tv Confirmation Hearing for Supreme Court Nominee Ketanji Brown Jackson Day 3 CSPAN March 23, 2022 9:17pm-1:47am EDT
>> the world changed in an instant. the media, was ready. schools and businesses when virtual and we powered a new reality because the media is good to keep your head. the supreme court nominee, judge ketanji brown jackson faced questions from her confirmation hearing. republican senators question her about the senses she passed down in child pornography cases. this first portion of the hearing runs about two hours and 15 minutes.
have center also of georgia, senator tillis of north carolina who will do their 30 minutes of questioning to complete the agenda from yesterday and then each senator will be allowed 20 minutes to ask questions if they wish. the chair is more than anxious to entertain efforts to yield back your time. i am sure that judge action would appreciate it as much as all of us in that respect. i will make an opening statement. senator grassley will do the same and then we will proceed. i will say that president biden got it right yesterday. he tuned in and watch the proceedings and said you showed both grace and dignity. i use the phrase grace under pressure and has been referred to --
thank you for doing it. it has to be put in context. i thought they were asking appropriate questions and positive in the reproach and respectful of the nominee before us. for many senators, yesterday was an opportunity to showcase talking points for the november election. all democrats are soft on crime and therefore this nominee must be soft on crime. while you have made a mess of their stereotype, the endorsement of the fraternal order of police, the chiefs of police does not sit with the stereotype of the harvard grad black women aspiring to the highest court in the land.
but you earned it. law enforcement is on your side because you have been on their side in critical moments. your family has dedicated a big part of their lives to law enforcement. you obviously believe it at your core. the soft on crime charge falls on its face. the second thing is that you were somehow out of the mainstream when it comes to child pornography cases. it is difficult if not impossible for each of us to put ourselves in your place when you're facing all the totality of facts concerning certain defendant as enacted by congress and trying to do the right thing to keep america safe. you are in the same place as 80% of federal judges when it comes to sentencing on child pornography cases.
congress is not without fault. we failed to pick up on the response ability that was assigned to us some 17 years ago when they decided the basic guidelines would not be mandatory on judges. we should have stepped in at that point but it is a tough, controversial subject and we have stayed away from it. the judges have tried to make do with a fractured situation where they have guidelines that are advisory. they have opinions sentencing from the government. i also think it is our vona that the senator of missouri has unleashed this discredited attack.
the houston district of missouri has done exactly what you did. they have also launched to be a public defender and resenting your guantanamo detainee. the republican judge is very conservative. don't see this as a blemish on your character. they understand as we do that the sixth amendment create a response ability and that the people have a right to counsel. you have exercised your response ability in your professional life. this -- your nomination turned out to be a testing ground for conspiracy theories and culture were theories. i am sorry we have to go through this. finally, you are here is -- you
are a respected successful woman of color. now the president of the united states has chosen you to serve on the highest court of the land. america is ready for this supreme court glass ceiling to finally shatter. and you are the person to do it. senator grassley: mr. chairman, i think you have provided both sides opportunity to be heard. unfortunately, i have noticed that after every series of questioning on the side of the aisle, you choose to editorialize and contradict the points being made by the side of the aisle. i don't know whether we will have anywhere opportunity to editorialize about the advocacy that you and your colleagues -- the point that you're trying to make.
i was especially concerned that after my questioning yesterday, i left the hearing room and you chose to come back after a break and raise a point that i had asked her about. i think that was misrepresenting my position and what the facts are with regard to whether the judge is accusing president george w. bush and donald rumsfeld of war crimes. my language was i asked her whether she called him a war criminal and she said under oath to you i did not although the record is plain as it can be that she accused him of war crimes. i don't understand the difference between calling summary a war criminal and accusing them of war crimes.
i think the judge is doing pretty good job of defending her own position and answering questions. thank you for giving me a chance to express my objection to the way that you have been editorializing after each time this side of the aisle asks questions. >> thank you. >> do you want to make your statement? >> may i respond to what the senator said? >> if you want to speak before? >> mr. chairman, i agree, you
and i talked with this before. i have great respect for you, you know that but i have had the same issue at normal hearings, not supreme court hearings where you make editorial statements after our questions. i appreciate your input. i still think it is productive. you just referred to by name senator hawley. i think he should have a chance to respond. this is america. we have the right to express ourselves. you are not free if you can say what you think. i want to join my colleague. >> it is called chairman's time. it is a tradition exercised by senator lindsey graham and senator grassley. >> but they did not do it the way that you did it. >> i will allow you to be heard but i want to be heard without interruption.
in the minority, we waited through chairman's time. there will not be a separate set of rules for democrats in control of this committee. that was used as a response time and again by both of those senators. the democrats will use the same mechanisms. >> i think if you're going to personalize it, you should give them a chance to respond. quick they will have a chance. each and every senator has 20 minutes today to respond if they wish. >> could we hear from ranking number grassley and then i would like the opportunity to ask questions on behalf of the state of georgia. i think the american public is tuning in expecting a substantive discussion on matters of great importance to the country.
i don't think we have set an appropriate tone by bickering every senator deserves to be heard and i would like to humbly request ranking member grassley make a statement and i and senator tillis have our opportunity to question the nominee and then we can litigate balls and strikes from yesterday's hearing. will that be acceptable to the committee? >> i think in the name of your humility we should do that. >> thank you. senator grassley? >> senator ossoff, my statement doesn't quite fit in with what you asked but i feel like i have to say it anyway because of the conflict that happened late last night. but before i do, i want to somewhat tongue-in-cheek but with some seriousness as well when chairman quoted biden as saying judge jackson handled herself with grace and dignity,
i want to compliment the democrats on this committee for using grace and dignity unlike it was during the brett kavanaugh hearings. i would compliments that's the way a hearing should be held and i want to raise the question about records. senator cruz related -- raised a very related question about data related to u.s. probation officer recommendations, the white house and members of this committee used that information to attempt to discredit information raised by senator holly and others about the nominee's sentencing record as a district judge. no one on our side of the aisle had access to this information. in fact before this past week i'm not sure anyone but the probation office and the court had access to this information. my understanding is that the probation office recommendations aren't part of any public record.
the specific sentencing recommendations aren't always shared with prosecutors or defendants. somehow it appears the white house obtained this information and leaked in pieces to media outlets in order to cast out on legitimate members' questions and then provided to only democratic members of this committee without any of the underlying documentation. i'd like to add my name to the letters that are requesting at least, while this is senator lee's letter, request at least the probation office recommendations so we can be sure of the data handed out by democratic staff last night. i'd also like to add my name and have added my name to another senator cruz is follow-up request for access to any data that may be shared on our colleague's side. one last thing to suggest that
all we have to do is ask for information does not past -- pass muster. you can't ask for information you don't know exist and asked for records related to the judge's tenure on the sentencing commission. those have not been produced just like 48,000 pages of records withheld by the white house. how is the united states senate supposed to review a record that we don't have? this process might be timely but it's neither thorough nor fair to the american public and hope we can rectify that. i yield. >> thank you, senator grassley. senator ossoff. >> thank you, senator chairman, ranking member grassley and judge, good morning. >> good morning, senator. >> welcome back. >> thank you.
>> we had a late night doing our job as senators and you as a nominee and we're off to a morning start. i was considering asking you if you were a coffee or tea drinker but thought that might be too personal and immaterial to the question of your nomination. i want to begin inspired by the presence of my brother senator reverend warnock who has joined us this morning, in the spirit of national unity offering banks -- thanks for these proceedings , for our constitution, for this opportunity to air in public before the american people a vital grappling with ideas core to our republic. questions of the proper role of judges in our society, questions that keep the peace and ensure this remain as nation of laws. as i noted in my statement, democracy is the exception and
not the norm in history or around the world and this public exercise is a vital one. so i'm thankful for it and thankful the american people have the opportunity to observe it and i'm thankful for your presence, judge, for your service to the country. throughout your life as a district judge and appellate judge and a nominee for the court, thank for you being here and thank you for subjecting yourself and your family to an intrusive, at times cruel and unfair, but on the whole necessary and proper process of scrutiny as you considered for this appointment. the american people now tuning in for the second day of these proceedings are hearing about your approach to the law, to
your role as a judge and potential supreme court justice and also getting to know you personally. and we've had an opportunity to hear a bit about your family, your background, i think it's also appropriate that the american public hear a bit more about your brother's story, as i understand it, served the baltimore police department, served in the u.s. army. before we turn to matters of law, will you please help introduce yourself and your family to the american public as you seek this lifetime appointment. tell us a bit about him and his story. judge jackson: thank you, senator. my brother followed in a long tradition in my family of public service. it was a core family value. my parents were both public servants and my mother's, two of my mother's brothers were career law enforcement.
and my brother and i are almost a decade apart in age and he, i think, looked up to my uncles who were often around in their uniforms, keeping their weapons away from the kids putting them up on high shelves and we looked up to them and we understood through their service what it meant to give back to your community. my brother went to college, a historically black college, howard university here in washington, d.c., after growing up in miami. decided to follow my, follow in my uncle's footsteps. he could have done then things coming out of college with a college degree but decided he wanted to be a police officer
and went to baltimore which as many of you know struggles, like many cities, with areas that have a lot of crime and it was a very stressful period for us as a family. because as proud of we are as service and as much as we know is important, law enforcement is a dangerous profession and as family members you worry when you don't get the phone call and haven't heard a couple days and hear about things in the news and community, you worry. i grew up with family members who put their lives on the line. i understand the need for law enforcement, the importance of having people who are willing to do that important work, the importance of holding people
accountable for their criminal behavior. i also as a lawyer and a citizen believe very strongly in our constitution and the rights that make us free and what that means to me is an understanding that although we need accountability, although there is crime, we also have a society that ensures people that have been accused of criminal behavior are treated fairly. that is what our constitution requires. that is what makes our system so exceptional. my brother understood that as part of his work and he also served in the military. he also decided, as many people did, to defend our country after 9/11 that he would go into the army.
i remember when he made that decision, he had a college degree, he could have been an officer right away. he could have been a type of military officer that didn't have to actually be on the battlefield. and i remember saying, are you going to do something with radio signals, are you going to be behind the scenes and he said no, infantry, boots on the ground. he said, i believe strongly in the protection of our country, and if i'm going to be leading, i'm going to be out front. that's the kind of person my brother is. it's the kind of service that our family provides, and for me what that meant was an understanding that to defend our country and its values, we also needed to make sure that when we responded as a country to the terrible attacks on 9/11, we
were upholding our constitutional values, that we weren't louing the terrorists to win by changing who we are, and so i joined with many lawyers during that time who were helping the courts figure out the limits of executive authority consistent with what the framers have told us is important, the limitations on government. i worked to protect our country. my brother worked on the frontlines and it was all because public service is important to us. >> thank you, judge jackson. let's talk about limitations on power. our constitution is a document
that announces monarchism and instead establishes a republican. you in opinion has been widely cited made the observation that presidents are not kings. what does that mean and what are some of the most important bolworks against tyranny. judge jackson: 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 in several different ways. one was federalism, it was vertical, they would split the powers between the federal government and states, another
was to prevent the federal government from itself becoming too powerful, from having all of the authorities, 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 2 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 3 and gives it to the court. the separation of powers is crucial to liberty. it is what our country is founded on and are and is important consistent with my
judicial methodology for each branch to operate within their own sphere. that means for me the judges can't make law, judges shouldn't be policymakers. that's a part of our constitutional design and prevents our government from being too powerful and encroaching on individual liberty. >> thank you, judge. i mentioned in my opening remarks the court has played a vital role constrained within its proper constitutional boundaries in the national process of making america in real life what america is in text. reflectingion on your experience as a defender, a vital role if our justice system. let's talk about the sixth amendment and the role the court played in ensuring the sixth
amendment is real in practice, in the gideon v. wainwright decision. can you help those tuned in right now to reflect upon that decision, what it means and what it says in the role of the court? judge jackson: prior to gideon versus wainwright, people who could not afford lawyers were not entitled to lawyers under our system so a person could be accused by the government of criminal behavior and would have to fend for themselves in court and make their own arguments. someone who is not a lawyer would still be responsible for defending him or herself in front of the judge if the government brought charges.
earl gideon was a criminal defendant from florida, my home state, who had a handwritten petition. he complained it wasn't fair under our constitutional scheme that products and requires people to be tried, he says i need help, i'm not a lawyer, i can't make these arguments, i think it's important for the protection of liberty to ensure that people are able to have counsel. and that handwritten petition made its way to the supreme court and the justices read it and they determined to take his case and in the end decided that the protections of the sixth amendment, the right to trial includes the right to appointed counsel so that everybody who is
accused of criminal behavior now has the right to an attorney and that's very important. i mean, one of the things that i see or saw as a trial judge is that it was crucial for our justice system to have representation from both sides. it was the only way, it is the only way a judge can really make fair determinations and we heard a lot about my criminal cases, in every case i'm getting as a judge arguments from the prosecution, i'm getting arguments from the defense counsel or arguments or statements from probation in these criminal cases and the work of the judge is to look at the facts and circumstances and hear the arguments of the parties and apply the law and make a fair determination.
having lawyers as criminal defendants aids in that process and benefits us all in you're criminal justice system. >> i would note at this time it so happens the southern district of georgia is one of just three federal districts without a federal defender's office and i've offered legislation to establish one and i'll be seeking support from my republican colleagues to try to make that bipartisanship to ensure there is access to counsel for defendants in my state. let's talk a bit about the first amendment. freedoms of speech, publication, assembly. there's a well known supreme court case brandonberg v. ohio which establishes a certain test to ensure the government is constrained in any effort that
may be made to punish speech and the impulse to sensorship is -- censorship is something that can emerge from time to time across the ideological and political spectrum, particularly in times of great controversy or in times of national security crisis. can you please walk the committee and broader public watching now from all across the country through that decision and how you will approach these vital protections for speech publication and assembly should you be confirmed? judge jackson: thank you, freedom of speech, publication, assembly is in the first amendment of the constitution. it is a core foundational protection against censorship. it is important in our constitutional scheme that
people be allowed to express themselves, that ideas be exchanged. that is the groundwork for a vigorous and vital democracy. there are many tests, many cases in the supreme court's jurisprudence that discuss various disputes about circumstances in which the government can restrain or regulate speech and that decision establishes to a certain extent that if there is speech that is an incitement to violence, that's one circumstance the government might be able to prevent it but other than that, short of that, free speech is supposed to be allowed to happen. and there are, again, various
tests and circumstances that the court has applied in deciding whether the government can regulate the content, place and manner of speech but the general principle is that our democracy thrives because you, because the government is restrained and cannot censor its citizens. sen. ossoff: i want to recognize the members of press that are here and the photographers and reporters take ensure this is public and describe your approach to press freedom, the question of prior restraint has been litigated. a famous case in the case of
the pentagon papers in the latter years of the vietnam war. i know i believe for all of us on this committee we recognize the vital role of press freedom in ensuring the free exchange of ideas, access to truth and debate in our democracy. how will you approach cases that implicate press freedom? judge jackson: thank you, senator. this is another area in which there is well established case law that supports the freedom of the press to be able to write and report. there is a general obligation of truth in terms of the press but also a recognition that sometimes there may be things that get published that aren't exactly accurate. so the court in new york times versus sullivan determined a higher standard of liability for
press, things put out in the press have to be knowingly false, there's an actual malice test because the court was balancing concerns about liable, people claiming that they had been misrepresented in the press with the need to allow the press to do their job. the overall understanding is that press freedom again is one of the first amendment freedoms that are, that undergird our democracy. sen. ossoff: i want to take a moment and observe, this is my first such proceeding and i'm grateful for the chairman for opening today's ceremonies at the end of the diaz, but something i've studied and am aware of there's been a range over time of how willing nominees are to candidly and
openly discuss these core matters of constitutional principle in proceedings like this one and a tendency over time to allow less and discuss less, a more restrictive approach. i want to thank you because while you have prudently and in a disciplined way refrained from commenting inappropriately on passengersal case law you've been willing to engage in a forthright engagement and it's an observation about your performance and not a criticism but having an open and honest and forthright dialogue about these matters of national significance is part of the vital role these proceedings serve. i want to turn now to the fourth amendment. i want to discuss with you the
protections against unreasonable search and seizure. we discussed how the constitution was a renunciation of monarchism and tyranny and establishes core civil liberties, one of which is the protection against unreasonable search and seizure. how will you approach fourth amendment case law and can you help those tuned in across the country, remind them of what, for example, the principle of a reasonable expectation of privacy means in the context of supreme court jurisprudence? judge jackson: thank you, senator. the fourth amendment is one of the amendments in the constitution that protects individual liberty by limiting what the government can do with respect to criminal processes. it restrains the government from engaging in unreasonable
searches and seizures and the supreme court has developed a series of tests and ways of evaluating any particular act by an officer in a case qualifies as an unreasonable search or seizure. let me just say that this is the kind of area of supreme court and judicial review that is very fact specific because courts, in order to stay in our appropriate role can't make policy about police behavior at large and can't just look out in the universe and say we have a constitution that says unreasonable searches and seizures so let us tell you all what that means.
