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tv   Confirmation Hearing for Supreme Court Nominee Ketanji Brown Jackson Day 2  CSPAN  March 22, 2022 1:00pm-5:00pm EDT

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just because you practiced your faith in a way that made them uncomfortable. i am convinced that no amount of going to church that your decisions would be fair. i felt judge barrett was treated very poorly. hon. ketanji: she was a judge on the court was -- that i serve. we did not overlap. i am struggling to remember if i met her. she was a judge on the circuit court. >> you were a district court judge. is that right? hon. ketanji: i was but i don't know -- >> where they in the same
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building -- where they in the same --were they in the same building? so you really don't know her. hon. ketanji: i know of her. >> what is her reputation? hon. ketanji: she is a very well-respected judge. >> in terms of family, she was the daughter and granddaughter of sharecroppers. she was raised in alabama under jim crow. despite this adversary, -- adversity, she put herself through law school as a single working member -- mother. that is pretty impressive, isn't it? hon. ketanji: yes. your background is impressive. if family battered, -- mattered, we would not have done to her what was done to her in the united states senate. do you realize she was filibustered for two years when she was appointed at the d.c. -- at the d.c. circuit court mark -- d.c. circuit judge?
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hon. ketanji: i didn't know that. >> did you know that biting had to filibuster -- biden had to filibuster brown? hon. ketanji: no. >> i can assure you that would be a very difficult fight and she probably would have to be filibustered? is that new cu? -- news to you? hon. ketanji: yes. >> ok. now that you know that, how do you feel about that? hon. ketanji: i cannot speak to something that i've learned two seconds ago. >> fair enough. you are in the black law school society. hon. ketanji: you black law student association. -- the black law student association. >> you are a member at harvard. hon. ketanji: yes. >> the mr. jeffries thing, you remember that dustup? hon. ketanji: only in preparation for this and i was in college at the time. it was my senior year of
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college. >> you are not in the group when he was invited to speak? hon. ketanji: 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 student association. >> do you remember going to a speech given by mr. jeffries, i think he is the uncle of keem jeffries. hon. ketanji: i do not. best did not. -- i did not. >> you you associate yourself with those views? hon. ketanji: i did not. >> he has been called as anti-semitic. he called juice people that stunk up the place. you do not agree with that, do you? and it would be wrong for me to
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associate that with you because he spoke for a group you are a member of. hon. ketanji: yes. >> i thought that was the right answer with judge alleo when they made a big deal about a group that he was in that had believes that he did not -- agree with and they called him a racist and found out that senator kennedy, who beat the rap --crap out of the guy, were being some part of a separate organization that did not admit women. the reason i am bringing this up is that it brings us a chance that there are two standards going on. if you are an african-american conservative women, you are fair game to have your life turned upside down, to be filibustered,
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no matter how qualified you are and you expressed your faith as a conservative, you are a f-in nut. we are tired of it and it will not happen to you. but it appalls me that we can have such a system in a america that a conservative woman wants to stand out and say i love my family just as much as you love yours and faith means just as much to me as it does you. they are a weird -- weirdo. a justice who is in the same situation you are in -- this -- all, they own it. that stuff needs to stop. our people deserve better respect and i hope this is over, -- when this is over, people will say you were well treated even if we don't agree with you. let's talk about gitmo. being a public offender, did you consider that rewarding?
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hon. ketanji: senator, yes. i did. because public service is very important to me. it is an important family value. it is something i dedicated my career yo. --to. >> do you think it is important to the system that everyone be representative -- -- represented? hon. ketanji: absolutely. >> that was my job in the air force. i represented everyone that came in the door. whether i'd like them or not. i did my best. is that what you did? hon. ketanji: yes. >> the american people deserve a system that everyone is representative -- represented. anyone who takes up that cost, no problem with me. i think you're doing your job.
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there's the other side of the story that never gets mentioned when i talk about gitmo. the system that keeps terrace -- terrorists off the battlefield, they deserve a system that understands the difference between being at war and a crime. do you consider 9/11 a act of war? hon. ketanji: yes. >> i think it was an act of war. the al qaeda and the associated groups against the people of the united states. as you rightfully did your -- are proud of your services as a public defender and you represented gitmo detainees, which is part of our system, i want you to understand what is best has been -- what has been happening at gitmo. what is the recidivism rate at gitmo? hon. ketanji: i am not aware. >> it is 31%. how does that strike you? hon. ketanji: i don't know how it strikes me overall. >> it strikes me as terrible.
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hon. ketanji: that is what i was going to say. >> we found common ground. of the 729 released, 229 has gone back to the fight. here is some of the notables. a former gitmo detainee was named the interim defense minister of afghanistan. [laughter] 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. the five men we release from gitmo as part of the prisoners swap, one of them was appointed deputy minister of defense, another was appointed acting minister borders and travel affairs. one was appointed as acting
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intelligence director. one was acting administrator, culture of defense. one was appointed as a new governor of the saft -- other southeastern province -- asaph eastern province. -- a southeastern province. these were five people that are now helping the taliban. would you say our system in terms of releasing people needs to be looked at? hon. ketanji: what i say is that that is not a job for the courts in this way. >> as an american, does that bother you? hon. ketanji: any repeated criminal behavior or repeated attacks, acts of war, bother me. >> it bothers me. while i will not hold it against you that you represented gitmo
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detainees, let's look at the system. with 31% going back to kill americans, we have gone wrong. are we still at war? hon. ketanji: the amf, authorization of military force is still in effect. congress has authorized the use of force against people in this way. >> do you personally believe that al qaeda, isis type groups are still at war with us? hon. ketanji: yes, i think -- >> we are in this state of war with certain elements of radical islam. to this very day. hon. ketanji: that is documented, yes. >> what is the process to
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determine whether the ones with -- someone is an enemy combatant with our law? hon. ketanji: i believe that the executive branch makes assessment of whether or not someone has taken up arms against the united states in the world related to all of this. >> it is a executive branch function to determine if this person qualifies as an enemy combatant. hon. ketanji: under current law, i believe that determination is made by the executive branch and the person is detained and the question becomes whether they are able to bring some sort of legal challenge to that determination. >> the law is that the executive branch determines if you are an enemy combatant and you can
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appeal the decision to the federal court through habeas. hon. ketanji: i believe that is correct. >> is a your view that you can hold enemy combatants -- through -- as long as they are a threat to the united states? hon. ketanji: that is what the supreme kate -- court has determined. >> have you argued against that, before? hon. ketanji: i am trying to think. i had two amicus briefs that i worked on or three technically but two different cases. >> we will have another visit tomorrow. go back and check. i am pretty sure that you argued the executive branch should not have the ability to hold an enemy combatant indefinitely. you need to try them through some process or release them. hon. ketanji: as you were talking, my clients, the cato institute, and the constitution project, made that argument and
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asked me to draft a brief. >> do you agree with that argument? hon. ketanji: my responsibility was to make my clients'arguments -- clients' arguments and as the nominee of the supreme court, that is the issue -- this up in court did not address the issue. the case began -- became moot. >> did you organize an effort to get 20 justices -- hon. ketanji: on another issue? >> did you go out and recruit 20 judges to help you file a brief on another issue regarding war detention? hon. ketanji: not technically. >> what do you mean by that? hon. ketanji: what i mean is that i was at morrison and foerster, which was mild law form -- my law firm. in the supreme court, an
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appellate group. one of the partners was a former federal judge, who wanted to make this argument and who said, i have former federal judges who are friends of mine who would like to join with me to make this argument. i worked with her, the partner at my firm who was a former federal judge. >> it was her idea and you best to get -- to get former judges to write that and you helped with the implementation. hon. ketanji: senator, as a member of the supreme court appellate group and law firm, that is the practice. that is the amicus practice. >> it was somebody else's idea. hon. ketanji: yes. >> so, now, there are people still held at gitmo today. do you understand that? hon. ketanji: yes.
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>> what system is in place regardless -- regarding their future? hon. ketanji: i am not aware of the system right now. i am not sure exactly -- >> let me tell you what it is. there is a periodic review process data of an agency where they get through the filing of these folks and they determine whether or not they present a threat to the united states or the world and i think in six months or a year, that goes on on an annual basis and if there is a determination that this person is a threat to the united states, they will continue to be confined. that is the way the system works. are you ok with that? hon. ketanji: as a policy
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matter, i am not speaking to my views. my understanding that it is a periodic review system -- it is a executive branch determination on whether or not they will continue to hold people -- >> does that make sense to you as a way to deal with these detainees? >> i am not am in the position to speak with the policy of the executive branch of the way that they handle detainees. >> you argued that the executive branch did not have that option. if you had your way, the executive branch do not do periodic views about the danger that the detainees present to the united states. they would have to make the decision of trying them or releasing them. hon. ketanji: it was not my argument. i was filing an amicus brief of
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we have clients, including the cato institute and others. >> when you signed to a brief, does it not become your argument? hon. ketanji: it does not. if you are an attorney and you represent a client -- >> was that your position when you were in private practice? you sign onto this brief, making this argument but you say it is not your position. why would you do that if it is not your position? why would you take a client that has the position like that -- no one is making you do this. hon. ketanji: i would refer you to the same sort of statements that chief justice roberts made when he came before the committee, which is that lawyers are present clients -- represent clients -- >> i am not holding the client'' or the detainees against you.
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they deserve representation. this is an amicus brief -- where you try to change policy. the policy is the periodic review. if the court -- would have to release these people or try them and some of them, the evidence we cannot disclose, you are putting america in a untenable position. this is not the way you fight a war. we hold enemy combatants as long as they are a threat. there is no magic passage of time where you let them go. my question is system -- simple. did you support the idea that indefinite detention of an enemy combat is unlawful? hon. ketanji: when you are an attorney and you have clients
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who come to you, whether they pay or not, you represent their positions before the court. >> i am sure everyone at gitmo once at -- out -- want to out -- wants out. i don't understand what you are saying. i am not holding against you because you represent a legal position i disagree with. that happens all the time. i am trying to understand what made you joint this cost. -- joined this because. --cause. you say someone hired you what did you feel ok adopting the -- but you felt ok adopting the cause. hon. ketanji: in order to determine the lawfulness or
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unlawfulness of any particular issue, i need to receive recent information making positions on all sides. >> i got what a judge of -- is all about. i am asking me to explain the position you took as a lawyer regardless the law of war. i am beyond confuse. --confused. i know what you said in your brief. i want you to understand that it is important for us to understand where you're coming from. there are some people who will die in jail at gitmo and never go to trial for a not -- a lot of good reasons because the government -- evidence is so sensitive we cannot disclose them. we are saying that you engage in
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hostile activities against the united states and you are an enemy combatant under our law and you will never be released until the war is over and you are no longer a danger. the difference between writing a crime and award. did you ever accuse in one of your habeas petitions, the government acting as war criminals, or holding detainees -- hon. ketanji: i am hon. ketanji: -- >> help we were acting as war criminals. -- that we were acting as war criminals. do you believe that is true, that america was acting as war criminals and holding fees that's -- in holding these detainees. >> the supreme court held that the authority -- executive branch help it was able to detain people, the enemy
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combatants, for the duration of -- what i was doing in the context of the habeas petitions, in the very early stage, was making allegations to preserve issues on behalf of my clients. a habeas petition is like a complaint that lawyers make allegations -- >> i have been a lawyer too but i don't think it is necessary to call the government a war criminal in pursuing charges against terrorists. i think it is too far. we are where we are. let's talk about the nomination process. have you ever had any interaction with a group called demand justice? hon. ketanji: no. >> directly or indirectly? hon. ketanji: no. >> did you have any interest --
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interaction with the group called american proximate -- prospect? hon. ketanji: no. >> have you heard of a group called up ella --apella? hon. ketanji: i heard of a group called ella bella --arrabella. >> if you have any contact with them? hon. ketanji: no. >> did you notice people from the leftward cheering you on? -- if you notice that people were trying to -- did you notice that people were trying to tear down michelle childs? hon. ketanji: a lot of people were supporting this nomination. >> you are saying you did not know there was a concerted effort to disqualify judge childs from south carolina because she was unionbusting,
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unreliable republican in disguise? hon. ketanji: i am a sitting judge but -- >> the answer is no i did not know it. hon. ketanji: no. >> would it bother you if that happened? hon. ketanji: it is troublesome that people are or were doing things related to the nomination. >> the best way to say it. people have the 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 -- president biden has a political capital for keeping his party united. if he angers prison -- progressives on this code is picked, that could --scotus pick, that could cause problems
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-- i have so many quotes. difficult to imagine someone with a record like judge childs wedding gropes -- -- winning votes from people like anthony brown -- picking her, childs was demoralized that the site of corporate america -- our revolution, josip jarablus g -- josip, -- he didn't know that all these people would declare war on judge childs. hon. ketanji: i did not. >> i am not saying you did.
