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tv   Today in the Bay  NBC  March 22, 2022 6:00am-7:00am PDT

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expected to begin for supreme court nominee ketanji brown jackson. >> in fact, we have a live look inside the senate room. judge jackson is the first plaque woman to be nominated for the supreme court. nbc news will cover with a special report, very shortly it will be starting. of course we're going to cover this all day. this is an nbc news special report. the supreme court confirmation hearings of ketanji brown jackson. here is lester holt and savannah guthrie. >> good morning, everyone. we are coming on the hair to bring you live coverage of the confirmation hearings for supreme court hearing ketanji brown jackson. president biden's pick to replace retiring justice stephen breyer. this is a historic moment we are seeing play out on capitol hill. she is the first black woman to ever than nominated to the supreme court. if confirmed, she will be the first black female justice in the court's more than 200-year
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history. yesterday, introducing herself to the committee, to the nation and today they get down to business. >> we are taking a peek inside that hearing room as senators are filtering to take their seats. the first chance for the senators to question the judge publicly. a clear party line as kped. some republicans used their opening statements yesterday to pay judge jackson soft on crime and democrats say her background as a trial judge and former public defender is an asset that will be a critical addition to the court. the judge, herself, gave a very personal opening statement yesterday. her parents were there. her children and her husband were there. she vowed to defend the constitution and decide cases without fear or favor and saying neutrality would be her guiding committee. each senator will get 30 minutes to question judge jackson and it could filter into tomorrow as well. let's get to our capitol hill
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correspondent who joins us now. what are re expecting? >> a long day for the judge who takes questions from the finer points of history and more broad questions. he heard several republicans yesterday want to get to the root of the role she this a supreme court justice is, whether she is interpreting the constitution and how much she is reading in it and likely to defend off attacks on her record and particularly how she sentenced child predators and others convicted of the most heinous crimes a person can be convicted of. several republicans have indicated that they think that is an area of weakness for her, that they want to explore. democrats feel like they don't necessarily have to defend judge jackson. she is perfectly capable of defending her own record but they, too, want to highlight elements of both her political background in terms of working on the sentencing commission and also her record in nine years as a federal judge. so very lengthy day today. we are looking at potential 12 hours in the chair for judge
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jackson. >> all right. garrett, thank you. >> joining us now is nbc news justice correspondent pete williams. pete, as we talked about yesterday, she has been this route before and been before this committee. what is different here? >> different is the stakes are much higher because in a supreme court confirmation hearing it's different because lower court judges, which is the thing she has done in the past, has to apply precedent. it's supreme court justices who make the precedent. but she becomes one of just, by our count, four supreme court nominees who have actually had more than four hearings. this will be her fourth supreme court -- fourth senate confirmation hearings and just a few other supreme court justices who have been before the senate that many times for different federal appointments. she has practiced in that way. of course, in the last couple of weeks, she has also practiced with white house officials, the white house counsel's office. she has been through all of the questions that they think she is going to face. on the matter that garrett just
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raised on the question of her sentencing in child pornography cases, this is something that senator josh holly said he is going to race. it is true she tended to issue sentences that were below the federal guidelines. what he left out is most federal judges do the same thing. she is in the mainstream of sentencing four child pornography cases. even the u.s. sentencing commission has said that the guideline range is out of date because it has failed to keep track of the new technology that makes sharing these images so easy and it fails to distinguish between people who are actively producing this material and simply obtaining it on the computer. so for that reason, most judges think the sentencing guidelines are out of date. she was in the mainstream of that and as well as the time she was a public defender and especially her defense at one of the detainees from guantanamo
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bay. >> thank you, pete. >> we are joined by nbc news washington correspondent and our political analyst eugene robinson. welcome to you both. we shouldn't miss history in the making here. the first black female supreme court justice to be nominated to the highest court. it's interesting. i wonder what your reporting tells you. every supreme court confirmation hearing is high stakes by its nature. this will not alter the balance of the court and for some the temperature will be lower than others might be. >> it will be lower in what you said the bounds of the court at stake, but this is still history in the making and still a time a lot of the republicans on the committee are looking to 2024. we can imagine that as she leans into the history of being the first black woman to be nominated to the supreme court and also double-down on the idea she loves this country and loves this constitution. that is what she said yesterday.
