tv Highlights of Confirmation Hearing for Supreme Court Nominee Ketanji Brown... CSPAN March 22, 2022 10:26pm-12:02am EDT
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republicans' criticism of the record -- cover record including the contention that she was lenient on defendants and child cases. let me address another issue that came up yesterday in the opening phase of this nomination hearing it is the issue involving child pornography. -- defend dance raised several times primarily by the senator from missouri. he was questioning your sentencing record in child pornography cases that do not involve the production of pornographic material. i wanted to put some context here. the senator from missouri has said in tweets of your position on this issue " joe jackson has a record of letting off child pornography and her. -- judge jackson has a record of
letting off child pornography and are -- offenders." i thought of these charges as i watched you and your family listening closely yesterday. it made me wonder how you felt as your friends and family heard those charges that your sentencing endanger children. could you tell us what was going through your mind at that point? judge jackson: as a mother and a judge who has had to deal with these cases, i was thinking that nothing could be further from the truth. these are some of the most difficult cases that a judge has to deal with because we are talking about pictures of sex
abuse of children. we are talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases and there is a statute that tells judges what they are supposed to do. congress has decided what it is that judges have to do in this or any other case. that statute does not say " look only at the guidelines and stop." it does not say " impose the highest possible penalty for this crime." the statute says " calculate the guidelines, but also look at various aspects of this offense, and impose a sentence that is '
sufficient but not greater than necessary'." when i am dealing with something like this, it is important to me to make sure that the children's perspective is represented in my sentencing. for every defendant who comes before me and suggests as they often do that these crimes do not really matter, they have collected these things on the internet and it is fine, i tell them about the victims who have come to me as a judge. i tell them about the adults who were former child sex abuse victims who tell me they will never have a normal adult relationship because of this
abuse. i tell them about the ones who say " i went into prostitution. i fell into drugs because i was trying to suppress the hurt that was done to me as an infant." the one that was the most telling to me that i describe in almost every one of these sentencings, when i look in the eyes of a defendant who is weeping because i am giving him a significant sentence, what i say to him is " do you know someone has written to me and told me that she has developed a agoura phobia, she cannot leave her house -- agoraphoba, she cannot leave her house because she thinks everyone she sees will have seen her pictures on the internet at the most
vulnerable time in her life, so she is paralyzed?" i tell that story to every child pouring defendant as a part of my sentencing so they -- child porn defendant as a part of my sentencing. there is only a market because there are lookers. you are contributing to child sex abuse. all of the additional restraints that are available in the law -- i impose a strict sentence and all of the additional restraints that are available in the law. these people cannot use computers in a normal way for decades. i am imposing all of those
constraints because i understand how significant, how thank you,. chairman. judge, nice to see you again. congratulations on your nomination. i want to start where senator blumenthal left off. i want to talk to you about these cases that i mentioned yesterday. you know which ones i want to talk about. the seven cases, child pornography cases in which you had discretion that came before you. you had discretion to sentence one way or another in the seven cases. not every case you have discretion, sometimes all requires you to impose a certain sentence. but you had discretion on each of these seven and you chose to depart from the federal guidelines, and also from the prosecutor's recommendation. senator lee ask you about this. senator cruz ask you about it. he had the chart with the seven cases.
before we jump into those, i want to correct the record on one or two things. senator coons suggested that in one or three cases you impose sentences within the guidelines are at the same level the prosecution, but in nickerson you do not have discretion. the law abounds you. in the others weren't a child pornography case. another thing to clarify, as for the comments about the probation office, the probation office doesn't issue national guidelines, they don't issue sentencing guidelines, they are public or recommended to all judges. the probation office provides vice to judges case-by-case, usually in private. usually not available to public. is that right? judge jackson: not exactly, senator. the probation office in criminal cases is a signed -- is assigned by the court to work with respect to the evaluation of
cases, in every case consistent with congress' requirements, the probation office prepares a presentence report in which they review all of the statutory factors concerning sentencing. congress has a statute for sentencing. it requires judges to consider the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to promote various purposes of punishment. there are many purposes listed in the statute. and the probation office is the arm of the court that does factual investigations in every criminal case, unless there are certain cases in which you can waive it, but the background is the probation offices assessment of the facts related to a
particular sentence and a particular crime. the probation office reports. when a court sentences, it becomes the finding the fact of the core. so the probation office appears just like the prosecution and the defense, the probation office as written a report and they make a recommendation to the court based on their independent analysis related to the facts of a particular crime and defendant in sentence. sen. hawley: understood, so they give the court council. understood. however, they don't issue guidelines. they are not uniform. it is a case-by-case and corey, as you said. the report goes to the judge. as i understand it, the presentencing report -- i'm sorry, the probation reports are not public.
i would love to see them if they are. but it's not as if there is one set of guidelines with federal sentencing guidelines and probation guidelines. the probation office is giving advice to the judge and it varies case-by-case. judge jackson: senator, sorry, i thought you were done. sen. hawley: let me ask you about a specific case. i listen to the seven cases in which you had discretion and did not follow the prosecutor's recommendation or the sentencing guidelines. let's talk about one of them because we talked about some of them as a group. let's talk about united states versus hawkins from 2013, the defendant was wesley hawkins, he was 18 years old at the time, he uploaded five video files of child pornography from his computer to youtube, this is how the police got onto him. he uploaded another 36 depictions of child part in lewd photos to his icloud account. when the police executed a search on his apartment on the premises, they found 17 videos
on his laptop and 16 images of child pornography, all of them very graphic, some of them involving very young children. 17 videos in particular, this is the government sentencing memorandum. here are some of the videos that the government charged and they recovered. there was a 24 minute six second video depicting a 12-year-old male committing a sexual act. i'm not gonna read exactly what it was. there is a one minute 57 second minute video depicting an eight-year-old committing a sexual act. there was an 11 minute 42nd video depicting an 11-year-old committing a sexual act and being raped by an adult male. there was a 15 minute 19 second video depicting to 11-year-olds committing sexual acts.
