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tv   Highlights of Confirmation Hearing for Supreme Court Nominee Ketanji Brown...  CSPAN  March 24, 2022 5:25am-6:40am EDT

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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 office,
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which is something that i've said in speeches because it speaks to who i am and what i value. my parents grew up in florida under lawful segregation. what that means is when they were coming through middle school and high school, they were not allowed to go to school with white students. this is in the era before and right after the brown versus the board decision. there was lawful segregation in places in this country. and it was after that time that dr. king made his famous comments that people mentioned about having a dream, where
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people can be judged not by the color of their skin, but by the content of their character. was born in 1970. and the contrast between my reality growing up in florida and my parents' reality growing up in florida was like night and day in terms of the opportunities that were available to me, that weren't available to judge motley who is one of my role models in the law. and so what my being here, i think, is about at some level is about the progress that we've made in this country in a very short period of time, i would say. seems like a long time. but one generation we've gone
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from the reality of my parents' upbringing to the reality of mine. and i do consider myself, having been born in 1970, to be the first generation to benefit from the civil rights movement from the legacy of all of the work of so many people that went into changing the laws in this country so that people like me could have an opportunity to be sitting here before you today. what i would hope to bring to the supreme court is very similar to what 115 other justices have brought, which is their life experiences, their perspectives, and mine include being a trial judge, being an appellate judge, being a public
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defender, being a member of the sentencing commission. in addition to my being a black woman, lucky inheriter of the civil rights dream. and in my capacity as a justice, i would do what i've done for the past decade, which is to rule from a position of neutrality, to look carefully at the facts and the circumstances of every case without any agendas, without any attempt to push the law in one direction or the other, to look only at the facts and the circumstances, interpreting the law consistent with the constitution and precedence and to render rulings that i believe and that
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>> on the third day of the hearing for judge jackson, senate members returned to previous decisions over the past decade serving as a judge. here is iowa senator chuck grassley, the top republican on the committee. grassley: yesterday, you refer to your record of decisions as the best thing to look at when explaining and evaluating your nomination. but you also said that you have not had enough cases involving constitutional law to develop a judicial philosophy. if you have not had to develop a philosophy for deciding cases yet, what else do you think would be helpful for us to look at? judge jackson: respectfully, senator, i do have a philosophy. the philosophy is my methodology. it is a philosophy that i have
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developed from practice unlike some judges who come to appellate work for macadamia -- academia and have some overarching theory of the law, i approached cases from experience, from practice and consistent with my constitutional obligations. my philosophy is one in which i look at cases impartially consistent with my independence as a judicial officer. i understand my limited role in the constitutional scheme and therefore, take very seriously all of the constraints on the exercise of my authority that exists in our system. what that means is that at the
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beginning of every case, i am setting aside my personal views. sen. grassley: are those the three steps you gave us? you don't have to go into that. let me go one. so the supreme court overrule a president when it is clear to the justices that the president was wrongly decided? judge jackson: thank you, senator. stare decisis, the principal in which the supreme court uses at the outset, it is the sort of background rule of judicial maintenance of precedents in order to have predictability, stability in the law, is the kind of principle that the court begins with when it is asked to overrule or revisit a precedent.