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she is also going to be on the defense here. yesterday was the easy day. today, she is having to talk about whether or not she sees race as having a role to play in the law she has asked and answered that question before and doesn't think race impacts her decisions on the law. we can expect republicans not only to go after her on the child pornography issues as pete said and her defending them pretty clearly, we expect they will be talking about whether or not she believes in adding people to the supreme court or might recuse herself from affirmative action cases because she is on the board at harvard. >> they are about to enter into the hearing room. she has been to several prior olympics and faced several olympics hearings. eugene, i turn to you. the court is about to hear some of the biggest hot button issues of our time and major case on
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abortion. she would not sit for that. that case is being litigated right now. affirmative action cases before the court and all of these are central issues right now. >> right. they are. and so, however, the temperature will be lower this time just because it doesn't change the ideological balance. i think the republican senators who frankly would like to run for president some someday, i think you'll hear them kind of ask performative questions to be blunt. they are playing to their base. i'm not sure how much serious inquiry we get. i hope we get some. about those cases that are coming up, you know, there is, i think, a legitimate question on harvard -- whether or not she should recuse herself. >> we just heard senator durbin
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gavel in this session. >> and your family. >> good morning, mr. chairman. >> this second day is known affection nationally by a term of medieval justice known as the trial by ordeal. this will be your opportunity to speak, but each member of the committee has 30 minutes to ask and i that they are going to be careful to stay within time limits of those 30 minutes. i do want to remind my colleagues that history has proven that speeches don't have to be eternal to be immortal. president lincoln learned at gettysburg that 275 words were enough. i hope my colleagues and friends will stick to the 30-minute guideline. i'll tap on the gavel if you're getting perilously close to extending beyond. we will take a few breaks throughout the day. a number of of them are scheduled. one for lunch, one for dinner. and several perhaps shorter ones in the meantime.
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if votes are called on the senate floor which is a possibility, we will do our best to keep the hearing going as members go back and forth. as i mentioned yesterday, we welcomed all of our friends in the audience and asked that they be quiet and respectful during the hearing. so let's get started with the questioning. i'll begin, at this point. judge jackson, there are two issues that came up repeatedly yesterday from the other side of the aisle that i want to address at the outset. one of them was a question of judicial philosophy. no one questions either your academic law school credentials or your service as clerk and as federal judge. but time and again, you have been asked what is your judicial philosophy. does it fit in to scalia's originally, kavanaugh's?
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lo and behold i have discovered the answer. it turns out that during the course your time as a judge, you had actually written opinions, 573 to be exact, i think, maybe i'm off by one or two. and they, more or less, express your view of the law as the facts as presented to you in each one of those cases. and then some 12,000 pages from the sentencing commission, transcripts of deliberations on important issues. for most of us, as elected senators, if people asked what is your philosophy, we point to our voting record. you would have a record when it comes to court decisions and this committee, for the fourth time, is delving into everything that you've published as a judge and even before. so would you like to comment at the outset of those who are looking for a label what your position is on judicial philosophy? >> yes. thank you, mr. chairman.
