tv Confirmation Hearing for Supreme Court Nominee Ketanji Brown Jackson Day 3 CSPAN March 24, 2022 2:33am-5:25am EDT
texas. sen. cruz: under article three of the constitution, senate courts have jurisdictions only over cases and controversies. that means it has to be an actual dispute. federal courts cannot simply issue advisory opinions on a question. one component of article three jurisdiction is the requirement of standing. in order for a plaintiff to have standing to bring the case, the plaintiff, generally speaking, must have real and concrete injuries. is that right? judge jackson: that is correct. sen. cruz: so for example, that means that even if i might have a disagreement with some particular policy or law, that i cannot bring a case unless i am personally aggrieved by the policy or law. so for example your and my alma mater, harvard, is currently
being sued for its explicit and in my view egregious policy of discriminating against asian americans. even though i seek that policy is egregious, i as an individual plaintiff could not bring a lawsuit challenging it because i am not asian american, is that right? judge jackson: if you brought a lawsuit, the court would have to evaluate whether you had an actual injury in order to be able to determine whether it had subject matter jurisdiction to hear the suit. sen. cruz: but if i am not in the class is terminated against, i do not have the ability to bring the lawsuit, judge jackson: is that right? you have to have an actual injury. certainly people in the class could claim an injury for the purpose. sen. cruz: now, you are on the board of overseers of harvard. if you are confirmed do you intend to recuse from this
lawsuit? judge jackson: that is my plan, senator. sen. cruz: we discussed yesterday how the standard was for raised is from a nation. the court has a different standard for gender discrimination. what is the constitutional standard that applies to gender discrimination? judge jackson: gender discrimination, the court has held intermediate scrutiny applies which is that the government has to have an important interest in -- and the tailoring does not have to be as narrow. sen. cruz: right. so, yesterday under questioning from senator blackburn you told her that you cannot define what a woman is. that you are not a biologist, which i think, you are the only supreme court nominee in history who has been unable to answer the question, what is a woman? let me ask you, as a judge, how
would you determine if a plaintiff had article three standing to challenge a gender-based rule, regulation, policy without being able to determine what a woman was? judge kentanji brown jackson --judge jackson: senator. i know i am a woman and senator blackburn is a woman and the woman i admire most in the world is in the room today, my mother. sen. cruz: under the modern leftist sensibilities if i decide right now that i am a woman, then, apparently, i am a woman, does that mean i would have article three standing to challenge a gender-based restriction? judge jackson: to the extent you are asking me about who has the ability to bring lawsuits based on gender, those kinds of issues
are working their way through the courts and i am not able to comment on them. judge jackson: if i can change my gender and be a woman and an hour later i decide i am not a woman anymore i guess i would lose article three standing. does that same principle applied to other protected characteristics? could i decide i was an asian man? what i have the ability to be an asian man and challenge harvard's discrimination because i made that decision? judge jackson: senator, i am not able to answer your question. you are asking me about hypotheticals. judge jackson: i am asking you how you would assess standing if i said i have decided i identify as an asian man. judge jackson: i would assess standing the way i assess other legal issues which is to listen to the arguments made by the parties, consider the relevance presidents -- president --precedents and constitutional
principles involved and make a determination. sen. cruz: let's go back to your favorite topic of this year, the criminal law cases you had as a district judge, particularly the cases involving child pornography. your democrats on the democratic side -- defenders on the democratic side suggesting the criticism right has been cherry picked, that it is only some specific examples. i will give you an example to discuss each -- opportunity to discuss each and every case you have had. i have examined all of the child porn cases you have had as a district judge. there is a consistent pattern. i am excluding the cases, so, senator durbin and senator kunz focused on the nickerson case, the five case, and the hilly case. i am excluding those because those are sexual assault of a
child, markedly different. i will concede when you are dealing with sexual assault you have been willing to impose stricter penalties. let's focus on child pornography cases. let's go through each of them. if it is right and that we are cherry picking you should be able to explain why powerfully. your justification as you are following the statute. as you know, 18 usc section 3553 lays out the factors that as a district judge you had to consider in sentencing. let's start with the hess case. united states versus has. in that case a man sent six pictures of a prepubescent girl he claimed was his daughter to an undercover law-enforcement officer. officers found over 600 images of child pornography including images of sexual acts performed on prepubescent children. the defendant pled guilty. i believe in all of these cases the defendant pled guilty.
there is no question about guilt. they pled guilty in her courtroom. the charge carried a man to -- mandatory minimum sentence of five years and a mandatory maximum of 20 years. the sentencing guidelines recommended 151 to 188 months. the government as part of a plea deal agreed to argue for 60 months, simply that they would advocate it. and you sentenced hess to 60 months. under the terms of the statute, why did you choose to sentenced hess to the absolute lowest possible sentence you are allowed sentence under law? judge jackson: thank you, senator. i have spoken at length throughout this hearing about these cases. i have said what i am going to say, which is, i have taken every case seriously.
these are very horrible -- sen. cruz: i am asking you specifically about this case. judge jackson: i have taken every case seriously. sen. cruz: so you will not answer that? judge jackson: these are very horrible crimes, as a mother, having to look at these pictures, having to follow congress'directives, having to listen to recommendations like the government in that case i'm a witch, are -- that case, which, argued for 60 months, i imposed the sentence that i believed was the sentence that was required by law. sen. cruz: i believe you. i have read your sentencing hearing in each of these cases for which we have transcripts. there are several for which we do not have transcripts. in each of the cases you read from the same script. you say that the distribution of child pornography is an extremely serious federal crime. you point out that the crime involves people taking pictures and videos of real children
while the children are being sexually abused. in has you pointed out he had hundreds of images of children sen. cruz: each of the crime. in the past you pointed out that he had hundreds of images of children in sexually compromising positions. some of them engaging in sadomasochistic acts. i am reading this from you on the bench. the children in these pictures are not knowing or willing in the degrading manner they are been picked it.
unspeakable acts of sexual violence for the pleasure of people filming them and the gratification of people everywhere. what concerns me is many of those people have no shred of empathy. for what that conduct does for the children being abused in this way. you read the script in everyone one of these cases. talk about these are terrible crimes. but you also say, i have to say what i found particularly disturbing about your offense was that you apparently concocted photographing your own daughter who you were reportedly willing to take pictures of the trade with other people. i know from your comments and those from those who know you that you are unlikely to harm a child. but in the context of the crime,
you represented that you would. so you talk about it as astonishing. what is striking is and half of them, five, you sentenced them to the absolute lowest sentence under law. let's look at united states versus chiasson. chiasson is a particularly nasty case. in chiasson, the defendant was accused of access to a dropbox that contained 35 videos and partially prepubescent females engaging in sexually explicit events. in instances prepubescent females were engaging in sexual activity with adult men. the images included the sexual abuse of children, including those as young as toddlers.
several of these cases you had involved sexual abuse of toddlers, truly horrifying. chiasson pleaded guilty. the guidelines recommended a sentence of 78 to 98 months. the prosecution argued that should be what the sentence was. you sentence chinese in 228 months. why did you sentence someone who had child pornography of toddlers being sexually abused 228 months, 64% below with the prosecutors asked? judge jackson: thank you, senator. you have picked out seven or eight cases, i have sentenced more than 100 people. in every case i look at the evidence, i look at the recommendations of not just the
government, because my duty as a judge is to consider all of the arguments that are made in case. i look at the evidence, i talked to the defendants about the harms that they have engaged in. many of these defendants are people -- sen. cruz: you have not talked to these people about the harm. let me read to you what you said at the bench. you said, "among the defendants they receive a load -- opposed to departure, the average sentence range from 84 to 92 months", democratic colleagues sentence below the guidelines. a number of federal judges do. our democratic colleagues have not pointed to a single
democratic judge who 100% of the time sentences child pornography defendants to a markedly low sentence. in this case you say, "comparable defenses are sentenced to 84 to 94 months. ascendancy guidelines by statute required to have similar sentences. you sentenced him to 28 months. why? judge jackson: i said what i am going to say about these cases. no one case can stand in for a judges entire record. sen. cruz: you are not going to explain it? >> senator, will you let her respond? sen. cruz: no, you are not taking my time. if you want to filibuster --
>> please allow her to finish -- sen. cruz: i asked her to explain why she sentenced chiasson to a sentence considerably lower and she said she was not going to answer. judge jackson: i did not say i wasn't going to answer. you are looking at the record. i don't have the record. i said in every case, i look at the recommendations of not only the government, the probation officer, the defendant, the record, the evidence. i take into account the seriousness of the offense. sen. cruz: in the case of chiasson, the prosecutor comes in front of you and says, "i understand from my experience before your honor, your honors part of -- policy objectives to
the sentencing guidelines, however in this case the sentencing characteristic is justified because it contains sadomasochistic images of infants and toddlers." i am trying to understand how you see someone who possesses images of infants and toddlers being sexually violated and you sentence them to 64% below what the prosecutor is asking for. you don't provide a justification other than a generic concern that the guidelines are too high. you don't provide a justification provided by statute. i am asking you to take the opportunity to explain to this committee and the american people why in 100% of the cases you have people with vile crimes, you have language saying they are vile crimes, but then
you sentence them to very low sentences. and why you consistently, one hundred percent of the time choose to do that? judge jackson: no one case can stand in for a judges entire sentencing record. i have sentenced more than 100 people. you have eight or nine cases in that chart. sen. cruz: judge, you said that before. >> judge, there is no point in responding. he is going to interrupt you. sen. cruz: i appreciate the chair trying to filibuster. she is declining to answer the question. chairman, if you want to join her on the bench you can. i am not interrupting your questioning. >> i am asking you to give her a chance to answer. sen. cruz: she is consistently saying she is not going to answer. i want to clarify for the record, the case i was talking
about with cooper and not chiasson. the case i was reading from your transcript is cooper. chiasson, i pulled the wrong tap. chaise and is equally horrifying. the guidelines layout different enhancements and you say repeatedly you disagree with the guidelines, you think they are wrong. the two guidelines you disagree with is an enhancement for use of computer. you save the world is changing and all of things are on the computer. i understand but i don't agree with you. the second thing you say over and over again is an enhancement for the number of images. you say repeatedly whatever the state of the law when the guidelines were first adapted, neither the use of computer nor the number of images are especially aggravating factors today. i find that bizarre. you say that in every case.
the number of images is not an aggravating factor. do you believe a predator who has hundreds or thousands of images of hundreds or thousands of children being sexually violated has not committed an offense that is more serious than someone that has a single picture of a single child? a single picture of a single child is horrifying but hundreds that have been violated, you believe that is not a more serious offense? judge jackson: i did not have any case involving hundreds of thousands of pictures. sen. cruz: i said hundreds or thousands. judge jackson: i also applied an enhancement, just not to the degree of the guidelines. sen. cruz: it is a five-point degree on the guidelines, you provide two.
