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Senate Begins Supreme Court Hearings For Ketanji Brown Jackson. Aired 11-11:30a ET

Aired March 21, 2022 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:55:00]

KATE BOLDUAN, CNN ANCHOR: Good morning, everyone. I'm Kate Bolduan. You are looking right here at live pictures from the hearing room on Capitol Hill, where the Senate Judiciary Committee will soon -- they're all sitting down getting ready and they will all soon begin the historic confirmation hearing for Judge Ketanji Brown Jackson. If confirmed, Jackson will become the first black woman on the nation's highest court.

The 51-year-old federal judge no stranger to this process. She's been confirmed three times by the Senate, including recently as last year. Republicans are already telegraphing some of their lines of attack on Jackson, saying that she's soft on crime in part because of her experience as a public defender. We're going to hear from President Biden's nominee, from Judge Jackson herself, this afternoon.

But let's begin our coverage with CNN Supreme Court Reporter Ariane de Vogue live on Capitol Hill, as I mentioned, these historic confirmation hearings are about to get underway. Hey there, Ariane.

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Hey. You're right, first black woman to be on the Supreme Court, if she is confirmed, historic moment. She comes with the sterling qualifications, went to Harvard twice, she sits on one of the most powerful federal appeals court across the country, she's a former clerk to Justice Breyer, but most importantly, as you know, she's been up here recently, less than a year. In all, this will be her fourth time.

And look for the Republicans to go after her for being soft on crime. It will be a two-part strategy going after her record but then also maybe pivoting to President Biden, to use these hearings as sort of a way to energize the base.

But that can really backfire with her for this reason, is that she is ready for these hearings and she was up here before and she really will show that she has a firm hold and understanding of the intricacies of the federal criminal system. For instance, she did serve as a public federal defender but she'll say, look, that makes me a better judge. I did what every lawyer does. I defended my client. She did serve on the federal sentencing commission, but she came up with some recommendations that were bipartisan and unanimous.

And, finally, look at her personal story. Like many Americans, she straddled the system. She's already spoken about one uncle who was sentenced to life in prison for a drug crime but she also spoke -- talks about other uncles she has who worked in law enforcement.

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Most importantly, if she's confirmed, she will fill a hole that no other current Justice has right now, with this deep understanding of the system, and having been the only one for years who served as a Federal Public Defender,

BOLDUAN: And Ariane with one of the best seats in the House in that booth above the hearing room watching it all play out, it's going to be getting underway around there for us. It's great to see you. Thank you so much. So Democrats are already lining up with their support for Judge Jackson, Republican senators are already lining up their lines of attack against the Judge and her record as Ariane was getting at in hopes of painting the nominee and Democrats are soft on crime. Senators will be starting with their questions for the Judge tomorrow and Wednesday. Let's get over to CNN's Manu Raju who's live on Capitol Hill with more on what more we can expect. Hey, there Manu.

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Yes, we're going to hear that just as a matter of minutes, both opening statements from both sides of the aisle, 22 members, 11 Democrats, 11 Republicans, and you're going to start to get a sense of where the Republicans planned to go with their questioning tomorrow, a lot of them focusing on that issue of crime, focusing on her time as a public defender also as our time on the U.S. Sentencing Commission and other lines of attack, urging just in a matter of last couple of days, one of which from Senator Josh Hawley of Missouri, suggesting that is our time as the federal district court judge that she went easy on sex offenders. Now that is the line of attack that the White House says is distorting her record.

But she will undoubtedly be asked about that by Democrats. We'll see ultimately what she has to say. Now, the big question here in this Committee room is that will any Republicans break ranks we know that the 11 Democrats on this Committee are virtually certain to vote for her. Will any Republicans go that go in her direction?

Now one of them to watch is Senator Lindsey Graham of South Carolina. He was one of just three Republicans who voted to confirm her to the D.C. Circuit last year. Just moments ago, he walked into the hearing and I asked him anything, they can suggest that you might support her for the Supreme Court, he would -- did not want to answer that question. But that's one question here. She's almost certain to get confirmed. Can she win any Republicans over? And how will she deal with some of those pointed questions that begin in earnest tomorrow? Kate?

BOLDUAN: Manu there outside the hearing room as well. Let me bring in my panel as we keep an eye on these live pictures because it does look like Judge Jackson is finally getting the opportunity to sit down. And this is going to be getting underway in just a second. As we saw kind of one of the things that we always see at the beginning of these hearings, almost every senator going over to shake hands, welcome her, as they're going to be getting away for hours and hours of speaking and questioning over the next few days. Judge Jackson sitting there as preparing for the gavel and to begin any second now.