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the court has developed certain factors that it looks at before it actually undertakes to reverse a precedent. one of those factors is the view that the precedent it is reconsidering is wrong but that is not the only factor. the court also determines in addition to whether or not the required precedent was egregiously wrong, the court has said, the court looks at whether there has been reliance on that prior precedent, whether the precedent is workable or has proven workable over time, whether they cases in the area of the precedent have shifted such that the precedent itself is no longer on firm foundation
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and whether there have been either new facts or a new understanding of the longer on t give rise to a need to revisit the precedent. it is not just a look at whether or not it is wrong, and it is important that the court take into account all of those factors because stare decisis, meaning letting the precedent stand is a very important pillar of the rule of law. sen. grassley: one is it appropriate for a judge to impose a sentence enhancement under the guidelines? judge jackson: thank you, senator. the federal sentencing guidelines are crafted to assist courts in making sentencing determinations within the broad range that congress prescribes for cases, for crimes. in the typical case, a defendant
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is convicted of some crime. in the federal system, they are usually very serious crimes. congress will say judge, you can give that person a sentence anywhere between zero and 20 years. for example. the sentencing guidelines are designed to set out a series of factors that judges should be looking at when they decide what they are going to sentence that particular person to. those factors will be things like if this is a violent crime, does the person have a weapon? if this is a violent crime, was there any injury? and so, the judge is looking at these facts, in many cases, horrible facts and calculating the guideline based on what we
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call enhancements. each one of those different characteristics or conditions is an enhancement. you asked when is it important -- sen. grassley:. appropriate. judge jackson: the judge has to appropriate the guidelines in every case. that is how we start the process. under the statutes, in addition to calculating the guidelines with all of those enhancements, the way our system now works is you determine what the guideline range of punishments is going to be and then, congress says you look at a series of other factors in addition to the guideline range. at the end of the day, the judges in the system now are choosing sentences based on both the consideration of the guidelines and also the iteration of the statutory fact there's -- factors that congress
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has put forward. sen. grassley: have you ever declined or imposed an enhanced sentence on a defendant because you disagreed with the enhancement as a policy matter? judge jackson: thank you, yes and the reason is because of supreme court case law concerning the way in which the guideline system operates. the supreme court has determined, in a case we discussed yesterday, that the guidelines are no longer binding on judges meaning the guidelines you can calculate but you don't have to stay in the guideline range anymore. that was the supreme court's booker case. i care member if it is in that case or subsequent case law, but the supreme court has also made clear that when you are calculating the guideline range
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in the new system that we are in right now, judges are free, the supreme court has said, to decide in particular cases whether as a policy matter, they disagree with a particular enhancement. that is the state of the law, that is what the supreme court has said judges are permitted to do in cases. and so, i have, in certain cases, given the way in which the guidelines are operating, the disparities that are created in cases, i have at times identified various enhancements that i have disagreed with as a policy matter because the supreme court has said tha >> on the issue of the judge's
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previous sentencing of child porn offenders, the hearing turns tense. here is senator lindsey graham. of america. you're a mother. you seem to be a very nice person. are you aware of how many images are out there on the internet involving children and sexually compromising situations? judge jackson: senator, i'm not aware of the numbers but i've seen the images in my role. senator graham: let me tell you the numbers. in 2021, the national center for missing and exploited children cybertip line received 29.3 million reports of a parent-child sexual exploitation containing 85 million images, videos and other files. that's in 2021. it's up. in 2019 it was less. so there's an epidemic of this on the internet.
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that if you go out on the internet, there are millions of pictures of kids being abused. when it comes to sentencing child pornography possession cases, do you routine ladies count the fact that a computer was used? judge jackson: thank you, senator, for allowing me to address this concern. the guidelines related to child pornography were drafted at a time in which a computer was not used for the majority, if not almost all, of these kinds of horrible crimes. the guidelines have enhancements in them -- senator graham: there are two areas you said you disagree. what are those two areas? judge jackson: at the time that the guidelines were drafted, it was an aggravating factor, a
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substantial aggravating factor to use a computer in order to distribute and disseminate the images because the ordinary crime was not committed by a computer. so the -- senator graham: would you now agree with me that computers are sort of the venue of choice for child pornography people? judge jackson: yes. senator graham: ok. so, here's my point. if you believe as i do the computer has created a bigger demand, there are more photos out there because of the internet, more websites exposing this garbage, won't you want to deter people from going down that road? judge jackson: senator, this crime is among the most difficult -- senator graham: no, answer my question. wouldn't you want to deter people from going down the road of using the computer that allows these people to have access to millions of photos
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because of the technology? i want those people deterred. if you're listening to my voice today and you're on a computer looking at child pornography, and you get caught, i hope your sentence is enhanced because the computer and the internet is feeding the beast here. that all these images out there are going to be more over time because people use computers. now, did you also say that the number of images should not be considered as a sentence enhancement? judge jackson: with respect to the computer, one of the most effective deterrents is one that i imposed in every case and that judges across the country impose in every case, which is substantial, substantial supervision. senator graham: wait. you think it is a bigger deterrent to take somebody who is on a computer, looking at sexual images of children in the