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you said you didn't know, i will take you at your word. i am saying that what is your judicial quote -- philosophy? hon. ketanji: i have a methodology that i use in my cases in order to ensure that i am willing impartially and -- my judicial philosophy is to will impartially and consistent with the limitations on my authority as a judge and my methodology helps me to do that in every case. >> you like to say you are an activist judge? hon. ketanji: i would not say that. >> here's what i would say. every group that wants to pack the court that believes this court is about -- a bunch of right wing nuts that will destroy america, that continue
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-- consider the constitution trash, when you pick. the fact that so many of these left-wing radical groups that will destroy the law as we know it, declared war on sent -- judge childs, is problematic for me. >> congressman jim clyburn was a strong supporter of michelle childs and i believe he is ugly supporting your nomination. michelle childs is nominated to be a circuit judge. she will be considered by this committee as quickly as possible. on the issue of guantanamo, there are some detainees remaining. each of these detainees is being held at the expense of 12 or $13 billion per year. if they were -- million dollars
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per year. if they were held at another prison, the amount will be less. 1000 work convicted on terrace charges. since 2009, the words -- reset of his rate of guantanamo -- recidivism rate of guantanamo detainees is 5%. >> if we close gitmo, do you support extensive detention? >> the 31% goes back to 2009 -- >> what does it matter? we had them and they got loose and they killed people. if your wedding the people killed -- if you are one of the
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people killed in 2005, does it matter when you release them? advocate should change -- but she was advocating would destroy the ability to protect the country. this is not a passage of time event. i hope they all die in jail if they will kill americans. it will not bother me if 39 of them died in prison. keep them in jail because they will go back to the fight. look at the freaking afghan government -- this whole thing by the left about this war is not working. >> those exchanges from earlier today. as we go live inside or more of
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the senate judiciary questioning of supreme court nominee judge the time she brown jackson --ke tanji brown jackson. this is the longest day of the hearing which -- with each center having 30 minutes. 15 senators have yet to speak. this could go until 9:00, if you include breaks. tomorrow, there will be another round of questions. 20 minutes for each senator and members of the american bar association and other witnesses will testify. according to npr, democrats are hoping to finish judge actions confirmation process before congress leaves for easter and that will happen for april 11 -- on april 11.
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>> as we await the next round of questioning, a little background. after attending harvard law school, -- she worked as a assistant public defender in washington dc -- becoming the vice chair to president obama. she was confirmed to the u.s. district court last year. she was confirmed to a -- the u.s. court of appeals. you can learn about the john t -- ketanji brown jackson. on you can watch our free mobile app, c-span now.
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>> i will like to make a statement in terms of research that was undertaken during the break. judge jackson, senator cornyn said you called former president george w. bush, secretary of defense donald oneself -- donald rumsfeld, a war criminal. you seemed surprised. he survived -- filed several habeas positions naming former president bush and former
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secretary rumsfeld in their official capacities, you are advocating on behalf of of individuals who were calling himself civilians. there's -- your filing was a part of your responsibility to advocate for your clients. they raised a dozen claims for relief. one of them was an allegation that the government sanctioned torture for the individuals, which constituted war crimes under the statute. the alien torture statute allows -- apparently, what senator cornyn was referencing -- there was no time where you called president bush or secretary rumsfeld a "war criminal". hon. ketanji: that was correct. >> we now recognize senator lee.
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>> thank you mr. chairman and judge jackson. i want to talk about some things you heard about yesterday. there was a lot of talk about -- judicial philosophy. i want to talk about what that means and why it is important. we will start what it -- all what it means to me. one of the things you heard from members from the committee, whether they couched it in terms of judicial philosophy or not, relates to the idea that justice should be blind. that justice within our system properly, is blind. judges serving in the courts, should be blind in the sense that they are able to see and understand and interpret the law, understand what the law is. while understanding that the
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idea of what the law should be is left to other branches of government, not to the judiciary. in this respect, we recognize that light justice and justices -- blind justices and justice, are willing to recognize if there is a policy flaw in the law and need to be changed, it is not the rule of the court to change it. it belongs to two different branches of government. this requires judicial restraint and judicial ability. and it gets back to what i was describing when i refer to justice barrett, drawing on the analogy from the odyssey, of odysseus biting himself to the mast of the ship. most of this refer to this judicial philosophy as contextualism. it is neither republican or
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democratic. it is the approach that says what the law says matters in the jaw of the jurors -- job of the jurors is to figure out what the text means. to ascertain what the original meaning of the text in question. while i doubt there are any members of the committee cool disagree of the idea that justice should be blind and policy changes should be made by -- primarily by the executive branch and not by the courts, we heard statements that were at odds with the concept of justice. -- that concept of justice. one of my colleagues mentioned that you should interpret the constitution in ways that work for people today. fair enough. that is not the objective. the objective is not to ascertain what policy -- the policy.
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it is to ascertain what the law requires. so far as this relates to policy, not really the job of the courts. you admonished that you must be able to see the real people at the other end of the court's willing like americans who are one supreme court decision from losing their health care benefits. the list goes on and on. that type of judicial philosophy what have you step into the role of policymaker and decide what the law should be, whether -- rather than what the law is. you quoted a couple times yesterday, -- will is expressed
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by hamilton, and it refers to what the law should be. judgment pertains to what the law is. the judicial branch has the b haller -- the letter --latter power but not the former. i will love to get your thoughts on what blind justice means and why it is important. does the law determine the outcome of a case or does the outcome of the case determine the law? hon. ketanji: thank you, senator. the law determines the outcome of a case. >> anytime you are looking at a case anywhere looking at the outcomes for ordinary americans and looking beyond the scope of deciding the case and looking within the case beyond what the law says, you would be stepping
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into a province of a different branch. >> i believe so. the law and the facts of the case determine the outcome of the case. >> i think that is an accurate statement. this is something that hamilton describes where he goes on to say, when you start to see the courts exercise will instead of judgment, the result is supplanting the will of the people as expressed through their elective representatives. it tends to undertake -- undermine the whole system. there is a reason why we give life tenure to article three judges and justices. we want to make sure that they have the power of authority and discretion and confidence to issue an decision that they may not be comfortable with. a judge who always agrees with and is always comfortable with his or her opinions is not a
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very good judge. we want you all to have confidence to be able to have the right decision, even though you and the public might be cut -- uncomfortable with the result. congress makes loss you will not always will --laws you will not always agree with. you could fire every house of representatives and one third of the senate. we insulate judges and supreme court justices for this reason. it is because political accountability is important. this is born out of the judicial all, --oath. you will swear or affirm that you will administer justice without -- and you will do it basically. -- faithfully.
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you will do it without consideration without external circumstances, policy considerations or otherwise. this relates to some interesting -- interactions you when i had before this committee. on your confirmation to the u.s. court of appeals. i submitted some questions to the record in which i asked you whether to what extent the constitution protects rights that are not enumerated within the constitution itself and if so, to specify what those rights were. you responded by sending another of cases like roe v. wade and loving versus virginia. you suggested that the ninth amendment was a source for such
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rights. the ninth american -- amendment states that the enumeration in the constitution of certain rights should not be used to disparage others. what specific rights as the supreme court identified as flowing from the ninth amendment and by that, specifically from the right amendment -- night amendment -- ninth amendment -- other features that might back up a particular ruling. what rights has the constitution identified as flowing specifically from the ninth amendment? hon. ketanji: the supreme court has not identified any particular rights going directly from the ninth amendment, although, the text of the amendment suggests that there are some rights that are not enumerated. >> it is -- it's very existence
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suggests that. it opens up questions on how that would be resolve, and led to considerable debate among scholars and jurors as to whether and to what extent this is enforceable by the courts. how would we go about deciding that? how would your wrists go about --jurists go about deciding the question appropriately? would it be appropriate to say we would ascertain the existence of rights protected by the ninth amendment aced on contemporaneous -- based on contemporaneous understanding of the ninth amendment or would it be open ended to protect rights to -- that we think are important today? hon. ketanji: the supreme court
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very clearly determined that in order to interpret provisions of the constitution, we look to the founding and we ascertain based on what the original public meaning of the word of the constitution were at the time -- and sometimes that yields a particular answer. other times, you may have to look at practices historically from that time. that would be the way in which you would go and bout -- go about interpreting the ninth amendment? >> could it be decided at the discretion of the supreme court itself, or not based on any historical president or based on what supreme court justices themselves deem appropriate at the moment?
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hon. ketanji: i don't think so. >> why is that? hon. ketanji: the weight in which --way in which the supreme court interprets the constitution is in reference to the meaning of the text at the time. it is one of the strengths, as i mentioned, in terms of my own way in handling the law, one of the constraints is that you are bound by the text and what it meant to those who drafted it. >> on february 1 of this year, president biden said he was looking for a supreme court nominee, right after justice breyer announced that he would be stepping down and before he announced we -- who would nominate, that he was looking for a nominee that would quote "
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best --" do you share the judicial philosophy that president biden described in that statement? hon. ketanji: i have not reviewed that statement but i have not discussed anything about enumerated rights or unenumerated rights with the president. >> did president biden ask you either about your judicial philosophy more broadly, separate and apart from that ninth amendment or sq -- ask you about your approach to the ninth amendment? hon. ketanji: he did not. >> in a primary election debate that he had as a presidential candidate in nevada in 2007, he said, quote, " i would not
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appoint anyone that did not understand section nine of the -- five of the ninth amendment -- that is the question i would ask them. " i assume his reference to the livery -- liberty because, i assume he is talking about due process of the 13 amendment. the president biden sq whether you agree with his analysis of the -- 14th amendment as it relates to the right to policy? hon. ketanji: he did not. >> when we look at any provision of the constitution, one of the many reasons it is helpful to
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look at the original understanding, in addition to the fundamental reason that you described, it can help us understand what motivated it and it can help us understand the actions of those who voted within congress to propose text to be amended to the constitution and those who voted to ratify it. we have got a number of amendments, including the amendment he referred to, that had an understanding that included certain -- out knots for government --thou shall nots or government. among anything else, it might do. restricts government's ability to treat people differently on the basis of race.
