prohibit classifications on the basis of race and it said says that those classifications are to be rigorously scrutinized they are strict scrutiny which is a standard that applies that looks at the purposes of the government and the means by which the government seeks to achieve any end related to such classification they the government would have to have a compelling interest in making that classification and the means that it selects would have to be narrowly tailored to achieve that interest and so those compelling interests um can't be for light or transient reasons they can't just be something like we we feel like it in other words correct and the reason for this is because um well number one it's bad it's bad for anyone to treat another person differently on the basis of race it's especially bad when government does it because there's not exactly equal bargaining power when you're dealing with the the relationship an individual has with government by definition it's a particularly unfair form of discrimination when it's government doing it governments have enforcement officers they have armies they have the means of enforcing their will and their laws and that's one of the reasons why it's so important what about under under statute uh consistent with title vii of the civil rights act of 1964 when is it permissible for an employer to treat an employee or a prospective employee differently on the basis of his or her race by statute under title vii it is uh generally impermissible and and permissible only in very narrow circumstances i believe so and the statute itself has some restrictions in terms of to whom it applies right the employers some exclusions in terms of religious employers for example not being able to discriminate on the basis of race but it exempts religious employers within certain spheres in order to be able to protect that religious employer's discretion to operate within its faith and the rules of its faith and by doing that it it makes that much clearer by making that distinction it makes that much clearer that um discrimination on the basis of race and employment is not something that the law smiles upon uh nor should it uh let's um let's talk about the commerce clause for a minute if that's all right now at the time of the founding founding fathers didn't foresee and almost certainly could not have foreseen the invention of radios televisions airplanes the internet and telephone networks and yet all of those things are governed by federal law by federal law and not by state law why is this constitutional well senator the commerce clause was initially interpreted by the supreme court to be very broad to allow for federal regulation of interstate commerce and the growth of the economy in this country um but over time the supreme court has made clear that the commerce clause limits the federal government that there is limited authority under the commerce clause the state of the law now is such that the federal government through the commerce clause is only permitted to regulate channels of interstate commerce instrumentalities of interstate commerce and activities that substantially affect interstate commerce and with respect to the third category the supreme court has made clear uh in the lopez case and in morrison that non-economic activities are not covered by commerce clause authority and in the nfib case the aca case the supreme court made clear that inactivity is also not covered and not authorized under the commerce clause right in most of the most of the items that i identified in my question in fact all of them i believe would fall into the category of channels and instrumentalities of interstate commerce we're dealing with interstate airways airwaves waterways uh networks things like that uh things that depend for their existence for their effectiveness on their operation interstate such that they couldn't no one could effectively regulate them and preserve their core function unless that was federal those fit into the category of the channels and instrumentalities with the the the third item that you describe the the substantial effects interstate commerce is there much of a limiting principle there i mean with you referred to lopez and morrison uh and nfib versus sebelius uh to my knowledge those are the only three cases the supreme court uh has decided since it its ruling in 1937 on nlrb versus jones and laflin steel which essentially created the modern uh substantial effects case the the modern substantial effects standard those are the only three instances in which the supreme court identified as outside the commerce clause authority um something that congress had enacted are these meaningful constraints in your view or are they examples of congress just getting reckless and sloppy in the way it drafted things some some have argued for instance that uh as long as congress doesn't get reckless and sloppy it can do whatever it wants under those do you have any view on that well um these cases come through the courts so i'll be general the fact that congress is limited in its authority under the commerce clause is established law it is a fundamental principle of our constitutional order and those limits that the supreme court has recognized do carve out categories of activity that congress is not permitted the federal government is not permitted to regulate um non-economic activity is a category inactivity is a category um now the supreme court is also through the commerce clause establish rules for things that the states may not do this is referred to as the you know the so-called dormant commerce clause the dormant commerce clause acknowledges the power of congress the exclusive domain of congress as being regulating interstate commerce but there's no federal cause of action to allow for the invalidation of a state law under the commerce clause it's been something that's been adopted by the courts is that an appropriate exercise of of the court's judicial power or does that amount to de facto legislation on the part of the courts well senator i wouldn't characterize it i know that that's what the supreme court has permitted the dormant commerce clause is um is a principle that supports the interstate nature and regulation and authority of the federal government and so states are not permitted under that doctrine to discriminate against other states to preference their own commerce in a way that interferes with interstate commerce i want to turn back for a moment to a line of of inquiry you had with uh with senator durbin earlier today when you were talking about your sentencing in these child pornography cases i want to make sure that i understand your your answer there um if i understand it you you were making the argument that your concern was that the the laws in this area didn't adequately take into account the transfer of these materials by electronic means to be re transmitted received and stored through computers is that my understanding that correctly well senator my uh the point that i was making was that the sentencing commission back when i was part of it and even since tasked with the responsibility to evaluate and make recommendations and look at the data and information about cases has looked at the operation of the child pornography guideline not so much the the statute but the guidelines which the congress has tasked the sentencing commission with developing and there are aspects of the child pornography guideline that congress and legislation has required it required certain enhancements to be included in the guideline and some of those enhancements the data is now revealing don't take into account the the change in the way that that this um horrible offense is now committed but the fact that it's easier to commit the offense shouldn't diminish the severity of the punishment should it i mean any more than the more widespread availability of certain drugs the more widespread availability of certain weapons might uh when you surely wouldn't argue for a lower sentence when certain things become easier in other criminal contexts so why is this one different well the sentencing enhancements that are in the guidelines are designed to help courts differentiate between different levels of culpability congress will say this is an offense whatever it is and the maximum penalty is x and and in most cases the range is between zero and something like 20 years that congress gives when it establishes a penalty the point of the guidelines is to help judges figure out where in that range between 20 00 and 20 years a particular defendant should be sentenced and the guidelines have gradations in them that relate to various aspects of the commission of the crime sorry so so the commission does data to does data gathering and research to figure out how crimes are committed and what gradations should matter in terms of the range of culpability because the problem of not doing that or of getting it wrong is that you you're not able to adequately assess and determine the differences among offenders on the on the scale i i understand that and so but in in these cases as i understand all 10 of the cases that we've reviewed on on record where you've sent someone to a for a child pornography conviction in all 10 of those cases you you departed from the guidelines uh and deported downward it's hard for me to understand departing from those in every case you've got because it's not supposed isn't a departure supposed to be grounded in uh finding that it's outside the heartland of of of cases in that range uh cases of that sort yes senator and as i said before these are horrible cases that involve terrible crimes and the court is looking at all of the evidence consistent with congress's factors for sentencing the guidelines are one factor but the court is told that you look at the guidelines but you also look at the nature and circumstances of the offense the history and characteristics of the offender there are series of factors in the cases you are also getting recommendations and in most of the cases i haven't pinned it all down but in most of the cases if not all of the cases the government is asking for a sentence below the guidelines because this guideline system is not doing the work in this particular case understood section 230 of the telecommunication the communications decency act provides a degree of immunity for tech companies operating in the space of being online interactive service providers um it immunizes them them from certain causes of action that would otherwise apply against them would it be within congress's authority to condition the receipt and a and availability of section 230 immunity on those online interactive service providers operating as a public forum that is not discriminating on the basis of viewpoint or the the viewpoint of those posting on them would that be within our authority senator i can't comment on a particular issue about whether or not it is constitutional or or not but the criteria that you identify it would be relevant i think as to whether or not the government is seeking to regulate along viewpoint lines under the first amendment that is something that is um generally impermissible thank you mr chairman thank you very much senator lee senator klobuchar thank you very much uh chairman and senator grassley welcome again judge your wonderful family they all seem to be awake throughout this entire hearing um i just wanted to before i start wanting to get at something senator lee was talking about it's not the dormant commerce clause but i really appreciated early on how you talked about these child pornography cases a former prosecutor could totally see where you were coming from when you talked about looking at these cases as a mom and a judge and would it surprise you at all that other judges including a number of them that were supported by our colleagues on the other side of the aisle have given out similar sentences in child pornography cases no senator it would not surprise me because these cases are horrific and there's a lot of disparity because of the way the guidelines are operating in this particular area but in every case in every case um that i handled involving these terrible crimes i looked at the law and the facts i made sure that the victims the children's perspectives were represented and i also imposed prison terms and significant significant supervision and other restrictions on these defendants well thank you and i just also want to note and i know others have brought this up the letter of support from the fraternal order of police in which they said from our analysis of judge jackson's record in some of her cases we believe she has considered the facts and applied the law consistently and fairly on a range of issues there is little doubt that she has a temperament and elect legal experience and family background to have earned this appointment we are reassured that should she be confirmed she would approach her future cases with an open mind and treat issues related to law enforcement fairly and justly and that matters a lot to many of us now i want to go back to something i was talking about yesterday and that is why today's hearing is so monumental um including that it is occurring at a time when we as americans have been reminded again uh due to the courage of ukrainians thousands of miles away that we can never take our democracy or for that matter or courts for granted it is also happening at a time when we are seeing each other for the first time after a two-year pandemic connecting to each other again um and i hope this moment uh will be a moment where uh we see a renewed interest in our democracy we respect each other's rights and views and that we see that we are not a nation of 300 plus million silos instead or we are a nation committed to this idea that what unites us as americans is much bigger than what divides us and so in that context you come before us with this incredible strength legal acumen uh grace under pressure that you have demonstrated today and uh you also come before us as we've noted as the first black woman to be nominated following 115 justices uh who have been confirmed and i will note uh of the 115 justices 110 have been men and i um actually once reminded a late night show trevor noah of similar issues in the u.s senate in fact in the history of the u.s senate of the nearly 2 000 people who have served only 58 have been women and he responded that if a nightclub had numbers that bad they'd shut it down but today judge we're not shutting anything down not the court not the senate and you are opening things up and i think one of the things your nomination presents is an opportunity to address a decline in the public's confidence in our court and increasingly many if you see public opinion polls see the court as over politicized or out of touch at the same time we've seen an alarming rise in threats targeting members of our judiciary for just doing their jobs how do you think we can work to maintain the public's con confidence in the court what do you see a role in that thank you senator public confidence in the court is crucial as has been said here earlier that the court doesn't have anything else that that is the the key to our legitimacy in our democratic system and i am honored to accept the president's nomination in part because i know it means so much to so many people it means a lot to me i am here standing on the shoulders of generations of americans who never had anything close to this kind of opportunity from my grandparents who had just a grade school education but instilled in my parents the importance of learning and my parents who i've mentioned here many times already who were the first in their families to get to go to college so this nomination against that backdrop is significant to to a lot of people and i hope that it will bring confidence it will help inspire people to understand that our courts are like them that our judges are like them doing the work being part of our government i think it's very important very good i think along those lines your wonderful mentor justice breyer i quoted him about how he said we can help maintain public acceptance of the court and these are his words we can do it best by helping ensure that the constitution remains workable in a broad sense of the term specifically it the court can and should interpret the constitution in a way that works for the people of the day like as you know uh it's i think section two article two section two uh doesn't refer to the air force uh because we didn't have an air force back then um so are there things about the constitution that of course um as we've gone along have been interpreted to meet uh the moments of our time what do you think justice breyer means when he says the constitution should be interpreted in a way that works for the people of today and you think a justice can be both pragmatic and objective and respect history i do and i think that the justices have demonstrated that some of their recent opinions uh have had to deal with modern technology technologies that did not exist at the time of the founding so for example the riley case carpenter case these were fourth amendment decisions in which the court was asked to determine whether or not it violated the fourth amendment for the police to search someone's cell phone without a warrant or for the police to use gps location data to determine where someone had been without a warrant and obviously those technologies did not exist but what the court did was it looked back at the time of the founding and determined what the reasonable expectations of privacy were related to the term unreasonable searches and seizures which appears in the constitution and having assessed what that meant back then they could use those principles to decide whether or not a cell phone is like someone's home these days with all of the information and all of the things that are stored there and the court determined that it was a violation of the fourth amendment that the police officers needed a warrant and they did so with reference to what the constitution meant in history very good uh you know you were viewed as a judge and you talked about this a bit yesterday that writes lengthy opinions um that believes you should spell things out and uh believes in being transparent is that a fair characterization that is okay good i'm sure your clerks know that um and um i want to talk about something to me that's a bit the opposite and that's something that uh some have termed the shadow docket and that includes decisions that the court makes on an expedited basis that are usually unsigned and issued without oral argument or full briefing in the last few years we've seen the court increasingly deciding cases in this way often over the descent of maybe three or four of the justices last term the court granted 20 requests for emergency relief a historically high number 10 years ago in the october term of 2011 the court granted only six requests in an entire year when do you think it's appropriate for the supreme court uh to grant emergency relief use this docket when are the circumstances uh that warrant this and um i think you know these decisions have a profound effect on people's lives i'll just use one example last fall in a one paragraph decision a majority of the court refused to stop the enforcement of a texas law that severely restricts a woman's access to abortion in that case even chief justice roberts objected to the court's decision to let the law take effect calling the statutory scheme not only unusual but unprecedented as someone who believes in transparency could you talk in general about when you think this shadow docket should be used when emergency relief should be given and how if it's overused it could undermine public confidence in the court thank you senator um well there there's a balance that the court has to consider and that it um insofar as uh on the one hand it has always had an emergency docket the need for flexibility the ability to get answers to the parties at issue is something that's important in our system on the other hand the court has also considered the interest in allowing issues to percolate allowing other courts to rule on things before they come to the court and i am not privy at the moment to the justice's views and why and how they're using the emergency docket in these cases if i was fortunate enough to be confirmed i would look at those issues but it's it's an interesting and important set of issues okay um you know i think just another example of this by the way is um the day before wisconsin's primary election and april 6 2020 right as the first beginnings of some of the health orders that came out with the beginning of the pandemic the court issued a 5-4 decision halting a district court's order allowing voters extra time to cast their absentee ballots um so that they could avoid uh waiting in line to vote and back then people literally got coveted with election workers and the like because of this and again i'm not going to belabor this point but i think some of this is these decisions that are made that don't reflect some of the careful consideration that you have made in many of your decisions as a judge but speaking of voting i'll ask you one question on that front since the supreme court guided the section 5 pre-clearance regime of the voting rights act in its decision in shelby county the d.c circuit has not seen many voting rights cases however as you know justice ginsburg dissented in that case describing the right to vote as the most fundamental right in our democratic system do you agree that the right to vote is fundamental senator the supreme court has said that the right to vote is the basis of our democracy that it is the right upon which all other rights are essentially founded because in a democracy there is one person one vote and and there are constitutional amendments that relate directly to the right to vote so it is a fundamental right in our democracy yes i know that's how justice barrett answered that question as well in her uh recent hearing um i'm going to turn to an area that senator lee and i uh we both chair the subcommittee on antitrust and so it's near and dear to my heart so i thought it spent a little time it usually gets relegated to the second round but i'm i'm putting it up on the docket here u.s antitrust law has been described as a comprehensive charter of economic liberty and i agree and effective antitrust enforcement plays a critical role as you know in protecting consumers and workers promoting innovation ensuring new businesses have an opportunity to compete it actually from really early on uh in our country's history has been a very important part of assuring that capitalism works and in january for the first time since the dawn of the internet the senate passed a tech competition bill out of the judiciary committee it's a bill that senator grassley and i lead many of the members of this committee supported uh the bill uh 16 to six vote it's called the american innovation and choice online act it's now headed to the senate floor i'm not going to ask you about that bill obviously but i want to put this in some context while tech monopolies have seized from 50 to 90 percent market share in major parts of their business lines it is clear to me when you look at the plain language of the sherman act clayton act the laws that are in place that these monopolies are not okay however court rulings for decades in antitrust have created some major obstacles to taking on these cases and it's not just court rulings it is on us with as i said the dawn of the internet decades having passed it is on us the senate and the house to update our laws this year to give enforcers the resources to do their jobs something you if confirmed would not have a role in but the role of the courts is also very critical you have been nominated to replace justice breyer who came to the court with a strong background in antitrust law i know you handled a case you and i discussed it in in my office i think it got um i think it got decided the emerger was abandoned so you didn't have to rule on the merits of it it was back in uh 2017 um a ftc challenge but i'll just quote something that justice breyer once said he told this committee if you're going to have a free enterprise economy then you must have a strong and effective anti-trust law do you agree with justice breyer's statement and how would you characterize the goals of our antitrust laws well thank you senator the antitrust laws protect competition and as you said therefore protect consumers and competitors and the economy as a whole and the um sherman act and the clayton act are broad in their um in the in their statements and their protections and there's a lot of precedent in this area if i were confirmed i would use my methodology to look at the precedence in these areas to ensure that any legislation that i was considering is interpreted according to the text consistent with congress's intent and um in the area of antitrust that is ensuring that there is consumer protections very good um and just to play it out a little bit since the 1980s the court in cases like trinco and credit suisse ohio the american express has really made it uh increasingly difficult to enforce the antitrust laws and protect industry consolidation market power and not only in tech with companies like google and amazon and facebook and apple but also across our economy really in everything from pharma to cat food to caskets do you what role do you think that congressional intent should play in the court's interpretation of the anti-trust laws and i i say that because i think that um we're dealing with some cases where justices have actually substituted their own ideologies for the intent of congress and originally passing the laws um and i think it was justice suitor who once said before this committee uh when we are dealing with antitrust laws we are dealing with one of the most spectacular examples of delegation to the judiciary that our legal system knows and he added this certainly a respect for legislative intent has got to be our anchor for interpretation so what role do you think congressional intent should play in the court's interpretation of the antitrust laws thank you senator um so i've interpreted a number of statutes in my near decade on the bench and in every case the text of a statute is what the court looks at in order to ascertain what the legislature intended and that is um important because as i've said courts are not policy makers and judges um should not be importing their own policy preferences it's judges are restrained in our constitutional scheme um in order to affect the will of congress in terms of their interpretation of the laws okay thank you i'm going to turn to another uh topic and that's freedom of the press new york times v sullivan 1964 case we have recently witnessed as you know unprecedented attacks on journalists and journalism whether it's violence overseas recently learning losing sadly members of the press just in the last month in ukraine or threats and intimidation at home this is very concerning to me given the important role of the first amendment my dad was a newspaper reporter so the issues hit home for me can you talk about your view of the role of journalists in our democracy thank you senator journalists and freedom of the press is protected by the first amendment it is about the dissemination of information which is necessary for a democratic form of government the supreme court has held as much and that was the basis for the court's uh determinations in protecting uh the press from liability in new york times versus sullivan and and its pride progeny okay um as you know that ruling was a unanimous ruling in support of the first amendment and the court held uh that when newspapers report on public officials they're only liable for untrue statements that are published with knowledge or reckless disregard for whether the statement was false the court in sullivan based its decision on our country's quote profound national commitment to the principle that debate on public issues should be uninhibited robust and wide open that's their quote and it recognized that quote erroneous statement is inevitable in free debate end quote and quote must be protected if the freedoms of expression are to have the breathing space that they need to survive do you agree that those principles are just as relevant today as they were when the supreme court first decided uh new york times v sullivan new york times b sullivan is the continuing binding precedent of the supreme court and it does state the principles that the court has determined are undergirding the first amendment right to free press okay and last summer actually in barisha v lawson the supreme court declined to review a case in which the 11th circuit applied new york times v sullivan justice thomas and justice gorsuch each dissented from the decision not to grant cert arguing that the court should reconsider its holding in sullivan how would you approach a case that sought to limit or overturn the central holding in new york times v sullivan thank you senator any time the court is asked to revisit a precedent there are criteria that the court uses to decide whether or not to um overrule a precedent new york times versus sullivan is a precedent and starry decisis is very important the principle that um courts the the supreme court should maintain its precedence um for predictability and stability in the law if the court is asked to revisit a president its criteria what it looks at are whether the precedent is wrong and in fact egregiously wrong the court has said whether there's been reliance on that precedent whether the there are other cases that are similar to the precedent or that relied on the president that have now shifted so that the president is no longer uh on firm footing whether or not the precedent is workable sometimes the the supreme court will uh issue a ruling and determine later that it's not actually doing what the court intended and whether or not there are new facts or a new understanding of the facts those various criteria are what the court looks at to decide whether or not to overturn a precedent and they would be what um i would look at if i were confirmed to the supreme court thank you i was recalling as you spoke about starry decisis at one of your first nominations hearing for the district court and you actually um in answer in response to one of my questions you said starry decisis is a bedrock legal principle that ensures consistency and impartiality of judgments and um i think as you know by how you've talked more broadly about this um moving off of the first amendment questions you throughout the court's history um starry decisis um has been so key and the court has relied on it uh to maintain stability in the law reinforced impartiability impartiality as a former justice um i know senator durbin just read a very famous book about him minnesotan justice harry blackman who actually justice breyer succeeded on the court said in his concurrence in planned parenthood v casey about the court's decision to uphold roe v wade he said what has happened today should serve as a model for future justices and a warning to all who have tried to turn this court into yet another political branch what role do you think that starry decisis plays in protecting the independence of the judiciary and avoiding the perception that the court is acting as another quote political branch i think it plays a very important role as a doctrine that keeps um keeps shifts from happening in the court that as as i've previously mentioned it's very important to have stability in the law for the rule of law purposes so that people can order themselves and predict predict their lives given what the supreme court has already said and if there were massive shifts uh every time a new justice came on or every time new circumstances arose there would be a concern that public confidence uh would be eroded and so starry decisis is a very important doctrine um that the supreme court has established and um and it's one that furthers the rule of law in this country thank you very much uh well that's a good way to and uh judge jackson and i do see uh senator cruz awaiting in the wing so by coincidence and it looks like he has things he's putting up of charts by coincidence i have a was going to put on the record and since he's here it makes a lot of sense from the judge that you clerked for senator cruz uh judge ledeck who's now retired and i know you were very close to him and uh he actually submitted a letter on on your behalf um judge jackson and said in this letter and he's an appointee of george h.w bush similar to judge griffith who introduced you yesterday and i've been very impressed by the support you've had from retired judges obviously not appropriate for current judges but retired judges appointed by both democratic and republican presidents as well as the bipartisan votes that you have gotten through the u.s senate for your other positions but in this letter the judge former judge ludwig says that you are eminently qualified to serve on the supreme court of the united states and then he actually says republicans and democrats alike should give their studied advice and then their consent to the president's nomination and he adds republicans in particular should vote to confirm judge jackson so i thought that might be a good segue center cruise um uh to your uh to your question so i ask uh chairman uh that the letter of support um from uh uh former judge ludwig who employed senator cruz as a trusted law clerk uh be uh admitted to the record without objection thank you very much judge jackson thank you senator klobuchar finds a minnesota connection to almost everything very proud of the fact but justice blackmon was born in nashville illinois okay he was a lawyer at the mayo clinic as we know and spent a lot of time a lawyer in minnesota when he was chosen to the supreme court but thank you for pointing that out and now to the great state of texas senator cruz thank you mr chairman judge jackson welcome uh congratulations thank you you and i have known each other a long time we have we went to law school together we were on the law review together we were a year apart uh happily so i hope senator we were not particularly close but we were always friendly and cordial we were uh and you and i had a very positive and productive meeting in my office uh where we discussed a number of things including you were there with with former senator doug jones uh and we discussed how he and i and a number of other senators had for for two different years participated in reading aloud on the senate floor dr martin luther king jr's letter from a birmingham jail which is one of the truly great advocacies for civil rights our nation has seen and and you and i talked together uh about our shared admiration for dr king when senator grassley questioned you earlier he asked in particular about dr king's speech on on the steps of the lincoln memorial where he said most critically i have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character do you agree with what dr king said in that speech there i do senator um as we were discussing it uh you referenced in my office a speech that you gave in january of 2020 at the university of michigan school of law uh and after our discussion i pulled a copy of your speech and read the speech in its entirety and there were elements of the speech that i thought were really powerful and let me say your your opening remarks yesterday were were powerful and inspirational as well and i think you and your family the journey you have taken to becoming a federal judge to becoming a federal court of appeals judge i think demonstrates the incredible promise and the incredible opportunity this nation offers all of us as i read your speech at the university of michigan law school however there was a portion that surprised me uh and in particular in that speech you referenced the work of quote acclaimed investigative journalist nicole hannah jones and her and again this is a quote from the