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over the course of my almost decade on the bench, i have developed a methodology that i use in order to ensure that i am ruling impartially and that i am adhering to the limits on my judicial authority. i am acutely aware that, as a judge in our system, i have limited power and i am trying in every case to stay in my lane. and so what i do is i essentially follow three steps. the first step is when i get a case, i ensure that i am proceeding from a position of neutrality. this means that, you know, you get a case and it's about something and it's submitted by
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certain parties. i am clearing my mind of any preconceived notions of how the case might come out and setting aside any personal views. it's very important that judges rule without fear or favor. the second step is once i've cleared the decks, so to speak, in this way, i am able to receive all of the appropriate inputs for the case. that is the party's arguments. they have written briefs. sometimes we have a hearing, sometimes we hear from other parties and -- in a case. then there is the factual record. i am evaluating all of the facts from various perspectives. i think all of the various experiences i've had has helped me at this stage to see the perspectives of all the parties and to understand their
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arguments. then the third step is the interpretation and application of the law to the facts in the case. and this is where i'm really observing the constraints on my judicial authority. there are many constraints in our system, importantly, because judges have limited authority, and so i am, first of all, looking at my jurisdiction. threshold matter in every federal case is to make sure that you even have the power to hear the case. in evaluating jurisdiction you're looking at all sorts of things. the text of a jurisdictional provision, for example, precedent related to it. if i can get to the merits of the case, if i have jurisdiction, then i am observing the limits on my authority concerning the question. so if it is a statute, for
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example, or a provision of the constitution, i'm looking at the text. the adherence to text is a constraint on my authority. trying to figure out what those words mean, as they were intended by the people who wrote them. so, at this point, i'm looking at original documents. i am focusing on the original public meaning, because i'm constrained to interpret the text. sometimes, that is enough to resolve the issue in terms of the merit. judges also look at history and practice at the time of the document was created, if it's a statute, i'm looking at congress's purposes. i am not importing my personal view or policy preferences. the entire exercise is about trying to understand what those who created this policy or this
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law intended. i'm also looking at precedent, which is another constraint on judicial authority. i am looking at prior cases and trying to understand what other judges have said. as a lower court judge, i'm bound by the precedent, and even in the supreme court, if i was fortunate enough to be confirmed, there is star decicis is what the judges are looking at when considering precedence. all of these come into play. >> another issue has come up to my surprise, i've spoken to my republican republicans about their fascination of it is the notion of the composition of the supreme court which is referred to as court packing. i have said on the floor and i will repeat here, there is
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exactly one living senator who is effectively changed the size of the supreme court that was the republican leader senator mcconnell who shranked the court to eight seats when he blocked the nomination of president obama mare rick garland. amy barrett was asked about it when she appeared. i quote, could not opine on it. on many other policy issues, judge barrett said repeatedly she could not share her views stating, i quote, i will not express a view on a matter of public policy, especially one that is politically controversial because that is inconsistent with the judicial role. i do believe we should have rules and traditions and presence but we shouldn't have a separate set of rules for republican nominees and democratic nominees. so judge jackson, if a senator
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were to ask you today about proposals about changing the current size of supreme court, what would your response be? >> senator, i agree with justice barrett in her response to that question when she was asked before this committee. again, my north star is the consideration of the proper role of a judge in our constitutional scheme and, in my view, judges should not be speaking in to political issues and certainly not a nominee for a position on the supreme court. so i agree with justice barrett. >> let me address another issue that came up yesterday in the opening phase of this nomination hearing. and it's the issue involving child pornography. i want to turn to tha
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times, primarily by the senator from missouri, and it was -- he was questioning your sentencing record in child pornography cases, that do not involve the production of pornographic material. they are known as nonproduction cases. i wanted to put some context here. the senator from missouri has in his tweets said of your position on this issue, judge jackson has a pattern of letting child porn defenders off the hook for their appalling crimes, both as a judge and a policymaker. she has been advocating it since law school and this goes soft beyond crime, the senator said. i'm concerned this is a record that endangers our children. i thought about his charges, as i watched you and your family listening carefully yesterday, and what impact it might have had on you to know your daughters and husband and parents and family and friends
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were hearing the charges that your implication of this law sentencing endanged children. -- endangered children. can you tell us what was going through your mind at that point? >> thank you, senator. as a mother, and a judge who has had to deal with these cases, i was thinking that nothing could be further from the truth. these are some of the most difficult cases that a judge has to deal with because we are talking about pictures of sex abuse of children, we are talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases and there is a statute that tells judges what they are supposed to do.