that's not the way that courts operate. under article 3, courts can only hear individual cases and controversies and decide does them. -- and decide them. so every court, including the supreme court, is looking at unreasonable search and seizures in the context of a particular dispeut where someone has had something searched by an officer in their house, they've been seized under a particular set of facts, and they claim in the context of a lawsuit or in the context of defending themselves that there's been an unreasonable search or says you are. so the court, case by case by case, looks at the facts and circumstances and decides. and i would say that this is the kind of analysis that takes into account a number of things but
one of the things in addition to understanding the facts and circumstances is understanding what is meant in the constitution by unreasonable search and seizure. there is case law that the supreme court has developed that looks at whether or not something is an unreasonable search and seizure in part by analyzing whether there was a reasonable expectation of privacy in that item, in that area. is there a reasonable expectation of privacy in your house, for example, if a police officer were to come into your house, you would not be able to claim fourth amendment protection unless, says the supreme court, there was a reasonable expectation of privacy in your house. and the supreme court has determined whether there's a reasonable expectation of privacy, for example, in your house by looking at what areas
were protected at the time of the founding when the words unreasonable searches and seizures were written in the constitution. lo and behold, something like your house the court has determined there is a reasonable expectation of privacy because that's what those terms meant back then, and so if a police officer were to come without a warrant, the court has said, in areas where there is a reasonable expectation of privacy, that would be an ununlawful search. sen. ossoff: this is an area where the emergence of new technologies makes it likely, i believe, should you be confirmed, you will have to consider fourth amendment claims in light of circumstances that couldn't have been anticipated at the time of the drafting of the constitution and indeed constitutional interpretation has already evolved over time to
adapt to the reality of new technologies from phone booths, classic case in the 1960's, whether a closed phone booth door demonstrates an expectation of privacy to more recent case law involving geolocation data from cell phones. and i want to urge you, should you be confirmed, to remain vigilant about how the emergence of new technologies, the way they become ubiquitous in our lives, the way that virtual spaces are increasingly akin to physical spaces will require the court to consider very complex questions and to seek technical advice because these are technologically complex questions. what is your view of how the court seek, because of their
justice and clerk, and if for example one such method of seeking advice is through amiki and what's the process of understanding the origin or funding source of such briefs submitted to the court. it's a two part question. i want to restate. again, first, i want to urge you should you be confirmed, as i'm confident you will, to vigorously defend the constitutional rights to -- of american citizens against unreasonable search and seizures, hear how you approach seeking technical expertise to inform that decisionmaking. and the question of transparency of briefs filed before the court, something justice scalia noted in campaign finance laws, it's important for the public to know who is funding engineering -- electioneering communications
in the context of political campaigns. it's important to know who is briefing them and what the motive of funding source of such briefs could be. would you please with my remaining time and i'll yield and we'll have more time later to discuss warpowers. could you please comment on those matters, those will be my final questions for this round. judge jackson: thank you, senator. one of the ways in which the court receives information other than directly from the parties in a case is through a practice and an established practice of receiving amicus briefs. amicus is a term for friend, friend of the court briefs. these are people who are not parties to the case, who don't have that kind of interest in the case but may have expertise or information or argument that they wish the court to hear. and i think that would be the primary mechanism by which if
the court were to decide to hear a case concerning a matter that involves some technical expertise, i would think that there might be amicus briefs related to the technology, for example. i have not looked at the court's rules and certainly would want to discuss with the courts, other justices, ways in which determinations are made in which way the amicus briefs are received and what disclosures are related to them but the court does receive amicus briefs in cases in order to inform itself so that it can make a decision related to the issues in a case. sen. ossoff: thank you, judge jackson and for your courage and grace and forthrightness in answering my questions and lie
-- look forward to the opportunity to ask more later and yield. >> senator tillis. sen. tillis: thank for you being here and heap you got rest last night. judge jackson: very little, senator, but that's all right. sen. tillis: me either. congratulations. thank you to your family, the public servants serving in the military, serving and law enforcement, educating our children. they are a role model family. i do want to go back, this morning i turned to a channel that i never watch. just to see what was being said about the proceedings. i thought it was interesting that they were ridiculing some of my colleagues on the side of the aisle for bringing up the behavior of past supreme court
hearings. this is the appropriate venue to do it. i guess we can talk about it when we are reviewing intellectual property or something else, contextually this is the time to do that. we have to agree that the behavior in a judge kavanaugh hearing was inappropriate and i hope we never back to it. some of the positions some ally colleagues on the set i'll took with justice barrett are abhorrent and we never take that again, that's why i'm glad of how we behaved. i will get to some questions, if times allows that relates to other questions. judge barrett, did i understand correctly that at a young age you won a debate competition or was it an oratory, addition -- competition? did you continue the debate
competition, continue to do that? first question, did you continue to do debate competition? judge jackson: continuing college? i did not do in college, i did it middle school through high school and stopped when i graduated high school. sen. tillis: i did as well and i recall that we would get assigned a topic that is not what we agreed with, but had to argue it. we are ever in that situation or did you get the picture topics -- dick york topics? -- pick your topics? >> i did original oratory, where i wrote my own speech. sen. tillis: you have had an opportunity to debate a lot as a defense counsel, i would assume. in the court of law when you're debating a position. the reason i asked that question, yesterday when senator
kennedy was asking you about expanding the courts, what we call court packing, you said i have not really thought about it but i have heard the arguments on both sides. i hear the argument on both sides. could you briefly describe to me the perception of argument on both sides? judge jackson: my understanding of the arguments, is about whether or not to expand the court beyond the nine justices that are on the system right now. the nine seats that are there. sen. tillis: if you were to review, nine is fine, four or more. that's really the two arguments. do you understand or you have heard any of the arguments for or against either side? judge jackson: i'm not even sure about the four. i just heard people talking
about putting more justices on the court, expressing concerns that the court has become politicized, that the court has become unbalanced in terms of what people perceive to be views of the majority of the justices and so i've heard arguments about rebalancing the court on that side and then there's the argument that many on the dias have stated about the inappropriateness of doing so, the concern that it might lead to some kind of a war of every time there's a new president adding justices to the court. sen. tillis: yesterday, i think it was senator booker who observed senator white house's presentation made a comment
about how rhode island, new jersey being a bit bigger, but having a bigger graphic to display. i went back, new jersey is six times the size of rhode island, by square miles and before my friends from texas chime in, i'd let them know if alaska were two states they'd be a third largest state. i decided to use the white house format for dark money so we have a balanced understanding of the fact that our proceedings hire, -- here the aspirations for the court, there is an ecosystem out there on both sides. matter of fact, we had a judicial nominee who participated in this ecosystem. i think you can reasonably assume if they participated in that ecosystem they probably
would have been an activist judge. the point i make here is that we've seen this ecosystem mobilized to support you and judge jackson, i think you said you haven't had any encounter with demand justice. i don't know if you had any encounter with some of these acronyms or abbreviated so i wouldn't expect you to. it would be interesting if we could for the record determine if you have had any interactions. judge jackson: i have not. i have never seen most of those. sen. tillis: that is good enough, i wouldn't expect you to sitting on the bench. but they are out there and they have a specific plan. and their specific plan, matter of fact, i was inspired by senator white house's seat so i went out to demand justice. they have a specific plan. step one, four seats on the supreme court. we must add four seats on the
supreme court to restore balance, which by their opinion is a majority with their view and their judicial philosophy. they're thrilled president biden has promised to appoint a commission, in fact they're so thrilled they want to make sure they can influence the outside of the commission by endorsing their four seat strategy. they want to recruit 25,000 volunteers, this is on their website, their strategy, to influence the commission's recommendation. and then they want to nuke the filibuster, 51 votes, to make a decision that could ultimately be to pack the courts. this is their stated goal, they're proud of it. senator white house was talking about how the prior president was influenced by an organization, i would say that senator jackson and almost
everybody that the president vetted, i'm sorry, judge jackson are on this list. i think it's intellectually dishonest to say the administration that my colleagues on the other side of the aisle are not influenced by this organization. we've tracked some of the fundraising and support in the re-elections and they're engaged and influenced by it. let me tell you what i'm really worried about with the court packing risk that we have today. we are talking about the ultimate destruction of two back in january, senator schumer laid a vote on the floor that ultimately would have reduced the filibuster limit of 60 to 51. he was doing it as a way to pass a single bill, but we all know what happened when senator reid nuked the executive calendar.
four circuit court judges. it led to you only being subject to 51 votes to be confirmed. that nuked the executive calendar. in january, senator schumer was laying the groundwork for the same thing. that is the destruction of the senate institution, as far as i'm concerned. i think we have to be consensus-based organization. we did not have to be a hundred house member represented. what disappointed me most about that vote is back when president trump was calling on us and pressuring us to nuke the filibuster when we had control of congress, i signed onto a letter with more than 60 members to say that i would never do that in the face of a republican president whose policies i supported. i did that to send a clear message, i respect this institution, and i respect the court, which almost certainly
would have been, we would have had pressure from our side of the aisle to pack the court of the bit more. every member who was here back when we signed that letter who is on this committee changed their position. and voted to potentially new for -- nuke the filibuster just two months ago. i hope you can understand my concern about the political wins and potential damage it could do to the senate and do to the supreme court. i think it was federalist papers 78 where hamilton talked about the vulnerability, or feebleness. he was arguing the case for lifetime appointments but i do think that the supreme court is a fragile institution. i do believe that if we think it is politicized now, think about how it would be if we destroy
the institution of the senate so that a strict party line partisan vote, we expand the court. that is why court packing is important, and that is why we ask a question that i know you are not going to answer, but i know that justice breyer and justice ginsburg did. if there is any supreme court justice listening right now, i wish that they would speak up because i think your institution is in peril and accelerating it to a truly political body is only one successful nuking of the filibuster vote away in the senate. i was a partner at price waterhouse act during the enron scandal. i saw about a 100-year-old top-tier, big five consulting firm ceased to exist because their reputation suffered. if we pack the court, the only thing that you will have, that
the supreme court has, is its integrity and the esteem of the american people in trust that they put into it. packing the court could cause the supreme court to lose the trust of the american people. i think if we want to expand the court, let's do it for the only valid reason. maybe the justices come to us and the chief justice come to us and say the workload is too great. the times have changed. and then commence 60 members of this body to consider it. but when you have got a partisan organization putting a pipeline of people in there that they think think like them, how can any reasonable person think that this is just kind of fixing the mechanics? it is a partisan decision that even some of my colleagues on the other cited of the aisle have taken the bait, so much so that they would reverse a commitment they made with me when they signed that letter to say they would never nuke the
filibuster and then nuke it. president biden is on the list, too. back in 1983, he gave a rousing speech in a judiciary committee hearing saying, don't pack the court. he gave a rousing speech on the senate floor saying, don't nuke the filibuster. but now, we are in this posture where we can destroy two institutions if we are not careful. i actually hope that you can, at some point, study the issue thoroughly and understand the risk to this institution that you are likely to be confirmed to. it is serious. you could end up being there, you will have a lifetime appointment, you could actually be there and witness this, it's demise real-time if we allow the court to be packed. now, i want to talk a little bit
about, i think you were part of a case in massachusetts that some people are casting as a pro-life versus pro-choice issue. to be clear, i am catholic and i'm pro-life. and i am proud to have signed and ratified pro-life bills in north carolina when i was be -- speaker of the house that have withstood judicial scrutiny. but i don't really think that case was about pro-life. i think it was about free speech. i want to ask you a few questions about it. and maybe you can describe it to me if your memory serves you. it seems to me that the argument that you were part of, i think that you joined with a couple of others, it seemed as if the
argument was because the pro-life protesters were threatening and dangerous to women. threatening to enter the clinic. i'm not necessarily saying you put those words in the brief but they were in their and they were a hostile, noisy crowd in the face of protesters. am i correct that a part of the argument was because they were noisy, in-your-face protesters, needed to be a little bit further away than people who were pro-choice advocates? as i understand it, i think the underlying lawn massachusetts -- law in massachusetts was ultimately struck down unanimously by the supreme court. is that correct? judge jackson: thank you, senator. sen. tillis: i did not expect you to respond to my, on packing the court. judge jackson: i understand. the brief that you were referencing was a brief i worked on right after finishing my supreme court clerkship, when i
joined a big law firm in massachusetts. this is maybe 2000, at the end of my clerkship. it is a first amendment free-speech set of arguments that the lawyers at my firm, i was part of a team representing clients who wanted to make an argument about buffer zones, which at that time, had not yet been litigated all the way up to the supreme court. sen. tillis: was it a buffer zone that put pro-life and pro-choice people in the same buffer, for one that argued that pro-life people were in your face and perhaps needed a bit better bigger buffer than the pro-choice? i was just trying to understand the facts of the case. judge jackson: i believe that it was viewpoint neutral meaning it
was not about what the people were saying, it was about clearing a path to allow people to enter the clinic. the laws at the time were about how far did people have to be kept back, whether they were pro-life or pro-choice because if they were blocking the entrance -- sen. tillis: do you understand why the underlying law was ultimately deemed unconstitutional by the supreme court? judge jackson: i did not follow the jurisprudence at that time. it had not been. this was a first circuit brief. i do not remember what happened in the district court, but my clients wanted to argue in the first circuit that the laws that allowed for the clearing of the path so that people could enter the clinic and have people stand back were constitutional and important. the first circuit agreed. i think ultimately, i don't know
exactly, but i think ultimately, as you say, there was a litigation that when all the way to the supreme court and the court had other jurisprudence about the extent to which buffer zones are constitutional. sen. tillis: looked at -- i'm not an attorney. i watch law and order from time to time. i'm not going to get into a debate, but on the face, it almost looked as if there was this notion that there was bad speech and good speech. that somehow -- look, i am somebody who has had protesters come to my house, get in my face and be very nasty. four times by land, two by sea. i live on a lake. ok with them doing as long as they stay off my lawn, in the last case they did not. it almost felt like to me as if
the protesters who did not like me needed to be a little bit further away than the protesters that maybe i would allowed to be a little bit closer. it may not be right but i will make sure i get my facts right before this afternoon in the second round. i want to go to sentencing. i'm not going to cover any of the ground that my colleagues have. i'm sympathetic to some of it, not necessarily all of it because i think the details are something that we don't have possession of. i'm sure we are going to talk a little bit more about that. i want to talk more about a pattern. i know, and i was really impacted by your description of family dinners and your uncles coming in in uniforms and putting their guns up on the covered and having a sense of pride that you have family that served in law enforcement. there are a couple of cases, i'm very focused on law enforcement and backing the blue. i think that law enforcement, i
talked with a lot of them. their morale is low. they feel like defund the police and some of these other efforts are already making a very difficult and dangerous job more difficult, more dangerous. there have been a few cases where you have recommended lower sentences that even the defense attorneys have. i'm sure, if i were you and observing you yesterday, you would probably point to some mitigating circumstances or factors that are not necessarily available to the committee as a basis for doing that. i think in one case, the government recommended a 30 month sentence. the defense recommended 21 months and you gave them 18 months. this was the third conviction for assaulting an officer. there was another one that was a lower sentence.
there were officer assaults and it just seemed like it went lower. i don't want to get into those because you may have factors that you would point to that would justify the decision. i have got a question, that is at an atomic level. you are looking at the facts of a case, looking at the defendant. as you described in some of the other cases, you made a judgment you thought was fair and inbound with your peer group. back at the beginning of the covid pandemic, i believe you made a statement and i will give you time to provide context, but in the interest of time, i am only going to read the most striking. you said the obvious increased risk of harm that the covid-19 pandemic poses to individuals who have been detained in the districts congressional facilities reasonably suggests that each and every, and i think that means everyone, every
defendant who is currently in the d.c. department of corrections custody and who thus cannot take independent measures to control their own hygiene and distance themselves from others should be released. i checked in april of 2020. i think that is when you made the statement, that there were 12 or 1600, i will say 1200 people in the department of corrections. do i read that statement to say that you felt given the circumstances of the time they should all be released? because that is not looking at their individual cases. judge jackson: no, you don't read it correctly. it was not a statement. it was a line in an opinion. the beginning of their covid 19 pandemic was obviously horrible and difficult time for all of us. sen. tillis: i was there.