there was a seven minute 51 second video depicting a 12-year-old committing a sexual act. so, as the government said in this case, and i'm quoting from the transcript of the sentencing hearing, 17 minutes is a lot. -- 17 videos is a lot. some of them could be an offense and they are very lengthy and include numerous images, numerous views, sometimes collages, sometimes multiple victims, you see the act in progress. the government goes on to describe some of these as masochistic images. this is a tough case. this is one of the tough cases you are referencing earlier. these cases are terrible, this is one of them. it's terrible stuff. it's not a good guy doing the stuff. guidelines recommendation was 97 to 127 months. if i'm doing my math right, that's up to 10 years. in this case, the guidelines recommendation was essentially
written by congress because, in the protect act of 2003, congress specified what they wanted the range to be in these kind of cases, and congress specified that they wanted the mandatory minimum. i know you remember the protect act because you talked about it. you have given lectures on it, and it was active in 2003. 84-0 was the vote in the senate. the reason the protect act was put into place, the senate was concerned over lenient sentences to judges and child poor and cases, which is what you described. he said there was an increasing perception on capitol hill within doj that liberal judges were to blame for the downward pressure on federal sentences in the legislation wasn't necessary to rein them in. that's you in 2011 describing this law. congress has set the guidelines here, 84-zero in the senate. the chairman voted for it, as did a number of other members from the committee. congress sets the range. essentially it's 97 months up to
10 years. the prosecutor in this case, this was an d.c., you are on the federal court. the prosecutor says a liberal administration, and the state of texas, my colleague from texas is here, the prosecutor in this case still asked for two full years in prison. you gave the defendant three months. guidelines called for 10 years, prosecutor wanted at least two, you gave them three months. when you did, you made a number of arguments, the statements in the record and i would like to go through them. i read them all. the first statement you made was the federal guidelines, the ones that congress wrote, "are in many ways, outdated." that's your quote. you went on to say about why you thought they were out doted. "i don't feel it's appropriate to increase the penalty on the basis of a number of images or prepubescent victims as the
guidelines require because these circumstances exist in many cases, if not, most, and don't signal an especially heinous or agree just child pornography offense." i just want to ask you about that because i'm having a hard time wrapping my head around it. we are talking about eight-year-olds, nine-year-olds, 11-year-olds and 12-year-olds. the government said his images added up to over 700 images. gobs of video footage of these children that you say does not signal a heinous or egregious child pornography offense. help me understand that. what word would you use if it's not heinous or agree just? how would -- egregious? how would you describe it? judge jackson: thank you, senator for letting me address the concern that you've put forward based on the record that
you've reviewed. as a judge who is a mom and has been tasked with responsibility of actually reviewing the evidence, the evidence that you would not describe in polite company, the evidence that you are pointing to discussing, addressing in this context as evidence that i have seen in my role as a judge, and it is heinous, it it is egregious. buttigieg has to do is determine how to sentence defendants proportionately consistent with
the elements that the statutes include, with the requirements that congress has set forward. unwarranted sentencing disparities is something that the sentencing commission has been focused on for a long time in regard to child pornography offenses. all of the offenses are horrible. all of the offenses are egregious, but the guidelines, as you pointed out, are being departed from even, with respect to the governments recommendation, the government in this case, and another has asked for a sentence that is substantially less than the guidelines penalty. so what i was discussing was that phenomenon. that the guidelines in this area are not doing the work of differentiating defendants, as
the government itself indicated in this very case. so, that's what i was talking about, but i want to assure you, senator, that i take these cases very seriously. that these cases include the notions by many defendants that the folks at issue, the defendants themselves are collecting these images on the internet, they are terrible things that have happened, but they are not involved, say the defendants, they are not focused on what is actually happening to the children. so part of my sentencings was about redirecting the defendants attention. it's not just about how much time a person spends in prison, it's about understanding the harm of this behavior, it's
about all of the other kinds of restraints that sex offenders are ordered, rightly, to live under at the end of the day. sentences in these cases include not only prison time, but restraints on computer use, sometimes for decades. restraints on ability to goni our children, sometimes for decades. all of these things judges consider in order to affect what congress has required. which is a sentence that is sufficient, but not greater than necessary to promote the purposes of punishment. sen. hawley: let me ask you about this last point because you said it a couple of times. the sentences that congress requires. congress wanted the guidelines to be mandatory. congress wrote the guidelines. they wanted them to be mandatory. they gave the courts factors to
consider to choose between the sentencing range. congress want you to choose between 97 at 121 months. that's what congress wanted. the supreme court in booker said that the sentencing guidelines would be discretionary, the stash so the supreme court gave a discretion. if we talk about what congress wanted, congress wanted them to be mandatory. my only point in raising that is that you had discretion in these cases and use discretion to choose sentences that you did. let me ask you about some of the things you said. you said it this morning and i appreciated you wanted to get the defendants to own up to what they have done. i thought that was powerful and i thought it was right. but let me ask you about what you said to this defendant. you said to this defendant, to whom you sentenced only three months in prison, that your collection -- i'm quoting you, "your collection at the time you are caught is not as large as it seems. the governme -- seems."
