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At This Hour

Senate Hearing for SCOTUS Nominee Ketanji Brown Jackson. Aired 11-11:30a ET

Aired March 22, 2022 - 11:00   ET



SEN. LINDSEY GRAHAM (R-SC): But that goes on at least on an annual basis. And if there's a determination that this person still represents a threat to the United States, they're continuing to be confined. That's the way the system works.

Are you OK with that?

JUDGE KETANJI BROWN JACKSON, SUPREME COURT NOMINEE: As a policy matter, Senator, I'm not speaking to my views. That's my understanding, is that the periodic review system is an executive branch determination of whether or not they're going to continue to hold people that they --


GRAHAM: Does that make sense to you as a way to deal with these detainees?

JACKSON: Senator, I'm not in a position to speak to the policy or the discretion of the executive branch regarding how they're going to handle detainees.

GRAHAM: The reason I mention it is because, in the breach, you argued that the executive branch doesn't have that option, that, if you had had your way, the executive branch could not do periodic reviews about the danger the detainee presents to the United States. They would have to make a decision of trying them or releasing them.

Is that not accurate?

JACKSON: Respectfully, Senator, it was not my argument. I was filing an amicus brief on behalf of clients including the Rutherford Institute, the Cato Institute and the Constitution Project, who --


GRAHAM: When you sign on to a brief, does it not become your argument?

JACKSON: It does not, Senator, if you are an attorney and you are representing a client in amicus --

GRAHAM: -- your position when you were in private practice? I mean, you sign on to this brief, making this argument. But you say it's not your position.

I mean, why would you do that if it's not your position?

Why would you take a client that has a position like that?

And this is voluntary. Nobody's making you do this.

JACKSON: Oh, Senator, I would refer you to the same sorts of statements that Chief Justice Roberts made when he came before the committee, which is that lawyers represent clients.


GRAHAM: I'm not holding the client's views against you. Like the people you represent at Gitmo, they deserve representation. But this is a amicus brief, where you and other people try to persuade the court to change policy.

The policy I described is a periodic review. If the court had taken the position argued in the brief that you signed upon, it would have to release these people or try them, in some of them, the evidence we can't disclose, because it's classified.

You're putting America in an untenable position. This is not the way you fight a war. If you try to do this in World War II, they'd run you out of town. We hold enemy combatants as a threat. There's no magical passage of time you've got to let go. My question is very simple.

Did you support the idea then that indefinite detention of an enemy combatant is unlawful?

JACKSON: Respectfully, Senator, when you are an attorney and you have clients who come to you, whether they pay or not, you represent their positions before the court.

GRAHAM: I'm sure everybody at Gitmo wants out. You know, I got that. This is an amicus brief. And I just don't understand what you're saying, quite frankly. I'm not holding it against you because you represented a legal position I disagree with.

I mean, that happens all the time. I'm just trying to understand what made you join this cause and you say somebody hired you.

But did you feel OK in adopting that cause?

I mean, when you signed on to the brief, were you not advocating that position to the court?

JACKSON: Senator, as a judge now, in order to determine the lawfulness or unlawfulness of any particular issue, I need to receive briefs in information, making positions on all sides.

GRAHAM: I got what a judge is all about. Listen, I'm not asking you to decide the case in front of me right here. I'm asking to explain the position you took as a lawyer regarding the law of war. And I am beyond confused. I know what you said in your brief. Whether I agree is not the point.


GRAHAM: I just want you to understand that it's important for all of us to know where you were coming from. If that brief had been accepted by the court, it would be impossible for us to fight this war because there's some people who are going to die in jail in Gitmo and never go to trial for a lot of good reasons because the evidence against them is so sensitive, we can't disclose it to the public, that we're not charging them with a crime.

What we're doing is saying that you engaged in hostile activities against the United States, that you are an enemy combatant under our law and you'll never be released as long as you're a danger until the war is over or you're no longer a danger.

That's the difference between fighting a crime and a war.

Did you ever accuse, in one of your petitions, the government of acting as war criminals or holding the detainees by our government, that we were acting as war criminals?

JACKSON: Senator, I don't remember that accusation but I will say that --


GRAHAM: Do you believe that's true, that America was acting as war criminals in holding these detainees?