judge jackson: what was happening at the beginning and the prisons, which was part of the criminal justice system that as judges, we were involved in, -- sen. tillis: i tracked it, i don't want to go over, let me just give you a little bit more context. i have actually written letters to the department of justice encouraging the release of nonviolent offenders in north carolina at a federal correctional facility. i have also supported early release programs, i voted and supported the first step act. i, as speaker of the house, was the first speaker and probably two decades, that actually did the justice reinvestment act early release of nonviolent prisoners. but how can i not read this to say that perhaps they should be released irrespective of the crime for which they have been charged? judge jackson: senator, if you
read two more sentences down, that is precisely what i focus on. this is a case united states versus wiggins where i was setting up my analysis as to why i would not be releasing mr. wiggins in this case. he was arguing essentially what i said in that statement. he was arguing that the circumstances of covid-19, which at that point, was rampant in the prisons. we had not had a vaccine, there were very difficult circumstances for prisoners who could not be separated from each other in the context of our jail. and as i say at the beginning of that opinion, at that point, covid was ravaging the jail. the question for courts under the statute that congress has enacted for compassionate release was whether covid-19, a
pandemic in the jail, was an extraordinary and exceptional circumstance or extraordinary and compelling circumstances that should warrant release. what i said in that statement that you read was it would seem as though something like a deadly pandemic rampant in the-g everyone. i go on to say in that very opinion, congress has indicated that we have to take each case individually. we have to look at the harm to the community that might be caused by the release of individual people. we can't just release everybody. ybody, i said in that opinion -- sen. tillis: i'm sorry to interrupt you, but i am on four minutes. i feel like -- i also had my staff provide me this morning in very small type recidivism and
federal sentencing outcomes. i have said, i am on record as saying i want people out, i want them to have an opportunity to reenter society and become productive members. i have a track record of ratifying bills to that effect since i have been here in the senate. i'm going to continue to work on it. tell me why the numbers i'm looking at here -- we have recidivism rate, the most recent one i have before me, and i would be happy to share it, to have this submitted to the record, that i think an eight year look back says that 49% of the people incarcerated are rearrested within eight years. if you take a look at the types that are most likely to be reoffending, it is firearms offenders, robbery offenders,
violent offenders re-offended at a higher rate than nonviolent offenders. if i look at this and i look at your philosophy with respect -- and it is admirable. i said that the content of your character would be demonstrated this week and it has been. one of the things that are first among them are your compassion and your belief that people can redeem themselves. but if you look at some of the cases that our, my colleagues have brought up, and if you look at even with the context you provided on the last statement about the department of corrections statement and wiggins, can you understand how some of us may think that your compassion could lead to bad results raised on the numbers that we have here with recidivism?
that congress may need to work more on that to make sure that we get it right? can you understand how somebody who from our side of the aisle could see that maybe there is some pattern to give the benefit of the doubt that someone who has been incarcerated in some cases very serious crimes? judge jackson: thank you, senator. i don't recall saying anything about compassion in the way that you are describing. sen. tillis: no, i am just saying if i take a look at your responses to some of my colleagues questions and your statements to some of the defendants, it seems as though you are very kind person and that there is there at least a level of empathy that enters into your treatment of a
defendant that some could view as maybe beyond what some of us would be comfortable with with respect to administering justice. judge jackson: thank you for letting me clarify. the statements that i made about my practices as a trial judge, which i am no longer a trial judge, were intended to explain how trial judges operate and how they impose sentences within the framework congress has provided. the statute that applies to us tells us to look at all of the various factors that congress has set forward including the nature and circumstances of the offense, history and characteristics of the defendants and tells us that we should be imposing a sentence sufficient but not greater than
necessary to promote the purposes of punishment. congress also tells us one of the purposes of punishment is rehabilitation. my attempts to communicate directly with defendants is about public safety. most of the people who are incarcerated via the federal system and even via the state system will come out, will be part of our communities again. it is to our entire benefit as congress has recognized to ensure that people who come out stop committing crimes. what i convey or did when i was a trial judge, as i sentenced people to very lengthy periods of incarceration, was, you are getting your day in court, you
are able to say what you want to say, but you have to sit here and listen to my reading into the records the victim statements, in this case. you have to go away understanding that i am imposing consequences for your decisions, your decision to engage in criminal behavior. the reason why i did that, i have said, is because iraqi-sized as a defender that there were lots of people in our system who instead of taking responsibility for what they had done and then ultimately understanding the harm and potentially not doing it again, instead of that, those people were bitter, angry, feeling victimized because they did not get a chance to say what they wanted to say because nobody explained to them that drug crimes are really serious crimes. nobody said to them, do you
understand that there are children who will never have normal lives because you sold crack to their parents and now, they are in a vortex of addiction. do you understand that, mr. defendant? i was the one in my sentencing practices who explained those things in an interest of furthering congress's direction that we are supposed to be sentencing people so that they can ultimately be rehabilitated to the benefit of society as a whole. sen. tillis: i appreciate that. i just still note that virtually half of those people statistically speaking that you gave that speech to, within eight years, were back in prison. in some cases, for more serious offenses than the first incarceration. thank you, mr. chair. >> thank you for that line of questioning and i noted that you joined a letter with senator grassley and myself in march of
2020 at the earliest stages of this talking about release under these similar circumstances. we all set at the same time, low-risk inmates would be considered. sen. tillis: only low-risk inmates. sen. durbin: i marked that for the record. we are going to start the second round of questions 20 minutes each. i will kick it off. this is an unusual document. this constitution of ours which has taken up so much time in the hearing. it is really at the core of public service. i don't know that there is a place you can take a job at the federal level in any branch of government without taking a vote to defend this document. i don't know about other countries and the oaths that may be required, but we spell out the oath to be taken by the president of the united states and to uphold and defend this document.
there is great debate about just what this document means in today's context. we understand the wisdom, the inherent wisdom of the document in the fact that we are still here 230 years later, with the design of a government that has endured longer than virtually any other democracy, which of course, speaks to the wisdom of the founding fathers and their plan for this nation. we also understand, taking an honest look at it, that you barely get into this document, article one, section two and you run into a problem because in article one, section two, the article that relates to congress, they talk about who will be counted for a portion among the states and there is the awful reference to 3/5 of all other persons, which though the document never mentions slavery, are slaves, what was being spelled out here by the founding fathers was, how are we
going to count these slaves? they were to be counted as 3/5 of a person, which is a horrible notion by any standard, but the wise founding fathers included it trying to deal with the reality of their day. i hear debates back and forth of originalists, textual lists, and others, and you have been asked as often as any other nominee what your thought is. you have talked about staying in your own lane judiciary, methodology and the like. i would like to explore, without asking you to get into any particular fact pattern, the reality of a couple of things. first, when the bill of rights was written, the first amendment to it made certain to guarantee freedom of press. freedom of the press in 1790 was of course referring to a piece of paper, a newspaper, and saying that they would be freedom to engage in that
process in this democracy of america. now, the freedom of press is referring to this, and things have changed an awful lot. we have a circumstance now where people no longer have just a handful of television networks or known publications, but turn for their sources of information to places like facebook and twitter and beyond. and we have a real serious question about what is a publication in america. what does it take to be a publication and be press? is my blog that i published tomorrow, the press guarantees it with a constitutional right, that i have a right to publish it as i wish and say what i? i guess my question to you as we look at this is, how do you move from the language of 1789, 1790,
to the reality of 21st century and make sure it is relevant? if more people are relying on facebook and twitter for information, and they are common sources of television and newspapers, how do we rationalize that they can say facebook and twitter to a former president of the united states, you cannot publish here. you're not going to be allowed to do that and they have done it. how do you reconcile that conflict of the changing times, the dramatic changes in technology, with the founding fathers envisioned and what we face today? judge jackson: thank you, senator. the challenges that you identify are the types of things that the supreme court is now dealing with. we have a foundational document that has text and principles.
it establishes freedoms and foundational important concepts that are intended to govern us and that we are bound by as a society. there is modern technologies, as you say, that the framers and founders could not have imagined. the cell phone and all of the other things that we now rely upon. as i mentioned earlier, the supreme court and every court deals with individual cases, disputes about issues and when the court gets an issue that requires constitutional interpretation, it looks at the
facts and circumstances of the particular case and the text and principles of the constitution in light of the times in which they were written and analogize his to present day. the supreme court has considered the cell phone issue with respect to the constitutional principle of unreasonable searches and seizures which is a protection from government intrusion that the framers called an unreasonable search. the text, unreasonable search, does not have an inherent definition. what the supreme court has done is looked back at the time of the founding to determine what kinds of intrusion would have been covered when those words
were written into the constitution. and to the extent that at the time of the founding, those words covered things like police officer intruding into your home and looking into your papers and affairs, then, the supreme court analogize his that circumstance to the modern-day circumstance of a cell phone, which now, is in all respects, says the court, like rifling through your papers and affairs. it is a process of understanding what the core foundational principles are in the constitution as captured by the text as originally intended and then applying those principles to modern-day. sen. durbin: i will just give you two illustrations of my thinking, my frustration or
understanding of the challenge. let's put it that way. senator feinstein and i joined in legislation several years ago to talk about confidentiality of sources for news entities. and whether or not a person could be reportedly compelled to disclose those sources. the effort drew some of the best and brightest in the news business to come testify before the committee. the effort failed and faltered over what is a publication, who is a -- who was in the business of dispensing news? does it involve money? will this be an official publication or can i just put up on my blog what i wish and resist any efforts to discover my sources? that was one of the serious issues that we face.
i don't want to get into more specifics. when people pledge that we are sticking with the original words, you better have your mind open to the reality that this world is changing and change. many of those principles are sound today. the challenges of interpreting with the reality of today's technology is a challenge. a very difficult one which you will face in court. i will try to set an example here. i'm going to yield back some part of it. senator cornyn is here, i'm glad he is because i'm going to an address an issue which he raised this morning. i wanted to do it while he's physically present. i'm sure he will address them.
senator graham said that you had gone too far, calling the government a war criminal and pursuing charges against a terrorist. senator cornyn asked judge jackson, you referred to the secretary of defense as war criminals, why would you do something like that? as i noted yesterday, these charges don't hold up. both graham and corrine left out important context, specifically that the allegation of war client -- crimes was about torture. jackson did not use the phrase war criminal. they ruled that the allegation is a distortion of context. the new york times when on to say, judge jackson didn't call the former president war criminals. she was one of several lawyers in a 2005 boilerplate habeas corpus petition on behalf of detainees at guantanamo. they claim the u.s. government
had tortured them to constitute war crimes. the petitions named mr. bush and mr. rumsfeld in their official capacities as respondents. washington post noted, one key thing to note as -- they are named in petitions because they have to be to clear procedural hurdles. they later named barack obama after the administration change. others are named in their official capacities not because of actions they took personally as individuals. the larger point is that jackson was acting as the detainees lawyer in her role as public defender. one of the underpinnings of the american justice system is that even the most reviled criminals have the right to a vigorous defense. would you like to comment on that statement that i just made?
judge jackson: senator, i would just say that public defenders don't choose their clients. yet they have to provide vigorous advocacy. that's the duty of a lawyer. as a judge now, i see the importance of having lawyers who make arguments, who make allegations. in the context of a habeas petition, especially early in the process of the response to the horrible attacks of 9/11, lawyers were helping the courts to assess the permissible extent of executive authority by making arguments.
we were assigned as public defenders. we had very little information because of the confidentiality or classified nature of a lot of the record. as an appellate lawyer, it was my obligation to file habeas petitions on behalf of my clients. >> thank you. i will try to set an example by yielding back seven minutes of my time. i will urge my colleagues to follow that example if they wish. >> before i start, i would like to make a point. yesterday, senator durbin referenced congress's effort to stop child pornography and the exploitation of minors. i worked on this issue for decades. in 1983 i supported the protection of children against
sexual exploitation act. in 2012, i sent the letter to the sentencing commission while judge jackson was vice chair. in the letter, i encouraged the sentencing commission not to lower sentences for child pornography. i said that "it would be a disservice to the american people to have the commission issue a report of advocates for the reduction of sentencing for a class of criminals who cause profound and lasting damage to their victims." i would like to have that put in the record. sen. durbin: without objection. sen. grassley: yesterday, you refer to your record of decisions as the best thing to look at when explaining and evaluating your nomination. but you also said that you have not had enough cases involving
constitutional law to develop a judicial philosophy. if you have not had to develop a philosophy for deciding cases yet, what else do you think would be helpful for us to look at? judge jackson: respectfully, senator, i do have a philosophy. the philosophy is my methodology. it is a philosophy that i have developed from practice unlike some judges who come to appellate work for macadamia -- academia and have some overarching theory of the law, i approached cases from experience, from practice and consistent with my constitutional obligations. my philosophy is one in which i look at cases impartially
consistent with my independence as a judicial officer. i understand my limited role in the constitutional scheme and therefore, take very seriously all of the constraints on the exercise of my authority that exists in our system. what that means is that at the beginning of every case, i am setting aside my personal views. sen. grassley: are those the three steps you gave us? you don't have to go into that. let me go one. so the supreme court overrule a president when it is clear to the justices that the president was wrongly decided? judge jackson: thank you, senator. stare decisis, the principal in which the supreme court uses at the outset, it is the sort of
background rule of judicial maintenance of precedents in order to have predictability, stability in the law, is the kind of principle that the court begins with when it is asked to overrule or revisit a precedent. the court has developed certain factors that it looks at before it actually undertakes to reverse a precedent. one of those factors is the view that the precedent it is reconsidering is wrong but that is not the only factor. the court also determines in addition to whether or not the required precedent was egregiously wrong, the court has said, the court looks at whether there has been reliance on that
prior precedent, whether the precedent is workable or has proven workable over time, whether they cases in the area of the precedent have shifted such that the precedent itself is no longer on firm foundation and whether there have been either new facts or a new understanding of the longer on t give rise to a need to revisit the precedent. it is not just a look at whether or not it is wrong, and it is important that the court take into account all of those factors because stare decisis, meaning letting the precedent stand is a very important pillar of the rule of law. sen. grassley: one is it appropriate for a judge to impose a sentence enhancement under the guidelines? judge jackson: thank you,
senator. the federal sentencing guidelines are crafted to assist courts in making sentencing determinations within the broad range that congress prescribes for cases, for crimes. in the typical case, a defendant is convicted of some crime. in the federal system, they are usually very serious crimes. congress will say judge, you can give that person a sentence anywhere between zero and 20 years. for example. the sentencing guidelines are designed to set out a series of factors that judges should be
looking at when they decide what they are going to sentence that particular person to. those factors will be things like if this is a violent crime, does the person have a weapon? if this is a violent crime, was there any injury? and so, the judge is looking at these facts, in many cases, horrible facts and calculating the guideline based on what we call enhancements. each one of those different characteristics or conditions is an enhancement. you asked when is it important -- sen. grassley:. appropriate. judge jackson: the judge has to appropriate the guidelines in every case. that is how we start the process. under the statutes, in addition to calculating the guidelines with all of those enhancements, the way our system now works is you determine what the guideline
range of punishments is going to be and then, congress says you look at a series of other factors in addition to the guideline range. at the end of the day, the judges in the system now are choosing sentences based on both the consideration of the guidelines and also the iteration of the statutory fact there's -- factors that congress has put forward. sen. grassley: have you ever declined or imposed an enhanced sentence on a defendant because you disagreed with the enhancement as a policy matter? judge jackson: thank you, yes and the reason is because of supreme court case law concerning the way in which the guideline system operates. the supreme court has determined, in a case we
discussed yesterday, that the guidelines are no longer binding on judges meaning the guidelines you can calculate but you don't have to stay in the guideline range anymore. that was the supreme court's booker case. i care member if it is in that case or subsequent case law, but the supreme court has also made clear that when you are calculating the guideline range in the new system that we are in right now, judges are free, the supreme court has said, to decide in particular cases whether as a policy matter, they disagree with a particular enhancement. that is the state of the law, that is what the supreme court has said judges are permitted to do in cases. and so, i have, in certain cases, given the way in which the guidelines are operating,
the disparities that are created in cases, i have at times identified various enhancements that i have disagreed with as a policy matter because the supreme court has said that that is the authority of a sentencing judge in our system. sen. grassley: are nationwide injunctions constitutional? judge jackson: senator -- sen. grassley: you have issued them. judge jackson: thank you for letting me address that. the reason why ipods is because what i have issued is not technically a nationwide injunction. people call it that, but in a particular set of cases, administrative agency cases that are brought under the administrative seizure act, these are challenges to agency
actions like agency rules that they have promulgated and if the challenge is to the procedures that the agency undertook to create the rule, the statute that applies, the administrative procedure act tells the court that if you agree with the plaintiffs, that the agency rule is faulty, procedurally, the remedy in the statute is to invalidate the rule. that is what congress tells judges to do. technically, that is not a nationwide injunction. that is invalidating a rule that the agency has enacted. it may have nationwide effect because the agency may have implemented rule nationwide, but with the court is doing is not reaching out and touching
everyone in the country. the court is directing the government that has promulgated that rule, that the rule is invalid. that is what the statute tells us we have to do in those cases. that is different than a nationwide injunction because a nationwide injunction would be a situation in which we are not dealing with the rule, we are not dealing with the administrative procedure act, we are dealing with a particular case in which something has happened between the plaintiff and the defendant, and the court says based on what happened in this case, i'm going to tell everybody in the country that you cannot -- you cannot operate in this way anymore. i'm going to find on the basis of this particular case, i'm going to join everyone in the country not to do that anymore. that is a nationwide injunction which is not what i have done in the cases you're talking about.