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consistent of the equal protection clause of the 14th amendment, when is it permissible for government to treat a person differently on the basis of race? hon. ketanji: thank you, senator. the supreme court has interpreted the equal protection clause to generally prohibit classifications on the basis of race and it said -- says that those classifications are to be rigorously scrutinized. they -- strict scrutiny, which is a standard that applies, that looks at the cruxes of the government and the means of which government achieves any and related to such classification. the government would have to have a compelling interest in making that classification and the means which it selects would
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have to be narrowly tailored to achieve that interest. >> those compelling interests can be for lighter, transient reasons. it can't be something like, we feel like it. hon. ketanji: correct. >> the reason for this is, number one, it is better for anyone to tree somewhat differently on the basis of race. it is especially bad when the government does it because there is not exactly equally bargaining power will we deal with the relation that the individual has with government. it is unfair for this commission -- governments have enforcement officers and armies and the means for enforcing there will in their loss and that --their wills and their laws.
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when is it permissible for an employer to treat a employee or prospect of an employee differently by race? hon. ketanji: it is impermissible. >> by very -- narrow circumstances. hon. ketanji: the statue itself has restrictions on who it implies. on employers. >> some exclusions in terms of religious employers -- it allows religious employers within certain spirits in order to able to protect -- that religious employer's discretion to operate within the rules of its faith. by doing that, it makes that much clear, by making that distinction, that is clear that
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discrimination on the basis of race and employment is not something that the law smiles upon, nor should it. let's talk about the commerce clause. at the time of the founding, the founding fathers didn't foresee and could not have foreseen the invention of radios, television, airplanes, internet, telephone networks, and yes -- yet all of those things are governed by federal law and not by state law. why is this constitutional? hon. ketanji: senator, the commerce clause was initially interpreted by the supreme court to be very broad to allow for
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federal regulation of interstate commerce and the growth of the economy in this country. 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 is such that the federal government, through the commerce clause, is only permitted to regulate channels of interstate congress, instrumentalities of interstate commerce and activities that substantially affect interstate commerce and with respect to the third category, the supreme court made that non-economic activities are not covered by commerce clause authority and in the aca case,
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it is also not covered and not authorized under the commerce clause. sen. lee: most of the items that i identified in my question would fall out of the category of channels of interstate commerce. we are dealing with airwaves, waterways, networks, things like that. things that depend for their existence for their effectiveness on their operation interstate such that no one could effectively regulate them unless that was federal. those fit under the category of channels and instrumentalities. the third item the effects of
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interstate commerce, is there much of a limiting principle there? you referred to lopez and morrison -- to my knowledge those are the only three cases the supreme court has decided since its ruling in 1937 which essentially created the modern substantial effects case. the standard. the three instances in which the supreme court identified as outside the commerce clause authority, something that congress had enacted. are these meaningful constraints in your view or are the examples of congress getting reckless and sloppy in the way it drafted things? some have argued for instance that as long as congress doesn't get reckless and sloppy, it can do whatever it wants. hon. judge jackson: these cases
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come through the courts, so i will 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 the congress is not permitted, the federal government is not permitted to regulate. non-economic activity is a category. sen. lee: the supreme court is also -- has established rules for things the states may not do. the so-called dormant commerce
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clause. the dormant commerce clause acknowledges the power of congress the exclusive domain of congress as regulating commerce but there is no federal cause of action -- it has been something adopted by the courts. is that an appropriate exercise of the court's judicial power or does that amount to defector legislation on the part of the courts? -- defect out legislation on the part of the courts? hon. judge jackson: the supreme court has committed -- the dormant commerce clause is a principle that supports the interstate nature and regulation and authority of the federal government. so states are not permitted under that doctrine to discriminate against other states to preference their own
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commerce in a way that interferes with interstate commerce. sen. lee: i want to turn back to a line of inquiry you had with senator durbin earlier today when you were talking about your sentencing in the child pornography cases. i understand your answer there. if i understand it, you were making the argument that your concern was that the laws in this area didn't adequately take into account the transfer of these materials by electronic means to be transmitted, received, and stored through computers. is that my understanding correctly? hon. judge jackson: the point that i was making is that the sentencing commission back when i was part of it and even since
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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 statute, but the guideline which congress has tasked the sentencing commission with developing. there are aspects of the child pornography guidelines that congress and legislation has required. it certain enhancements to be included in the guideline and some of those enhancements, the data is now revealing don't take into account the change in the way that this horrible offense is now committed. sen. lee: the fact that it is easier to commit the offense
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shouldn't diminish the severity of the punishment? given the more widespread availability of drugs and certain weapons, that wouldn't argue for a lower sentence when certain things become easier and other criminal context. why is this different? hon. judge jackson: 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 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
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to help judges figure out where between zero and 20 years of particular defendant should be sentenced. the guidelines have gradations in them that relate to various aspects of the commission of the crime. the commission 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 are not able to adequately assess and determine the differences among offenders on the scale. sen. lee: in these cases, all 10 of the cases that we have reviewed where you have sentenced someone for a child
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pornography conviction, in all 10 of those cases, you departed from the guidelines and departed downward. it's hard for me to understand departing from those in every case you have. is it a departure supposed to be grounded in finding that it is outside the heartland of cases in that range? cases of that sort? hon. judge jackson: yes, and as i said before, these are horrible cases that involve terrible crimes. the court is looking at all of the evidence consistent with congress's factors for sentencing. the guidelines are one factor. 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 a series of factors.
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in the cases, you are also getting recommendations and in most of the cases, in most of the cases if not all of the cases, the government is asking for a sentence below the guidelines because the guideline system is not doing the work in this particular case. sen. lee: section 230 of the communications decency act provides a degree of immunity for tech companies operating in the space of being online service providers. it immunizes them from certain causes of action that would otherwise apply against them. would it be within congress's authority to condition the receipt and availability of section 230 immunity on those
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online service providers operating as a public forum that is not discriminating on the basis of or the viewpoint of those posting on them. would that be within our authority? hon. judge jackson: i can't comment on a particular issue about whether or not it is constitutional 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 generally impermissible. sen. lee: thank you. sen. klobuchar: thank you chairman and senator grassley, welcome judge.
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welcome to your family. before i start, i wanted to give it something -- senator lee was talking about is not the dormant, -- dormant commerce clause. i appreciate how you talked about these child pornography cases. a former prosecutor can see where you're coming from when you talked about looking at these cases as a mother and a judge. would it surprise you at all that other judges including a number of them supported by our colleagues on the other side of the aisle have given out similar sentences in child pornography cases? hon. judge jackson: no, it would not surprise me because these cases are horrific. there's a lot of disparity because of the way the guidelines are operating in this particular area. in every case, that i handled
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involving these terrible crimes, i looked at the law and the facts. i made sure that the victims, the children's perspectives were represented. i also imposed prison terms and significant supervision and other restrictions on these defendants. sen. klobuchar: thank you. i also want to note the letter of support from the fraternal order of police in which they said from our analysis of judge jackson's record, we acknowledge she has consider the facts and apply the law consistently and fairly. there is little doubt that she has the temperament and legal experience and family background to have earned this appointment. we are reassured that should she be confirmed, she will approach
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future cases with an open mind and treat issues related to law enforcement justly. that matters a lot to many of us. i want to go back to something i was talking about yesterday. that is why today's hearing is so monumental. including that it is occurring at a time when we as americans have been reminded again due to the courage of ukrainians thousands of miles away that we can never take our democracy or our 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. i hope this moment will be a moment where we see a renewed interest in our democracy. we respect each other's rights interviews and we see that we are not a nation of 300 million silos instead, a nation committed to this idea that what unites us as americans is bigger
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than what divides us. in that context, you come before us with this incredible strength, acumen, grace under pressure that you have demonstrated today. you also come before us as we have noted as the first black woman to be nominated following 115 justices who have been confirmed. of the 115, 110 have been men. i once reminded trevor noah of similar issues in the u.s. senate. in the history of the u.s. senate of the nearly 2000 people who have served, only 58 have been women. he responded that if a nightclub had numbers that bad, they would shut it down. today judge, we are not shutting anything down. you are opening things up. one of the things your
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nomination presents is an opportunity to address a decline in the public confidence in our courts. increasingly, many public opinion polls see the court as out of touch. we also see an alarming rise in threats targeting the judiciary for doing their jobs. how can we work to maintain the public's confidence in the court? what do you see as your role in that? hon. judge jackson: public confidence in the court is crucial. as has been said here earlier, the court doesn't have anything else. that is the key to our legitimacy and our data -- emma craddick system. -- democratic system. i am honored to accept the nomination in part because i
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know that 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 gradeschool education but instilled in my parents the importance of learning. my parents who i have mentioned here many times already who were the first in their families to go to college. this nomination against that backdrop is significant to a lot of people and i hope that it will bring confidence, help inspire people to understand that our courts are like them.
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that our judges are like them. doing the work, being part of our government. i think it's very important. sen. klobuchar: along those lines, you are a wonderful mentor. -- your wonderful mentor, justice breyer, he said we can maintain public acceptance of the courts by helping ensure the constitution remains workable. specifically the court can and should interpret the constitution in a way that works for the people of the day. as you know, article two section two doesn't refer to the air force because we did not have an air force. are there things about the constitution that as we have gone along that have been interpreted to meet the moments of our time. what do you think justice breyer means when he says the
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constitution should be interpreted in a weight that works for the people of today and that injustice can be both pragmatic and respect history? hon. judge jackson: i do and i think the justices have demonstrated that. some of the recent opinions have had to deal with modern technology, technologies that did not exist at the time of the founding. for example, the riley case, carpenter. 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.
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obviously, those technologies did not exist. what the court did, was a looked back at the time of the founding and it determined what the reasonable expectations of privacy were related to the term unreasonable searches and seizures which is in the constitution and having assessed what that meant back then, they could use as principles to decide whether or not a cell phone is like someone's home these days with all of the information and the things that are stored there and the court determined that it was a violation of the fourth amendment. the police officers needed a warrant and they did so with reference to what the constitution meant in history. sen. klobuchar: you are viewed as a judge and you talked about this yesterday that rights
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lengthy opinions. you believe you should spell things out and you believe in being transparent. is that fair? hon. judge jackson: that is. sen. klobuchar: i want to talk to you about something that is to meet a bit the opposite. some have termed the shadow docket. it includes decisions that the court makes on an expedited basis that are usually unsigned and issued without oral argument or full briefing. we have seen the court increasingly deciding cases in this way often over the dissent of three or four of the justices. last term, the court granted 20 requests. 10 years ago in the october term of 2011, the court granted only six requests in an entire year. when do you think it is appropriate for the supreme court to grant emergency relief
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docket, when are the circumstances that warrant this? the decisions have a profound effect on people's lives. last fall and a one paragraph decision, the majority of the court refused to stop the texas lot that severely restricts woman's access to abortion. even chief justice roberts objected to the court's decision to allow the lot to take effect allowing the scheme not only unusual but unprecedented. as someone who believes in transparency, could you talk in general about when you think the shadow docket should be used when emergency relief should be given and how if it is overused it could undermine public confidence in the court? hon. judge jackson: there is a balance the court has to
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consider. 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 is 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. i am not privy at the moment to the justices views and why and how they are using the emergency docket in these cases. if i was fortunate enough to be
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confirmed, i would look at those issues. it's an interesting and important set of issues. sen. klobuchar: i think another example of this is the day before wisconsin's primary election in 2020, as the first beginnings of the health orders came out with the beginning of the pandemic, the court issued a decision halting a district court order allowing voters extra time to cast their absentee ballots so they could avoid waiting in line to vote. back then, people got covid election workers and the like because of it. i'm not going to belabor this point, but some of this is the 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.