the government responded and said the number of images can be appropriate and that the defendant has amassed an extremely large collection of child pornography. but you disregarded that. you also told the defendant, this seems to be a case where you are fascinated by sexual images involving what were essentially your peers. then you went on to say, the defendant was trying to satisfy his curiosity. curiosity is your word. one more thing on this, same idea, you said this is you to the defendant, you were viewing sex acts of children who were not much younger than you, and the whole discussion is about why you are only giving him three months. judge, he was 18. these kids are a. i don't see and what sense they are peers. i have a nine-year-old, seven-year-old and a 16 month old at home and i live in fear that they will be exposed to,
let alone, exploited in this kind of material. i don't understand you saying to him that they are peers, and that therefore, you were viewing sex acts between children were not much younger than you, and that that is somehow a reason to only give him three months. help me understand this. judge jackson: senator, i don't have the record of that entire case in front of me. what i recall, in respect to that case, is that unlike the many other child pornography offenders that i have seen as a judge and that i was aware of in my work on the sentencing commission, this particular defendant had just graduated from high school and some of, perhaps not all, when you were looking at the records, but some of the materials he was looking at were older teenagers, were
older victims. and the point, senator, is that, you said before the probation office is making recommendations and they do so on a case-by-case basis, that is what congress requires. this is not done at the level of -- sen. hawley: you are at discretion judge. judge jackson: that is it discretionary act of a judge but it's not a numbers game, i understand that congress wanted the guidelines to be mandatory, the supreme court, in 2005 determined that they couldn't be an opinion by justice scalia determined that they can it be, and congress since then has not come back to amend them or to change them or to make them mandatory again. so there is discretion at sentencing. when you look at the sentencing
statutes, congress has given the judges, not only the discretion to make the decision, but require judges to do so on an individualized basis, taking into account, not only the guidelines, but also various factors, including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, the harm to the victims, all of these factors are taken into account in the probation office assists the courts in determining what sentence is sufficient, but not greater than necessary. and i appreciate, senator, that you have looked at these from the standpoint of statistics, that you are questioning whether or not i take them seriously or i have some reason to handle
them in either a different way than my peers or a different way than other cases. i assure you that i do not. that, if you were to look at the greater body of not only my more than 100 sentences, but also the sentences of other judges in my district and nationwide you would see a very similar exercise of attempting to do what it is that judges do. attempting to take into account all of t >> judge jackson was asked repeatedly on day two of her confirmation hearing about her work as a lawyer advocating for due process rights for suspected terrorists detained at the military prison at guantanamo bay, cuba. here's senator lindsey graham at the start of the day.
senator: so the american people have a system where you can represent anyone. i do have no problem with me if you are doing your job. it makes our country stronger. but when i talk about vietnam, the american people deserve a system that can keep her wrists off the battlefield. they deserve a system that understands the difference between being at war, and a crime. you considered 9/11 a terrible event. would you consider it an act of war? judge jackson: yes, senator. senator: i think it was an active war against people of the united states. as you rightfully are proud of your service as a public defender, and you represented guantanamo detainees which is part of our system, i want you to understand at the nation to understand what has been happening at gitmo. what is the recidivism rate at gitmo?
judge jackson: senator, i am not aware. senator: it is 31%. how does that strike you? is that high, low, about right? judge jackson: i don't know how it strikes me overall. senator: it strikes me as terrible. judge jackson: that is what i was going to say. senator: of 229 detainees -- 729 detainees released from gitmo, 229 have gone back to the fight. here are some notables. former gitmo detainee zakir was named interim defense minister of afghanistan. during the transition, they made him defense minister. auntie was in gitmo. of five -- and he was in gitmo.
of the five men we released from gitmo as part of the prisoner swap for sergeant bergdahl, one was appointed deputy minister of defense. one was appointed acting minister of borders. one was appointed acting intelligence director. another, acting minister of culture. omar was appointed new governor of the southeastern proverbs -- southeastern province. these five people were in our control and are now helping the taliban run the country. would you say that our system, in terms of releasing people, needs to be looked at? judge jackson: i would say that is not a job for the courts, in this way. senator: as an american, does that bother you? judge jackson: any repeated
criminal behavior or repeated attacks, acts of war, bother me as an american. senator: i will not hold it against you, the fact that you represented gitmo detainees, i think it is time to look at this system. 131% of the people are going back to fight and kill americans and owning the taliban government, we have gone wrong. are we still at war? judge jackson: the umf -- the a umf, the authorization to use military force is still in effect, congress has authorized the use of military force against people in this way. senator: do you personally believe that al qaeda, isis groups are still at war with us? judge jackson: yes. senator: so, we are still in a
state of war with certain elements of radical islam to this day? judge jackson: i believe that is documented, yes. senator: what is the process to determine whether one is an enemy combatant under our law? judge jackson: the executive branch makes assessment of whether someone has taken up arms against the united states somewhere in the world, related to all of this. senator: so it is an executive branch function to determine whether this person qualifies as an enemy combatant? under current law? judge jackson: under current law, i believe that determination is made by the executive branch, and the person is put -- is detained. and then, the question becomes whether they are able to bring
some sort of legal challenge to that determination. senator: the law is that the executive branch determines if you are an enemy combatant. and under our law, you can appeal that decision to a federal court through habeas, correct? judge jackson: i believe that is correct. senator: is it your view we can >> i believe so. sen. graham:: did you believe that before an amicus brief. >> i had to two amicus briefs that i worked on, two different cases. sen. graham: we will have another visit tomorrow, go back and check. you argue digger your brief that that executive branch should not have the ability to hold in --
an enemy combatant, you need to try them and release them. >> yes, senator, as you were talking, my client, made that argument and asked me to draft their brief. sen. graham: do you agree with that argument? >> my ability was to make my client's arguments. the court did not address that issue. they in fact, the case became moot. sen. graham: did you organize an effort to get 20 judges to file a brief with the supreme court? judge jackson: not on that issue . sen. graham:, did you actively recruit 20 judges to help you follow a brief on another issue?