sen. grassley: how can the judiciary address concerns about forum shopping giving the rise of nationwide injunctions? judge jackson: well, forum shopping is a concern that arises when litigants seek to go to different places in the country where they think that they may get a better result. it is something that congress can address because congress has the power to determine various aspects of judicial process. sen. grassley: explained the political question doctrine and then, what standards would you
apply to determine whether a claim before you implicates a political question. judge jackson: the political question doctrine is a doctrine that relates to the jurisdiction of the court. as i mentioned, the courts are in a particular branch of government, the judicial branch, that is limited in its power. the courts cannot make policy. they can't reach out into the world and decide that certain things are good or bad and then address them. they have to wait for cases to come and decide them. when a case comes, it has to be presenting a question of law for the court to answer it. if a person comes to the court and they ask the court to answer
something that is properly in the province of congress, if they ask a political question, then the court has to say, i am sorry, that is not my role. i had a case that involved yemenis citizens, i'm trying to get the facts exactly right, but they had relatives, i think they were resident in the united states, and they had relatives in yemen, a war-torn area, this is a few years ago, and they came to the court, me, asking if i could direct the administration to extract their relatives from yemen. that they wanted me to order the executive branch to send in
troops and get their relatives out because it was obviously dangerous for their relatives to be in that country. what i said in that circumstance is essentially, i don't have jurisdiction to do that because what you are asking me to do is a political question. the question of when and where troops can be sent and who can be extracted from foreign government belongs with the executive branch. you have to ask them. i said, i have no jurisdiction. that is the political question doctrine and it is well-established in our law. sen. grassley:, yesterday, in response to a question from senator durbin, you said that as a judge, you are "trying in every case to sustain -- to stay in your lane." that is the same time you gave
us the three steps to go through as you work yourself through a case. you also described the text of law as a constraint on your authority. but in several cases, i will list make the road new york, waterville marine companies and others, the d.c. circuit judge to your decision or criticize your reasoning for failing to follow a clear and unambiguous text. why did not the clear text of the law constrain your authority in these cases? judge jackson: thank you, senator. you mentioned three cases. certainly, with respect to the second one, the d.c. circuit judge not say that the text was clear. in fact, that is what happens in
cases. that judges at the trial level do their best to make interpretations. in that case, it involved the channeling provision. it involved a provision, a statute that was designed to channel the judicial authority into an agency and i interpreted the statute and by thought the arguments that were being made, the claims that were being made were not ones that congress had intended to channel. i went through the analysis and i explained my reasoning as to why i thought i still had jurisdiction and i went on to address the merits which is the duty of the judge if they determine they do have jurisdiction.
the d.c. circuit judge sick read and wrote an opinion that interpreted the statute differently with respect to those claims but it was a case of first impression as to what those claims meant and whether they were supposed to be channeled or not. and that happens. district judges do their best and sometimes the court of appeals, the supreme court has not spoken to the issue and the parties disagree. i explained that when i was attempting to do in light of congress's enactments, not only that particular immigration provision, but also, the administrative procedure act, was reconcile the statutes of congress, which is something that the courts also are supposed to do. that there are statutory implication cannons that make clear that courts are supposed to understand that congress
intends for its statutes to work together to the extent that you are interpreting and the claim is made that allows you to do that. that is the sort of way in which interpretation is done. i can go through my actual analysis. i did it yesterday as we talked, but there was a good-faith disagreement between me and the court of appeals, which gets to decide as to what the language meant and whether or not congress actually intended to exclude the apa using that language under those circumstances. sen. grassley: thank you very much. sen. durbin: senator lahey? sen. leahy: i commend you for your poise, endurance, thoughtful answers.
i felt privileged to be here for hours of that. you had even more hours. i want you to know the reaction in my own state of vermont, i have gotten all kinds of emails and calls from friends across the political spectrum. they have all been praising you and they said they realize a lot of the questions had nothing to do at all with your qualities of being on the supreme court, but were some members ending for a soundbite that they might be able to put on a political website where it now is. for example, weird overheated claims yesterday that your representation of guantanamo detainees somehow signaled your policy preference with how the united states has dealt with those detainees. every single member of this
committee, especially those of us who have been assigned as counsel in cases should know better than to complete a past representation for policy decisions. simply by choosing to represent them. your policy views aside, can you reiterate why it is so important for our court to have the benefit of the best possible legal representation on both sides of any case and especially in cases where we are in uncharted legal and constitutional waters. judge jackson: yes, thank you, senator. so i've been a judge for almost a decade. what i've learned is that as part of my duty to render
decisions consistent with my judicial oath in support of our constitution and the rule of law, i need to consider all of the arguments related to the dispute that is being brought in my courtroom. i need to hear from not only the parties who are prosecuting a case, for example, a crime. but also from the defense. and some of these crimes are terrible crimes. our constitution is designed to ensure that the government affords due process to people who are being accused of crimes. and one might think it's even more important in a way in a
case in which someone is so reviled. it's kind of like the first amendment. it's a protection for unpopular views. it's needed when there's a chance that the government will suppress or do something that's untoward. and so in the criminal justice system we have many, many amendments that are designed to make sure that unpopular people, people who are accused of doing terrible things, are still treated fairly by the government. and that's a limitation on government power, which is the framework of our constitution. it is about limiting government overreach. and so in the criminal justice system, you can imagine, and the
framers imagined a world in which the government would use its authority to deprive people of their liberty. to throw people in jail, to lock them up and throw away the key. to not give people the opportunity to make arguments about their freedom. that would be a real exercise of government power, government overreach. and so the framers said, what we're going to do is we are going to put in our foundational documents a protection for people that the government is accusing of a crime. and that's not to say that the people are innocent. that's not to say that they haven't done terrible things. what it's about is ensuring that the government does what is required in order to ensure all of our liberties. it preblgts all of us -- it protects all of us. because there might be someone
who is innocent and if the government is able to just do whatever it wantses in criminal process, we are all at risk. senator leahy: i think we've all seen cases where that happens. i mentioned to you yesterday that i spent nearly a decade as a prosecutor. especially when i had serious cases, i wanted the best defense attorney possible on the other side. i wanted a case -- [indiscernible] -- went up on appeal automatically if it carried a heavy penalty, i wanted the court, the appellate court to look at it and said, ok, there were not errors of counsel on either side. but i also, as a strong proponent of our constitution, i think what you're saying is something i totally agree with. we have to have individuals' rights protected. it doesn't mean the defense counsel is in favor of murder or
rape or armed robbery. but the rights have to be protected. let me tell you this about another area. i've long championed the bipartisan john lewis voting rights advancement act. i think it would help curtail the growing wave of voter suppression sweeping across our country. again, something we don't have to worry about in vermont. unfortunately they do in other states. i'm passionate about this legislation. i've always believed that our democracy is stronger when we expand, not shrink, the rights of our citizens to fully participate. i believe our democracy grows stronger with your historic nomination and your presence here today. i've told you privately how my family members feel about that. why is it important for our
democracy's institutions, courts and others, to reflect the rich diversity of our nation's citizenry? judge jackson: thank you, senator. one of the things we've been talking about is the difference between the judicial branch and the other branches of government. we have three branches in our federal system and the legislative branch has certain powers and it can do certain things to ensure that its praguetifics are achieved -- prerogatives are achieved and the executive branch has the power of might, the president controls the military. the judicial branch, its force in our system is the protection of the rule of law which can only be done by essentially the
consent of the governed. it can only be done if people in our society believe, decide and agree that they're going to follow what it is that courts decide. and so one of the reasons why having a diverse judicial branch is important is because it lends and bolsters public confidence in our system. we have a diverse society in the united states. there are people from all over who come to this great nation and make their lives. and when people see that the judicial branch is compriced of a -- compraoeutzed of a variety -- comprised of a variety of people who have taken the oath
to protect the constitution and who are doing their best to interpret the laws consistent with that oath, it lends confidence that the rulings that the court is handing down are fair and just, that everything has been considered, that no one is being excluded because of a characteristic like race or gender or anything else. and that's important. i would also say that it's important from the standpoint of role modeling that i have been so touched by the numbers of people who have reached out to me in this period of time to say how much it has meant to their daughters, to their sons, to the next generation that i've been
appointed, nominated and hopefully confirmed. senator leahy: i agree with you. i've certainly seen that within my own family. we do have areas where we agree on things on this committee. senators grassley and senator cornyn, myself and others, believe in transparency as part of our democracy. we've done this with the freedom of information act, we've updated it a number of years, senator cornyn and i have been the key sponsors of legislation enjoyed by senator grassley and senator durbin and others to improve the freedom of information act. you talked about the detailed opinions you've written to try to do the same thing.
i think it's safe to say you think transparency is central to the duties of a judge. do you intend to carry that attitude, and you will, and you will, become a member of the u.s. supreme court? judge jackson: thank you, senator. the value of public confidence, which i was just discussing, i think is enhanced when the public understands the reasons that a judge renders his or her ruling. one of my mentors used to say, people think the judicial branch is so secretive, but in fact the judicial branch is the only branch that actually has to tell everyone, that actually has to write their opinions and explain why it is that they did what they did.
and so i tried, i've tried in the nearly 10 years that i've been on the bench, to make my rulings transparent. to explain all of the inputs that i have considered with respect to the case, to lay out the law as i see it, in interpreting what congress, for example, has done with respect to a particular case. and what legal provisions that i think are relevant to the dispute. and then to explain my analysis. why am i granting this motion or denying this claim? and my hope is that it will help people to be confident in my reasoning and, even if they
disagree with it, they will understand what it is that i think. and i think that's important for public confidence in promoting the rule of law. senator leahy: you know, you had talked about your clerking for justice breyer and how it opened up doors of opportunity. i remember so well our conversation in my office and the president protemp's office, talking before these hearings began. you told me what you thought it would mean to your parents and your family, your husband, your daughters, your parents who have been here throughout this and what it meant to your grandparents. you said you were the lucky first inherrer to of dr. king's -- inheriter of dr. king's civil rights legacy. i keep a daily journal.
i wrote that down. it means a lot. so let me do sort of an open-ended question. you've patiently answered our questions this week. i told you the reaction in vermont, disappointment, obviously some were political. i heard that from both republicans and democrats because they think it should be your legal thoughts on the supreme court. so i'd like to give you an opportunity to speak directly to the american people, including those in the state of vermont. is there anything you want to convey to them about what kind of supreme court justice you would be if and when you're confirmed? it's all yours, your honor. judge jackson: thank you, senator. first, let me just address my
comments to you and your office. which is something that i've said in speeches because it speaks to who i am and what i value. my parents grew up in florida under lawful segregation. and what that means is that when they were coming through middle school and high school, they were not allowed to go to school with white students. this is in the era before and right after the brown vs. the board decision. there was lawful segregation in places in this country. and it was after that time that dr. king made his famous comments that people mentioned about having a dream where
people can be judged by the -- not by the color of their skin, but by the content of their character and i then was born in 1970. and the contrast between my reality growing up in florida and my parents' reality growing up in florida was like night and day in terms of the opportunities that were available to me, that weren't available to judge motley who is one of my role models in the law. and so what my being here, i think, is about at some level is about the progress that we've made in this country in a very short period of time, i would say. seems like a long time. but one generation we've gone
from the reality of my parents' upbringing to the reality of mine. and i do consider myself, having been born in 1970, to be the first generation to benefit from the civil rights movement from the legacy of all of the work of so many people that went into changing the laws in this country so that people like me could have an opportunity to be sitting here before you today. what i would hope to bring to the supreme court is very similar to what 115 other justices have brought, which is their life experiences, their perspectives, and mine include being a trial judge, being an appellate judge, being a public
defender, being a member of the sentencing commission. in addition to my being a black woman, lucky inheriter of the civil rights dream. and in my capacity as a justice, i would do what i've done for the past decade, which is to rule from a position of neutrality, to look carefully at the facts and the circumstances of every case without any agendas, without any attempt to push the law in one direction or the other, to look only at the facts and the circumstances, interpreting the law consistent with the constitution and precedence and to render rulings
that i believe and that i hope the people would have confidence in. senator leahy: thank you. chair durbin, i've had the opportunity to be here, first justice got to vote on was john paul stevens. nominated by president gerald ford. proud to vote for it. it's a long arc, judge jackson, but i'm so proud of your answers and i yield back. senator durbin: thank you, senator lay i had. let's take a -- leahy. let's take a break for about 15 minutes. thank you very much, judge.
>> watched the conclusion of the confirmation hearing for ketanji brown jackson. watch on c-span, c-span.org, or by downloading the free c-span now mobile app. c-span is your unfiltered view of government. we are funded by these television companies and more, including comcast. >> comcast is partnering with 1000 community centers to create wi-fi neighbor listing so students from low-income families can get the tools they need to be ready for anything. >> comcast -- comcast supports
senator durbin: questioning will resume. senator graham. senator graham: thank you, mr. chairman. good morning, judge. judge jackson: sorry much good morning, senator. senator graham: i want to comment on last exchange. judge, this is not of your making so it's really not about you. but representative green, who is a fine man, came up and said that he thought the ex change between you and senator leahy at the end about the arc of time and how far we've come as a nation was -- [indiscernible] -- i guess here's the point i'm trying to make to the american people, to my democratic colleagues. i wish you had that same attitude when an african-american conservative is appointed to high office in the judiciary. so what happened with janice
rogers brown? in 2003, she's an african-american nominee for the d.c. district court, 54 years old, a little bit older than you. but pretty close. she was a daughter and granddaughter of sharecroppers, a childhood in alabama under jim crow. she was a single mother, a member of the california supreme court. instead of celebrating how far we've come, my democratic colleagues filibustered her aessential to the d.c. circuit court. because it's well known on our side that we were very much considering her to be the first african-american woman on the supreme court. so rather than this wonderful exchange, which was wonderful, representative green, where were you and others when there was a
wholesale assault on her nomination? nowhere to be found. the filibuster was used for two years to stop her nomination. and we eventually did a gang of 10, of which i was a part, so she could make it through. after a two-year delay. this is what the current president said when he was in the senate, joe biden. asking about her, janice rogers brown, being on the supreme court. i can assure you that would be a very, very, very difficult fight and she probably would be filibustered. that's what he said about an african-american conservative nominee by president bush who had served five years on the california supreme court. we're not going to live in an america like that any longer. to my democratic colleagues. if you're a person of color, a woman, supported by liberals, it's pretty easy sailing.
but if you're miguel estrada, janice rogers brown, amy cohen barrett, on and on and on, your life get turned upside down. you had nothing to do with that. i just make this observation that when you come up to me and talk about how moving the exchange was, i agree. i just want to remind you there was somebody else of color, a woman of color, that was picked for the d.c. circuit, one of the highest courts in the land, that did not meet the same fate. and those days should be over. do you believe illiam immigrants should be allowed -- illegal immigrants should be allowed to vote, judge jackson? judge jackson: thank you, senator. under our laws you have to be a citizen of the united states in order to vote. senator graham: so the answer would be no? judge jackson: it's not consistent with our laws, so the answer is no.