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congress has decided what it is that a judge has to do in this and any other case when they sentence. and that statute, that statute doesn't say look only at the guidelines and stop. the statute doesn't say impose the highest possible penalty for this sickening and egregious crime. the statute says calculate the guidelines, but also look at various aspects of this offense and impose a sentence that is, quote, sufficient, but not greater than necessary to promote the purposes of punishment. and in every case when i am dealing with something like this, this important to me to make sure that the children's perspective, the children's voices are represented in my
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sentencings. and what that means is that for every defendant who comes before me and who suggests, as they often do, that they are just a looker, that these crimes don't really matter, they have collected these things on the internet, and it's fine, i tell them about the victims statements that have come in to me as a judge. i tell them about the adults who were former child sex abuse victims who tell me that they will never have a normal adult relationship because of this abuse. i tell them about the ones who say, i went into prostitution, i fell into drugs because i was trying to suppress the hurt that was done to me as an infant. and the one that was the most
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telling to me that i describe in almost every one of these sentencings when i look in the eyes of a defendant who is weeping because i'm giving him a significant sentence. what i say to him, do you know there is someone who has written to me and who has told me that she has developed agoraphobia? she cannot leave her house because she thinks that everyone she meets will have seen her, will have seen her pictures on the internet, they are out there forever. at the most vulnerable time of her life, and so she is paralyzed. i tell that story to every child porn defendant as a part of my sentencing, so that she understand what they have done. i say to them that there is only
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a market for this kind of material because there are lookers, that you are contributing to child sex abuse. and then i impose a significant sentence and all of the additional restraints that are available in the law. these people are looking at 20, 30, 40 years of supervision. they their computers in a normal way for decades. i am imposing all of those constraints because i understand how significant, how damaging, how horrible this crime is. >> it should be noticed as well that the cases which the senator from missouri referred to yesterday all result in
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incarceration of some magnitude. one case the hilly case, i want to quote what you said on the record. this family has been torn apart, speaking to the defendant, by your criminal actions. you saw it on the faces of those women. you heard it in their voices and the impact of your acts on those very real victims who are still struggling to -- makes your crime the most serious sentence that this court has sentenced and you imposed 29 1/2 years on this defendant. as the senator says you look at this leniency, your record denies that. we are looking at that this committee have been loathed to address again. the original law was written nine, ten, maybe longer years
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ago and the quantity of material was relevant to the sentencing. now that we have computer access to voluminous amounts of material, it has raised questions, has it not, within the judiciary as to the appropriate sentencing in today's circumstances? this was a question that was raised before the sentencing commission, was it not? >> it was, senator. the sentencing commission has written at least one report. it did when i was there, looking at the operation of this guideline. as you said, the guideline was based originally on a statutory scheme and on directives, specific directives at congress at a time in which more serious child pornography offenders were identified based on the volume, based on the number of photographs that they received in the mail. and that made total sense before when we didn't have the internet and when we didn't have distribution. the way the guideline is now
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structured, based on that set of circumstances, is leading to extreme disparities in the system because it's so easy for people to get volumes of this kind of material now by computers. so it's not doing the work of differentiating who is a more serious defender in the way it used to. so the commission has taken that into account and perhaps more importantly, courts are adjusting their sentences in order to account for the changed circumstances, but it says nothing about the court's view of the seriousness of this offense. >> judge, the -- there have been several news organizations that have taken a look at the senator from missouri's charges. abc news, cnn news and "the washington post" and others and concluded they are inaccurate and unfair to you in their
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conclusions. in fact, one writer has said they are meritless to the point of unacceptable levels. nationally, in 2019, only 30% of nonproduction child pornography defenders received a sentence within the guideline's range. fewer than 30%. between 2015 and 2020 in the d.c. district court where you served judges imposed low guideline sentences in nonproduction cases 80% of the time for the reasons you just explained. judges in missouri, the home state of the senator who has criticized your record, did so 77% of the time. one particular judge whom the senator supported to become a federal judge by appointment of president trump, unfortunately, has 77% record -- i'm sorry. i want to make sure this is accurate.