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speaking of voting, one question. since the supreme court vetted the section five preclearance regime of the voting rights act in its decision in many voting rights cases. justice ginsburg dissented saying the right to vote is the most fundamental right in our system. do you believe that the right to vote is fundamental? hon. judge jackson: senator, the supreme court has said that the right to vote is the basis of our democracy. the right upon which all other rights are essentially founded. because in a democracy, there is one person one vote and there
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are constitutional amendments that relate directly to the right to vote. it is a fundamental right in our democracy. sen. klobuchar: that's how justice barrett answered as well in her recent hearing. i want to turn to an area that senator lee and i, we chaired the subcommittee on antitrust. is near and dear to my heart. it usually gets relegated to the second round, but i am putting that up here. u.s. antitrust law has been described as a comprehensive charter of economic liberty. i agree. effective antitrust enforcement lays a critical role as you know in protecting consumers and workers promoting innovation, insuring new businesses have an opportunity to compete. from early on in our country's
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history, it has been very important part of assuring capitalism works. in january, for the first time since the dawn of the internet, the senate passed a competition bill out of the judiciary committee. many of the members of this committee supported the bill, the american innovation and choice online act. i'm not going to ask you about the bill obviously, but i want to put this in some context. while tech monopolies have seized 50% to 90% market share in major parts of their business lines, it is clear to me when you look at the plain language of loss in place that these monopolies are not ok. however, court rulings for decades and antitrust have created major obstacles to
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taking on these cases and it's not just court ruling. it is on us with the dawn of the internet decades having passed is on us the senate and house to update our laws this year to give enforcers the resources to do their job. something that 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, we discussed it in my office. it got decided the merger was abandoned so you didn't have to rule on the merits of it in 2017. the ftc challenge. i will quote something the justice breyer once said. if you're going to have a free enterprise economy, then you
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must have a strong and effective antitrust law. do you agree with justice breyer statement and how would you characterize the goals of our antitrust laws? hon. judge jackson: the antitrust laws protect competition and as you said, therefore protect consumers and competitors and the economy as a whole. the sherman act and clayton act are broad in their statements and protections. if i were confirmed, i would use my methodology to look at the precedents in these areas to ensure that any legislation i was considering is interpreted
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according to the text consistent with congresses intent. in the area of ensuring that there is consumer protections. >> very good. just to play it out a little bit, since the 1980's, the court in cases like american express have really made it increasingly difficult to enforce the antitrust laws and protect competition. during the same time, i know many of my colleagues know, we seen a rise in consolidation, market power not only with tech companies, but also across our economy, in everything from
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pharma. what role do you think that congressional should play in the courts interpretation of the antitrust laws? i say that because i think that we are dealing with cases where justices have substituted their own ideologies for the intent of congress originally passing the loss you're driving with justic . we are dealing with spectacular judiciaries that our liquor system knows. s. what role do you think it should play in the court interpretation of the antitrust law? hon. ketanji brown: i interpreted a number of statutes
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in my near decade on the bench. in every case, protect of the statute is what the court looks at in order to ascertain what the legislature intended. that is important because as i said, courts are not policymakers. and judges should not be importing their own policy preferences. judges are restrained in our constitutional scheme in order to affect the will of congress in terms of their importation -- interpretation of the law. >> i will turn to another topic. freedom of the press. 1964 case. we have recently witnessed, as
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you know unprecedented attack on journalists and journalism, whether it is a violence overseas, recently losing sadly members of the press just in the last month in ukraine, or threats and intimidation is at home. this is concerning to me, given the important role of the first amendment. my dad was a newspaper reporter. the issue hit home for me. can you talk about your view on the role of journalists in our democracy? hon. ketanji brown: thank you. journalists, freedom of the press is protected by the first amendment. it is about the dissemination of information, which is necessary for a democratic formal government. the supreme court has held this month, which was the basis for
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the courts determination in protecting the press from liability in new york times versus sullivan and its progeny. >> as you know, the ruling was unanimous ruling in first -- support of the first amendment. one newspaper reports on public officials, -- whether the statement was false. the court in sullivan based his decision on our country "profound national commitment --. it recognized that erroneous statement is inevitable enter debate". they must have the breathing space that they need to survive. do you agree that those principles are just as relevant
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today as they were when the supreme court first decided on new york times d sullivan. hon. ketanji brown: it is the binding supreme -- binding of the supreme court. the court determined are the first amendment right to free press. >> the supreme court declined to read the case which the 11th circuit of new york times the sullivan justice each defended from the decision not to grant. the court should reconsider is holding in sullivan. how would you approach a case as such limits or overturn the case? hon. ketanji brown: thank you. anytime the court is asked to
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revisit a precedent there is a criteria the court has to decide whether or not to overrule a precedent. new york times versus sullivan is a precedents. it is very important. of course, the court should maintain. it precedents for predictability and stability in the law. if the court is asked to revisit a precedents, it criteria what it looks like, whether it is wrong or rigidly wrong, the court has said, whether that has been reliance on that precedents. whether there are other cases that are similar to the precedents or relied on the
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precedents, or have shifted so it is no longer firm footing. whether or not it is workable. sometime the supreme court will issue a ruling and determine later that it is 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 on what the court looks at and decide whether or not to overturn a precedents i , i will look at as the supreme court. >> you actually answered one of my questions. and i think as you know, how you talk more broadly about this
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moving off of the first amendment question. throughout the courts history, the court has relied on it to maintain stability in the law and possibility and impartiality as the formal justice, i know senator just read a book about him. i know justice harry blackmun. who justice briar succeeded on the court. he said what is happening today should serve as a model for future justices, and a warning to all who have tried to turn this court enter yet apolitical branch. into a political branch.
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hon. ketanji brown: i think it plays a very important role as a doctrine that keeps ships from happening in the court, that as he previously mentioned, it is important to have stability in the law, rule of law purposes so that people can order themselves, predict. predict their lives given what the supreme court has already said. if there were massive shifts, every time a new justice came on, or every time new circumstances arose, there would be a concern that public confidence would be eroded. it is a very important doctrine that the supreme court has established, and it is one that
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furthers the rule of law in this country. >> thank you. that is a good way to end the judge. i do see senator cruz waiting. by coincidence, it looks like he has things he is putting up on the chart. by coincidence, i have, was going to put on the record that it makes a lot of sense for the judge that you clerked for senator cruz. i know you are very close to him . he actually submitted a letter on your behalf. judge jackson. he said in this letter, he is an appointee of george h w bush, similar to the judge who introduced you yesterday. i have been very impressed by the support you had by retired judges, obviously not appropriate for current judges, both appointed by democratic and
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republican. as well as the bipartisan votes you have gotten from the u.s. senate. in this letter, the formal judge said that you are eminently qualified to serve on the supreme court of the united states. then he actually says republicans and immigrants alike should give their studied advice , and then their consent to the president nomination. he asks republicans to vote to confirm judge jackson. that might be a good segue, senator cruz, to your question. i asked chairman, that the letter of support for our formal judge who employed senator cruz as a trusted law of the admitted to the record. >> thank you very much, judge jackson.
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>> justice this morning in nashville illinois. >> he was a lawyer at the mayo clinic as we know and spent a lot of time. a lawyer in minnesota when he was drunk in the supreme court. minnesota. >> thank you. >> you and i have known each other long time. >> we went to law school together, we were a year apart. >> happily so, i hope. >> we were not in order.
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we discussed how he and i and other senators for two different years participating in reading aloud. it was one of the and dvocees. >> where he said most critically, i have a dream, i have four little children will live in a nation that they will not judge by the color of their skin, but the content of their character. do you agree what what he said? hon. ketanji brown: i do. >> as we were discussed at
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committee reference in my office a speech that you gave in 2020. after my discussion i pulled a copy of my speech -- your speech and read the speech. there were elements of these checkout were powerful. let me say, your opening remarks yesterday were powerful and inspiration as well. i think your family and the journey you have taken to become a federal judge, appeals judge, demonstrates opportunity this nation offers all of us. as i read your speech at the university of michigan, there was a portion that surprised me. in particular in that speech you reference the work of acclaimed investigative journalist nicole. this is a quote from the speech. provocative pieces that america was born.
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the provocative pieces that america that was born in 1776 was not the perfect unit that it reported to be. indeed, mr. hannah jones and her 1619 projects describes revising history. one of the primary reasons the colonists decided to declare independence was because of wanted to protect the institution of slavery. that claim is highly contested to historical claim. do you agree with mr. hannah jones was because they wanted to protect the institution of slavery? hon. ketanji brown: thank you.
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when i gave that speech at the university of michigan, i was asked to speak on martin luther king day. every year they have a margin speaker. i gave a speech about black women in the civil rights move meant. most of the speech, if not all the suite is focused on african-american women, their contributions to the civil rights movement. some of the more recent african-american women who have made claims, who have done things in our society. one was of a journalist, as you say who made that statement. it is not something that i studied, it does not come up in my work would i was mentioning
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it because it was at least at that time, something that was talked about and well known. to the students i was speaking with at the law school. >> so you are aware since the project came out, it has been n growly refuted. undly refuted. in deed it was so thoroughly reviewed 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 moments america began. were you aware of that? hon. ketanji brown: i was not. >> let me ask you related to the
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6019 project, which i believe is he 1619 project, which i believe is misleading. article race. originated in you and i moderate at the highest that law school. in your understanding, what does critical race theory mean? hon. ketanji brown: my understanding is that critical race theory is, it is a academic theory that is about the ways in which race interacts with various institutions. it does not come up in my work as a judge appeared it is never something that i studied or relied on. and will not be something that i relied on if i was on the supreme court. >> critical race theory, as you know has is origins in the article legal stories movement,
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which came from harvard law school, from a number of professors. they find their origins although critical legal studies claim society as a battle between socioeconomical classes. it views every conflict as a racial conflict. do you think that is an accurate way of healing society? hon. ketanji brown: senator, i do not think so. i have never studied critical race theory. i never used it. it does not come up in the work that i do as a judge. >> with respect to my find that a curious statement because he gave a speech in april of 2015
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-- you gave a speech in april 2015 which are described the job you do as a judge. you said sentencing is interesting because it bounced together various types of law, criminal law, critical race theory. you described in a speech to a law school what you are dealing as critical race theory. i would ask, what did you mean by that when he made the speech. hon. ketanji brown: with respect, the quote that you are mentioning there was about sentencing policy. it was not about sentencing. i was talking about the policy determinations of bodies like the sentencing commission when they look at a laundry list of various academic subjects, as things consider what the policy should be. >> let me ask you again, what did you mean? that was a responsibility of yours.