senator graham: ok, they did that in new york. judge jackson: senator, i'm not aware of the circumstances -- senator graham: ok. it's a good answer. the answer is no. can an unborn child feel pain at 20 weeks in the birthing process? judge jackson: senator, i don't know. senator graham: are you aware of the fact that anesthesia is provided to the unborn child at that time period if there's an operation to save the baby's life because they can in fact feel pain? are you wear of that judge jackson: i am not aware of that. senator graham: that may come before you one day so just keep an open mind. you said just a bit ago that you apply the law and the facts and call them as you see them, is that right? judge jackson: tha*euts correct, senator. senator graham: and you look at the statute the way it is written and you try to apply it in plain english, is that right? judge jackson: that is correct, senator. senator graham: you have heard of a case called make the road vs. macilean?
judge jackson: make the road new york? yes. senator graham: make the road in new york, who are they? judge jackson: make the road, new york, is a nonprofit that represents various individuals in the sort of immigration law. senator graham: they're a nonprofit advocacy group for immigration issues. did you know they received large donations from the network, from george source's open society network? judge jackson: no. senator graham: well they canner did. in that case, what was the issue? judge jackson: the issue in that case was a challenge to a change in administration policy concerning expedited removal, which is a policy that congress
enacted in order to expedite certain removals in the immigration system. more narrowly, before expedited removal -- senator graham: some cases do not fall in this category, right? judge jackson: well, -- senator graham: trust me on that. because the statute says it doesn't. judge jackson: if a person who could otherwise be subject to expedited removal makes and has a credible fear of torture in their country, they can be -- senator graham: again, they make that claim. judge jackson: they can be determined to qualify for regular removal rather than expedited removal. senator graham: expedited removal is a creature of congress, folks. and if you've been here two years or less, the statute, the statute, sorry, the statute.
the statute would allow the administration and office to have expedited removal, avoiding a lot of the hurdles that would exist otherwise for people here two years or less. during the obama, even bush, years, they did not look at it in terms of applying it to everybody. some people coming by air got expedited removal. others didn't. the trump administration decided to use the authority given to it by congress to remove all eligible cases two years or less under the expedited removal statute is that a fair summary? judge jackson: senator, i would say it differently. senator graham: well, say it differently. judge jackson: all right. the statute that you've put up indicates that congress is giving the department, it says
the attorney general, but now it's the department, the ability to determine what category of aliens -- senator graham: two years or less. judge jackson: yes. but importantly the authority was -- it was not congress saying two years or less. what congress said is you, agency, have the authority to determine what category of persons between -- who have been here between zero and 24 months -- senator graham: which is two years. judge jackson: forgive me, senator. what i'm trying to explain is that the authority given to the agency was to determine what length of time -- what length of time. it was not the authority to
deport everyone who has been here for 24 months. it was the authority to determine what length of time a person has to be here in order to be subjected to expedited removal. senator graham: here's what the statute says. the attorney general, which is actually the d.h.s. secretary, -- [indiscernible] -- one and two of this subparagraph to any and all aliens described in subclass two as designatedded by the attorney jeopardy, actually d.h.s. definition should be -- [indiscernible] -- discretion of the attorney general and may be modified at any time. now, i've been in this business for quite a while. what the trump administration did was to use the discretion given to it by statute in a way different than prior administrations. this advocacy group, the advocacy group, tried to strike
it down. you ruled for them. here's what the d.c. circuit court said about your ruling. there could hardly be a more definitive expression of congressional intent to leave the decision about the scope of the expanded removal within statute or bounds to the independent judgment. the forceful phrase sole and unreviewable discretion by its exceptional terms. such designation shall be in the sole and unreviewable discretion of attorney general and may be modified at any time. to those of us in the law writing business, i don't know how you could tell a judge more clearly that the administration, the agency in question, has discretion to do certain things within the statute. so this is an example to me, and
you may not agree, where the plain language of the statute was completely wiped out by you. you reached a conclusion because you disagreed with the trump administration and the d.c. circuit court of appeals said, as i quoted just a minute ago, there could hardly be a more definitive intention of congressional intent to leave the discretion to the secretary of independent judges. that to me is exhibit a of activism. let's go back to the child pornography cases. judge jackson: senator, would you allow me to -- senator graham: yes, please. judge jackson: thank you. the statute and the circumstances that you reference are asterisked in so far is that is what the statute says. it's not all of it. it doesn't describe the designation process that i was trying to articulate.
and it doesn't address the fact that congress has another statute that is presumptively applied in agency cases to tell agencies how to exercise discretion. there's also d.c. circuit case law that says that in addition to having that procedural statute be presumptive, even very clear designations of authority to an agency may still be subject to congress' other directions regarding how to exercise the discretion. senator graham: that argument fell on tkaef ears. judge jackson: understood. but that's our appellate process. senator graham: i have other things i want to talk about you gave an explanation but it didn't work. the d.c. circuit court said there could hardly be a more definitive expression of congressional intent. this is as good as it gets. there's no way to write a statute saying discretion lies in the agency.
this sole, it's nonreviewable. you're not convincing me -- [talking simultaneously] we can talk about it all day long but i agree with the d.c. court. this to me is an example, exhibit a, of a judge to get a result they wanted. child pornography. i have no doubt that you find child pornography disgusting as the rest of america. you're a mother. you seem to be a very nice person. are you aware of how many images are out there on the internet involving children and sexually compromising situations? judge jackson: senator, i'm not aware of the numbers but i've seen the images in my role. senator graham: let me tell you the numbers. in 2021, the national center for missing and exploited children cybertip line received 29.3 million reports of a
parent-child sexual exploitation containing 85 million images, videos and other files. that's in 2021. it's up. in 2019 it was less. so there's an epidemic of this on the internet. that if you go out on the internet, there are millions of pictures of kids being abused. when it comes to sentencing child pornography possession cases, do you routine ladies count the fact that a computer was used? judge jackson: thank you, senator, for allowing me to address this concern. the guidelines related to child pornography were drafted at a time in which a computer was not used for the majority, if not almost all, of these kinds of horrible crimes.
the guidelines have enhancements in them -- senator graham: there are two areas you said you disagree. what are those two areas? judge jackson: at the time that the guidelines were drafted, it was an aggravating factor, a substantial aggravating factor to use a computer in order to distribute and disseminate the images because the ordinary crime was not committed by a computer. so the -- senator graham: would you now agree with me that computers are sort of the venue of choice for child pornography people? judge jackson: yes. senator graham: ok. so, here's my point. if you believe as i do the computer has created a bigger demand, there are more photos out there because of the internet, more websites exposing this garbage, won't you want to
deter people from going down that road? judge jackson: senator, this crime is among the most difficult -- senator graham: no, answer my question. wouldn't you want to deter people from going down the road of using the computer that allows these people to have access to millions of photos because of the technology? i want those people deterred. if you're listening to my voice today and you're on a computer looking at child pornography, and you get caught, i hope your sentence is enhanced because the computer and the internet is feeding the beast here. that all these images out there are going to be more over time because people use computers. now, did you also say that the number of images should not be considered as a sentence enhancement? judge jackson: with respect to the computer, one of the most effective deterrents is one that i imposed in every case and that
judges across the country impose in every case, which is substantial, substantial supervision. senator graham: wait. you think it is a bigger deterrent to take somebody who is on a computer, looking at sexual images of children in the most disgusting way, is to supervise their computer habit verse us is putting them in jail? judge jackson: i didn't say versus. senator graham: that's exactly you what said. i think the best way to deter people from getting on a computer and viewing thousands and hundreds and over time maybe millions of children being exploited and abused every time somebody clicks on is to put their ass in jail, not supervise their computer usage. judge jackson: senator, i wasn't talking about versus. senator graham: you just said you thought it was a deterrent to supervise them. i don't think it's a deterrent. i think the deterrent is putting in jail.
senator durbin: would you let her respond? senator graham: yes. does sentencing have a deterrent component? judge jackson: yes, senator, deterrence is one of the purposes of pun innerment -- punishment. and congress has directed courts to consider various means of achieving deterrence. one of them, as you said, is incarceration. another, as i tried to mention, was substantial periods of supervision once the person -- senator graham: if i could ask you, in your view, it's more of a deterrent to have somebody substantially supervised in terms of their computer use who is looking at child pornography than it is to put them in jail? judge jackson: senator, i'm not saying it's more or less. senator graham: that's exactly what you're saying. judge jackson: what i'd like to point out is that if we are going to -- let me say it this
way. congress has authorized courts to use a number of different means to achieve the purposes of punishment. senator graham: and one of them is an enhanced punishment by using a computer. judge jackson: the enhancements with respect to using a computer relates to the penalty in terms of incarceration -- senator graham: you choose not to apply that in these cases. you've said that. i'll read you the quote. you decided not to apply the use of computers and enhancement. you've also said you're not going to hold the number of images that the person has looked at as a sentencing enhancement factor. is that true? judge jackson: no, senator, it's not the number of images that a person has looked at because we don't have that information. it is the number of images that they've either received or distributed senator graham: we don't know if
they looked at them but you're not going to hold it against them that they received 10,000 images versus 100? judge jackson: that's not what i've said, senator. senator graham: here's you said. i've decided to apply my general policy disagreement with respect to those enhancements. at least, that is, to computers and the number of images. folks, what she's saying is the reason she's always below the recommendation, i think, is because she doesn't use the enhancements available to her. she takes them off the table. and i think that's a big mistake, judge. i think that every federal judge out there should make it harder for somebody to go on a computer and do this. that if you use that venue, which is the venue of choice for all these child pornography cases, that you use it against them. i think the more you download, like drugs, the more you have the more you should go to jail. you made a conscious decision to disregard those two enhancements. sentencing factors. and i think that is a wrong way
to go in terms of deterring. to me, putting somebody in jail for using a computer is more of a deterrent than supervising their activity of watching the computer. that's just a difference that we have. i know i'm out of time. listen, you've lived an incredible life. but here's one thing that won't happen to you after we wrap up this. how would you feel if i had a letter from somebody accusing you of something, a crime, or misconduct, for weeks, and i give it to senator durbin just before this hearing's over and not allow you to comment on the accusation? how would you feel about that? judge jackson: senator, i'm not sure. i don't understand the context of the question. senator graham: did you watch the kavanaugh hearings? judge jackson: no,are you familt happened in the kavanaugh
hearings? judge jackson: generally. sen. graham: please, mr. chairman. she filibustered every question i had and she has the right to give an answer but i'm trying to make a point in 20 minutes. you were here for kavanaugh. she is confused about what happened. people on the other had an accusation against judge kavanaugh, in high school he sexually assaulted somebody. the rest was history. that was known to the people on the others and never revealed during the meetings they had with judge kavanaugh. he was ambushed. how would you feel if we did that to you? judge jackson: senator, i appreciated the kindness that each of you has shown me to see me in your offices, to talk to me about my approach. sen. graham: our 15 minute exchange was very pleasant, you
are a nice person you have a lot to be proud of. i would never do that to you. if i have information that is sketchy as best i would share it with you. i would not disclose it at the last minute of the last day of the hearing. i have already given it to the newspapers so the whole country can read about it before you said a word. i and asking her how she may feel about what y'all did. >> your time is expired, and i will give her an opportunity to finally complete an answer. sen. graham: just answer the question. judge jackson: senator, i don't have any comments what procedures took place in this body regarding kavanaugh. what i would like to answer is your point about my sentencings in child pornography cases. the point of the guidelines is to assist judges in determining
what punishment to provide in cases. the idea is that between the range of punishment that congress has prescribed judges are supposed to be providing proportional punishment based on what a person has done. this scheme doesn't place everyone at the same level. the point of judging and the guidelines is to look at what happened in a case and compare defendants to each other in terms of what they've done and get proportional penalties -- sen. graham: she has said, mr. chairman, she doesn't have the same sentence for someone using their computer for everyone. judge jackson: can i explain
why, sir? >> i will give the witness a chance to respond to you. sen. graham: finally. judge jackson: at a time when the guidelines were created for child pornography come this crime was primarily being committed by people who were literally mailing one to five, 10, 1 hundred photos at a time. sen. graham: h ieing committed now. >> let her complete her answer. judge jackson: as a result the commission determined in the guidelines it was a substantial aggravating factor if the facts of the case demonstrated someone had been distributing hundreds of images. what that meant was over this maybe it was a long period of time they had collected one photo at a time, they had
amassed it, potentially mailed one at a time, and that showed really aggravated, terrible conduct. i'm not saying as a baseline it is not terrible, it is all terrible. we are differentiating among defendants. in a world in which the mail is used for the purpose of distribution, it matters if the person has distributed in 1000. the guideline says we are going to treat the person who has distributed 1000 a lot worse, because that shows that this person is really engaged in this really horrible behavior. in comes the internet. on the internet with one click you can receive, distribute tens of thousands. you can be doing this for 15 minutes, and all of a sudden you are looking at 30, 40, 50 years
in prison -- sen. graham: good, absolutely good. >> allow her to finish. sen. graham: i hope you go to jail for 50 years if you are on the internet trolling for pictures of children in sexual exploitation settings. i think that is a terrible thing. >> she should be allowed to answer this question once and for all. judge jackson: senator, i am trying to explain that our sentencing system that congress created, the system the sentencing commission is a steward of is a rational one. it is designed to help judges do justice in the terrible circumstances by eliminating unwarranted disparities, by ensuring that the most serious defendants, get the longest periods of time. when modes of commission of the crime change such that in two
seconds someone can receive or distribute thousands of images, that no longer -- this is what the commission found in their studies -- an indicator of a person who, relative to other people, has committed this crime in a more aggravated way. what we are trying to do is be rational in our dealings with some of the most horrible kinds of behavior. this is what our justice system is about. it is about judges making determinations in handing out penalties to people who have done terrible things. sen. graham: it is not rational to take the venue of choice of child pornography is the computer with 85 billion images on it and not consider that feeding the beast.
we are trying to get people to stop the scrap. -- this crap. when you troll on the internet and pull down thousands of images of children from the internet, i want you to stop that. i want people to go to jail who do this because you are feeding the beast. we have a bill here that would allow victims on the internet over and over to sue the media companies that provide these images. we have fundamental differences of how you deter crime. i think the best way to deter crime when it comes to child pornography is the lower the boom on anyone who goes on the internet and pulls out these images for their pleasure. judge jackson: senator, every person in all of these charts and documents i sent to jail because i know how serious this crime is. every person i discussed the harm of these terrible, terrible
images to the victims who are pretrade in them, i talked about what this crime does to the children who are being abused in these photos and on the others of their terms of imprisonment i ensured that they were facing lengthy. y periods of supervision and restrictions on their computer use so they could not do this sort of thing again. that is what congress has required of judges, and that is what i did in every case. sen. graham: always under the recommendations of the prosecutor, many times paroled people, and to be honest with you judge, a 32-year-old man who sent an image of his own 10-year-old daughter, you substantially reduce not only the guidelines but the recommendation. all i can say is that your view on how to deter child
pornography is not my view. i think you are doing it wrong and every judge who does what you're are doing is making it easier for the children to be exploited. if you are on a computer looking at a kid in a sexually compromising situation and you get caught i hope no one gives you a break because you used a computer. >> the conduct described is reprehensible and i think everyone in this room degre -- everyone in this room agrees. part of our job we failed in responding to the changing circumstances to face this crime. it has been 15 or 16 years? she is not an outlier in sentencing. 70% of federal judges face the same dilemma and wonder why congress failed to act. sen. graham: this is our fault? >> to be honest, it is.
senator feinstein. sen. feinstein: i would like to complement the witness. you have been answering close to 15 hours of questions. i know how difficult and hard it is. i want to say, and this senator knows and in this senator's eyes you have handled it well. thank you and i will move on to my question. congress has recognized how important it is for crime victims to participate in the legal process. one example is the crime victims' rights act which i authored with senator kyle in 2004. that law provides certain rights for victims at critical stages of the legal process. the right to be notified, to be present, to be heard among others. i understand that in your eight
years as a district court judge you would carefully consider victims impact statements when imposing criminal sentences. could you tell us a little about this and how you considered crime victims in making your sentencing decisions as a judge? judge jackson: thank you, senator. as you say, the law provides for victims to have an opportunity to address the judge, to address the court, to explain the harms that happened as a result of criminal behavior. in the time that i was a trial judge i found it to be a very important part of our criminal justice process, because my sentencings were about handing
down consequences for the behavior that defendants had engaged in and making sure that the defendants who receive those consequences understood that they were getting those consequences because of the harm that they had caused. so, what i felt was important for promoting the purposes of punishment, which is what congress has required of judges to do, is to ensure that the harms were made clear to the defendant in every case. so i had, for example, a case involving robbery. there were -- it was a single defendant who committed two robberies. one in april and one in september of the same small pharmacy in dupont circle, which is not far from here.
