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tv   Confirmation Hearing for Supreme Court Nominee Ketanji Brown Jackson Day 3  CSPAN  March 23, 2022 5:00pm-7:41pm EDT

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a child pornography offense in 2014. the sentencing guideline called for a sentence of 97 to 1221 months, or 8 to 10 years. you sentenced him to three months. we have heard a lot about this case and your three-month sentence of wesley hawkins. but you got another crack at him in 2019, judge. in 2019 you sent wesley hawkins back under conditions of confinement with the bureau of prisons for six month with restrictions on his computer usage. that is twice the amount of time in custody you sentenced him to in 2013. what did wesley hawkins do in 2019, judge? judge jackson: i don't remember, senator. i have a lot of defendants i have sentenced who are on supervision who violate conditions of supervision. in our system, someone like mr.
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hawkins, especially given the crime, the egregious crime that he committed, was likely on a very long period of supervision, and during that time he would likely be under computer restrictions for 10, 20 years or something where he is not allowed to do certain things with the computer, and a probation officer is monitoring software on the computers of individuals who have these kinds of conditions imposed. and that restricts their ability to access certain information on the internet. and so it's not uncommon for a probation officer to report violations of supervised release not just in this area, but across all crimes. and then the court has to determine how to handle that.
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and you could in fact send someone back to jail for violating conditions of supervised release that are not themselves criminal behavior. the court says in their supervision order i am imposing a 20-year, whatever it is, sentence of supervision, and during this time you are not allowed to access your computer, etc., etc. if you were to do that, it would not be additional criminal behavior, but it would be a violation of my order, and when it comes back to the court on violation, the court has factors that we look at to determine whether or not to treat that essentially as the kind of violation that would require him to go back to jail. sen. cotton: judge, yesterday we had an extended conversation of your sentence of key hodges. that sentence occurred in 2018. you had very detailed recall.
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to my knowledge that is the only time anyone has asked you about mr. hodges's sentence. you have been asked repeatedly about the hawkins case. he has been in the news for days on end. this resentencing happened in 2019 and now you are saying you don't have any recollection of it. let me see if i can refresh your recollection. this is the order you signed, judge, on april 17 2019. and it says that you concur with the recommendation of the probation office to return him to a residential facility for 180 days and to engage in various kinds of computer monitoring and search. that is your signature over there, judge. you really don't remember -- judge jackson: senator, that is
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a very common thing that judges do. i've sentenced over 100 people, and supervised release, which is the kind of post-incarceration condition that judges ordinarily impose, is something that is done on a standard form, which is what that is -- sen. cotton: i understand you've done a lot, judge, none of them have been the centerpiece of your hearing the last two days do you really expect this committee to believe you don't remember what happened in this hawkins case when it came back before you? judge jackson: yes, senator, i do expect you to believe -- sen. cotton: well, i don't find you credible, judge. it has been in the news for days and you have been asked about it more than any other case you have ever had. i just don't find it credible that you weren't prepared for that matter in 2019. you know what i think? i think he got child pornography again and he wouldn't have if he
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had gotten 8 to 10 years the first sentencing. let's turn to your work for detainees at guantanamo bay. first off, let me just ask, do you think most detainees at guantanamo bay were mostly terrorists or mostly, i don't know, innocent goat farmers? judge jackson: senator, it's impossible for me to answer that question. the people at guantanamo bay have been accused by the government of engaging in terrorist activities, and are therefore classified by the executive branch as enemy combatants. sen. cotton: do think america would be safer or less safe if we released all the detainees at guantanamo bay? judge jackson: senator, i'm trying to figure out how to answer that question.
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9/11 was a terrible attack on our country, and the executive branch, pursuant to authority that the supreme court said it had, designated people as enemy combatants and sent them to guantanamo bay. the supreme court also said that anybody who was so detained could seek review of their detention, and as a federal public defender, my role and responsibility was to make arguments in defense of the constitution and in service to the court that was trying to assess based on the authority given to it by the supreme court whether or not people were adequately classified, what the
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legal circumstances were, how these previous petitions were going to be processed. this was a series of of legal challenges in a novel environment that federal public defenders and lawyers across the country were engaged in helping the court to evaluate so that we can understand what the constitution requires in this time of emergency. sen. cotton: so no opinion on whether america would be safer or less safe if we released all detainees from guantanamo bay? judge jackson: senator, america would be less safe if we don't have terrorists out running around attacking this country, absolutely. america would also be more safe in a situation in which all of our constitutional rights are protected. this is the way our scheme works.
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this is how the constitution that we all love operates. it's about making sure that the government is doing what it is supposed to do in a time of crisis. as justice gorsuch said, the constitution is not suspended in times of crisis. the government still has to follow the rules. and so criminal defense lawyers make sure that in times of crisis, the government is following the rules. sen. cotton: let's turn to the actual cases. how many of these terrorists at guantanamo bay did you represent? judge jackson: when i was defender, four cases were assigned to me in our office. i don't know how many cases came into the office in total, but -- sen. cotton: you personally had four? judge jackson: i was assigned to them along with another defender who worked on the same cases. she was more senior.
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she did all of the fact gathering related to the cases, and as an appellate defender, i worked on the legal arguments. sen. cotton: do you ever represent any of the detainees at guantanamo bay when you were not a public defender? judge jackson: one of the people who i represented while i was in a federal defender, his case got spun off and taken up by a law firm. law firms around the country were also engaged in this work -- sen. cotton: i'm well aware of what law firms were doing at the time. judge jackson: i left the federal public defender's office, i joined a law firm, and one of the people that i had represented was now at that law firm. they had him as a client -- sen. cotton: mr. al-salam.
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judge jackson: al-qatani. sen. cotton: coincidentally he and you went to morrison and foerster. judge jackson: yes, senator. sen. cotton: what about mr. al- salam? judge jackson: i don't recall what happened with mr. al-salam. sen. cotton: you were listed as counsel for four years with morrison and foerster. ) what happens -- judge jackson: what happens is if you leave anyplace, firms or government service, you have to let the court know or their records -- their records reflect where you are in the system and not so much the case can in terms of their address. sen. cotton: to go back to mr. al-qatani, just coincidently, small world, he went to morrison and foerster at the same time you did and you represented him and he filed multiple motions on his behalf. judge jackson: i don't know if he was at the same time -- sen. cotton: but he did file
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multiple motions for him.--you did file multiple motions could judge jackson: i don't recall if it was multiple, but he was still at the habeas stage of the process. i don't know when he came, because the partners who take up the case were in los angeles i was in washington, d.c. they contacted me to say, oh, we see on the docket you previously represented in an you are now with our firm, will you assist us with looking at these briefs, working on these briefs? there were many lawyers who were working on the filings you were talking about. sen. cotton: after you left the public defender's office, did you continue in your representation of any other client you had had in the public offenders office? --public defender's office? judge jackson: i didn't continue my representation of any kind. i left the defender's office and picked up mr. qatani and
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the circumstances i talked about and there were no others i represented in that way. sen. cotton: that sounds like a continuation. you represented him at the public defender's office and in private practice as well, and you are telling us that it's really person you represented at the public defender's office and in private practice--the only person that you represented at the public of hunter's office and in private practice. judge jackson: yes. sen. cotton: you didn't continue any pro bono work for murderers or rapists or anyone else, but you did represent generous at guantanamo bay? --this terrorist at guantanamo bay? judge jackson: when i got to the firm and they told me this case was there and that i had previously worked on the case, they asked me as a member of the supreme court appellate group of the firm, which is where -- was my practice, if i would help review and work on some of the briefing they were submitting on his behalf given my familiarity with the case.