you said the number of images doesn't reflect it is a more severe crime. do you really believe that? judge jackson: as i said to senator graham, the court has taken into account the number of circumstances. the commission has done a report about the operation of the guidelines, which enhancements actually reflect different levels of culpability. sen. cruz: let me ask you this, judge. you said the purpose of sentencing is to distinguish against crimes that are not as serious from truly agree just crimes. is that right? judge jackson: no, senator. sen. cruz: so what is the purpose? judge jackson: it is to assign proportional punishment. it is to do justice in cases where you have defendants who were convicted of the same conduct but have differing levels of culpability. sen. cruz: i will point out you
have a pattern that doesn't matter how egregious the case is. you had a case with an 18-year-old having pictures of boys as young as eight years old and you sentenced him to three months in jail. the steward case -- the steward case, you described he had over 6007 hundred images and videos. that is a lot of kids being sexually assaulted. >> you have taken -- sen. cruz: you have taken over one minute of my time. i know you like to interrupt. i am going to ask my questions. if you want to testify, you are welcome. >> you played to the same rules
as every other senator. sen. cruz: in the steward case, you say although this is not necessarily -- child position crime was egregious in the court view. you said this was egregious. the guidelines said 97 to 100 20 months. the prosecutor said 97 months. you said it was egregious. at thousand images. you are claiming it is cherry picking. you are welcome to explain, let's take the steward case. >> you are not recognize, senator. sen. cruz: you do not want her to allow -- one her to answer this question? >> you have gone over your time
for two minutes. sen. cruz: you have interrupted me for two minutes. chairman, you do not want her to answer why to the american people? chairman, will you allow her to answer the question? >> you won't allow her to answer the question. please, senator. please, senator. sen. cruz: will you allow her to answer the question, chairman? why are you not allowing her to answer the question? i am not asking another question. allow her to answer the question chairman darman. why don't you want people to know what happened in the steward case or any of these cases? i have never seen the chairman or fused to allow a witness to answer a question. you can bang it as loud as you want. >> at some point you have to follow the rules. sen. cruz: will you allow her
to answer the question? you have taken a big chunk of the time. will you allow her to answer the question? she is welcome to answer it right now. will you let her? so no? will you let her answer the question? apparently you are very afraid of the american people hearing the answer. >> we here in the senate are in the middle of a policy fight. across this nation, more than 70% of district judges who impose sentences in the cases that have been so vigorously debated here the part from sentencing guidelines from the request of the prosecutors. as you have explained in detait is allowed to weigh a series of actions. how many opinions have you written as a judge? judge jackson: i have read and
-- i have written at least 570 opinions. >> how many times have you imposed sentencing as a federal judge? judge jackson: more than 100. >> we have heard assertions made about you and your character and background. narrowing in just a few. i will put for those who are watching and trying to understand what all of this is about, in an attempt to distract from your broad support, your deep record, your outstanding intellectual and legal credentials, we are taking what is a policy dispute that should be decided by members of the senate. if we want to change the sentencing guidelines to make the mandatory, rather than an advisory, if we want to change the structure in which federal judge imposes sentencing, we can do that. but to demand that you be held accountable for this practice that is nationwide and is years old, i view as an unfair
misrepresentation of your record. if i could, let's go to something that you did as the vice chair of the sentencing commission. a vote you took in 2014. in my view, it shows how fundamentally misguided are the attacks trying to characterize you as someone who at all costs will do what you can to help criminal defendants. let me lay out the context for a moment. in 2010, congress, enacting a policy choice, densely -- unanimously -- the sentencing from crack cocaine to powder cocaine from 100 to 81. this law meant those currently in prison on crack offenses could seek to shorten their sentences. four years later the commission further concluded the people who cooperated and held out the
prosecution could use this law to shorten their sentence retroactively beyond any break they may have gotten for their cooperation. you disagreed. in your public remarks at the time, it might seem logical you would support this direction, you could not do so because you concluded it was manifestly inconsistent with the law and create unfair disparities with those previously sentence cooperating and those sentenced today. if i understand your view, it was that the sense of a cooperator shouldn't be based on the sentencing range is modified by the fair sentencing act what was best understood as a fixed discount of the mandatory minimum that a fair sentencing act had not change. i know this is technical, but i want to make sure i am characterizing this correctly before reaching a conclusion. do i understand the context correctly in which you made this decision? judge jackson: yes, senator,
perfectly. it was one of the very few in which we couldn't reach an agreement. about the retroactive application of the fair sentencing act reduction. >> to finish the framing, the sentencing commission that often decides things unanimously was sharply united -- vita. you voted to deny relief to cooperators. to deny them a pathway towards reducing their prison sentences and you were joined by two conservatives, judge william pryor and noun judge frazier. the three of you were outvoted by four commissioners which included an individual nominated by president reagan, described as a hard-nosed, no-nonsense conservative, who was on the others of the argument from you. you have four commissioners and they thought the law could be interpreted to give a break on
sentencing and you were on the others of that argument. if someone has tried to paint you, you were determined to give every break you could to criminal defendants, you could have joined the majority and this would have passed. that is not what you did. help me understand why not. judge jackson: thank you, senator. this was a technical discussion but the top line is when i looked at the issues and at the law, it was my opinion that the law did not provide for the further reduction that was being considered. >> across an incredibly broad range of sentences you have had to impose, this one is not
getting any attention. for folks who would like some insight into how you make decisions and how you explain those decisions, there is a video of your april 2014 public sentencing committee where you lay out your position. i encourage folks to watch that and they will see a jury who understands her commitment above all is to determine what the law requires and then follow it. in my view, that is an individual that belongs on the supreme court. your position that the law required that there not be further breaks given in this context ultimately won the day. my colleague from new jersey made a point of mentioning a case united states versus booker. in this case, it was decided koons, with a k, not a c. the supreme court ruled in this
argument that was made public. this is an example of you looking hard at the law, making a tough decision, being vindicated in that decision. but taking a decision that is not a caricature that has been profit by some. yesterday i ran through a number of the letters and statements that debunked some of the attacks based on a handful of sentencing decisions. a former prosecutor calls out the smear on your cases involving child pornography and the international association for chiefs of police, endorsing your evenhanded judicial approach in the law. attorneys in the resounding recommendation from judge griffith. there has been received a letter
from a number of retired federal judges, including two republican nominees dismissed the mischaracterization of your record. this is a policy dispute we should be deciding. not an appropriate basis to mischaracterize your record or your character. we have letters from the national coalition of domestic violence from survivors, advocates, crime victims. the breadth of your support for my colleague suggests that you are making victims less safe shows how off-base they are. we all agree it is critical to protect our children. it is why i am introducing a report of sin victims of child abuse act. to do our job, which is set
laws. we need to be mindful that we are asking of you to get engaged in that policy dispute in front of this committee which is not the role of a judge. another reason i think you are deeply qualified and you will bring something important to the supreme court, one of american leading civil rights lawyers and a delaware native has spoken about how achieving justice requires being proximate to the people most impacted by the criminal justice system. you have done that. as a public defendant, you have defended. as a district court judge -- you have met with, fought for and advocated for victims. you have also studied the big picture. as an effective and engaged member, you have poured over
data and fought -- thought hard about a more policy oriented role. you have thought about the big picture as a judge when considering the precedent your opinion sets. i would be interested in how your experience shaped your -- as a supreme court judge. judge jackson: one of the things district judges, sentencing judges often say when asked about the task is that sentencing is the hardest thing that a judge has to do and it is in part for the reasons that you have articulated. it is one thing to understand the law, to read it in a book,
look at data and numbers and make policy based on that. it is quite another to have someone in the courtroom, whether as a victim of crime, a defendant who has perpetrated crime, and have to decide how to proceed and pronounce sentence on that individual. the work i did on sentencing commission was prior to becoming a district judge enabled me to understand unwarranted sentencing disparities. to understand some of the policy reasons behind the guidelines and to make the kinds of evaluations that the law now requires since the guidelines are no longer mandatory.
i felt better about the task of calculating the guidelines, which is what courts have to do at the beginning of a sentence. having been on the sentencing commission, i think that helped. at some of these cases make their way to the supreme court. i think i am prepared to handle the cases that involve sentencing that do go to the court. >> in preparing for this confirmation, i went back and read a lecture you gave that was later published in harvard law review about the challenge of sentencing. i have the joy of clerking for a judge on the third circuit. my legal skills and talents didn't allow me to clerk for the supreme court as you did, and also the district and supreme
court. i clerked for a judge who was imposing sanctions on someone who was a crack dealer. she did a remarkable job of speaking to the victims, speaking to the community, speaking to the prosecutor and defense attorney and speaking directly to the defendant and imposing a very long sentence. as i got to know her later, i recognized as a member of our community and someone who saw the importance of that public moment of helping the defendant understand what they had done so they might somehow change but also helping the victims understand what happened, and the harvard law review you say "you view punishment.
there is a need to ensure defendant is adamantly addressed and punished. what you have shown across the ark of your public service reveals a someone who understands the appropriate need for punishment in our society but was also striving to follow the balance, recommendations and guidelines of the facts. i trust that members of this committee and as a whole, the general public takes the time to give a fair reading to the whole scope. that they would see you as someone who cares deeply about our constitution. your thought role -- your thoughtful response to questions posed to you impress me.
i don't think labels such as a judicial philosophy are always needed. in your case, a deep admiration for the constitution and an understanding of the role of a judge is a limited one our critical in qualifying. you open yesterday by referencing how your parents were educated and racially segregated schools in florida but how you, just one generation later, or worries -- were raised in integrated schools and were able to put your talent to work in our nation. you cited this one generation change of the greatness of america. the supreme court played a central role in applying it to allow this to occur. the experiences of your own family, your connection to these bearings of trailblazers who came before you has meaningfully shaped what kind of a justice
you will be. as somebody who has served on the sentencing commission, you have the ability to see across the whole scope and see how the law impacts families and communities in our nation. as a judge, you have humility. scores of others i have referenced have applauded your --. restraint is a core part of your approach to decision-making partly because you are a judge who is humble to know congress is with the low -- the law is an congress has a limited role based on fact.