a small, independent pharmacy selling pharmaceuticals. this person decided that he was going to rob the pharmacy of their oxycodone and other kinds of prescription drugs for sale. that is the sort of standard scenario that we see in the federal system. what was so particularly egregious in this case is that this defendant was so bold in his robberies that he came in in april with a gun. he held the employees hostage essentially, forcing them to open the safe with the drugs and it at gunpoint and stole the drugs. not masked, not hiding his identity. this is pretty covid. we are not talking about having to have a mask. he was a robber with no fear of
people identifying him. between april and september he would come back to the pharmacy. he would loiter outside on the street, according to the victim s. they would see him looking in the window. once or twice he came inside, looking like he was going to buy something and staring them down. they knew who he was and they called the police. they weren't able to apprehend him, because he hadn't really done anything at that point. the people who worked in the pharmacy were terrified. they were terrified by that behavior. the menacing nature of it. by the time we get to september, he actually comes in and they think this is another time when he is loitering, but he pulls out a gun, hops over the counter, assaults one of the people who are working there, and steals the drugs again.
that time they were able to call the police and enough time for them to come and apprehend him. at his trial -- excuse me. he didn't go to trial. i am the judge. he pled guilty to this behavior, which was well documented. there was no defense that it wasn't him. the guidelines in the case and the statutes that applied said because he used the gun he was supposed to get something like seven years. i used the victims' statements to explain to him how he had terrorized the people. there statements -- one woman said "i can't work at the pharmacy anymore because i am so fearful that this guy will come back. it has changed my whole life." it was a whole set of really horrible circumstances that i read the him at his sentencing so he could understand what he had done.
then i sentenced him above the requirement of the law because i thought that it was warranted to make clear to him that this was a terrible, terrible thing that he had done to these people. the victim's statements were important because they explained to me and him the consequences of his behavior beyond how many drugs that he stole or the fact that he used a gun. there were real-life circumstances that resulted from his behavior, and it was important for him to understand that. sen. feinstein: i have listened to most all of this testimony, which i think now you have gone for over 15 hours. i want to say i think that you have a stamina and very good brain and a real sense of empathy, as has been communicated to me in these 15 hours.
i want you to know that. one of the things that i am concerned about is the public perception of supreme court has turned increasingly negative over the last few years. a recent pew research survey found that 44% of adults have an unfavorable view of the supreme court. less than three years ago that number was 30% of adults that held that view. i understand that as a judge on the d.c. bench you frequently accepted invitations to speak at public events in the hopes of giving the public more information about the judicial process and more confidence in the outcome. why do you think that there has been a decline in the public's perception of the court. if you are confirmed, how would
you strive to improve the public's confidence in the court and its decisions? judge jackson: thank you, senator. i think the public confidence in the court is important. it is crucial to the rule of law that the public believe in the judicial process, and therefore choose to accept the rulings of the court. not just the supreme court, but all of the courts. it is part of the way our process works. i think that i have taken that to mean in terms of my role as a judge that outreach to the public to explain what it is that we do to inspire hopefully law school students and high
school students, young lawyers and law firms, and elsewhere to think about careers in the judicial branch or careers in law as one of the ways that i have attempted to try to shore up public confidence. if i am confirmed i plan to continue, as best as i can, to do that kind of thing. as you say, it is very important for the public to understand the work of the court and to follow its pronouncements concerning the law. earlier -- sen. feinstein: earlier, when you and i spoke in my office we discussed people who had meant toward you throughout your career. one of those was judge patty sarris.
you served as a law clerk for her on the massachusetts district court early in your career. you have spoken publicly about the role that she has played as a mentor in your legal career. you have described her as "a consensus builder, a good listener, a careful speaker, the essence of judicial temperaments." would you share with the members hear more about how the judge's approach to judging and mentorship has shaped to and your career. if you could give specifics i think everyone would be interested. judge jackson: as i reflect on her mentor ship and the mentorship of my other two judges i learned different things from each of them. judge sarris, my first clerkship, you are correct.
she served on the district court of massachusetts, the trial-level court. i learned how to look at the facts in a case from judge sarris. that is part of what the trial court level does. as trial judges developed the record in the case, take testimony, have trials, and she is extraordinary at developing a record and making sure that all of the relevant facts are deduced from the witnesses and considered in the context of her trial and record responsibilities. that, i think, is something that i learned from her in terms of the law. her warmth and care for her law
clerks meant that she has been a lifelong mentor to me. ironically, she became the chair of the sentencing commission after i had been on the sentencing commission, so we worked together later on in my career. i often use that story to tell young people you never know what is going to happen. someone who you worked for at one point may be your calling down the line. sen. feinstein: let me one more. you have handled a large number of cases during your career, both as an advocate and as a judge. as an advocate you have worked on a wide variety of cases, from work for corporate clients during your time in private practice to your work for low income clients during your service as a federal public defender. during your nine years as a
federal judge, you have written nearly 600 opinions. i think that that is really quite a sterling record. i imagine that some of the cases have really stuck with you. so, i would like you, if you can, to talk a little bit about some of the cases, maybe one or two, that you had that have made a deep impression and have really enabled you to progress as you have. judge jackson: thank you, senator. as you say, i have handled a lot of cases in my time, nearly a decade on the bench. you learn some things in almost every case in some respect. if you are doing your job right and you are looking into all of the issues. i think -- i mentioned one from a few years into my service as a
trial judge. i handled a case yakai vs napper. it involved trademark infringement. you would think trademark infringement charges are dry and technical. what i learned from this case is even areas of the law that you might think apply only to businesses impact real people at times. this case involved a small community, a cultural community, of people who believe in vegan lifestyle. they call themselves the african hebrew israelites, but it is a cultural community around healthy living. they have created a restaurant,
series of restaurants in the washington, d.c. area with menus involving really, i'm told, terrific vegan foods. in this community there was a member who was the one who created the recipes and was responsible for the restaurant. the whole community had other aspects to it. she ended up falling out with the community and the dispute involved his actions essentially taking over the restaurant and reopening it by himself using the same name. the restaurant was called everlasting life, which was an important phrase for this community. he essentially ejected the other members because he was the lease
holder or had signed the lease on behalf of the community. he kicked them out for a day and then reopened the restaurant using the same name. the question was under the statute for trademark violations whether there is a potential for confusion and that sort of circumstance. ordinarily -- i see senator cowan's nodding. ordinarily when you have a trademark infringement you're talking about two different businesses with similar products. the question is, are they similar enough to cause confusion. the idea of the law is that people should be able to have products that are identified with them and you shouldn't be confused. in this case we had a bench trial about it, but it was pretty clear. i was the fact finder as the
judge. it was pretty clear and you open the same business with the same name using the same recipes and food that you have created this kind of problem that is a trademark violation. what was so interesting to me in addition to the fact that i got to be that fact for a bench trial is that we had witnesses come in who testified about their circumstances. this was a very small community, they all knew each other, and the testimony about what it meant to them to have one of their members ejected in this way and have him turn on them was very moving in the courtroom. even though we were talking about this arcane area of the law, it was real circumstances that was happening. sen. feinstein: stop for a minute. i think that you are an important addition to the court.
what i am trying to fathom from the hearing is what kind of judge will she be? how will we look at her in five or six years? what i really want to ascertain is what kind of judge you will be. what will be the principles that you hold dear and how will you function in this capacity? if you could just answer that one question, i have been waiting for about 15 hours so i would appreciate it. judge jackson: i would hope to be the kind of judge that i have been during this last decade. i have been the kind of judge who understands that it is my responsibility to rule neutrally . to not have any agenda when i am looking at a case. i have been the kind of judge who understands that facts
matter. facts like the ones i was describing, and it is important for a judge to take into account and understand the arguments of all of the different parties and participants. i have been the kind of judge who takes my responsibility to not be a policymaker, to try to understand and ascertain the will of congress if it is a statute, or to my own -- i have been saying stay in my lane. to not exert my authority beyond what the constitution requires when i am interpreting and applying the law. i think i have been the kind of judge who lives up to the oath in terms of being fair and impartial, ruling without fear or favor, and ruling consistent
with article three. sen. feinstein: thank you. thank you, mr. chairman. sen. durbin: thank you, senator feinstein. senator cornyn? sen. cornyn: i understand that i'm the last one before lunch so if you're blood sugar is low you can think about having a break. the chairman keeps bringing this topic up those that let me ask one question. when you accuse someone of a crime, are you calling them a criminal? judge jackson: senator, i haven't accused anyone of a crime. sen. cornyn: that is not my question. in common understanding and in plain english, if you accuse someone of a crime are you accusing them of being a criminal? judge jackson: i -- it depends on the context. it depends on what else you say about them will stop it depends
on the circumstances. sen. cornyn: it depends on the circumstances? you put this in the same category as defining what a biological woman is. you not sure? judge jackson: i didn't say that i wasn't sure. sen. cornyn: so you are sure. judge jackson: i said that it depends on the circumstances you are positing as to whether or not you are calling someone a criminal. sen. cornyn: i just don't think that is credible, judge. let me ask you another question. you talk about the public confidence in the courts and our institutions, which i agree are very important that the public has confidence in our judiciary. would you agree to -- agree with me that to the extent that people perceive judges, unelected lifetime tenured judges that are making
political decisions that it undermines public confidence? judge jackson: i do. sen. cornyn: yesterday we talked a little about precedent. i know senator feinstein, as she does in these hearings, talk about super precedent and in particular roe v. wade. i want to talk a little bit about that. first, let me ask you, do you think that there is any good reason for the supreme court not to overrule a previous decision when they have concluded that that decision was wrong? judge jackson: thank you, senator. again, it is hard for me to answer that question in the abstract. what i will say is that the supreme court has laid out factors beyond just the precedent being wrong as the reason to overturn it. sen. cornyn: we talked a little
about this yesterday. the supreme court revisited the issue of separate but equal, which was the law to the constitutional interpretation under plessy versus ferguson and overruled that president because they concluded that it was wrong, right? judge jackson: i have not looked carefully as to whether all of the different factors that the supreme court now uses to overturn were discussed in the opinion. now the supreme court's precedent is to overturn on the basis of a number of factors and not just if it is wrong. sen. cornyn: are you suggesting that the supreme court would not or could not overruling precedent that they decided was wrongly decided? judge jackson: i am suggesting that the supreme court's case law indicates that it is looking at multiple factors. sen. cornyn: i understand you go
through the analysis. but if it is wrong that is one of the factors that you consider? judge jackson: yes, but not the only one. sen. cornyn: are you suggesting that there might be circumstances under which the court determines its previous decision is wrong but will not overrule it? judge jackson: the fact that there are multiple factors indicates that the court looks at more than rather or not it is wrong. sen. cornyn: so you would say, if i'm interpreting you correctly, that if the court concludes that its previous decision is wrong it will not necessarily overrule that. it applies a multipoint analysis. judge jackson: yes, i think that is accurate. sen. cornyn: back when roe v. wade was decided in 1973, generally speaking the court said that the states may not limit access to abortion
pre-viability, but post -viability there could be restriction on the right to abortion. judge jackson: as a general matter, yes. sen. cornyn: thank you. well, i think since 1973 the question of viability has risen again, what that actually means. now viability was around 28 weeks, the fetus could live outside of the womb. because of the advances in medical science the fetus can live outside of the womb after 23 weeks. is that your understanding? judge jackson: senator, i have not studied this. i don't know the number of weeks in the way that you are saying. sen. cornyn: let's talk a little about viability. the line that was drawn for a
pre-viability and post-viability by the court. what does viability mean when it comes to an unborn child in your understanding? judge jackson: senator, i hesitate to speculate. i know that it is a point in time that the court has identified in terms of when the standards that apply to regulation. 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 viability. a case pending in the supreme court right now concerns the
issues -- sen. cornyn: i am asking you about previous decisions, but i hear you. no one suggests that a 20-week-old fetus can live independently outside of the mother's womb, do they? judge jackson: i don't know. sen. cornyn: the child will need to be fed, sheltered, and all of the other essentials to sustain human life. there is no suggestion that after 20 weeks 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 of the womb at 20 weeks gestation? judge jackson: what i know is the supreme court has tests and standards that it has applied when it evaluates regulation of
the right of a woman to terminate the 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. there is a pending case that is addressing these issues. sen. cornyn: the constitution does not mention the word abortion, correct? judge jackson: that is correct. sen. cornyn: just like it doesn't mention the word marriage. correct? judge jackson: that is correct. sen. cornyn: as you and i discussed perhaps ad nauseam yesterday when we were talking about substantive due process, this is one of those unenumerated rights that the court has created, made doctrine or law, in creating a constitutional right even though it is not explicitly mentioned
in the constitution itself, correct? judge jackson: the court has interpreted the due process clause of the 14th amendment -- sen. cornyn: we talked about substantive due process yesterday. that is what this is, right? the supreme court cases that deal with the right of abortion is a result of substantive due process analysis like you and i talked about yesterday? judge jackson: yes. sen. cornyn: you remember when you were confirmed for the court of appeals, in that process we had a hearing and then we sent you questions for the record, what we call qfr's around here. question number 10 was does the constitution protect rights that are not expressly enumerated in the constitution? as part of your answer you said -- you mentioned roe v. wade and planned parenthood versus casey
and you said this. i will quote. they articulate a limited right to terminate a pregnancy. what is the limitation that you understand that was pronounced in roe versus wade and casey when it comes to a right to terminate an abortion? what are the limitations under current law? judge jackson: under current law, as i understand it, there are limitations in so far as there can be regulation of the pre-viability unless the regulation imposes an undue burden on the exercise of the right, and there can be regulation after viability as
long as there is exception for the health and i think life of the mother. the limitations are about whether and to what extent the government can regulate. the right. sen. cornyn: is it your understanding under the current precedent of the supreme court that there is a right to abortion up to and including the time of delivery of the child? judge jackson: senator, i don't -- i don't know, actually. the supreme court in every case is looking at individual regulations of the government related to individual rights.
i am not aware of the court having made a pronouncement about whether or not regulation can extend all the way up until birth. i'm just not aware of that. it is because the court is looking at individual cases and making its rulings in the context of individual cases and not making pronouncements in general. sen. cornyn: you are suggesting in some individual case of the right to abortion could extend through the entire pregnancy up until the time that the child was delivered? judge jackson: no, senator. i am suggesting that i'm not aware of any case that has handled the issue.