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sen. cotton: were you representing him pro bono at morrison and foerster? judge jackson: the firm takes on pro bono representations, which means the person is in pain. sen. cotton: let's turn to your amicus briefs. you had two briefs on guantanamo cases, one at a think tank, one for former judges. sometimes the clients seek out lawyers, sometimes the lawyers seek out the claim. with either of those amicus reefs, were you involved in seeking the client or suggesting the idea for the amicus brief in the first place? judge jackson: no, senator. sen. cotton: were either of those done on a pro bono basis? judge jackson: yes, because the supreme court and appellate group in a law firm has paid clients and also has pro bono clients. the briefs that i worked on were on -- one brief was 20 former
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federal judges who wanted to make an argument in the boume ddiene case and the supreme court and one of them was a partner in my law firm, former federal judge presiding it -- idea it was and she wanted our group to work on the brief. the other was not just one think tank, it was the cato institute, the rutherford institute, and the constitution project, and ideologically diverse group of nonprofits who wanted to make arguments in another case that the supreme court had taken up related to these issues. all of this was novel, and a a lot of issues were being evaluated by the supreme court regarding the scope of executive authority during this time of crisis. sen. cotton: you have done pro bono work on behalf of detainees at guantanamo bay. have you ever done pro bono work
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for the victims of terrorism? judge jackson: senator, i am not aware of any such cases in my law firm. i was in a group of lawyers that was often approached to ask, would you file a brief for some group. i'm not aware that any victims of terrorism asked our firm to take a case. sen. cotton: let's talk about the defendants in this case is and how you characterized them. i will remind you that those with the resident, secretary of defense, active duty officers. senator graham said you called them were criminals. you disputed that and senator durbin has denied that as well. i will concede you did not use those exact words, but you did say that they committed acts that constituted war crimes. i'm sorry, i gotta confess, i don't understand the difference
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between saying someone is a war criminal and saying they committed acts that constituted war crimes. can you explain the difference to me? judge jackson: yes, i will. thank you for the opportunity when you file a habeas petition under our law, you can't file it against the united states because of sovereign immunity. the way our law works, you have to file it against individual officers in their official capacity. that's the way in which you are able to file a habeas petition. whoever is the executive at the time becomes the named party in the brief. and a habeas petition is like a complaint in a civil case. it is making allegations to begin the litigation about the person's detention -- sen. cotton: but, judge, official capacity, procedural capacity, all of that is
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gobbledygook. i just don't understand the difference between calling someone a war criminal and saying they committed accept committed war crimes. judge jackson: with respect, senator, they were not sued in their individual capacity, not making allegations about those individuals. in fact, over the course of the case, the names changed. later on the habeas petition became against president obama, because he then became the executive with the purpose of the habeas petition -- sen. cotton: i'm well aware the names changed, probably changed from bob gates to donald rumsfeld as well. they were not the ones overseeing the government when you file the suit and he said they committed acts that constituted war crimes. i understand how you -- i don't understand how you expect this committee to say there is a difference between saying someone is a worker middle and that they committed war crimes. -war criminal and that they
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committed work comes. judge jackson: with respect to the group of people in guantanamo bay, it was an allegation concerning the use of torture. when you make that allegation, you bring it under laws that themselves constitute crimes of war. that is the way in which the law works. if you are writing a habeas petition and you say upon information and belief, mr. khatami was tortured, that allegation is made under a law that says that there was a war crime that occurred as a result of that torture and anyone -- you are making that allegation against the united states, but because you can't sue the united states, the actual petition is named in the name of whoever is leading united states at the time. later in the course of this it
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moved from president bush, donald rumsfeld, to president obama. it's not about the individual. it is about the allegation that upon information and belief he had been tortured in the lead up to his detention. sen. cotton: i don't know, judge, sounds like a debate about how many terrorists can dance on the head of a pin to me. sen. durbin: thank you, senator cotton. i asked consent to enter into the record a letter from nine officials defending judge jackson's guantanamo record, including the attorney general loretta lynch, homeland security secretary jeh johnson, and the head of the united states. senator booker. sen. booker: thank you. judge, after me only five to go. i don't have questions right
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away. i have a number of things i want to say. this has been not a surprise given the history that we all know not a surprise, but perhaps a little bit of a disappointment, some of the things that have been said in this hearing. the way you have dealt with some of these things, that is what you are a judge and i am a politician. you have sat with grit and grace and have shown us just extraordinary demeanor, during the time when people were saying things to you that were out of the norm. i had to ask some of my more senior colleagues about what i think is a dangerous precedent. 1000 pieces you have been over -- judge jackson: something like that. sen. booker: something like that. and what i understand at the--is that these cases take days, weeks, sometimes months. judge jackson: to sign
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in a case? yes. sen. booker: my colleague senator hawley has been doing this all to the lead up, saying things, tweeting things, that a lot of us when i was just try to get advice, this is what the new standard is going to be, that any judge who comes before us who has chosen outside the sentencing guidelines, below the sentencing guidelines, we are crating the environment where i can make myself the hero people web and victims of some horrible crime and put whatever judge i want on the defensive by trying to drag out the obits when they have no context to the case--drag out little bits when they have no context to the case, none of the facts. they are seeking to exploit the complexities of a criminal justice system. the reason why we have a third branch of government i feel bad
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there was a judge mentioned by name in this hearing from senator hawley's state. what is that judge going to think next time they have a complicated sexual abuse case that comes before them and they know that they could possibly be called out if they go below the sentencing guidelines, which i showed you yesterday in my lack of chart -- you remember i was uncharted -- but you are deciding completely in the norm. 70-plus percent in many states people are doing just like you did. but i am a democratic senator. i have never quoted from this very will respective conservative periodical. this is the "national review," very well-respected, not necessarily something i agree with all the time. but here is the "national review," "senator hawley's disingenuous attack against judge jackson's record on child pornography." read the first paragraph, "i
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would oppose judge ketanji brown jackson because of her judicial philosophy for the reasons i outlined last week. i addressed that in a separate post. for now i want to discuss the claim by senator josh hawley that judge jackson is appallingly soft on child pornography offenders." here is the kicker, "the allegations are malicious to the point of demagoguery." i got letters from leaders of victims' rights groups, survivors of assault, all saying the same thing as "national review." feel proud about yourself, you brought together right and left in this calling out of people
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that will sit up here and tried to pull out from cases and try to put themselves in a position where they are the defenders of our children, to a person who has children, to a person whose family goes out in the streets and defends children. i mean, this is a new low, and what's especially surprising is it didn't happen last year. you were put on a court that i'm told is considered the second most powerful court in our land, and you were passed with bipartisan support. nobody brought it up then. did they not do their homework? were they lax? do they make a mistake? i wonder if when they ask you the question, "do you regret," do they regret that?
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it is an allegation that is meritless to the point of demagoguery. you are -- i don't mean this in any way -- if somebody called me average, i would be upset -- but you are a mainstream judge. your sentencing, i looked in the data, falls in the mainstream on everything from child sexual assault to all the other issues people are trying to bring up. some of these things are being cast at you that you called george w. bush a war criminal. come on, that is painful, especially since you said these are names you have to put in, and we are talking about a real issue that goes to the core of our values, torture. barack obama was named once bush left office. there is an absurdity to this that is almost comical, if it was not so dangerous. because the next time a judge comes before us on the right or the left that has a body of work like you do, gosh, a performance
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artist on our side could pull out one of the cases where they were below the sentencing guidelines -- say it was on something as horrific as rape that we all agree is horrific and they could say how do they put somebody who is soft on crime? are you soft on crime? god bless america. i've got this text -- i had become friends with folks from the fop with my negotiations, and this is my favorite text. kennedy might get a kick out of this. things that are out accountable -- uncountable, stars in the sky, grains on the beach, and the number of times democrats mentioned that the fop endorsed judge jackson in the hearing. [laughter] let me mention it again. just in case people who say you are rough on crime folks really want to make that stick, you
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were endorsed by the largest organization of rank-and-file police officers. you were endorsed by the bosses, the largest organization of chiefs of police. and you were endorsed by noble, and i hope people find out about that organization. you have a brother, not just an officer, went to serve after 9/11. your family is not soft on terrorism. he went out there to capture and kill and defend this country from terrorists. i actually sit here and find this astonishing, but then i do my homework. i love that my colleague brought up constance baker motley. you know when she was getting to the floor of the senate, they were trying to stop her with outrageous accusations. you know what the accusation was back then? she was a communist. trying to throw anything that
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might stick. this is what you and i know -- any one of us senators can yell as loud as we want that venus can't return to serve, we can yell as loud as we want that beyonce can't sing, we can yell as loud as we want that astronaut may jamison did not go that high. you know what? they've got nothing to prove. as it says in the bible, let the work i've done speak for me. well, you have spoken. you started speaking as a little girl, watching that man right there try to raise a family and study law, while your mama supported everybody. you spoke in high school when you started distinguishing yourself. you know what you said when they told you you couldn't to harvard? "watch me." i went to law school. i didn't serve on the law
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review, you did. i didn't click at every level of the federal court. you clerked for supreme court justice widely respected on both sides, which shaped you. you went there and he to private practice and you know what you found? this is what you told me, that you had those tough choices that working moms have to make, the demands of a private law firm, raising your kids. it didn't add up. you went before the senate three times in a bipartisan manner -- god bless america, we don't do that much bipartisan around here. you became a public defender because you wanted to understand all aspects of the law. who does that? we live in a society that is very materialistic sometimes, very consumeristic. do people become public defenders for the money? no. your family and you speak to service, service, service.