your dear friend explained since college at harvard and you have been a role model. she praised your warmth to friends and family but she praised your humility. she knew you were honored and humbled by the significance of this. i had a chance to talk to your brother and he mentioned he knew you were destined for this moment your whole life. i am sure he would say you have been exceptional since you were student body president at palmetto high school. i suspect your wonderful family upbringing is partly response will for your facet of character. i suspect your faith has played a role of sustaining you as mine does and many others in this room. i have often found instruction and comfort in what the lord requires you and do justice and walk humbly. i am not going to ask you to reflect on that verse but i
wouldn't be surprised if it is one of your favorites that sustains you. returning to what judge griffith said when he told us in his heartfelt introduction of you on monday, and something you have shown in the hours you have been grilled by this body, he had already written a letter to this committee delivering his endorsement. he took the extra step to amplify in person. he did so because of confidence in you and a message to us in the committee that supreme court confirmation should be more than exercises and bipartisan tribalism. he's said a judge who happens to be appointed by a republican president -- a nominee whose legal opinions he was in position to review for years, given that you were a district
court judge and he was a circuit judge. confirmation hearings evolving over many years into longer and longer exercises, politics by just brief glimpses and occasional thoughtful examinations and decision-making views should be our main focus. i have to believe this sad state of affairs troubles my colleagues on both sides but as i reflect in these hearings, i hope that your gracious, thoughtful exchanges with some members will be remembered as just one more service you have rendered to our nation. i hope some watching these hearings will be reminded that even though we disagree with the policy preferences or opinions of a nominee, we should all recognize when a nominee is fundamentally qualified, deeply committed to the constitutional role of law and great character. judge griffith reminded us at the onset of this week, "as
justice scalia taught us a dispensable feature the public created is an independent group of judges who take an old not just their party but to god and the people that they will be impartial, i couldn't agree more with judge griffith. it would be my honor to support your confirmation for justice. with that, mr. chair, i yield. >> judge, welcome back. i would like to associate myself with parts of what chris said in his closing. i would differ with him about whether or not getting into a position on -- matters. i would like to affirm chris's point about the beauty of america you told through the
eyes of your parents and the changes, the growth in the country over the course of the last few generations. the wall street journal had an editorial this morning that said the same thing chris just said. the him to america you gave in your opening monday afternoon and some of your comments yesterday were inspiring and beautiful. i associate myself with senator kunz on that. i would to talk a little bit about your time as a judge and the growth and change over that time. take us back nine years and maybe five years ago and today. how has your approach of being a judge changed from year one to today? judge jackson: thank you, senator. there was a little bit of growth. i hope there was a little bit of growth. in year one and year five, i was still a district judge. in both those years, it differed
dramatically from my work as an appellate judge which is where i was currently stationed. in every job, year one, you are new, trying to figure things out. i don't know that i had quite pinned down at the very beginning exactly how i would approach cases. by the time i got to year five, i had a really good sense of this judging thing. and was able to demonstrate in my opinions the many opinions i have written. the way in which i go about making my decisions. i was able to demonstrate, the parties in the case, the issues in the case, what it is about, from a standpoint that personal preference is not an issue.
i am setting those things aside. i am ruling from a position of neutrality and trying to determine in every case what the law requires. i am looking at only the facts in the case. i am evaluating the parties in the cases. if it is interpretation, i am trying to interpret what congress has intended. i have been committed to the understanding that that is the role and the only appropriate role for a judge. >> i would like to talk a little bit about the troubling pattern we see on law school campuses and higher education more broadly, especially in the last five years. there is a trend that shortens -- a trend towards shutting down the left wing. it calls for firing professors,
shutting down and -- professors that bring differing opinions. these practices are commonplace. particularly with conservative professors and students. and traditionally against liberals. the oddities that doesn't fit inside how the media covers things, in d.c. one of the oddities for me is how often i have liberal professors reaching out to me saying their experience on campus is becoming less interesting. the divide on american campus is less. conservative policy leaning versus liberal policy leaning. more liberal versus illiberal. i think these campaigns are deeply problematic. they shut down debate, rather
than teaching students how to engage ideas they might not have encountered before. which is a pretty decent definition of education. if you ever knew everything before you encountered a new idea, you wouldn't have to write checks or take time off of productive life. there is a tendency and response for students to self censor rather than learn from each other. this robs students of the chance to engage with ideas across the political state -- political spectrum. in law schools, it robs students the opportunity to consider an alternate position and alter -- argue a different point of view than they might have had. given that you were a debate champion, i would like to ask do you agree law student should be engaging with ideas from across the political spectrum, even though they disagree with, rather than trying to shun those disagreements? judge jackson: these issues are
things that could implicate matters that come before the courts, i will say that as a general matter law school, like many schools, is a place where ideas and perspectives are considered. in the law, it is important for the judge who is making the decision to have different arguments. one of the things that traditionally happens in law schools is you are trained in law to make arguments that are at times not even the arguments you personally agree with. because the understanding is in litigation, disputes that come before the court, the court is going to want to hear from different viewpoints.
in that sense, the essence of legal instruction is to have different arguments team made because that models in great part what happens in a courtroom. >> i am not trying to ask any kind of gotcha question. it is better to debate ideas then to should have them shot down. isn't it? judge jackson: it is better in law school to make sure there are ideas from all different perspectives. in order to have that happen, they should not be repressed. >> you don't want students shutting down other students or visiting professors? judge jackson: i am not suggesting i recuse you. i am not suggesting we differ. what i am saying is that these
issues about speech on campus and the like are the kinds of things that are issues that are working their way in different formats through the courts. i am just being careful in terms of my answers. >> i am trying to lead you because you are going to be a hero, you are already a hero, to lots of kids. more broadly, students across the country. it is in america's public interest for them to hear you as an advocate for the fool, vigorous, strong debate of different views. i suspect you are an advocate for vigorous and robust debate. i do not see how you would be constrained saying that because the future cases. i am going to assume we are mostly aligned on this. judge jackson: that is a fair assumption. >> before i move on, because we have had a number of members on
this committee comment on cameras in the court, i have made my position on this clear a lot of times, but if i can give a tiny bit to the court in advance, i think it should be a decision for the supreme court to make about whether or not there are cameras in the ticle one branch to make for article three. it is important for us to recognize, i think i differ from a lot of my colleagues on this who are advocates for cameras in the courtroom, i get their position that transparency is a virtue. transparency is a good thing. i believe pin and pad can facilitate a lot of transparency just fine. it is healthy for americans to recognize the second and third and fourth order of effects of cameras.
cameras change human behavior. you don't have the same kinds of conversations over the dinner table with your family when you are wrestling through issues, apologizing for something. i said this before, but maybe i should modify what i said. my tone was jerky, i didn't modify for your opinion. if they are not in mind of a camera they are trying to create a soundbite four, instagram can be used for small things, but for intellectual discourse, it is not a friend. we should recognize the jack as -- we often see around here -- we are not trying to persuade
justices but trying to get on cable that night or get a viral video. i hope the court doesn't respond to some well-meaning impulses from the congress to push for cameras in the courtroom but also some bullying. there are ways you can get to a lot of transparency. a lot of recordings are increasingly released from the supreme court in time we are fashion over the few decades. i am glad you are the court are making that decision and it is not made for you by the congress. i want to go back to the legitimacy of the supreme court. the term that has been used over the past few days, do you think the supreme court is legitimate? judge jackson: i do, senator. >> some of the ways the court has been called illegitimate by members of the senate, included over the recent days and weeks leans into extreme partisanship.
it leads into extremism, leads -- twist the law. these kinds of attacks undermine the public's trust in the court. we need the public to believe in the legitimacy of his government , including all three branches. i am going to ask you, do you agree with these characterizations of the court over the last few days? judge jackson: i have nothing but respect for my former judicial colleagues, my current judicial colleagues and hopefully my future judicial colleagues. i believe we need legitimacy. i have said that is the currency of the court and i look forward, if i and confirmed, to joining the institution. >> do you think there could be any opinion handed down this term that could undermine the legitimacy of this court? judge jackson: the supreme court
makes its determinations and all of them are precedents and they are entitled to respect. >> i would like to come back to our conversation from yesterday. you pointed out a number of times that as a circuit court judge, you were constrained and bound by the supreme court. you mention a couple of times you hadn't had much to do constitutional interpretation for yourself. i agree with the way you framed most of that for the lower courts, but i think you would also agree with me that the job of a supreme court justice is different than a district court judge and a circuit court judge as well. when you serve on the supreme court, you will have to interpret with constitution means. based on what you told about lower court decisions, not being able to approach the new job you have on the highest court.
our conversation on judicial philosophy was somewhat helpful. i am not a lawyer but you took a lot of us to law school yesterday in ways that were helpful. you walked us through some different schools of constitutional and -- tory interpretation in ways that were good for the committee, the court and the public more broadly. if you could take us to law school one more time and walk us through some of the differences of due process. what are the different ideas on the supreme court and the broader legal community? judge jackson: i am not mostly familiar with the supreme court's efforts in this area. it has been a while now that the supreme court has determined that the 14th amendment which
guarantees due process includes a substantive component to procedure. the term due process is about procedures before it affects your life, liberty or property. the supreme court has also said that protection extends to certain personal, individual rights that relate to dignity and autonomy. and that are deeply rooted in our nations history in traditions or implicit in the concept of liberty. the court has recognized pursuant to that the line of
things like marriage, interracial marriage, access to contraception, a woman's right to terminate her pregnancy, abortion. or subject to the framework established, travel. some of the rights that have been recognized in the due process clause. i'm less interested in the scholarly debate. in every case, the supreme court is looking at a particular set of circumstances consistent with
the article three requirement the court only look at cases and controversies. it would depend on what cases came before the court. the challenge you and i have been going over the last couple of weeks, i get the modesty points about being on the district court but it seems pretty important to understand what the limits might be as a justice. this morning you stated again that you're judicial philosophy is your methodology. the judicial philosophy of some kind is necessarily an input into your methodology to every judge on the court. it is important for us to unpack that. >> you wouldn't claim any of
those philosophies for yourself and yet the philosophies -- judges on the tools they consult on how they discern intent and how the constitution is protecting defining principles or more general values and whether modern values can be used to infuse our understanding of the constitution. when you neri the debate between justice breyer and you got lots of input -- and the scalia debates, you didn't really tell us who got the better of the argument. throughout these two days, you have focused a lot on what the supreme court has said. that is helpful and important, but i have been able to get at what you think the limits might be on justice jackson, would be constrained by.
we still haven't heard your judicial philosophy. i wish i made more progress with you on that. what we know on a personal note is these committee three days have been very long and i want to thank you. i got to have a nice conversation with your parents earlier. your whole family, for what you endured and spending time with us. i wish bish wishes to you and your family. thank you, judge. judge jackson: thank you. >> thank you senator. senator bloom fellow is next. >> thanks chairman. judge jackson, i know your birthday. september 14. you have the happy coincidence with the birthday of constance baker motley who just happens to have been born in new haven connecticut.