JACKSON: Senator, the Supreme Court held that the executive branch has the authority to detain people who are designated as enemy combatants for the duration of the hostilities.

And what I was doing in the context of the habeas petitions, at this very early stage in the process, was making allegations to preserve issues on behalf of my clients. A habeas petition is like a complaint that lawyers make allegations --


GRAHAM: You know, I've been a lawyer, too, but I don't think it's necessary to call the government a war criminal in pursuing charges against a terrorist. I just think that's too far. I don't know why you chose those words. That's just too far. But we are where we are. So let's talk about the nomination process.

Have you ever had any interactions with a group called Demand Justice?


GRAHAM: Directly or indirectly?

JACKSON: No. GRAHAM: Have you ever had any interaction with a group called

American Prospect?


GRAHAM: Do you know anything about Arabella?

Is that the right term?

Have you ever heard of a group called Arabella?

JACKSON: I've heard of a group that I think is Arabella or something like that.

GRAHAM: Yes, I think you're right, Arabella, yes.

Do you know anything about them or have you had any contact with them?



And in your nomination, did you notice that people from the Left were pretty much cheering you on?

JACKSON: A lot of people were cheering me on, senator.

GRAHAM: That's true, that's true.

Did you know that a lot of people from the Left were trying to destroy Michelle Childs?

Did you notice that?

JACKSON: Senator, a lot of people were supporting various people for this nomination.

GRAHAM: So you're saying you didn't know there was a concerted effort to disqualify Judge Childs from South Carolina because she was a union-busting, unreliable Republican in disguise?

JACKSON: Senator, I was -- I'm a sitting judge. I was focused on my cases.


GRAHAM: -- I didn't know that.

JACKSON: No, I didn't know that.

GRAHAM: Would it bother you if that happened?

JACKSON: Senator, it is troublesome that people are or were doing things related to --

(CROSSTALK) GRAHAM: I think that's the best way to say it. People have a right to speak out and pick the person of their choice. But all I can say that is if you miss the fact that there was an organized effort, well, here it is.

President Biden has only a certain amount of political capital for keeping his party united. If he needlessly angers progressives on this SCOTUS pick, that could create all sorts of problems for him down the line, Jeff Hauser, revolving door projects.

Let's see. I just got so many quotes.

It's difficult to imagine someone with a record like Judge Childs winning votes from criminal justice advocates like Senator Cory Booker, even Dick Durbin.

Childs' experience is nothing like the diversity of experience that the Biden administration has championed.

That's just -- let's see.

Picking her, Childs, would demoralize the base, side with corporate America.


GRAHAM: The fact that Lindsey Graham was vouching for her should give the White House pause, Our Revolution, Joseph Geevarghese, or whatever his name is -- I'm sorry about that, Joseph -- he's Bernie Sanders' PAC director.

You didn't know that all these people were declaring war on Judge Childs?

JACKSON: Senator, I did not.

GRAHAM: OK. Well, no, I'm not saying you did. You said you didn't know, I'll take you at your word.

But I am saying that, what is your judicial philosophy?

JACKSON: So I have a methodology that I use in my cases in order to ensure that I am ruling impartially and that --


GRAHAM: So your judicial philosophy is to rule impartially.

JACKSON: No, my judicial philosophy is to rule impartially and to rule consistent with the limitations on my authority as a judge. And so my methodology actually helps me to do that in every case.

GRAHAM: So you wouldn't say that you're an activist judge.

JACKSON: I would not say that. GRAHAM: OK. So we'll have a 20 minutes more later on. But here's what

I would say, that every group that wants to pack the court, that believes this court is a bunch of right-wing nuts who are going to destroy America, that consider the Constitution trash all wanted you picked.

And this is all I can say, is the fact that so many of these left-wing radical groups that would destroy the law as we know it, declared war on Michelle Childs, who supported you, is problematic for me.

Thank you.

DURBIN: Thank you, senator Graham. Let me mention a few points here.

Congress man Jim Clyburn was a strong supporter of Michelle Childs and now I believe he is publicly supporting your nomination and Michelle Childs has been nominated by President Biden to be a circuit judge. And she'll be considered by this committee as quickly as possible.