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here it is. in the united states versus -- trump appointed -- pitlick and sentenced an individual with possession of child pornography to 60 months less than the recommended sentence by guidelines. she appeared to ran into the same challenge that you have described here. so going forward in terms of this issue, it seems that we at least share the burden by your interpretation as to define the statute in modern terms, in terms of in this, as it exists today. is that the way you see it? >> senator, congress is tasked with the responsibility of
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setting penalties. congress tells judges what we are supposed to do when we sentence. and what i'd say is that congress has to determine how it wishes for judges to handle these cases, but as it currently stands, the way the law is written, the way that congress has directed the sentencing commission, appears to be not consistent with how these crimes are committed and, therefore, there is extreme disparity, as you pointed out. there are judges who are investigator because our ultimate charge from this body is to sentence in a way that is sufficient, but not greater than necessary, to promote the purposes of punishment. >> judge jackson, we have heard criticism from some of your previous work representing detainees at guantanamo bay. in fact, for years, we have
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heard criticisms against guantanamo bay detainees with legal representation. this criticism misses one critical point. the right to counsel as a fundamental part of our constitutional system. even for the most unpopular defendants. i want to thank senator graham who served as an air force lawyer for decades for offering his perspective yesterday. he said, and i quote, the fact that you're representing gitmo detainees is not a problem for me, senator graham said. you're doing a great service when you defends the most unpopular people. judge roberts said it's a tradition of the american bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients. the most famous example was probably judge adams who represented the british soldiers charged in the boston massacre. this sentiment is shared by lawyers across the political
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spectrum. i want to give you an opportunity to address this issue, because it applies not just for gitmo detainees but to your work as a public defender in terms of the wisdom, acceptability, providing counsel on those cases, and what impact it's had on you personally in terms of your rulings on the bench. >> thank you, senator. september 11th was a tragic attack on this country. we all lived through it. we saw what happened and there were many defenses, important defenses that americans undertook. there were americans whose service came in the form of military action. my brother was one of those
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americans, those brave americans who decided to join the military to defend our country. there are others of you in this body who have military service. i honor that. to protect our country. after 9/11, there were also lawyers who recognized that our nation's values were under attack, that we couldn't let the terrorists win by changing who we were fundamentally. and what that meant was that the people who were being accused by our government of having engaged in actions related to this under our constitutional scheme were entitled to representation. were entitled to be treated fairly, that's what makes our
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system the best in the world. that's what makes us exemplary. i was in the federal public defender's office when the -- excuse me. right after the supreme court decided that individuals who were detained at detained by the president could seek review of their detention and those cases started coming in and federal public defenders don't get to pick their clients. they have to represent whoever comes in and it's a service. that is what you do as a federal public defender. you are standing up for the constitutional value of representation. and so i represented, as an appellate defender, some of those detainees in the early
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days, the legal landscape was very uncertain. this had never happened before. not only the attack, but also the use of executive authority to detain people in this way and there were a lot of questions that the court was asking. the supreme court had taken a series of cases to try to understand what are the limits of executive authority, which is important. all of our liberty is at stake if we don't get it right in terms of what the executives can do. the supreme court has recently reaffirmed that the constitution does not get suspended in times of emergency and so lawyers were trying to help the court to figure out, figure out what the executives power was in this circumstance. as an appellate defender, i worked on the habeas petitions of some of these detainees. my petitions were virtually
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identical because we had very little information. part of the issue at the very beginning of these cases was that most of the factual information was classified. so defense counsel were appointed to represent these defendants. we had no facts. and i was making legal arguments about the circumstances. that is what gave rise to my representation. i would just emphasize that that is the role of a criminal defense lawyer. criminal defense lawyers make arguments on behalf of their clients in defense of the constitution and in service of the court. >> judge jackson, those of us who read about the workings of the supreme court realize it's a close relationship among the justices. you've seen it personally as a clerk and as an attorney, yourself. i'm going to close with one