speech provocative thesis that america was born that the provocative thesis that the america that was born in 1776 was not the perfect union that it purported to be and indeed miss hannah jones in her 16 19 projects describes the central thesis of the 1619 project which the new york times laid out as a revisionist look of history revising american history and missanna jones described her central thesis as quote one of the primary reasons the colonists decided to declare independence was because they wanted to protect the institution of slavery now that claim is a highly contested historical claim um do you agree with miss hannah jones that one of the primary reasons the colonists decide to declare independence is because they wanted to protect the institution of slavery thank you senator when i gave that speech at the university of michigan i was asked to speak on martin luther king day and [Music] every year they have a martin luther king day speaker and i gave a speech about black women in the civil rights movement most of the speech if not all of the speech was focused on african-american women their contributions to the civil rights movement unsung contributions in many cases and then some of the more recent african-american women who have made claims who have done things in our society one slide was of ms a journalist as you say who who made that statement and i called it provocative um it is not something that i've studied it doesn't come up in my work i was mentioning it because it was at least at that time something that was talked about and and well known uh to the students that i was speaking to at the law school so are you aware that that since the 1619 project came out that it has been roundly uh refuted by very respected historians including gordon wood of brown university including james mcpherson uh of princeton university mcpherson called it a quote very unbalanced one-sided account which lacks content and perspective and indeed it was so thoroughly refuted that the new york times quietly altered the digital version to remove references to 1619 as the year of america's true founding and the moment america began were you aware of that i was not so let me ask you related to the 1619 project which i believe is is deeply inaccurate and misleading um 1619 project is quote closely intertwined with a movement that is called critical race theory uh critical race theory as you know originated at you're in my alma mater at the harvard law school uh in your understanding what what does critical race theory mean what is it senator my understanding is that critical race theory is um [Music] it is an academic theory that is about the ways in which race interacts with various institutions it doesn't come up in my work as a judge it's never something that i've studied or relied on and it wouldn't be something that i would rely on if i was on the supreme court so critical race theory as you know has its origins in the critical legal studies movie movement which also came from harvard law school from a number of critical legal studies professors crits as they were known when we were in law school who are explicitly marxists and they find their origins in marxism although critical legal studies frames society as a fundamental battle between socioeconomic classes critical race theory frames all of society as a fundamental and intractable battle between between the races it views every conflict as a racial conflict do you think that's an accurate way of viewing society in the world we live in senator i don't think so um but i've never studied critical race theory and i've never used it it doesn't come up in the work that i do as a judge so so with respect i find that a curious statement because um you gave a speech in april of 2015 at the university of chicago in which you described the job you do as a judge and you said sentencing is just plain interesting because it melds together myriad types of law criminal law and of course constitutional law critical race theory so you described in a speech to a law school what you were doing is critical race theory uh and so i guess i would ask what did you mean by that when you gave that speech with respect senator um the quote that you are mentioning there um was about sentencing policy it was not about sentencing um i was talking about the policy uh determinations of bodies like the sentencing commission when they look at a laundry list of various academic subjects as they consider what the policies should be okay but you know you're vice chair of the sentencing commission so let me ask again what did you mean by because that was an official responsibility of yours what i meant by what you were doing was critical what i meant was that there are a number of that that uh slide does not show the entire laundry list of different uh academic disciplines that i said um relate to sentencing policy but none of that relates to what i do as a judge so let me ask you a different question is is critical race theory taught in schools is it taught kindergarten through 12th senator i don't know i don't think so i believe it's an academic theory that's at the law school level okay um as you may recall during the confirmation hearings of justice amy coney barrett there was a great deal of attention paid to the fact that justice barrett served as a board member in the board of trustees of a religious private school and and the press focused very intensely on the views of that school in your questionnaire to this committee you disclose that you are similarly on a board specifically the board of trustees for the georgetown day school and that you've been a board member since 2019 and you're currently still a board member is is that correct that is correct uh in regard to the georgetown day school you've publicly said quote since becoming a member of the gds community seven years ago patrick and i have witnessed the transformative power of a rigorous progressive education that is dedicated to fostering critical thinking interdependence and social justice when you refer to social justice in the school's mission on social justice what did you mean by that thank you senator for allowing me to address this issue georgetown day school has a special history that i think is important to understand when you consider my service on that board the school was founded in 1945 in washington dc at a time in which by law there was racial segregation in this community black students were not allowed in the public schools to go to school with white students georgetown day school is a private school that was created when three white families jewish families got together with three black families and said that despite the fact that the law requires us to separate despite the fact that the law is set up to make sure that black children are not treated the same as everyone else we are going to form a private school so that our children can go to school together the idea of equality justice is at the core of the georgetown day school mission and it's a private school such that every parent who joins the community does so willingly with an understanding that they are joining a community that is designed to make sure that every child is valued every child is treated as having inherent worth and none are discriminated against because of race so judge jackson all of us will agree that that no one should be discriminated against because of race when you just testified a minute ago that you didn't know if critical race theory was taught in k-12 i i will confess i i find that statement a little hard to reconcile with the public record because if you look at the georgetown day schools curriculum it is filled and overflowing with critical race theory that that among the doc the books that are either assigned or recommended uh they include critical race theory and introduction uh they include the end of policing and an advocacy for abolishing police they include how to be an anti-racist by ibram kent kennedy they include literally stacks and stacks of books and i'll tell you two of the ones that were most stunning they include a book called anti-racist baby uh by ibrahim kindy and their portions of this book that that i find really quite remarkable one portion of the book says babies are taught to be racist or anti-racist there is no neutrality another portion of the book they recommend to babies confess when being racist now this is a book that is taught at georgetown day school to students in pre-k through second grade so four through seven years old um do you agree with this book that is being taught with kids that the babies are racist senator i do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than that they are victims that they are oppressors i don't believe in any of that but what i will say is that when you asked me whether or not this was taught in schools critical race theory my understanding is that critical race theory as an academic theory is taught in law schools and to the extent that you were asking the question i understood you to be addressing public schools georgetown day school just like the religious school that justice barrett was on the board of is a private school okay so you agree critical race theory is taught at georgetown day school i don't know because the board is not um the board does not control the curriculum the board does not focus on that that's not what we do as board members so i'm actually not sure well and i'll note that the board is is chaired by professor fairfax your college roommate who introduced you yesterday so the two of you serve on the board together um another book that is on the uh summer reading for third through fifth grade is a book called stamp for kids again by ibram kendi i read the entirety of the book and i will say it is an astonishing book on page 33 it asks the question can we send white people back to europe that's on 33 that's what's being given to eight and nine years old it also on page 115 says the idea that we should pretend not to see racism as connected to the idea that we should pretend not to see color it's called color blindness skipping ahead here's what's wrong with this it's ridiculous skin color is something we all absolutely see skipping ahead so to pretend not to see color is pretty convenient if you don't actually want to stamp out racism in the first place now what this book argues for is the exact opposite of what dr king spoke about on the floor of the lincoln memorial and and are you comfortable uh with with these ideas being taught to children as young as four and in respect to the first book as young as eight and nine in respect to the second book senator i have not reviewed any of those books any of those ideas they don't come up in my work as a judge which i'm respectfully here to address in my work as a judge which is evidenced from my near decade on the bench okay then then let's go back to your work as a judge um as was noted in the first slide you discuss sentencing as being related to critical race theory and earlier there's been some back and forth as democratic senators have tried to address your sentencing patterns as it concerns child pornography and i'll confess judge jackson as look as i listen to your testimony i believe you are someone who is compassionate i believe you care for children obviously your children and other children but i also see a record of activism and advocacy as it concerns sexual predators that stems back decades and that is concerning um you wrote your note on the harvard law review on sex crimes uh the your node is your major academic work on the law review and yours is entitled prevention versus punishment towards a principled distinction in the restraint of relate uh released six sex offenders and in it you argue and i quote a recent spate of legislation purports to regulate release sex offenders by requiring them to register with local law enforcement officials notify community members of their presence undergo dna testing and submit to civil commitment for an indefinite term although many courts and commentators herald these laws as valid regulatory measures others reject them as punitive enactments that violate the rights of individuals who have already been sanctioned for their crimes under existing doctrine the constitutionality of sex offender statutes depends upon their characterization as essentially preventative rather than punitive and what you go out go on to explain is if they're viewed as punitive they are unconstitutional if they're viewed as preventative they are not and throughout the course of your note you argue they should be viewed as punitive and therefore unconstitutional indeed in the second to last page you go through each of those four categories you say requirements that sex offenders register may or may not be unconstitutional depending upon whether quote sex in which sex offenders have no privacy right and registration information or blood samples so you suggest that may or may not be constitutional you raise doubts about it and then you raise very significant doubts about community notification and you heavily suggest that civil commitment for sexual predators is unconstitutional do you still agree with the sentiments you expressed in your law school note respectfully senator those are not the sentiments that i expressed in my law school note my law school note was about sex offender registration laws which at the time were relatively new as you know from our time in law school one of the things that law school students do is they look for new developments in the law and they try to analyze them that's something that makes for good fodder for a law school note my note which came out in 1996 was shortly after there were new megan's laws and the point that i was making was not that the laws were bad that the laws were wrong i was trying to assess uh something that is uh sort of fundamental in terms of the characterization of the laws i didn't say that they were unconstitutional one way or the other what i was trying to assess was how they are characterized some some courts would look at those laws and call them preventative and that has a certain set of uh consequences some courts would call them punitive and that has a certain set of consequences and what i was trying to do is figure out how to make the determination whether they were punitive or preventative well your note argued that they were punitive and i would note that that view uh there have been some on the bench that have advocated that uh the supreme court in 1997 decided a case called kansas versus hendrix in which it upheld kansas's civil commitment statute that was a 5'4 vote this has been a question that has been close at the supreme court and i would note beyond that that in terms of the prevalence of these statutes all 50 states in d.c have registry requirements 47 states have community notification requirements all 50 states have dna or blood banks for sex offenders requirements and 20 of the states the federal government and d.c have laws that allow for the indefinite detention of sex offenders i would note in the state of texas a street state court of appeals relying on very much the the same sort of reasoning you advocated in your note struck down texas's sexually violent predator civil commitment law at the time i was the solicitor general of texas i personally argued that appeal in the texas supreme court and the texas supreme court unanimously reversed the court of appeals and upheld our statute and and if the views you advocated in law school prevailed civil commitment laws across the country would be struck down releasing sexual predators and under the argument community notification and dna bank laws could well be struck down as well is that is that an outcome that that should concern people senator my note wasn't advocating for the striking down of those laws my note was trying to identify criteria that i thought could be applied consistently to determine whether the laws were punitive or preventative but with respect either character and you argued that they were punitive and you further say in the note if they're punitive they're unconstitutional i was looking at four different kinds of laws and not all of them did i say we're punitive okay so let's take civil commitments laws uh if you look at civil commitment laws right now the ucla school of law williams institute estimates more than 6 300 sex offenders are currently detained in civil commitment programs if the view you advocated prevailed presumably those 6 300 sex offenders would be released to the public is that an outcome that should be concerning senator in law school when i was writing a note i was looking at a brand new set of laws that had not previously been enacted in any jurisdiction they were new and i was assessing at the time as law school students do what criteria i thought might be used by courts to make a determination in the future as to whether or not they should be treated as punitive and therefore not unconstitutional but as therefore ones that come carry with them certain rights versus excuse me preventative those those jeff jackson so you've you've pointed that these were reviews in law school and listen i will recognize that all of us when we are students may have views that that as time and maturity passes on we may change but what troubles me is this was not just a law school view it's one that has continued so when you were vice chairman of the sentencing commission you expressed significant concerns um that the white house has argued that your quotes were taken out of context so i want to provide the full context of your quote because you said yes i want to ask you about the means by which we can distinguish more or less serious offenders i know that all of you sort of touched on that mr fatrell you talked about going from singular to one-on-one to group experience i'm just wondering if there's some sort of inevitable and natural progression from one stage to the other such that you could say that the least serious offenders are in the singular experience stage i guess my thought is in looking at some of the testimony that other people will have later in the day i was surprised at some of the testimony with respect to the motivation of offenders and we're talking about child pornography offenders and that there are people who get involved with this kind of activity who may not be pedophiles and who may not be necessarily interested really in the child pornography but have other motivations with respect to the use of technology and being in the group and you know here are lots of reasons perhaps why people might engage in this and so i'm wondering whether you could say that there is a that there could be a less serious child pornography offender who is engaging in the type of conduct in the group experience level because their motivation is the challenge or to use the technology they're very sophisticated technologically but they aren't necessarily that interested in the child pornography piece of it now now i find that a pretty remarkable argument that people in possession of child pornography are not actually interested in the child porn they're not pedophiles they're just interested in technology is is that i wanted to provide the whole quote because the white house said that portions of this were used out of context so this is your entire quote um do you agree with that sentiment that there is some meaningful population of people who have child pornography but but are not in fact pedophiles or getting getting satisfaction from it thank you senator for allowing me to address what appears to be a question that i was asking in the context of a hearing on child pornography you've provided the entire quote and it looks as though i was asking that of someone not taking that position and the position that i've taken in all of my sentencings involving child pornography offenders is to ensure that despite the attitude and view of many of the offenders who came before me when i was a child judge that they were just lookers that they weren't really harming anyone that they were curating their collections and they never touched a child i made sure that they understood that notwithstanding their uh collecting behavior that they were causing significant harm so judge jackson all right you you raise your actual sentencing and i think that's very productive let's let's take a look at your actual sentencing and you've had 10 different cases involving child pornography um these are the cases that there are two us versus buttery and us versus can for which the government did not make a recommendation and you said earlier when when chairman durbin was trying to preempt this line of attack he said it's a sickening and egregious crime which i very much agree with um and you said the guidelines lead to extreme departures okay uh let's look at what the prosecutors are asking for and i would note that this was in the district of columbia where prosecutors are far more liberal than many of the prosecutors in this country and in every case in which so united states versus hess there was a mandatory statutory minimum of 60 months and you impose 60 months because you had no discretion uh in united states versus nickerson there was a mutual agreement of the parties to 120 months and that's what you imposed in every other case united states versus chasin the prosecutor asked for 78 to 97 months you imposed 28 months 28 months is a 64 reduction in united states versus cooper the prosecutor asked for 72 months you imposed 60 months that was a 17 reduction in united states versus downs the prosecutor asked for 70 months you imposed 60.

that was a 14 reduction in united states versus hawkins the prosecutor asked for 24 months you imposed three months that was an 88 reduction in united states versus savage the prosecutor asked for 49 months you imposed 37. that was a 24 reduction in united states versus stewart the prosecutor asked for 97 months you in post 57 that was a 41 percent reduction every single case 100 percent of them when prosecutors came before you with child pornography cases you sentenced the defenders to substantially below not just the guidelines which are way higher but what the prosecutor asked for on average of these cases 47.2 percent less now you said you made sure the voice of the children was heard do you believe in a case like united states versus hawkins where the prosecutor asked for 24 months and you sentenced the offender to only three months do you believe the voice of the children is heard when a hundred percent of the time you're sentencing child pro those in possession of child pornography to far below what the prosecutor's asking for yes senator i do could you explain how i will a couple of observations one is that your chart does not include all of the factors that congress has told judges to consider including the probation office's recommendation in these cases judge actually we don't have those probation the committee has not been given the probation officer's recommendation we would welcome them i would look mr chairman i would love to see those the second access the second thing i would say is that i take these cases very seriously as a mother as someone who as a judge has to review the actual evidence in these cases and based on congress's requirement take into account not only the sentencing guidelines not only the recommendations of the parties but also things like the stories of the victims also things like the nature and circumstances of the offense and the history and characteristics of the defendant congress is the body that tells sentencing judges what they're supposed to look at and congress has said that a judge is not playing a numbers game the judge is looking at all of these different factors and making a determination in every case based on a number of different considerations and in every case i did my duty to hold the defendants accountable in light of the evidence and the information that was presented to me in a hundred percent of the cases was the evidence less than the prosecutors asked for senator the evidence in this these cases are egregious the evidence in these cases are among the worst that i have seen and yet as congress directs judges don't just calculate the guidelines and stop judges have to take into account the personal circumstances of the defendant because that's a requirement of congress judges have to consider things like the victims and when i was talking about making sure that victims circumstances are heard it was about my sentencing practices thank you mr chairman in 2012 the sentencing commission on a unanimous bipartisan basis issued a report recommending changes to sentencing for non-production child pornography which is the subject at hand offenses because of widespread concern among judges and other stakeholders for example 70 percent of surveyed judges said the guideline ranges for possession receipt offenses were too high 71 percent said the mandatory minimums were too high notably the report was supported by every member of the commission i believe the question which senator texas was referring to was part of the proceedings that led to that commission report unanimous bipartisan basis commission report mr chairman very briefly i would ask unanimous consent that the books are referenced be entered into the record without objection senator coons thank you chairman durbin ranking member grassley judge jackson good to be with you good to be with you senator i i'd like to take a few minutes if i could and just give you a chance to address some of the issues just raised my colleague suggested that you've never sentenced a defendant in a child pornography case consistent with what the government requested what the prosecution requested but according to my staff's research that's just not true so let me briefly ask you about three specific sentencing cases do you remember usv nickerson you sentenced charles nickerson jr to 10 years in prison exactly what the government requested i do senator do you remember usv fife you sentenced him to 20 years in prison exactly what the government requested i do senator and do you recall usv negin um you sentenced him to 37 months in prison exactly what the prosecution requested i do senator so in these three cases it's also true that the government the prosecution requested below guidelines sentences would that seem surprising to you at all it would not and is that because overwhelmingly nationwide in 70 of cases and in your district 80 percent of cases downward departures from the guidelines are the norm that is correct senator so to the extent there seems to be some concerted effort to try and characterize you as being soft on crime or somehow unconcerned about child safety uh i just wanted to take another moment um and give you a chance to respond to that um as a parent uh as the member of a family that's had several members who've served your brother your uncles in law enforcement could you share a bit about how having loved ones who serve as law enforcement officers in one case a detective on a sex crimes unit has had an impact on your sense of the balance of justice and mercy in the case of ensuring that we hold to account those who commit crimes against children thank you senator as a mother these cases involving sex crime crimes against children are harrowing what i think is important to understand is that trial judges who have to deal with these cases are presented with the evidence or descriptions graphic descriptions these are the cases that wake you up at night because you're seeing the worst of humanity when when there are victim statements that are presented when people talk about how their lives have been destroyed as children how the people who they trusted to take care of them were abusing them in this way and then putting the pictures on the internet for everyone to see i sometimes still have nightmares about the main witness the woman i mentioned earlier who cannot leave her house because of this kind of fear the vulnerability the isolation these crimes are are horrible and so i take them very seriously just as i did all of the crimes but especially crimes against children so your honor if i could um the the characterization that was just presented in a recent column in the national review a conservative publication has characterized that view of you as a smear that appears meritless to the point of demagoguery and characterizes your approach in sentencing in these cases as mainstream and correct and i'll just remind my colleagues and those watching that two of the largest most substantial law enforcement advocacy organizations in our country the national fraternal order of police and the international association of chiefs of police have spoken up in support of your qualifications and your capabilities the fop letter says there's little doubt you have the temperament intellect legal experience and family background to have earned this appointment that sentiment was echoed by the iacp in their letter they said you believe you have a deep understanding of an appreciation for the challenges and complexities confronting the policing profession and you have during your time as a judge displayed your dedication to ensuring our communities are safe and that the interests of justice are served i find it hard to believe that these organizations having looked closely at your judicial decisional record your sentencing decisions um your lifetime conduct would have taken those unusual steps to be that forceful in supporting you if in fact you had somehow a disturbing record of coddling child pornographers or being soft on crime in fact judge your record in my view demonstrates you're an even-handed and impartial judge and i can see that when i look at cases you've ruled on that involve very politically charged or partisan interests you've delivered rulings on both sides for plaintiffs and defendants and in my review of your record you've put any personal views or concerns aside you've based your decisions on the argument of the parties the facts in the record the applicable law and precedent and the well-reasoned and thorough opinions you've written show to me a judge striving to make even-handed decisions based on facts and law not on some caricature of a leftist agenda but don't just take my word for it um we've received an outpouring of support for your nomination as we'll hear on thursday a very wide range of groups and individuals have sent letters or testimony to this committee in support of your nomination it's no surprise to me that your your legal mind your experience your temperament inspires strong support from some of the best and brightest of our legal community and i think it's worth highlighting that among those many who have written to us are included well respected conservative and republican lawyers and republican appointed judges who agree with my characterization that you're an even-handed and impartial judge we've received a letter from 24 conservative lawyers who held positions in republican administrations or well known for their conservative political or legal views who wrote this committee to urge your speedy confirmation they praised your character and intellect and called you and i quote a truly excellent person i'd like to focus though on the way that these conservative lawyers characterized your judicial decision-making which is after all the core issue before us is whether you are the sort of judge at the district court circuit court that should be elevated to the supreme court and they note in this letter that in nearly 10 years on the bench as a district judge and then the court of appeals judge jackson has been involved in thousands of cases running the full range of federal law you're approximately 500 i think it's more than 570 now opinions written during this time haven't i'm quoting demonstrated complete command of the legal subject matter a judicious and even-handed approach a fine ability to express yourself with force and great clarity they've also demonstrated and i'm quoting another attribute essential for a judge a sense of empathy for the situations of others judicious and even-handed these prominent conservative lawyers want this committee to know you're judicious and even-handed and recommend you for the supreme court without reservation despite having noted they differ with you concerning some political or partisan issues and they're not alone um judge griffith in a letter to this committee and then followed up with personal testimony in your introduction yesterday a judge appointed by former president george w bush enthusiastically supports your nomination i was struck by his description of your intellectual capacity your keen legal mind as well as your character and judicial approach and now i'm quoting from his testimony to this committee yesterday judge jackson he told us is an independent jurist who adjudicates based on the facts and the law not as a partisan he went on as justice scalia taught us an indispensable feature of the republic the constitution created is an independent judiciary of judges who've taken an oath not to a president or a party but to the american people and to god that they will be impartial and he concluded that you judge jackson have demonstrated an unwavering commitment to that oath that's a conservative judge appointed by a republican president who told this committee he's confident you'll decide cases based on the facts and the law not as a partisan now i value the working relationships i have with my colleagues on both sides of the aisle we can and do at times have fierce policy disagreements but we also work together to try and find ways as lawmakers and individuals to respect each other and i take it as a personal sort of badge or source of pride when someone with whom i really disagree on one issue is able to legislate with me on another and so i imagine your honor it must be gratifying to know that a judge who literally sat in judgment of reviewed dozens and dozens of europeans in fact i think you reversed you once oh more then more than here is someone who closely read and reviewed your decisions and as a circuit judge sat in review of your work over years as a district hundreds of opinions as a district court judge and has such unequivocal praise for the even-handed impartial thorough and non-partisan way you've approached judicial decision-making could you just briefly share with me what it means to you to hear that someone like judge griffith has such confidence you would make an excellent member of our highest court thank you senator it means the world to me to have the support of judge griffith his coming here yesterday and testifying on my behalf was so gratifying um i have tried in every respect to follow my methodology that enables me to rule impartially in every case and to understand the limits of my own judicial authority and therefore thereby reach decisions without fear or favor my record demonstrates that i am not proceeding from any sort of preconceived notion about how a case comes out i'm not ruling consistent with any sort of ideology i'm doing what impartial and fair judges do which is to decide in every case based only on the facts and the law of that case and i'm very very pleased that judge griffith has seen that in the years that he supervised me effectively as a court of appeals judge when i was a district judge and i think it it's wonderful that he was able to come here and testify to that well judge for those watching and um for those following this that they might be puzzled because my colleague the junior senator from the state of texas has tried to ascribe all sorts of views to you in his recent questioning that try to paint you as some kind of a of an activist with a radical agenda and in my review of your experience and your record these letters from judges and scholars i i don't see anything that remotely substantiates that claim we are here to evaluate your qualifications your judicial decision making but so let me get at a few of these points specifically if i could i've heard references to the 1619 project and critical race theory but i didn't hear that cited in any reference to your opinions