>> not technically. what i mean is i was at my law firm in the supreme court, an appellate group. one of the partners at morrison and foerster 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 to make -- sen. graham: it was her idea to write this, and you helped in the implementation of that idea? judge jackson: as a member of the supreme court and an appellate group in the law firm, that is the practice. sen. graham: it was not your
idea, it was somebody else's. so, now, there are people still held at gitmo today. do you understand that? judge jackson: yes. sen. graham: what system is in place regarding their future? judge jackson: i am not aware of the system right now. i'm not sure -- sen. graham: there is a periodic review process, and they have an agency where they get the files of these folks and they determine whether or not they still present a threat to the united states or the world at large, and i think it is six months, maybe one year but that goes on at least on an annual basis, and if there is a determination that this person
still represents a threat to the united states, they are continued to be confined to. that is the way the system works. are you ok with that? judge jackson: as a policy matter, i'm not speaking to my views. my understanding is the periodic review system is an executive branch determination of whether or not they will continue to hold people -- sen. graham: does that make sense to you as a way to deal to these detainees? judge jackson: i'm not in position to speak as to how the executive branch will handle these detainees. sen. graham: you argued the executive branch does not have that option. if you had your way, the executive branch could not do periodic reviews about the danger the detainee presents to the united states.
they would have to make a decision of trying them or releasing them. is that not accurate? judge jackson: respectfully, that was not my argument. i was filing an amicus brief on behalf of clients, including the rutherford institute, the cato institute, and the constitution project. sen. graham: when you sign on to a brief, does not become your argument? judge jackson: it does not. if you are an attorney and representing a client -- sen. graham: was that your position in private practice? you sign onto this brief making this argument that you say is not your position. why would you do that if it is not your position? why would you take a client who has a position like that -- this is voluntary, nobody is making you do this. judge jackson: senator i would refer you to the same statements
that chief justice roberts made when he came before the committee, which is that lawyers represent clients. sen. graham: i'm not holding the clients' views against you, like the people at gitmo, they would deserve representation, but this is an amicus brief were you and other people tried to persuade the court to change policy. the policy i described is a periodic review. if the court had taken the position argued in the brief that you signed upon, would have to release these people or try them, and some of them, the evidence we cannot disclose because it is classified. you're putting america in an untenable position. this is not the way you tried to fight a war. we hold enemy combatants as long as they are a threat, there is no magic passage of time that you have to let them go. my question is simple.
do you support the idea, did you support then the idea that indefinite detention of an enemy combatant is unlawful? judge jackson: respectfully, senator, when you are an attorney, and you have clients who come to you, whether they pay or not, you represent their positions before the court. sen. graham: i'm sure everybody at gitmo wants out. i got that. this is an amicus brief, and i do not understand what you are saying. i'm not holding it against you because you represented a legal position i disagree with. that happens all the time. i'm trying to understand what made you join this cause? you say somebody higher you, but did you feel ok adopting that cause? when you signed on to the brief,
were you not advocating that position to the court? >> senator, as a judge now, in order to determine the lawfulness or unlawfulness of any particular issue, i need to receive briefs and information making positions on all sides. sen. graham: i got what i judges all about. i'm not asking you to decide the case in front of me. i'm asking you to explain the position you took as a lawyer regarding the law. i am beyond confused. i know you said in your brief. whether i agree with it or not is not the point. i want you to understand it is important for us to know where you are coming from. if that brief had been accepted by the court, it would be impossible for us to fight this war, because some people will die in gitmo and never go to
trial for good reasons, because the evidence is so sensitive, we cannot disclose it to the public . we are not charging them with a crime, we are saying, you engaged in hostile activities against the united states, you are an enemy combatant under our law, and you will never be released as long as you are a danger until the war is over or you are no longer a danger. that is the difference between fighting a crime and a war. did you ever accuse in one of your habeas petitions, the government acting as war criminals, or holding detainees -- holding of the detainees by our government that we were acting as war criminals. judge brown jackson: i do not remember that accusation, but i will say -- sen. graham: do you believe that is true, that america was acting as war criminals and holding these detainees.