Gloria Borger let me bring you in as we're waiting to for this to formally get underway which will be opening statements that will start with the Chairman of the Committee Senator Durbin. But I was just looking at and we saw Amy Klobuchar -- I believe that Senator Durbin is beginning. Let's listen in right now.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: OK.

SEN. DICK DURBIN (D-IL), CHAIRMAN, JUDICIARY COMMITTEE: To be the 116th Justice of the Supreme Court. Welcome Judge Jackson. Thank you to you and your family.

KETANJI BROWN JACKSON, FORMER VICE CHAIR OF THE UNITED STATES SENTENCING COMMISSION: Thank you, Senator.

DURBIN: This is a moment and you have much to be proud of. I know you have members and friends who want to you want -- and we all look forward to hearing those introductions when you make your -- later. At the outset, I want to note that I was sorry -- Clarence Thomas was hospitalized yesterday. I speak for all the members of the Committee in wishing him a speedy recovery.

Before I turned my own opening statement, I want to briefly discuss -- of events and the ground rules for the hearing. The Committee has 10 minutes to make an opening statement we'll go in -- switching between Democratic and Republican senators. To made their opening statements we'll hear from Judge Thomas Griffith, Professor Lisa Fairfax, who are here today to introduce --. Each introducer will have five minutes to make an opening statement.

Finally, we'll administer the oath Judge Jackson and she will make -- and that will conclude today's events. And tomorrow we'll begin --. For those sitting in the audience, welcome -- can be here to witness this historic occasion, I asked to be respectful and quiet during the hearing. -- stand up unless you're entering or exiting the room. And if you are asked by one of our distinguished members of the Capitol -- to sit down, if you refuse, you'll be escorted --.

Let me be clear, we will not tolerate any -- audience. Any disruption will result in immediate --. I also asked that our audience be respectful of the members of the -- here today to ensure everyone's safety -- statements.

Judge Jackson, as I said -- again for being here today with your family and --. The Supreme Court has a long and storied history -- been filled by many superb justice whose contribution -- rule of law have stood the test of time. But the -- reality is that the courts members in one -- have never really reflected the nation they served. When the Supreme Court met for the very first time -- 1790, in the Exchange building in -- there were nearly 700,000 slaves without -- in this new nation of nearly 4 million.

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Neither African Americans nor -- like to vote. There was no equal justice for a majority of people living in America. It's more than 230 years, the Supreme Court has had -- justices, 108 have been white men. As two judge, justices have been men of color, only -- have served on the court and just one a woman of color. -- Justice has been a black woman. You Judge -- can be the first. It's not easy being first. And you have to be the best. In some ways, the bravest -- not prepared to face that kind of heat, that kind of scrutiny, that -- of the national spotlight.

But your presence here today -- brave this process will give inspiration to millions of -- who see themselves in you. As I mentioned to you, I was -- steps in the Supreme Court this morning to see the rally --. There were so many young African American women -- there seeing your pursuit as --. Another important ways, though, that -- nominees have come before us.

President Biden -- because he knew your qualifications are outstanding. And he knows you. You have appeared three previous times and -- confirmed with bipartisan support. And your professional record of life experience tell us what kind of lawyer, what kind of judge and what kind of person you really are. You're guiding -- founding your life and in your work, that the Constitution -- Americans, not just the wealthy and powerful, the judge -- favoritism and that the judiciary must live up -- above the entrance, equal justice under --.

So today is proud day for America. We've come along -- and we know that we still have -- to form a more perfect union. It's a moment -- something that the late senator from Illinois, Paul Simon said to Judge Ruth Bader Ginsburg at her -- hearing, he said, you face -- harsher judge than this Committee. And that is the -- and that judgment is likely to revolve around the question -- did she restrict freedom or did she expand it.

-- statement time and again, because it asks a vital question -- judge us. Judge Jackson, I have no -- will remember you as a justice who never stopped working to defend --. But I also ask the members of this Committee as -- landmark confirmation process to consider how -- each senator, as we face our constitutional -- advise and consent. This moment also -- thing President Barack Obama, another trailblazer said -- it will annoy him when the late Justice John Paul Stevens and --. President Obama said, while we cannot replace -- variance or wisdom, I will seek someone with similar, an independent mind, a record of excellence and integrity -- dedication to the rule of law, and a keen understanding of -- the daily lives of America.