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most disgusting way, is to supervise their computer habit verse us is putting them in jail? judge jackson: i didn't say versus. senator graham: that's exactly you what said. i think the best way to deter people from getting on a computer and viewing thousands and hundreds and over time maybe millions of children being exploited and abused every time somebody clicks on is to put their ass in jail, not supervise their computer usage. judge jackson: senator, i wasn't talking about versus. senator graham: you just said you thought it was a deterrent to supervise them. i don't think it's a deterrent. i think the deterrent is putting in jail. senator durbin: would you let her respond? senator graham: yes. does sentencing have a deterrent component? judge jackson: yes, senator, deterrence is one of the purposes of pun innerment -- punishment. and congress has directed courts to consider various means of
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achieving deterrence. one of them, as you said, is incarceration. another, as i tried to mention, was substantial periods of supervision once the person -- senator graham: if i could ask you, in your view, it's more of a deterrent to have somebody substantially supervised in terms of their computer use who is looking at child pornography than it is to put them in jail? judge jackson: senator, i'm not saying it's more or less. senator graham: that's exactly what you're saying. judge jackson: what i'd like to point out is that if we are going to -- let me say it this way. congress has authorized courts to use a number of different means to achieve the purposes of punishment. senator graham: and one of them is an enhanced punishment by using a computer. judge jackson: the enhancements
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with respect to using a computer relates to the penalty in terms of incarceration -- senator graham: you choose not to apply that in these cases. you've said that. i'll read you the quote. you decided not to apply the use of computers and enhancement. you've also said you're not going to hold the number of images that the person has looked at as a sentencing enhancement factor. is that true? judge jackson: no, senator, it's not the number of images that a person has looked at because we don't have that information. it is the number of images that they've either received or distributed senator graham: we don't know if they looked at them but you're not going to hold it against them that they received 10,000 images versus 100? judge jackson: that's not what i've said, senator. senator graham: here's you said. i've decided to apply my general policy disagreement with respect to those enhancements. at least, that is, to computers
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and the number of images. folks, what she's saying is the reason she's always below the recommendation, i think, is because she doesn't use the enhancements available to her. she takes them o coming out of a break in the hearing, republican senators ted cruz and josh hawley also focused on the judge's record in child porn cases. 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
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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."
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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
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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
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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
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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 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
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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
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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
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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
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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
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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
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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,
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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
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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 so, i understand that in certain
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cases, the government may have made an argument, but there are other people in our criminal justice system who make arguments and the court evaluates everything as congress has directed, and 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 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 graphic in terms of the kinds of images that you are describing. they give you not only the actual videos, which you are asked to see, but they describe in the briefs, in detail, what these videos show. so, i am fully aware of the
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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. (202) 748-8000 -- >> later in the day, judge jackson addressed concerns about presentencing reports from several chopper larvae cases overseen by judge jackson. >> there is apparently a concern on your side, mr. chairman, about whether you have on your side of the aisle access to all the information we have on the side of the aisle and all the information in possession of the white house. during a break earlier today, i met with the ranking members of staff and white house staff to discuss it. here's my understanding of what
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has transpired. last wednesday evening, the senator from missouri selected a handful of judge jackson's more than 1000 district court cases to claim that she "endangers our children." on thursday, the next day, the white house contacted judge jackson's office to request the recommendations in each of the cases. i underlined the probation office. they provided a charge. flicking 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 continued to raise questions about judge jackson's sentencing record, which were shared at the white house. when the senator from missouri continued to raise questions
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about judge jackson's sentencing record, mice -- my staff asked the white house for information while the probation office work conditions. these are just numbers for each of the cases, that's all this is. the white house did in my office did not have this information earlier because we did not know the senator from missouri was going to make this clement in the first place. once the republican side requested the same information, my step shared it within minutes. so now, your side, senator, has exactly what 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 of custody, and in each case, they recommended supervision and release, and that was imposed. all of that information has not been shared equally. some information on the others,
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on the republican side, includes frequent reference to transcripts, which we don't have on the site. the reason being that we did not anticipate this objection from the senator of missouri and requested 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 for 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 some of the for the same victims.