as a judge in your nine years on the bench as a district court judge more than 570 decisions have you ever cited the 1619 project no senator in your nine years on the bench in more than 570 opinions have you ever cited the journalist or principal author of that 16-19 project ms hannah jones i have not and in your nine years in the bench in more than 570 decisions have you ever used employed relied upon critical race theory to determine the outcome of any case or to impose any sentence or as a as a framework for your decision making no senator um would you just explain to us briefly what sort of factors you do in fact consider in your analysis senator when i analyze a case i am looking at the arguments that the parties raise in the case i'm looking at the record which is the facts of the case developed if i'm on the court of appeals developed below and i'm looking at the law i'm looking at any statutes i'm queuing to the text i'm looking at constitutional provisions to the extent that they are applicable and any precedent related to the case at issue those are the inputs that are appropriate for a judge to consider and those are the only things that i use in my decision making well i i appreciate your laying that out and i i'll just let me dig into two cases if i can that i think are also probative here because i i agree with the wide range of supporters we've heard from that you've demonstrated an even an impartial judicial approach in your record um but this is true not just in the hundreds of sort of run-of-the-mill um quotidian cases that are considered by a district court judge but in several that have been highly charged and really quite political in terms of their consequences um i'd like to discuss your opinion in the center for biological diversity versus mechalenin do you recall that case i do senator it was a dispute between groups advocating for environmental protection and the trump administration's department of homeland security the dispute was about president trump's efforts to quickly construct a physical border wall between the united states and mexico i'm sure i don't need to remind you or anyone here that at the time um democrats were just about unanimous in thinking that physically building a wall from coast to coast was not the wisest use of resources to secure the border there were other ways to do it and with republicans pretty much unanimously willing to defend it so it was a policy matter with some sharp divisions and some political consequences you ultimately ruled in favor of the construction of the wall and against an attempt by environmental groups to halt its construction through legal case through a legal case can you discuss what you recall just briefly of the claims presented and how you came to a decision in favor of the trump administration senator the claims in that case uh which as you say were brought by an environmental organization related to the administrative procedures act which is something that we often see in the district of columbia and whether or not the agency could waive certain environmental laws pertaining to the construction of the wall whether or not the agency's determination to do so was lawful and i looked at the relevant circumstances and i ended up i believe dismissing that case on threshold grounds before getting to that point in the analysis but consistent with what you said i was guided by my understanding of the law and what it required and not by anything else i could spend a lot of time on the details of this case um but let me try and summarize it this way you analyzed the statute you concluded congress had clearly blocked the courts from hearing non-constitutional challenges there was no jurisdictional bar to the constitutional claims to decide them you considered whether the plaintiff's claims were viable you looked for precedent you found one while not controlling you thought it was legally sound and persuasive but there was no controlling circuit court or supreme court precedent that stopped you if you were in fact an activist judge a motivated partisan determined to let these plaintiff environmental groups proceed you certainly could have there was no clear precedent that barred that from happening you analyzed the statute you applied the best precedent you could find and you reached a result without regard to the political consequences that is correct senator so in my view um i wanted to talk about this case because it it there's really nothing unusual or special about it from your perspective that is correct for those of us up here there was a lot special and important about it it was a highly charged partisan and political issue but you looked at the statute you found persuasive precedent you applied it you went on to the next case well let me ask about another decision in a case addressing another very politically charged issue and specifically this involves the emails of former secretary of state hillary clinton now the republican national committee or the rnc is opposing your nomination publicly accusing you of being a partisan of a partisan democrat and they argue you could not possibly be an impartial justice but ironically back in 2016 you presided over a case brought by the rnc against usaid related to then presidential candidate clinton and you ruled in favor of the rnc both the substance and the timing of the case are really quite striking i did the rnc made freedom of information act requests for certain emails involving the former secretary and despite what the rnc would have us now believe um in this case you reinforced your deserved reputation for following the law not a partisan agenda because you ordered usaid to produce thousands of pages of documents related to secretary clinton do you recall when you issued that decision that order i actually don't well i'll tell you it was just before the presidential conventions so if there was a moment when the rnc had a political objective it was right before the convention and you actually issued a ruling that they were entitled to email production from the usaid on the basis of legal arguments presented to you the statute at issue and the evidence is that correct that is correct well your honor i'm you know i'm frankly really struck um at the fact that you know for all the back and forth in senate hearings and academic circles about the judicial philosophy of supreme court nominees you've shown what the experience of nearly a decade overwhelmingly spent on the district court has produced a methodology an approach that looks at the constitution the statute the facts the arguments of the parties and reaches a result without fear or favor without taking into account the partisan issue at stake you know i don't believe that a judicial philosophy is always all that meaningful the judge for whom i clerked on the third circuit had spent years as a district court judge and when i asked her you know what's your judicial philosophy she looked at me and said i just call balls and strikes i'm a judge who rolls in the case before me in exactly the same frame that you offered a judicial philosophy does not in and of itself constrain a judge what constrains a judge is a judge who is willing to be constrained who understands that the role of the federal judiciary is a limited one and so the real question i think a president should consider when they make a nomination the question that we as senators need the answer to in order to perform our function of advice and consent and the question that i think resonates best with the american people who are concerned about this hearing and this nomination and how it will impact the country and their lives is sort of what kind of justice will you be we want to know if you'll be fair we want to know if you'll be faithful to the constitution and to the rule of law you've been a judge almost 10 years and you've written more than 570 opinions i'd say your record as a judge is the best answer to the question what kind of justice you will be how would you say your honor that your approach to judging on the district court relates to the way you are now judging on the circuit court and what approach do you think you will bring with you if confirmed to the supreme court thank you senator my approach all the way through is one that i believe is required by my duties by my oath as a judge we rule without fear or favor we are independent as judges in our responsibilities we understand at the district court level at the court of appeals level and at the supreme court that judges are restrained are constrained in the exercise of our power under our constitutional scheme my methodology is designed to help me to make decisions within those confines at every level it's no different now that i'm on the court of appeals than when i was on the district court with respect to my understanding of the constraints on my authority and my responsibility to be impartial in my rulings and i think it would be no different at the supreme court well your honor i i know we've walked through just a few cases today now in some ways we've only scratched the surface of your decade and the more than 570 opinions you've written but it's clear to me from what i've reviewed and from just this sample that as we also heard from colleagues from conservative lawyers from judges who wrote to the committee that you are judicious and even-handed that you have a demonstrated record of excellence that you adjudicate based on the facts and the law and not as a advocate activist or partisan um and i encourage my colleagues who want to know what kind of a justice you'll be to take a fair and even-handed look at your record at your impartiality and at your methodology your experience is extensive and broad your commitment to follow the law impartially without the influence of politics is evident in your record your keen legal mind judicial temperament and impeccable character are plain to all as judge griffith told this committee in a review of your record makes clear you've demonstrated that the way you approach cases is based on the law and not on some political agenda you understand the reason why the robes of our federal judges are black not red or blue the american justice system as many have said is rooted in the impartiality the independence and the reliability of our federal judicial system is one of the most critical bulwarks of our system of ordered liberty no wonder that when you came before this body to be confirmed for the district court then the circuit court you earned and received bipartisan support i know president biden counts nominating a supreme court justice among the most significant decisions of his presidency and our role here in the senate in confirming a justice to our highest court is among our most solemn obligations and greatest privileges so in nominating you i believe our president has met his mission and it will be my honor to join i hope the overwhelming majority of my colleagues in supporting your confirmation as an associate justice of the united states supreme court thank you your honor thank you senator coons last week the committee received a letter judge from the national coalition against domestic violence representing survivors of domestic violence urging the senate to swiftly confirm you to the supreme court committee also received a letter about your nomination from nine separate organizations representing both survivors of domestic violence and sexual assault the letter said and i quote judge jackson is highly qualified for the position as her career and record demonstrate her historic confirmation as supreme court's first black woman and the sixth woman overall will represent monumental progress toward a nation it is charged to serve and that values all of its citizens equally the organizations also noted quote jackson's rulings reflect the judicial consensus i move to enter these letters into the record without objection they will be senator sass you're next up but we're on a cusp of a vote so i want to be fair to you we're going to take a break at this point i'm going to hope i thought we were taking a break and going to go vote but if you want me to go first i'm good no i think we ought to go over there and okay pray that it comes along and we can return quickly so why don't we declare this break time for 20 minutes 405 back in the room 20-minute break for the senate judiciary committee hearing and for judge katanji brown jackson we are deep in this process but there are stop still a lot of senators who get to ask their half hour worth of questions today next up as you saw will be senator ben sasse republican of nebraska i'm libby casey let's go to james homan james the exchange with senator ted cruz was perhaps the newsiest of this most recent set of exchanges because ted cruz is really trying to press her and have some like gotcha moments on some of the hot button issues of the day yeah two former harvard law school classmates arguing about her law review note that uh she wrote uh and and you know you had ted cruz literally introducing children's books into the record trying to create youtube moments uh in many ways uh trying to steal the thunder of josh hawley who we're to hear from later this afternoon who has made very clear that these are the some of the same lines of attacks that he is going to pursue and it really was senator cruz sort of throwing the kitchen sink of talking about critical race theory the 1619 project and then the sentencing record uh using lots of charts uh it was you know designed to be compelling television and then you really saw chris coons devote more than half of his round of questioning to basically helping with cleanup uh you did see judge jackson who has maintained her poker face and composure come closer than at any time during the last two days to losing it as as cruz in some ways sort of badgering her uh and uh and coons sort of allowed her to talk about you know ruling against the republican or ruling in favor of the republican national committee and trying to to really change the tenor uh and the energy level in the room after 30 rough minutes with cruz yeah let's talk about how this is going in terms of the pacing james so obviously democrats control this committee it is evenly divided between democrats and republicans reflecting the even split in the senate what we do see the chair tending to do is ending on a democrat now this is votes are coming up right now so that's why they're taking this pause at this moment but generally we see the democrats have the opportunity to sort of have the last word before they take a lunch break or another quick stretch or legs break but senator coons specifically worked on refuting as you pointed out what senator cruz had done and that's not something we saw yesterday where it seemed like democrats and republicans were on two very different roads and the criticisms that republicans were putting out there were sort of just left hanging in the air because judge jackson couldn't refute them herself yesterday yeah it really is remarkable and compared to yesterday the other striking thing has been that dick durbin the chairman democratic senator from illinois really is playing almost the role of fact checker referee three or four times now after a republican has finished asking questions he's read uh from a piece of paper that has sort of basically a fact check uh challenging some of the claims that that republicans were making with coons it was particularly striking because he sort of speaks centrist he other than amy klobuchar is probably the most moderate democrat on the committee and he uh he got judge jackson to say what she could have said on her own but didn't which is that she's never cited the 16 19 project in any of her 570 plus decisions and that critical race theory has never appeared in any of her decisions he sort of coaxed her into making helpful points that she did not uh under the the intense questioning of cruz let's play a little bit of that exchange the one that sort of started that series this is senator cruz a reminder that he was a classmate of jackson's at harvard law school as james just told us he asked the judge about her understanding of critical race theory let's watch critical race theory as you know originated at you're in my alma mater at the harvard law school uh in your understanding what what does critical race theory mean what is it senator my understanding is that critical race theory is [Music] it is an academic theory that is about the ways in which race interacts with various institutions it doesn't come up in my work as a judge it's never something that i've studied or relied on and it wouldn't be something that i would rely on if i was on the supreme court that's part of the exchange earlier james why this focus on critical race theory this is the buzzword on the right and it is used among conservatives as a catch-all uh for various different things that republicans don't like right now it you know it was a huge issue because republicans made it so in the virginia governor's race uh glenn younkin campaigned against crt the republican national committee uh put out a basically like a graphic today where it said kbj katanji brown jackson and then it crossed it out and wrote crt uh this is is just a buzz word that two conservatives mean something very sinister uh but in in the practical application uh you know is a is a pretty obscure uh law school graduate level framework for thinking about uh conflicts uh racial conflicts in society and how the laws are inherently uh racial even if race is never mentioned in the law uh and you know this this was this is something that has existed since the 1980s and it was totally obscure uh outside of the law schools and faculty lounges until the last uh really two years you know it's interesting to see the spin game that happens very quickly of course on both sides but the rnc the republican national committee has is already like tweeting out excerpts of ted cruz grilling judge jackson and making it seem like judge jackson wouldn't commit on whether or not you shouldn't teach children that babies you know are racist or aren't racist uh to be clear she very clearly said that she believes children you know should be treated with compassion and not with the assumption of any sort of inherent racism um you know it when you see those images that ted cruz was holding up james what is this all meant to do it's it's meant to cast out on her to make her look outside the mainstream uh to play on uh racial caricatures and uh and to to you know i think what cruz was trying to do was to make her look angry he was trying very hard to get under her skin and there were a couple times where she paused to take a deep breath because she was well aware that that was the game he was playing so along those lines something near and dear to her heart local school georgetown day school which senator cruz was needling her about he brought up remarks that she had made james that the school has a mission of social justice and jackson responded with some history pointing out it was founded in 1945 in washington during segregation let's listen to more georgetown day school has a special history that i think is important to understand when you consider my service on that board the school was founded in 1945 in washington dc at a time in which by law there was racial segregation in this community black students were not allowed in the public schools to go to school with white students georgetown day school is a private school that was created when three white families jewish families got together with three black families and said that despite the fact that the law requires us to separate despite the fact that the law is set up to make sure that black children are not treated the same as everyone else we are going to form a private school so that our children can go to school together the idea of equality justice is at the core of the georgetown day school mission and it's a private school such that every parent who joins the community does so willingly with an understanding that they are joining a community that is designed to make sure that every child is valued every child is treated as having inherent worth and none are discriminated against because of race james let's go to you for reaction on that that was uh clearly a well-practiced answer they knew uh that it was coming probably before marsha blackburn leveled that line of attack yesterday and it is uh exactly what a championship debater is taught to do which is to take the very specific question about books and to go high altitude to go from 2000 feet to 30 000 feet which is what she did there rather than engaging on the texts uh that are on some recommended reading list she said as a member of the board of trustees that's not what you do we're not setting curriculum we're focused on bigger things and then she stepped back and told the history of the school it was her strongest moment in that 30 minute back and forth with cruz and uh it it really undercut the the pacing that cruz was trying to set up in his cross-examination another another high school uh champion debater let's go to rhonda colvin who's on capitol hill and was in that hearing room this afternoon rhonda give us a sense of the energy in that room especially for that testier exchange with ted cruz you know first off it's it's really quiet there is no open seats really uh there are many members of her family there are also people who are guests of senators who are entering members of the public who were able to get a ticket to this what is striking because this is such a long day and it follows a long day yesterday everyone seems to be a captive audience in there they seem to be very interested in her answers and particularly when ted cruz was speaking and asking her those questions about critical race theory the 1619 project all of these things that she said were not a part of her job as a judge i noticed a lot of the people in the room were kind of you know watching and her brother sitting at the edge of her seat everyone was watching her not necessarily ted cruz's questions and what the substance might have been there but really how she was handling it so that was a part of the day where i noticed people were really watching to see how she was going to handle herself of course she paused i believe uh after one question from ted cruz and it appeared that she was really trying to find the right words of course this is all on the record so she wanted to uh be sure that she answered correctly and where i was uh standing in that room is right behind where the senators are so i was watching her that entire time and you could see that she definitely did not want to misstep during that time of course we know that she has prepared for this she's also been in front of this committee now for a fourth time so she probably knows the pace of things how earlier today it was more of those those republicans and democrats who are more senior she could anticipate their questions and now she's sort of preparing for that this end of day group of senators who may have more livelier questions may have those fire brand questions that we've been talking about one other interesting note from the room um where i'm standing i can see her family and they are very interested in what she's saying they they are they're definitely they're uh in a supportive role they don't seem you know bored or that this is a long day her parents are really watching these proceedings and as i mentioned her brother is sitting on the edge of his seat i also noticed that her husband dr patrick jackson he is taking notes he has note pads in front of him where he has been jotting down notes through all of the lines of questioning which is uh definitely something that may pair with the fact that yesterday he teared up a little bit when she was giving her opening statement and sort of playing that supportive partner role but for the most part that room is uh very much interested in what is going on even as it's a long day for most people involved it seems to be very captivating to those watching thanks so much rhonda let's switch gears a little bit and bring in white house reporter matt viser he's been at the white house today for a briefing so matt first of all there was breaking news this afternoon that white house press secretary jen sackey has coveted and this is sort of derailing some of the plans of the week tell us more yeah libby it sort of came in an announcement the white house briefing was supposed to be at one o'clock today it got pushed back to 1 30 which is not unusual typically white house briefings are delayed a little bit but probably about 140 145 the briefing room was packed and everybody saw on twitter that jinsaki had announced that she had tested positive for kovid we were expecting at the time for her to walk out of the briefing room doors to begin this this daily news briefing um so it came as a shock to the room so she has tested a positive meaning she's not going to be going on the on the trip which president biden is scheduled to leave tomorrow for brussels um so it it came as a surprise it's the second time she's tested positive the first time was also on the eve of a foreign trip that the president was scheduled to leave on about five months ago when he went to italy for for meetings there so that came as a surprise instead chris marr the deputy press secretary came out and started the briefing jake sullivan the national security advisor gave a briefing and sort of a preview of president biden's trip but certainly a rapid developments uh involving jinsaki and and and those who've been in close contact with her she announced in her statement that she had met with president biden twice yesterday she said those meetings were at a social distance so the president is not considered a close contact of her hers but the white house is now undergoing some contact tracing to figure out who's been uh in close contact with her and who else uh may need to you know be tested and and consider quarantine and of course on the eve of this trip just just in practical terms what does this mean for the press team uh and and having to shift things around based on this uh this positive test so so they're gonna send somebody else on the trip uh you know she was scheduled to to give a briefing uh tomorrow on air force one as as uh the press corps and uh the whole sort of apparatus around the president is traveling to brussels uh so somebody else will be uh briefing on that trip they haven't yet announced who that will be um you know so that sort of changes the element of you know kind of this it's a crucial moment for for the president maybe the most important foreign trip that he's taken as president so it certainly changes the the press structure or who's the most forward-facing uh among the communications staff at at a crucial time uh for president biden um we're told that jake sullivan was not a close contact with jen uh sake so it it it's unclear at the moment sort of who else around the president may be impacted by this so far it doesn't appear to be as many people so so i think you know the structure around president biden heading over there um will be similar uh we're also told that president biden tested negative uh again today given a pcr test so he himself has not been impacted but certainly those around him are are being impacted by by this new variant it seems matt you emphasized the importance of this trip coming up what are we expecting to see from the president over the next few days as he travels overseas so jake sullivan uh you know in this in this uh briefing uh this afternoon gave a little bit of a preview uh you know the president is going to sort of shore up allies meeting with nato meeting with the eu um you know it's it's there's going to be some announcements coming out of this uh jake sullivan previewed a little bit an additional sanctions package ways to crack down on countries that may be allowing russia to evade some of the previously announced sanctions uh that could be announced on on thursday um there could be re-evaluation of troop levels uh you know on the eastern flank long term uh you know as a result of of russian aggression kind of shoring up nato uh there could be also announcements related to russian gas uh exports and and how europe may respond uh to some of those things um the president is also going to poland uh there's not been a huge amount of detail about poland and and whether president biden will be meeting with refuge of a lot of ukrainians fleeing the country um so it's unclear if but if the president is going to meet with refugees he is meeting with the president of poland um and he's going to be with u.s troops in poland um so there's certain aspects of the trip that we're we're learning about but there's a lot still left to be determined and matt how focused on the proceedings on capitol hill is president biden and his team they are focused and we were told that yesterday president biden wanted uh numerous updates throughout the day on how the hearings were going uh that has continued today i mean they're certainly watching closely there's white house staff on the hill paying close attention to every aspect of this hearing it's a it's a big moment for the president and certainly as a former chairman of this committee you know he's closely attuned to it but i think probably most of their attention has still been on ukraine and preparing for this big trip but he's getting updated throughout the day thanks so much matt viser covering the white house let's go to ruth marcus deputy editorial page editor ruth thank you so much for joining us you have covered the supreme court for such a long time in such an in-depth way i'm so curious to get your read on on how things are going and and how both judge jackson is doing but also how the questions are going well you know every i think every confirmation hearing disappoints in its own way and this one is no exception really um we used to and my experience goes back further than i want to admit but judge bork who's been mentioned we really got full discussions of issues of law here and the republicans aren't really hoping to defeat judge jackson from becoming justice jackson the third justice jackson they just want to put you know tarnish her a little bit and score some political points against her but also for some of the presidential wannabes on the committee and we've seen some of that and i'm sure we'll see more for themselves i think she's doing fine i think that in particular her answers on the child pornography the the clear emotion that she has talking about waking up at night having nightmares about these kinds of cases show her to be a human being which judges are allowed to be and show that she doesn't have some kind of secret agenda to loose child pornographers on the nation ruth um you know you raised such an important point about the substance are we really learning substance have you learned anything about what a justice jackson would do on the supreme court have you gotten any more insight into her philosophy or how she thinks about the law i wish i could say that i have i want to go back over the interesting conversation that senator cornyn had with her about substantive due process that was about as substantive as we got today we are going to learn today how much stamina judge jackson has because it is very hard to do this half an hour after half an hour after half an hour with 22 members of the committee but i can't say i've learned a lot about her judicial philosophy i think if these days if you want to learn about i'm sorry to say if you want to learn about a judge's judicial philosophy you should read her opinions and not rely on this judiciary committee to get it for you but this is kind of the least ever it feels like to me so among the many uh very weighty things you know about judge jackson you have also shared that she is a knitter on the lighter side of things she's a knitter and i bet she wishes she could knit her way as anyone who knits knows it's a good way to keep your hands busy while you're listening and absorbing while your mind is also busy i should have brought mine with me i have been known to knit during editorial board meetings but never in person only on zoom and can you imagine how great it would be like the knitters of america would rally to her cause if she had the audacity to bring her knitting to the hearing um i i also want to ask you about something that you said is is sort of your favorite case that she that she uh that she's related to talk to us about a case that stands out to you well um the case that i mean she's best known for ruling against don mcgann and president trump in requiring that he turn over materials or make himself available for questioning but the case that i like the most involves a guy of obscure prisoner arrested i can't even remember for what who was housed at the d.c jail and he was deaf and he got no accommodations was unable to communicate with his jailers they're supposed to under the federal anti-discrimination law provide him special services he got nothing he couldn't ask for various things that he needed and i i think that what you are as a judge who you are as a judge in your judicial temperament and philosophy doesn't just come through in the big high profile cases that you have but it comes through in those little ones about people who aren't well known that no one is going to very much likely read and i thought this was a case where her humanity really shone through ruth how different of a court would this be uh if everything goes according to the democrats plan and president biden's plan and she is confirmed to the supreme court because you know we keep hearing of course that it's like swapping a liberal for a liberal essentially as they lose justice breyer and would gain her different and not different i think a court with four women is a very different court from the court that i of my childhood and young adulthood which had no then one then two then finally three and now four women on it that's a plurality in court terms almost a majority that'll be different she will i think she's going to be more focused and passionate in some ways than justice breyer was she brings obviously the perspective of being a black woman instead of a white man and an older white man but the outcomes of the cases really won't be different at least for many years to come as i'm sure you've been talking about um than they would be if justice breyer was still we're still on the court let's bring rhonda coleman back in the conversation since she's been in the hearing room today rhonda what is the energy level like compared to recent confirmation hearings that we've seen in the past few years i'm thinking especially of the intensity of kavanaugh's confirmation process you know i think the mood here on capitol hill just overall has been that this is a part of a historic moment that despite what you might feel about uh her ideology or a conservative conservative judge's ideology this is history because it has never happened before so i think that that is energizing the hill a little bit um with kavanaugh that was a little bit of a different situation i was here for that that was in a different room um and that a lot of the media we were outside in the hallway uh and we were following it that way and seeing people coming and going and you'll remember that that situation it played out in the normal ways at first it was about 10 days later when that letter surfaced from dr blasey ford who had said that he had sexually assaulted her when they were younger that did not come to light until days after and remember the judiciary committee suspended their vote on his nomination until they had a chance to interview her i was also on the hill for that as well and those days were filled with protests in the hallways outside of the capitol you couldn't walk through a senate hallway without going through just crowds of people who were here for both sides pro kavanaugh and against him so that experience was a lot different from probably most supreme court nomination processes right now i think a lot of people are just energized about the