we are very proud she is the daughter of new haven, connecticut. she is one of my heroes as well. if you know about her, she was the first black woman appointed -- as you know about her, she was the first black woman to be appointed to the first court. she was the first black woman to have argued in the supreme court. -- the court. she was predominantly responsible, thurgood marshall got a lot of the credit, she did a lot of the work. why don't you tell us and maybe tell those folks, particularly women and girls who are watching or listening, why you said on the outset of the hearings here
that she was one of those whose shoulders you stood upon as you came here today. judge jackson: thank you, senator. in addition to the fact we share a birthday, which i discovered when i was in law school and thought what a happy coincidence in terms of someone who i admired and secretly at that point, i was thinking i might want to be a judge. it was a wonderful coincidence. i admired the fact that she was the first. it is not necessarily easy to be the first but it is an opportunity to show people what is possible. when you are the first, it means no one has ever done it like you before and there may be
hundreds, thousands of people who might have wanted that opportunity and thought, i cannot do that because there is no one there like me. so being a trailblazer, whether it is judge motley, justice marshall or justice o'connor, being a trailblazer is really inspiring. i was always moved by judge motley's experience >>. >>it is expiring and i hope that you're very inspiring story will make it possible for a lot of others to think it, not secretly, but say it out loud and aspire to it. it is what this country needs.
fortunately, president biden has recognized the nominees he put before us and we have tried to work with the great leadership to confirm people of real merit the kind of qualifications and intellect and character and depth and warmth that you bring to us today. i want to talk a little about voting rights. part of the reasons why those dreams now our reality is that more people have the right to vote. at least until recently. there has been a lot of backsliding. turning back the clock on voting rights. the gentleman sitting behind you
, our former colleague who we very much admire and respect wrote a tribute. who succeeded john lewis. he said in a speech that -- jones wrote, "we can best honor her by acknowledging that while most doors are closed to her today, they are still heavy and so hard to open for so many people. in alabama and the rest of the nation let us commit ourselves to do our part to open these doors as wide as possible so
that everyone can take the walk that vivian took." i am going to ask that former senator jones fool speech be entered in it opened the ballot box to millions of americans and it became regarded as the crown jewel of the civil rights movement. then in the last few years, the supreme court has hacked away at it in an exercise of judicial activism that has been historic in magnitude. judges supplanting their views for the policy preferences and official acts of legislature. and opinions that were written by only conservative justices, these decisions were is far from
judicial restraint as they could possibly be, not even close. they rewrote the rules of our most cherished and most bipartisan civil rights law. you know the cases. shelby county. in effect, their opinions including justice alito's decision are completely untethered from the clear statutory text and they impose a series of so-called guideposts on section two that create unreasonably high hurdles to the exercise of the voting rights act. i hope that you will bring to the court that deliberate careful medical -- methodology
that you described earlier. it is part of your judicial philosophy in the sense that it is your approach to cases. it has been very persuasively and clearly articulated and i think it is that kind of deliberate -- if that kind of deliberate and careful methodology had prevailed on the supreme court, we would still have the voting rights act in full right now. i hope that we can once again return to bipartisan support of those rights. the most recent exercise of unfortunate decision-making in the voting rights area came just hours ago when the supreme court struck down the decision of the wisconsin state supreme court in wisconsin legislature versus
wisconsin election commission. what is striking is not just the result, but what was done as part of the shadow docket. we have talked a lot about here and what the people of america should know is there is no oral argument. there is only minimal briefing. there are no full opinions of the court in fact, i am holding up an opinion that is about 12 pages in length from the court which means you don't know who wrote. there is a powerful dissent. i recommend that everyone read it. again, use of the shadow docket has become increasingly prevalent since 2017. in effect, the united states supreme court is shirking its duty. i hope you will bring to the
court the kind of responsible and methodical approach to decision-making that will lead to an avoidance of the shadow docket as well as the return to the voting rights act. if i could offer one more piece of advice on the courts workload , i have a chart. i know we are going by the rules of evidence. this chart indicates the signed decisions of the united states supreme court over a good part of its history. i think the pattern is pretty clear. the court issues fewer signed
opinions in fact, it has declined precipitously since 1972. this little clip at the end is an increase from 53 to 57, but you can see it's only a fraction of what the court used to do in signed opinions even from the time i was a law clerk, it has diminished profoundly. the supreme court needs to do its job. it needs to issue signed opinions, not the shadow docket. it needs to take cases and resolve real fundamental important issues. and taking your record, 573 opinions over nine years, i'm not a math major, but that's
about 64 opinions per year. that's more than they do, all nine of them. i hope you will bring the energy that you have demonstrated in this room, the energy and work ethic to the united states supreme court because clearly, you have both and the court is very much in need of it as are some of the great qualities, intellect, character you have demonstrated here. just a couple more points. you were asked earlier about defense. i want to ask you about one in particular. the dissent of your mentor and
your predecessor on the court, justice breyer. i am told and i think i have read that there is one opinion he is proudest of. could you tell us what you recall it being if you know? hon. judge jackson: i'm not able to answer that question. sen. blumenthal: i think he said the dissent that he is proudest of was in parents involved in community schools versus seattle school district. i think he said it was the opinion that he was proudest of. he cited it in a harvard law school symposium about his notable opinions. he said this dissent was most
notable. i will give you the citation. when we are done. and i will ask that it be entered into the record. sen. durbin: without objection. sen. blumenthal: it is 77 pages long. it is a dissent. it is a dissent and the parents involved case which was a five justice plurality and validating public school integration plan in seattle and louisville. the plans have been in place for decades put in place by two local school boards. voluntarily trying to address school segregation in public schools in both of those cities. the justices striking down the school integration plan said
they could not move forward with those integration plans. you may recall it is the opinion where chief justice roberts said famously the way to stop criminal on the basis of race is to stop discrimination -- to stop discriminating on the base of race. justice breyer in dissent, which reminded me of a lot of what you have said here this week, wrote quote i do not claim to know how best to stop harmful discrimination -- how best to create a society that includes all americans, how best to
overcome our serious problem of increasing defective segregation. but as a judge, i do know that the constitution does not authorize judges to dictate solutions to these problems. rather, the constitution creates a democratic political system through which the people themselves through their legislators must together find answers. the court should leave them to their work. i think that's the philosophy you have articulated here today. the gist of philosophy -- the judicial philosophy of separate branches of discover -- of government. the federalism that should have led the court to respect the wisconsin supreme court's decision and the wisconsin
governor's decision and to stay in its lane. as you have put it so well. there has been a lot of progress and we see this in this room, but there is a lot of work still to be done and a lot of reason for folks to feel even some anger at what we have seen on voting rights and on resegregation. in some areas. i am really excited and joyful at the great landmark and historical congressman that your nomination represents.
not only will you make the court look like america but hopefully think more like america. i want to thank you for your very hard work. all of what you personally have done. because you as a person have done it. history has given you this opportunity. your parents have helped to make it possible. your family story is so powerful. you have really earned. -- you have earned it. i am grateful for you to have provided us that model. sen. hawley: judge, good to see you again. i don't have a lot of time, so let me get into it. senator cruz was asking you about united states versus stewart. this is the case where neil stewart tried to cross state
lines to rape another person's nine-year-old daughter. he had 6700 images and videos of egregious and brittle child pornography. the government recommended 97 months. the guideline said 97 to 112 months. you came in at 57 months. i thought you would like to answer why now. hon. judge jackson: thank you. no one case can stand in for an judges entire record. i have sentenced more than 100 people in a variety of egregious circumstances. in every case, especially cases that involve the kinds of acts you are talking about, the kinds of evidence that i had to deal with as a judge. in every case, i am balancing the factors that congress has determined are appropriate and
required for a judge to make a determination. the data points that senator cruz pointed to, you may have in front of you, don't account for all of the information that was before me as a judge and the authority that you all, congress, and your prior confirmation when i was a district judge provided for me to exercise my judgment. i treated those cases and every case very seriously and imposed a sentence that was sufficient not greater than necessary to promote the purposes of punishment. sen. hawley: would it surprise you to note that mr. stewart was a recidivist? hon. judge jackson: would it surprise me? senator, there is data in the
sentencing commission and elsewhere that indicates that there are recidivism -- serious recidivism issues. among the various people that i have sentenced, i am not surprised that there are people who reoffend. it is a terrible thing that happens. sen. hawley: let me ask about the hawkins case. you've been able to think about it overnight. you had an 18-year-old who possessed and distributed hundreds of images of eight-year-old and nine-year-olds and 10-year-olds and you gave him frankly a slap on the wrist three months. do you regret it? hon. judge jackson: i don't remember if it was distribution or possession. sen. hawley: do you regret it? hon. judge jackson: in the law, there are different crimes that people commit. sen. hawley: my question is do you regret three months? hon. judge jackson: what i
regret is that in a hearing about my qualifications to be a justice on the supreme court, we have spent a lot of time focusing on this small subset of my sentences. i have tried to explain -- i am talking about the fact that you are talking about very serious cases. sen. hawley: i'm glad we agree. hon. judge jackson: some of which involve conduct that i sentence people to 25 or 30 years. sen. hawley: three months, do you regret it? hon. judge jackson: senator, i would have to look at the circumstances. what i am telling you -- sen. hawley: we discussed it for half an hour yesterday. there is a 55 page transcript which i'm sure you have read. you emphasized to this committee
over and over you have lived it. you said you have been through all this, you have looked at the images, you are the one who is had to endure all of this. you gave him a three month sentence, i wonder if you stand by it? sen. hawley: -- hon. judge jackson: in every case, i followed what congress authorized me to do in looking to the best of my ability at the various factors that apply, that constrain judges, that tell us how to sentence. i ruled in every case based on all of the relevant factors. sen. hawley: so you don't regret it? hon. judge jackson: no one case can stand in -- sen. hawley: i'm asking if you regret the sentence in this case and it sounds like the answer is no. i regret it. let me read what you said about these kinds of cases. make no mistake mr. hawkins the
children you saw in those pictures were not willing participants in the conduct you witnessed. they were being forced commit unspeakable acts of sexual violence for the pleasure of the person who was filming. for the gratification of sick people everywhere, people who apparently have no shred of empathy for what this must be doing to the children who are being abused in this way. some of the children you saw in those pictures will never have a normal adult relationship. some will turn to drugs and prostitution and other vices to try to deal emotionally with the pain that results from the torture have experienced. even those who managed to lead a normal adult life say they live in constant fear of being recognized. some people are even unable to leave their houses because once those pictures are on the internet, they are there forever. the victims can't do anything without worrying that every person they meet has seen them in their most vulnerable state
at the most horrible time in their lives. those are your watt -- your words. powerful words i just don't understand why after saying this , you could give this guy three months in prison when the probation office that we have heard so much about recommended 18 months even the probation office recommended 18 months. do you have any thing to add? hon. judge jackson: no, senator. sen. hawley: let me ask about your policy of not giving enhancements when their prepubescent children like in the hawkins case who were eight, 9, 10 years old. i'm struggling to understand this. you said it in hawkins, that you weren't going to give him an enhancement. you are not going to make a sentence any tougher despite the fact that we had all of these terrible videos that you and i talked about at length yesterday. this is page 38 of the transcript. you said in your case, i don't
feel it's 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 the circumstances exist in many cases if not most and they don't signal an especially heinous or egregious child pornography offense. you said the same thing in the cooper case last year. this was an individual 30 years old at the time of his sentencing he pleaded guilty to distributing child pornography. he posted three dozen to four dozen images of child exploitation to tumbler where it could be accessed publicly. the government said on page 37, when his devices were found including the computer and in an untitled folder or many many many videos. the nature of these videos went well beyond mere child pornography. the government said i don't mean to make light of the content of
any child pornography but to say the content of those videos is on the more egregious or extreme spectrum of the child pornography videos that are encountered in these cases. yet when you sentenced him, you said i am quoting from the transcript in cooper, i am reluctant to get into the nature of the born. then it is difficult to assess how different mr. cooper's images are then those of similarly situated child pornography defendants such that night without going into looking at them and i'm not an expert. while i understand the government's arguments arguments in that regard, i don't find them persuasive from the standpoint of characterizing this as an especially egregious child pornography offense. help me understand this, what is your policy disagreement with the guidelines treating images, videos, pornographic images that have small children infants
seven, 8, 9 years old, why wouldn't you give an enhancement for those? hon. judge jackson: thank you, senator. i have two responses. first, that is not my policy disagreement. i don't know why you have characterized that in that way. sen. hawley: you say in the cases. i want to make sure were talking about the same thing. in the hawkins case, i don't feel that it's appropriate necessarily to increase the penalty on the basis of your use of a computer or the number of images or prepubescent victims. you say the same thing in cooper. hon. judge jackson: to observe patients. -- two observations. one, i am sentencing in every case, i have policy disagreements with every aspect -- with aspects of the guidelines that i outline in the case as congress has required and as the supreme court commits -- permits in light of my
experience not only as a district but also on the sentencing commission which did a report about the operation of the guidelines. second, you have read extensively from the government's argument in this case. you have not provided information from the probation office or the defense. sen. hawley: i don't have the probation office report. hon. judge jackson: the probation office provides a recommendation. there has been information gathered about what a recommendation was given in each one of these cases. i don't have that information here, but what i'm saying is that in every case, the judge is not just hearing from the government. the judge is not just evaluating what the government says in these cases. in every criminal case, a judge has to take into account all sorts of factors including arguments being made by the
defendant, by the government, by the probation office. i understand that in certain cases, the government may have made an argument, but there are other people in our criminal justice system who make arguments. the court evaluates everything as congress has directed. no one case can stand in for my entire record of how i deal with criminal cases or did when i was a district judge. i have a law enforcement in my family. i am a mother who has daughters who took these cases home with me at night because they are so ibing. they give you not only the actual videos which you have been asked to see, but they describe in the briefs in detail what these videos show.