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and i'm telling you right now, i'm not letting anybody in the senate steal my joy. i told you this at the beginning. i am embarrassed. it happened earlier today. i just look at you and i start getting full of emotion. i'm jogging this morning, and i met the end--i am at the end of the block either font, because i put my music on loudly when i'm jogging to block out the noise of the heart attack i'm having. this woman comes up on me and tackles me, an african-american woman. the look on her eyes, she just wanted to touch me, i think because i'm sitting so close to you, and tell me what it meant to her to watch you sitting where you are sitting. and you did not get there because of some left-wing agenda.
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you didn't get here because of some dark money groups. you got here how every black woman in america has gotten anywhere has done, by being like ginger rogers said, "i did everything fred astaire did but backwards in heels." and so i am just sitting here saying nobody is going to make me angry, especially not people that are called in a conservative magazine demagogue ish for what they are bringing up because it doesn't hold water. i know you and i, we appreciate something we get that a lot of my colleagues don't. i know tim scott does. when i came to this place, i was the fourth black person ever popularly elected to the united states senate. i still remember a lot of mixed
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people, white folks, black folks work here, but at night when people come into clean this place, the percentage of minorities shifts a lot. first week i'm here, and somebody who has been here for decades doing the urgent work of the senate, the unglamorous work that goes on no matter who the office is, tells me, "i'm so happy you are here,'but he can't get the words out, and this man, my elder, starts crying. i just hugged him, and he kept telling me, "it's so good to see you here. thank you, thank you, thank you." i love my brother tim scott. we could write a dissertation on our disagreements. he gave the best speech on race, i wish i could've given the speech, but talking to the challenges and indignities still faced. and you are here. i was in the white house with my democratic colleagues. again, i mean my jo--i am in my
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joy, i can't help it, and the president is asking who should we nominate, and i look at kamala and we have a knowing glance, which we have had for years went she and i used to sit on this committee at times. i tried to get out to the president what it means, what it means. and i want to tell you, when i look at you, this is why i get emotional. i'm sorry, you are a person that is so much more than your race and gender. you are a christian, you are a mom, you are an intellect, you love books. look for me, i'm sorry--but for me, i'm sorry, it's hard for me to look at you and not see my mom, not seen my cousins, one of whom had to sit behind you. she had to have your back. i see my ancestors and yours.
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nobody is going to steal the joy of that woman in the street or the calls i'm getting or the texts. nobody is going to steal that joy. you have earned this spot. you are worthy. you are a great american. your hero is constance baker motley. mine, she sat on my desk for the offices i have held. she is my icon of america. her name is harriet tubman. there is a love in this country that is extraordinary. you admitted it about your parents. they loved this nation, even though there were laws preventing them from getting together. there were laws in this country that would've prevented you from marrying your husband. wasn't that long ago, it was last generation. but they didn't stop loving this country, even though this country didn't love them back.
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what were the words of your heroes and mine? what did constance baker motley do? the country that she saw insulted -- when she came out of law school, law firms wouldn't hire her because she was a woman. did she become bitter? no, she used the constitution of this nation, she loved it so much, she wanted america to be america. as langston hughes wrote, let america be america again, the land where everyone must be free. america never was america to meet, but i swear this oath, america will be. that is the story of how you got to this task, you and i and everyone here, generations of folks came here and said,
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america, i'm irish, no dogs need apply, but i'm going to show this country that i can be for here, i can make this country love me as much as i love it. chinese-americans forced into slave labor, building a railroad, connecting our country , saw the ugliest of america but were going to build their home here. america, you may not love me yet. i will make this nation live up to its promise of hope. lgbtq americans from stonewall to seneca, hidden figures who did not even get there play until a hollywood movie talk about them and how critical they were for us to defy gravity. all of these people loved america. you faced insults here that were shocking to me. well, actually not shocking. but you are here because of that kind of love.
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and nobody is taking this away from you. so you've got five more folks to go through. five more of us. and then you can sit back and let us have all the debates. i'm going to tell you, it is going to be a well-charted senate floor, because it is not going to stop. they are going to accuse you of this and that. in honor of the person who shares your birthday, you might be called a communist. but don't worry, my sister. don't worry. god has gotten you. how do i know that? because you are here. and i know what it has taken for you to sit in that seat. harriet tubman is one of my heroes because the more i read about this person, she was viciously beaten.
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cracked skull. she faced starvation, chased by dogs. and when she got to freedom, what did she do? did you rest?- -- did she rest? no, she went back, again and again and again. the sky was full of stars, but she found the one that was a harbinger full of hope, for better days not just for her and those people who were enslaved, but a harbinger of hope for this country. she never gave up on america. led troops in the civil war. she was involved in the suffrage movement. and as i came back from my run, after being near-assaulted by someone on the street, i thought about her and how she looked up, she kept looking up. no matter what they did to her,
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she never stopped looking up. and that star, it was a harbinger of hope. today you are my star. you are my harbinger of hope. this country gets better and better and better. when that final vote happens, and you ascend onto the highest court in the land, i'm going to rejoice, and i'm going to tell you right now, the greatest country in the world, the united states of america, will be better because of you. thank you. sen. durbin: thank you, senator booker. we are going to take a 10-minute break and come back and have the last five senators ask their questions.
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>> senators now taking a 10-minute break in the confirmation hearing for president biden's supreme court nominee, catania brown jackson. -- ketanji brown jackson.
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five senators permitting to question judge jackson. up next, senator john kennedy, followed by senator alex padilla . we think the plan is to finish by 7:00. we will show you some short clips from the hearing. earlier today, senator john cornyn asked judge questions questions about the viability of a fetus. she responds, "i am not a biologist." here is a look. sen. cornyn: justice brennan at a later point in his career on the supreme court admitted that the viability line was an arbitrary line. do you agree with him? judge jackson: senator, i am not able to comment on the viability. there is a case pending in the
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supreme court right now concerning the issues -- sen. cornyn: i'm asking you about previous decisions, but i hear you. no one suggests that a 20-week-old fetus can live independently outside the mother's womb, do they? judge jackson: i don't know. sen. cornyn: i mean, the child would need to be fed and sheltered in all the other essentials to sustain human life. so there is no suggestion that after 20 weeks that a child can live independently, correct? judge jackson: senator, i am not a biologist, i haven't studied this. i don't know. sen. cornyn: you don't know whether an unborn child can live outside the womb at 20 weeks gestation? judge jackson: what i know is that the supreme court has tests and standards that it has applied when it evaluates
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regulation of the right of a woman to terminate their pregnancy. they have -- the court has announced that there is a right to terminate up to the point of viability subject to the framework in roe and casey, and there is a pending case right now that is addressing these issues. >> today is the last day that judge jackson will face questions in this forum. tomorrow the senate judiciary committee will hear from representatives of the american bar association and other outside witnesses, among them captain frederick thomas, the national president of the national organization of law-enforcement exec gives, and alexander sereno from operation underground railroad. judge jackson responded to a question from senator ossoff about limiting executive powers
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and a 29 decision in which she wrote presidents are not kings. -- in a 2019 decision in which she wrote, "presidents are not kings." sen. ossoff: you in an opinion that has been widely cited made the observation that presidents are not kings. what does that mean, and what are the most important bulwarks in our constitutional system against the abuse of executive power, against tyranny? judge jackson: thank you, senator. our constitutional scheme, the design of our government, is erected to prevent tyranny. the framers decided after experiencing monarchy, tyranny, and the like, that they were going to create a government that would split the powers of a monarch into several different ways.
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one was a federalism. it was vertical. they would split the powers between the federal government and state. another was to prevent the federal government from itself becoming too powerful, from having all of the authority, from having legislative, executive, and judicial authority concentrated in one place. so the constitution in its design puts the legislative authority in article one and gives it to the congress. the power to make laws. it puts the executive authority in article ii and gives it to the president, the power to execute the laws. and it puts the judicial authority, the power to interpret the laws, in article iii, and gives it to the court. the separation of powers is crucial to liberty. it is what our country is
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founded on, and its importance, as consistent with my judicial methodology, for each branch to operate within their own sphere. that means for me that judges can't make law. judges shouldn't be policymakers. that is a part of our constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty. >> a live picture once again from where this hearing has been taking place for the past couple of days. it's expected the senate judiciary committee is to be in session today until about 7:00, when they will wrap up for the day. the senate is in session and there are likely to be votes around that time. reuters reporting that supreme court nominee ketanji brown jackson said on wednesday that if confirmed to the lifetime job, she would reduce herself
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from an upcoming case that challenges the race conscious admissions policy used at harvard university. "if you are confirmed, do you intend to recuse from this lawsuit?" that is a question from senator ted cruz, who attended harvard law school the same time as the nominee. "that is my plan, senator," she responded.