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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, and i think we should think long and hard about whether or not we even consider going into presentence reports. i'm going to take this matter up with our side and i'm sure you are going to with your side. i have your letter requesting it. 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 ought to be carefully weighed. it goes way beyond -- i am sorry, judge jackson, goes way beyond your nomination. i want to make sure we don't take a step here that endangers the lives and well-being of innocent people. >> mr. chairman?
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since you just responded to the letter that i wrote and was emitted 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 decisions because we heard the arguments of the prosecutors in the transcript, but we did not have the augmentations from the probation office. what she testified under oath, we could not understand how she had this without the probation reports. you are right that there could be sensitive victim information and those reports. everyone on this side, i'm confident, would agree to rejecting out any information that would violate the privacy of a victim. but judge jackson has told us it is relevant to understanding this cases and 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
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submitted. senator --chair sen. durbin: senator, i don't know where their members of your carcass stand on the basic question of his -- of this nomination. they can decide on their own and they will, and they should because that is the response billy. i think i know where you are 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. spent two days, 15, 16, 17, 18 hours and a large part of it on this issue. i don't believe these presentencing reports are going to change anyone's disposition if they're going to vote on this issue. i do not want it weighing on my conscience that i gave the green light to release this information so that it might endanger the lives of innocent victims. i am sorry, that is a bridge too far for me. i think the issue before us on sentencing, you each have a chance to hear plenty of testimony on.
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i believe this should be taken up with individual caucuses on both sides, if you wish, but 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 echo while i agree with you, i have prosecuted literally thousands of people. i would have to go back. it's over eight years. i can't remember the hundreds of sentencings. we had presentence reports. over and over again, there are things in their -- there are things in there that sometimes people putting their lives on the line to even give a report. the defense counsel or i is a prosecutor ever thought -- never thought those would be made
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public. we assumed the judges -- we had judges across the political stripes who read them, cap the confidence of that. as a result, we knew that the reports were thorough. a judge had the final statement. as a prosecutor, i might have a recommendation, but i never questioned a judge he might give a different sentence, because my response ability as a prosecutor , theirs was to sentence. >> might i just wait in here? i totally understand the concern that you're describing relative to the confidential nature of presentence reports. as a prosecutor and as a law clerk, reviewed those with some regularity and i understand the sensitivity of them. let me see just a couple of things. first of all, it's not unusual
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for us as a committee and as members of the united states senate to review materials that would be an appropriate for public release. i don't think one of us is adjusting that. there are means by which we can review things in a classified environment and treat them is classified. we have done that with significant success in this hearing. secondly, to the extent that wouldn't provide the level of comfort necessary, we would also be happy to review them on a redacted basis. these are things that have become relevant in our conversations. we want to make sure that we have the facts. but not one of us want 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. dangerous to the victims and 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
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dangerous territory. classified settings, redacted versions of the reports, this has never happened in the history of this commit. senator, i will just tell you, i'm not going to be party to turning over this information and endangering the life of an innocent person for a political quest to find more information. we have exhausted this topic. we have gone to it over and over again, and i think this is a bridge too far for this committee. that is my personal feeling. i take it senator leahy might agree. this nominee has been before the commit he for 18 hours. i don't believe 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 think the nominee for waiting for this. i turn it over to senator cotton. >> a reminder that all of day three confirmation hearings for
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judge ketanji brown jackson is available at or our free mobile app, c-span now. during the afternoon of day three of supreme court confirmation hearing for judge jackson, she was asked about a federal case involving affirmative action in higher education. >> you are my alma mater harvard is currently being sued for its explicit end, in my view, egregious policy of disco against asian americans. even though i think 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 been discredited against, i don't have the