i am fully of the seriousness of this offense and also my obligation to take into account all of the various aspects of the crime as congress has required me to do and i made a determination seriously in each case. sen. hawley: i'm trying to understand why is it that you say multiple times that just because there are prepubescent victims in cooper and hawkins that that doesn't signal that this is a heinous or egregious child pornography offense and you're not going to apply any sentencing enhancements that the government is asking you for? the sentence gets to be less because you say i'm not going to apply -- the government asks for enhancements related to prepubescent children, the nature of these images and you say i'm not going to apply it. you don't have a policy objection? why didn't you apply the enhancements as they were asked for? hon. judge jackson: i have
answered this question any times for many senators who have asked meat so i will stand on what i've already said. sen. hawley: you have nothing to add about why these crimes viewt signal an especially heinous or egregious child pornography offense? hawkins, cooper. i understand the government's arguments but i do not find them persuasive from the standpoint of characterizing this as an especially egregious child pornography offense, that's page 58. let me ask you this, you said senator graham earlier today that you were trying to do what is rational. and you didn't think it was rational to sentence people who have thousands of images by using a computer to the sentencing guidelines to the mandatory range i'm sorry it's not mandatory, to the discretionary range. hon. judge jackson: no, i said the guidelines system is
designed to be rational. sen. hawley: let me ask you this. why isn't it rational to sentence people who have thousands of images on a computer to more time as opposed to somebody who has one or two pictures in the mail? the more images there are, why wouldn't you want to sentence that person to more time rather than less? hon. judge jackson: i have answered this question and i will stand on what i already answered. sen. hawley: your answer is what? fresh my memory. hon. judge jackson: i have answer this question. i have explained how the guidelines work and will stand on my answer. sen. hawley: the guidelines are not mandatory. i wish they were but they are not. i'm trying to understand why you think it's rational not to sentence criminals based on the number of images they have? you say this is a policy disagreement that you have with
the guidelines. this gets to the core of your judicial philosophy. you served on the sentencing commission where you recommended changes to the guidelines based on this policy disagreement. i think it's relevant and vital we understand what the policy disagreement is. hon. judge jackson: i have previously explained what the policy disagreement is and i will stand on my answer. sen. hawley: so you're not going to answered your question? hon. judge jackson: no i have answered your question. sen. hawley: i am asking a question in your declining to answer. hon. judge jackson: i have explained how the guidelines work. i have explained that the guidelines were developed at a time in which the commission of this crime was different than it is today. i have explained that congress has not intervened to revise or direct the commission around how to deal with the changes in the commission of this crime so
judges all over the country are grappling with how to apply this guideline under the circumstances. there's an extreme amount of disparity. in each case, a judge has to look at all of the factors not just the guidelines, not just what the government asks for, but the recommendations, the probation office, the arguments of the government and defense, the nature of the circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to promote the purposes of punishment which include things like rehabilitation. also in every case, congress has authorized judges to impose not only terms of imprisonment which are very important part of the consequence is for these crimes but a range of other
preventative kinds of measures which courts impose in cases to prevent these defendants from repeating these -- this type of egregious conduct. i talked to each defendant as you have quoted, explaining to them the harms that their cries caught -- crimes caused. i imposed not only a term of imprisonment, but also all of the other consequences of the offense to include decades of supervision restrictions, use of a computer and the like. that is my answer and i have answered it many times. do you have other questions for me? sen. hawley: when you talk about the guidelines being outdated, i understand that they were written at a time when computers were not common.
i also understand that the number of images of children on these devices has exploded. i'm trying to get at what was characterized as a fundamental policy question. your view on why it is that the number of images available on these things has exploded that sentencing should not track that? you've made the argument that the guidelines were written at a time when this stuff was like an individual picture, magazines whatever. now almost every offender because of the nature of this, they have sometimes thousands because of the nature of this. my question to you is, wouldn't we want to deter that?
isn't that a reason to impose harder certain -- sentences? hon. judge jackson: congress has every opportunity to do that. now, you have a guideline that has gradations in it for the number of images that ends up being when you look at the scale something like the difference of 10 years. i don't know exactly what it is, but each two level enhancement is like several years. the gradations are like zero -- zero to 50 pictures, 52 a hundred pictures, 100 to a 150 pictures. set up at a time in which the male -- the mail was the primary mode of distribution. so if someone had 50 pictures they according to congress deserved an extra 10 years in prison.
now with that scale, everybody is at the top immediately. just because of the nature of the internet. you are not differentiating using that scale anymore given the way this crime is committed. judges are having to decide how are we going to deal with the penalties and do our job to impose sentences that are sufficient but not greater than necessary under the circumstances? sen. hawley: i will say in closing that i appreciate that answer and i understand that as a policy matter i think we disagree. the more images that are there, the more punishment there should be and i want to see this deterred. i think we fundamentally disagree. i have enjoyed our exchanges, i appreciate your candor. sen. durbin: senator -- >> mr. chairman, i am asking to
be recognized. >> may proceed? >> i wave my term. i have been on this committee for 47 years. we should follow regular order. >> the witness just said we cannot understand those cases without -- >> i don't want to go through this again. >> i have a letter that is signed by 10 senators on this committee. are you not going to allow a letter from 10 senators? this letter that is signed by 10 senators on the committee addressed to you makes the point that the white house gave you probation information for democrats that was not provided to the minority on this committee and just now, judge jackson told senator hawley you cannot understand these cases without reading the probation reports. 10 senators on this committee are asking the chairman provide those reports so we can do it judge jackson just said. [indiscernible]
>> i know the junior senator from texas asked to get on television, but a lot of us have been here for a long time trying to follow the rules. he saying he is doing this to help senator hawley. senator hawley could have put it in and he did not. >> senator hawley did not write the letter. i ask unanimous consent that it be added to the record. or you denying consent? >> thank you, mr. chairman. i'm going to try to spread some aloha into this room. [laughter] i'm taking a leave from my friend sitting to my left. at least you and i are color-coordinated today. since 2018, i have been asking every nominee that comes before the committees on which i sit the two questions that i asked you at the start of my time. namely whether or not they have
a history of sexual assault or harassment. this is something i started in 2018 to make sure that harassment and abuse that women have put up with since time immemorial didn't continue to get swept under the rug. i found these questions to be important for nominees to the judiciary. as chief justice roberts stated in 2017, events of recent months have eliminated the depth of the problem of sexual harassment in the workplace. and events have made clear that the judicial branch is not immune. here are a few examples of abusive practices by federal judges. december 20 17, 6 formal -- former law clerks accused nine -- ninth circuit judge of subjecting them to a range of
inappropriate comments. in 2019, a council issued an order finding that a district court judge, i apologize if i mispronounce his last name, had harassed multiple employees over a time of years including by subjecting them to subjects -- sexually suggestive comments, inappropriate text messages, and excessive nonwork related conduct. february 2020, a former law clerk to the late night circuit judge accused the judge of a month-long harassment campaign. these are a few of the cases that we know about. there are undoubtedly more that we don't know about because of the power imbalance between federal judges and their clerks and employees who often rely on connections and recommendations to advance in their careers. because of the lack of legal recourse to the judicial employees.
many may not realize this but the federal judicial branch employees are not protected by the foundational federal statutes such as title vii of the civil rights act of 1964 that prohibit discrimination and retaliation. that's why i introduce along with chair durbin and senators the judicial accountability act which would ensure the more than 30,000 employees of the federal judiciary have strong statutory rights and protections against discrimination, sexual harassment, retaliation, and other forms of workplace conduct. i know you can't comment on legislation so i won't ask you either you support the accountability act instead, i would like to hear what you do to make sure your chambers is a safe inclusive place to work? hon. judge jackson: thank you, senator.
as you know, i have been a judge now for almost a decade. i take my responsibilities not only to hear and decide cases seriously, but also my responsibility as an employer that i bring law clerks into my chambers. i was a law clerk to three wonderful judges who were role models for me. i try to act as a role model to my law clerks. i try to bring in people who have the respect of others, people who come with strong recommendations. people who i think we'll get along with one another. people who i think will get along with me.