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and we are nearing the tail end of what could be the final break in the confirmation hearing for supreme nominee judge ketanji brown jackson. 5 senators made to ask questions.
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--remained to ask questions. up next we expect to hear from senator john kennedy and senator alex padilla.
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sen. kennedy: judge, i want to continue where we left off yesterday. and try to get to the essence of this tension between judicial power and judicial restraint. you have testified and stop me if i get this wrong, the judges should stay in their line -- lane. one of your definitions of
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staying in your lane is that judges don't make policy. am i right? hon. judge jackson: yes, that is correct. sen. kennedy: then how do you explain or help me understand the following. we have a judicially created doctrine with no textual basis either in the constitution or a statute called substantive due process. through substantive due process, our federal courts let's just narrow it down the united states supreme court has given itself the authority to read into the constitution unenumerated
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unmentioned rights. not read the constitution and say there is freedom of speech. but these are unmentioned unenumerated. isn't that making policy? hon. judge jackson: the supreme court interprets revisions of the constitution and there are provisions of the constitution that require interpretation because they don't just on the text in every circumstance answer the question before the court. due process, what does that mean? the supreme court has the words
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due process do appear in the text of the constitution and the question is, what is covered by that provision? sen. kennedy: but when they do it, aren't they making policy? hon. judge jackson: senator, the role of the judiciary is to interpret the law to the extent that somebody argued to the court that there has been a violation of the due process clause of the constitution, it is within the role of the court to determine what that means, whether the person is correct that what happened with respect to their case violated the due
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process clause. there is an interpretive function that is a part of the judicial function. sen. kennedy: let me see if i can put a finer point on this. it is not the right so much. it is how the right is created. so i asked you yesterday whether you think unenumerated unmentioned rights should be decided by the people through their elective -- elected representatives versus the judiciary. let's take two rights, the right to assisted suicide, the right of a chance gender woman -- transgender woman to produce a pain in women's sports. -- participate in women's sports.
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i can see how, i'm not predicting that it will, but i can see have the court either through the due process clause or the ninth amendment could find those rights in the constitution. as we talked about yesterday, the supreme court it looks to me like they have adopted the policy of there is no tent -- test for a fundamental right. there are several tests. in a burger felt, justice kennedy cited with approval, justice harlan's dissent in -- which says there is no test, we go case-by-case. i know there are tests, i will
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get the language here somewhere i've got it. implicit in the concept of order delivery -- ordered liberty and you talked about that. here's one that justice kennedy talked about. he said inherent in the concept of individual autonomy. i can see how the court with five votes wanted to say even though the right to assisted suicide or the right of a transgender woman to participate in women's sports, i can see how somebody you are smart, you could write an opinion and say that's inherent in the concept of individual autonomy. it's not the right, it's who supposed to decide. that's where the judicial restraint comes in. don't you think that the values
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of ordinary americans and their ability to decide these issues are just as good as those of five members of the supreme court? hon. judge jackson: thank you, senator. there are policy determinations that are made by vote and absolutely in the democratic process people get to decide things. the question and the difficulty is when you have a constitutional scheme of government and a constitution that does protect certain rights and it does so in a circumstance in which those rights whatever they are enumerated or not might
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be things that the people have disagreed with. that's the tension. that although we have democracy as we do and people vote and should absolutely, we also have a constitution that protects certain rights against the majority will about those things. sen. kennedy: the rub is, these are unenumerated rights. they are read into the constitution. hon. judge jackson: yes. sen. kennedy: what troubles me, i'm not saying i disagree with the rights that the supreme court has created. i don't think we talk honestly enough about how those rights should be adjudicated. i'm not asking you to comment, i think you already have. when president biden announced your appointment or at least
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shortly before, he talked about i want a judge that is going to read new rights into the constitution through the ninth amendment. i'm sure some americans are saying that's a good, but you have a lot of americans saying wait a minute, the supreme court isn't elected. a couple of years ago, chief of staff ron klain wrote an opinion piece and he said he hopes and i'm going to quote that i hope the supreme court will intervene whenever the nation's conscience and laws need a jolt in a progressive direction. that's policymaking. do you approve that statement? hon. judge jackson: it's do i
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agree with that's policymaking? sen. kennedy: with what the chief said. hon. judge jackson: that's a political statement made by someone in the executive branch. sen. kennedy: i'm not going to push it. i get it. it's not a good time to make the chief of staff had. -- mad. i hope you will keep this in mind judge, if you are confirmed. this is where judicial strength is all about -- judicial restraint is all about. america is a big wide open diverse sometimes dysfunctional but sometimes imperfect but basically good country. we have different values. that's part of our diversity. i think our country works because of our system of federalism.
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the values in louisiana may be different from the values in maine. if you don't like what's going on, you can move. as our federal government has gotten bigger and bigger, what has developed at least here in washington is this managerial elite. when i say that, i mean the entrenched politicians i guess i shouldn't say entrenched because that's pejorative but we do have a lot that have been here a long time. members of the media are part of the managerial elite. part of the administered estate. academics. a lot of corporate phonies that are part of. many people think they are smarter and more virtuous than
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the american people. that they ought to set forth how people should live their lives. people should shut up and do what they're told and if they behave, maybe managerial elite will let them meet occasionally. i think that's part of the vision of our country. i think to some extent, the supreme court i don't want to say contributes to it, but it needs to be mindful. let me give you another example. this case bothers me, i way to explain it. -- i want you to explain it. i want to hear you explain it. it is make the road new york versus buckley clint. here's the way i read it.
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congress we in a rare moment of consensus gave dhs the soul and unreviewable right to determine when illegal immigrants should be removed on an expedited basis. the department of homeland security taking the statute decided to use it soul and unreviewable authority to state that we're going to have expedited removal of all illegal immigrants who have been less than two years. you said no. you issued universal injunction. i don't understand why.
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you talked about judicial activism. i don't see how much clearer congress could have been. the d.c. circuit judge you, but i want to hear your reasons for issuing that nationwide injunction. hon. judge jackson: thank you for allowing me to address that decision in that case. the statute at issue gave discretion to dhs to determine the amount of time that a person needed to have been in the country between zero and 24 months in order to be subject to expedited removal as opposed to the normal removal process in the immigration system. the statute said that dhs had sole discretion meaning no other
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agency was to have the authority to make that determination. the statute said that dhs determination in that regard was unreviewable meaning it was final. this is how i'm interpreting. meaning that once the decision was made, it was over. nobody else gets to review, the court doesn't get to say no, you are wrong if you pick 12 months for example or 16 months or 24 months as they did in this case. the statute did not speak to whether congress intended with that grant of very broad discretion to exclude another statute that congress had passed the directs agencies when congress gives them discretion, the other statute directs
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agencies as to how they go about making decisions that congress has given them the authority to make. the apa is procedural statute. it says to agencies when congress gives you discretion to make a determination, you have to do so in a way that is not arbitrary and capricious, you have to use your expertise in certain kinds of decisions you have to use notice and comment in order to get information. it is procedural. the claim that was being made in this case as i read it and understood it was not that the agency couldn't pick 24 months. because obviously, congress has said you can pick between zero and 24 months. the claim that was being made is that the agency picked 24 months arbitrarily. in violation of congress's direction about how you go about.
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the claim was an apa violation. no one was saying that the statute was violated in the sense that the agency did something it couldn't have done per the statute picking 24 months. they state the apa was violated because -- as the claimed they were making -- the apa made no analysis, the agency did no expertise, it did not evaluate if you've been here six months these are the kinds of ties that you have, if you've been here 18 months -- the agency didn't do anything. essentially according to the claimants, the agency heard the president say we are now going to do 24 months when all of the other administrations -- sen. kennedy: what i hear you saying is they didn't follow the apa in your opinion which you
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have to do even though congress passed the statute. hon. judge jackson: no, because of two things. the apa is presumptively applicable to every situation in which an agency is exercising its discretion. that's the first thing. it's always there as a background rule. d.c. circuit judge said congress has to be preclear when it decides to exclude the apa when it saying i'm giving you discretion but you can do this arbitrarily however you want. in other places in the immigration statute that sets up expedited removal, congress says we are excluding the apa. we are telling you with respect to this kind of discretion, the apa doesn't apply. so here i had these two statutes and there are canons of interpretation that say you should try to give a fact to all of the will of congress.