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ability to bring the lawsuit, is that right? judge jackson: you would have to have an actual injury. certainly people who are in the class could claim they have an injury for that purpose. sen. cruz: you are on the board of overseers of harvard. if you are confirmed, do you can -- do intend to pull back from this lawsuit? judge jackson: that is my plan, senator. >> there were other topics, including second of power and adding more justices to the supreme court. >> you, in an opinion that has been widely cited, made the observation that presidents are not kings. what does that mean and what are some of the most important works in our constitution against executive power, against tyranny? judge jackson: thank you,
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senator. our constitutional scheme, the design of our government is erected to prevent tyranny. the framers decided after experiencing monarchy, tyranny, and the like, that they were going to create a government that would split the powers of a monarch in several different ways. one was federalism, it was vertical, they would split the powers between the federal government and states. another was to prevent the federal government from itself becoming too powerful, from having all of the authorities, from having legislative, executive, and judicial authority concentrated in one place. so, the constitution, in its design, puts the legislative authority in article one and gives it to the congress, the
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power to make law. it puts the executive authority in article two and gives it to the president, the power to execute the laws. and it puts the judicial authority, the power to interpret the laws, and article three and gives it to the court. the separation of powers is crucial to liberty. it is what our country is founded on and it is important, as consistent with my judicial methodology for each branch to operate within their own sphere. that means for me that judges can't make all, judges shouldn't be policymakers. that's a part of our constitutional design and it prevents our government from being too powerful and encroaching on individual liberty. sen. ossoff: senator kennedy was
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asking you about expanding the court or what we call "court packing." you said, "i haven't really thought about it, but i hear the arguments on both sides." could you briefly describe to meet your perception of the arguments on both sides? judge jackson: my understanding of the argument is about whether or not to expand the court beyond the nine justices that are on the court right now, the nine seats that are there. sen. ossoff: right now, nine is fine, four or more. do you understand or have you heard any of the arguments for either side? judge jackson: i'm not even sure about the four. i have just heard people talking about putting more justices on
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the court, expressing concerns that the court has become politicized, that the court has become unbalanced in terms of what people perceive to be the views of the majority of the justices. i have heard arguments about rebalancing the court on that side and then there is the argument that many on the dais have stated about the inappropriateness of doing so, the concern that it might lead to some kind of "war" of every time a president adds more justices to the court. >> one senator focused on previous immigration that was later overturned. >> you said just a bit ago that
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you apply the law and the facts, and call them as you see them, is that right? judge jackson: that's correct. >> you look at the statute the way it is written and try to apply it in this plain way. judge jackson: that is correct, senator. >> have you heard of a case called "make the road"? who are they? judge jackson: make the road new york is a nonprofit that represents various individuals in this immigration law. >> they are nonprofit advocacy group for immigration issues. did you know that they received large donations from that arabella society and other foundation networks? judge jackson: no.
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>> well, they did. in that case, what was the issue? judge jackson: the issue in that case was a challenge to a change in administration policy concerning expedited removal, which is a policy that congress enacted in order to expedite certain removals in the immigration system. ordinarily, before -- >> asylum cases did not fall in this category, right? trust me on that because the statutory says it doesn't. judge jackson: if a person who could otherwise be subject to expedited removal makes and has a credible fear of torture in their country, -- >> can they -- judge jackson: they can be
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determined to qualify for regular removal, rather than expedited removal. >> so, expedited removal is a creature of congress. if you have been here two years or less, the statute -- i am sorry, the statute? the statute would allow the administration and the office to have expedited removal, avoiding a lot of the hurdles that would exist otherwise for people here two years or less. in the obama and even bush years, they did not look at it in terms of applying it to everybody. some people coming by air got expedited removal, others didn't. the trump administration decided to use the authority given to it by congress to remove all eligible cases two years or less
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under the expedited removal statute. is that a fair summary? judge jackson: senator, i would say it differently. sen. graham: well, say a different light. judge jackson: the statute that you put up indicates that congress is giving the department -- it says the attorney general, but now it is the department -- the ability to determine what category of aliens -- sen. graham: if they are two years or less. judge jackson: yes, but importantly, it was not congress saying it two years or less. what congress said is, "you, the agency, have the authority to determine what category of person who have been here