we create a little group, working group and i think that it has worked out well. sen. hirono: i would think that you would make sure there are no inappropriate behaviors, sexual harassment from any of your clerks or employees. hon. judge jackson: that's absolute correct. sen. hirono: during our courtesy meeting, i enjoyed learning more about yourself and your family. of the nine sitting justices of the supreme court, only three were educated in our public school system. you would as far as i'm concerned make a welcome addition to the court from that standpoint. as a public school graduate myself. public high schools educate people from all backgrounds and most people go to public schools, they don't get to go to private schools. your classmates probably came from different racial and ethnic
backgrounds, status, abilities. how has your public school experience shaped person you are and your approach to the law? hon. judge jackson: thank you, senator. i was very fortunate to go to public school in miami, florida. i had a wide range of classmates and it was a wonderful opportunity to get to know people who were different than me. to learn at the end of the day that they were not so different than i am. even if they came from different backgrounds. i've talked a lot about my debate team. that was one of the activities
that i engaged in and spent a lot of time with my colleagues on the debate team and with my wonderful coach. you learned how to support each other, and how to speak across -- how to communicate with different kinds of people. it was a wonderful experience. as i have mentioned in many ways, different than the generation before who in florida were segregated by law. sen. hirono: i take it that not only did you have a broad experience of encountering people from all different walks of life and background, but there was still commonality that you had. that is very much exemplified in your approach to her work. i also talked to you about the
creative part of our lives. i think lawyers tend to be very left brained. i know that you are a very well-rounded person. i asked you, what do you do to pay attention to the creative side of her life? -- of your life? hon. judge jackson: thank you for the question. i took up not too long ago the fiber arts as they say. my mother is an expert crochet artist. she makes you pieces of all kinds. i always wanted to do that. she tried to teach me when i was younger and it didn't quite work out. as i have gone along in my career wanting to have some sort of credo outlet and especially
in times of high stress, i have started pining for something to do to express my creative side. i bought a book on crochet. i talked to my mom. i started making hats and scarves then i moved to knitting during one of my confirmation hearing scenarios because i needed something to keep my mind off of distressed. -- off of the stress. i have a basement full of yarn if you would like to come over. [laughter] sen. hirono: that's another way that you are connecting to the people who mean a lot to you. the creative outlet is really important to me, because in a changing world, it is our ability to be creative in our approaches and how we think about things that will enable us to deal with the rapid changes
that happen every day. i view you as a consensus builder. i know that in your work with the sentencing commission, you work hard to come up with 95% of the time in this very diverse group, there was consensus in your recommendations. how important do you think consensus is on what i characterized yesterday as a very ideologically split supreme court? hon. judge jackson: i think consensus is very important. it was one of the things that i most admired about having the opportunity to work for justice breyer is a law clerk to observe his process for reaching out to colleagues and trying to collaborate in his thought
process about the outcomes of cases. it is something that i tried to emulate when i was on the sentencing commission which is a very diverse body. i saw in that context the importance of trying to reach common ground with respect to your determinations. sen. hirono: to illustrate the kind of broad support that this nominee has, i would like to enter into the record to letters. one signed by 1000 public defenders from all across the country and another signed by 48 prosecutors from across the country. judge jackson, i have very much enjoyed talking to you. it will be my privilege to support your nomination. aloha. >> thank you, senator. >> i have a letter here signed
by letters on my side of the aisle that i would like to put in record. >> without objection. i had a chance to review this letter for the first time a few minutes ago. there is apparently a concern on your side, mr. chairman, about whether you have on your side of the aisle access to all of the information we have on the side of the aisle and the information in possession of the white house. during a break earlier today, i met with ranking member senator grassley, his staff, and with white house staff to discuss it. here's my understanding. last wednesday, the senator from missouri selected a handful of judge jackson's more than 1000 district court cases to claim the judge jackson endangers our children. on thursday the next day, the white house contacted judge jackson's chambers to request
the probation office recommendation in each of the cases. i underline probation office. that probation office provided a chart reflecting these recommendations. this is the sum total of what was provided. they shared with the white house from the chambers when the senator from missouri continue to raise questions and request the probation offices recommendation in those cases, the probation office provided this chart affecting those recommendations which were shared with the white house. when the senator from missouri continue to raise questions about judge jackson's sentencing record, my staff asked white house for information about the probation office recommendations. these are just numbers for each of the cases that's all it is. the white house and my office did not have this information earlier, because we didn't know the senator from missouri was going to make this claim in the first place. once the republican side requested the same information,
my staff shared it within minutes. now, your side has exactly with the white house and the democratic side has. the same chart provided by the probation office. i might add, some of this had been published in the press and washington post and other places but it consists in each case of the case number, name, the probation office recommendation for custody, the sentence imposed custody, the office recommended supervision and release, and supervision and release imposed. all of that information has now been shared equally. some information on the other side on the republican side includes frequent reference to transcripts which we don't have on the site. the reason being we didn't anticipate this objection from the senator from missouri and request that information. the letter also goes a step beyond which i think is a very important decision for this committee to make.
this request for presentence reports from each of these cases. these presentence reports are typically filed under seal. they can contain highly sensitive personal information. not just about the defendant, but about innocent third parties and victims. we spent a lot of time here reflecting on these terrible crimes. everyone has acknowledged how terrible they are. and how damaging they can be to the victims. we have heard story after story and i don't question a single word that was spoken. in sympathy for the same victims. i would not want it weighing on my conscience that we are turning over these presentence reports to this committee for the first time in history and that information out of this or because it was released would somehow compromise or endanger any victim as a result of it. this information was not requested before, it has never been requested by this committee.
i think we should think long and hard about whether or not we consider going into presentence reports. want to take this matter up with my side and i'm sure you will with your side. i have your letter requesting. as far as this information, you have exactly what we have no more no less. in terms of presentence reports, this is a critical policy question which should be carefully weighed. it goes way beyond your nomination. i want to make sure we don't take a step you are that endangers the lives and well-being of innocent people. >> mr. chairman? since you just responded to the letter that i wrote and was submitted on behalf of 10 senators, i will point out that in judge jackson's answer to senator hawley, she said that he and this committee did not have sufficient information to assess her sentencing. because we heard the office of
the prosecutor's but we did not have the information from the probation office. she said she could not -- we could not understand that we did not have information. i'm confident everyone would reread -- agree to redacting out information that would violate the privacy of the victim. judge jackson has told us it is relevant to understanding those cases. that's why 10 of us have requested we have those reports. there is explicit statutory authority for us to do so that is cited in the letter we just submitted. >> i don't know where other members of your caucus stand on the basic question of his nomination. they can decide on their own and they will and they should that is their responsibility. i think i know where you're headed. i would suggest that we should think long and hard my friends about members of the judiciary
committee endangering the lives of innocent people to pursue this line of questioning. we spent two days, 15 to 18 hours and a large part on this issue. i don't believe these presentencing reports are going to change anyone's disposition if they're going to report on this issue. -- vote on this issue. i don't want it weighing on my conscience that i gave the green light to release this information so it might endanger the lives of innocent victims. am sorry, that is a bridge too far for me. the issue before us you have each had a chance to hear 20 of testimony. i believe this should be taken up with the individual caucuses on both sides if you wish. that to me, it has gone way too far. way too far. i don't want it on my conscience. >> mr. chairman, if i might? i have prosecuted literally thousands of people.
i would have to go back it's over -- hundreds of sentencing's. we had presentence reports. over and over again, there are things in their -- there sometimes people putting their lives on the line to even give a report. the defense counsel, or i is a prosecutor never thought those would be made public. we assumed the judges, we had judges across the political stripes who read them, kept the confidence of that. as a result, we knew that the reports were thorough. as a prosecutor, i might have a
recommendation, but i never questioned a judge who might give a different sentence because my responsibility as a prosecutor, theirs was to sentence. >> might i just weighing? -- weight in? i understand what you're describing relative to the confidential nature of presentence reports. as a prosecutor and a law clerk, i reviewed those with regularity and i understand the sensitivity. let me suggest a couple of things. it's not unusual for us as a committee and members of the senate to review materials that would be inappropriate for public release. i don't think one of us is suggesting that. there are means by which we can review things in a classified environment and treat them as classified, we have done that with a significant success in this hearing. secondly to the extent that
wouldn't provide the level of comfort necessary, we would be happy to review them on a redacted basis. these are things that have become relevant in our conversations we want to make sure we have the facts. not one of us was to endanger anyone or to render public information that is sensitive in nature. there are abundant ways around that. >> i would suggest that the information contained in these reports is dangerous to the victims, to the innocent people who are mentioned in these reports, and unnecessary at this point. it has never been requested by this committee and it is merely a fishing expedition in dangerous territory. classified settings, redacted versions of the reports, this has never happened in the history of this committee. senator, i will just tell you i am not going to be party to turning over this information and endangering the life of an innocent person for political quest to find more information.
we have exhausted this topic. we have gone to it over and over again and this is a bridge too far for this committee. that is my personal feeling, i take it senator lahey may agree with me. this nominee has been before this committee for 18 hours. i don't believe that this information is going to change anyone's vote. you can decide in your caucus what you want to do to go forward. i have told you my position. i want to proceed if i can. i thank the nominee for waiting for this politically. i turn it over to senator cotton. sen. cotton: i want to turn to crime and sentencing. in any of the cases where you have sentenced an offender below the guidelines, has that offender gone on to commit another crime after getting released from prison? hon. judge jackson: thank you, senator. when judges sentence, they often impose terms of supervised release.
there are times in which when a person is on supervised release they reoffend. there are also times when they don't. even after the time of supervised release, the court doesn't continue to have any way of tracking or knowing what happens because if they were to reoffend, it wouldn't necessarily come back to the same court or the same judge. sen. cotton: so you don't have a factual basis to know if any when you have sentenced below the guidelines has reoffend in the future? judge jackson: do i have a factual basis? i know there are people who every offended while on supervised release. i can't remember whether any of them were guideline sentences, below guideline, or above guideline. sen. cotton: i know you have answered a lot of questions last
two days about sentencing and sex crimes. did you ever sentence an offender above the guideline's recommendation? judge jackson: i'd have to take a look at -- no i have sentenced offenders -- i know i have sentenced offenders to the guidelines in the category of sex crimes in general. i know i have given 30-year sentences for at least one offender, almost 30 years, 29.5. i have given i believe a 12-year sentence to someone at the agreement of all of the parties, which was a sentence that was a part of his plea agreement. i'm not remembering the others. sen. cotton: i understand, you have sentenced in a lot of cases. i want to return briefly to the hawkins case. wesley hawkins was convicted of a child pornography offense in 2014.