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she tried to read statutes so they go together in a way if you have these two directives and there's also d.c. circuit judge lot. sen. kennedy: i have to stop you. i've got it. hon. judge jackson: let me just say i agree reversed me. they disagreed with my interpretation and that's the way our system works. sen. kennedy: let me ask this last question. this is a question based on your experience. can we agree that if cocaine is cocaine, that crack cocaine is equal in its danger to powdered cocaine? are you with me? hon. judge jackson: i think so. sen. kennedy: one is not more dangerous than the other.
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if that's true, then the sentencing rules should be the same? hon. judge jackson: that's a policy matter for congress. you could make them different if you want to. sen. kennedy: based on your experience. his crack cocaine more dangerous than powder or less or the same? hon. judge jackson: that's a policy determination. that's what policymakers do. they look at the evidence related to these things and decide what is more dangerous. sen. kennedy: what have you seen? hon. judge jackson: i have seen evidence through the sentencing commission that the two compositions are chemically similar. so similar as to be indistinguishable. the commission for very many years as a policymaking body indicated its view that they should be equivalent and lobbied
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congress concerning that and congress made a determination about in the policy realm making it 18 to one instead of 100 to one which is what it had previously been. sen. durbin: now, senator padilla. sen. padilla: before i begin, i know you are being mindful of the clock. i have two initial more substantive questions than more brief questions that are very important. i will get right to it. judge jackson, i am so glad that you take such pride in sharing your family's story. as you should. as i take pride in sharing mine. my colleagues have heard it, but i never get tired of reminding people that i'm the proud son of immigrants. my parents came to the united states from mexico decades ago.
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through their hard work and determination, they raised three of us. my sister, my brother and i all attended graduated from college and we found successful careers in public service. it's a story that is shared by hard-working immigrant families across the country. over the course of generations. families who work diligently each day to create a better life and contribute to the country. whether it is as farmworkers, short order cooks, celebrity chefs, software engineers or ceos, custodians, teachers, principals, whether they are documented or undocumented. people who migrate to this country seeking asylum seeking refuge or shot at the american dream all deserve to be treated with dignity and humanity.
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unfortunately, our laws and our courts don't always do that. beyond our often cruel and counterproductive choices that we have made over the years when it comes to immigration policy, the language that we use to speak about immigrants can often have dehumanizing effects. for example, the immigration and nationality act, it is replete with references to aliens. court opinions written by federal judges across the country can be found referring to undocumented persons as illegal aliens. i know nasa has put a man on the moon and there are billionaires increasingly exploring space. let's be clear, no person is alien. no human being can be illegal.
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with that context, i read your immigration-related decisions on the district with great interest. beyond the substance of your opinions, what stood out to me is that you seem to have tried to avoid making the same choice as many of your predecessors and colleagues. when not quoting statutes or precedent, your opinions appear not to refer to immigrants as alien or illegal. instead, you use terms such as undocumented and noncitizen. i imagine, i hope that was a conscious choice. the language we use and the language our courts used to describe people whether immigrants, the formerly
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incarcerated, individuals who identify as lgbtq or other historically marginalized people matters a great deal. our language matters. eggs -- it is exactly that reason why congress moved to use during -- to remove derogatory terms from the u.s. code. do you agree that the language we use to describe one another in the language used by the bench matters? hon. judge jackson: thank you, senator. as i mentioned earlier in this hearing, judges are the only
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branch of government who are required to write our opinions. to explain our decisions. i have long believed in that capacity that are clarity and language matters. we are explaining the lotta people. -- the law to people. people read and understand the laws of this country through the words of judges, so they do matter. sen. padilla: now i want to discuss an issue of law and tech knowledge he. it was raised by senator allsop earlier today. -- senator ossoff earlier today. any day that an m.i.t. graduate
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gets to question a harvard lawyer is a good date. the supreme court only gets to hear a small fraction of federal appeals. that means the cases that get to the supreme court are either new questions of law or very difficult questions of law. the intersection of law and technology is one where many cases are new and difficult. innovation has constantly disrupted our culture and our norms. for the most part with good intentions, but benefits have not always been the result of innovation. innovation of challenged us to respond with new means of safeguarding basic rights whether it's in the context of privacy, security, competition, employment just to name a few. i appreciate that the speed of
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innovation will always challenge our ability to keep the law up-to-date with new technologies and their impact. i have grappled with this question as a city councilmember, state senator, secretary of state, and as a united states senator. clearly, it is also a challenge for the courts which often have to decide cases during the time between technological progress and the enactment of new laws that account for that progress. new technology alone has given rise to a number of fundamental questions of law. including how the fourth amendment applies to new context that no founder could have ever contemplated.
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hon. judge jackson: whether it is something like copyright, the kind of case or a patent case or the fourth amendment search and seizure. new technologies do intersect
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with what the law says in the constitution and in statutes. as far as statutes are concerned, it is much easier for judges who are doing their duties to interpret the law that congress makes updates to the changes -- statutes to track the modern innovations. what happens with constitutional interpretation is similar to what i scribed earlier about cases in which the court analogize his back -- analogize his back to the time of the founding principles for things like search and seizure. what qualified as a search that violated the constitution when those words were written and determines whether that same kind of violation is at issue with respect to the technology today.
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the court has done that with respect to searches regarding cell phones, police access to gps data, tracking technology that is put on vehicles. because these disputes do come up. i will take this opportunity to encourage congress to help us by ensuring that new technologies are addressed in statutes that we interpret. sen. padilla: you are right, judges and congress are never done doing homework. on monday, which feels like so long ago, i suggested in my opening statement that by the end of these hearings, america would know just how qualified
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you are to serve on the supreme court. over the course of this hearing, i think the american people have seen that. and have gotten to know you as a person. they have heard families journey. everything that your nomination represents. i also said on monday that your qualifications bear repeating over and over again. judge with your help, i would like to remind the committee and the american people once again some of your incredible credentials. yes or no, after law school, did you serve as a law clerk for a district court judge, a court of appeals judge, and a supreme court justice? hon. judge jackson: i did, senator. sen. padilla: did you practice law for more than 10 years before becoming a judge? hon. judge jackson: yes.
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sen. padilla: did that include time in private practice and time is a federal public defender? hon. judge jackson: it did. sen. padilla: how many years have you served as a federal district court judge? hon. judge jackson: eight and a half years. and a circuit since last june. sen. padilla: as a district court judge, how many opinions did you write? hon. judge jackson: as a district court judge, i believe i wrote somewhere in the neighborhood of 560. sen. padilla: with a very low rate of having been reversed. i can go on and on. don't worry, i won't. judge jackson, for two days here's what i have seen. i have seen a number of my colleagues trying to engage with you in good faith on questions about the law.