history and of course because of the pandemic you don't have crowds in the capital complex as much as you did in those prior confirmation processes as i said earlier there are people members of the public inside this hearing room but they are invited guests of senators so that that kind of brings down the the number of crowd uh people in a crowd down significantly when the capital is still kind of easing its way back into normal activities in terms of having people tour here but again i think that there's a lot of energy because this is a historical moment no matter you know what side of the aisle folks are on i do notice some a stepped-up security presence especially when you get closer to the hearing room um they're they're looking for the badges that we all have to make sure that we can get through certain points or they'll stop you if you don't have that badge that could be something that's part of an effect from kavanaugh there were a lot of arrests here because of the the number of protesters that were filled uh throughout the the complex at that time so i think that the supreme court nomination processes are closely watched and the police are certainly on heightened alert we see the nominee heading down the hall back to the hearing room but but ruth i want to go to you for sort of the baggage and the back story of the recent confirmation processes because we're hearing it them invoked largely by republicans but democrats sometimes as well talking about sort of past transgressions by the other side as they see them over the last few confirmation fights this is exactly what i'm writing about today libby that because there's not that much to talk about with this nominee these uh this hearing in particular strikes me as a opportunity for republicans to dredge up um these ancient and sometimes more recent grievances about mistreatment as they see it of nominees past and so we've heard a lot about judge fork about justice kavanaugh and about somebody i'm writing about tomorrow who many people probably never heard of janice rogers brown who no coincidence why she's being brought up she's a black woman who was eventually concerned uh confirmed to the dc circuit that judge jackson sits on but she was filibustered for a long time and republicans are trying four of them mentioned her yesterday the republicans are trying to make some hay about democrats allegedly situational support for diversity well we look forward to reading that ruth thank you so much let's go back now to the hearing room sas thank you chairman judge welcome back um by my quick eyeballing count of this you are 51 done as of this moment which feels more like cursed than blessing but i meant it as a good thing i think i think i'm number 12 of 22 so you're just passed halfway down on the downhill thank you as well for spending time with me in my office and thank you for answering the questions of the committee today and tomorrow what you've said in public matches what you've said in private and that's obviously a testimony a testament to your character that also can be helpful to rebuilding public trust so thank you for the way you've the ways you've engaged thus far um judge you are likely to go on to serve a lifetime appointment on the supreme court which means that this is very likely the last job interview you ever have um and the most public senator yeah these processes are a lot like a proctology exam um that means that it's an opportunity for you to explain to the american people how you view a supreme court justice's job and the limits and bounds on that job so i want to go back to a topic that you and i have discussed a few times which is how you approach cases you've told this committee and you've told me in private that you don't have a judicial philosophy yet but that you think of yourself as having more of a judicial methodology i'd like to understand that a little bit more and i think it would be helpful for the american people to understand that argument and that distinction a bit more as well earlier today you said that you quote do not believe there is a living constitution and you also said that you're constrained to interpret the text and that's i think you said sometimes that's enough to resolve the issue so i think i've heard you pay partial tribute to the judicial philosophy of originalism but you've not adopted it or embraced it as a philosophy or label that applies to you so maybe one of the places we could tease that out a little bit more is trying to dig into whose jurisprudence you most admire um we've heard many nominees before like like senator grassley former chairman of this committee i'm not an attorney uh so the farming and ranching people where i'm where i come from uh know that john kennedy is super smart rhodes lawyer who kind of pretends to be a you know aw shucks kind of guy as he picks your pocket um grassley and i get equal times chairman he all he always gets unequal time uh he always gets bonus time uh but i think it might be helpful for us to understand who you most identify with and past nominees before this committee have talked about the mold of particular justices they thought they followed in and so if you had to tell the american people who you're closest to who is that justice or who are those justices well thank you for the question senator and i um i must admit that i don't really have a justice that i've molded myself after or that i would what i have is a record i have 570 plus cases in which i have employed the methodology that i described and that shows people how i analyze cases i in every case am proceeding neutrally from a neutral posture from every in every case i describe thoroughly all of the arguments that are made in the case to me as a judge because i want in my lengthy opinions for people to understand the inputs this i say is what i'm considering because i lay out in very you know detailed way everything that people have argued in all of the cases and then when i'm doing my interpretation i am focused on the text of any statute or constitutional provision i am looking as appropriate to the intentions of the people who wrote the words because i view statutory interpretation constitutional interpretation those exercises consistent with my limited authority i am conscious of not interpreting those texts consistent with what i believe the policy should be or what i think the outcome should be i am trying in every case that involves that kind of interpretation to assess what it is that the parties the parties who wrote the text intended and as a result because my methodology involves um these various pieces and um because of the way in which i do things i'm reluctant to establish or to adopt a particular label because the idea of how you interpret is just one part of the entirety of a judge's responsibility as i mentioned you know i'm looking at the facts in a case and my experience as a trial judge helps me to assess the facts from all of the different perspectives of the parties because i'm able to do that i think having heard from parties in all sorts of cases directly as they present their arguments that's a part of the judging responsibility that isn't really captured by something like originalism or living constitution and i believe that the constitution is fixed in its meaning i believe that it's appropriate to look at the original intent original public meaning of the words when one is trying to assess because again that's a limitation on my authority to import my own policy views but there are times when the meaning um unreasonable searches and seizures due process looking at those words are not enough to tell you what they actually mean you look at them in the context of history you look at the structure of the constitution you look at the circumstances that you're dealing with in comparison to what those words meant at the time that they were adopted and you look at precedence that are related to this topic all of those tools judges use and i have used is if if you look at my cases but when you say that you look at the intent of the authors of a statute sometimes courts have to say the people who wrote this statute whether they meant to or not have done something that we the judiciary decides speaking in the voice of you is unconstitutional and deciding that something is unconstitutional requires an interpretive framework for how you get there right and so you and i talked to my office about the differences between justices kagan breyer and sotomayor's judicial philosophies and you told me that you needed time to study that issue further so assuming that you've had a chance to think about that a bit more i guess i'd ask you again what are the differences among the three of their judicial philosophies with respect senator i have not actually had time with all of my meetings with senators and the work that i've done to appear before you today i would say that there are differences as you see from the various opinions that they have issued i'm not sure which one i would necessarily follow because it depends on the case i think their differences indicate that they are are looking at different provisions they are using the various tools that judges use and that i have used in my cases the the idea of um striking down a statute as unconstitutional is daunting and should be daunting um i think for any judge or justice and and had to be would have to be looked at very carefully because of the limited nature of the judicial role and the fact that the policies have been adopted by the branch of government that has that authority under the constitution so i i guess i'm surprised after nine years on the bench that i mean you're super smart nobody disputes that um and having worked for justice breyer and knowing of some of the fights some of the philosophical arguments he and justice kagan had um it just seemed surprising that you wouldn't be able to at least speculate not speculate but reflect a little bit on the nature of those disagreements because to say it depends on the particular case that's fine but they have different philosophical and hermeneutic approaches to the tax so maybe another way to get at it um i think justice breyer again for whom you clerked and justice scalia used to travel together and have lively debate circuit conversations can you tell the american people a little bit about what briar scalia roadshow looked like what were they arguing about well my understanding is they were arguing or at least presenting two different um viewpoints as to how the constitution should be interpreted and i would say um just as an aside before talking about their positions um that while i have been on the bench for nine plus years the issue of constitutional interpretation in that sense doesn't come up very often it comes up to the supreme court for sure but it doesn't come up very often in the lower courts what justice scalia and justice breyer i believe were debating was the justice scalia's notion of originalism meaning that the words of the constitution should be interpreted as they were written by the founders in the founding era and that they should not be considered to um essentially to establish principles that modern justices could now apply based on their own view of the needs of society and that justice breyer's position was more toward that latter view that the idea of the constitution needing to be interpreted in a way that is consistent with modern sensibilities about uh the principles that the document reflects and i would just say that it appears now that the supreme court has taken justice scalia's view that the prevailing interpretive frame for interpreting the constitution is now very clearly looking back through history so we see that even in the heller case where the justices even even the justices in descent were all analyzing the issues in the second amendment through a historical lens what what was meant at the time of the founding so that is now the way in which constitutional interpretation is done but do you identify with that position i identify with the position insofar as that's how the text is interpreted of the constitution that i am a strong believer as i said in uh precedent in story decisis in predictability in the rule of law and the way that the law now interprets the constitution is through this historical frame um i'm grateful for your last couple of minutes because i think that it's in the american civic interest for us to understand these different schools again non-lawyer here but my simple way of summarizing some of what i think i heard you just say is that scalia argues hard that the constitution has a fixed meaning and justices aren't really free to depart from it without a constitutional amendment passed by the political branches so that the voters get to hire and fire the people or have a role at the state level in the ratification of a constitutional amendment and breyer's position seems to me and i won't get it precise enough uh in technical legal terms joe's prudential terms probably to satisfy him but that the constitution is speaking to more abstract principles and therefore there's a lot more play in the joints of what a justice's job is and i think the way you summarized their debate was pretty fair and i also think it's fair for us to want to understand what your position is about it because you're obviously as i've said incredibly smart and incredibly likable and winsome and on the on the stage for a lot of americans to look up to i'm at the rah-rah here here side of that debate at the level of what is a supreme court justice's job i think that's why a lot of us are still trying to tease out the philosophical distinction which i think is more than just a methodology but want to want to thank you for that answer you've also brought up the the fourth amendment a number of times in our conversation and i would like to talk a little bit more about the constitution and whether it's meaning changes and so i'd like to go back to the fourth amendment topic you brought up in my office um you said i think that origin and correct me if i'm miss summarizing your position you said that originalism wouldn't have much to say about the fourth amendment because the founding fathers never conceived of a tool a piece of telecommunications equipment like this and so i think during our conversation you said that the original meaning of the fourth amendment won't tell you much about what to do with a new technology my guess is that originalists and scalia in particular would disagree so what what do you do if the text of the fourth amendment doesn't answer a question where do you go next well senator just to clarify what i intended to say and i may well have misspoken um there is an originalist take i think on the question of what happens with a cell phone as the supreme court held in the riley case there was a way in which you assess principles of the constitution the text of the constitution and apply it to modern technology and you have to because there's no question that cell phones didn't exist at the time of the founding so if the original originalist principle is we look only at the constitution as it relates to things that existed at the time of the founding there would be no answer to what to do about a cell phone and so what the supreme court has said and done is to determine that the principle of the fourth amendment with respect to searches is to determine whether there is a reasonable expectation of privacy they also have looked at property interests with respect to whether or not there's an invasion of privacy and then determined from history what that reasonable expectation of privacy related to back at the time of the founding and analogized to current circumstances related to things like cell phones it's it's a method of interpretation that allows you to instead of the the alternative which would be don't worry about the history just look at the words in the constitution and say what do i think is reasonable or unreasonable with respect to police officers searching cell phones that's not the way the supreme court handles it they try to determine what was unreasonable historically and then given those principles historically it would be unreasonable for police officers to enter someone's home to rifle through their papers and documents they then analogize to current circumstances and the fact that a cell phone is like your personal file cabinet and they say okay given what we understood the framers to have intended about the need for a warrant or the need for uh protection against unreasonable searches we're going to apply that to modern circumstances it's still an originalist way of analyzing the current dispute so are there non-originalist ways to wrestle through that same question and what would they be one could imagine that rather than referencing history at all that the court would look at the constitution it says no unreasonable searches and seizures and would just ask in the in you know in light of modern sensibilities in light of what we would think would be reasonable today or what the court itself would think would be reasonable today we'd apply that that modern understanding to the cell phone situation and the danger i think justice scalia would say is that that's a kind of framing that permits judges to make a determination based on their own views rather than hewing themselves as senator lee said before that justice barrett pointed out hewing themselves to the text of the constitution and does breyer have a different view you know i haven't um i'm just trying to think i i my understanding of the living constitutional principle is that it's closer to looking at the needs of modern society but i'm i'm not well versed in it in part because the supreme court has now so clearly taken the historical perspective uh the originalist perspective in its interpretations you brought up the cell phone example with me but i know you have others what are some other areas of life where the original meaning seems to be two and a half centuries removed what are what are places that the constitution seems to not speak to well senator i you know i'm reluctant to s spell out uh different circumstances what i will say is that when you look at the language in the constitution um there are some provisions that are completely clear on their face without any question of what was intended the age of um the required age of senators the required age of the minimum age of the president these kinds of provisions all you need is the text and and there you are um but there are provisions of the constitution that are broader than that and therefore some interpretive frame is necessary and to the extent i mean every question the supreme court gets that involves new technology for example that relates to constitutional provisions will require some kind of analogy i think um but you know i can't speak to to anything more than that you have described justice breyer's uh constitutional approach as pragmatic what does that mean i understand it to be um and his approach to be about ensuring that the rules that follow from the supreme court's determinations are ones that make sense and are workable um he he said recently um explaining his approach to interpreting a statute you're not going to go outside the words but it often doesn't give you the answer and you look at the history and you look at its purposes and you'll look at the consequences too and you'll try to evaluate them from that the point of view of what a reasonable legislature writing this statute have thought that these words were there to achieve do you do you align yourself with that position in the broad sense that what it is that the court is tasked with when statutory interpretation is being undertaken is to achieve the purposes of the legislature the text is the primary and in most cases sole indication of what the legislature intended as opposed to the court saying i see this statute but i'm you know uncomfortable with how it's going to turn out or what it's going to mean and so i'm going to import my own policy perspective instead the court is constrained to say regardless of what i think the right policy objective should be in this with respect to this law my purpose my requirement is to determine what congress intended but with respect to legislative intent when uh a congress of 535 often distracted people 100 in this body and 435 in the other passed something you know by a two to one-ish vote and it's a part of a large piece of legislation how do you how do you determine what the intent is when it's 535 people doing something that has many many different purposes for why somebody might vote yes well you you look at the text i mean the the the way in which statutes are interpreted is based on what the legislature says there are times in which there are statutes in which congress includes a purpose statement for example in the actual text of the statute you look at the text of the provision if that isn't clear you look at the structure of the statute there are canons of interpretation that courts use to evaluate and interpret statutes things like the a word that appears in the section that you are interpreting should be defined the same way it is in another section you know the same word being used congress probably intended to um for it to have the same meaning so there are tools in the law that exist to help courts to interpret the text but again the goal is to interpret the text um as a means of understanding and reflecting what congress intended and of course in statutory interpretation um if congress decides that the court has gotten it wrong then as has happened many times congress comes back and clarifies and tells the court no this is this is what the statute means i want to go back to an exchange you had with senator cornyn substantive due process is a doctrine that often allows courts to create new fundamental rights what's the test for determining a new fundamental right the supreme court has said in the glecksburg case that the fundamental rights that are recognized or that are included in substantive due process are those that are deeply rooted in the nation's history and tradition in a case prior to that the court had defined it as the rights that are implicit in the ordered concept of liberty or the concept of ordered liberty um so there are standards for the courts to use to identify these these types of rights so did the supreme court use this test in roe or casey in roe and casey i don't know that the court used that formulation i know that after casey the court has determined not so much that the right to terminate a woman's pregnancy is fundamental the the right exists and it's subject to the framework in casey that allows for uh regulation um so long as there's not an undue burden on the exercise of the right pre-viability i think some of what we're wrestling with here is the question of and i think what senator cornyn was driving at is how particular the concept of deeply rooted goes and how that really is abound uh on what the judiciary can do but i want to thank you we're nearly at time i want to thank you for engaging in the back and forth i want to think more about what you've said and look forward to further discussion tomorrow it it still appears to me that there's a very basic difference between a judicial philosophy and a judicial methodology into and how you go about applying that when you're interpreting a law and making a determination about uh constitutionality or non and i know that you haven't claimed a judicial philosophy at all but a judicial philosophy of originalism here but i do think the fact that you've at least nodded to it in the committee hearing today is in and of itself a pretty great testimony to how much of scalia and bork's work has has moved to the legal field so i'm grateful for for the time you're taking with us i'll look forward to listening tonight and talking with you again tomorrow thank you thank you senator sass senator blumenthal thanks mr chairman uh thank you judge for your patience and your perseverance uh i want to begin just by thanking also for an extraordinary moment in our history i think we all as americans feel excitement and pride in really making history here and the old saying that picture's worth a thousand words as i look at your parents and your husband and your daughters what i see is america and the best of america so i think we should all feel that excitement and pride in this moment and the extraordinary journey that has brought you here you will make the court look more like america but also think more like america in the obstacles and challenges that you've overcome to be here we don't know all of them but you will provide a very important perspective indeed a unique perspective that the court needs more than ever at this moment in its history there are a lot of people who are book smart there are not as many people who are person smart and you are both that kind of emotional intelligence is what our courts need not just our supreme court so i want to really begin by asking you as a role model for others to talk a little bit to the young women and girls of america particularly black young women and girls about those challenges and obstacles that you've had to overcome to be here and what's helped you do it thank you senator i am humbled and honored to have the opportunity to serve in this capacity and to be the first and only black woman to serve on the united states supreme court i stand on the shoulders of generations past who never had anything close to this opportunity who were the first and the only uh in a lot of different fields my parents as i said were the first in their families to have the chance to go to college i've been the first and the only in in certain aspects of my life so i would say that i agree with you that this is a moment that all americans should should be proud now you've never been a prosecutor a lot of us on this panel have been prosecutors i was the u.s attorney the chief federal prosecutor in connecticut for four and a half years and then i was attorney general of my state for 20 years but i would say one of the most meaningful cases in my career was as a defense counsel i was asked by the naacp legal defense fund to represent a black man on death row in your home state of florida he had been convicted of murder and rape had been on death row for a number of years and i took the case because i was asked to do it and eventually somewhat to my surprise found in fact he had never done the crime of which he had been convicted and eventually we won his freedom because the prosecutor in the case concealed evidence which was a violation of his constitutional rights and he was a free man as a result your husband as a surgeon saves lives lawyers don't do it often but i know from personal experience the importance of having a good representative an advocate a council because in that case he had been denied it when he originally went to trial and only after years in both state and federal courts was the truth vindicated so i want you to talk a little bit about why it is important for defendants to be represented by zealous really aggressive and energetic advocates who tell the truth to the court put on the evidence and present the best possible case for a defendant accused of a crime thank you senator the idea is one that is rooted in our constitution the framers were concerned about government overreach in a lot of different areas the provisions of our constitution are protecting individual liberty from government overreach this is why we have provisions about limited government and there are many provisions in the constitution that are limiting government action when it comes to the deprivation of liberty because the framers understood how important liberty is to our society and so there's the fourth amendment there's the fifth amendment there's the sixth amendment there's the eighth amendment these provisions are crucial and it is zealous defense counsel that ensures that the government is protecting these rights that ensures that these rights are protected and that people are getting due process in the criminal justice system and that's to all of our benefit that helps everyone in america when we ensure that liberty cannot be denied without due process it's defense counsel as i said who are making arguments and they're not condoning the criminal behavior they're making arguments on behalf of clients in defense of the constitution and these constitutional values and as a judge i now see how important it is for me to be able to make my decisions after hearing from both sides that's crucial we have an adversarial system which means that judges are presented with arguments from both the prosecution and the defense and only when i'm able to hear from both sides can i make a just fair determination and fairness is the hallmark of our constitutional scheme and it's what makes us the best criminal justice system in the world and it's not only the reality of fairness but also the perception of fairness the public's understanding of how courts work that is essential to the credibility that courts have correct that is correct and so uh i feel very strongly i know that a number of us on the committee agree that more transparency more visibility is important for the public to understand what goes on in the courtroom i know you feel transparency is a good thing you've been asked about cameras in the courtroom i'm a supporter of senator grassley's sunshine in the courtroom act as well as uh senator durbin's cameras in the courtroom act uh i am hopeful that the court the united states supreme court actually will back these proposals because their support would be very important tell me how you feel about the basic principle of transparency and more visibility well senator one of the reasons as i said that i write such long opinions is because i want everybody to know exactly the arguments i've considered the facts that i've reviewed and in pretty fine detail the course of my reasoning and i've done this in 570 opinions um i think it's important for public confidence as you say for people who are bound by the law and who are affected by the courts to know what the court's views are with respect to the issue of cameras in the courtroom i understand that that is something that is proceeding through congress and if i was confirmed i would look forward to talking with my colleagues to understand the positions that people have regarding that issue i appreciate that response one of the other areas that i think is important to transparency and to public trust and confidence in the court is visibility as to its own decisions which i think is directly contradicted by the shadow docket you've been asked about it before but i just want folks understand that some of the most important decisions the supreme court have been decided or at least issues resolved without oral argument without briefs without any public explanation a controversial travel ban has gone into effect the first federal execution in 17 years was permitted statewide covet restrictions were enabled the collection of data in the 2020 united states sense census and enforcement of voting restrictions in the 2020 presidential elections as well as decisions relating to immigration and blocking the biden administration from enforcing a federal moratorium on evictions imposed because of the covet 19 epidemic americans have a right to an open full fair proceeding with a record of the court's reasons for making decisions so i hope that you will urge your colleagues when you talk to them about cameras in the courtroom also to do less on the shadow docket and i hope that perhaps if they don't congress will take some action i uh finally want to ask uh so far as this issue of transparency is concerned about um codes of ethics you have followed a code of ethics as a district court judge and court of appeals judge correct i have does that code of ethics apply to the united states supreme court my understanding is that it does not correct uh and uh my hope is that you will perhaps urge your colleagues as well to support a code of ethics they haven't done so as yet but i think we have an obligation in the congress to set forth a code of ethics and i hope they'll support it uh senator durbin and others of us have supported that that kind of measure as well um and i i would just ask you whether you'll raise it with your colleagues if you're confirmed senator um certainly if congress is taking anything up and that requires our review i would absolutely um i would absolutely consider it to and even if not i would would consider it talking to them about it thank you uh you know the reason i raised these points is that um i respect the united states supreme court i've argued four cases before it i was a law clerk to justice blackmon uh who by the way was from minnesota mr chairman uh in fact he was known as one of the minnesota twins when he was appointed because he was thought to be exactly like then chief justice warren berger who also was from minnesota in his very very conservative views and as it happened justice blackman became one of the most progressive members of the court over the years that he served he had a capacity for growth and for learning and listening which i believe you have and i think it is one of the most important characteristics of anybody who serves on the court but i do think the court's crisis of legitimacy is the result of divisions within the court the polarization and politicization that has drawn lines the process that has happened in recent years in confirmation proceedings and so i really think that consensus building building bridges with your colleagues will be immensely important i think that's one of the reasons that the president chose you having talked to him about it that you have that kind of persuasive and forceful intellect but also the personal charm and warmth and depth that will enable you to do it maybe you can tell this committee about how you worked on the sentencing commission for example or in your previous experiences on that kind of consensus building thank you senator um consensus building was one of the things that justice breyer was particularly good at in terms of his personality in the time that i clerked for him i witnessed the way in which he continually reaches out to colleagues continually seeks common ground and it's something that i would hope to be able to emulate if i were to be confirmed when i worked on the sentencing commission the commission is a seven member body um working on sentencing policy which is at times a pretty contentious effort because we're talking about criminal justice as commissioners we are working on policy issues related to appropriate sentencings and [Music] by statute the commission is is a bipartisan group and during my four years as a commissioner i was able to work well with other members of the commission to find common ground to work on issues to come together and the vast majority i heard a statistic that something like 95 or 97 of the votes that the commission took were unanimous um and that that happened because of a lot of effort and in intention on the parties on the part of all involved to see if we could work together and that would be the kind of thing that um that i would hope to do if i was confirmed to the supreme court you've mentioned in your previous testimony the challenges of applying the law to evolving in new technology obviously the internet raises exactly those questions congress passed the electronic communications privacy act in 1986 when the internet was barely recognizable it was nascent just starting [Music] and now our nation faces a mental height health crisis it is partly aggravated by the pandemic the isolation and anxiety that's resulted from but also by the internet and by the tech platforms that drive toxic content at children as a result of these black box algorithms that nobody really understands literally no one understands because the tech platforms want to keep them secret and we are trying to upgrade the law and update it to give parents tools to have greater visibility as to what their children are doing and to give parents and