On the issue of Guantanamo, there are currently 39 Guantanamo detainees remaining. The annual budget is $540 million per year, which means each of these detainees is being held at the expense of $12 million or $13 million per year.

If they would be incarcerated to Florence, Colorado, the supermax prison, federal prison, the amount would be dramatically, dramatically less.

Since 9/11, nearly 1,000 convicted in the United States on terrorism charges. Since 2009, with the beginning of the Obama administration, the recidivism rate of Guantanamo detainees released is 5 percent.


GRAHAM: Mr. Chairman, according to Director of National Intelligence, it's 31 percent. Somebody's wrong here.

If you're going to talk about what I said, I'm going to respond to what you said.

If we close Gitmo and move them to Colorado, do you support indefinite detention under the law of war for these detainees?

DURBIN: I would just say I'm giving the facts and I would --

GRAHAM: The answer is no.

DURBIN: I want to make sure that it's clear, the 31 percent you referred goes back to the year 2009.

GRAHAM: What does it matter when it goes back to?

We had them and they got loose and they started killing people.

DURBIN: Well, I could just say that --

GRAHAM: If you're one of the people killed in 2005, does it matter to you when we released them?

DURBIN: -- suggested that the president of your own party released them in --

GRAHAM: I'm suggest the system has failed miserably and advocates to change this system, like was she advocating, would destroy our ability to protect this country. We're at war, we're not fighting a crime. This is not some passage of time event.

As long as they're dangerous, I hope they all die in jail if they're going to back and kill Americans. It won't bother me one bit if 39 of them die in prison. That's a better outcome than letting them go.

And if it cost $500 million to keep them in jail, keep them in jail because they're going to go back to the fight. Look at the freaking Afghan government's made up of former detainees at Gitmo. This whole thing by the Left about this war ain't working.

DURBIN: Let me also note that Larry Thompson, who served as deputy attorney general under President George W. Bush, Orin Kerr, special counsel; Viet Dinh, who served as assistant attorney general for legal policy in the George W. Bush administration, John Bellinger and former D.C. circuit judge, associate attorney general, independent counsel Ken Starr were also prominent conservative lawyers, signing a letter defending attorneys who represented Guantanamo Bay detainees.

I don't believe we should associate that activity as being inconsistent with our constitutional values.

We are going to represent -- at this point, recognize Senator Feinstein and then take a break after she has completed her questioning.

Senator Feinstein.

SEN. DIANNE FEINSTEIN (D-CA): Thank you very much, Mr. Chairman.

And I just would like to compliment the witness. I think you're doing very well.


FEINSTEIN: And as you can see, this is a bit of a tough place. So Judge, one of the issues that I often discuss with nominees, particularly to the Supreme Court, is the issue of abortion. I've asked the three most recent Supreme Court nominees about this issue and so I'd like to discuss it a bit with you today.

In 2017, I asked Justice Gorsuch about this during his confirmation hearing. I asked him to expand on a comment he had made about his belief that precedent is important because it adds stability to the law.

In response, Justice Gorsuch reiterated his belief that precedent is important because, and I quote, "Once a case is settled, that adds to the determinacy of the law," end quote. He also stated that Roe has been reaffirmed many times. I also spoke

with Judge Kavanaugh about this issue in 2018. I asked him whether he believes that Roe was settled wrong and, if so, whether it was settled.

Justice Kavanaugh said, quote, "Roe is settled as a precedent of the Supreme Court," end quote.

He said that Roe, quote, "has been reaffirmed many times over the past 45 years and, most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey and described Casey of having the value of precedent on precedent," end quote.

I most recently spoke about this issue with Justice Barrett in 2020. I asked her whether she agreed with Justice Scalia's view that Roe was wrongly decided.

She committed to, quote, "obey all the rules of stare decisis if faced with the question of whether to overrule Casey."

She said she had, quote, "no agenda to try to overrule Casey," end quote.

So here's the question.

Do you agree with Justice Kavanaugh that Roe v. Wade is settled as a precedent?

And will you, like Justice Barrett, commit to obey all the "rules of stare decisis in cases related to the issue of abortion," end quote.

JACKSON: Thank you, Senator. I do agree with both Justice Kavanaugh and Justice Barrett on this issue. Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy.