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hon. ketanji brown: that flight does not show the entire laundry list of different academic discipline but i said relate to sentencing policy. none of that relates to what i do as a judge. >> let me ask your different question. as critical race theory taught in schools, is it called taught in schools k-12? hon. ketanji brown: i do not believe so. >> as you may recall in the hearings of justice amy coney barrett, she served as a board of trustees and a religious primary school. the board spoke heavily on the views of the school. in your questionnaire to this committee, you said you were
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similarly onboard. you have been a board member since 2019, you are currently still a board member. is that correct? >> that is correct. hon. ketanji brown: regards to the day school, you publicly said "since becoming a member of the community's, years ago, patrick and i have witnessed the transformative power of eight rigorous progressive education that is dedicated of fostering critical thinking, and social justice. when you refer to social justice in the schools nation of social justice, what did you mean of that? hon. ketanji brown: thank you for allowing me to address this issue. georgetown day school passed a has a special history that i think it is important to understand when you consider my service on the board.
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the school was founded in 1945 in washington dc at a time in which by law, there were racial segregation in this community. black students were not allowed in the public schools, to go to schools 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
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at the core of the georgetown-based school mission. it is a private school, such that every parent who joined the community does so willingly with a 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 and none are discriminated because of race. >> all of us agree that no one should be discriminate against because of race. when you just testified a minute ago, you do not know that critical race theory was tall, i find that statement a little hard to reconcile. if you look at the georgetown day schools curriculum, it is field and overflowing with critical race theory. among the books that are either
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assigned or recommended, they include critical race theory an introduction. they include the end of policing, and advocacy in abolishing the police. they include stacks of books. i will tell you the ones that were most stunning. they include a book called antiracist baby. there are portions of this book that i find really remarkable. one portion of the book says babies are taught to be racist or antiracist, there is no neutrality. another portion of the book, they recommend the babies consent when being racist.
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this is a book that is taught at georgetown days goal from students from pre-k to seventh grade. do you agree with this book that is being taught with kids that 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 they they are less than, that they are victims, they are oppressors. i do not believe in any of that. but i will say, is that when you asked me whether or not this was t -- taught in
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school, it is taught in law school. to the extent that you are asking the question, i understood you to be addressing public schools. georgetown-based school, just day school is a private school. >> do you agree? hon. ketanji brown: i don't know. the board does not control the curriculum, the board is not focused on that. that is not what we do as board members. i am not sure. >> the board is chaired by professor, your college roommate who introduced you yesterday. the two of you served on the board together. another book is on the summer reading is a book that i read the entire tf. of.
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it asked the question, can we send white people back to europe? that is on number three. that is what has been given to kids. on page 115, a says the idea that we need to pretend to not seat racist is the idea that we should not see color. it is called colorblindness. skipping ahead, here's what is wrong with this, it is ridiculous. skipping ahead, so to pretend not to see color is pretty convenient if you do not actually want to step out racism in the first place. this book argues for the exact opposite of what dr. king spoke about at the lincoln memorial. are you comfortable with these ideas being taught to children as young as four in respect to the first book, in the respect to the second book. hon. ketanji brown: i have not
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reviewed any of those books, any of those ideas. they do not come up as my work as a judge. which i am respectable here to address. in my work as a judge, which is evidence from my nearest decade on the bench. >> let's go back to your work as a judge. as was noted in the first slide, you discussed sentencing as being related to critical race theory. earlier, there has been some back and forth as democratic senators have tried to address child pornography. as i listen to your testimony, i believe you're someone who is compassionate, i believe you care for children, obviously your children and other children. i also see a record of activism and advocacy that concerns
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sexual predators, the stems back decades and is concerning. you wrote your note on --. your major work. in it, you are arguing and i quote, legislation to release sex offenders by requiring under law enforcement officials. notify community and their presence, undergo dna testing and submit for a definite term. others reject them as a punitive enactments that violate the rights of individuals who have already been sanctioned for their crimes. under existing doctrine, the constitutionality of sex offender statues depends on the
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characterizations. you go on to explain that they are viewed as a punitive and unconstitutional. if they are viewed as preventative, they are not. drop the course of your notes, you argued that they should be viewed as punitive, and therefore unconstitutional. you go through each of those four categories. you say the requirement may or may not be unconstitutional. you write doubts about it then raise significant doubts about community notification. we heavily suggest that civil commitment first sexual predators are unconstitutional. do you agree with the sentiments expressed?
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hon. ketanji brown: 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 come they look for new developments in the law and try to analyze them. that is something that makes for good -- a good law school note. my note which came out in 1996, shortly after, there were new laws. the point that i was making is it was not that the loss were bad, that the laws were wrong, i was trying to assess something that is fundamental in terms of the characterization of the loss. i did not say that they were unconstitutional one way or
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another. what i was trying to assess was how they are characterized. some courts would look at those laws and call them preventative, that has a certain set of consequences, some will call them punitive. what i'm 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. i would note that view there have been some of the bench that advocated that. the supreme court in 1997 decided a case called kansas versus hendrix, which upheld kansas commitment statute. this has been a question that has been close to the supreme court. i would not beyond that, that in terms of the prevalence of the statutes, all 50 states in d.c.
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have registered requirements. 47 states have notification requirements. all 50 states have dna or lead banks for -- blood banks. the state of texas, relying on very much the same sort of reasoning you advocate in your note. at the time, i was journal of texas. i personally argue that appeal in the supreme court. in the texas supreme court reversed the court of appeals. they upheld our statute. the beauty advocated in law school -- reviews you advocate in law school prevailed. civil laws will be struck down releasing sexual predators. under the argument community notification and dna led bank, loss could be struck down as
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well. is that an outcome that should concern people? hon. ketanji brown: my note was not 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 they laws are punitive or preventative. >> you are given they were punitive. if they are punitive, they are unconstitutional. hon. ketanji brown: i was looking at different kinds of laws are not all of them that i say were punitive. >> let's take a look at civil commitment laws. sex offenders are currently detained in civil commitment programs. the deal you have, though sex offenders will be released to the public, is that an outcome
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that should be concerning? hon. ketanji brown: in law school when i was writing a note, i was looking at a brand-new set of laws that have reviews li bin and acted i any been and acted in any other set, they were new. therefore, not unconstitutional, but therefore, there are ones that care with them certain rights, versus you know, preventative. >> ok. so you appointed that these were views in law school. i will recognize it. we have views as students, time and maturity changes. what troubles me is not a law
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school view, it is one that continues. when you are vice chair, you expressed significant terms. you said, yes i want to ask you about which we can more serious offenders. you talked about going from cingular, two want to want to group experience. i was just wondering if there were some natural progression from one stage to another, such that you can say that the least serious offenders are in the singular experience stage. my thought is looking at some of the testimony that other people will have later in the day come i was surprised some of the testimony was respected in the offenders. and that there are people who get involved with this kind of activity who may not be pedophiles, who may not be necessarily interested in shout pornography, but have other motivations with respect the use of technology.
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there are lots of reasons that might people might engage in this. i'm wondering whether you can say that there is, could be a less serious child pornography offender, who is engaging in the type of conduct in the group experience level. because of their motivation is the challenge or to use the technology. they are very sophisticated technological they are not that interested in the child pornography piece of it. i find that pretty remarkable argument. the people in child pornography are not interested in the child part, they are not pedophiles, they are just interested in technology. i want to provide the whole quote. the white house said portions of this are used out of context. this is your entire quote. do you agree with that sentiment ? there are some meaningful population of people who have child pornography, but are not in fact pedophiles, or getting
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satisfaction from it? hon. ketanji brown: thank you for allowing me to address what appears to be a question that i was asking in the context of the hearing on child pornography. he provided the entire quote. it looks as though i was asking that of someone, not taking that position. the position that i take, in all of my sentencing involving child pornography offenders, is to ensure that despite the attitude and a view of many of the offenders that came before me when i was a trial judge, that they were just lookers, they were not harming anyone, they were curating their collections and they never touched child. i made sure that they understood that they were causing
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significant harm. >> i think that is very productive. let's take a look at your actual sentencing. you have had 10 different cases involving child pornography. these are the cases that there are two u.s. versus cam. for which the government did not make a recommendation. you said earlier, you said it is a sickening and outrageous crime, which i agree with. he said the guidelines lane to extreme departures. ok. let's look at what the prosecutors are asking for. this was in the district of columbia where prosecutors are far more liberal than many prosecutors in this country. in every case, there was a mandatory, statutory, minimum of 60 months.
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he imposed 60 months. there was a mutual agreement that the party was at 120 months and that is what you imposed. in every other case, united states versus, the prosecutor asked for you imposed 28 months. 20 months is a 64% reduction. the united states versus cooper, the prosecutor asked for 72 months, you imposed 60 months. that was a 17% reduction. in united states versus down, the prosecutor asked for 70 months, you imposed 60, that was a 14% reduction. the united states versus hawkins, the prosecutor asked for 24 months, you imposed three months. that was a 88% reduction. united states versus savage,
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prosecutor asked for 39 months, you imposed 37. that was a 24% reduction. the united states versus stewart, the prosecutor asked for 37, you imposed 57. that was a 41% reduction. every single case, 100% of them when prosecutors came before you with child pornography cases, you sentenced the defenders to substantially below, not just the guidelines, you are way higher. with the prosecutor asked were on average of these cases, 47.2% less. he said he make sure the voice of the children -- you said you make sure the voice of the children was heard. do you believe in a case like the united states versus hawkins , when the prosecutor asked for 24 months and you sentenced the offender to three months. do you believe the voice of the children is heard when your sentencing those who are in
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possession of child or naqvi are far below what the prosecutors are asking for? pornography are less than what is asked for. hon. ketanji brown: the charge does not include all of the factors that congress is told judges to consider, including the probation office is in these cases. >> the committee has not been given the recommendations. we would welcome them. i would love to see those. hon. ketanji brown: the second thing i would say, is that, i take these cases very seriously as a mother. as someone who as a giant have two -- as someone who as a judge, who has to review the evidence in these cases. based on congress is requirement
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, 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 history and characteristics of the defendant. congress is the body that tells sentencing judges what they are 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. >> 100% of the cases was the
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evidence left that the prosecutors asked for? hon. ketanji brown: the evidence in these cases are egregious. they are among the worst that i have seen, and yet as congress directs, judges just do not calculate the guidelines in stock. they have to take into account the personal circumstances of the defendant, because that is a requirement of congress. judges have to consider things like the victims. when i was talking about making sure the 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
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nonproduction child pornography, which are subject to demand because of widespread concern among judges and other stakeholders. for example, 70% of surveyed judges at the guideline range is too high. 71% said the mandatory minimums were too high. the report was supported by every member of the commission. i believe in question, the senator in texas was referring to was part of the proceedings. >> mr. chairman, i would ask unanimous consent that the books be entered in the collection. >>, like a take -- i would like to take a few minutes to give you a fee minister address some
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of the issues just raised -- to give you a few minutes to address some of the issues that just were raised. >> according to my research, that is just not true. let me briefly ask you about three specific sentencing cases. you sentenced charles to 10 years in prison, exactly what the government requested. hon. ketanji brown: i do. you sentenced him to 20 years in prison, exactly what the government requested. >> i do, senator. >> you sentenced him exactly what the prosecutor requested. hon. ketanji brown: i do. >> in these three cases it is also true that the government, prosecution requested below guideline sentences.