children tools to protect them against some of the bullying and eating disorder content and even suicidal and substance abuse stuff that they are driven to see and senator blackburn and i have introduced a bipartisan measure of the kids online safety act that will provide a more modern solution to a modern problem to update the law to account for the role of social media in [Music] our ongoing and aggravating mental health crisis in this country do you agree that it helps the supreme court and judges in general to do their job when congress updates our statutes to account for technological change thank you senator the role of the court is to interpret statutes when there are disputes related to the statutes and in circumstances in which statutes have not been updated i don't think it's surprising to note that there are disputes about the meaning of the statute about how it applies and so to the extent that congress undertakes to make amendments and make the changes i think it helps courts maybe there'll be fewer disputes or easier disputes to resolve easier disputes to resolve in the sense that and i i've seen it happen a judge will say i don't know what congress meant to do in this kind of situation because this law was written at a time when none of this stuff now existed i'm sure you face that situation i think it's true of social media and the dangers to children as a result of the toxic content that they often find and often seemingly are addicted to use again and again and again because it's part of the business model of those social media and big tech platforms yes i have i have faced this situation um one of my cases the alliance of artists and recording companies versus general motors is a case that i ended up writing a couple of opinions about um and involved a statute of congress related to um digital recording audio devices and whether or not royalties were required for the purchase of those kinds of devices and it was enacted at a time in which recording technology was at a different stage than it is now and disputes uh arose that came before me regarding whether or not to apply the royalty requirement in that statute to modern recording devices and in particular the recording devices that are now in automobiles when you take your cd and you put it in your own car and record record onto the hard drive of your car is that the same thing as putting your cd in one of those machines that records from cd to cd and you give your the the second recording to all of your friends that was that was what the statute was originally meant to cover and the question was whether uh recording to your own car's hard drive counted and it was a very interesting interpretive exercise but again it was the kind of thing in which i was focused on trying to ascertain what based on the text of the statute and the definitions in the statute what congress intended this statute to cover and cars other devices appliances at home collect huge amounts of data don't they and as consumers we feel we own that data it's ours but it can be bought and sold exchanged and mined in a way that right now consumers have no consent over and it enhances the dominance of just a few of those tech companies just a few of the corporations corporate power is emboldened and enabled in many respects by the amount of data they collect it's also enabled by forced arbitration we've had a reference to it already today with respect to complaints about sexual harassment which fortunately uh we have addressed i've been uh proud to work on the ending forced arbitration of sexual assault and sexual harassment act which president biden signed after we passed it uh just a few weeks ago i've heard harrowing stories from survivors of sexual assault and victims of workplace harassment who were silenced and denied justice by forced arbitration but forced arbitration applies as well to everybody who has a cell phone you have a forced arbitration agreement many workers have forced arbitration agreements nursing homes have forced arbitration agreements the point is that you have dedicated your life to access to the courts the right of a trial the right to a jury the right to a judge none of it is possible where there is a forced arbitration agreement that's why i've worked on a measure called the fair act that would make any forced pre-dispute arbitration agreement invalid and unenforceable if both sides want arbitration that's fine but access to the courts should be available to everyone i know that you're limited as to what you can say about measures and that are before us and policy issues but i hope that you will consider the trend that the court has adopted in support of forced arbitration and denial of rights like class action and review whether they are appropriate uh let me just finish with a couple of quick points first of all on the harvard law school harvard law review article on registration of sex offenders convicted sex offenders i must say i read this article several times in my view it is analysis not advocacy would you agree absolutely senator as a law school student um i was trying to do what law school students do which is analyze a new set of legal provisions these laws were new and i was trying to assess what criteria courts could use to look at them i was not making an argument about them at all exactly and by the way one of those statues was in connecticut it was challenged on constitutional grounds double jeopardy it went to the united states supreme court i defended it there it was upheld 9-0 i don't know whether your article was cited but i would put this law review article very much in the category of analysis the distinction between prevention and punishment uh i would call it protection not punishment or prevention that's the argument that i made to the supreme court uh i ask that this article will be put in the record mr chairman without objection uh by the way it took me two or three times to get through it so uh no disrespect to you or the harvard law review um the um the issue of child pornography um you reckon you you mentioned i think that in your decisions on these sentencing cases involving child sexual abuse material which by the way i agree is absolutely horrific abhorrent it's the reason that senator graham and i have actually sponsored a measure called the earn it act that addresses it but you said that you imposed a sentence that matched the recommendation by either the prosecution or the probation office in most of the cases where you did that sentencing is that is that right you have that yes senators uh in looking back at um the records concerning my cases um it looks as though i had 14 cases that involved either child pornography internet interstate travel to meet up with a child for sex the sex crimes related to to children and in 10 of those 14 cases i imposed a sentence that was consistent with or greater than what either the government or the prosecution uh requested the probation excuse me sorry the the government or the probation office and let me just ask you the probation office is an independent arm of the court that investigates the defendant looks at the crime the defense background his family situation all of the relevant factors involved in sensing including the sentencing guidelines and then independently and impartially makes a recommendation presumably to serve the interests of justice in that particular case based on the individual facts there is that roughly a correct description that is correct senator the probation office works within the court system they are independent of the parties and they investigate and make recommendations in cases concerning what the probation office thinks is an appropriate sentence thank you let me just finish by saying uh much of america is watching these proceedings on a split screen on one hand they are literally seeing the death and destruction in ukraine russia's brutal barbaric assault on individual rights basic freedoms that we often take for granted here and we are exercising exercising those rights right here you are a teaching lesson this proceeding is a teaching lesson about the importance of democracy the people of ukraine are fighting for it they are dying in their neighborhoods and streets and their homes they are huddled in basements they're men and women are resisting valiantly and braving bravely against a huge military force that russia has unleashed and a reign of terror from the skies simply because they believe in the ideals of freedom and law that we are seeking to preserve here and so on this side of that split screen i think it's important that we do our best to honor the norms and the rules that you've sought to uphold throughout your life and i'm proud and excited to be here with you and your family as we go through this process and i look forward as i hope many of us do to a bipartisan majority in support of your candidacy thank you thanks mr chairman thank you thank you senator blumenthal i'd like to bring everyone up to date we have several considerations the remaining senators for questions the endurance of our witness judge jackson votes on the floor request for compassionate release by a number of people in the audience uh here is where we stand uh we're going to have senator hawley followed by senator hirono then we're going to take a 20-minute break because that's when we think there'll be some votes on the floor we can take care of those and get back in 20 minutes then we will return from that break to senators cotton and booker then we'll take a 30-minute break or so for dinner then it'll be senator kennedy padilla and tillis and we're going to start off tomorrow with our two senators osof and blackburn so we should finish in the nine to ten o'clock hour this evening god willing so at this point uh i recognize senator hawley thank you mr chairman judge nice to see you again thank you again for being here congratulations again on your nomination i i want to start uh where senator blumenthal left off i want to talk with you about some of these cases i mentioned them yesterday so i know you know which ones i want to talk about the seven cases child pornography cases in which you had discretion they came before you you had discretion to sentence one way or another in these seven cases not every case of course do you have discretion sometimes the law requires you to impose a sentence certain sense but in d7 you had discretion and each of these seven you chose to depart both from the federal guidelines and also from the governments the prosecutor's recommendation senator lee's asked you a little bit about this senator cruz has asked you about it he had a chart with the seven cases on it before we jump into those i just want to correct the record on one or two things senator coons suggested that in three cases nickerson when and fife you actually imposed sentences either within the guidelines or at the same level the prosecution but in nickerson you didn't have any discretion that was an 11 c1c case the law bound you and wynn wasn't a child porn case and neither was fife just one other quick thing to clarify as to these comments about the probation office the probation office doesn't issue national guidelines right i mean the probation office doesn't issue sentencing guidelines they're not public they're not recommended to all judges the probation office provides advice to judges case by case usually in private usually not available to the public is that right josh not exactly senator the probation office in criminal cases is assigned by the court to work with respect to the evaluation of cases in every case consistent with congress's requirements the probation office prepares a pre-sentence report in which they review all of the statutory factors concerning sentencing congress has a statute for sentencing it requires judges to consider the nature and circumstances of the offense the history and characteristics of the defendant the need for the sentence imposed to promote various purposes of punishment there are many purposes listed in the statute and the probation office is the arm of the court that does factual investigations in every criminal case unless there are certain cases in which you can waive it but the background is the probation office's of the facts related to a particular sentence and a particular crime and the the probation officers report when a court sentences actually in most cases becomes the findings of fact of the court and so the probation office appears just like the prosecution and the defense the probation office has written a report and they make a recommendation to the court based on their independent analysis related to the facts of a particular crime and defendant and sentence understood so they they give the court counsel understood uh however they don't issue guidelines they're not uniform it is by its very nature a a case-by-case inquiry as you said the report goes to the judge as i understand it the the pre-sentencing report i'm sorry the probation reports are are not public in all of the cases that we're talking about here i'd love to see them if they are but uh it's not as if there's one set of guidelines that are federal sentencing guidelines and then there's the probation guidelines the probation office is giving advice to the judge it varies case by case senator it's not it's not it's not the same sorry i thought you were done that's all right let me ask you about a specific case i mean let's talk about i listed these seven cases in which you had discretion and you did not follow the prosecutor's recommendation or the sentencing guidelines but let's just talk about one of them because we've talked about some of them as a group let's talk about united states versus hawkins i think that's one you probably remember from 2013 the defendant there was wesley hawkins he was 18 years old at the time he uploaded five video files of child pornography from his computer to youtube this is how the police got onto him he then uploaded another 36 depictions of child porn and other lewd photos of children to his icloud account when the police executed a search on his apartment on the premises they found 17 videos on his laptop and 16 images of child pornography all of them very graphic some of them involving very young children 17 videos in particular this is from the government sentencing memorandum in this case just so we understand the facts here are some of the videos that the government charged that they recovered there was a 24-6 24-minute six-second video depicting a 12-year-old male committing a sexual act i'm not gonna i'm not gonna read exactly what it was there's a one minute and 57 second minute video depicting an eight-year-old committing a sexual act there was an 11 minute and 47 second video depicting an 11 year old committing a sexual act and being raped by an adult male there was a 15 minute and 19 second video depicting two 11 year olds committing sexual acts there was a seven minute and 51 second video depicting a 12 year old committing a sexual act so as the government said in this case and i'm quoting now from the transcript of the sentencing hearing 17 videos is a lot and some of the videos including the ones that are described in the statement of the offense and i've just related some of them are very lengthy and include numerous images numerous views sometimes collages sometimes multiple victims you see the act in progress the government goes on to describe some of these as sadomasochistic images so this is this is a tough case this is one of those tough cases you were referencing earlier you talked about this morning said these cases are terrible this is one of them this is terrible stuff this is not a good guy who's doing this stuff guidelines recommendation in the case was 97 to 121 months so if i'm doing my math right that's up to 10 years and in this case the guidelines recommendation was essentially written by congress because in the protect act of 2003 congress specified what they wanted the range to be in these kind of cases and congress also specified what they wanted the mandatory minimums to be i know you remember the protect act because you've you've talked about it you've you've given lectures on it and it was enacted as i said in 2003 was 84-0 was the was the vote here in the senate the concern the reason the protect act was put into place is the senate was concerned over lenient sentences by judges in child porn cases which is what you described you said about it there was an increasing perception on capitol hill and within doj that liberal judges were to blame for the downward pressure on federal sentences and that legislation was necessary to rein the men that's you in 2011 describing this law so congress has set the guidelines here 84 not in the senate i noticed the chairman voted for it as did a number of other members of this committee so that congress sets the range essentially it's 97 months up to 10 years now the prosecutor in this case this is in dc of course you're on the federal district court prosecutor in this case it's a a a liberal administration i think it's fair to say it says in the state of texas see my colleague from texas next to me here the prosecutor in this case nevertheless still asked for two full years in prison you gave the defendant three months guidelines called for ten years prosecutor wanted at least two you gave him three months and when you did you need to you made a number of arguments and statements in the record i'd like to go through some of them because i've read them all and the first argument you made was that the federal guidelines that punished child porn offenders the ones that congress wrote were and i'm quoting you now are in many ways outdated that's your quote and you went on to say about why you thought they were outdated i'm going to quote you again you say and i quote i don't feel that it's appropriate to increase the penalty on the basis of the number of images or prepubescent victims meaning little kids as the guidelines require because these circumstances exist in many cases if not most and don't signal an especially heinous or egregious child pornography offense in quote i just want to ask you about that because i just have to tell you i'm having a hard time wrapping my head around it we're talking about eight-year-olds and nine-year-olds and 11 year olds and 12 year olds he's got images of these the government said added up to over 600 images gobs of video footage of these children but you say this does not signal a heinous or egregious child pornography offense help me understand that what word would you use if it's not heinous or egregious how would you describe it thank you senator for letting me address the concern that you've put forward based on the record that you've reviewed as a judge who is a mom and has been tasked with the responsibility of actually reviewing the evidence the evidence that you would not describe in polite company the evidence that you are pointing to discussing addressing in this context is evidence that i have seen in my role as a judge and it is heinous it is egregious what a judge has to do is determine how to sentence defendants proportionately consistent with the elements that the statutes include with the requirements that congress has set forward unwarranted sentencing disparities is something that the sentencing commission has been focused on for a long time in regard to child pornography offenses all of the offenses are horrible all of the offenses are egregious but the guidelines as you pointed out are being departed from even with respect to the government's recommendation the government in this case and in others has asked for a sentence that is substantially less than the guideline penalty and so what i was discussing was that phenomenon that the guidelines in this area are not doing the work of differentiating defendants as the government itself indicated in this very case and so that's what i was talking about but i want to assure you senator that i take these cases very seriously that these cases include the notion by many defendants that the folks at issue that the defendants themselves are collecting these images on the internet they're terrible things that have happened but they're not involved say the defendants they're not focused on you know what is actually happening to the children and so part of my sentencings was about redirecting the defendant's attention it's not just about how much time a person spends in prison it's about understanding the harm of this this behavior it's about all of the other kinds of restraints that sex offenders are ordered rightly to live under at the end of the day the sentences in these cases include not only prison time but restraints on computer use sometimes for decades restraints on ability to go near children sometimes for decades all of these things judges consider in order to affect what congress has required which is a sentence that is sufficient but not greater than necessary to promote the purposes of punishment yeah well let me just ask you about that last point because you've said this a couple of times now the the sentences that congress require congress wanted the guidelines to be mandatory congress wrote the guidelines in this case they wanted them to be mandatory they gave the courts factors to consider to choose between the sentencing range congress wanted you to choose between 97 and 121 months that's what congress wanted the supreme court in booker said that the sentence the sentencing guidelines would be discretionary so the supreme court gave you the discretion but if we're talking about what congress has wanted congress wanted them to be mandatory my only point in raising that is just to say that you had discretion in these cases and you use your discretion to to choose the sentences that you did let me ask you about some of the things though that you said because you said this this morning and i appreciated how you want to direct the defendants you want to get them to own up to what they've done in these cases i thought that was powerful and i thought it was right but let me just ask you about what you said to this defendant you said to this defendant for whom you sentenced to only three months in prison that your collection i'm quoting you your collection at the time that you were caught was not actually as large as it seems the government felt the need to respond to you on the record they said the government doesn't believe that it's appropriate to just disregard the number of images that the number of images can be appropriate and indeed in this case the defendant has amassed an extremely large collection of child pornography but you disregarded that you also told the defendant you said this this seems to be a case where you were fascinated by sexual images involving what were essentially your peers and then you went on to say the defendant was merely trying to satisfy his curiosity curiosity is your word one more thing on this same idea you said you were viewing this is you to the defendant you were you were viewing sex acts between children who were not much younger than you and this whole discussion is about why you're only giving him three months judge he was 18.

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these kids are eight i don't see in what sense their peers i've got a nine-year-old a seven-year-old and a 16 month old at home and i live in fear that they will be exposed to let alone exploited in this kind of material i don't understand you saying to him that they're peers and that therefore you were viewing sex acts between children who are not much younger than you and that that's that's somehow a reason to only give him three months help me understand this senator i don't have the record of that entire case in front of me what i recall with respect to that case is that unlike the many other child pornography offenders that i had seen as a judge and that i was aware of in my work on the sentencing commission this particular defendant had just graduated from high school and some of perhaps not all when you were looking at the records but some of the materials that he was looking at were older teenagers we're older victims and the point senator is that you said before the probation office is making recommendations and they do so on a case-by-case basis that is what congress requires that if this is not done at the level of but you had one russian judge you admit that right i just want to be senator sentencing is a discretionary act of a judge but it's not a numbers game it's not i understand that congress wanted the guidelines to be mandatory the supreme court in 2005 determined that they couldn't be in an opinion by justice scalia determined that they couldn't be and congress since then has not come back to amend them or to change them or to make them mandatory again and so there is discretion at sentencing and when you look at the sentencing statutes congress has given the judges not only the discretion to make the decision but require judges to do so on an individualized basis taking into account not only the guidelines but also various factors including the age of the defendant the circumstances of the defendant the terrible nature of the crime the harm to the victims all of these factors are taken into account and the probation office assists the court in determining what sentence is sufficient but not greater than necessary and i appreciate senator that you have looked at these from the standpoint of statistics that you're questioning whether or not i take them seriously or i have some reason to handle them in either a different way than my peers or a different way than other cases and i assure you that i do not that if you were to look at the greater body of not only my more than 100 sentences but also the sentences of other judges in my district and nationwide you would see a very similar exercise of attempting to do what it is that judges do attempting to take into account all of the relevant factors and do justice individually in each case well let's keep talking about about this case you also said to to this individual who is an adult tried as an adult 18 years old you also said to him besides saying that you thought his victims were his peers you also said there's no reason to think that you are a pedophile and then you went on to say again that's another reason why you weren't going to give him you're only going to give him three months because you had to judge that he wasn't a pedophile and then you said and this is something i'd i really need your help understanding then you apologize to him and i just have to tell you i can't quite figure this out he said to him this is a truly difficult situation i appreciate that your family's in the audience i feel so sorry for them and for you and for the anguish this has caused all of you i feel terrible about the collateral consequences of this conviction and then you're going to say sex offenders are truly shunned in our society i'm just trying to figure out judge is he the victim here or the victims the victims you're saying that you are you're apologizing to him you're saying you're sorry for the anguish this has caused him there was a victim impact statement in this case it didn't get read into the record but it was there i've described the videos that we have you say earlier in the case you talk about how heinous these crimes are and you describe them to your credit you describe how heinous it is to your credit and yet here you are giving him three months and apologizing to him and saying you feel sorry for the anguish that's caused him and also saying you think that sex offenders are truly shunned in our society so just just talk about that help me understand i mean is he a victim is that your view here is that why you said this is that what you meant by senator i i again don't have the entire record i remember in that particular case i considered it to be unusual in part for the reasons that i described i remember in that case that defense counsel was arguing for probation in part because he argued that here we had a very young man just graduated from high school he presented all of his diplomas and certificates and the things that he had done and argued consistent with what i was seeing in the record that this particular defendant had gotten into this in a way that was i thought inconsistent with some of the other cases that i had seen part of what a judge is doing as required by congress is thinking about this case thinking about unwarranted sentencing disparities that's in the statute other cases other determinations that a judge may have made about this i don't remember in detail this particular case but i do recall it being unusual and so my my only point to you is that judges are doing the work of assessing in each case a number of factors that are set forward by congress all against the backdrop of heinous criminal behavior but the guidelines are no longer mandatory congress has not corrected as you would say the supreme court's determination about that justice scalia's decision that the guidelines are not mandatory congress has not said that and congress has given judges factors to consider this in my view was an unusual case that had a number of factors that the defendant was pointing out that the government was pointing out that the probation office was pointing out and i sent this 18 eighteen-year-old to three months in federal prison under circumstances that were presented in this case because i wanted him to understand that what he had done was harmful that what he had done was unlawful that what he had done violated the law and and needed to be punished not only by prison but also by all of the other things that the law requires of a judge who is sentencing in this area but but judge with all due respect and i'm i i tell you what i'll be directed to you i am questioning your discretion your judgment that's exactly what i'm doing i'm not questioning you as a person i'm not questioning your excellence as a judge frankly but you said it you had discretion and i that's exactly what i'm doing i'm questioning how you used your discretion in these cases and to me to take a guy who's 18 years old who has what the government says is an extremely large collection of prepubescent pornography eight-year-olds 10 year olds 11 year olds we're talking about i mean gobs of hours of time here that he has and you say to him what that you say that well you know it was it was just a collection i mean he was just viewing it and it was you know essentially they were his peers you say to him that he's not a pedophile i don't know how you know that i don't know why that's relevant to the guidelines but maybe it is you say he's not a pedophile um you say that you're very sorry for him and what he suffered and then you give him three months when frankly a liberal prosecutor is asking for two full years i mean it does seem like an extraordinary case to me it would bother me no matter what it really bothers me when in every case child porn case you've had you've had discretion you've sentenced below the guidelines and below the government's recommendation and saying that sex offenders are truly shunned in our society as you said to him it it reminds me of echoes which you said as early as law school on that harvard law review article senator blumenthal was just talking about there you say and i'm quoting you now in the current climate of fear hatred and revenge associated with the release of convicted sex criminals courts must be especially attentive to legislative enactments regarding these sex criminals i guess like like this the enactment here the the uh the protect act that congress enacted so i wanna i wanna try to understand here is it your view that society is too hard on sex offenders you say they truly are shunned in society you wrote that many of these laws are products of a climate of fear hatred and revenge so just is that is that still your view i mean do you think that these that these laws are too tough that we're too tough on sex offenders explain what you meant in this case in 2013 and it seems to be the same thing you said many years ago senator it's not the same thing i said many years ago many years ago as a law school student i was evaluating a new set of legislation state laws about registration and i was analyzing them as law students do wasn't about the sex crime it was about the characterization of the law is it a punitive law is it a prescriptive law and how would a court go about determining that that was the frame that i used then it could have been about anything it was about the characterization of legislation i'm sorry i don't mean to interrupt you i've only got two and a half minutes left but i just want to make sure i understand this this is i'm quoting from your conclusion now this is on page 17 32 1728 of the harvard law review this is your conclusion in the current climate of fear hatred and revenge associated with the release of convicted sex criminals courts need to be especially attentive to legislative enactments so you that's a conclusory statement you're saying that there is a climate of fear hatred and revenge that are informing these laws and you described some of the laws earlier i think megan's law and others senator cruz asked you about some of those i i just i'm trying to understand what you meant by that because you're saying something similar in the hawkins case you're saying that society truly shuns our sex offenders um with all due respect my uh article is now in the record people can read it and they can see that i was evaluating these laws not to determine their constitutionality not to say that they shouldn't be enacted but to talk about the ways in which courts make determinations about the character of the law and all of the consequences that follow from them in law school i had not had any experience in in terms of the criminal justice system and i was doing what law students do which is seeking to analyze in a creative way new legislation with respect to mr hawkins i was doing what judges do which is look at the statute 18 usc 3553-a exercise discretion as congress has required us to do take into account all of the various aspects of a particular case and make a determination consistent with my authority my judgment and understanding fully the egregious nature of the crime as you said even the prosecutors in these cases are not recommending guideline sentences the probation office which is an independent authority looking at these cases and the facts related to them are not recommending guideline sentences this is a particular area where the commission has seen an enormous amount of disparity and has in fact asked congress to come back and address to to help judges who are looking at these cases to be able to rely on the guidelines which congress has declined to do senator in that case we have the statute that congress has enacted concerning penalties and we have judges who are doing their level best to make sure that people are held accountable as they need to be in our society in a fair and just way mr chairman my time's expired i have thank you judge uh i have no further questions at this time just checking with my staff so the original statute was passed in 2003 the scalia decision 2005 the booker decision so the original statute that i'm talking about um i'm just thinking it was i felt like it was in the 80s we think it made it in 2003 i'm all right justice scalia the booker decision made the guidelines advisory so that even though judges have to calculate them they are no longer binding and what it meant in the statute is that the guidelines became one factor among many that judges consider attendancing i'm not going to opine on justice scalia and his conduct and decision as it relates to the overall topic i hope we all agree that we want to do everything in our power reasonably within our power to lessen the incidence of pornography and exploitation of children you have made that clear that is your position too but i just want to tell you congress has doesn't have clean hands in this conversation we haven't touched this now for 15 16 or 17 years and this you aren't the only one who faced this