the sentencing guideline called for a sentence of 97 to 1221 months, or 8 to 10 years. you sentenced him to three months. we have heard a lot about this case and your three-month sentence of wesley hawkins. but you got another crack at him in 2019, judge. in 2019 you sent wesley hawkins back under conditions of confinement with the bureau of prisons for six month with restrictions on his computer usage. that is twice the amount of time in custody you sentenced him to in 2013. what did wesley hawkins do in 2019, judge? judge jackson: i don't remember, senator. i have a lot of defendants i have sentenced who are on supervision who violate conditions of supervision. in our system, someone like mr. hawkins, especially given the
crime, the egregious crime that he committed, was likely on a very long period of supervision, and during that time he would likely be under computer restrictions for 10, 20 years or something where he is not allowed to do certain things with the computer, and a probation officer is monitoring software on the computers of individuals who have these kinds of conditions imposed. and that restricts their ability to access certain information on the internet. and so it's not uncommon for a probation officer to report violations of supervised release not just in this area, but across all crimes. and then the court has to determine how to handle that. and you could in fact send someone back to jail for violating conditions of
supervised release that are not themselves criminal behavior. the court says in their supervision order i am imposing a 20-year, whatever it is, sentence of supervision, and during this time you are not allowed to access your computer, etc., etc. if you were to do that, it would not be additional criminal behavior, but it would be a violation of my order, and when it comes back to the court on violation, the court has factors that we look at to determine whether or not to treat that essentially as the kind of violation that would require him to go back to jail. sen. cotton: judge, yesterday we had an extended conversation of your sentence of key hodges. that sentence occurred in 2018. you had very detailed recall. to my knowledge that is the only time anyone has asked you about mr. hodges's sentence.
you have been asked repeatedly about the hawkins case. he has been in the news for days on end. this resentencing happened in 2019 and now you are saying you don't have any recollection of it. let me see if i can refresh your recollection. this is the order you signed, judge, on april 17 2019. and it says that you concur with the recommendation of the probation office to return him to a residential facility for 180 days and to engage in various kinds of computer monitoring and search. that is your signature over there, judge. you really don't remember -- judge jackson: senator, that is a very common thing that judges do. i've sentenced over 100 people, and supervised release, which is
the kind of post-incarceration condition that judges ordinarily impose, is something that is done on a standard form, which is what that is -- sen. cotton: i understand you've done a lot, judge, none of them have been the centerpiece of your hearing the last two days do you really expect this committee to believe you don't remember what happened in this hawkins case when it came back before you? judge jackson: yes, senator, i do expect you to believe -- sen. cotton: well, i don't find you credible, judge. it has been in the news for days and you have been asked about it more than any other case you have ever had. i just don't find it credible that you weren't prepared for that matter in 2019. you know what i think? i think he got child pornography again and he wouldn't have if he had gotten 8 to 10 years the first sentencing.
let's turn to your work for detainees at guantanamo bay. first off, let me just ask, do you think most detainees at guantanamo bay were mostly terrorists or mostly, i don't know, innocent goat farmers? judge jackson: senator, it's impossible for me to answer that question. the people at guantanamo bay have been accused by the government of engaging in terrorist activities, and are therefore classified by the executive branch as enemy combatants. sen. cotton: do think america would be safer or less safe if we released all the detainees at guantanamo bay? judge jackson: senator, i'm trying to figure out how to answer that question. 9/11 was a terrible attack on
our country, and the executive branch, pursuant to authority that the supreme court said it had, designated people as enemy combatants and sent them to guantanamo bay. the supreme court also said that anybody who was so detained could seek review of their detention, and as a federal public defender, my role and responsibility was to make arguments in defense of the constitution and in service to the court that was trying to assess based on the authority given to it by the supreme court whether or not people were adequately classified, what the legal circumstances were, how these previous petitions were going to be processed.
this was a series of of legal challenges in a novel environment that federal public defenders and lawyers across the country were engaged in helping the court to evaluate so that we can understand what the constitution requires in this time of emergency. sen. cotton: so no opinion on whether america would be safer or less safe if we released all detainees from guantanamo bay? judge jackson: senator, america would be less safe if we don't have terrorists out running around attacking this country, absolutely. america would also be more safe in a situation in which all of our constitutional rights are protected. this is the way our scheme works. this is how the constitution that we all love operates.
it's about making sure that the government is doing what it is supposed to do in a time of crisis. as justice gorsuch said, the constitution is not suspended in times of crisis. the government still has to follow the rules. and so criminal defense lawyers make sure that in times of crisis, the government is following the rules. sen. cotton: let's turn to the actual cases. how many of these terrorists at guantanamo bay did you represent? judge jackson: when i was defender, four cases were assigned to me in our office. i don't know how many cases came into the office in total, but -- sen. cotton: you personally had four? judge jackson: i was assigned to them along with another defender who worked on the same cases. she was more senior. she did all of the fact gathering related to the cases,
and as an appellate defender, i worked on the legal arguments. sen. cotton: do you ever represent any of the detainees at guantanamo bay when you were not a public defender? judge jackson: one of the people who i represented while i was in a federal defender, his case got spun off and taken up by a law firm. law firms around the country were also engaged in this work -- sen. cotton: i'm well aware of what law firms were doing at the time. judge jackson: i left the federal public defender's office, i joined a law firm, and one of the people that i had represented was now at that law firm. they had him as a client -- sen. cotton: mr. al-salam. judge jackson: al-qatani. sen. cotton: coincidentally he
and you went to morrison and foerster. judge jackson: yes, senator. sen. cotton: what about mr. al- salam? judge jackson: i don't recall what happened with mr. al-salam. sen. cotton: you were listed as counsel for four years with morrison and foerster. ) what happens -- judge jackson: what happens is if you leave anyplace, firms or government service, you have to let the court know or their records -- their records reflect where you are in the system and not so much the case can in terms of their address. sen. cotton: to go back to mr. al-qatani, just coincidently, small world, he went to morrison and foerster at the same time you did and you represented him and he filed multiple motions on his behalf. judge jackson: i don't know if he was at the same time -- sen. cotton: but he did file multiple motions for him.--you did file multiple motions could
judge jackson: i don't recall if it was multiple, but he was still at the habeas stage of the process. i don't know when he came, because the partners who take up the case were in los angeles i was in washington, d.c. they contacted me to say, oh, we see on the docket you previously represented in an you are now with our firm, will you assist us with looking at these briefs, working on these briefs? there were many lawyers who were working on the filings you were talking about. sen. cotton: after you left the public defender's office, did you continue in your representation of any other client you had had in the public offenders office? --public defender's office? judge jackson: i didn't continue my representation of any kind. i left the defender's office and picked up mr. qatani and the circumstances i talked about and there were no others i represented in that way.
sen. cotton: that sounds like a continuation. you represented him at the public defender's office and in private practice as well, and you are telling us that it's really person you represented at the public defender's office and in private practice--the only person that you represented at the public of hunter's office and in private practice. judge jackson: yes. sen. cotton: you didn't continue any pro bono work for murderers or rapists or anyone else, but you did represent generous at guantanamo bay? --this terrorist at guantanamo bay? judge jackson: when i got to the firm and they told me this case was there and that i had previously worked on the case, they asked me as a member of the supreme court appellate group of the firm, which is where -- was my practice, if i would help review and work on some of the briefing they were submitting on his behalf given my familiarity with the case. sen. cotton: were you representing him pro bono at
morrison and foerster? judge jackson: the firm takes on pro bono representations, which means the person is in pain. sen. cotton: let's turn to your amicus briefs. you had two briefs on guantanamo cases, one at a think tank, one for former judges. sometimes the clients seek out lawyers, sometimes the lawyers seek out the claim. with either of those amicus reefs, were you involved in seeking the client or suggesting the idea for the amicus brief in the first place? judge jackson: no, senator. sen. cotton: were either of those done on a pro bono basis? judge jackson: yes, because the supreme court and appellate group in a law firm has paid clients and also has pro bono clients. the briefs that i worked on were on -- one brief was 20 former federal judges who wanted to
make an argument in the boume ddiene case and the supreme court and one of them was a partner in my law firm, former federal judge presiding it -- idea it was and she wanted our group to work on the brief. the other was not just one think tank, it was the cato institute, the rutherford institute, and the constitution project, and ideologically diverse group of nonprofits who wanted to make arguments in another case that the supreme court had taken up related to these issues. all of this was novel, and a a lot of issues were being evaluated by the supreme court regarding the scope of executive authority during this time of crisis. sen. cotton: you have done pro bono work on behalf of detainees at guantanamo bay. have you ever done pro bono work for the victims of terrorism? judge jackson: senator, i am not
aware of any such cases in my law firm. i was in a group of lawyers that was often approached to ask, would you file a brief for some group. i'm not aware that any victims of terrorism asked our firm to take a case. sen. cotton: let's talk about the defendants in this case is and how you characterized them. i will remind you that those with the resident, secretary of defense, active duty officers. senator graham said you called them were criminals. you disputed that and senator durbin has denied that as well. i will concede you did not use those exact words, but you did say that they committed acts that constituted war crimes. i'm sorry, i gotta confess, i don't understand the difference between saying someone is a war criminal and saying they committed acts that constituted war crimes.
can you explain the difference to me? judge jackson: yes, i will. thank you for the opportunity when you file a habeas petition under our law, you can't file it against the united states because of sovereign immunity. the way our law works, you have to file it against individual officers in their official capacity. that's the way in which you are able to file a habeas petition. whoever is the executive at the time becomes the named party in the brief. and a habeas petition is like a complaint in a civil case. it is making allegations to begin the litigation about the person's detention -- sen. cotton: but, judge, official capacity, procedural capacity, all of that is gobbledygook. i just don't understand the difference between calling someone a war criminal and
saying they committed accept committed war crimes. judge jackson: with respect, senator, they were not sued in their individual capacity, not making allegations about those individuals. in fact, over the course of the case, the names changed. later on the habeas petition became against president obama, because he then became the executive with the purpose of the habeas petition -- sen. cotton: i'm well aware the names changed, probably changed from bob gates to donald rumsfeld as well. they were not the ones overseeing the government when you file the suit and he said they committed acts that constituted war crimes. i understand how you -- i don't understand how you expect this committee to say there is a difference between saying someone is a worker middle and that they committed war crimes. -war criminal and that they committed work comes. judge jackson: with respect to
the group of people in guantanamo bay, it was an allegation concerning the use of torture. when you make that allegation, you bring it under laws that themselves constitute crimes of war. that is the way in which the law works. if you are writing a habeas petition and you say upon information and belief, mr. khatami was tortured, that allegation is made under a law that says that there was a war crime that occurred as a result of that torture and anyone -- you are making that allegation against the united states, but because you can't sue the united states, the actual petition is named in the name of whoever is leading united states at the time. later in the course of this it moved from president bush, donald rumsfeld, to president
obama. it's not about the individual. it is about the allegation that upon information and belief he had been tortured in the lead up to his detention. sen. cotton: i don't know, judge, sounds like a debate about how many terrorists can dance on the head of a pin to me. sen. durbin: thank you, senator cotton. i asked consent to enter into the record a letter from nine officials defending judge jackson's guantanamo record, including the attorney general loretta lynch, homeland security secretary jeh johnson, and the head of the united states. senator booker. sen. booker: thank you. judge, after me only five to go. i don't have questions right away. i have a number of things i want to say. this has been not a surprise
given the history that we all know not a surprise, but perhaps a little bit of a disappointment, some of the things that have been said in this hearing. the way you have dealt with some of these things, that is what you are a judge and i am a politician. you have sat with grit and grace and have shown us just extraordinary demeanor, during the time when people were saying things to you that were out of the norm. i had to ask some of my more senior colleagues about what i think is a dangerous precedent. 1000 pieces you have been over -- judge jackson: something like that. sen. booker: something like that. and what i understand at the--is that these cases take days, weeks, sometimes months. judge jackson: to sign in a case?