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with that seem surprising to you at all? hon. ketanji brown: it would not. >> is that because overwhelmingly nationwide in 70% of cases and in your district 80% of cases departures from the guidelines are the norm? hon. ketanji brown: that is correct. >> to the extent, there seems to be some effort to try to characterize you as being soft on crime, or somehow unconcerned about child safety. i just wanted to take another moment and give you a chance to respond to that. as a parent, as a member of a family that has had several members who served, your brother, your uncles, in law enforcement, could you share a bit about having loved ones who served a law enforcement officers. in one case, a detective on a
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unit. how it has has your justice and mercy in ensuring that we hold and account those who commit crimes to children? hon. ketanji brown: thank you. as a mother, these cases involving sex crimes against children are harrowing. what i think it is important to understand is that trial judges who have to deal with these cases, are presented with the evidence. or prescriptions, graphic -- descriptions, graphic descriptions. you are seeing the worst of humanity when there are victim statements that are presented when people talk about how their lives have been destroyed as children.
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how the people who they trusted to take care of them were abusing them the latest 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 horrible. so, i take them very seriously just as i did all of the crimes. but especially crimes against children. >> if i could, the characterization that was just presented, in a recent column in the national review of the conservative publication, has characterized that view of you
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as a smear that appears meritless. and characterizes your approach in sentencing in these cases as mainstream and correct. i will just remind my colleagues , i was watching two of the largest, most advocacy organizations in our country. the international association. they have spoken up in support of your qualifications and capability. the fop letter. the sentiment was echoed by i ocp. they believe you have a deep understanding for the complexities confronting the policing profession as you have during your time as a judge to make sure our communities are safe, and that the interests of
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judges are served. i find it hard to believe that these organizations having looking close at your record, decisions would have taken those unusual depths to be forceful in supporting you, if in fact you have somehow a disturbing record of coddling child pornographers or being soft on crime. in fact, your record demonstrates your a evenhanded and impartial judge. i can see that when i look at cases he ruled on, they involved very politically charged or partisan interest. you have delivered rulings on both sides from plaintiffs and defendants. my review of your record, you put any personal views or concerns to the side. he based her decisions on the argument of the parties, the facts and the records. the law at president and the well reasoned you have shown to
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me a judge striving to make evenhanded decisions based on facts and laws not of some caricature agenda. we have received a outpouring of your support. various groups sent letters in support of your nomination. it is no support to me that your experience, temperament expires -- inspiring strong support from some of the best in our community. i think it is worth highlighting that among those who have written to us are included well respected conservative and republican lawyers and judges to agree with my characterization, you are a evenhanded and impartial judge. we received a letter from 24 conservative lawyers who held positions in republican
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administrations, who are well known for their legal views corroded this committee to urge your speedy confirmation. they praised your character and intellect and called you "truly excellent person". i would like to focus on the way that these conservative lawyers characterized your judicial decision-making, which is after all the court issued before us. whether you are the sort of judge that the district that should be elevated to the supreme court. they noted in this letter, in 10 years on the bench, as a district and the court of appeals, judge jackson has been involved in thousands of cases running the full range of federal law. there are approximately 500. i think it is more than that. opinions written during a time but have demonstrated complete demand of a legal subject matter. a and evenhanded approach, a fine ability to express yourself with force.
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they also demonstrated another attribute essential for a judge, a sense of empathy for the situations of others. judicious and evenhanded. these conservative lawyers want this committee to know that your judicious and evenhanded, and recommended to the supreme court without reservation, despite having noting they differed with you concerning some political and bipartisan issues. they are not along. e. judge griffin, in a letter to this committee, then followed up to your introduction yesterday. a judge appointed by george w. bush. supports your nomination. i was struck by his description of your character and traditional approach. now quoting from his testimony yesterday. he he went on.
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a dispensable feature of the republic and constitution created is an independent judiciary of judges who take an old not to a president, not to a party but to the american people and to god that they will be impartial. he concluded, that you judge jackson have demonstrated an unwavering commitment to that boat. vote. he told this committee he is confident of his decision. we can and do at times have fears policy disagreements, but we also work together to try to find a way that the lawmakers and individuals to respect each other. i think it is a personal source of pride when someone who really disagrees on one issue is able
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to agree with me on another. i think it is gratifying. to know that a judge who is literally set in review. i think it was their first one. here is someone who has closely reviewed your decision, and as a circuit judge is set in review. your work over years as a district, opinions as a district judge and has praise from the evenhanded and nonpartisan way you have approached judicial decision-making. could you share with me what it means to you to hear that someone like judge griffin has such confidence that you would make a excellent member of our highest court? hon. ketanji brown: thank you. it means the world to me to have the support of george griffith. his coming here yesterday and
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testifying on my behalf was gratifying. i have tried in every respect to follow my methodology that enables me to and rule impartially in every case, understand the limits of my own judicial authority. 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 am not ruling with any sort of ideology. i am doing what impartial and fair judges do, which is to decide in every case based only on fact and the law of that case.
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i am very pleased that judge griffith has seen that in the years that he supervised me effectively as a court of appeal judge when i was a district judge. i think it is wonderful that he was able to come here and testify to that. >> for those watching and for those following this, they might be puzzled because my colleague, the junior senator from the state of texas has tried to inscribe all sorts of views from you in his recent questioning. trying to paint you as some kind of activist with a radical agenda. in my review of your experience, these letters from judges and scholars to my do not see anything that remotely substantiates that claim. we are here to evaluate your qualifications, judicial decision-making. let me get out a few of the points specifically if i could.
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i had i 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, you have ever cited the 1619 project? judge jackson: , no senator. senator coons: on your nine years in the bench and 570 opinions, you have ever cited the journalist or principal author of that? judge jackson: i have not. senator coons: you have ever used, employed, relied upon critical race theory to determine the outcome of any case or to impose any sentence or as a framework for your decision making? judge jackson: no, senator. senator coons: would you just explain to us briefly what sort of factors you do in fact consider in your analysis? -- factors you do consider in your analysis? judge jackson: when i analyze a case, i am looking at the arguments that the parties raise
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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 ao*eupbl looking at the -- i'm looking at the law. i'm looking at any statutes. i'm looking at the text and the constitutional provisions to these, if they're applicable and any precedence 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. senator coons: i appreciate you laying that out. i'll dig into two cases that i think are probative here. i agree with the wide range of supporters we've heard from that you've demonstrated and even an impartial judiciary approach in your record.
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but this is true not just in the hundreds of sort of run of the mill cases that are considered by a district court judge but in several that have been highly charged, really quite political in terms of their consequences. i'd like to discuss your opinion in the center for biological diversity. do you recall that case? judge jackson: i do, senator. senator coons: 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 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. so it was a policy matter with some sharp divisions and some political consequences.
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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? judge jackson: senator, the claims in that case, which as you say were brought by an environmental organization, related to it's ad pheufb procedures act which is something -- it's ad pheufb procedures act which ising -- administrative procedures act which is something 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
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circumstances and i ended up, i believe, dismissing that case on threshold grounds before getting to that point in the analysis. but consist ebt with what you said --ist kent -- consistent with what you said, i was guided by my understanding of the law. and what it required. and not by anything else. senator coons: i could spend a lot of time on the details of this case. but let me try and summarize it this way. you analyzed the statute. you concluded congress had clearly blocked the courts from hearing nonconstitutional challenges. there was no juries dallas mavericksal bar to the constitutional claims to -- jurisdictional bar to the constitution claims. you found precedent. 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,
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determined to let these plaintiff environmental groups proceed, you certainly could have. there was no clear precedent that bard that from happening -- 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. judge jackson: that is correct. senator coons: in my view, i wanted to talk about this case because there's really nothing unusual or special about it from your perspective. judge jackson: that is correct. senator coons: for those of us up here, there was a lot special and important about it. it was a highly charged partisan and political issue. you looked at the statute, you found persuasive precedent, you applied it, you went on to the next case. 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. the republican national committee or the r.n.c. is opposing your nomination,
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publicly accusing you of being a partisan, of being a partisan democrat. they argue you could not possibly be an impartial justice. but ironically back in 2016 you presided over a case brought by the r.n.c. against usaid related to then presidential candidate clinton and you ruled in favor of the r.n.c. both the substance and timing of the case are really quite striking. judge jackson: i did. senator coons: the r.n.c. made freedom of information act requests for certain emails involving the former secretary and despite what the r.n.c. would have us now believe, in this case you reinforced your 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? judge jackson: i actually don't. senator coons: i'll tell you. it was just before the
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presidential convention. so if there was a moment when the r.n.c. 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? judge jackson: that is correct. senator coons: your honor, i'm frankly really struck at the fact that for all the back and forth in senate hearings and academic circles, 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. i don't believe that a judiciarl
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philosophy is always all that meaningful. the judge for whom i clerked on the third circuit spent years as a district court judge. when id ask her, what's your judicial philosophy, she looked at me and said, i just call balls and strikes. i'm a judge for rules 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. 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 what kind of justice
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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 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? judge jackson: 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.
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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. senator coons: i know we've walked through just a few cases today now. some ways we've only scratched the surface of your decade of
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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 an advocate, activist or partisan. and i encourage my colleagues who want know what kind of justice you'll be, to take a fair and even-handed look at your record, at your partiality. 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 kean legal mind, judicial temperament, 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
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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 judiciary system. it's 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 and 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. in nominating you, i believe our president has met his mission and it will be my honor to join, i hope, the overwhelm magazine jotter of my colleagues --
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overwhelming majority of my colleagues in supporting your nomination. thank you, your honor. >> thank you. the committee 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's highly qualified for the position as a career and record demonstrate her historic confirmation as the supreme court's first black woman and the sixth woman overall, will represent monumental progress toward a nation it is charged to service and that values all of its citizens equally. mr. durbin: the organizations also noted, judge jackson's rulings have the general consensus.
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we're going to take break at this point. i think we ought to go over there and we can return quickly. so why don't we declare this break time for 20 minutes. 4:05 back in the room. [captioning performed by thenat, which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2022]
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>> on second day of the confirmation hearing for judge ketanji brown jackson, senators getting 30 minutes each to question the nominee. they're going in order seniority and alternating party. the next person to ask questions will be ben sasse, they're taking a break for votes under way on the senate floor. when the hearing began, judge jackson made metro with 44
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senators, including all members of the committee. this is expected to be the longest day of the hearing. tomorrow, a round of follow-up questions. and on thursday members of the bar association and other witnesses will testify. ketanji brown jackson nominated to replace justice breyer. she also clerked for justice breyer. you can follow the hearing in its entirety on c-span and join us as well online at you can use our mobile video app to follow the hearing in its entirety. california senator dianne feinstein asked her questions earlier today. we'll take a look at some of them during the break. fine fine a few months later we -- ms. feinstein: a few months
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later we considered the nomination of justice ginsburg to the supreme court. justice ginsburg's kofrpl makes made her only the second woman to serve on 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% of active judges on the federal district bench and 37% of active judges on the federal appeals court. judge jackson if confirmed, you would become the sixth woman to ever serve on the supreme court. you would join justices sotomayor, kagen and barrett on 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 judges. i have my own thoughts about why
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gender balance is important on our nation's courts but i'd really like to you tell us all, what are your thoughts on what it means for our country to have women serve in meaningful members -- 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? judge jackson: thank you, senator. 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. since i was nominated to this position, i have received so many notes and letters and
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photos from little girls around the country who tell me that they are so excited for this opportunity and that they 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 we want, i think, in the 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 supports public confidence in the judiciary. when you have different people, because we have such a diverse
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society. >> and some of the questions from earlier today there and the judge's response in the confirmation hearing for ketanji brown jackson to the u.s. supreme court. senators have taken a break to vote on the senate floor. expecting the hearing today to run well into the evening. n.p.r. reporting that democrats hope to wrap up the entire confirmation process before congress leaves for easter recess on april 11.