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between zero and 24 months -- sen. graham: which is two years. judge jackson: forgive me, senator, what i'm trying to explain is the authority given to the agency was to determine what length of time -- sen. graham: they -- judge jackson: it was not the authority to deport everyone who has been here for 24 much. it was the authority to determine what length of time a person has to be here in order to be subjected to expedited removal. sen. graham: here's what the statute says. "the attorney general to any and all aliens described in subclass two, as dedicated by the attorney general, shall be in the sole and unreviewable discretion of the attorney
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general and may be modified at any time." i have been in this business for quite a while. what the trump administration did was to use the discretion given to it by statute in a way different by prior administrations. this advocacy group, the arabella supported efficacy group, try to strike it down. you rule for them. here's what the d.c. circuit court said about your ruling. "there could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expanded removal within statute or bounds to the dependent judgment." the forceful phrase "soul and unreviewable discretion" by its exceptional terms. such designation shall be in the
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sole and unreviewable discretion of the attorney general and the modified at any time. to those of us in the law writing business, i don't know how you could tell a judge more clearly that the administration, the agency in question, has discretion to do certain things within the statute. so, this is an example to me, and you may not agree, where the plain language of the statute was completely wiped out by you. you reached a conclusion because you disagreed with the trump administration, and the d.c. circuit court of appeal set, as i quoted just a minute ago, "there could hardly be a more definitive expression of congressional intent to lead the decision about the scope of expedited removal within the statutory bounds to the independent judge." that, to me, is exhibit a of activism. let's go back to the chopper in
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order for cases. judge jackson: senator, would you allow me to -- sen. graham: yes, please. judge jackson: thank you. the circumstances you iterated are the what the statute says. it is not all of it, it does not describe the designation process that i was trying to articulate. and it doesn't address the fact that congress has another statute that is presumptively applied in agency cases, to tell agencies how to exercise discretion. there is also d.c. circuit judge's law that says in addition to having that procedural statute be presumptive, even very clear designations of authority to an agency may still be subject to congress' other directions
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regarding how to exercise the discretion. sen. graham: that argument fell on deaf ears. judge jackson: understood. sen. graham: i have other things i want to talk about. you gave an ex clinician, but it didn't work. the d.c. circuit court said, "there could hardly be a more definitive expression of congressional intent." this is as good as it gets. there is no other way to say discretion lies in the agency. it is not viewable. we can talk about all day long, but i agree with the d.c. court. this, to me, is an example, exhibit a, of a judge to get a aluminate. >> after more than eight hours into the confirmation hearing, senator cory booker took his 20 minutes to defend judge jackson's record. sen. booker: lets it back for a second, because i don't have questions right away, i have a number of things i want to say, because this has been not a
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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 set in this hearing. the way you have dealt with some of these things, that is why you are a judge and i'm a politician, because you have sat with grit and grace and have shown us extraordinary demeanor, during a time when people were saying things to you out of the norm. i had to go on the dais to ask some of my more senior colleagues because i believe this is a dangerous precedent. thousands of cases you presided over? i said i wouldn't asking cases. -- questions. judge jackson: something like that. sen. booker: something like that. i understand that these often take days, weeks, months, right? judge jackson: to decide? yes. sen. booker: there is a trial sometimes. folks are taking any of those
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cases and trying to pick pieces out. my colleague, senator holy, has been doing this all to the leader, saying and tweeting things that i think a lot of us, and i would give some advice here, it this is what the new standard is going to be. any judge coming before us who has ever chosen outside of the sentencing guidelines, below the sending sin guidelines, we are creating a an environment now where i could create myself as a hero who have been victims of some horrible crime, and suddenly put whatever judge i want on the defensive trying to 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 commode justice system. the reason why we have a third branch of government. i feel bad that there was a judge mentioned by name in this hearing from senator hawley
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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 sending sin guidelines, check showed you yesterday and my lack of chart -- your member i was uncharted -- but that you are decided completely in the norm? 70% plus in many states, people are doing just what you did. but i am a democratic senator. i have never quoted from this very well respected conservative periodical. this is the "national review," very well respected, not necessarily something i agree with all the time. but here's the title. "senator hawley's disingenuous attack against judge jackson's record on child pornography." let's read the first paragraph. "i would oppose judge ketanji
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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." this is the kicker here. "the allegations appear malicious to the point of demagoguery." i got letters from the leaders of victims' rights groups, survivors of assault, all saying sort of the same thing as "the national review." feel proud of yourself. you brought together the right and left.