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question here that comes to my mind. i was in the house of representatives when the war on drug measure was passed 30 years ago or so. it was at the advents of crack cocaine. it scared the hell out of us. the notion of a cheap narcotic highly addictive and destructive to mothers and their fetus, led us to impose a sentencing disparity between crack and pot or cocaine that was unprecedented. 100-1. our notion was to come down hard and make a federal standard and impose that standard and stop the advance of crack cocaine. we failed from the outside. the price of cocaine, crack cocaine on the street went down and -- up instead of down. the -- i'm sorry. i did that wrong. down, instead of up. and the number of users went up instead of down. and we found ourselves in a
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position where we were filling the federal prisons with violations, primarily for possession of crack cocaine, hundreds of thousands being incarcerated at the time. i came here to this committee in an effort to try to change it, negotiated a revision of that measure from 101 to 18-1 with senator jeff sessions and it was passed by the committee, by the senate and by the house of representatives and signed into law by president obama. then you on the sentencing commission had to consider what to do with these new guidelines coming from congress. and you achieved a consensus. i think most people don't realize the sentencing commission is a pretty diverse group and very transparent. could you close in the last minute or so and tell me about that effort to find consensus on a issue that is that controversial? >> yes, senator. as you mentioned, the sentencing commission is a very diverse
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group of people who have been appointed by presidents of different parties by law. and at the time that i was on the commission, we had a range of people, judges from different backgrounds who had different views about the criminal justice system, but we had a directive from congress in so far as congress had changed the penalties as you mentioned related to crack cocaine. and so we worked together to make a determination about whether or not the guidelines needed to change and, if so, whether or not to impose those changes retroactively in light of all of the evidence that you point out, all of the congress changes, and the need to avoid
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unwarrant sentencing disparities, which is exactly the charge that this body has given to the commission. we worked together. we reached unanimous agreement that the change in the guidelines that was necessitated by the change in the statute should apply retroactively to people who had been convicted and sentenced under the prior regime and then congress followed shortly thereafter by making it a statutory change to apply those changes retroactively. >> thank you, judge jackson. senator grassley? >> thank you, mr. chairman. welcome, again, to our committee. i got home last night about 8:00. the first thing i heard was my wife's opinion that you did very good in your opening statement. >> thank you. >> she didn't have anything to say about my statement. also, besides the fact that we might have some votes on the
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united states senate, so you know, i'm not being rude to you. i may have to go across the hall to a finance committee on some issues with tariffs and down to the agriculture committee for some issues on world health care. do you believe -- let me ask it this way. do the first amendment free speech protections apply equally to conservative and liberal protesters? >> yes, senator. >> okay. do you believe the individual right to keep and bear arms is a fundamental right? >> senator, the supreme court has established that the individual right to keep and bear arms is a fundamental right. >> could you tell me how you might go about deciding what a
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fundamental right is under the constitution? >> well, senator, i don't know that i can tell you that in the abstract in the sort of way that you may have posed the question. there is precedent in the supreme court related to various rights that the court has recognized as fundamental. the court has some precedence about the standards for determining whether or not something is fundamental. the court has said that the 14th amendment substance due process clause does support some fundamental rights, but only things that are implicit in the ordered concept of liberty or deeply rooted in the history and
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traditions of this country, the kinds of rights that relate to personal individual autonomy and they have recognized a few things in that category. that is the tradition of the court for determining whether something is fundamental in that way. >> okay. on another subject, kind of personal to me over a long period of time and about half of this committee, but it's a controversial issue even within this committee. i favor allowing supreme court hearings to be televised. what is your view on this? how would you feel about cameras in the courtroom which about 40, 50 or 40 or 45 of our states allow? >> well, senator, i would want to discuss with the other justices their views and