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you have answered them fully, fairly, and thoughtfully in every instance. you have shown yourself to have the keen intellect and legal acumen to serve on the supreme court. you have also set here and politely listened to some of my colleagues have attempted to disparage her judgment and character based on allegations that even as senator burke -- senator booker pointed out commentators have called meritless to the point of demagoguery. to that, you have shown that you have the temperament to serve on the supreme court. this confirmation hearing has been a reminder and in some ways a new exhibit that for people of color, particularly those who have the audacity to try to be
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the first often have to work twice as hard to get half the respect. judge jackson, i offer that with your talent and qualifications on full display, if my colleagues truly believe in maintaining the legitimacy of the supreme court, if they really care about americans faith in the judicial system, they will see that even if they may disagree with you on a particular area of the law, that you are exactly the type of judge that should serve on the supreme court. you are exactly the type of judge that should receive bipartisan support not just from this committee, but from the full senate. if any senator doesn't, then i hope they will think long and hard about what it says to the country about the politicization
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of the supreme court that if someone is as eminently qualified as judge jackson in all of the ways we have been discussing cannot receive bipartisan support. a couple of minutes left. i would like to ask you one last question. last friday, in my preparation for these hearings, i took the opportunity to spend some time with a group of students at south san francisco high school. i went there to speak with them about this historic supreme court nomination. and to speak with them about you. we had a great conversation about how the courts decisions affect the everyday lives of americans. and about the past and the future of the supreme court. as i was speaking with the
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students, i couldn't help but be reminded of my own high school experience. when one of my teachers discouraged me from applying to m.i.t. because they didn't want me to be disappointed. i turned that discouragement into motivation. judge jackson, i know that you have also been doubted on your way to the seat that you find yourself in today. even over the last three days of this hearing, your experience and qualifications have been called into question by some. despite your clear lengthy record of talent, achievement, and accomplishment. i want to end my time today by asking you this question. on behalf of the young people i
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visited with last friday in south san francisco and for the many others across the country who are watching this confirmation hearing today, what would you say to all of those young americans, the most diverse generation in our nations history? what would you say to them who made out that they can one day achieve the same great heights that you have? hon. judge jackson: thank you, senator. that was very moving. i appreciate the opportunity to speak to young people. i appreciate it very much. i do it a lot for the reasons that you have articulated. i hope to inspire people to try
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to follow this path because i love this country. because i love the law. because i think it is important that we all invest in our future . the young people are the future, so i want them to know that they can do and to anything. -- they can do and be anything. i will tell them what an anonymous person said to me once. i was walking through harvard yard my freshman year. as i mentioned, i went to public school and i didn't know
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anything about harvard until my debate coach took me there to enter a competition and i thought this is a great university. it was one of the only ones i had seen and i said maybe i will apply when i'm a senior. i get there and whoa, so different. i am from miami, florida. boston is very cold. it was rough. it was different from anything i had known. there were lots of students there who were prep school kids like my husband [laughter] who knew all about harvard and that was not me. i think the first semester, i was really homesick. i was really questioning do i
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belong here? can i make it in this environment? i was walking through the yard in the evening and a black woman i did not know was passing me on the sidewalk. she looked at me and i guess she knew how i was feeling. she leaned over as we crossed and said persevere. i would tell them to persevere. sen. padilla: thank you, judge jackson. you don't have to hope. i will tell you right now, you do inspire. you are an inspiration and i will associate myself with the closing words of my colleague
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and my brother senator booker that i also refused to let anyone steal my joy. thank you, mr. chair. sen. durbin: center tell us? -- telus? sen. tillis: senator booker in his closing comments, i could only think and they were very powerful that if you like his, how much you're going to like mine on the subject of intellectual property. [laughter] before i do that, you have been spending a lot of time here. do you have much experience in matters of copyright and patent protection? hon. judge jackson: i mentioned earlier that i did a trademark case. sen. tillis: i looked up the menu. it looks like a good menu. hon. judge jackson: it's a good restaurant, they had a lot of
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evidence to that effect. i haven't done any restaurant trademark work, but when i came to judiciary, the former chair and the current chair indulged us in reinstitution the intellectual property subcommittee. i love that committee because you have to work hard to be partisan and it. i work very well with other senators and have done well with senator leigh who -- lahey and others. one of the things that makes our country great is the founding fathers got it right on understanding the value of intellectual property and how it could catapult us into the innovation powerhouse that we are today. let me ask you a few questions about it, but i'm not going to dig too deeply. want to go back to maybe getting
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a suggestion from you. i don't even pretend to be an attorney, but i am about 30 years into technology. i spent two years in boston at wayne laboratories and there was no coincidence having been born and raised in florida that i moved september 1 because i couldn't bear another winner. -- winter. i was working on internet protocol for anyone knew what that was back in the early 90's. i do think that we should go away and understand the threat. if you have seen the multiple of illicit activities. for the purposes of this discussion, child pornography now imagine what it's went to be like five years from now. i was talking from -- with
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someone from the hallway. they are taking a playbook from drug kingpins. the creators and the aggregators and the distributors are using technology i think in some cases to reach out to people and incense them -- incent them to go to their websites, to download things with a single click. i think we have to examine these criminal enterprises and put law enforcement resources into cutting the heads off of these people figuratively speaking. one of the ways you do that is to provide i think more ways to go about, prosecute, more technology that we need to cut down the supply but we still have to deal with the demand and that's another area where these
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criminal organizations and others are taking advantage. today, if you think about technology 10 years ago, it was a little odd to see a child, i have two granddaughters. one is four years old and the other is two years old. they are both technologically savvy. i love talking to them on the phone, but even the two-year-old knows how to deal with the filters to make me look like i have rabbit ears. they are technologically savvy. there's a real danger that these horrible people and i generally believe you think there are horrible people who are going to infect and destroy a lot of lives. i don't know is it with the sentencing commission -- incidentally, this is a toxic subject in congress. if you start talking about
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better understanding this, most people are going to run away from it. we do it at the expense of destroying a lot of victims lives. unless you have ideas off the top of your head, i'm trying to get an idea of how we can make other people understand. maybe we can say the penalties are the floor to begin the discussion to eliminate people from making this so toxic that we don't better understand it and get ahead of it. how can we even start having an intelligent discussion and a productive discussion where congress is clearly going to need to act to do what i think everyone in this room wants to do is erase it from the planet of the earth or at least make a lot of progress? honestly, it is exponentially grown and there are exponentially more victims today than there were 10 years ago. any ideas? hon. judge jackson: i actually
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don't. i haven't been working on or looking at or dealing with sentencing policy for a long time now. in my work as a judge, we're looking at individual cases not systems or crime organizations and policies related to them. sen. tillis: i think it's something we should take seriously after we cool temperatures. people have legitimate concerns about some of the rulings that we have to clear up some of the complexity and recognize that congress is part of the solution. now on the weighty subject of intellectual property, are you familiar with copyright preemption under section 3018? hon. judge jackson: no, i have not worked with that. sen. tillis: i wouldn't have expected you to. i won't get into patent questions. we have a lot of work that ultimately is going to require
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us getting rid of shambles of jurisprudence we have. it's a complicated field, we have a lot of mixed signals. my committee is working on that. it may be something that ultimately works its way up to you all if you are confirmed. i'm not going to take a lot of time particularly because the hour is late and i intend to yield back some of my time. i felt like this morning when i went through some of my comments, i mentioned law-enforcement. i talked about a couple of your decisions that gave me pause, mainly because law enforcement is under attack. it needs to be held to a high standard. i've been involved in this for nearly 22 years making sure that when i was a town councilman that we did something audacious and spent a lot of money in getting our law enforcement
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officers in a small town fully certified make sure they understand how to de-escalate, get engaged in the community and reduce crime. and it worked. now, there are some people who think it's fashionable to attack the police. to defund the police. there's increasing data this suggests the communities that are loudest about that or becoming the least safe. you mentioned several times i think yesterday and more today about your methodology. the united states versus jenkins , is that roughly fresh in your mind? a criminal pleaded guilty to assaulting a law officer. it was his third conviction. the government recommended 30 months. the defense recommended 21
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months. you decided to go with an 18 month sentence. hon. judge jackson: i don't recall, i would want to look at the records and see the probation office's as well. sen. tillis: that again is something i wouldn't have access to so i'm trying to understand the mitigating circumstances. unless you immediately recall, i'm not going to ask you to go into details. the other is united states versus weeks. a similar situation. 24 month request from the government for the conviction on assaulting an officer and you gave them 12 months. does that ring a bell? hon. judge jackson: weeks had a number of different appearances and there were different aspects to his case, but i would have to look at the whole file to recall. sen. tillis: i feel like again
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because i know that you have rendered some 100 sentences over time, i wouldn't expect you, but it is an area and we will submit it as a question for the record so maybe you can refresh your memory and try to get back on that. it's something that i think we need to place a priority on. we have so many law enforcement agencies across the country now. that are having a hard time recruiting people and retaining people. a lot of people are retiring. not every police officer is an angel. somebody in my office was talking about her brother, she had a lot of confidence. she was here to talk to me about police reforms and i believe that the vast majority of police officers like your brother and your family members were good people.
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part of what we have to do is make sure that when we have these assaults that are increasing that we have just punishment because we need to do that for the protection not only of the law enforcement officers but the communities they serve. i'm going to yield back time because i know we have two other people. i thought you've done a great job over the last two days. i tried to be here, i had an emergency and had to leave, but i've tried to be here. i thought that you presented yourself well and there's a lot of pressure. that demonstrates certain temperament or poise. i can't imagine what's going on inside your head. at least overtly, you have done very well and you should be proud of that. it's not easy here to be comfortable. there's 22 of us and it's not
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like you can really come at us. you have one arm tied behind your back and i'm sure there's a number of things you would like tonumber of things you like to y but time did not allow. i want to commend you, your family, your daughter, who has been glowing every time you have talked and i appreciate your service. thank you. judge jackson: thank you senator. sen. ossoff: we have come full circle to the end. likewise, i do not intend to use all of my time. i want to echo the sentiments expressed by senator tillis. you have conducted these hearings with extraordinary poise, strength, grace under pressure.
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you have had a lot of poison thrown at you and you have responded with substance and truth. it has shown through not just in this room, but across the country and around the world. i have two substantive questions regarding the first amendment. one question, as i noted i wanted to address regarding war powers, and i will yield to the remainder of my time to the chair. we discussed earlier this morning, judge, the first amendment with respect to speech , expression and assembly. i briefly want to touch on the free exercise of religion.