kind of a challenge with the cases before you i said this morning it bears repeating in united states versus klotz trump appointed judge sarah pitlik hawley's choice senator hawley's choice for the eastern district of missouri sentenced an individual convicted of possession of child pornography to only 60 months well below the 135-168 month sentence recommended by the guidelines mr chairman you've mentioned let me finish i'll finish and then of course i'll recognize you senator holly you've said some very powerful things in support of this judge but clearly she faced a situation where she decided she would not follow the guidelines and took a sentence of less than half of what they recommended we have created a situation because of our inattention and unwillingness to tackle an extremely controversial area in congress and left it to the judges and i think we have to accept some responsibility for that senator i just wanted to say uh chairman durbin since you've mentioned judge pitlik in the klotz case she followed the prosecutor's recommendation in that case my as i've said over and over part of my concern with judge jackson is that she has not followed the prosecutor's sentences she didn't in the hawkins case we're just talking about or the guidelines and i'm happy we'll we can have a policy debate about whether or not the guidelines are too lenient i would argue in this era of exploding child pornography they're not too lenient at all i think you were right the first time when you voted in 2003 to make them tougher i will just say that uh i don't know if you sponsored a bill to change this i'll be looking for it but i will tell you that there isn't a long line of people waiting to co-sponsor this controversial issue we if we're going to tackle it we should but we should concede in the meantime that we've left judges in the lurch in many of these situations there is no clarity in this situation and i think to hold this judge responsible for the overall situation is to ignore our non-feasants malfeasance whatever it might be and lack of responsibility in dealing with this senator hirono thank you mr chairman judge jackson as you may know i asked the following two preliminary questions of every nominee who appears before any of the committees on which i sit so i will ask you these two questions first since you became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature i have not have you ever faced discipline or entered into a settlement related to this kind of conduct i have not just jackson my colleague from missouri seems to think that it's appropriate for federal judges to sentence individuals below inappropriate to sentence individuals below the sentencing guidelines in these kinds of cases horrific cases and so i think it's important to offer a couple of clarifications for the record judge jackson when the u.s sentencing commission first addressed the issue of sentencing in the in this area in 2012 do you remember that only 40 percent of convicted offenders in this category we're receiving sentences within the guidelines senator i don't remember exactly the number but i do know that there was a great deal of variance from the guidelines 40 would you be surprised to learn that the department of justice which prosecutes these cases sent a letter to the u.s sentencing commission in 2013 stating that the existing sentencing guidelines for child pornography offenses do not accurately reflect the current landscape of child pornography offense conduct i don't remember that particular letter but there was a lot of concern about this guideline from from all sides and now the sentencing commission issued another report just last year on this topic and do you know that as of that report an even lower percentage of convicted offenders were receiving sentences within within the guidelines did you know that i'm not surprised i did more now it's even less i didn't know but i'm not surprised did you know that as of last year it was just 30 percent of non-production offenders who were sentenced within the guidelines i did not know but i'm not surprised my republican colleagues made a big show yesterday of promising a fair process and to me that means ensuring that you are treated no differently than any other federal judges that have nominees that have come before us see there was an article recently that highlighted the fact that many of president trump's circuit court nominees who were previously district court judges had also issued below guidelines sentencing to child pornography cases judge ralph erickson who was confirmed to the 8th circuit in 2017 with support from every republican member of this committee who was serving in the senate at the time and there are at least 11 cases where he sentenced people to below guidelines sentences does that surprise you it does not senator i'm not sure if you know judge erickson but do you have any reason to believe he's a soft on child pornography based on these sentences i don't have any reason to believe do you think my republican colleagues are soft on child pornography just because they voted for judge erickson to become a federal appellate judge even after he issued these 11 sentences senator i'm not in a position to evaluate whether your colleagues are soft on crime because of their votes i have no reason to believe that they voted for this person but um i i think it would probably be quite unfair to characterize him as being soft on child pornography i would also like to talk to you about judge joseph blanco bianco who was confirmed to the second circuit in 2019 with support from every republican member of this committee who was serving in the senate at the time including senator holly in the case united states be bowen judge bianco sentenced a defendant to 60 months in prison when his guidelines range was 151-188 months and here's what judge bianco said in the sentencing transcript for that case quote and the guidelines here are just way disproportionate under the facts of this case and i don't view them as particularly helpful in this case i believe the probation department got it right in terms of the statutory mandatory minimum being sufficient but not greater than necessary to achieve the factors of sentencing quote i'm not sure if you know judge bianco but do you have any reason to believe that he's soft on child pornography based on that sentence or those comments i do not senator do you think my republican colleagues including senator holly are soft on child pornography because they voted to confirm judge bianco to the second circuit even after he issued below guideline sentences and made these comments i have no reason to believe that that here are some of the other circuit judges that all of my republican colleagues voted to confirm despite the fact that they they sentenced child pornography defendants to below guidelines sentences judge amal thorper on the sixth circuit judge richard sullivan on the second circuit judge andrew brasher on the 11th circuit again i'm not sure if you've ever met these judges before but do you have any reason to believe they don't take child pornography seriously i do not i would like to note that senator cruz referred to a chart that listed eight cases and the government recommendations and the sentencing guidelines and that you did not adhere to those sentencing guidelines what was not included in the chart was what the probation recommendations were and if you add those probation recommendations in five of the cases you follow the probation recommendations in one instance you were lower and one instance you were higher than the probation recommendations mr chairman i would like to introduce the complete chart for the record without objection you've been asked to answer a lot of questions about your judicial philosophy some of my colleagues particularly on the other side seem dead set on finding out if you are an originalist a textualist if you believe in a living constitution or various other labels i don't find these labels particularly useful take originalism proponents claim you just have to dig deeply enough into the historical record and you'll somehow find the one true meaning of a constitutional provision the fallacy of this approach approach is illustrated in district of columbia versus hillary there justice scalia's majority opinion and justice stevenson's dissenting opinion each applied originalism justice stevens more effectively in my opinion and reach completely different conclusions about the scope of the second amendment take textualism in bostock judge gorsuch applied textualism to find that title vii of the civil rights act protected employees from discrimination based on sexual orientation and gender identity in dissent justice alito mocked justice gorsuch's application of textualism and he wrote the following justice alito quote the court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague justice scalia but no one should be fooled the court's opinion is like a pirate ship it sails under a textureless flag but what it actually represents is a theory of statutory interpretation that justice scalia excoriated the theory that courts should update old statutes so that they better reflect the current values of society end quote and these are two justices who are usually in agreement so so much for labels so instead of trying to fix some label on you i'd rather focus on the fact that you are fair and objective in your approach that you are even-handed in your application of law to the facts and that you are independent during your last confirmation hearing you spoke about judicial independence about what you learned during the three clerkships and you're then eight years on the bench you said and i quote i know very well what my obligations are what my duties are not to rule with partisan advantage in mind not to tailor or craft my decisions in order to gain influence or anything of the sort end quote well said so my question is the following what do you do to ensure that you maintain independence free of partisan partisanship when you handle a case thank you senator what i do and what i've done in all of my 570 samad opinions is to apply a methodology that is designed to ensure my impartiality and to respect the limits of my judicial role what it means is that i am receiving the cases and at the outset i am setting aside any personal views that i might have about the parties about the issues as i also said in my dc circuit confirmation it doesn't matter to me whether the argument is being made by the president of the united states or a death row inmate what i'm doing is looking at the argument i'm looking at the facts i'm applying the law in as neutral and consistent a manner as i can because that is the duty and requirement of the judicial oath i'm also very conscious of the limits of judicial authority of the the restrictions that exist in the law to prevent me as a judge from becoming a policy maker this means that i carefully scrutinize my jurisdiction it means that i look at the text and focus on the text and the intentions of the legislatures that drafted that provision or the intentions of the framers that put forward that constitutional principle it means i'm looking at precedent if i was fortunate enough to be confirmed to the supreme court i would be upholding the principles of starry decisis as i consider the precedence and making sure that the court is putting forward consistent and predictable rulings as is important to maintain the rule of law all of these i see as constraints on judicial authority that i care deeply about in order to maintain my independence as is necessary to ensure public confidence in my rulings as a judge judge jackson i have sat on this committee now for a number of years and as some of my colleagues continue to try to pin labels on the nominees who come before us frankly i find your methodology to be as succinct a definition of what would lead a judge to come up with fair and objective results i thank you for that as a lower court judge you were generally bound by the supreme courts and the d.c circus precedents that certainly won't be the case if you are confirmed to the supreme court the supreme court can overturn its own precedence that's why i found your analysis and committee on the judiciary versus mcgahn instructive in that case you had a precedent committee on the judiciary v myers that had already confronted the issues you faced however it was another district court decision and you were not bound by it you nonetheless followed that precedent why did you find that opinion so persuasive well senator in um the law there are different kinds of precedent and by that i mean um there's vertical precedent which is what people are most familiar with there are cases that are handed down by higher courts the appellate court the supreme court and those bind the lower courts so that even if you disagree with them you have to follow them because they're binding precedent but there's also horizontal precedent it it too is about maintaining consistency and predictability in the rule of law and what that means is when you are in a district there are many judges and if someone else in your district has handled a case that comes out or that involves the same issues and comes out in a certain way you as the second judge have to contend with that ruling you can't ignore the fact that there is precedent in your district that handles a case in a particular way and with respect to the mcgann case the precedent wasn't just close it was nearly identical the the myers case involved the former white house counsel and the argument by the executive that the former white house counsel had absolute immunity in with respect to a request by the legislature that she provide testimony my case involved a former white house counsel who was claiming absolute immunity at the request of the executive in response to a legislative subpoena in both cases not only was the absolute immunity issue on the table but in both cases the same threshold issues about whether or not there was jurisdiction in the court because the legislature had standing or didn't have standing which is which was the argument that was being made the same question about whether the court could hear a dispute between the legislature and the executive branch all of those issues had previously been considered by my colleague in the district court and he wrote an extensive i'm talking about judge bates he wrote an extensive opinion analyzing each of the issues and so at a minimum as the second judge dealing with these exact same issues i had to look at what he did and decide was it persuasive did i agree and i did judge jackson of course if there had been a vertical precedent i.e from the supreme court or the circuit court that was on point to your mcgann situation yes you would have had to follow that precedent but there wasn't and so you followed a a reasoning by another district judge that made a lot of sense to me and that certainly makes sense to me you discussed scary decisis and the importance of precedent in your opinion and this is what you wrote quote it is interesting to note that the doctrine of starry decisis performs a limiting function that reflects the foundational principles that undergird the federal government's tripartite constitutional system this is because deciding a legal issue anew each time that same question is presented without any reference to what has been done before nudges a court outside of its established domain of saying what the law is and into the realm of legislating what the law should be i know that you've been asked say the questions about the importance of precedent before but maybe you can just tell us one more time why precedent is important in our judicial system thank you senator our judicial system is one that is designed to uphold the rule of law unlike other systems in other societies some other societies we believe that we have a government of laws and not men and yet there are men and women who are acting as judges in the context of our system what precedent does is ensure that there's consistency across the different individuals who are tasked with the solemn responsibility of interpreting the law it ensures that there's public confidence that the law is what is guiding judges in their decision-making and not just their own individual views and so it's it's crucial for uh maintaining public confidence maintaining stability in the law establishing a system that has predictability in it all of which supports confidence in the judiciary which which is the currency of of the judicial branch because of the importance of precedence and promoting confidence etc i mean people need to know what the law is and so precedent is important on this on that score and if you are confirmed to the supreme court what factors would you consider before overturning precedent well there are many factors that the supreme court considers and not just whether they think a prior precedent is wrong that is one of the factors the court has said that a precedent that is egregiously wrong is one that is subject to reconsideration uh but in order to actually make the determination about overturning it in addition to it being wrong the court considers whether or not there's been reliance on that precedent and if so how much the court considers whether or not the precedent is workable sometimes uh the court will issue a ruling in a case and it turns out that it's not actually functioning in the way that the court intended and so that might be a reason to revisit it the court considers whether or not other precedents in the area have shifted such that the foundation for the particular precedent is no longer uh sustainable and the court considers whether there are changes in the facts uh that relate to that precedent or a new understanding of the facts that relate to a precedent all of those factors are things that a court takes into the supreme court takes into account when it decides whether or not to revisit a precedent therefore the court should consider all of those factors i would say reliance factors loom large as far as i'm concerned uh before overturning a precedent but basically if you have five members of the court deciding to overturn a president they can do so right under our scheme yes under the constitution and so we're seeing uh more and more uh presidents being asked to be overturned an analysis by national affairs found that since 2017 when justice gorsuch was appointed to the court the court has shown i quote an increasing readiness to overturn precedent end quote this is true for both long-standing presidents and those that are just a few years old for example in 2018 janna's decision the court overturned a 41 year-old president called abood that decision weakened public sector unions justice alito first signaled that he wanted conservative anti-union groups to challenge abood in his 2012 decision in knox versus s-e-i-u this is called signaling and now justice alito definitely single signal his desire to re-visit the buu decision so yes these groups they got the message they brought case after case to meet the criteria that justice alito laid out and although they came close in 2016 justice scalia's death left the court stuck in a 4-4 decision in a case called fredericks the california teachers association basically the minute justice gorsuch was confirmed the court finally had a conservative five to four majority to overturn a boot and the result was janus i followed these lines of cases very closely so that is what happened they waited for justice gorsuch and boom five to four against unions another in another example the courts acknowledged four most conservative justices thomas alito gorsuch and kavanaugh dissented in june medical voting to overturn a precedent banning burdensome and unnecessary restrictions placed on abortion providers this particular president was only four years old now the court is poised to overturn roe v wade even though women have relied on their constitutional right to have an abortion for nearly 50 years of course i'm not suggesting that supreme supreme court decision or pr presidents are sacrosanct because i'm thankful the court can and did revisit presidents like plessy v ferguson that were wrong the day they were decided but justices should not be seen to be advancing their individual political or ideological agendas at the expense of individual rights and precedence that people have relied on one result of the court's new approach is that people's view of the court is changing for the worst a recent pew poll found that 44 of americans now disapprove of the supreme court this is up 15 points from august 2020 shortly before the late justice ruth bader ginsburg died and amy comey barrett was appointed to fill her seat i think court watches acknowledge there is an ideologically ideological split in this current supreme court when we are seeing more cases decided on ideological bases not on the facts and the law i think it leads to the american people questioning whether the court is a fair and objective arbiter of cases and controversy you were asked earlier today about your representation of guantanamo detainees just to make it clear as a federal public defender you were assigned to represent guantanamo detainees is that right that is correct senator and then while at morrison and forster you also did pro bono work for guantanamo guantanamo detainees were you assigned to do that work as well so there was one detainee who i had represented as a federal public defender who was brought into my firm's practice unbeknownst to me and when i arrived at the firm the attorneys who were working on that case recognized that i had previously been a lawyer who had represented this particular and asked if i would help with his habeas petition at that stage i think you clarified that earlier today and you served as council of record on amicus briefs related to detention i think that was brought out today yes were you working on behalf of detainees at that point or were you working on behalf of other groups or individuals i was working on behalf of other groups or individuals in in with respect to retired judges um i yes there were there were three briefs in total two different cases and um one of the briefs that i filed was on behalf of 20 retired federal judges including one who was a partner at my firm at the time and who wanted to make a particular argument to the court concerning the detention process these were judges that were nominated by various presidents it must have been a diverse group and they asked you to do the brief and they did yes so as part of your work at the law firm a responsibility of your employment you were assigned to work with this diverse group of retired judges and to represent conservative or libertarian organizations such as the cato institute and the rutherford institute to advocate their views yes the other two briefs that i filed were at the cert stage and then at the merit stage of a case that was eventually mooted but my clients in those cases were a diverse group of organizations including the cato institute the rutherford institute and the constitution project members of this committee know full well that lawyers are we we are um we have to follow the cause of professional conduct which says that we have to zealously represent our clients and that's what you are doing with regard to the detainees and i just want to note that some of the very senators who are openly questioning you for representing defendants or detainees have in the past made the argument that judicial nominees should not be opposed for the arguments they make in the course of representing clients i'm going to quote one of my colleagues i've been a military lawyer for almost 30 years i represented people as a defense attorney in the military that were charged with some pretty horrific ads and i gave them my all the system of justice that we're so proud of in america requires the unpopular to have an adequate and an advocate and every time a defense lawyer fights to make the government do their job that defense lawyer has made us all safer do you agree with that i do senator in 2012 prominent conservative lawyers signed a letter defending attorneys who have represented guantanamo detainees in part the letter said quote the american tradition of zealous representation of unpopular clients is at least as old as john adams's representation of the british soldiers charged in the boston massacre good defense councils is key to ensuring that military commissions federal juries and federal judges have access to the best arguments and most rigorous factual presentation before making crucial decisions that affect both national security and paramount liberty interests end quote so the the quote that i read isn't the first time that to my colleagues on the other side of the aisle have um tried to say that your representation on your work is a public defender somehow i don't know disqualifies you or makes you um leaning one way or the other so you've made it very clear that that is not what you are about i just have one more question in the remaining time oh i'm sorry senator i'm sorry we're on a roll call i'm on such a role you're on a roll and we're on a roll yes thank you mr chairman uh mr chairman before we break if i could ask one question of the chairman sure uh senator hirono just made reference to the recommendations of the probation office in in five of these cases to the best of my knowledge those probation recommendations are not in the record i haven't seen them my staff hasn't seen them and and that raises two questions number one whether the white house is providing differential material on this nominee's background to democratic members than republican members uh because i don't know where senator hirono would get access to them other than from the white house but secondly regardless of whether it's differential would the chairman agree that there is considerable focus on these cases and the committee both sides should have access to the pre-sentence reports and to see the underlying facts judge jackson has said she was following the facts and the factors in those cases senator you know we've completed discovery before we started this hearing mr chairman how did senator rome how did senator hirono get those information that republicans have not been i'm not going to entertain this we've been through discovery do you have access to them i don't know that i do i really don't can we ask senator hirono how she got access to them i'm sorry to interrupt you senator but i want to make an announcement we're going to have a ten minute break members are going to head so you're going to keep differential access to this information i'm not sure what differential access is i'll take i'll look it up we have a vote on the floor that take about 10 minutes so 10 to 15 minutes relax and then we're going to come back and we have two senators cotton and booker who will be recognized and then take a break for dinner and then we're going to try to still finish tonight with two remaining senators senator osof and tell us who are going to be first thing in the morning so we stand in recess you heard the game plan from the chairman dick durbin a short break right now in this confirmation hearing for katanji brown jackson to be the next supreme court justice i'm libby casey and this is a washington post special report i want to bring our washington post fact checker glenn kessler into our conversation this evening glenn welcome thank you so much for joining me you know we heard senator hawley talk with judge jackson this afternoon and you've been focusing on a particular line of attack from senator hawley his claim that judge jackson had a history of quote letting child porn offenders off the hook tell us more about his claims well he uh what he did is he ran like a it was a 17-part twitter thread and you've people watching the hearings will see that has come up repeatedly not only for senator hawley but senator cruz where they have tried to argue that you know the the the judge when she was faced with putting child porn defendants uh behind bars that she routinely gave uh sentences that were much less than the recommended guidelines now there are these guidelines the sentencing guidelines that judges are supposed to look at but in the case of child pornography there's been been a lot of discussion and dispute over whether or not those uh guidelines are out of date in particular uh they've never really been updated for the internet which is how most people who deal on child porn distribute these uh images and uh he has talked specific specifically about a number of of uh of cases where um for instance the guidelines might have said you know 37 to 56 months and then she gave a sentence that was less than that now you saw there just at the end where cruz was complaining that they did not have access to probation reports because one of the things that she looked at was how did the probation office what did they recommend and when i wrote my fact check on this i obtained information from a white house official which laid out specifically for each of these cases what the probation office had recommended and you could see that she was often uh you know at with the probation office or even sometimes tougher than the probation office except in maybe one or two cases and the you know so the the case the democrats have been made and what judge jackson has made is that focusing just on the sentencing guidelines is really not what a judge does they take a whole series of factors into consideration glenn as democrats have defended judge jackson they've talked about that myriad factors that go into play in determining a sentence but they've also compared her record with other judges tell us about that right well if you look at the record of the i mean part of the issue and this gets back to her service on the u.s sentencing commission the u.s sentencing commission which makes recommendations on these sentencing guidelines had written a report ten years ago and they wrote another report last year where they said these sentencing guidelines for child photography are out of date and they need to be updated it's really up to congress to do that and no one in congress i guess really wants to be you know in the position of saying i want to adjust these uh sentences so uh but what that has meant because those guidelines have not been updated is that judges on their own have been trying to work within the system to deal with the uh and you know and come up with with sentences that are more appropriate than what might be indicated under the guidelines can you cut through this and give us a better sense of what judge jackson's record on sentencing really is well from what i could tell from the look what i read first of all what her in general her sentences were very much in the mainstream of other judges i mean you can you can you can easily pick out one or two cases it's different you know there was a long discussion earlier today about a particular case involving uh someone who was 18 years old now you know that's a fine line there that meant you know when that person was 17 uh in most instances you know they were looking at people that were about their age and so you know you know suddenly when they become 18 they become an adult and she was i think she was trying to explain that one of the factors he was taking into consideration was that person's age uh and you know they're one of the big critics of holly's attack here has been andrew uh mccarthy of the national review who was a very conservative jurist and had been a a prosecutor and he had to prosecute these cases and he said that guidelines are just a mess and judges or and and prosecutors and are trying to work their way through it and what he could tell he cited my fact check actually extensively from what he could tell that judge had been very judicious and correct in her reading of the law and how she was trying to handle these cases so i think it's a bit of a mountain out of a molehill but it's you know it's and it's not something i should note that has come up as far as i know in her previous confirmation um hearings including most recently last year when she was put onto the federal appeals court so um you know viewers can take from that what they may but what that indicates to me is that uh it's something that you know the republicans are looking for something to stick on her it's not something they've brought up before thanks so much glenn james home and it also ties into the republicans hope to peg democrats and of course this is a democratic uh president who nominated judge jackson to be on the supreme court as soft on crime you know we did hear chairman durbin say at one point congress doesn't have clean hands in this and he tried to sort of explain how this is a lagging uh a set of laws and that just gave senator hawley the chance to say i think the law should be very tough right i mean that's this is a man who has presidential aspirations um i i want you to give us a sense james of how successful judge jackson has been in sort of pushing back on this line of questioning well it remains to be seen just you know how effective she did get frazzled uh in the back and forth with holly in a way that she managed not to with cruz uh senator holly was trying really hard to push her buttons to get a rise out of her i think he got it a couple different times and you know if you're talking about child porn you're losing in some ways clearly this is something that the white house is concerned about which is why they push back so aggressively it's why not only did dick durbin play the role that he did there at the end but also this morning in his first round of questioning to start the day he sort of tried to pre-but a lot of what they knew was coming uh and it was striking that senator hawley zeroed in on that uh the case of the the 18 year old as glenn was just explaining that it does make it a more complicated case all of the you know the all of the shades of gray were removed uh in the in the kind of the badgering deposition style uh questioning from holly uh but you know she she clearly has had these murder board sessions to practice answering these questions uh and and she did do what she was advised to do which is to go to a higher altitude instead of engaging uh in the specifics uh but but there was fodder for republicans on right-wing media to attack her you know she didn't answer directly when asked whether she you know still agrees with her statement from the 1996 law review article that kind of thing we'll hear more from other republican senators about certainly yeah when you say she was taking it to a higher place i'm paraphrasing for you james she tried to get back to the fundamentals of of of how heinous of a crime this was how difficult it was as a judge because it's up to the judge to have to process all of these images you know go over all of this content in a way that the senators frankly wouldn't have to do i do want to play an excerpt from senator hawley uh because after they had their back and forth this was sort of his final takeaway on that particular case my guests were just talking about but judge with all due respect and i'm i i i tell you what i'll be directed to you i am questioning your discretion your judgment that's exactly what i'm doing i'm not questioning you as a person i'm not questioning your excellence as a judge frankly but you said it you had discretion and i that's exactly what i'm doing i'm questioning how you used your discretion in these cases and to me to take a guy who's 18 years old who has what the government says is an extremely large collection of prepubescent pornography eight-year-olds 10 year olds 11 year olds we're talking about i mean gobs of hours of time here that he has and you say to him what that you say that well you know it was it was just a collection i mean he was just viewing it and it was you know essentially they were his peers you say to him that he's not a pedophile i don't know how you know that i don't know why that's relevant to the guidelines but maybe it is you say he's not a pedophile um