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people will try to sit appear and try 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. what's especially surprising about this is it didn't happen just last year. you report -- you are put on a court that i'm told is considered the second most powerful court and our land, and you were passed with bipartisan support. nobody brought it up then. did they not do their homework? were they lax? did they make a mistake? i wondered, if they asked you the question, "do you regret?" today regret that daca no, and do you know why? it was malicious to the point of
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demagoguery. you are -- i don't mean this in any way, because if somebody called the average, i would be upset, but you are a mainstream judge. your sentencing -- i looked at the data -- falls in the mainstream on every thing from child sexual assault to allele or issues people are trying to bring up. some of these things are being cast at you that you called george bush a war criminal. come on, that is painful, especially because you have said these are names you have to put in. 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 you do, gosh, a performance artist on our side could pull
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out one of the cases where they were below the sentencing guidelines -- say, for example, it was on something as horrific as rape, that we all agree as horrific, and they could say, "how do they put somebody who is soft on crime?" are you soft on crime? god bless america. i got some text from my negotiations, and this is my favorite text. kennedy might get a kick out of this. things that are uncountable, stars in the sky, grades on the beach, and the number of times the cuts mentioned that the fop endorsed judge jackson in the hearing. [laughter] let me mention it again, just in case my people say you are soft on crime. they really want to try to make that stick. you were endorsed by the largest organization of rank-and-file police officers.
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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 more about that organization. you have folks who are officers. you have a brother, not just an officer, who 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 and terrorists. i actually sit back here and find this astonishing, but then i do my homework. i love that my colleague brought up constance aker modly. you know when she was getting to the floor in the senate, they were trying to stop her with outrageous tech's agents. do know what it was back then? she was a communist. they were trying to throw anything that might stick. but this is what you and i know.
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anyone of us senators can yell as loud as we want that venus can't return a serve. we can yell as loud as we want that beyonce can't sing. we can yell as much as we want that astronaut may jamison did not go all that high. but you know what? they got nothing to prove. 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. he spoke in high school, when you started distinguishing yourself. you know what you said with a told you you couldn't go to harvard? "watch me." i went to law school. i did not serve on the law review, you did. i did not clerk at every level
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of court, you did. you served a supreme court justice, widely respected on both sides, which changed you. you left there and went to private practice. 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 just didn't add up. you went before the senate three times in a partisan manner. god bless america. we don't do that much bipartisan around here. you became a public defender because he wanted to understand all aspects of the law. who does that? we live in a society that is very materialistic sometimes, very consumerist it. do people become public defenders for the money? no. your family and you speak to service, service, service.
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and i'm telling you right now, i'm not letting anybody in the senate steal my joy. i told you this at the beginning. i am embarrassed. it happened earlier today. i just look at you and i start getting full of emotion. i'm jogging this morning and i am at the inn of the block i live on, because i put my music on loudly to block out the noise of the heart attack i'm having. [laughter] this woman comes up on me, practically tackles me, and african american woman, and the look in her eyes, she just wanted to touch me because i was sitting so close to you, and tell me what it meant to her to watch you sitting where you are sitting. >> if you missed any of the confirmation hearing for judge ketanji brown jackson, you can watch in its entirety on our
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website,, or on the free mobile app c-span now. ♪ >> c-span's "washington journal." every day, we are taking your questions live, on the air, and we will discuss the topics that infect you. coming up this morning, george mason university's jail dropper talks about sections against russia, several scaredy threats, and what he says it is time for biden to move to plan b. watch "washington journal" live at 7:00 eastern this morning on c-span or on c-span now, our free mobile app join the discussion with your phone calls , facebook comments, text messages, and tweets. ♪ >> watch the conclusion of the confirmation hearings for judge ketanji brown jackson. follow this historic process
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live today at 9 a.m. eastern on c-span,, or by downloading the free c-span now mobile video app. >> following yesterday's confirmation hearing, committee members responded to their republican colleagues questions of supreme court nominee judge ketanji brown jackson. this is 20 minutes. >> [indiscernible] >> [chatter]


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