judge brown jackson: senator, the supreme court held that the executive branch has the authority to detain people who are designated as enemy combatants. for the duration of the hostility. what i was doing in the context of the habeas petition at this early stage in the process was making allegations to preserve issues on behalf of my clients. a habeas petition is like a complaint that lawyers make allegations -- sen. graham: 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. i do not know why you chose those words. that is too far, but we are where we are. >> on the issue of guantanamo,
there are 39 guantanamo detainees remaining. the annual budget is $540 million a year, which means each of these detainees is being held at the expense of $12 or $13 a year -- $12 one million or $13 million a year. since 9/11, those convicted on terrorism charges, since 2009, the beginning of the obama administration, the recidivism rate is 5%. sen. graham: according to the director of national intelligence, it is 31%. if you are going to talk about what i said, if we close gitmo and move them to colorado, do you support indefinite detention for these detainees? sen. durbin: given the facts -- sen. graham: the answer is no. sen. durbin: the 30 you refer to
goes back to 2009. sen. graham: what does it matter what it goes back to, they got loose and started killing people. if you are one of the people killed in 2005, doesn't matter when we released them? i'm suggesting the system has failed miserably, and advocates like she was advocating would destroy our ability to protect this country. we are at war, not fighting crime. as long as they are dangerous -- i hope they will all die in jail -- it will not bother me one bit if 39 die in prison. that is a better outcome than letting them go. if it costs $500 million to keep them in jail, keep them in jail. look at the afghan government made up of detainees at gitmo. this thing by the left about this war is not working. sen. durbin: let me know that
larry thompson served as deputy attorney general under president george w. bush, the assistant attorney general for legal policy in the george w. bush administration, john belanger and former circuit judge, ken starr, prominent conservative lawyers signing a letter defending attorneys who represented guantanamo bay detainees. i do not believe we should associate in that activity as being inconsistent with our constitutional values. >> john cornyn from texas asked the judge about her work as a public defender of gitmo detainees. sen. cornyn:, i do not know you well but i'm impressed by our interaction. you have been gracious and charming. why would you call secretary rumsfeld and george w. bush war criminals in a legal filing? it seems so out of character for you.
judge brown jackson: senator, are you talking about habeas petitions that i filed? sen. cornyn: when you were representing a member of the taliban and the department of defense identified him as an intelligence officer, and you referred to the secretary of defense and the setting resident of the united states as war criminals. why would you do something like that? judge brown jackson: i do not remember that particular reference. i was representing my clients and making arguments. i would have to look at what you meant. i do not intend to disparage the president or the secretary of defense. sen. graham:, thing a war criminal, you could be hauled before the international tribunal and tried for war crimes. it is not a casual comment, i
would suggest. >> following a break for lunch, dick durbin refuted the claim that judge jackson referred to former president george w. bush and former secretary of defense rumsfeld as war criminals. sen. durbin: i would like to make a statement in terms of research undertaken during the break. judge jackson, earlier senator cornyn said you called former president george w. bush and secretary of defense donald rumsfeld were criminals. i noticed the surprise in your reaction, and i was surprised by the allegation. during your service as a public defender, you filed several habeas petitions against the united states, naming former president bush and former secretary rumsfeld in their official capacities. you are advocating on the behalf of civilians wrongly classified as enemy combatants,
and your filing was part of your professional responsibility to zealously advocate for your clients. in those petitions, the individuals raised more than a dozen claims for relief, one of which was an allegation that the government had sanctioned torture against the individuals, which constituted war crimes. the statute allows courts to hear cases for alleged violations of the law of nations or treaties of the united states. apparently, this is what senator cornyn was referencing. there was no time you called president bush or secretary rumsfeld a war criminal. judge brown jackson: thank you, that was correct. >> later in the hearing, texas republican senator, ted cruz, use part of his time to question judge jackson about critical race theory. sen. cruz: you disclosed you are
on the board of trustees for the georgetown day school. you have been a board member since 2019, and you are currently still a board member. is that correct? judge brown jackson: that is correct. sen. cruz: in regard to the georgetown day school, you publicly said, quote, since becoming a member of the community seven years ago, patrick and i have witnessed the transformative power of a rigorous progress of education dedicated to fostering radical thinking -- critical thinking, and social justice. when you refer to social justice in the school's mission, what did you mean by that? judge brown jackson: thank you, senator, for allowing me to address this issue. georgetown day school has a special history that i think is
important to understand when you consider my service on that board. the school was founded in 1945 in washington, d.c. at a time in which by law there was racial segregation in this community. black students were not allowed in the public schools to go to school with white students. georgetown day school is a private school that was created when three white families, jewish families got together with three black families, and said, despite the fact that the law requires us to separate, despite the fact that the law is set up to make sure black children are not treated the same as everyone else, we are going to form a private school so that our children can go to
school together. the idea of equality, justice is at the core of the georgetown day school mission, and it is a private school, such that every parent who joins the community does so willingly with an understanding that they are joining a community that is designed to make sure that every child is valued, every child is treated as having inherent worth , and none are discriminated against because of race. sen. cruz: judge jackson, all of us will agree that no one should be discriminated against because of race. when you testified in a minute ago that you did not know if critical race theory was taught in k-12, i find that statement hard to reconcile with the public record. if you look at the georgetown day school curriculum, it is
filled and overflowing with critical race theory. among the books that are either assigned or recommended, they include critical race theory and introduction. they include the end of policing and advocate for abolishing police. they include how to be antiracist. they include stacks of books, and i will tell you the ones that are most stunning, they include a book called "antiracist baby." and there are portions of this book that i find really quite 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 babies confess when being racist. this is a book that is taught at georgetown day school to students in pre-k through second grade, 4-7 years old. do you agree with this book that babies are racist? judge jackson: senator, i do not believe that any child should be made to feel as though they are racist or they are not valued or less than, that they are victims, that they are oppressors -- i do not believe in any of that. what i will say, when you asked me whether or not this was taught in schools, critical race