you say that you're very sorry for him and what he suffered and then you give him three months when frankly a liberal prosecutor is asking for two full years i mean it does seem like an extraordinary case to me it would bother me no matter what it really bothers me when in every case child porn case you've had you've had discretion you've sentenced below the guidelines and below the government's recommendation so james homan you know we just had our fact checker with us and glenn kessler reminded us that that what judge jackson had done is not outside the norms of what other judges have done yeah and glenn's fact check is worth reading in full because it really does delve into these you know of course in any kind of supreme court confirmation process you're going to have cherry picking of individual cases that uh look worse uh for the the nominee and it's going to be presented in a way uh to maximum effect uh in the decade that she has been on the bench she's made more than 570 decisions and uh and this is one of them colvin who's on capitol hill rhonda reflect for us on on how that exchange with josh hawley is playing into uh how judge jackson is coping with this day and performing today and and answering the questions yeah you did and i believe uh james uh touched on this as well you did see that she was kind of i don't want to say losing patience but she did seem that that was a test uh of course she knew it was coming she's been in front of this panel now for four times for a confirmation process and holly also discussed that this would be his line of attack when he gave his opening statement and also a few days ago he said that this would be an area he was going to touch on so even though she appears to be very well prepared for this long day it's still coming across that some of these things are tough to answer especially when the member is going on about a part of her record that it was established about nine hours ago when this committee started this morning her take on why she made those types of decisions and that she was also in line with other federal judges who have made decisions on child porn cases so it's something that of course this is a long day for anyone to be sitting there and taking these questions but of course these things had already been established and debunked earlier so you did see where she did appear tested at that moment but one thing that is striking to me right now is that democrats appear very well prepared for some of these lines of questioning and attacks by republicans all day you have seen the chair of this committee dick durbin kind of correct the record on some things after we were back from a recent break he came back to say that something that senator corman said earlier about uh the judge saying that george w bush was a war criminal was not true and he said is his he gave his uh a list and and the facts that his staff came up with uh finding out that that was not true so it appears that democrats and their staffs are ready to uh come with uh facts or or more context about things that republicans are coming after her on and they're also very aware of their own lineup they know what a republican is coming before who's coming before them who's coming after them i'm thinking about earlier with senator coons who came right after ted cruz he probably knew that would be a difficult exchange he came out with the fact that judge jackson did rule in favor of the republican national committee on a case involving hillary clinton's emails which of course was a flash point back in the 2016 election so it appears that democrats have spent the weeks ahead of this process really gearing up for it making sure that they are ready for some of these attacks and they're also readying them in real time as i mentioned about dick durbin talking about his staff finding out more context and and facts uh that are associated with some of the claims the republicans are making thanks so much rhonda let's go to mike dubonis who covers capitol hill and he joins us now from the senate gallery mike how are democrats and republicans viewing this process so far well i think uh if you're not on the judiciary committee you you know you the chances are you probably haven't been following this too closely um uh you know there's a lot of stuff going on right now i mean ukraine obviously there's uh the full slate of regular committee hearings there's four votes um you know the truth be told you know that this is going to come down to just a handful of senators uh we're expecting you know the vast majority of republicans to oppose this nomination we're expecting basically all democrats to be for it there's a few in question people like susan collins and um you know lisa murkowski a few others um you know mitt romney um you know and so you know we're gonna wait for them to react but they're mostly with withholding judgment right now and uh it's going to be uh probably a day or two before they uh really get a handle on what's being said here um you know we're we're wondering if in particular senator hawley's on judge jackson's record in these child pornography cases is making an impact and right now it seems it's too early to tell um susan collins told me yesterday that she's just been too busy to even uh pay attention to the hearings and she wasn't quite sure when she's going to be able to do that so but we're going to keep we're going to keep asking until we get an answer what other uh themes and topics are are hitting over the last two days as you've been listening well on the democratic side i think the you know the effort to sort of uh emphasizes the historic nature of the nomination her record her service on the federal courts in the in d.c her service on the sentencing commission uh her family her family history i think all of that's been been very well taken i think that that that does have an impact on on those senators who whose votes uh could go either way um but yeah you know you you also have a uh you know this line of republican attacks not just what senator holly's talking about but saw senator cruz senator cotton senator blackburn who seemed eager to talk about racial issues about you know so-called critical brace theory uh some of her prior writings and comments uh regarding that i mean these are hot button issues hot button issues in the republican party these are things that republicans feel are going to motivate voters in this coming midterm cycle and perhaps in upcoming presidential election 2024 and it's no mistake who's uh you know who's bringing these things up it's it's the three or four members of the committee who are clearly ambitious uh in republican politics tom cotton josh hawley ted cruz marsha blackburn even i mean these are people who believe that at some point they may have a higher uh you know higher calling in republican politics they are very eager to raise these these uh issues that have great residents among the republican base and uh they're doing that now do they have residents in the handful of swing votes in the senate on katanji brown jackson's nomination it doesn't seem that way but that's not the game they're playing they're they're you know they're looking at the the political macro environment here and how they can burst their reputations uh among republican voters get some notice and get some headlines let's dig into the critical race theory conversation and play some tape from a democratic senator a friendly one who we've been talking about this is delaware senator chris coons and he was critical of the line of questioning from ted cruz saying the junior senator from texas was trying to paint jackson as an activist with a radical agenda and so senator coons gave jackson a chance to respond to those links cruz was trying to make with critical race theory let's watch i've heard references to the 1619 project and critical race theory but i didn't hear that cited in any reference to your opinions as a judge in your nine years on the bench as a district court judge more than 570 decisions have you ever cited the 16-19 project no senator in your nine years on the bench in more than 570 opinions have you ever cited the journalist or principal author of that 16-19 project ms hannah jones i have not and in your nine years in the bench in more than 570 decisions have you ever used employed relied upon critical race theory to determine the outcome of any case or to impose any sentence or as a as a framework for your decision making no senator mike debonas so how effective are these counter measures that democrats are taking i mean i guess we'll see i mean you know again ted cruz and the rest of these republican senators are kind of playing to the hot house of republican politics this sort of you know attack on you know woke politics or you know progressive uh ideas that um seems to be animating a lot of the you know internal politics in the party right now you know is it effective in in not getting katanji brown jackson confirmed i i i don't know it doesn't seem that way uh you know it's possible susan collins could say well i you know i had a great meeting with katanji brown jackson and you know she's got a great history but you know i don't know about where she's at on critical race theory i i don't see that happening right now but anything's possible but if republicans don't get on board mike they still have enough votes if democrats stick together to see who are seated on the bench right that's right but we should say democrats want a bipartisan confirmation here dick durbin told us he wants a bipartisan confirmation he wants to do everything possible to make sure this isn't 50 50 that there's at least one or two crossover votes uh i think it would mean a lot to him i think it means a lot to would mean a lot to joe biden uh frankly and uh that's something that they're hoping to deliver rhonda colvin one of the lines of questioning that judge jackson has gotten is what supreme court justice she admires she aligns herself with she might sort of uh sea of future justice jackson in and she really hasn't hasn't picked one and instead she's referred back to her own case history over 570 cases yeah which is it's pretty significant uh because i think people went into this thinking that she might say breyer who she clerked for she calls him her justice and they appear to be very close we know that breyer said a lot of things about her upon learning that she would be the the nominee so i i think that people are surprised she's not picking someone or maybe you know ruth bader ginsburg who was well loved by by so many um but she seems to be wanting to chart her own unique path and i think earlier when we went over that chart that the post graphics team has put out there and has gone viral and it shows that not only will she be the first black female justice on the bench she's also checking a lot of other boxes she comes from florida where there has not been a justice from florida and the deep south isn't really represented on the on the bench historically has not been represented on the bench she would be the first public defender so it seems as if she's she's fully aware of all these firsts and wants to also be a judge in her own right instead of pointing to other judges and you know that's not terribly unusual most people who are getting to this level of being a jurist really take pride in the amount of work that they put in to their decisions and going over the law interpreting it we've seen that in other supreme court nomination processes they really are very enthusiastic about the law the constitution and how to apply it so uh it's probably not unusual that she's not picking you know a favorite uh justice but she appears to want to chart her own path at the start of this all right thanks rhonda we're seeing the senators uh get seated and the chair uh take his seat but uh as we've seen james the chairman fuels up a little bit before before we get started again i think he was sharing maybe some girl scout cookies with uh some of the senators yesterday showing some cross-party snack sharing brings people together it brings people together um so james what are you going to be listening for here as we just hear a few more uh rounds of questions before we hit the dinner break yeah it's going to be really interesting hearing from uh tom cotton and then corey booker before the dinner break especially because cotton also wants to run for president in 2024.

Cory booker did run for president he's the only african-american on the committee and so it could be contentious i expect cotton will follow up along the same lines as cruz and holly and booker who kind of created that moment yesterday in the opening statement saying he was full of joy i expect he will aggressively uh intervene on judge jackson's behalf so this next hour could see some real fireworks mike de bonus um are there particular members that you of this senate body of the judicial committee judiciary committee that you are listening for closely uh over the next couple of hours here well uh you know tom cotton's coming up he you know i think he we're gonna be listening to him he's one of those sort of ambitious uh republicans who see a potential uh higher future in politics um you know she we're not going to hear from her tonight but i am very interested to hear from marsha blackburn who was very direct yesterday in her opening statement and attacking judge jackson in a way that her colleagues generally were not uh even josh hawley and tom cotton were in the mode of just asking questions and she outright said um you know regarding her service as a a a public defender said you cared more about representing guantanamo detainees and terrorists than you did about helping veterans or other vulnerable groups that was just a really sort of stark bit of criticism for it for an opening statement and i just wonder what her questioning is going to entail given that uh preamble and rhonda colvin you know we heard marsha blackburn basically accuse the nominee of having a secret agenda um what do you make rhonda of republicans saying on one hand we want to do this in a way that is respectful think our democratic colleagues were not as respectful as they should have been in past confirmation hearings and yet at the same time you see someone like ted cruz holding up a chart and talking about whether or not the judge thinks children's literature is racist you know it appears to be attempts to play to a certain base and they know how this is going to play out on social media you really only need the visuals of a senator pointing to a chart or saying you know a line that will uh be deemed favorable among their base that's all you really need to see on twitter and that's it not her answer or not the fact that it may not even apply to the role that she is seeking so a lot of this is part of that uh political theater that we talked about this morning that typically happens in these types of high profile hearings and often any hearing really any televised here it doesn't even have to be high profile anymore but these are opportunities for uh one side to get their message out and appeal to their voters and energizer voters ron i'm going to cut you off so sorry we hear the chairman talking paired in the morning with senator also for the morning show yes mr chairman i just felt like we should it's on my voice is just soft uh i felt like we should finish tonight we're trying i know senator there are a lot of people involved in this i truly appreciate that and you asked to be on the program tonight and we're going to put you in and i appreciate that thank you okay good senator cotton mr mr chairman but before we start this questioning right before the break i asked the chairman about senator hirono had referenced five probation reports that were not in the record i asked the chairman whether the democrats had access to information about judge jackson's judicial record that republicans did not you did not answer me at the time but as we return i'll give you an answer okay well hold on let me finish my question when we returned and when we walked in each of the republicans was handed this piece of paper which is the first time any of us have ever seen which is a chart of probation recommendations we were just told that the white house gave it to democrats earlier today i don't know if that's true or not and what i would ask you is that is there anything else that democrats have asked access to in this case that they're not sharing with republicans on this committee and mr chairman how would you react it if say during the kavanaugh confirmation the white house shared judicial materials with republicans and did not share it with democrats i'm pretty confident you would have expressed extraordinary displeasure if i recall there was some discovery issues in the kavanaugh case involving several years of his performance in the white house which your own council decided we couldn't but sure that's disclosure to the whole committee and and in this case is there anything else that democrats have access to of judge jackson's record that you have not shared with republicans on this committee and in particular the pre-sentence reports no i suspect if they were helpful you would have made them public so the fact that you haven't raises an inference that they're not helpful to the case you're making senator you will always draw your own inferences and i know where most of them had i will just tell you that the information that we received from the white house i'm told everyone had access to if they wanted and now you have it just a matter of hours after we've received it exactly so is there anything else democrats have that republicans do not from from judge jackson to my record mr chairman can i ask a question about this i want to be sure understand the handout that i just saw the white house gave to some of us earlier today but not all of us we it was available i'm told the information was available to anyone who requested it the white house you had to be clairvoyant and know they had it no not clairvoyance i think it's pretty obvious senator if how would you know to request it you would know it after senator hawley launched his attack on the judge at that point all of this information became relevant to countering so i would be expected to say geez after senator holly asked questions i better call the white house and see if they can help me research this that's not right the point i'm getting to is and you know as a good lawyer uh what you do during discovery i wasn't aware of the fact that this was available the white house requested it received it we asked for a copy and within an hour or two you receive the same copy when did y'all get let me let me finish when did y'all get your copy sometime today sometime today that covers a lot of ground richard i don't have any personal knowledge of this i'll be honest with you you don't have any personal what knowledge does your staff does your staff know i i have they're standing behind you i've talked to them earlier mr chairman i'm so sorry i just want to make this a partisan issue if it doesn't have to be my staff just says we just got 10 minutes to go as well so i'm very upset i joined ted cruz good mr chairman that's an alliance that's well known yes yes mr chairman i i do think it's it's significant we've had now reference some pre-sentence reports and we've we've got this material that references recommendations made by the the office of adult probation and parole well okay but we've got critical information that is contained within them the the recommendation made by the office of adult probation and parole in these cases is something that's drawn from the pre-sentence report it seems to me that if we're going to have a jot for jot selective incorporation of information in there we ought to have access to the whole report so i i i i respectfully request that we be given access to these reports they've been made now by a member of the committee in reliance on information that we haven't had access to and and and i think we need to be given those you you can't you you can't uh i i'd like to draw this to a conclusion i can tell you what i know well so would i and here's the point most of this information was published in the washington post five days ago all right this is not confidential information when the hawley attack on the judge started we requested more information the white house did and then shared it with us within the day and you now have the same copy that we have story is it fair for you to characterize uh senator hawley's questions or the questions raised by any of us as an attack i i it's not a personal attack this is it we've raised a legitimate question regarding our sentencing regarding the most heinous crimes imaginable oh come on no these are legitimate questions mr chairman don't call them attacks well i can just tell you i have characterized them as attacks and other things as well i think it's pretty clear what's going on here and now you have all the information we have so mr chairman for example in the questioning about the hawkins case judge jackson said she relied on the factors relied on probation's recommendation we just found out in what you just handed us that in the hawkins case the probation office recommended 18 months and judge jackson only only sentenced him to three months that's that's you can get more than that almost for for a speeding ticket and senator this committee given that she raised it as the basis for her sentence it is highly relevant to the committee's analysis to see what the pre-sentence report says why did the probation office recommend 18 months and she only sentenced to three months march 19th washington post in the case of u.s versus hawkins a sex offender had multiple images of child porn over 18 sentencing guidelines called for sentence up to 10 years judge jackson sends the perpetrator to only three months in prison those facts we knew it's the probation recommendation we don't dispute that the guidelines set at 10 years and she sentenced him to three months sorry i didn't finish reading it the government probation both recommended sentences well below the guidelines the government recommended 24 months probation recommended 18 months and defense recommended one day i'm telling you it was published in a newspaper well i can't help what is leaked to the newspaper or not this committee you keep referencing discovery this is not litigation this is a committee of the united states senate where both sides of the aisle have a right to access to the record and we're carrying out our constitutional duty of advice i will tell you this uh for some reason your side didn't request the information but how would we know to request so i'm hereby requesting all other information you magically have that you haven't told us you have and you're not sharing with the other side so noted for the record we'll continue with the questioning and we're requesting the pre-sentence reports in particular which are highly relevant to the issues senator cotton please proceed we don't have any pre-sentence reports judge i'd like to talk about crime in 2019 there were about 16 000 murders in america in 2020 there were more than 20 000 it's a 25 increase in one year 2021 data isn't complete but we know many cities have reached record levels of murder including philadelphia atlanta and milwaukee at the same time the prison population has decreased by about 14 percent in part from pandemic policies but also from fewer prosecutions and weaker sentencings i think it's safe to say that there's a surge in crime especially violent crime and murder across america you have noted that some members of your family have law enforcement backgrounds and i honor them and thank them for their service does the united states need more police or fewer police thank you senator as you just noted i have law enforcement in my background and i am very familiar with the problems that crime cause in the communities where we live okay judge i'm sorry um we have a few minutes here you have a lifetime appointment if you're confirmed i asked a simple either or question does united states need more or fewer police senator the determination about whether there should be more or fewer police is a policy decision by another branch of government it is not something that judges have control over and i will stay in my lane in terms of the kinds of things that are properly in the judicial branch okay you don't want to address whether the united states needs more if you're a police we'll move on to senate seeing which is certainly in your lane there's been a lot of talk about criminal justice and sentencing approaches and theories today in general is someone more likely or less likely to commit a crime if they know that they will be caught convicted and sentenced senator what is in my lane is the consideration of particular cases of prosecution you've spoken a lot today about criminal sentencing about the theory of sentencing you've written about a lot about in your record it is a very simple question is someone more likely or less likely to commit crime if they're certain more certain that they're going to be caught convicted and sentenced senator i am aware from my work on the sentencing commission and not as a judge that there is research into recidivism rates into rehabilitation into the factors that go into a determination about whether someone is more or less likely to commit crime part of what congress has taken into account when it determined that one of the purposes of punishment is deterrence is the idea that if someone is convicted and punished they will be deterred from committing other crimes and you've mentioned that and you've written about that in your writings there's four purposes of punishment one of those is deterrence it isn't it inherent in the concept of deterrent that people are less likely to commit crime if they're more likely to get caught convicted in sentence why can't you just say that's the case senator it's not that i'm avoiding saying that's the case judge that's exactly what you're doing i'm asking a very simple question in general is someone more likely or less likely to commit a crime if they know they're going to be caught convicted and sentenced it's very part of deterrence it's it's very difficult to answer questions in general when you're asking about things like phenomena related to crime it's the theory behind deterrence that by punishing someone they will be less likely to commit the crime in the future that is a theory that do you think that theory is correct senator there is research that supports that deterrence is something that can occur does it occur in every case i can't say that okay let's turn something more concrete then do you know how long the average inmate convicted for a murder serves in prison in america no i don't the answer is 17 years on average is 17 years too long or not long enough for a criminal to spend in prison for murder senator these are policy questions whether they're in the province of the sentencing commission in terms of recommendations whether they're in congress they're not the kinds of things that i can opine about so you don't want to opine on whether 17 years is too long or too short a sentence for murder miss senator cotton the the congress has prescribed a number of factors that judges look at when they sentence it may in many cases not be i don't i can't answer in the abstract in the way that you these are very concrete let's turn to rape do you know how long the average inmate convicted of rape serves in prison in america well senator rape is not a crime in the federal system that that i'm familiar with working with so i don't know it's 7.2 months do you think 7.2 months is too long or too short for someone convicted of rape to be sentenced to prison senator that's policy question about the the egregious crime of rape and congress has said that the court is supposed to take into a number take into account a number of factors when it sentences okay i can't answer in the abstract well these are judges these are not abstract these are very concrete um and remember these are just the length of sentence if you're caught convicted and sentenced let's look at cases in which people are never caught as i said in 2020 murders increased by the fastest rate ever in the united states do you know what percentage of murders are solved in america majority of cases i do not senator the answer is about half 54 in 2020 do you think we should catch this is imprison more murderers or fewer murderers well senator it's very important that people be held accountable for their crimes so that is a fundamental uh tenet of the rule of law so is that a yes we should catch more murderers specifically the 46 percent of murderers who get away with it senator i'm not to these things you're asking about enforcement or law enforcement those judges it's a very simple and common sense question 46 of all murders go unsolved should we catch more of those murderers or should we catch fewer of them senator we should hold people accountable for their crimes and so if people are not being held accountable then that is a problem let's turn to assaults do you know how many assaults were solved in this country in 2020 no senator 44 so 56 percent of all assault victims did not receive justice do you think we should catch and imprison more criminals who commit assault against innocent people or fewer senator it's very important that people be held accountable for their crimes so if they're not um then it would be a problem for the rule of law let's look at sexual assault and rape do you know how many what percentage of sexual assaults and rapes go unsolved in this country i do not senator 77 more than three quarters of all sexual assaults and rapes go unsolved do you think we should catch and imprison more rapists and sex criminals or fewer senator one of my two uncles was a detective in a sexual crimes and battery unit so i'm very familiar with that type of crime it's a horrible type of crime as are all of these that you are articulating and it is important for people to be held accountable for criminal behavior it's fundamental to the rule of law okay so in 2020 alone well over one million one million violent crimes went unsolved in america do you think we imprison too many violent criminals or not enough senator it's important for our rule of law to ensure that people are held accountable who are breaking the law in the ways that you mention and otherwise what do you think the families of all those victims think do you think they think that we should arrest and convict in sentence all these criminals who get away with it senator i know what the families of law enforcement officers think because i'm one of them i know what crime does to our society i care deeply about public safety and as a judge it's been my duty when i was at the trial level i'm no longer there but when i was at the trial level to ensure that people are held accountable for their crimes okay let's turn to the crime of child pornography i know there's been a lot of talk about it today i don't want to spend much time on it a lot of people have tried to explain the various differences in these cases and the pre-sentencing reports and the sentences that they got so let me just ask you a simple question about it should the united states strengthen or weaken sentences for child pornographers senator that's not a simple question and the reason is because what this country does in terms of penalties is in congress's province you all decide you all decide what the penalties are you decide what the factors are that judges use to sentence if you determine that any set of penalties is insufficient then it is in your purview to make that determination there are many crimes that congress has determined warrant mandatory minimum penalties warrant other kinds of penalties and that is in your purview to determine i say judge i think whether or not we should strengthen or weaken sentences for child pornographers is a pretty simple question but i'll move on um i think the difference we've heard today gets to this simple fact that a bunch of elite lawyers whether they're judges or federal prosecutors or public defenders or law professors think that sentences for child pornography are too harsh i don't and i bet a lot of normal americans don't either you've said repeatedly that sentencing is a discretionary act and i understand that and i agree with it but you always seem to use your discretion in these child pornography cases to reduce the sentences i'd say if i had that discretion i'd probably throw the book at child pornographers maybe that's just me but let's turn to drug crime last year more than a hundred thousand americans died from drug overdose drug overdose deaths and gang crime have both skyrocketed in recent years at the same time that a lot of soft on crime laws and lower sentences have been advocated including it on occasions judge by yourself in general do you think the united states should weaken or strengthen sentences for fentanyl traffickers traffickers not users senator whether or not congress chooses to strengthen or weaken penalties for any crime is a determination of this body which is ordinarily made after study and review determination um that is in the province of congress well judge you've said before that sentencing is the discretionary act so that that is literally the job of the judge in many of these cases to determine whether to have a shorter or a longer sentence respectfully senator the judge makes that determination not based on one data point in general which is what you asked me in general should we lower or heighten sentences a judge is making a determination in a particular case looking at all of the factors it's discretionary for sure but we do so within the bounds of a sentencing range that congress prescribes and at times in which congress decides that a penalty needs to be heightened they impose a mandatory minimum then our range is shorter and when we're looking at the crime we're not looking as a policy matter across all fentanyl crimes and determining whether the penalty should be increased as a judge we are asked in the context of a single prosecution regarding a particular person who has committed a horrible crime but also says congress is a person who has a life who has a job who has all of the other factors that congress has told judges they have to look at when they decide what penalty to impose in that particular case between the range that congress sets so it's not a situation in which i can in my role as a judge tell you as a general matter whether penalties should be increased or decreased i have to say i i think that not many americans especially not the hundred thousand americans uh who's lost someone to drug overdose think these are tough questions but let's move on let's talk about retroactivity when you were on the sentencing commission you repeatedly advocated for retroactively reducing drug trafficking sentences so this is a case where a drug kingpin who's dealing fentanyl gets sentence and then a few years later he gets lucky he gets in front of some new judge who's maybe more sympathetic and thinks he got a wrong raw deal or maybe he just gets in front of the same judge a few years removed from seeing the faces of the victims of his crime do you believe that resentencing years after a convention conviction tends to reduce senate's lengths senator respectfully i just wanted to um remark on your previous question in in your um statement that these are not difficult questions they're it's not that they're difficult questions it's that they're not questions for me i am not the congress i am not making policy around sentencing my job is to look in a particular case and decide what the penalty should be within the range that congress prescribes i understand you were making policy though at the sentencing commission and you're implementing changes to sentencing guidelines so my question again is do you believe that resentencing years after a conviction tends to reduce senate's lengths i'm i'm not sure i understand your question obviously if you re-sentence you're giving the judge