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my great grandparents came to this country fleeing anti-semi'tis him -- anti-semitism in eastern europe. many first american stories involved flight from persecution. gleefully -- briefly, i would ask you to touch upon the constitutional roots and significance in our government of the first amendment and the free exercise of religion. judge jackson: as you mentioned, free exercise of religion and the establishment clause which prevents the government from preferring religion over another , is foundational. it is the principle that many people originally came to this
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country when it was founded in order to support. people who fled from religious persecution and wanted to found a country in which everyone could believe what they wanted to believe and not have the government encroach, impinge, burden that right. it is a core foundational right. it is in the first amendment. your families story is very similar to many families who moved to this country for that reason. sen. ossoff: we discussed earlier today the -- decision. new york times v sullivan. in which the court established a
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standard by which libel and defamation claims by public figures would be judged. correct me if i am wrong, my understanding is that the standard is that false statements must be made knowingly, that the party making a false statement must know that it is false, and must make such knowingly false statements with malice. am i correct that is the standard? judge jackson: i believe it is knowingly, or with reckless disregard for the truth. and that that standard is thought of as actual malice, yes. sen. ossoff: is there any obligation in law you are aware of to accurate reporting, or accurate publication where there is not malice or where there is not one of the components
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established in the sullivan's? -- sullivan case? judge jackson: if i understand your question, i know the standard related to the sullivan case does pertain to public figures. if a public figure is not involved, there is a different standard in terms of liability for inaccurate, or defamatory statements. sen. ossoff: thank you. i want to note, the chairman earlier remarked upon the disruptions in the publishing and dissemination of information that technology has caused in recent years. i was reflecting as the chairman spoke that at the time of the invention of the printing press, many of those who previously had
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centralized control of the production and dissemination of information recognized it was disruptive, threatening and that it disrupted power dynamics and empowered new participants in public this course to participate and i just want to express to you -- this is not a question -- but to express to you my view that this is vital that we in congress and the judiciary relentlessly defend the principles of the first amendment and the free expression of ideas, even as new technologies emerge which disrupt these markets and present challenging new particular circumstances to the court. a very brief question on the not lighthearted but important subject of war powers, i reviewed some of the comments
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that prior nominees have made when asked about questions with respect to the allocation of war powers between the legislative and executive branches. something i have seen in some of those transcripts has been a tendency to say these are disputes between political branches and questions about those authorities should be resolved between the political branches. i noted in the mccann opinion that you issued, you noted in that case that one of the reasons it was appropriate for the judiciary to consider the claim made by the u.s. house in that case was that where there is dispute between the legislative and executive, in that case and in many cases, the judiciary is precisely the appropriate forum for the resolution of that dispute. it seems to me that the court and eu, should you be confirmed, may very well have to entertain cases and controversies
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pertaining to disputes between the legislative ids -- legislative and executive because there is, in my opinion, ambiguity in how the constitution allocate -- allocates forces between the two branches. not asking you to posit a thesis, but i want to ask how you will approach such cases? i assume applying the methodology you have laid out for us consistently throughout these hearings where war powers may come before the court. judge jackson: in every case, i apply the methodology that i have laid out in order to ensure i am ruling impartially and consistent with my judicial authority. in the part of my methodology
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that addresses my judicial authority, one of the things i do, as judges do, is decide whether i have jurisdiction to hear a particular issue. the mcgann case was not a war powers case. the mcgann case, i determined in that opinion, and judge bates had determined in a prior opinion, weight the question of law. the question essentially was whether the subpoena that had been issued by the house had to be responded to by the person who received it or whether that person had absolute immunity and did not have to respond. that is a question of law that courts answer all the time in respect to the enforceability of subpoenas. in the war powers realm, there
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may be questions of law that are appropriate for courts to decide. but, there may also be political questions. it would depend. a political question, if there was a dispute between the legislature and executive branch over some exercise of authority that was not governed by law but was in the discretion of either of those branches under the constitution where they got to make determinations. say for example, the exercise of executive authority in war to move troops or do that kind of thing, that would not present a question of law. it would depend on exactly what the court was being asked to do as to whether or not it had jurisdiction. under my methodology, that would be the kind of thing i would have to carefully examined to determine whether i could rule.
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sen. ossoff: me close with this comment. you have conducted yourself with extraordinary skill and grace throughout these proceedings. it is in some ways a lonely place for you to sit there, under the lights, facing questions, many of them substantive, some of them lasso. many of them constructive, some of them mean spirited and distracted. you have handled it all extraordinarily well. it has been a long two days. i know you know this, but i want to make sure you do. throughout this process, and right now, there are millions and millions of people who are watching and cheering you on. at this very moment.
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in homes across the country, there are millions of people inspired by you and your example who are sharing you on. not just that, there are people all over the world, all over the world who are watching these proceedings and seeing what is possible in america. after some years where there has been doubt about what this country stands for, in my opinion. people all over the world are watching this and seeing what is possible in america, what is possible in the system of government we have, what values this country stands for. i thank you profoundly for the service you have rendered throughout your life and in this hearing. with seven minutes remaining, mr. chairman, i know you will
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remain focused through the end. i have no doubt senator blackburn has responsible questions for it i yield the remainder of my time. sen. durbin: senator blackburn? sen. blackburn:. i know the senator is over there watching your family and taking note because he is a new daddy. if you have time, he will show you pictures. [laughter] indeed we have all enjoyed hearing about your family and your parents and how hard they worked to open doors of opportunity for you. look at how you went through those doors. and really created such a wonderful life. i mentioned yesterday that i would hear from friends in tennessee. so many of them talk about, they like how you have pushed barriers aside. a lot of them have had to do the
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same thing to make their way. they have appreciated that very much about you. i have to tell senator booker, i like the fact that he talked about fred astaire and ginger rogers. when my daughter was in high school, i actually bought that poster. i have probably told senator klobuchar this before, but i bought that poster of fred astaire and ginger rogers dancing and it says, i took every step he took but in high heels and backwards, just to make the point with her that she was going to have to work hard. and that she accepted that challenge. i am really proud of her, like i know all parents are proud of their children.
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i want to get to a couple of things. we do have the vote on the board. yesterday during our discussion, you had mentioned you were unfamiliar with some of the statements that i had read back to you, your previous statements in writing. including the statements on child pornography and critical race theory. i was surprised by that because the white house has worked hard to prepare you for the hearing. i wanted to introduce documents just so we have those in the record. the first document is an article in which you are quoted as praising the progressive curriculum at georgetown day school. the quote appeared in the winter 2019-2020 edition of georgetown days magazine. "since becoming a part of the gds community several years ago, i have witnessed the
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transformative power of a rigorous, progressive education." second document is a transcript of a 2012 hearing before the sentencing commission at a time when you were vice chair of the commission. the topic was child pornography ascending community treatment. you stated during the hearing, "i had mistakenly assumed child pornography offenders are pedophiles." i went back and pulled that to show that it was a statement and not a question. mr. chairman, permission to enter those? sen. durbin: without objection. sen. blackburn: thank you. we talked about abortion and i want to go back to that. i had another question. some have argued that bills
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seeking to protect children who survive abortions are unconstitutional. they say that the right to an abortion includes the right to an effective abortion. in other words, does the constitutional right to an abortion includes the right to let a baby die if that baby unintentionally survives an abortion? i would like to know if you would agree with that. judge jackson: thank you, senator. issues like the one you have raised are in the court system now. as a result, as a nominee to the supreme court, i am not able to opine about the constitutionality or not of the kinds of legislation you mentioned. sen. blackburn: one of the main factors the supreme court is
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considering is deciding whether to uphold roe within all of this and with precedent. as if all of this is a settled issue or not. some of those that are on this about whether it is to an abortion or an effective abortion and if that constitutional right includes the right to terminate the life of a baby that survives that abortion. that is an issue that will be decided before you go to the court. i think it is important to have that discussion. i want to go back to the issue of child predators. senator blumenthal and i are working on legislation, senator
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klobuchar has got legislation that deals with technology. i want to ask you this because of some of the questioning. it is just a yes or no. do you believe child predators are misunderstood? judge jackson: i don't have a context for that. sen. blackburn: going back to the comment on the sentencing commission. as you said that's not all child predators were pedophiles. judge jackson: i believe that all child predators are dangerous, that the behavior they engage in is horrible, that it needs to be taken seriously by the court and by congress in setting the penalties for their behavior. sen. blackburn: is it your position that child pornography offenders are not pedophiles?