theory, my understanding is that critical race theory as an economic theory is taught in law schools, and to the extent you are asking the question, i understood you to be addressing public schools. georgetown day school, just like the religious school that justice barrett was on the board of, is a private school. sen. cruz: you agree critical race theory is taught at georgetown day school? judge jackson: i do not know because the board does not control the curriculum. the board does not focus on that. that is not what we do as board members, so i am not sure. >> senator feinstein, who voted for nine supreme court nominees, began her questioning with a question she has asked previous nominees. sen. feinstein: one of the issues i often discussed with nominees, particularly the supreme court is the issue of abortion. i have asked the three most
recent supreme court nominees about this issue, so i would like to discuss it with you today. in 2017 i asked justice gorsuch about this during his confirmation hearing. i asked him to expand on a comment he had made about his belief that precedent is important because it and stability to the law. in response, justice gorsuch reiterated his belief that precedent is important because, and i quote, once a case is settled, that adds to the determine and see of the law -- determinancy of the law. he also stated that roe had been reaffirmed many times. i also spoke to judge kavanaugh about this issue in 2018. i asked him whether he believes that roe was settled wrong, and if so, whether it was correctly
settled. justice kavanaugh said that roe, quote, is settled as a precedent of the supreme court. he said roe has been reaffirmed many times over the past 45 years, and most prominently, most importantly, reaffirmed in planned parenthood v. k.c. i most recently spoke about this issue with justice barrett in 2020. i asked her whether she agreed with justice scalia's view that roe was wrongly decided. she committed to, quote, obey all the rules if faced with the question of whether to overrule. she said she had no agenda to
try to overrule. here is the question. do you agree with justice kavanaugh that roe v. wade is settled as a precedent, and will you, like justice barrett, commit to obey all the rules in cases related to the issue of abortion? judge jackson: thank you, senator. i do agree with both justice kavanaugh and justice barrett on this issue. roe and casey are the settled law of the supreme court concerning the right to terminate a woman's pregnancy. they have established a framework, and the court has reaffirmed, and in order to revisit, as justice barrett
said, the supreme court looks at various factors because stare decisis is a very important principle. it provides and establishes critic the ability, stability -- predictability, stability, and as a restraint in this way on the exercise of judicial authority because the court looks at whether or not precedents are relied upon, workable, and in addition to whether or not they are wrong, and other factors as well. i agree with both of those statements that you read. sen. feinstein: let me add one to that, then we will move on. i'm particularly interested in the case of roe v. wade. roe was decided nearly 50 years
ago, and it has been reaffirmed over a dozen times since then. my question is this, does roe v. wade have the status of being a case that is a super precedent, and what other supreme court cases do you believe have that status? judge jackson: senator, all supreme court cases are binding, and the principles and rulings have to be followed. roe and casey, as you say, have been reaffirmed by the court and relied upon, and reliance is one of the factors that the court considers when it seeks to revisit or asked to revisit a precedent. in all cases, those precedents
of the supreme court would have to be reviewed pursuant to those factors because stare decisis is very important. >> several senators on the judiciary committee asked judge jackson to explain her judicial philosophy. here are questions from the two top senators on the committee, senator durbin and senator grassley. following those senators, you will hear from senator sasse, republican from nebraska. sen. durbin: there are two issues that came up yesterday repeatedly from the other side of the aisle. one of them was a question of judicial philosophy. no one questioned your academic, law school credentials, or your service as clerk and federal judge. time and again you have been asked what is your judicial philosophy fit into --i have
discovered the answer, it turns out during the course of your time as a judge, you have had written opinions, 573 to be exact. and they more or less express your view of the law as the facts are presented to you. some 12,000 pages from the sentencing commission, transcripts of deliberations on important issues. for most of us as elected senators, if people asked what is your philosophy, we point to our voting record. you have a record when it comes to court decisions, and this committee for the fourth time is delving into everything you have published as judge and even before. would you like to comment at the outset of those looking for a
label of what your position is on judicial philosophy? judge jackson: yes, thank you mr. chairman. over the course of my almost decade on the bench, i have developed a methodology that i use in order to ensure i am ruling impartially, and that i am hearing the limit on my judicial authority. i am acutely aware that as a judge in our system, i have limited power. i am trying in every case to stay in my lane. what i do is, i follow three steps. the first step is when i get a case, i ensure that i am
proceeding from a position of neutrality. this means you get a case, and it is about something, and it is submitted by certain parties. i am clearing my mind of any preconceived notions about how the case might come out, and setting aside any personal views . it is very important that judges rule without fear or favor. the second step is once i have cleared the decks, so to speak in this way, i am able to receive all of the appropriate input for the case. that is the party's arguments, they have written briefs. sometimes we have a hearing, sometimes we hear from other parties. then there is the factual record. i am evaluating all of the facts from various perspectives. i think my experience, all the
various experiences that i have had, really helps me at this stage to receive the perspectives of all of the parties, and understand their arguments. then the third step is the interpretation and application of the law to the facts in the case. this is where i'm really observing the constraints on my judicial authority. there were many constraints in our system importantly because judges have limited authority, and so i am first of all looking at my jurisdiction, a threshold matter in every case to make sure you have the power to hear the case. in evaluating jurisdictions, you look at all sorts of things, the text of a jurisdictional provision, precedent related to it. if i can get to the merits of the case, if i have
jurisdiction, then i am observing the limits on my authority concerning the question. if it is a statute or provision of the constitution, i'm looking at the text. the adherence to the text is a constraint on my authority. i'm trying to figure out what those words mean as they were intended by the people who wrote them. at this point, i'm looking at original documents. i'm focusing on the original public meaning, because i'm constrained to interpret the text. sometimes that is enough to resolve the issue in terms of the merits. judges also look at history and practice at the time of the document, if it is a statute, i'm looking at congress's purposes. i am not importing my personal views or policy preferences.