another opportunity to look at the circumstances in light of the changed penalties sometimes the judge in that new situation will keep the same penalty a re-sentencing is just an opportunity for the judge to reevaluate in light of the changed circumstances okay almost without exception retroactively weakening sentencing laws and guidelines let's harden criminals out early i i always hear the argument i hear from some of the senators on this panel i heard a version of it from you earlier that each case is going to go before a judge and it won't be an automatic release because each judge is going to assess the facts and hear the arguments in 2014 you said that judges would not would not likely reduce the sentences in the vast majority vast majority of cases if sentencing guidelines for drug trafficking were reduced i think you missed that one judge since 2014 retroactive reduction took when retroactive reduction took effect approximately two-thirds of all convicted drug traffickers who asked for early release got it that's 31 614 hardened drug traffickers back on the streets more than 7 500 of those hardened drug traffickers use weapons in their crimes so that means that only one third of these drug traffickers who sought to have retroactive reduction of their senates were denied judges one-third a vast majority senator it's hard for me to answer questions about these numbers because i'm trying to understand whether this is a retroactive release that was a result of the sentencing commission's actions or congresses congress made a decision about uh retroactive reductions in drug penalties so i i'm just not sure what but judge in both cases we always hear the argument whether it's from members of congress to include senators on this committee or the sentencing commission that we shouldn't worry there's going to be individualized case-by-case determination and that is my that is my experience that's when when there's a when there is a retroactive uh change so what happens is that um whether it's the guidelines that are changed or the laws that are changed which happens in congress and there is a subsequent determination as to whether or not to apply that retroactively apply that change so that both the people who get convicted of that penalty moving forward and the people who have already been convicted both of them get the benefit of the change if the determination is made to make it retroactive under that circumstance where you're talking about a penalty change applied to prior people each one of those prior people goes back before a judge and a judge usually the sentencing judge in the first instance will reevaluate whether or not to this is generally there are some exceptions but generally speaking um the judge will reevaluate whether or not to give that person the benefit of the change this is an individual assessment that's what congress requires in every sentence and and ultimately one that benefits all of us under the law because judges are being asked to look at these cases and not make just generalized uh determinations so so the 2014 comment was specifically about the sentencing commission but generally whether it's in front of the commission or the congress we always hear this argument that judges are going to make these individualized cases and not that many people will be released i'll point out that of the one-third that were not reduced the vast majority of those were not eligible the percentage of cases in which a sentence is not reduced for public safety reasons because someone is viewed as too dangerous to release early as one percent it's one percent judge do you remember a man named keith young yes good for the benefit of my colleagues uh let me quickly cover the basics of his case you sent it to him in 2018 keith young was a career criminal who had previously been convicted of trafficking cocaine in 2017 he was running a drug business in his house where his children lived and was found with two one kilogram bricks of heroin worth hundreds of thousands of dollars along with a gun ammunition thousands of dollars in cash and equipment to cut and package heroin for a retail sale the drug lab also confirmed that there was fentanyl in both bricks of heroin and in one of the two bricks there was actually more fentanyl than there was heroin while at the d.c jail awaiting trial young bragged about his arrest and about how he was a kingpin those are his words not mine kingpin he was even recorded calling his wife and brother to give them instructions on collecting drug money from people for him the prosecutors filed a notice of young's criminal history which meant he faced a mandatory minimum of 20 years you did not seem to like that judge in fact at his sentencing you said this a quote that you shared his frustration that you couldn't give him a lighter sentence i was shocked to see this in the transcript i was also shocked that you apologize to this drug kingpin for having to follow the law you literally said that you didn't think 20 years was fair this is the quote and for this i am sorry mostly because i believe in second chances you apologize to this career criminal a drug kingpin in his own words he was not some low-level first-time drug offender who made a bad bad choice that was in 2018 but in 2020 you got a second chance after young sentence congress passed something called the first step act which reduced sentences for serious drug traffickers with lengthy criminal records during the pandemic lots of criminals like keith young tried to twist the first step act's compassionate release provision which was intended for terminally ill elderly inmates to get early release and blame it on covet you had none of that and that's good you rightly said at his resentencing hearing quote cobit 19 is not only present in prisons and you said that young's passed as a smoker and his claim of various other health issues did not entitle him to early release if you had stopped there i would have cited that as a great example of how you followed the law and made a well-reasoned decision unfortunately you didn't stop there you said in the resentencing that quote congress did not make their changes under the first step act retroactive that if they had then you could have given him a reduced sentence but then you said no matter what the law says and this is a quote judge the court feels as though in this moment per mr young's compassionate release motion the court is being called upon to evaluate the length of his sentence under the revised section of the law on the first step act and so it is almost as if i am sentencing him today and if i were to do so he would face a sentence that would be well below the 240 months that mr young received and so for that reason i will grant mr young's motion judge jackson before you granted this fentanyl kingpin's motion to reduce his sentence did you contact any of the victims from his case senator thank you for allowing me to address mr young's situation i asked a simple question did you contact the victims in his case or not senator mr young was not released his sentence was reduced and i did not contact the victims in this case because there were no victims he committed a crime a drug crime there were no identifiable victims in his case drug crime is not a victimless crime a hundred thousand americans were killed by overdoses understood senator but there was no one to contact people you just didn't know what you did i acknowledge that you did not release him you're right you didn't release him he filed a motion for compassionate release you denied that rightly but you reduced his sentence he didn't file a motion to reduce his sentence he wasn't eligible for a reduced sentence under the first step act because it wasn't retroactive towards him you took a motion for compassionate release to get out of prison and turn it into a motion to reduce a sentence so he's going to be released seven and a half years earlier years from now last week judge when we talked in our office you talked about a lot about judicial restraint is transforming his motion for compassionate release into a motion to reduce a sentence for this drug trafficking kingpin an example of judicial restraint judge yes senator it is and i will explain how mr young as you say was facing originally a sentence of 20 years in prison which i imposed i tried mr young who went to trial primarily because he was facing such a long penalty i looked at the evidence in his case he was absolutely the kingpin that you're talking about but the way that our laws work the 20-year sentence that he received for the amount of cook of heroin that he had was increased based on a sentence that he received i think it was 10 or 15 years before he had no criminal history between the old old sentence and i and forgive me i can't remember exactly what it is and i'm sure people will look it up but 10 15 years before he had some minor sentence then he had this really obviously serious terrible sentence and the government filed what is called an 851 which is an enhancement based on his really really old prior criminal history i followed the law which said that he had to go to jail for 20 years it would have been more like 10 years if the government hadn't taken into account his very old criminal history but i said fine this is the law i'm following it you're going to jail for 20 years in the interim covid happens we get lots of compassionate release motions and there's a statute that congress has enacted which allows defendants to seek compassionate release to seek reduction of their sentence not just release reduction release some adjustment to their penalty under the law if there are extraordinary and compelling reasons to do so that's the quote from the statute extraordinary and compelling reasons doesn't say anything more narrow than that although you do have to look at the guidelines related to compassionate release all of which i did related to his motion and he argued several things he argued his smoking his asthma these were reasons he said for compassionate release and i disagreed what i did find extraordinary and compelling is the fact that between the 20-year sentence that i gave him originally and the compassionate release motion that he filed congress changed the law congress decided that the old penalty the old crime was no longer eligible for the increased so that a person who was convicted at the time of his compassionate release motion for doing exactly what mr young had done would not get a 20-year sentence that would not be lawful for a person at that moment and one of the things that congress says to the judges is care about unwarranted sentencing disparity care about the fact that the person you're sentencing is being treated differently than someone else who committed exactly the same crime and i understand it wasn't retroactive in the sense that everybody absent a compelling uh uh absent a compassionate release motion wouldn't have been eligible for re-sentencing but here i have a defendant before me and all of the factors that congress has asked me to take into account and a compelling argument that there were extraordinary and compelling circumstances that is a change in the law that would create unwarranted sentencing disparity if i didn't take account of it and so what i determined under those circumstances is that i would sentence re-sentence mr young to the penalty that congress had decided was the appropriate penalty for the conduct that he committed as of the time of his motion judge congress did change the law after sentencing in the first step back that was a terrible mistake congress specifically did not make that change retroactively and you saw that and you thought it was extraordinary and compelling even though congress specifically did not make it retroactive you chose to rewrite the law because you were sympathetic to a fentanyl drug kingpin whom you had expressed frustration at having sentenced him to his cri to his 20-year sentence in the first place you twisted the law and you rewrote it so you could cut the sentence of a drug kingpin that's what you did judge respectfully senator i disagree congress provided judges through the compassionate release motion mechanism with the opportunity to review sentences congress prior to the compassionate release mechanism being enacted a judge who imposed a sentence would have no opportunity to revisit in mr young's case the question was with this compassionate release motion under a circumstance in which congress had changed the law was that an extraordinary and compelling circumstance to revisit his sentence and i made a determination that it was so i suppose then if you're confirmed we can just count on you to always rule in favor of retroactivity no matter what the facts of the case are because it was a blatant blatant rewrite of the law here so you could reduce the sentence of a drug kingpin if you didn't like sentencing to 20 years in the first place no senator it was not senator booker approaching 11 hours now of a long day and forgive me i want to go back to one of my early senators uh lindsey graham i think he asked you something and i'd like to just put it this way on a scale uh from one to ten how deep is your faith that i won't ask that question you're asking me you won't ask me i'm just joking okay i won't ask you that but i do want to go through some of the things that uh some of my colleagues did on on top line and forgive me i don't want to dwell too much but some of it i found today um uh uh just to me really didn't hold water and i want to start with uh my friend and colleague uh ted cruz who is my friend i like he's a texan my one of my favorite texans is bernay browns who says it's hard to hate up close so pull people in and a lot of times in this uh culture of tribal politics uh the reality is we know each other we get to know each other over years and i've had the privilege of working with ted on a lot of really good policy uh so i went back to my office and re-listened to his questioning of you about critical race theory and he referenced uh your speech which i hadn't read uh uh you harvard folks are so uh well focused on these things but i just i read your speech and i was very surprised uh ted had a very big chart i think he needs to give senator whitehouse some advice on charts in our white house this was very small it was almost as they were proportionate to their state sizes but easy there new jersey [Laughter] um mr chairman i would request that my colleagues in the democratic party would stop interrupting me um but he he talked about your speech and when i read your speech uh there's a couple things that jumped out first of all was this he he acknowledged was a very powerful speech very moving speech about extraordinary black women i have a criticism your mother was not in it but i will leave that alone um but uh there's some things he honed in on almost as if there would seem to be accusations which don't hold merit to me we have a saying in new jersey i felt it was all hat and no cattle um and so here we he she he said that you called uh the woman who wrote the 1619 project that you called her provocative that that's not a compliment necessarily if you call someone provocative is it no no i mean i think ted cruz is very provocative and that doesn't mean i that doesn't mean i agree with what he's saying his philosophy he doesn't mean i agree with his statements but uh he pointed out you also called the author acclaimed she won a pulitzer prize correct in journalism so she is acclaimed she is uh but in nowhere are you heralding her as this is a reflective of your philosophy that's true right correct yeah so i don't understand that at all uh part of his chart also was a lot of ellipses skipping out things but you mentioned critical race theory when you're talking about policies in general i actually went back to that talk too and i saw you through everything in there you were talking about psychology economics all different types of disciplines is touching upon the law i think there was everything in there i seem to be except for astrology but um you you you understand that that was you were just listing a list of things that people could say touch the law they weren't your philosophies at all correct senator and that speech was not related to what i do as a judge that was talking about sentencing policy and all of the different academic disciplines that might relate to it yeah and then finally we're entering an age that is surprising to me in american society where lots of books are being banned and uh lots of talks about books being read uh you're on the board of a private school and you have no supervision or authority over what books the children read in a private school correct correct i really i really do appreciate that uh jumping really quickly to a lot of talk today um about uh these uh child exploitation cases um and and senator durbin i think that uh actually josh hawley used the word attack when describing his own his own so i don't understand why what that point of sensitivity was but i i i individual cases and we've now heard about two you've you've presided over as a judge more than 10 15 cases i've presided over 14 cases that involve child sex crimes but i prov over my career as a trial judge i've presided over more than a hundred right and cases are heavily fact specific right that is true did you remember all the facts of the case that uh senator hawley was i did not you did not right and and the facts matter right they do and and as a judge you're looking at all of the facts of the case not just what might be talked about later or what people are honing in you have to take everything into account and make a decision correct yes that's what congress has required judges to do right and just to clarify that congress thing because again uh you went to this elite law school i went to a gritty inner city law school yale um and uh so you know this better than me but it was actually 1984 that the sentencing laws uh the sentencing standards were passed down correct i believe so yes yeah it was 1984.

And then later in 2002 or three things were updated but that 1984 was before the internet uh completely and i i just want to clarify also the booker decision yes could you just clarify for the record because my mom might be watching no relation to me whatsoever correct so um the booker decision which uh earlier i mentioned that i thought justice scalia wrote it in fact it was justice stevens yes but justice scalia concurred um so he had a separate opinion and he had written a previous decision that was very similar yes the bucker decision um made the guidelines the sentencing guidelines advisory why why would the supreme court joined by some of the most conservative members why would they do that well they determined that um in essence the booker that if the guidelines were mandatory that it would um violate the right to a jury trial to have jurors decide every aspect of your sentencing yeah it's sort of the separation of power sixth amendment yes uh this is this is really important yes um and so that gave judges latitude yes now i if you were falling out of the norm and this is where you know i've now read conservative periodicals looking at this line of attack that's not a negative pejorative again my colleague himself used it but this line of attack on you i've seen conservative papers liberal papers mainstream papers all say this doesn't hold water and the reason is and again i unlike white house and te and cruz i don't have a chart i'm uncharted um but i would like to hold this up for you um you are well within the norm nationally for going below the sentencing guidelines because of of this problem where you have this incongruency that that judges on both sides of the uh of that have been pointed by people both sides of the aisle have seen i just want to make that very clear you are you are well within the norm in the united states of america i i love i'm a former mayor and one of my favorite mayor friends used to always say and god we trust but everybody else bring me data and and and so the data kind of shows that you're not some outlier and and forgive me because this is you're not allowed to do this but i kind of sat here i was a little insulted about the accusation that somehow this mother of two confirmed three times by the united states senate who has victim advocacy groups writing letters for you who has child victims advocacy groups supporting you who has presided over fact specific cases of the most heinous crimes that somehow the implication that you are somehow out of the norm of other federal judges that we have confirmed with these issues have never come up who again i held up this chart but the majority of the of the of the decisions a percentage of sentences below guideline range in non-production child pornography cases in dc 80 percent of them are under the guidelines in missouri 77 percent in iowa 62 in north carolina 77 in nebraska 81 and so on and so on so forth down to utah uh alphabetical order 71 and and so this implication that somehow your thoughtfulness on these very dense fact specific cases is somehow out of the norm to me does not hold up doesn't head water and then you add that to the endorsements that you have gotten from folks that deal with victim advocacy groups it is to me just a a line of attack that it does not hold uh uh in in in no way for me i'm sorry in the totality of your career what you've accomplished and what you've done um i just think it's unfortunate that unlike the sort of fair arbiters of this on both sides of the eye who've dismissed it um i appreciate the way you've stood it there sat there and and addressed all of that stuff and and that really brings me to the larger implication you talked a lot about uh your your uh uncles one of them served in baltimore is that right a police officer my brother was a police officer in baltimore the gentleman over there yes who who volunteered to serve in the united states military yes and he you have talked about that police work right yes i live in newark i love my city uh if you cut me i bleed bricks and and i i was the nickname of our city's brick city your brother and i probably understand something the majority of murder victims in the united states of america do you know who the majority of murder victims are i don't they're black men i imagine in your conversations with your brother and your two uncles you who patrolled some of these streets i imagine you feel in a different way about the anguish of what many communities of color struggle with when it comes to crime am i am i am i right there you are right senator it is very anguishing and it is something that i know all too well and you are a person that has that same fear that many mothers have for their daughters who do go out in this world my mom used to say when you have a child it's like your heart going going around outside of your body all of a sudden and i just find it hard to believe given your law enforcement background you're a mom that you take any of this urgency to keep america safe and and then i see that like folks i know well i i've worked with the fop i began negotiating with them i have to say i thought jim pasco before i knew him it's a whole thing renee brown bring people close at first i thought he was an ogre biggest police union in the i had some tough negotiations with my police union he and i sat down and we shared our stories and i think we realized we were coming from the same place when we were working on police reform fop endorsed you and they wrote a powerful letter i won't read it again the iacp they represent the largest that's the rank and file the fop the iacp represents the bosses the managers they endorse you there's another group that maybe my my colleagues don't know as well as i do is called noble do you know them i do they're the black law enforcement organization nationally people like your brother yes who love their communities yes who have seen like i have too many young men lying with bullet holes bleeding into our pavements these are these are folks who come from communities like your brother knows where where you too often see sidewalk shrines to murder youth i've talked to the women and men of noble so many times anybody ever accuse them of being soft on crime but they understand the complicated factors of crime in our country and what they have to say to you about you i won't read it it's just beautiful law enforcement family mother of two law enforcement organization after law enforcement organization victims advocacy organizations after victims advocacy organizations republican appointed judges democratic point of judges that's who's in your corner we're politicians we have a sworn oath right now i i've just watched you with dignity and grace field what i can only imagine is behind those questions is this doubt that is is being sown i just want america to know that when it comes to my family's safety when it comes to newark new jersey or my state god i trust you i trust you now i brought in your mother and i have to go back there my mom has a saying that is awfully embarrassing when she talks about me she she says uh she'll introduce me and she'll say behind every successful child is an astonished parent [Laughter] but there's something about your mother looking at her is that she doesn't seem all too astonished she seems like almost just very slyly she knew that a day like this might come and and so i just want to share with you that i have done a lot of hiring before i was in a legislative body i ran new jersey's largest city and i could write a book about all the management mistakes i made in my first year and how it made me a really good manager and the first mistake i made was i was just looking for the most talented credentialed uh uh skillful smart people to help me run things and i soon learned it wasn't enough i made some mistakes in hiring and i began to see that those skills which you have a tremendous amount of i've you it's been said so many times if stacking you up against other supreme court justices you have more qualifications more credentials in many of them but i learned that you should hire first that's necessary credentials but not sufficient that you should hire for character that's what made me hire a great team in newark eventually and we we operated so well and so i believe i've gotten to know your character over these weeks but i want america to know a little bit more about your character right now and so i know my values booker t washington said it excuse me james baldwin said it children are never good at listening to their elders but they never fail to imitate them if i want to know your character you haven't let me do this yet but i want to hang out with your parents a little bit and so let's draw them into this conversation we won't swear them under oath but just could you share with me what are their bedrock values that are most a part of your values now that you hope and pray are your grandchildren's unborn grandchildren's values what are those most important values you inherited from those two folk over there thank you senator i inherited a number of bedrock values as you say from my extraordinary parents as i mentioned my parents grew up in a time in this country in which black children and white children were not allowed to go to school together they persevered they were the first in their families to go to college to have that chance they each went to historically black universities and they taught me hard work they taught me perseverance they taught me that anything is possible in this great country and i think it came as i said in my introduction from the sea change that we had in this country from the 1960s when congress passed two civil rights acts and african americans finally had the chance to become a part of the dream become a part of the fabric of this wonderful nation my parents moved to washington dc because this is where it all started for them in terms of having new freedoms and i was born here on that hope and dream i was born here with an african name that my parents gave me to to demonstrate their pride their pride in who they were and their pride and hope in what i could be and it seems to me as a guy whose parents came here and and you and i both were born here months apart i would hear my parents tough stories at the dinner table about facing bigotry here in the city my father told me stories about his early jobs but i never noticed noticed a hint of bitterness or or that hate he saw and never generated hate with him in fact i he just loved people all people that is correct senator and i i would say that my wonderful parents um went on to become extraordinary public servants they had new opportunity they could have done you know other things but each of them decided to give back to the community my mother was in the public school system she was a teacher and then became an administrator became the principal of a magnet school for the arts in miami a new school that had started up and became the sort of beloved principal of new world school of the arts and so many of her students uh continue to see me meet me and they know me for my mother which is fantastic and she had diverse students she had extraordinarily and she loved on all those children everyone black white everyone well let me let me ask you this because i'm going to push you a little harder because i again i have some people i really respect on the other side of the aisle and they do my friends and i talk about religion sometimes faith is important i was teasing lindsay senator graham earlier but um i don't want to ask you anything specific about your faith except for this because you brought it up in your opening statement and i have to tell you i don't think black women have any providence over struggle people from all backgrounds in america struggle um but i do know often as the trailblazing black women they they have often faced many challenges being the first or being a trailblazer or breaking glass ceilings but i know on your journey to this moment right now you have faced very tough moments probably you've been knocked down by life i always say if if america hasn't broken your heart you don't love her enough you you've been heartbroken by something circumstance you've been like zora neale hurston who says i've been through sorrow's kitchen and i licked out all the pots you've been like langston hughes to that's that poem mother to son life for me ain't been no crystal stare could you talk to me maybe about one moment or what you do when you get knocked down like that where do you get the grit and the guts to get back up and keep on going well senator i think that too is something that i learned from my grandparents who as i said didn't have it easy my grandparents who didn't have a lot of formal education but who were the hardest working people i've ever known and who just got up every day and put one foot after the other and provided for their families and made sure that their children went to college even though they never had those opportunities i i reflect on them in the context of this historic moment i stand on the shoulders of people from that generation um and i and i focus at times on my faith when i'm going through hard times those are the kinds of things that i learned from my grandmother who used to have those family dinners and bring us all together and i think that's a common experience of americans that when you go through difficult times you lean into family and you turn to faith and that's part of my experience as well it's i think the experience of my colleagues on both sides of the aisle leaning on that faith and that family i want to give you uh there's one thing about your opening statement and i have to say uh i i haven't actually shaken your husband's hand yet but yesterday i was mad at him because when he started uh tearing up at your remarks about him it it triggered i don't really have it but it triggered a sympathetic cry in me as well so i'm a little upset at him but i will uh i will deal with him individually um but uh you said something that i found provocative to use that word one more and i felt afterwards i reflected i even talked to my staff about it because i thought that statement it didn't seem congruent to me and it was i don't know if it was a a profession of humility or or um overly critical critical of yourself but i want to end in my last five minutes giving you space to explain yourself to me because um much to my mom's chagrin i am not a parent yet and i want to i'm looking at somebody that i admire but you said something that uh struck me because look my mom was a working mom and god it was tough i i i my colleagues will will not believe this but there was a time i was very melodramatic and i uh was in in a bathtub of oatmeal bathtub and my mom was getting ready to go on a business trip and i look at her with these sad eyes and i say mom if you leave me i'll die and she looked at me knowing that you don't die from the chickenpox but i still remember her going to the phone having a long conversation taking off her business dude and changing into her sweatpants she would tell me later that that was not a sign of love she loved me but a lot of women who love their kids can't stay home because we don't have paid family leave in this country so you said in your opening remarks that you haven't been as good of a parent i think if i'm paraphrasing right a good as a mom as you'd like to be and i looked at your two girls and i look at you and i do i don't understand that statement could you could you maybe explain for me what you meant and maybe take one more beat and explain to me um what it means to you to be a mom of two young women growing up in america today thank you senator what i said in my statement was that that i had struggled like so many working moms to juggle motherhood and career and it takes a lot of hard work to become a judge to do the work of a judge which i've done now for almost 10 years you have a lot of cases you don't have all that many resources comparatively speaking and it's a lot of early mornings and late nights and what that means is there will be hearings during your daughter's recitals there'll be emergencies on birthdays that you have to that you have to handle and i know so many young women in this country especially who have small kids who have these momentous events and have to make a choice you talked about your mom making the choice to make sure that she cared for you in that moment and there are times when obviously you have to care for your family members there are other times when there are events that you wish you could be a part of but here's the emergency case that you have to deal with and so i said in my opening that girls you know you've had to deal with me juggling motherhood and uh job responsibilities and i i didn't always get the balance right and so i would hope for them um seeing me hopefully you all will confirm me seeing me um moved to the supreme court that they can know that you don't have to be perfect in your career trajectory and you can still end up doing what you want to do that you just have to understand that there are lots of responsibilities in the world and that you don't have to be a perfect mom but if you do your best and you love your children that things will things will turn out okay well i'm sure your mom probably feels she wasn't perfect but but things have turned out okay and i will tell you this um i'm sure they've said it if they haven't i'm sure they will the older i get the more i appreciate my parents uh i know they're proud of you but as a as a guy who does have faith and i sit at home in a room of my ancestors where i have generations of my ancestors pictures up and they're black folk and white folk i have a very interesting family tree i sit there to feel my ancestors sometimes and think about them i hope right now in this questions and blistering that you know that at that desk there are a whole lot of spirits around you with their hands on you not only your children your parents proud but so are your ancestors mr chairman thank you thank

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