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understand all of the various potential issues related to cameras in the courtroom before i took a position on it. >> i think that is a fair answer at this point. i'm going to ask you about a bill that i got passed a long, long time ago and it's something that, at some level, district court and some time the circuit court and once or twice at the supreme court, these courts tend to do damage to a bill called the false claims act. this bill has brought $70 billion of fraudulently taken money back into the federal treasury since it's been passed. and courts have -- it and senator leahy and i usually find ourselves having to pass legislation to say to the court,
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you've got it wrong. in fact, a very controversial bill right now before the united states senate on that very subject. it's fought fraud in the department of defense he, health care industry, the pharmaceutical industry. $70 billion is pretty important. so when you get -- if you're approved to be on the supreme court and the issue of false claims comes up, i hope you think of chuck grassley. it's -- well, and leahy! okay. the false claims act is one of the best tools that we have to fight against government fraud and to recover taxpayers' money. i've worked decades to fight this in the government so i'd like to ask you a couple of questions. and i'm going to start with a former attorney general, unnamed, once suggested that -- suits were, in his words,
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unconstitutional. another word he used was dangerous. he argued that it violated the appointments clause. so understanding that you may get a case before you on false claims act, but maybe this appointment clause is sounding off, you could answer -- do these suits violate the appointments clause? >> so, senator, i am not familiar with that representation -- >> can you answer in writing then? >> well, i'd be happy to do whatever. i'm just trying to assess -- >> i'm sorry. i shouldn't have interrupted you. >> that's all right. sorry. i am not familiar with the quotation or what the attorney may have said about them. i know that the supreme court has considered various key tam actions and has issued opinions
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in the area and has not, at least to date, found them to be unconstitutional, but i don't know if that issue has been squarely presented to the court and would be loathed to comment on it because if it's being litigated, it's something i would not be able to address. >> on the same subject, also this former attorney general also argued that key tam suits also violate a broader separation of power of principles. can you tell me whether you think the president's constitutional powers are violated when private citizens are allowed to sue in the name of the united states and that is what these suits are will, right? citizens going to court. >> well, senator, it is an important concern. there are statutes that do allow for the kinds of lawsuits that
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you are articulating. i am not aware of impediments to those, but, again, you know, this is the kind of thing that maybe litigated and i would have to look, as i do consistently with my methodology at any arguments that are raised about the constitutionality or lawfulness of those actions. >> remember in about all of these suits that involve the courts and making interpretations of false claims act, most of them are brought by whistleblowers and the government would not know about these fraudulent abuse taxpayers without whistleblowers coming forward and should be given some credit for wanting the government want to do what it wants to do and spend the money the way the congress implies
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that money be spent. i want to move on. at an event at the university of chicago school of law in 2020, you quoted martin luther king jr. who dreamt of a time when, quote, the sons of former slaves and the sons of former slave owners would be able to sit down together tell table of brotherhood. end of quote. you talked about how quickly things in the country then changed, including the civil rights laws over the next few years because of civil rights movement. you added that, quote, less than a decade after dr. king's words, that was the world that you inhabited. dr. king hoped for a country where we would all be judged by the contents of our character, rather than our race.
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do these quotes still reflect your views on this very important topic today? >> yes, senator. in that speech, i talked about my background, my upbringing. the fact that my parents, when they were growing up in miami, florida, attended and had to attend racially segregated schools because, by law, when they were young, white children and black children were not allowed to go to school together. in my reality when i was born in 1970 and went to school in miami, florida, was completely different. i went to a diverse public junior high school, high school,
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elementary school. and the fact that we had come that far was, to me, a testament to the hope and the promise of this country, the greatness of america. that in one generation, one generation, we could go from racially segregated schools in florida to have me sitting here as the first floridian ever to be nominated to the supreme court of the united states. so, yes, senator, that is my -- that is my belief. >> i think it's good that the country had an opportunity to hear what you just told us abou. i'm going to go to something that the chairman brought up and i've written down the three steps you go through -- no. another question.