the entire exercise is about trying to understand what those who created this policy or law intended. i am also looking at precedent, which is another constraint on judicial authority. i'm looking at prior cases in trying to understand what other judges have said. as a lower court judge, unbound by the precedent, and even on the supreme court if i was fortunate enough to be confirmed, there is stare decisis, a binding kind of principle that the justices look at when considering precedents. all of these come into play when it comes to my judicial philosophy. sen. durbin: another issue that has come up to my surprise, and i have spoken about my republican colleagues about their fascination with it, is the notion about the composition of the supreme court which
euphemistically is referred to as court packing. i said on the floor here, there is one living senator who has effectively changed the size of the supreme court. that was the republican leader, senator mcconnell, who shrank the court to eight seats for nearly a year in 2016 he blocked president obama's nomination of merrick garland. that question on court packing was posed to amy coney barrett when she appeared before this committee. she was asked about it. she said, i could not opine on it. then she said repeatedly she cannot share her views, stating, i will not express a view or matter of public policy, especially one that is politically controversial, because that is inconsistent with the judicial role. i do believe we should have
rules and traditions and precedents, but not a different set of standards for republican and democratic nominees. if a senator were to ask you about changing the current size of the supreme court, what would your response be? judge jackson: senator, i agree with justice barrett and her response to that question. again, my northstar is the consideration of the proper role of a judge in our constitutional scheme. in my view, judges should not be speaking to political issues, and certainly not a nominee for a position on the supreme court. i agree with justice barrett. >> through first amendment
free-speech protections apply equally to conservatives and liberal protesters? judge jackson: yes, senator. >> do you believe the individual right to keep and bear arms is a fundamental right? judge jackson: senator, the supreme court has established that the individual right to keep and bear arms is a fundamental right. sen. grassley: could you tell me how you might go about deciding what a fundamental right is under the constitution? judge jackson: senator, i don't know that i can tell you that in the abstract sort of way you may have posed the question. there is precedent in the supreme court related to various rights that the court has recognized as fundamental. the court has some precedent
about the standards for determining whether or not something is fundamental. the court has said the 14th amendment due process clause does support some fundamental rights, but only things that are implicit in the ordered concept of liberty were deeply rooted in the history and traditions of this country. they are the kind of rights that relate to personal individual autonomy, and they have recognized a few things in that category. that is the tradition of the court for determining whether something is fundamental in that way. sen. grassley: you served on the district for several years and spent eight months on the d.c. circuit.
during yesterday's opening statement, we heard a lot about the importance of judicial philosophy. in your own words you described that, so you do not have to go through it again with me. if congress writes a law that does not explicitly allow private parties to sue, do you believe the federal courts have the authority to create implied causes of action? i would like to have you elaborate if you say yes to that. judge jackson: i would say that as a general matter, no. our obligation as judges is not to create policy. if congress has enacted a statute that establishes a cause of action or restricts causes of action, then as a general matter , i do not think courts can impose one.
i'm saying generally because there may be circumstances i'm not thinking of. i know the supreme court has in narrow circumstances at times discussed implied causes of action, but i think the charge of the judge is to impose the law as written. sen. grassley: 115 justices serve before you if you are approved by the senate. are any of them now or in the past that has a judicial philosophy that most closely resembles your own? judge jackson: i have not studied the judicial philosophies of all of the prior justices. i will say that i come to this position, this moment as a judge
who comes from practice. i was a trial judge. my methodology has developed in that context. i do not know how many other justices other than justice sotomayor have that same perspective, but it informs me with respect to what i understand to be my proper judicial role. sen. grassley: what aspect of your record as a judge do you believe has been the most important for the good of the country? judge jackson: i think all of my record is important to some degree because it clearly demonstrates that i'm an independent jurist, that i'm ruling in every case consistent with the methodology that i described, that i'm impartial.
i do not think anyone can look at my record and say it is pointing in one direction or another. that it is supporting one viewpoint or another. i am doing the work, and have done the work for the past 10 years that judges do to rule impartially and stay within the boundaries of our proper judicial role. >> it might be helpful for us to understand who you most identify with in past nominees before the committee. they talked about the mold they felt justices followed in. if you had to tell the american people who you are closest to, who were those justices? judge jackson: thank you for the question, senator, and i must admit i do not really have a justice that i have molded
myself after or that i would. what i have is a record. i have 570+ cases in which i employed the methodology that i described, and that shows people how i analyze cases. i come up in every case, and proceeding neutrally, from a neutral posture in every case. i described 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. this is what i am considering because i lay out a very detailed way, everything that people have argued in all of the cases. when i am doing my interpretation, i am focused on the text of any statute or constitutional provision.
i am looking as appropriate to the intentions of the people who wrote the words, because i view statutory interpretation, constitutional interpretation, those exercises consistent with my limited authority. i am conscious of not interpreting those texts consistent with what i believe the policy should be, or what i think the outcome should be. i am trying in every case that involves that kind of interpretation to assess what it is that the parties wrote intended. as a result, because my methodology involves these various pieces, and because of the way in which i do think, i am reluctant to establish or
adopt a particular label, because the idea of how you interpret is just one part of the entirety of a judges responsibility. >> senator klobuchar spent some of her time with judge jackson to ask about the so-called shadow docket, the supreme court emergency proceedings that allow it to act quickly without public deliberation. sen. klobuchar: i want to talk about something that is the opposite, some have termed the shadow docket. that includes decisions that the court makes on an expedited basis that are usually unsigned and issued without oral argument or full briefing. in the last few years we have seen the court increasingly deciding cases in this way, often over the dissent of three or four justices. last term they had 20 requests on emergency relief, a historically high number.