sen. cornyn: you told us that you think you believe roe v. wade and casey are precedents, and we talked about the questions about whether it is a super precedent and the like. are you familiar with the supreme court's decision in the heller case? judge jackson: i am. sen. cornyn: that was a decision by the supreme court that recognize the individual's right to keep and bear arms under the second amendment. is that a president of the court? judge jackson: it is. sen. cornyn: you would respect that precedent? judge jackson: yes, all precedents of the supreme court have to be respected. sen. cornyn: is it equivalent in terms of its precedent to roe v. wade, or would you evaluate it differently? judge jackson: i'm not aware of any ranking or grading of
precedents. all precedents of the supreme court are entitled to respect on an equal basis. sen. cornyn: i agree with you. that blows my mind when people talk about super precedents as if somehow one precedents was different in terms of its significance or priority under the constitution and others. in a short time that i have remaining, let me revisit some of the questions that we talked about yesterday with regard to free exercise religion. of course, that is recognized explicitly under the united states constitution, the first amendment. are you familiar with the cases that had been litigated before the supreme court of the united states involving the little sisters of the poor with regard to the affordable care mandate
on contraception coverage? judge jackson: yes. sen. cornyn: the little sisters of the poor are a benevolent group of nuns, 300 of them who take care of elderly and infirm individuals will stop as a matter of their end -- of their religious beliefs as documented in the courts opinions, they don't believe in contraception or abortion. do you agree with that? judge jackson: i believe that was described in the case that you talking about. sen. cornyn: i think that is right. when the affordable care act mandated that every health insurance policy contain coverage for contraception or chemically induced abortions they objected and said that this violated their conscience and free exercise of religion rights
under the first amendment, right? sen. cornyn: i believe so. -- judge jackson: i believe so. sen. cornyn: after the obama administration during the trump administration, the trump administration expanded regulations to not only allow churches, but also religious organizations like the little sisters of the poor a waver from that contraception and abortion inducing drug mandate. do you recall that? judge jackson: yes. sen. cornyn: are you familiar with the fact that president biden has said that he would restore the previous regulation that was promulgated under the obama at industry should -- obama administration and exclude little sisters of the poor from that waiver potential for abortion drugs or contraception
coverage? judge jackson: i am not aware of that senator. sen. cornyn: would all of this boils down to, congress passed a bill called the religious freedom restoration act which tried to make sure that people sincerely -- people's sincerely held religious beliefs could be accommodated under their first amendment rights as opposed to congress mandating things that would violate their conscious and religious beliefs. do you agree with me that it is important to accommodate the sincerely held religious beliefs of all americans when it comes to legislation that the congress may pass? judge jackson: thank you, senator. religious freedom is a core foundational constitutional right. it is in the first amendment of the constitution and reflects the founding fathers'
understanding of this country being one that is based upon, in large part, the idea of pluralism. the idea that people can come and have sincerely held religious beliefs and practice them without persecution. that is part of the foundational foundation of our government and the amendment that you are discussing. as a result, that right is protected in many ways. you mentioned the religious freedom restoration act. congress has enacted a statute that when it comes to federal regulations, if there is a substantial burden placed on
religion, then the strict scrutiny standard applies. sen. cornyn: i agree. i have one minute, one more question. i agree with what you just said. since i have asked this question or made this point to some of your predecessors who sat in the same chair and expressed my concern about some of the court's establishment law, establishment jurisprudence, i don't want to leave you out of that concern. when i was the attorney general of texas i had the chance to argue a case in front of the united states supreme court called the santa fe independent school district versus doe brought by the aclu that sought to prevent a student-led prayer before football games at the santa fe independent school district outside of houston.
five judges said that that violated the establishment clause of the constitution, causing chief justice rehnquist to write in his dissent that the constitution mandates neutrality towards religion, not hostility. but that the court's decision evidenced hostility towards religious expression, leaving me to conclude that the public square we can talk about everything from violence to misogyny to sex, you name it, but we can't talk about sincerely held religious beliefs. i would footnote that for you and plant the seed, for what it is worth. thank you very much. sen. durbin: thank you. welcome majority leader, schumer . he would report, if he could, that we have a challenge to finish our hearing today in time to go to the floor for a series of votes that will end
the day. we want to stick to the schedule as much as we can. i will say senator cornyn's suggestion of lunch was aspirational. [laughter] it was an unenumerated right. sen. cornyn: you are in charge of the agenda. sen. durbin: we need to take three more senators before we have an actual lunch, but it is up to you. is that all right? judge jackson: i am open and happy to answer who ever would like to ask me a question. sen. durbin: i appreciate that. senator whitehouse. sen. whitehouse: judge jackson, you can relax. i voted for you, and when you appeared as a potential nominee we started doing work looking at your record and story. we met with the president to discuss his process and goals.
when your nomination was announced, we obviously brought the work on your record more into focus, and now i have had the chance over 15, 16 hours to see your performance in this hearing, which i think sets the gold standard for patients and courtesy -- patience and courtesy. i am prepared to not only support you, but to let you know that i will be very proud and very honored and very excited to support you. there are two things that have come up during the course of the hearing that i would like to take my time to have a chance to respond to. the first has been the question -- i have been through a bunch of these and i don't think of ever heard it come up so much -- question about the nominees judicial philosophy.
i didn't know that you needed to have one. i actually thought that when you're dealing with the constitution your oath of office , constitutional precedents and constitution itself gave you your guide path. when you are pursuing the law and conventions of the language and your logic gave you that path. the fact that judge jackson said i don't have a judicial philosophy, i have a judicial methodology doesn't bother me a bit. it bothers me the expectation that a nominee to the supreme court should have a judicial philosophy will stop a judicial philosophy can be a screen for a predisposition. that judge is, frankly, should not have, but folks in power
influential in the process may very well want them to have. so, when i think about judicial philosophy, one of them that has come up is originalism. one problem with judicial philosophy is occasional adherence, selective adherence, which in my mind makes it less of a judicial philosophy and more of a doctrine of convenience when it helps the people you want to help. originalism strikes me as being that kind of a doctrine. the place where i think that we have the biggest gap between philosophy and practice in all of this has been with respect to what i have witnessed with respect to corporate power in our democracy in the time that i have been in the senate. if you go back to the founding days, there was no expectation that corporations would have any
role in american democracy. nil. it doesn't turn up in the constitutional debates. it doesn't turn up in the arguments leading up to the approval of the constitution. it is only when corporations became big and powerful many decades later that they began to intrude in our politics and corrupted our politics in a terrible way, history shows. that led to the movement by muckrakers whose best leader was probably teddy roosevelt, to knock down the grasping political power of corporations and rain the men -- reign them in. we had real victories at that time, but the victories of those of great wealth and power don't
go away and they have continually crept forward will stop it is an age-old story. right now we have corporate power controlling this congress in a way that is really remarkable. we have a complete inability to address the climate havoc that fossil fuel emissions are creating, because half of congress has been disarmed and disabled by political influence of the fossil fuel industry. we cannot even have a reasonable, sensible discussion on it, because the power of that industry is so great. we have seen that manifested first with the public injustices on the supreme court letting corporations into politics. that was interesting. once they were in, they let them spend money in politics. then, once they let them spend money in politics, they let them
spend unlimited money in politics. now, we are looking at a court whose majority is in the process of building a right for corporations, the biggest and most powerful corporations that we have, to not only get into politics, spend money on politics, spend unlimited money in politics, but to spend unlimited money in politics anonymously to hide from the real voters, the real the people who they actually are when they are intervening in politics and play through phony front groups with ridiculous names. rhode island is for peace, puppies, and prosperity is the equality of the name that is involved. let's not get too excited about judicial philosophy if it is nothing more than a screen for a predisposition that will benefit certain players in the arena. let's certainly not take judicial philosophy to seriously
when it evaporates in the face of the interests that have pushed the philosophy. i think originalism qualifies that way, and i just wanted to say that. i don't think you have to have a judicial philosophy. i think you have to have integrity, a judicial temperance,, but a philosophy? where does that come from? the second thing has to do with the impression of court packing and integrity of the court. i have a position on this and i just want to say it so it is all clear and no one is reading things into it that i don't believe and i have had a chance to make my point. court packing can be done by adding new seats to the court, i have not propose that. i think there's only one member in the senate who has proposed that. it has gotten a lot of attention here, but i don't think it has
been proposed here. you can also pack a court by picking the justices. in fact, there is a long, unpleasant american tradition of agencies being taken over by virtue of picking the members. it is called agency capture or regulatory capture. it goes back a long way. there is an abundant literature in economics and administrative law about capture. and there is nothing that makes a court immune to capture. that is why when i talked about this in my initial remarks, i said it is the folks who have tried to capture the court have treated it no different than a 1950 railroad commission. because they were legendary for having been captured by picking
the members that would rule for the railroad. and there are many others. go back to mmf and the gulf war explosion. so that is my concern. my concern is that the picking of the justices has been handed to special interests. and we know that is the case because, as i showed yesterday, everybody involved admitted it. the president of the united states said so. the cofounder of the federal society said so. a former chairman of this committee said so. and the president's legal counsel said so. and what happened in that process by which the justices were picked? we don't know. there was not a poll taken of federal society member saying
give us your recommendations. i do not know that there was any meeting of the board, let's pick this up and go through a proper agenda. what appears to have happened is that people went into a back room and there was wheeling and dealing, and millions and millions of dark money dollars flowed into federalist society during this period and it came out and went straight to the president and straight to hear. but the picking appears to have been done in the confines of a private organization by anonymous special interests. there is no country in the world that does that by way of how you pick judges. if we went to some banana republic -- but that is the way that recent justices have been picked. court packing by court picking.
deputizing this to the federalist society, it is unusual. them having no public process for implementing that deputization is very unusual. these mysterious lists that were produced and how people got on and off them, the desert and usual, unprecedented in our history, and it is surrounded by lots and lots of dark money, $400 million i think is a lot of anonymous money that has been chronicled being spent to control who gets put on the court. and controlling who gets put on a governmental body is how you capture a governmental body, and a captured governmental body is a wrong thing, whether it is a railroad commission or the united states supreme court. there is, in that method of
judicial selection, not just the prospect of impropriety but indeed the likelihood of impropriety. if it is pay to play and check for millions anonymously delivered will get you in the room and decide who will be on the supreme court, we got a problem. and that is what happened. and the thing that makes it even worse, in my view, is that as you pursue this and play it out and see that the decisions of the court line up in an astonishingly clear pattern with the interests of the republican dark money donors. that is my concern. i think that is a lujan emmett concern. if you disagree, disagree, but that is a concern, and i wanted to lay it out here because it is not about court packing, it is about the integrity of the court and about the unfortunate
comparison that can be made now between the captured agencies, delivered through picking of their membership, and what looks more and more like a captured court delivered by the picking of its membership in secret with a very, very high ticket price to be in the room where the picking took place. like i said my colleagues can agree, colleagues can disagree, but we all have our shot to make our cases. it has come up tangentially in multiple different ways, so i wanted to lay out what my case is and explain it as clearly and simply as i can, and i think they chairman for allowing me the opportunity, and i yield back my remaining seven minutes. and i congratulate, your honor, you for the patients you have shown with all of us. it is not over, but it is close.
judge jackson: thank you, senator whitehouse, and you join with the yielding of seven minutes. senator lee? sen. lee: thank you, mr. chairman. thank you, judge. i want to talk next a little bit about a case you were involved in mountain watch versus united states at the department of interior, a ruling you issued in 2015 while on the federal district court. i know you have had a lot of cases. i cannot imagine by nearly triggering the case name that would necessarily wring it back, but this case involved a challenge to an administrative action within the department of interior on some issues bearing on coal mining within the state of west virginia. there were two parallel challenges brought against that
parallel action, one in a federal district court in west virginia, where they landed in the question was located, and another in u.s. district court for the district of columbia, where you set. the government defending itself against that action brought by some environmental groups asked that you dismiss the d.c. case so that the matter could be litigated in west virginia. you denied that. does that ring any bells, and can you tell me why you might have denied it? judge jackson: thank you, senator. it actually doesn't. it sounds like dozens of cases that i handled with similar issues and requests, something like a motion to dismiss is early in the action, so denying a motion to dismiss is pretty routine. sen. lee: i understand, and i am
sure you have handled a lot of those all the time as a district judge. the reason i raised it is because it relates only directly to some concerns i have got that are somewhat unique to the western united states. we have a lot of cases that involve the u.s. department of the interior, and agency actions taken relative to the public land that we have. in every state east of colorado, the federal government owns less than 15% of the land, most of those with much less, single digits for most. in every state, colorado, less of colorado, the federal government owns more than 15% of the land, and most of the time it is a lot more. in my state, it happens to be about two-thirds of the land owned by the federal government. it complicates our ability to do just about everything we do. recreation, construction, oil, gas developing, whether it is access to people's cars and ranches or even something as simple as trying to find local
fire, police, search-and-rescue operations. all these things are affected by the excessive ownership of federal land by the federal government in the way it is often managed. sometimes the decisions made at the federal level are challenged in parallel actions like these, one in the form straight, in the host state, and others in the sea, and i am always concerned about shopping, and i'm sure that is something you watched out for as a judge, and saw forum shopping from time to time. something that touches on an issue that involves statutory interpretation. there is something called the antiquities act, back 110 years ago or so, designed to give president of the united states the authority to designate parcels of federal land as national monuments. the text of the statute states
that the limit of the parcels in question should be "confined to the smallest area compatible with the proper care and management of the objects to be protected." now, given that these presidential proclamations tend to be broad, it is sometimes the objects to be protected are also broad. and as a result of that, it is difficult to tell what the limits are. do you have any reaction as to how we could discern that, how we could get meaning out of that? it has got to mean something. you try not to leave language simply unaddressed or meaningless in a statute. do you have any thoughts on how a statute like that, saying it should be confined to the smallest area compatible with the proper care and management of the objects to protect it, any thoughts briefly on the? judge jackson: well, senator, if
i were presenting in a case with that statute and circumstance, i would proceed as i always have. you would have to understand the party because arguments about the particulars in the case -- understand the parties arguments about the particulars in the case. what does the proclamation say, where does it relate, are there any precedents in this area that further define or address what congress intended with respect to the statute at issue? sen. lee: i would say it also matters that the government's lawyers made an argument that would leave the interpretation open-ended and meaningless. judge jackson: as part of your interpretive exercise, as you are considering the party's various arguments, one that does not account for all the words of the statute would be one that
you would -- sen. lee: excellent, excellent. judge jackson: -- you might not agree with. sen. lee: i get it, and it is one of the things i appreciate about what you have told us in these hearings, i really like the way you have described how it is important to look at the text that you are asked to interpret, and you look at the language, and you are endeavoring to figure out the original public meeting. i think that is a very helpful thing. all right, let's move to a different issue. you clerked on the u.s. supreme court for justice breyer in october term 19 99, right? judge jackson: that is right. sen. lee: you clerked for justice breyer, and that was the same year the supreme court issued its decision in stenberg versus carhart, case with the supreme court of the u.s. struck down an nebraska law prohibiting
partial-birth abortion, and in the absence of circumstances where the baby posed a threat to the life of the mother. to be clear, the law prohibited a procedure where the abortionist causes an unborn baby to be partially delivered by the mother, and then the abortionist intentionally kills the baby outside the womb by puncturing its school with scissors and then collapsing the -- puncturing the skull with scissors and then collapsing it. it is gruesome, and i do not like reporting it but it is relevant. justice kennedy described it this way in his ascent, describing when scissors are inserted into the back of the head, the fetus upon body is outside of the women's body and alive and reacts, goes startled, and then goes limp. justice scalia, in his great eloquence, expressed, lamented
the ruling but also expressed optimism to the fact future courts would get it right, saying, "i am optimistic enough to believe that one day stenberg versus carhart will be assigned its rightful place in the history of this court." this method of killing a human child, one cannot even accurately say an entirely unborn human child, prescribed by this statute is so horrible that the most clinical description of it evokes a shutter of revulsion. a few years later, the supreme court of the united states issued a different ruling. the supreme court issued a different ruling in a case called gonzalez versus carhart, which upheld a different statute, this one federal rather than estate, but it was a different federal statute, a
federal statute that also prohibited partial birth abortion. judge jackson, can you distinguish these cases for me? what was the difference between gonzalez versus carhart with the partial birth abortion ban in question was upheld or stenberg versus carhart, it was invalidated? judge jackson: thank you, senator. i do not have the opinions in front of me. i think it had to do with the method of extraction, the fact-finding related to the procedure. in one case, the district court had made some findings and the court felt found by them. in another, there was considerations beyond those that they previously relied upon. so there were distinctions that
the court looked at and considered in the cases. yes. sen. lee: let's talk about court packing for a minute. judge jackson: yes. sen. lee: court packing concerns me for many reasons, one is because it is not prohibited by the constitution. there is nothing in the constitution that says congress may not change the size of the supreme court, no limitation on that. we have come for 152 years, stuck with the number nine. it has worked, in the absence of an argument saying the best number of two is too low, the court is too small. from a workforce standpoint we need to expand it. it is difficult to imagine why it would be a good idea to change it, particularly if you increase the size of the court in one fell swoop and you do that for partisan political
purposes, allowing one president, the current president, to have a disproportionate impact on the court, it could change its rulings. it is more politically contentious. it can turn the court into a political football of sorts. given the fact that our supreme court justices serve for life, once you do that, it becomes something of a one-way ratchet, always expanding, never contracting. you would see an increasingly larger court, with the court expanding each time a different party secures the coveted circumstance of a majority in the house, majority in the senate, and controlled by the same party of the white house. so this is why it concerns me. i understand why it is that the canons of judicial ethics do not allow you to comment on matters that might come before you, this is one that could not come
before you as a justice. it is not a political question. it is committed to the two political branches of government. there is not even a constitutional challenge for it, even though it would undermine the separation of powers in the constitution as i see it, it is not unconstitutional. so it would never come before you. last night when you are asked a question by my colleague senator kennedy on this, you acknowledged that you have an opinion. did i understand that right? judge jackson: senator, i have a lot of opinions. i have -- i am a human being, and i have an opinion on a lot of things. the reason why, in my view, it is not appropriate for me to comment was because of my fidelity to the judicial role. i understand that it is a political question, and that is precisely why i think that i am
uncomfortable speaking to it. sen. lee: i understand that. i respect the impulse. i respect the overall issue. and i think it is better for article three judges and justices to orderly not wade into the political thicket. this one is different because it cannot come before you, and number two, it does have an impact on what you would be doing, and you also as an article three judge, someone who served for nearly nine years as a federal judge, you have developed experience and intuition and a thorough understanding of our federal court system, and that is why i think your perspective on it would be valuable. the reason it concerns me so much is that even when court packing does not succeed legislatively, it can leave an impact. the last time this was attempted was 1937, president franklin d roosevelt was upset at the supreme court on a number of cases. he did not like the then 32-year-old precedent of rockman
versus new york were the five conservatives on the supreme court engaged in judicial activism, reading something into the constitution that was not really there. some disagree with me on this, but it was not there, and they opposed that. but the reason was he did not like the interpretation of a clause, the commerce clause, one we discussed yesterday. prior to 1937, you had the supreme court agreeing as far as the channels and instrumentalities of interstate commerce, and you had the court more or less in agreement on the impact of the commerce laws. as to the substantial effects, that did not exist yet. it required something much closer to an interstate commercial transaction in order for commerce -- congress upon commerce clause authority to kick in. there was the so-called four
horsemen of the apocalypse -- apocalypse, fdr called them, four conservatives who consistently went for limits on congress' authority. but then he would have other justices that would sometimes join with them, usually including justice owen roberts, who stood with them, maintaining narrower authority for congress out of the commerce clause. that changed two weeks to the day when the case associated with the switch in time change nine, west coast total versus parish, where they undid a precedent. a port -- april 12, 1930 seven, the supreme court had to change it forever change, magnify, expanded the commerce clause in way that had been through a constitutional amendment, it would be among the most significant and impactful ever adopted, yet it was barely discussed. this case resulted from one-vote
, one person on the supreme court who changed his vote, associate justice owen roberts. it is widely believed, and i believe it based on my research, he was influenced heavily by fdr's court packing plan. he did not want to be on a cord that was packed. he convinced himself that he made that switch in order to save the court as it was, and that has changed everything. it has led to a much bigger, more expensive, more intrusive federal government. we can disagree as to the policy merits of that, but it did change the constitution. that is why i worry about that. i understand you do not want to answer. i hope that between now and the end of the day, you will see fit to tell us what your opinion is. i do think it is worth discussing. i have just moments left, i want to get back to your sentencing approach.