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judge jackson: i believe the statement you referenced was a part of a hearing before the sentencing commission in 2012. sen. blackburn: a meeting, yes. judge jackson: what the sentencing commission does is it reviews evidence about various things. sen. blackburn: as i said yesterday, the children that are victimized, they don't understand the difference between an offender and a pedophile. or, a pornographer. i do think it is a distinction without a difference. let me ask you about gun rights. violent crime is rampant. we have seen that during the last year it is making people really nervous. i pulled some stats. in 2021, -- major u.s. cities experienced a 44% increase in
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homicides since 2019. over a dozen cities set new homicide records in 2021. a lot of families no longer feel safe, so they are buying guns and ammo. trying to make certain that they protect themselves. in times like this, i think we are really fortunate that the founders afforded such constitutional protection as the second amendment. very quickly, walk me through what current supreme court precedent says about the second amendment? judge jackson: thank you, senator. current supreme court precedent says that under the second amendment there is an individual , fundamental right to keep and bear arms in the home and the
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opinion focuses on those -- sen. blackburn: you agreed is an individual right not only reserved to -- because there are some that keep trying to say it is only reserved to militias. but if my memory is correct, you base this on district of columbia versus heller. judge jackson: yes ma'am. the supreme court has established it is an individual right. sen. blackburn: i wanted to get that on the record because i don't think anyone has asked you that this entire time. another question, i have asked other traditional nominees that are coming to us for the district court and the appellate court and i have not gotten a satisfactory answer from anybody.
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why is it constitutionally permissible for the right to keep and bear arms, which the supreme court has recognized as a fundamental right, and you agree, why is it constitutionally permissible for this right to be subject to the discretionary issuance of a license by a local official? judge jackson: thank you, senator. the supreme court is looking at that very issue in a case before it right now. as a nominee for the court, it is important that i not speak to it because the court is deciding this question. it has a pending case. argument have occurred related to it. sen. blackburn: should other unenumerated rights be subject to the same -- having to get a
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license? should someone that wants an abortion have to go before a government bureaucrat? because the second amendment, the right to keep and bear arms is enumerated in the text of the constitution. so the question would be why should ed have to have an extra burden? >> i understand the question, it is when the supreme court is looking at. and it is consistent with past practice and the need to ensure that i am not speaking to issues that are live. sen. blackburn: let me move on. i want to turn to some of the sentencing decisions. particularly, your decision to grant criminal defendants compassionate release. you have an unmistakable pattern
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of releasing criminals with dangerous backgrounds into the community. the covid-19 pandemic seemed to exacerbate the trend. to name just a few, you used the pandemic as justification to release a sentinel drug dealer, a bank robber addicted to heroin , a convict who murdered a u.s. marshal. at a time when violent crimes, including homicide are spiking across the country and we are facing an opioid epidemic driven in large part by the trafficking of sentinel across our border, how can you stand by your decision that these offenders do not pose a danger to the community? judge jackson: thank you senator.
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the statute that allow for compassionate release are policy determinations that congress has made to permit individuals who are in various circumstances and stages in the system to seek release. people who are detained after their final sentencing can seek something called compassionate release. people who are detained between when they have and convicted and when they are sentenced sen. blackburn: time is going to run out and we do have -- you know, this is a question that i have been asked so much. here's a stack, these are the ones that you fought for compassionate release.
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there were 1561 that were detained in d.c. department of corrections and your statement, and this was in the opinion that you issued, u.s. versus wiggins, you stated, "each and every criminal defendant in the d.c. department of corrections custody should be released because of the covid-19 pandemic." in that same opinion, you lamented the fact that you as a federal judge were limited in your ability to order the universal release of criminals back on the streets. i am shocked that that would have been your position. people are really concerned about crime in the streets.
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do you stand by your position that it would have been the right thing to do to release all of those prisoners back onto the streets? judge jackson: that was not my position. in that opinion, united states versus wiggins, i started off by explaining that given the passionate -- compassionate release system and the covid-19 pandemic, it would seem as though that was an extraordinary compelling sent -- circumstance. two sentences later, i say we can't release anyone. there are people who are too dangerous to the lease. -- to release. even in wiggins, i decided he had to remain incarcerated. notwithstanding his compassionate release motion. the sentence there i did say,
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but i said it to lead to my statement, which was the actual ruling in which i said we are not releasing everybody. sen. blackburn: to lament that you were limited in your ability to order the release of all, that is what causes -- that is a judgment issue. that is what causes the concern. let me go to critical race theory. you were asked yesterday about a speech you gave in april, 2015 when you had stated, and i am going to quote you, that -- when you were talking about sentencing, it melds together myriad types of law, including critical race theory. you told senator cruz, i think
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it was, you were talking about decisions regarding sentencing policy. you said, "i was talking about policy determinations. none of that relates to what i do as a judge." i take that to mean that you don't make policy determinations when you are making sentencing decisions as a judge. so today, in response to a question from senator grassley, you said the exact opposite. you said, "i have at times identified various enhancements that i have disagreed with as a policy matter. because the supreme court has said that is the authority of a sentencing judge in our system."
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given that you admitted you made policy determinations in sentencing, and you stated you consider critical race theory in sentencing policy, let me ask you again, do you consider critical race theory in your sentencing decisions as a judge? judge jackson: thank you. critical race theory, any academic theory is not considered in my sentencings. it never comes up in sentencing. it is not what i was talking about in the speech in 2015. sen. blackburn: i appreciate that. i have one intellectual property question i am going to submit to you for writing. you have had a long day. thank you. you have been very gracious. i think these are tough questions, but this is part of doing our due diligence and meeting our responsibility to the people that we represent.
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they expect this of us. they have been very engaged in this. have some have said, i think i would like her, i don't agree with her or i agree on some things, but not everything. but, they want to know what you are going to do when you get on the court. their kids and grandkids are not going to have the opportunities that you have had unless we keep this nation free. it demands your best and it demands that you go to the constitution first. in your opening statement, and this is where i will end, you say i have been a judge for nearly a decade and i take that responsibility, my duty to be independent, very seriously. i decide cases from a neutral
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posture, i evaluate the facts, interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial booths. -- oath. i wish you had said consistent with the constitution of the united states. thank you for being with us. sen. durbin: this concludes our rounds of questioning. before we recess, a few observations. judge jackson, you are extraordinary. your story is a great american story. i think we have all benefited by getting to know you better during the last two days. you are exceptionally qualified for this position. i won't read through your resume, it has been read many times. there is nobody in the room grew during two days question your qualifications. there have been dissenters.
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my colleagues promised a fair and respectful healing. that hearing. most including my colleague senator grassley followed that. he always does. there were a few glaring exceptions and i am sorry for that. your patience, dignity and grace in the face of what was frankly, some offensive treatment, is -- to your temperament. to your mom and dad and your lawyer brother, i thank you for being with us in being part of this historical occasion. dr. patrick, i don't know if surgery is any easier than this -- [laughter] i want to say a word to layla and dahlia, you've got a great mom. you really do. but she has been through in the last couple days most people would not consider going through
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one minute. she is strong, carrying, kind and you are lucky to have her. we are going to be lucky to have her on the supreme court. we've got a little bit of work to do. i could go through the list of all the invitees that have been filing in and out of the room behind you, wanting to be here for a moment to share this history with you. i will let you in on something you may know, tomorrow we are going to announce to have been rated unanimously well-qualified by the american bar sit -- bar association. we are going to conclude the public part of this hearing and convene for a closed session for discussing background investigations, which will only take a minute. i have discussed this with senator grassley, the committee will meet in executive session to consider an announcement on this sunday, march the 28th, 3:00 p.m. with that, the committee stands
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in recess. the meeting is right now. [applause] [indiscernible chatting]
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announcer: tomorrow, representatives of the american bar association and outside witnesses will testify including alabama attorney general steve marshall and congresswoman joyce beatty of ohio. our live coverage begins at 9:00 a.m. eastern here on c-span. you can find more information about judge jackson on our website along with past confirmation hearings in our video library. you the hearings from ronald reagan's nomination of william rehnquist, through donald trump's nomination of amy coney barrett in 2020. it is all put together for easy viewing at and our free video app, c-span now. announcer: c-span is your unfiltered view of government.
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funded by these television companies and more, including cox. >> cox is committed to providing eligible families access to affordable internet through the connect program, a digital -- one engaged student at a time. announcer: cox supports c-span as a public service along with these other television providers, giving you a front row seat to democracy. announcer: out about -- highlights from the confirmation of judge jackson. right now, questioning from earlier today. us that model. sen. hawley: judge, good to see you again. i don't have a lot of time, so let me get into it. senator cruz was asking you about united states versus stewart. this is the case where neil stewar


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