Much like Justice -- cannot replace Justice Breyer. But with -- we have a nominee who embodies the same qualities -- standing justices, your independent minded, and understand the critical importance of judicial independent. Your record -- integrity from the championship debate team -- Senior High School to Harvard -- to your three judicial clerkships, your work as -- defender, a lawyer in private practice, a member --, a federal district judge and circuit court judge.

As your career you've been a champion for the rule of law to -- even at the risk of public criticism. -- States Sentencing Commission, a bipartisan group, which reflect -- of American thinking on law enforcement, you set -- truly represented congressional intent when it came -- criminal sentencing fair. And you did it by -- some common ground. During your tenure in that Commission -- 25 percent of the Commissions votes were either unanimous --. For example, the Commission implements -- a law that I negotiated within Senator Jeff Sessions that reduced the infamous 100 to one crack powder sentencing disparity. And you joined every one of your colleagues to make the change to the sentencing guidelines retroactive.

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You gave a powerful speech and I'm going to quote it. You said there is no excuse for insisting that those who are serving excessive sentences, another long disputed and now discredited power guideline, let's carry on as though none of this has happened. The vote in favor of retroactivity was unanimous on the Commission, Republicans and Democrats shared your view. And you've gone to great lengths to explain how the law affects real people.

Indeed, with your nomination, we can be confident that the court its role and its decisions will be more understandable to the American public. In your time on the bench, you've taken the time to explain your decisions and their consequences. When you're before this Committee just last year, for your D.C. Circuit hearing, you described how you, quote, take extra care to communicate with parties. You added, and I quote, I speak to them directly and not just to their lawyers. I use their names. I explain every stage of the proceeding because I want them to know what's going on.

As a result of that approach, you've made the law more approachable to litigants and American people. The cameras and the lights here today can make it easy to forget that at its core, the responsibility you seek is one of service. And I'm fully confident you'll serve Americans from all walks of life, all backgrounds, fairly and faithfully. Now there may be some who claim without a shred of evidence that you'll be a rubber stamp for this President. For these would be critics, I have four words. Look at the record. Your complete record has been scoured by this Committee on four different occasions.

All of your nearly 600 written opinions, read and reread, 12,000 pages of transcripts, meeting minutes and other materials for the Sentencing Commission. Your sworn testimony before the Committee less than a year ago, every published and reported word you've written or spoken your detailed answers to lengthy questions. For those who say they need more, I would answer that you have sat down personally with every member on this dais of the Committee, Democrats and Republicans.

A fair review of all of this makes clear your values and guiding principles. You have ruled for and against presidents and administrations of both parties. You've ruled for prosecutors and for defendants. You've ruled for workers and for their employers, and you've been faithful to the law not to any person or political cause. Now there may be others who allege that your before us today is a product of the campaign of dark money groups. Once again your record in the process that led to this nomination belie that claim. To suggest that you're here merely because an organization supports you, ignores your qualifications and the broad range of support you bring to this. In selecting you as his nominee, President Biden undertook a transparent selection process. He sought the input of Senators from both parties. Senator Grassley and I met in the Oval Room with the President. He invited us to proffer any nominees that we care to do. At the end of the day, the President lone chose you. He's put his faith in you to deliver justice to the highest level of the court. I share that faith.

In announcing your nomination, the President spoke to many reasons that you deserve to settle in the High Court. He noted the perspective you'll bring, as a former member of the Sentencing Commission, as the first justice since Thurgood Marshall with considerable criminal defense experience, and as the only the second current Justice, only the second to serve as a federal trial court judge. He also noted your upbringing and the fact that you come from a law enforcement family.

Yet, despite that shared family experience and despite your record, we've heard claims that you are quote, soft on crime. These baseless charges are unfair. A conservative national review columnist called claims brought by one of my colleagues quote, meritless to the point of demagoguery. They fly in the face of pledges my colleagues made that they would approach your nomination with civility and respect. And fact checkers, including the Washington Post, ABC News, and CNN have exposed some of these charges as falsehoods.

Critics have even stooped of accusing you of sharing the views of the clients you represented, even though they know that your work as an attorney was in service to the Bill of Rights and the Constitution's promise of effective assistance of counsel. With law enforcement officials and organizations including the International Association of Chiefs of Police, the National Organization of Black Law Enforcement Executives, and the Fraternal Order of Police have endorsed your nomination, if you were soft on crime, of course not.