yes. sen. booker: my colleague senator hawley has been doing this all to the lead up, saying things, tweeting things, that a lot of us when i was just try to get advice, this is what the new standard is going to be, that any judge who comes before us who has chosen outside the sentencing guidelines, below the sentencing guidelines, we are crating the environment where i can make myself the hero people web and victims of some horrible crime and put whatever judge i want on the defensive by trying to drag out the obits when they have no context to the case--drag out little bits when they have no context to the case, none of the facts. they are seeking to exploit the complexities of a criminal justice system. the reason why we have a third branch of government i feel bad there was a judge mentioned by name in this hearing from senator hawley's state.
what is that judge going to think next time they have a complicated sexual abuse case that comes before them and they know that they could possibly be called out if they go below the sentencing guidelines, which i showed you yesterday in my lack of chart -- you remember i was uncharted -- but you are deciding completely in the norm. 70-plus percent in many states people are doing just like you did. but i am a democratic senator. i have never quoted from this very will respective conservative periodical. this is the "national review," very well-respected, not necessarily something i agree with all the time. but here is the "national review," "senator hawley's disingenuous attack against judge jackson's record on child pornography." read the first paragraph, "i would oppose judge ketanji brown jackson because of her judicial
philosophy for the reasons i outlined last week. i addressed that in a separate post. for now i want to discuss the claim by senator josh hawley that judge jackson is appallingly soft on child pornography offenders." here is the kicker, "the allegations are malicious to the point of demagoguery." i got letters from leaders of victims' rights groups, survivors of assault, all saying the same thing as "national review." feel proud about yourself, you brought together right and left in this calling out of people that will sit up here and tried to pull out from cases and try
to put themselves in a position where they are the defenders of our children, to a person who has children, to a person whose family goes out in the streets and defends children. i mean, this is a new low, and what's especially surprising is it didn't happen last year. you were put on a court that i'm told is considered the second most powerful court in our land, and you were passed with bipartisan support. nobody brought it up then. did they not do their homework? were they lax? do they make a mistake? i wonder if when they ask you the question, "do you regret," do they regret that? it is an allegation that is meritless to the point of demagoguery.
you are -- i don't mean this in any way -- if somebody called me average, i would be upset -- but you are a mainstream judge. your sentencing, i looked in the data, falls in the mainstream on everything from child sexual assault to all the other issues people are trying to bring up. some of these things are being cast at you that you called george w. bush a war criminal. come on, that is painful, especially since you said these are names you have to put in, and we are talking about a real issue that goes to the core of our values, torture. barack obama was named once bush left office. there is an absurdity to this that is almost comical, if it was not so dangerous. because the next time a judge comes before us on the right or the left that has a body of work like you do, gosh, a performance artist on our side could pull
out one of the cases where they were below the sentencing guidelines -- say it was on something as horrific as rape that we all agree is horrific and they could say how do they put somebody who is soft on crime? are you soft on crime? god bless america. i've got this text -- i had become friends with folks from the fop with my negotiations, and this is my favorite text. kennedy might get a kick out of this. things that are out accountable -- uncountable, stars in the sky, grains on the beach, and the number of times democrats mentioned that the fop endorsed judge jackson in the hearing. [laughter] let me mention it again. just in case people who say you are rough on crime folks really want to make that stick, you were endorsed by the largest organization of rank-and-file police officers.
you were endorsed by the bosses, the largest organization of chiefs of police. and you were endorsed by noble, and i hope people find out about that organization. you have a brother, not just an officer, went to serve after 9/11. your family is not soft on terrorism. he went out there to capture and kill and defend this country from terrorists. i actually sit here and find this astonishing, but then i do my homework. i love that my colleague brought up constance baker motley. you know when she was getting to the floor of the senate, they were trying to stop her with outrageous accusations. you know what the accusation was back then? she was a communist. trying to throw anything that might stick. this is what you and i know --
any one of us senators can yell as loud as we want that venus can't return to serve, we can yell as loud as we want that beyonce can't sing, we can yell as loud as we want that astronaut may jamison did not go that high. you know what? they've got nothing to prove. as it says in the bible, let the work i've done speak for me. well, you have spoken. you started speaking as a little girl, watching that man right there try to raise a family and study law, while your mama supported everybody. you spoke in high school when you started distinguishing yourself. you know what you said when they told you you couldn't to harvard? "watch me." i went to law school. i didn't serve on the law review, you did. i didn't click at every level of the federal court.
you clerked for supreme court justice widely respected on both sides, which shaped you. you went there and he to private practice and you know what you found? this is what you told me, that you had those tough choices that working moms have to make, the demands of a private law firm, raising your kids. it didn't add up. you went before the senate three times in a bipartisan manner -- god bless america, we don't do that much bipartisan around here. you became a public defender because you wanted to understand all aspects of the law. who does that? we live in a society that is very materialistic sometimes, very consumeristic. do people become public defenders for the money? no. your family and you speak to service, service, service. and i'm telling you right now,
i'm not letting anybody in the senate steal my joy. i told you this at the beginning. i am embarrassed. it happened earlier today. i just look at you and i start getting full of emotion. i'm jogging this morning, and i met the end--i am at the end of the block either font, because i put my music on loudly when i'm jogging to block out the noise of the heart attack i'm having. this woman comes up on me and tackles me, an african-american woman. the look on her eyes, she just wanted to touch me, i think because i'm sitting so close to you, and tell me what it meant to her to watch you sitting where you are sitting. and you did not get there because of some left-wing agenda. you didn't get here because of some dark money groups.
you got here how every black woman in america has gotten anywhere has done, by being like ginger rogers said, "i did everything fred astaire did but backwards in heels." and so i am just sitting here saying nobody is going to make me angry, especially not people that are called in a conservative magazine demagogue ish for what they are bringing up because it doesn't hold water. i know you and i, we appreciate something we get that a lot of my colleagues don't. i know tim scott does. when i came to this place, i was the fourth black person ever popularly elected to the united states senate. i still remember a lot of mixed people, white folks, black folks work here, but at night when
people come into clean this place, the percentage of minorities shifts a lot. first week i'm here, and somebody who has been here for decades doing the urgent work of the senate, the unglamorous work that goes on no matter who the office is, tells me, "i'm so happy you are here,'but he can't get the words out, and this man, my elder, starts crying. i just hugged him, and he kept telling me, "it's so good to see you here. thank you, thank you, thank you." i love my brother tim scott. we could write a dissertation on our disagreements. he gave the best speech on race, i wish i could've given the speech, but talking to the challenges and indignities still faced. and you are here. i was in the white house with my democratic colleagues. again, i mean my jo--i am in my joy, i can't help it, and the
president is asking who should we nominate, and i look at kamala and we have a knowing glance, which we have had for years went she and i used to sit on this committee at times. i tried to get out to the president what it means, what it means. and i want to tell you, when i look at you, this is why i get emotional. i'm sorry, you are a person that is so much more than your race and gender. you are a christian, you are a mom, you are an intellect, you love books. look for me, i'm sorry--but for me, i'm sorry, it's hard for me to look at you and not see my mom, not seen my cousins, one of whom had to sit behind you. she had to have your back. i see my ancestors and yours. nobody is going to steal the joy of that woman in the street or
the calls i'm getting or the texts. nobody is going to steal that joy. you have earned this spot. you are worthy. you are a great american. your hero is constance baker motley. mine, she sat on my desk for the offices i have held. she is my icon of america. her name is harriet tubman. there is a love in this country that is extraordinary. you admitted it about your parents. they loved this nation, even though there were laws preventing them from getting together. there were laws in this country that would've prevented you from marrying your husband. wasn't that long ago, it was last generation. but they didn't stop loving this country, even though this country didn't love them back.
what were the words of your heroes and mine? what did constance baker motley do? the country that she saw insulted -- when she came out of law school, law firms wouldn't hire her because she was a woman. did she become bitter? no, she used the constitution of this nation, she loved it so much, she wanted america to be america. as langston hughes wrote, let america be america again, the land where everyone must be free. america never was america to meet, but i swear this oath, america will be. that is the story of how you got to this task, you and i and everyone here, generations of folks came here and said, america, i'm irish, no dogs need
apply, but i'm going to show this country that i can be for here, i can make this country love me as much as i love it. chinese-americans forced into slave labor, building a railroad, connecting our country , saw the ugliest of america but were going to build their home here. america, you may not love me yet. i will make this nation live up to its promise of hope. lgbtq americans from stonewall to seneca, hidden figures who did not even get there play until a hollywood movie talk about them and how critical they were for us to defy gravity. all of these people loved america. you faced insults here that were shocking to me. well, actually not shocking. but you are here because of that kind of love. and nobody is taking this away from you. so you've got five more folks to go through.
five more of us. and then you can sit back and let us have all the debates. i'm going to tell you, it is going to be a well-charted senate floor, because it is not going to stop. they are going to accuse you of this and that. in honor of the person who shares your birthday, you might be called a communist. but don't worry, my sister. don't worry. god has gotten you. how do i know that? because you are here. and i know what it has taken for you to sit in that seat. harriet tubman is one of my heroes because the more i read about this person, she was viciously beaten. cracked skull.
she faced starvation, chased by dogs. and when she got to freedom, what did she do? did you rest?- -- did she rest? no, she went back, again and again and again. the sky was full of stars, but she found the one that was a harbinger full of hope, for better days not just for her and those people who were enslaved, but a harbinger of hope for this country. she never gave up on america. led troops in the civil war. she was involved in the suffrage movement. and as i came back from my run, after being near-assaulted by someone on the street, i thought about her and how she looked up, she kept looking up. no matter what they did to her, she never stopped looking up. and that star, it was a
harbinger of hope. today you are my star. you are my harbinger of hope. this country gets better and better and better. when that final vote happens, and you ascend onto the highest court in the land, i'm going to rejoice, and i'm going to tell you right now, the greatest country in the world, the united states of america, will be better because of you. thank you. sen. durbin: thank you, senator booker. we are going to take a 10-minute break and come back and have the last five senators ask their questions.
>> judge ketanji brown jackson, president biden's nominee for the supreme court, appeared for the third day of confirmation hearings before the senate judiciary committee. if confirmed, she will be only the sixth woman to serve on the bench, and the first african-american woman. she spoke about being "the lucky inheritor of the civil rights stream." >> thank you, senator. first, let me just address my comments to you in your