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>> you're watching live coverage of the confirmation hearings on c-span. join us at or with the c-span now app. ketanji brown jackson has been nominated to the user supreme court to replace justice steven brier who is retiring. if confirmed she would make history by becoming the first black woman to serve as a supreme court associate justice. you can learn more about her on our website as well, senator lindsey graham of south carolina asked questions of the nominee earlier. here's some of their exchange. mr. graham: thank you, judge. again, congratulationings.
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those who introduced you to the committee, you have a wonderful family, you should be proud in your -- and your faith matters to you. what faith are you, by the way? judge jackson: senator, i am protestant. judge jackson: nondenominational senator graham: could you fairly judge a catholic? judge jackson: senator, i have a record of -- judging everyone. senator graham: i'm just asking this question because how important is your faith to you? judge jackson: senator, personally my faith is very important. but as you know, there's no religious test in the constitution under article 6 and -- senator graham: there will be none with me. judge jackson: and it's very important to set aside one's personal views about things in
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the role of a judge. senator graham: i couldn't agree with you more and i believe you can. on a scale of one to 10, how faithful would you say you are? in terms of religion? i go to church probably three times a year. so that speaks poorly of me. or do you attend church regularly? judge jackson: 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. senator graham: how would you feel if a senator up here said, your faith, a dogma lives loudly within you and that's a 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?
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would you find that offensive? judge jackson: senator, -- senator graham: i would if i were you. i found it offensive when they said it about judge barrett. the reason i ask 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 their an atheist. if i had any doubt, 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-ing nut, speaking in tongues, because you practice the catholic faith in a way they 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 will not affect your ability to be fair. and i just hope going in the future that we all can accept that and that judge barrett i
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felt was treated very, very poorly. i just wanted to get that out. let's talk about family. do you know janice rogers brown? judge jackson: yes, i do know her. senator graham: how do you know her? judge jackson: she was a judge on 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. senator graham: and you were a district court judge, is that right? judge jackson: i was. i don't know whether she had retired. senator graham: are they in the same building? judge jackson: yes. senator graham: you don't renault her. judge jackson: i know of her, yes. senator graham: what's her reputation? judge jackson: i know she's a very well-respected judge on my circuit. senator graham: ok. and in terms of family, she was the daughter, grand-daughter of sharecroppers. she was raised in alabama under
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jim crow. despite this adversity, she put herself through law school as a single working mother. that's pretty impressive, isn't it? judge jackson: yes, senator. senator graham: your background is very impressive. seem to have a great family. 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 d.c. circuit? judge jackson: i didn't know that. senator graham: did you know that joe biden filibustered janice rogers brown? judge jackson: i did not know that. senator graham: 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?
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judge jackson: yes. senator graham: ok. now that you know that, how do you feel about it? judge jackson: senator, i can't speak to something that i just learned two seconds ago. senator graham: fair enough. you're in the black law school society, right? judge jackson: the black law students association. senator graham: black law students association. you're a member at harvard. judge jackson: yes. senator graham: and sometimes the mr. jeffries thing, do you remember that whole dustup me? got -- judge jackson: only in preparation for this and i think i was in college at the time. it was my senior year of college. senator graham: so you weren't actually in the group when he was indicted to speak -- invited to speak? judge jackson: 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
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students association. senator graham: do you remember going to a speech given by mr. jeffries? judge jackson: i did not go to his speech. senator graham: you are now familiar with the press reports about what mr. jeffries' views are? judge jackson: just in preparation for this. senator graham: do you associate yourself with those views? judge jackson: i do not, senator. senator graham: he's been called by many as very anti-semitic. he called jews a skunk who stinked up the place. you don't agree with that, do you? judge jackson: i do not. senator graham: 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? judge jackson: senator, i don't have -- yes. senator graham: it would be. yes, 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
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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, would beat the crap out of a guy for being a part of some supper club that was in some organization called the owl that didn't admit women. i guess the reason i'm bringing all this up is it gives me a chance to remind this committee and 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 an f-ing nut. and we're tired of it. 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
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faith means just as much to me as it does you, that all of a sudden they're some kind of weirdo. a guy like justice alito, who in the same type of situation you're in, being in a group, doesn't agree with everything they do or what people may say at meeting he didn't go to, all of a sudden they on it. 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.
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>> the confirmation hearing will resume live shortly after the senators on committee finish voing on the floor. today's round of questions, 30 minutes each for each member. they're going in order of seniority as the senators on the committee alternating party. 11 senators left today. the next one to question judge jackson will be ben sasse. and tomorrow, 20 minutes for each senator as they follow up on today's testimony.
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senator durbin: the judiciary committee will come to order. the senator from nebraska, senator sasse. senator sasse: thank you, chairman. judge, welcome back. by my quick eye balling account of this, you are 51% done as of this moment. which feels more like a curse than a blessing but i meant it as a good thing. i think i'm number 12 of 22. you're just past 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 match what is you've said in private. and that's obviously a testament to your character. that also can be helpful to rebuilding public trust. thank you for the ways you've engaged thus far. judge, you are likely to go on to serve a lifetime appointment
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on the supreme court. which means that this is very likely the last job interview you ever have. judge jackson: and the most public, senator. senator sasse: the processes are a lot like a probging to exam -- proctology exam. this is an opportunity for to you 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 we 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 something more of a judicial methodology. i'd like to understands that a little bit more. and i think it would be helpful for american people to understands 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 i think you said sometimes that's enough to resolve the issue. so i think i heard you pay
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partial tribute to the judicial philosophy of originalism but you've not adopted it orem braillessed it as a philosophy -- or embraced it as a philosophy that applies to you. maybe one of the places we can tease that out a little bit more is trying to dig into whose jurisprudence you most admire. we've heard many nominees before, like senator grassley, former chairman of this committee, i'm not an attorney, so the farming and ranching people where i come from know that john kennedy is super smart, a lawyer who kind of pretends to be an aw, shucks, kind of guy as he picks your pocket. mr. grassley: do i get equal time, mr. chairman? senator sasse: he always gets unequal time. he always gets bonus time. but i think it might be helpful for us to understands who you most identify with and past nominees before this committee have talked about the mold of particular justices they thought they followed in.
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so if you had to tell the american people who your closest to -- you're closest to, who is that justice? or who are those justices? judge jackson: thank you for the question, senator. 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, 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.
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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, ymer focused on the text -- i'm 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'm trying in every case that involves that kind of interpretation to assess what it is that the parties who wrote
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the text intended. and as a result, because my methodology involves these various pieces and 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 the 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
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originalism and 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 iport my own -- import my own policy views. but there are times when the meaning, 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 precedent as it
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are related to this -- precedents that are related to this topic. all of those tools judges use and i have used, if you look at my cases. senator sasse: but when you said you look at the intent of the office of the statute. sometimes courts have to say, people who wrote this statute, whether they meant to or not have done something we the judiciary decides, speaking in the voice of you, is unconstitutional. and decides that something is unconstitutional requires an interpreterrive framework for how you get there, right? so we talked in my office about the differences between judges kagen, brier and sotomayor's judicial philosophies and you told me you needed time to study that issue further. 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? judge jackson: with respect, senator, i have not actually had
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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 looking at different provisions. they are using the various tools that judges use and that i have used in my cases. the idea of striking down a statute as unconstitutional is daunting and should be daunting. i think for any judge or justice. and 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
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has that authority under the constitution. senator sasse: so i guess i'm surprised, after nine years on the bench, that -- you're super smart. nobody disputes that. and having worked for justice breyer and knowing of some of the fights, some of the philosophical arguments he and justice kagen had, it just seems 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 fill philosophical approaches to the text. maybe another way to get at it. i think justice breyer, again, for whom you clerked, and justice scalia, used to travel together and have lively debates circuit conversations. can you tell the american people a little bit about what justice breyer, scalia road show looked like? what were they arguing about? judge jackson: well, my
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understanding is they were arguing or at least presenting two different viewpoints as to how the constitution should be interpreted. and i would say, just an aside before talking about their positions, 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 justice scalia's notion of originalism meaning that the words in the constitution should be interpreted as they were written by the founders, in the founding a*er -- era. and they should not be
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considered to 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 the principles that the document reflects. i would just say that it appears now that the supreme court has taken justice scalia's view that the prevailing interpreterrive frame -- interpretive frame for interpreting the constitution is now very clearly looking back through history.
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so we see that even in the heller case where the justices, even the justices in dissent, were all analyzing the issues in the second amendment through a historical lens. what was meant at the time of the founding so. that is now the way in which constitutional interpretation is done. senator sasse: do you identify with that position? judge jackson: i identify with the position in so far as that's how the text is interpreted of the constitution. i am a strong believer, as i said, in precedent, in star desighs, in predictability, in the rule of law and the way that the law now interprets the constitution is through this historical frame. senator sasse: i'm grateful for your last couple of minutes because i think that it's in the american civic interest for us to understands these different
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schools. again, nonlawyer 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 free to depart from it without a constitutional amendment passed by the political branches so. that the voters get a higher or fire the people or have a role at state level and the justice breyer's position seems to me and i won't get it precise enough in terms to satisfy him, but that the constitution is speaking to more abstract principles and therefore there's a lot more play in the joints what have a justice's job is. i think the way you summarized their debate was pretty fair. and i also think it's fair for to us want to understand what your position is about it because you're obviously, as i've said, incredibly smart and incredibly likable and winsome
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and on the stage for a lot of americans to look up to. i'm at the rah-rah-hear-hear side of that debate. 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 method ofplgt i want to thank you for then. you've also brought up 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 its meaning changes. and so i'd like to go back to the fourth amendment topic you brought up in my office. you said, i think, that -- correct me if i'm misis up rising your -- missummarizing your position. you said originalism wouldn't have much to say about the fourth amendment because the founding fathers never conceal seveed of a tool like this. so i think during our conversation you said the original meaning of the fourth amendment won't tell you. about what to do with new technology. my guess is that originalists and scalia in particular would
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disagree. what do you do if the text of the fourth amendment doesn't answer a question? where do you go next? judge jackson: well, senator, just to clarify what i intended to say and i may well have misspoken. 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 originalist principle is we look only at the constitution as it relates to things that existed in the time of the founding, there would be no answer to what to do about a
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cell phone. 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 interest 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 time of the founding and anall skwraoeuzed to current circumstances related to things like cell phones. it's a method of interpretation that allows you to, instead of the alternative, which would be don't worry about the history, just look at the words in the
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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 enter someone's home, rifled through their papers and documents, analogized to current circumstances and the fact that a cell phone is like your personal file cabinet and they say ok, given what we understand the framers to have intended about the need for a warrant and protection against unreasonable searches, we are going to apply that to modern circumstance.