I'm confident the American people will see through these attacks and any other last minute attempts to derail your confirmation. In closing I want to share the words of one more Illinoisan if you wouldn't mind -- if you bear with me, another famous one named Abraham Lincoln. In August 1864 at the height of the Civil War, President Lincoln addressed 166 Ohio Regimen. Lincoln said to the soldiers and I quote, I happen temporarily to occupy this big white house. I am living witness that one of your children may look to come here as my father's child has.

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Judge Jackson, we are all just temporary occupants of the Senate, the House, even with a lifetime appointment to the highest court in the land. You Judge Jackson are one of Mr. Lincoln's living witnesses of an America that is unafraid of challenge, willing to risk change, confident of the basic goodness of our citizens. And you're living witness to the fact that in America, all is possible. I now recognize my colleague and friend, the Ranking Member Senator Grassley,

SEN. CHUCK GRASSLEY (R-IA), RANKING MEMBER, JUDICIARY COMMITTEE: Judge Jackson, congratulations. Welcome to you and your family. I thank you for taking time to visit with me in my office after the President nominates you. Since President Biden announced his nominee for the Supreme Court, I've been encouraging my colleagues to schedule meetings with you Judge Jackson, and they have come off.

In addition, I've continually emphasized the need for a thorough respectful process by the Committee. Now I want to talk a bit about what everyone watching should expect from this hearing, and what they shouldn't expect at the hearing. We will conduct a thorough, exhaustive examination of Judge Jackson's record and views. We won't try to turn this into a spectacle based upon alleged a process follows, good news on that front, we're off to a very good start. Unlike the start to the Kavanaugh hearings, we didn't have repeated choreographed interruptions of Chairman Durbin during his opening statements, like Democrats interrupted me for more than an hour during my opening statement on the Kavanaugh hearings.

What we will do, however, is ask tough questions about Judge Jackson's judicial philosophy. In any Supreme Court nomination, the most important thing that I look for is the nominee's view of the law, judicial philosophy, and view on the role of a judge in our constitutional system. I'll be looking to see whether Judge Jackson is committed to the Constitution as originally understood. We all know there's a difference of opinion about the role judges should play. Some of us believe the judges are supposed to interpret the law as it was understood, when written, not make new law or simply fill in vacuum.

Those of us who share that view, think that under our Constitution, Congress, and not the federal courts, are given the authority to make law and to set policy. Now there are others who believe that the court should make policy, they believe in a so called living Constitution. They think that the Constitution stacks and structure don't limit what a judge can do. To them, deciding what the Constitution means is really a quote unquote, value judgment. Under that approach, judges can exercise their own independent value judgments.

One of the leading advocates for this approach explained that as a judge you quote, reach the answer that essentially your values tell you to reach end of quote. In other words, those who subscribe to this philosophy think that the founders really meant to hide elephants in mouse holes, then, with a bit of creativity, these judges can always find that elephant. That sounds like a good job description instead for legislators and not for judges. But for at least four years, Democrats systematically voted against many well credential nominees that were diverse professionally, diverse geographically, diverse religiously, and diverse ethnically.

Was it racist, or anti women for them to do so? I don't believe that it was. Democrats did it because the nominees didn't agree with living constitutionalism just as Republicans have opposed nominees based upon their judicial philosophy. There are lots of problems with living constitutionalism. In the Senate, we spend a lot of time writing legislation. We argue over the language. We negotiate over how broad or narrow certain provisions of laws should be.

[11:20:26] If we can't convince our colleagues to adopt all of our ideas, we have been known to compromise every once in a while. We depend on judges to interpret the laws as we write them. If judges impose their own policy preferences from the bench and essentially revise the laws we pass, it makes it harder for us to write good laws. Sometimes, we need to include a provision that is very broad to get a colleague's support. If a judge rewrites the law later because of vague notions about fairness or equity or the common good, that unravels all of our work here in the Congress.

More importantly, the American people should be able to read a law and know what it means. They shouldn't have to ask how a federal judge who disagrees with the law could reinterpret the words on the page. All of this leads to the conclusion as to why we must carefully examine federal judges' records, especially Supreme Court nominees.

Judge Jackson has served as an Assistant Federal Public Defender, worked in private practice, and served at the United States Sentencing Commission. She also served as a federal district court judge from 2013 to 2021. She's served on the D.C. Circuit since June last year. I'm sure senators will have a few questions for Judge Jackson about the two opinions she's authored since joining the D.C. Circuit.