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but also one that he brought up. on court packing and your opinion. i heard what you said and you said there should be a policy question. but i want to go to something in 2013 during your hearing to be a dort judge. senator coburn asked you whether you believed in the theory that the constitution is a living document, whose meaning evolves over time. you said, no, in 2021. however you declined to answer the same question in your circuit court nomination when asked why the answer to your question of 2013 and not in 2021 in written question, you noted that you weren't a sitting judge. so please explain to me or describe for us the difference between ethical rules for sitting judges versus judicial nominees who are not already judges. >>senator, i don't know that
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there are ethical rules that are different. what i'll say is with respect to my approach to judging, there is not a label, i think, that fits what it is that i do, and how i've approached my role. as i mentioned to the chairman, i'm very acutely aware of the limitations on the exercise of my judicial power, and those limitations come in the form of adherence to the text. when you assuming you even get to that stage of the process, that you have -- you have
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subject matter jurisdiction, you can reach the merit, then you are looking at the text and i do not believe that there is a living constitution in the sense that it's changing and it's infused with my only policy perspective or, you know, the policy perspective of the day. instead, the supreme court has made clear that when you're interpreting the constitution, you're looking at the text at the time of the founding and what the meaning was then, as a constraint on my own authority. and so i apply that constraint. i look at the text to determine what it meant to those who drafted it. >> on this same subject, i want to point out a difference between you and a couple of people that have sat on the
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supreme court. justice breyer said that a structural altercation of supreme court motivated by perception of political influence can only feed the perception of political influence that is my parenthetical, further eroding that trust. justice ginsburg, quote, a bad idea. court packing is creating new seats for political purposes for a president to appoint more judges. do you agree with justice breyer and justice ginsburg that court packing is a bad idea? before you respond, i'd like to say you say this question should be left to congress as a policy issue. i reiterate that sitting supreme court justices have spoken on that matter, so i don't think it would be inappropriate for you to do if other people sitting
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there have said that it's a bad idea. >> well, respectfully, senator, other nominees to the supreme court have responded as i will, which is that it is a policy question for congress and i am particularly mindful of not speaking to policy issues because i am so committed to staying in my lane of the system, because i'm just not willing to speak to issues that are properly in the province of this body. >> okay. then i would interpret your answer -- and you don't have to respond to this, but i think you're saying breyer and ginsburg should not have stated their views on that issue. during his opening statement yesterday, one member of this committee suggested that the
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supreme court has been bought by dark money groups. do you agree that supreme court has been bought by dark money groups? >> senator, i don't have any reason to believe that that is the case. i have only the highest esteem for the members of the supreme court, whom i hope to be able to join if i'm confirmed, and for all of the members of the judiciary. >> thank you for that answer. i'm going to go to international law. during an aba panel on international law last year, justice breyer said that, as a federal judge, quote, you can't do your job properly, end of quote, without considering international law and, quote again, in some cases, and it's a growing number, ends of quote, and i assume a growing number of
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opportunities use international law. in 2018 op-ed, justice breyer said, quote, the best way to preserve american values may well be to take account of what happens abroad, end of quote. under what circumstances is it appropriate to consider international law when interpreting our constitution? >> thank you, senator. i have nothing but the highest esteem and respect for my former boss, who i've spent the better part of the past couple of decades calling my justice, having clerked for him. but i do think that the use of international law is very limited in our scheme and in our
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judging. there are certain cases in which it is relied upon where congress directs or where the standards are such, the case involves a treaty, for example, and you have to interpret international law in order to be able to address it. but there are very, very few cases, i think, in which international law plays any role and certainly not in interpreting the constitution. >> i'm -- i think you probably have answered my next two questions, but if you say you have nothing to add, i'll still want to ask the questions. do you think it's appropriate to look to international law when interpreting enumerated and unenumerous rated constitutional rights? >> no, senator. >> which specific -- again, i think you've answered this but i want to ask it any way.
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which specific constitutional clauses or rights have the supreme court held by interpreted by looking to international law? >> i'm not aware of any. i'm not aware of any that are properly illuminated by reference to international law. >> now, i want to go to a question that senator durbin asked. i'll probably go a little more, but i remember when this is about your judicial philosophy and you made three points, three steps you take to go through a case and apply the law and you say your methodology is limited power, and stay within your lane. i'd like to ask you what -- you've served on the district court for several years and eight months on the d.c. circuit. during yesterday's opening statement, we heard a lot about
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the importance of judicial philosophy. in your own words, you've described that, so you don't have to go through that again with me. but if congress writes a law that does not explicitly allow private parties to sue, do you believe that the federal courts have do you believe that the federal courts have the authority to create implied causes of action, and i'd like to have you elaborate if you say yes to that. >> i would say that as a general matter, no, senator. our obligations as judges is not to create policy and if congress has enacted a s establishes a cause ofaction, tn as a general matter i don't think that courts can impose one.


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