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it's an originalist way of analyzing the current dispute. senator: are there non-originalist ways and what would they be? judge jackson: one could imagine that rather than referencing history at all, the court would look at the constitution and says no unreasonable searches and seizures and would just act. in light of modern sensibilities. in light of what we think would be reasonable today or what the court think would be reasonable today, we would apply that, that modern understanding to the cell phone situation. the danger i think justice scalia would say is that that is a kind of framing that permits judges to make a determination based on their own views rather
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than hewing themselves, as senator lee said before injustice error waited out, hewing themselves to the text of the constitution. does -- sen. sasse: does breyer have a different view? judge jackson: my understanding of the living constitutional principle is that it is closer to looking at the needs of modern society. but i am not well-versed in it, in part because the supreme court has now so clearly taken the historical perspective, the originalist perspective in its interpretation. sen. sasse: what are some other areas of life where the original meaning seems to be to an to have centuries away where the constitutional was not received?
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judge jackson: i'm reluctant to spell out different circumstances but i will say that when you look at the language in the constitution, there are some provisions that are completely clear on their face without any question of what was intended. the age, the required age of senators, the required minimum age of the president, all you need is the text in there you are. there are provisions of the constitution that are broader than that and therefore some interpretive frame is necessary. every question that the supreme court gets that involves new technology, for example, that relates to constitutional
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provisions, will require some kind of analogy, i think. but i can't speak to, to anything more than that. sen. sasse: you have described the justice breyer constitutional approach as pragmatic. what does that mean? judge jackson: i understand it to be, 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. sen. sasse: he said recently, explaining his approach to interpreting a statute, you won't go outside to words, but it often doesn't give you the answer. you look at the history, its
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purposes, the consequences, you try to evaluate them from that, the point of view of what a reasonable legislature running the statute bought these words were there to achieve. do you align yourself with that position? judge jackson: 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 soul indication of what the legislature intended. as opposed to the court saying i see this statute but i am, you know, uncomfortable with how it is going to turn out or what it
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means so i'm going to import my own policy perspective, instead they are constrained to say regardless of what i think the right policy objectives should be with respect to this law, my purpose, my requirement, is to determine what congress intended. sen. sasse: with respect to legislative intent, when a congress of 535 often distracted people pass something by a two to one vote and it is a part of a large piece of legislation, how do you determine what the intent is when it is 535 people doing something that has many different purposes for why someone might vote yes? judge jackson: you look at the text, the way that statute are interpreted is based on what the legislature says.
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there are times in which there are statutes in which congress includes a purpose statement, for example, and you look at the text of the provision. if that isn't clear, you look at the structure of the statute. you look at the statute like the word that appears in the section you are interpreting that should be defined the same way it is in another section. the same word could be used, congress probably intended for it to have the same meaning. there are tools in the law that exist to help courts interpret the text, but the goal is to interpret the text as a means of
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understanding and reflecting what congress intended. it is of course statutory interpretation. if congress decides the court has gotten it wrong, as has happened many times, congress comes back to clarify and tell the court know. this is what it meant. sen. sasse: substantive due process is a doctrine that often allows courts to create new fundamental rights. what is the test for determining a new fundamental right? judge jackson: the supreme court said in the glock spurred 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 -- national history and tradition. prior to that they had defined
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it as the rights that are implicit in the ordered concept of liberty or the concept of ordered liberty. there are standards for the courts to use to identify these types of rights. sen. sasse: did the supreme court use this test in low or casey? -- in the or casey -- in row or casey? judge jackson: i don't know that the court use that formulation. but i know that after casey, the court had determined not so much that the right to terminate a woman's pregnancy is fundamental . the right exists and it is subject to the framework in casey that allows for regulation , so long as there is not an
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undue burden on the exercise of the right pre-viability. sen. sasse: i think that some of what we are wrestling here with is how particularly the concept of deeply rooted goes and how it is bound to what the judiciary can do. i want to thank you, we are nearly at time. i want to think some more about what you said and think more about discussion tomorrow. it still appears to me that there is a very basic difference still between a judicial philosophy and judicial methodology and how you go about applying that in determining the law and making a determination about constitutionality or not. i know that you haven't claimed a judicial philosophy at all, the judicial philosophy of originalism here, but i think the fact that you have at least nodded to it in the committee hearing today is in itself a
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pretty great testimony to how much of scalia and bork's work has moved the legal field. i'm grateful for the time you are taking with us and i look forward to talking with you again tomorrow. senator: thank you, senator. senator blumenthal? senator blumenthal: thank you for your patience and perseverance and thank you for that extraordinary moment in our history. we all as americans feel excitement and pride in really making history here. the old saying is that a picture is worth 1000 words. as i look at your parents and your husband, your daughters, what i see is america, the best of america. i think we should all feel that excitement and pride in this
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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 opticals and challenges you have overcome to be here, we don't know all of them, but you will provide a very pork tint perspective, a unique perspective that the court needs more than ever at this moment in its history. a lot of people are book smart. there are not as many people who are person smart. you are both. that kind of emotional intelligence is what the 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.
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particularly black women, girls, about those challenges and obstacles you overcame to be here. judge jackson: 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 only in a lot of different fields. my parents, as i said, were the first in their families to have
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the chance to go to college. i have been the first and the only in certain aspects of my life. so, i would say that i agree with you, this is a moment that all americans should be proud. sen. blumenthal: you have never been a prosecutor. a lot of us have been. i was for four and a half years in then the attorney general of my state for 20 years. i would say one of the most meaningful cases in my career was as defense counsel. i was asked by the legal defense fund of the naacp to represent a black man on death row in your home state of florida. he had been convicted of murder
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and rape. had been on death row for a number of years. 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 could -- concealed evidence, 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,
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advocate, and counsel. in that case he had been denied it when he originally went to trial. only after years in states and federal court 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, 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. judge jackson: 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.
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the provisions of the constitution are protecting individual liberties from government overreach. this is why we have provisions about limited government. 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. so, there is the fourth amendment, the fifth amendment, the sixth amendment, the eighth amendment. these provisions are crucial and it is zealous defense counsel that ensures that the government is protecting these rights. ensuring that these rights are protected and that people are getting do process in the criminal justice system. that is to all of our benefit. it helps everyone in america
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when we ensure that liberty cannot be denied without due process. defense counsel, as i said, are making arguments. they are not condoning the critical behavior. they are making arguments on behalf of clients in defense of the constitution and of these constitutional values. 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, meaning judges are presented with arguments from the prosecution and the defense in only when i am able to hear from both sides can i make a just, fair determination.
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fairness is a hallmark of the constitutional theme and it is what makes it the best criminal justice system in the world. sen. blumenthal: it is not only the reality of fairness, but the perception of fairness, the public understanding of how courts work that is essential, correct? judge jackson: that is correct. sen. blumenthal: so, i feel very strongly, i know a number of us on the committee believe in more transparency and visibility being important for the public to understand what goes on in the courtroom. i know that you view transparency as a good thing. you have been asked about cameras in the court room. i'm a supporter of the sunshine in the courtroom act. as well as the cameras in the courtroom act. i am hopeful that the court, the united states supreme court will actually back these proposals.
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their support would be very important. tell me how you feel about the basic principle of transparency and more visibility? judge jackson: well, senator. one of the reasons, as i said, that i write such long opinions is good because i want everybody to know exactly the arguments i have considered, the facts i have reviewed, and in pretty fine detail, the course of my reasoning. i have done this in 570 opinions . i think it is 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.
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with respect to cameras in the courtroom, i understand that is something 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 the issue. sen. blumenthal: i appreciate that response. one of the other areas important to transparency and public trust and confidence in the court's visibility as to their own decisions, which i think is directly contradicted by the shadow docket. i want folks to understand that some of them, some of the most important decisions of the supreme court have been decided, or at least issues resolved without oral argument, without briefs, without any public explanation.
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a controversial travel ban has gone into effect. the first federal execution in 17 years was permitted. statewide covid restrictions were enabled. the collection of data in the 2020 united states census. the 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 the imposed because of covid-19 epidemic, americans have a right to an open, full, fair proceeding with a record of the court reasons for making these decisions. so, i hope that you will urge your colleagues, when you talk to them about cameras in the courtrooms, to do less on the shadow docket.
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i hope that perhaps if they don't, congress will take some action. finally, i want to ask, so far as the issue of transparency is concerned, about codes of ethics . you have follow the code of ethics as a district court judge and a court of appeals judge, correct? judge jackson: i have. sen. blumenthal: does that apply to the u.s. supreme court? judge jackson: my understanding is it does not. sen. blumenthal: correct. my hope is that you will perhaps urge your colleagues as well to support a code of ethics. they haven't done so yet, but i think we have an obligation in the congress to set forth a code of ethics but i think they should support it. senator durbin and others of us have supported that kind of measure as well. i would just ask you if you will
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raise it with your colleagues if confirmed. judge jackson: certainly if congress is taking anything up that requires review, i would absolutely, absolutely considerate. and even if not, i would consider talking to them about it. sen. blumenthal: thank you. the reason i raise these points is i respect the u.s. supreme court. i have argued for cases before. i was a law clerk to justice blackmun, who by the way was from minnesota. 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 burger, also from
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minnesota. he is very, very conservative in his views. as it happened, justice blackmun 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. i do think that the court crisis of legitimacy is a result of division within the court, polarization and politicization that has drawn lines. the process that has happened in recent years in confirmation. so, i really think that consensusbuilding, building
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bridges with your colleagues will be immensely important. i think it is one of the reasons 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 warm depth that will enable you to do it. maybe you can tell the committee about how you work on the sentencing commission, for example, or yours -- your previous experience with that kind of consensusbuilding. judge jackson: thank you, senator. consensusbuilding is something that justice breyer was particularly good at in terms of his personality in the times i clerked for him, i witnessed the way that he continually reached out to colleagues, continually seek common ground.
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it is 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 of working on sentencing policy, at times a pretty contentious effort. because we are talking about criminal justice as commissioners. working on policy issues related to appropriate sentencing. by statute, the commission 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 and work on issues, to come together and in the vast
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majority, i heard a statistic that it was like 95% or 97% of the votes the commission took were unanimous. that happened because of a lot of effort and intention on the parts of the parties involved to see if we could work together. that would be the kind of thing that i would hope to do if i was confirmed to the supreme court. sen. blumenthal: you mentioned in your previous testimony the challenges of applying the law to evolving and new technologies . obviously the internet raises exactly those questions. congress passed the electronic communications privacy act in 1986, when the internet was barely recognizable, nascent, just starting. and now our nation faces a mental health crisis.
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it is partly aggravated by the pandemic, the isolation and anxiety that resulted from it, but also by the internet and by the platforms that drive toxic content at children. as a result of these black box algorithms that nobody really understands. literally no one understands them because the tech platforms want to keep them secret. we are trying to update and upgrade the law to give parents tools to have greater visibility as to what their children are doing and give parents and children tools to protect them against some of the bullying, the eating disorder content, even suicidal and substance abuse stuff that they are driven to see.
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senator blackburn and i have introduced the bipartisan measure for the kids online intd the online safety act that will provide a more modern solution to a more modern problem, to update the law to account for the role of social media in 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? judge jackson: 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


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