As for her district court record, there have been some accusations that we cherry-picked, some of Judge Jackson's criminal cases. Well, don't worry. We're going to talk about the other ones as well. I was disappointed we weren't able to get bipartisan agreement to ask for Judge Jackson's documents from her time as Vice Chair at the Sentencing Commission. The Commission is an independent agency created to advise and assist Congress and the executive branch in the development of effective and efficient crime policy, and that's a quote.

Unfortunately, it sounds like we'll have to wait until those documents are required to be released and that will be about 20 years from now. Democrats have argued for time -- Democrats have argued that Judge Jackson's time on the Commission is an important part of her experience that she'll draw on as a judge. The Democrats are right on that point. That's why it would've been good to see what her views were. As the head of the Commission explained in a letter to Senator Durbin, the public documents turned over to this Committee represent the consensus views of the Commission, and not necessarily Judge Jackson's own views.

The Obama White House sent us roughly 68,000 pages of material. But more than 38,000 of the 68,000 pages are repeated copies of e-mails, threads that keep the track -- keeping track of the tweets about the Garland nomination. Those e-mails contain one tweet about Judge Jackson. More than 13,000 of the 68,000 pages are just lists of previous nominations. So that leaves only 16,000of 68,000 that we received from the White House that aren't obviously useless like all the other documents we received.

But, for comparison, the White House has still withheld 48,000 pages under the Presidential Records and FOIA exemptions. Now that's a lot of hiding. But the limited number of useful records we received from the Obama White House show exactly why Sentencing Commission documents would have been important. There are a number of dark money groups on the left that argue federal judges should make policy decisions based on the Judges' own values. I've talked about the troubling role far- left dark money groups like Demand Justice have played in this administration's judicial selection process.

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When Demand Justice isn't creating shortlists for President Biden to pick judicial nominees from or putting out new litmus tests, they're running ad campaigns attacking the independence of the judiciary. They've strongly supported the so-called progressive prosecutors who are soft on violent crime in the face of a rising crime wave in cities like San Francisco, Philadelphia, Boston, and Los Angeles.

Now, what does that have to do with the nominee before us? The Obama White House records indicate that a co-founder of Demand Justice played an important role on Judge Jackson's nominations to the Sentencing Commission and the district court. The Demand Justice co- founder even interviewed Judge Jackson about a nomination to the Sentencing Commission. It would be helpful to know what the Demand Justice co-founder learned during that process and why they so strongly support Judge Jackson.

However, it hasn't all been bad on the document front, I want to make clear. We'd asked for briefs that aren't available online for D.C. Circuit cases Judge Jackson worked on as an attorney. At first we were told they might not be available for a few weeks. To -- but to our pleasant surprise, we received them early, apparently because the White House had asked for the documents as well. Judging by the timetable we were originally given to get the briefs, that request was made after she was announced.

Now, those documents concern Judge Jackson's time as an Assistant Federal Public Defender. Democrats have accused Republicans of vilifying nominees who have represented criminal defendants. That's just not the case. And I think that's a very unfair accusation. Previous Supreme Court nominees have also represented criminal defendants on appeals. Chief Justice Roberts was appointed by the Supreme Court to represent a defendant in an important criminal law case, and he also helped represent an inmate in a Florida's death row.

And Justice Barrett represented criminal defendants appealing their conviction while she was in private practice. Now, I've distinguished between two types of nominees who have worked on criminal cases. There are Bill of Rights attorneys who want to protect defendants' constitutional rights. Then there are what I've called criminal defense lawyers who disagree with our criminal laws and want to undermine laws that they have policy disagreements with. And of course that's a very important difference.

Just a year or two ago, no, maybe it's a now two years ago, Democrats had no trouble opposing nominees based on arguments these nominees made on behalf of clients. I could read off quotes of Democrats doing that to Trump nominees. But we only have ten minutes for opening statements, and I'd run out of time. On a final note, during Justice Barrett's confirmation hearing, Democrats said she would quote unquote, judicial torpedo aimed at protecting -- protections for pre-existing conditions. We heard that argument repeatedly. Conservatives and anyone else who actually looked at her record and the laws said that that was strictly nonsense. But Democrats were sure otherwise. Well, when that case was finally decided, Democrats were proven wrong. I'm sure that won't deter any of my Democrat colleagues from making some confident predictions this time around as well.

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But the public should remember their track record, and perhaps take those claims with a grain of salt. They were wrong in their strong declaration on how Justice Barrett would rule. Judge Jackson, congratulations on your nomination. I look forward to hearing from you about your record, your views on the law, and your judicial philosophy.