now, when you approached these child pornography cases, what you're describing in limited circumstances is an overall concern that you have got with the sentencing guidelines, particularly the portion of the sentencing guidelines that deals with child pornography cases. this showed up in the transcripts of some of your sentencing hearings, including the transcript of your sentencing hearing in the hawkins case. i turn to page 38, line 17 to 24, that transcript, and here's something you say in the hawkins case. i believe this is the 18-year-old defendant you sentenced to three months in prison when the lowering of the guidelines range would have been 97, i think the higher one would be 120's.
in your case in particular, you speaking to mr. hawkins, i do not feel it is appropriate necessarily to increase the penalty on the basis of your use of a computer or the number of images or prepubescent victims as the guidelines require because these circumstances exist in many cases, if not most, and do not signal an especially heinous or egregious child pornography offense. a couple questions about that. you start off that paragraph sounding like you're making a determination as to him, but then the observations you make in the paragraphs and to apply broadly. is that right? judge jackson: senator, i do not have the transcript of mr. hawkins' case. i recall that i found that case, like all child pornography cases, to be difficult, really
difficult. and his case, i recall, was, in many ways, an outlier in terms of the various considerations that congress required me to take into account. sen. lee: but there were prepubescent victims at stake -- judge jackson: i do not remember how many and do not remember the circumstances of his actual crime. what i will say is that, consistent with supreme court case law and congress' statute in this area, judges have to take into account a number of factors and the guidelines, which are no longer -- i won't say not mandatory, you have to calculate the guidelines, they are no longer binding. and the supreme court has said that under the statutory scheme, judges have discretion -- sen. lee: ok, i am almost out of
time here. hawkins, as i recall, and s senator hawley discussed yesterday, he specifically asked for images of 11 to 17-year-olds. so i do not understand how that can be an instance that should not matter. and the fact that he did it with a computer? it hardly tones for what he was doing, hardly offsets the fact that he was seeking and obtained prepubescent child pornography images, nor does the fact that the images become easier over time to transmit and receive and restore because of computers. i think it cuts precisely in the opposite arch and you described, it makes it more severe, not less. they say this is an aggravating factor, and that is a great concern to me. i see i have used my time. thank you. sen. durbin: you may respond. judge jackson: senator, as in
every child pornography case that i sentenced, i considered all of the evidence, all of the relevant factors. it is not the same exercise to look at a transcript, to think about guidelines, to not have in front of you the individuals, the victims, the pictures, the circumstances that trial judges have to review in these cases or any cases. i understand, senator, that there are some questions about records, etc. courts have all of the evidence, and courts have all of the recommendations of various
parties, and courts have, under congress' authority, the responsibility of using our judgment to make determinations that are sufficient but not greater than necessary, to comply with the purposes or promote the purposes of punishment, taking into account things like unwarranted sentencing disparity. and it may seem, it may seem like an easy exercise. it may seem, in retrospect, when you look back at a few pieces of data, that courts have not done what it is that they are supposed to do, but what i can assure you is that i took every one of these cases seriously in my duty and responsibility as a judge, and i made my determinations in light of the seriousness of the offense, the nature and circumstances of the offense, the history and characteristics of the
defendant, the need for the sentencing to promote various purposes of punishment, and all of the other factors that congress prescribes. sen. lee: you keep reciting that standard, yet you specifically excluded from consideration the fact that he had requested and obtained images of prepubescent child pornography images. judge jackson: senator, i did not exclude it. i did not exclude it. what i did is i looked at the guidelines, which is what the supreme court requires, and i was making policy determinations , as the supreme court says the judges are to do. sen. lee: look at page 38 of your transcript. it looks to me like you excluded it, and your actions, sentencing him to three months for one of the most heinous offenses imaginable -- keep in mind, because these are -- sen. durbin: senator -- sen. lee: people re-victimized victims for the rest of the life. sen. durbin: next is senator
klobuchar. first, i would like to ask consent to enter into the record a support letter for judge jackson from 48 former federal prosecutors in a south florida. senator klobuchar. sen. klobuchar: thank you very much, chairman durbin. welcome back, judge jackson. yesterday, you and i discussed the courts increasing reliance on issued orders on shadow dockets. and less than an hour ago, the court once again used a shadow docket to throw out wisconsin's redistricting maps. and because this decision just came out, i do not expect you to have immediately reviewed it, but i just want to make this point, that in her defense, justice sotomayor, joined by justice kagan, called the courts move unprecedented. she noted that, in an emergency posture, the court summarily overturned a wisconsin supreme
court decision resolving a conflict over the state's redistricting, decision that was rendered after a five-month process involving all interested stakeholders, based on an obligation that is, in her words, hazy at best, even though summary reversals are generally reserved for decisions in violation of federal law. again, i do not expect you to be familiar with this case, but i do want to point out that this underscores the point that i made yesterday, that the court's increasing practice of using the shadow dockets to decide cases that have grave consequences for our democracy, including the right to vote, and as you and many other nominees have set is fundamental, is incredibly troubling. you had in the other case i mentioned yesterday were justice roberts dissented, the texas abortion bounty hunter case,
that that should not have been done, the shadow docket. while i am not going to ask about this because you could not have possibly read it, does your record of writing decisions that are thorough and listening to litigants in cases, could you just generally talk about the importance of having full breakdowns on the marriage, as well as public oral arguments, if you believe in transparency? judge jackson: thank you, senator. as a judge in my work over the last decade, i have seen that it is very important, at least to me in my time as a judge to date, to hear arguments from all sides in the case. the duty of a judge is to make
determinations and under our system of adversarial proceedings, you make determinations based on arguments. and it is important to do so. i know that with respect to the emergency docket, you have not asked me the question about it, but because i would say what i said before, which is i would benefit from being able to speak with the justices. i understand that there is a need to balance and getting a full briefing with emergency circumstances, and the court has long had that in its procedures, the ability to rule quickly on various cases. it is also my understanding from my time clerking on the court that the court does recognize
the value of allowing things to what we call percolate, meaning lower courts can hear issues, and my understanding is that, at least in some recent cases, justices have had oral argument related to some emergency matters. but from my perspective as a judge in the work that i have been doing, i know that it is important to hear from the parties. sen. klobuchar: another hallmark of your work has been taking conflict issues and making them accessible to the public, so much so that i actually referred to one of your opinions from a debate stage in los angeles, saying, as a wise judge said, those were my words, guess i was ahead of my time, the president is not king in america, the law is king. i paraphrased it. that is a written opinion you wrote that was over 65 pages long, relied extensively on
supreme court precedent, the committee on the judiciary, and can you talk about two things, the importance of having the law written in terms that are easy to understand by people, and secondly, your opinion was actually a narrow one. it required ms. mcgann to appear to testify but said he remade free to exert any legally applicable privilege in response to the questions asked. so what you did was a narrow opinion. what rule do you think narrow rulings played in helping to maintain religion this -- legitimacy of the court? why is it important to have plain language? judge jackson: thank you, senator. i will start with the second first. i think that, you know, as we have been discussing, we have rule of law in this country which requires a certain amount of predictability and stability
in the law. if they were big shifts in terms of legal principles and doctrines and whatnot, it could lead to people not understanding that judges are ruling on legal principles. it could lead to undermining public confidence, thinking that judges are injecting their own policy preferences, rather than following the law in terms of their rulings. so to further predictability, stability, there are many doctrines in judicial practice, there is the principle that if something has already been decided very similarly, you -- it may be binding on you if it is a lower court, but at least
you have to contend with it, because that is the law set for people -- before you in the case, and you do not want to make a big shift. there is also the principle that , the understanding that when you are announcing rulings, you are building on what exists before. so you do not want to make a big shift if you do not have to because if you can find a way to rule incrementally in a more narrow way, it keeps the law stable, as a part of the proposition that i mentioned before. in mcgann, in particular, it was a case in which there was a precedent directly on point from my district, not binding on me, but the exact same set of circumstances and arguments had been presented to another judge in my district, i believe it was something like 10 years prior to
my case, and so it had law that governed the circumstance, and i looked at that and determined it was persuasive and that i should continue the principles that had been laid down in the prior case. also, in accordance with those principles, the prior judge and i made the determination that when the president claimed absolute immunity, the argument was that the person who had been subpoenaed by the legislature, a former employee of the white house, could say that they had immunity of some sort. in other words, it could invoke
executive privilege in response to particular questions, but they could not say i do not have to show up at all. so the argument that was being made was when the house of representatives issues a subpoena and says it will show up on this day at this time to answer questions, does that person -- can that person just ignore and say i have immunity and do not have to follow the law, in other words, respond to this subpoena, or do i have to show up and sit there and listen to the questions, and if there are things i believe i cannot answer because they are privilege, you invoke privilege? the prior case said in this narrow way, you have to show up. you do not necessarily have to give the information. that is determined on a question by question basis, but you have to show up. and that is what i held through that case, as well, and it is important to be clear in your rulings so that people understand that judges are
ruling consistent with the law and not their own personal views. sen. klobuchar: right, and speaking of being clear and careful in your rulings, some of my colleagues have, i think, given not necessarily true views of your whole record. because when it comes to your rulings being upheld, the numbers show that out of over 550 cases, your district cases, you were reversed less than 3% of the time. and in some of the instances, you were reversed only to have your decision later upheld. i noticed one case, territory of guam, the united states, in which you were initially reversed but then a unanimous supreme court reversed that decision, then siding with you, and in an opinion written by justice thomas that aligns with your review. do you want to quickly talk about that case? judge jackson: well, that case
was kind of legally complicated. it was a superfund cleanup kind of case, where the country of guam, which has a dump site on it that was used by both the citizens of guam and the united states before the 1950's, when the united states was stationed there, military operations happened out of guam, and there was a lot of jumping into this site. over time, the site got contaminated, and guam was charged with having to clean it up. millions and millions of dollars, and there are statutes, very complicated statutes, about the circumstances under which you can seek contributions, under which a country like that can ask for the united states to pay some of that cost or other
countries to pay some of that cost. and that was sort of the nature of the dispute, and i did a statutory interpretation about whether or not guam's action could proceed. the united states filed a motion to dismiss, saying that all of the technical requirements overall were not met and that the action had to be dismissed, and i denied the motion to dismiss after interpreting the statute, saying that the action could continue. the d.c. circuit reversed my view, had a different reading of the statute, saying that the motion to dismiss should have been granted and dismissed the case. then it was appealed to the supreme court, and as you say, the supreme court reinstated the action, saying it could proceed. sen. klobuchar: very good, thank you. in 1972 in brandenburg v hayes, a 5-4 court did not recognize a
reporter's privilege in the context of criminal grand jury testimony. i spoke with you earlier at length about sullivan and first amendment issues, so this will be my last question on this. since the court's decision, my state, like many others, enacted strong reporter privilege luster protect journalists from having to divulge unpublished materials, confidential sources. how would you approach balancing the need to protect journalists and the role they play in informing the public against the need for law enforcement officers to other information? judge jackson: i would apply the precedents of the supreme court in this area. it would depend on the circumstances. as i mentioned, press freedoms is one of the fundamental first amendment rights. the court has a number of precedents in terms of
expressive freedom, press freedom. and in every case, there will be a specific set of circumstances regarding an alleged violation of the right, and the court would need to look at the facts and circumstances, the prior precedent, in order to determine whether that particular regulation could be upheld. sen. klobuchar: thank you. this is my very last question before all of us get to eat lunch, including you. and that is really the important role of dissenting opinions. justice ginsburg once said this, she said, dissent speaks to a future age, not simply to say my colleagues are wrong and i would do it this way, but the greatest dissents become court opinions, and gradually over time, their views sometimes become the dominant view. when justice ginsburg's rabbi gave a eulogy at her memorial
service here in the capitol, some of us were fortunate enough to be there, they said justice ginsburg's dissents were not cries of defeat, they were blueprints for the future. what do you think is the purpose of a dissent, and do you want to talk a little bit about that? this idea that they could be blueprints for the future. judge jackson: thank you, senator. on the supreme court, there are nine justices, and in every case, they are all sitting together to hear the issues in case. and one hopes, and it often happens that the justices agree as to issues in the cases. i believe that the vast majority of cases that the justices here are actually not -- there is no dissent, that they agreed to the
outcome. but there are cases in which, after deliberation and collaboration and consideration, the justices may disagree about how the case should be resolved, and there is a mechanism for every justice to decide whether they are going to join others, either in the majority, whether they are going to write a separate opinion that might agree with the majority but wants to make a different point or whether they want to dissent. and sometimes more than one justice might dissent or join in dissent. it is a way of expressing one's own view that they differ from your colleagues. and with respect to the point that you made, there are actually many justices in the history who have used the
dissent mechanism to discuss the law in ways that others find, over time, to be more persuasive. and so i am thinking of the first justice harland who dissented famously in plessy versus ferguson, dissented alone. all of the other justices agreed with the proposition of separate but equal, and he said no in a dissent. his dissent, generations later, became, according to justice thorough goal -- justice thurgood marshall, became the blueprint for justice marshall to make arguments that led to brown versus the board. so there is the opportunity for justices to describe their views in ways that become persuasive to others in the future. sen. klobuchar: thank you for all you have given us the last
few days. we look forward to working with you. judge jackson: thank you. sen. durbin: we are going to break now for a 30-minute lunch. i say to everyone that when we returned, if we stick to 20-minute brett -- rounds and do not yield back time, we will finish in something around four and a half hours, which would take us to about 7:00. that does not include a break, but we will consider that later on. thank you. judge jackson: thank you. [indiscernible chatter]
award-winning biography series, first ladies. >> i am the kind of person that believes you should say what you mean, mean what you say, and take the consequences. >> and c stands -- c-span's virtual library. watch first ladies, in their own words. saturdays at 2 p.m. eastern, or listen as a podcast on the c-span now mobile app. >> judge ketanji brown jackson appeared for the third day of hearings before the senate judiciary committee. she would be the sixth woman to serve on the bench, and the first african-am