in 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 using this docket? one of the circumstances that warrant this? i think you know these decisions have a profound effect on people's lives. last fall, a majority of the court refused to stop the enforcement of a texas law that severely restricts a woman's access to abortion. even chief justice roberts objected to the court's decision to let the law take effect, calling the statutory scheme not only unusual but unprecedented. as someone who believes in transparency, could you talk in general about when you think this shadow docket should be used, when emergency relief should be given, and how, if it is overused, it could undermine
public confidence in the court? judge jackson: thank you, senator. there is a balance that the court has to consider. insofar as, on the one hand, it has always had an emergency docket, the need for flexibility, the need to get answers to the parties at issue is something 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 confirmed, i would look at those issues, but it is an interesting and important set of issues. >> senator cornyn asked the judge on opinions that rely on the 14th amendment due process clause. sen. cornyn: whether it is conservative, liberal, libertarian -- whatever you would like to call it -- it is a mode of analysis by the court that allows the court to substitute its opinion for the elected representatives of the people. would you agree? judge jackson: the court has identified standards for the determination of rights under
the 14th amendment due process. sen. cornyn: who gives them the right to do that? if it is not mentioned in the constitution, where does the right of the court to substitute its views for that of the elected representatives of the people? where does that come from? judge jackson: the court has interpreted the 14th amendment to include this component. the right to substantive due process, the court has said the kinds of things that qualify are implicit in the concept of ordered liberty were deeply rooted in our nations history and tradition. those are standards that identify a narrow set of activities. sen. cornyn: judge, and the overfill case, justice roberts
in his dissent noted that more than half the state that formed the basis for human society for millennia. that was the basis for the institution of marriage, the practice for millennia and the recognition that marriage was between a man and a woman. do not get me wrong, i'm not arguing the merits or lack of merits of same-sex marriage, i believe the states and the voters can choose what they will , and that is their prerogative, and i think that is legitimate. when the court overrules the decisions made by the people, as they did in 32 of the 35 states that decided to recognize only
traditional marriage between a man and a woman, that is an act of judicial policymaking, is it not? judge jackson: senator, the supreme court has considered the application of the substantive due process clause of the 14th amendment. sen. cornyn: right. the constitution does not mention anything about substance when it talks about due process. the 14th of moment and 50 minute do not talk about substantive due process, it talks about due process of law, correct? judge jackson: correct. sen. cornyn: one of the things that concerns me, here is an example of the court finding a new fundamental right that is mentioned nowhere in the document of the constitution. it is the product of court made law that we are all supposed to salute and follow because nine
people who were unelected, who have lifetime tenure, whose salary cannot be reduced while they serve in office, they decide, five of them decide this is the way the world should be. what other unenumerated rights do you believe exist? and how could we possibly anticipate what those might be? for example, the ninth amendment says the enumeration in the constitution of certain rights shall not be construed to deny or disparage other rights retained by the people, which suggests to me that there are other as of yet unidentified rights, and some day, some court is going to tell us we have identified them, an unenumerated
right, we will reject the right of the american people as to what the policies out to be to regards to that right because the nine people sitting on the supreme court decided we have discovered a new unenumerated right, and it shall be the law of the land, and no legislature can pass a law that conflicts with it. what other unenumerated rights are out there? judge jackson: i cannot say. it is a hypothetical that i am not in a position to comment on. the rights that the supreme court has recognized as substantive due process rights are established in its case law. >> on 325, president biden nominated judge jackson, currently a judge on the court of appeals to the district of columbia circuit.
if confirmed by the full senate, jackson would become the 116th justice of the supreme court. 110 of those were men. she would be the first black woman justice, and the fourth woman on the current nine-member court. senator feinstein asked the judge about the impact of her serving. sen. feinstein: i joined this committee in january, 1993. a few months later we consider the nomination of ruth bader ginsburg to the supreme court. justice ginsburg's confirmation made her only the second woman to ever serve on the supreme court after justice sandra day o'connor. we have come a very long way since then. 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. he would join justices sotomayor , kagan, and barrett on the bench. this would be the nearest we have ever come to gender equity on the supreme court. there would be four women on a court with nine justices. i have my own thoughts about why gender balance is important on our nations courts. but i would really like you to tell us what are your thoughts on what it means for a 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 is extremely meaningful. one of the things that having diverse members on 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 photos from little girls around the country who tell me that they are so excited for this opportunity, and 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. we want as a country for
everyone to believe that they can do things like sit on the supreme court. having meaningful numbers of women and people of color matters. i also think it supports public confidence in the judiciary when you have different people, because we have such a diverse society. >> senator grassley, who has been an advocate for cameras in the high court, asked judge jackson whether she would support cameras in the court. sen. grassley: on another subject, personal to me over a long time, and half this committee -- i favor allowing supreme court hearings to be televised. what is your view on this, and
how would you feel about cameras in the courtroom? about 40 of our states allow. judge jackson: senator, i would want to discuss with the other justices their views and understand all of the various potential issues related to cameras in the courtroom before i took a position on it. sen. grassley: i think that is a fair answer at this point. >> throughout c-span's history, we have pushed for greater access to the federal government, requesting more television and audio access to the supreme court. follow the debate along with all things supreme court on our website, c-span.org/supreme court. you can watch all of the hearing in its entirety on our website, or the free video app, c-span
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