They have established a framework that the court has reaffirmed and, in order to, as Justice Barrett said, looks at various factors, because stare decisis is a very important principle.

It provides and establishes predictability, stability; it also serves as a restraint as the judicial authority because the court looks at whether or not precedents are relied upon, whether they're workable, in addition to whether or not they're wrong and other factors as well. So I agree with both of the statements that you have read.

FEINSTEIN: Well, let me add one to that and then we'll move on. I'm particularly interested in the case of Roe v. Wade. Roe was decided by nearly 50 years ago and it's been reaffirmed over a dozen times since then.

So my question is this, does Roe v. Wade have the status of being a case that is a super precedent?

And what other Supreme Court cases do you believe have that status? JACKSON: Well, Senator, all Supreme Court cases are precedential and there are rulings that have to be followed. Roe and Casey, as you say, have been reaffirmed by the court and have been relied upon.


JACKSON: And reliance is one of the factors that the court considers when it seeks to revisit or when it's asked to revisit a precedent. And in all cases, the precedents of the Supreme Court would have to be reviewed pursuant to those factors, because stare decisis is very important.

FEINSTEIN: Thank you. If you are confirmed, you would be one of only two justices who has also served on the federal district court, the other being Justice Sotomayor.

In your eight years as a trial judge on the D.C. district court, you wrote nearly 600 opinions and presided over nine jury trials and three bench trials. As you know, from your service on the district court, it's important for appeals courts and especially the Supreme Court to be clear in their decisions.

The clarity is necessary, as you well know, for trial judges to effectively do their job and properly apply legal precedents that are fair and consistent. As a district judge, you were responsible for applying precedent from the Supreme Court and the courts of appeal to your case.

And now as a judge in the D.C. circuit, you're drafting those precedents. Your experience as a trial judge is one of your most significant assets.

And I just want to add a personal comment. This is a tough place and you are handling it very well. And I appreciate your directness and think that's important.

Here's a question. I have two related questions.

How did you make sure that you were properly applying the relevant precedents as a district court judge?

And if you're confirmed to the Supreme Court, what would you do to make sure your opinions are clear so they could be applied directly by district courts?

JACKSON: Thank you, Senator.

As you noted, in my time as a district court judge, I had the opportunity to apply precedents that were handed down by court of appeals and the Supreme Court. The district court is bound by the law as stated by those other tribunals. And I was very focused on making sure that I found the right precedents and applied them faithfully.

As I mentioned, with respect to my methodology, part of the process is receiving information from the parties in a case. And the parties write briefs and, in most cases, they identify the precedents that they at least believe are applicable.

And then the court does its own legal research as well to determine whether all of the relevant cases have been identified. And then you look to see whether there's anything that directly controls and, if it does, that's your answer.

In many cases, the precedents might be a little bit different in certain ways. And you are assessing the party's arguments in determining within your proper role, whether what the appellate courts have said provides the law of decision for the case.

But what's important, as you've mentioned, is the clarity by which courts of appeals in the Supreme Court need to operate so that the lower courts can actually follow the precedents. And I'm very conscious of that, as someone who has had to follow precedent.

And I would think carefully about that and use my communication skills to ensure that the precedents are clear so that lower courts can follow them.

FEINSTEIN: Thank you. I'd like to discuss quickly a letter this committee received in support of your nomination from the International Association of Chiefs of Police.


FEINSTEIN: And as you know, this is the world's largest professional association of law enforcement leaders.

And the letter states, "Judge Jackson has several family members in law enforcement. And we believe this has given her a deep understanding of -- "

KATE BOLDUAN, CNN ANCHOR: All right, everyone. I'm Kate Bolduan. We'll take a quick break right now. CNN's live coverage of the Supreme Court confirmation hearings of Judge Ketanji Brown Jackson continues next.




BOLDUAN: We're back now with the confirmation hearing for Supreme Court nominee Ketanji Brown Jackson.

Senator Dianne Feinstein in the midst of questioning Judge Jackson, talking about women serving on the Supreme Court. Jackson would become the sixth woman to do so if confirmed. Let's jump back in.

JACKSON: -- provides for the opportunity for role models.