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Senate Hearing For Supreme Nominee Ketanji Brown Jackson; Judge Jackson Defends Her Past Sentencing In Child Porn Cases; Zelenskyy: Mariupol "Reduced To Ashes" By Russian Attacks. Aired 11:30a-12p ET

Aired March 22, 2022 - 11:30   ET

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

[11:30:00]

KATE BOLDUAN, CNN HOST: Come to the sixth woman to do so if confirmed. Let's jump back in.

(BEGIN VIDEOTAPE)

KETANJI BROWN JACKSON, SUPREME COURT NOMINEE: Provides for the opportunity for role models. Since I was nominated to this position, I have received so many notes and letters, and photos from little girls around the country who tell me that they are so excited for this opportunity and that they thought about the law in new ways because I am a woman, because I'm a black woman, all of those things people have said have been really meaningful to them.

And we want, I think, as a country for everyone to believe that they can do things like sit on the Supreme Court. And so having meaningful numbers of women and people of color, I think matters. I also think that it supports public confidence in the judiciary when you have different people because we have such a diverse society.

SEN. DIANNE FEINSTEIN, (D-CA): Well, I just want to say thank you very much. This is often a hard place, and how you go through those hard times, I really think is the most important thing. And it's pretty clear to me that you go through hard times by holding your head up high and doing well so I thank you very much.

JACKSON: Thank you, Senator.

SEN. DICK DURBIN, (D-IL): Thank you, Senator Feinstein. We're going to take a break. Let's see, let's take 15 minutes starting now. And then we'll return to more questions. We'll have a lunch break this -- later this afternoon, in the early part of the afternoon.

(END VIDEOTAPE)

BOLDUAN: All right, so jumping back out now. 10-minute breaks -- 10, 15-minute breaks say the chairman of the committee, Dick Durbin, as we've been watching now hours of the confirmation hearings for Supreme Court nominee Ketanji Brown Jackson. A lot to discuss. Let me bring in the panel right now. Let me get first to CNN Chief Legal Analyst Jeffrey Toobin. Jeffrey, what have you heard so far?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, it's certainly been an interesting morning. And to just cut to the chase, I certainly have not heard anything that would jeopardize the confirmation chances of Judge Jackson. She has not been thrown off stride. She has not said anything that seems particularly controversial.

She has explained her judicial approach which she calls a methodology as opposed to a philosophy. But just in terms of the outcome that is likely to come here with, you know a Democratic majority on the committee and in the Senate, there doesn't seem to be anything that came out this morning that would jeopardize your chances.

As usual, in these hearings, it's quite clear that the nominee, especially this nominee, knows about a hundred times more about the law than any of these senators do and that is come out whenever they have discussed specific issues and specific cases, but it has been smooth sailing for Judge Jackson.

BOLDUAN: CNN Senior Legal Analyst Laura Coates, with us as well. Laura, how do you think the judge has done so far?

LAURA COATES, CNN SENIOR LEGAL ANALYST: I think she's doing phenomenally well and I will note, of course, that I am twinning in her outfit inadvertently but let me tell you, that's really where the comparison stop because she is phenomenally talented in what she's doing.

Of course, it's her fourth time being before the Judiciary Committee so she's well aware of the stakes and what needs to be done in order to make sure that she is conveying her intellect in a way that is persuasive, that is compelling, and really showcases what she's all about. I will say the moments for Senator Lindsey Graham were perhaps the most shocking of the day.

The discussions of trying on the one hand to educate the first black woman to be nominated to the Supreme Court of the United States, to try to attempt to educate her on double standards in America, was just too rich for me. So was the notion of him trying to use the time to think he squandered a great deal, squandering the time pointing out the ideas of other past nominees as opposed to focusing on this particular person.

Discussions about Judge Childs and the idea of so-called conservatives and other rounds as well attacking and asking her about what she knew about these attacks on social media, as opposed to what she knew about the law was a missed opportunity to elevate the conversation.

And finally, the discussion she had about the sentencing as it relates to child pornography, as well as sex offenders, I think she handled it very well to talk about thematically about the departures from sentencing guidelines. Why they can at times be appropriate for the nuances about it?

[11:35:00]

COATES: But her most strong line to me was when she said and was asked by Senator Josh Hawley's comments, as a mother, as a judge, nothing could be further from the truth, that she was leaning in on these offenders. It's a very powerful talking point that was used against her. I think she undermined it particularly well.

BOLDUAN: I did -- it is actually one of the moments I wanted to play from early on in the -- in this hour that we're going to be hearing of this hearing -- from these confirmation hearings. Nia-Malika Henderson's with us as well. Just to set this up to remind people, Nia, I want -- I want you to weigh in.

The chairman of the committee, Dick Durbin, he spent several minutes in questions on this main line of attack that we had seen was going to be coming in from Republicans, specifically, Josh Hawley, which is that the argument being the attack that the judge has been lenient in the past sentencing of people guilty of child porn crimes. She was asked to respond. Let me play what she said.

(BEGIN VIDEO CLIP)

JACKSON: 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. 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 is, do you know that there is someone who was written to me, and he was 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're out there forever at the most vulnerable time of her life and so she's paralyzed. I tell that story to every child porn defendant as a part of my sentencings so that they understand what they have done.

(END VIDEO CLIP)

BOLDUAN: You can feel the heat there, Nia. I mean, what did you -- what did you think of that?

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL ANALYST: Yes, incredibly moving to see her. I had first heard that just on the radio. I was driving in to work in but to see her there so moved, almost crying and certainly emotional in that moment, thinking about the victims of child pornography.

So this idea that you hear from Senator Hawley saying that she's gone soft on child pornographers, she had a very, I think, compelling comeback, we'll see later on in these hearings what Senator Hawley has to say in terms of this line of attack because I thought, Dick Durbin obviously set her up for this very compelling pushback against these, you know, very, very untrue charges that somehow she is soft on crime, or generally, and specifically, soft on child porn.

It was really fascinating to listen to her this entire time really talking about what her judicial philosophy, a judicial methodology is, this idea of she approaches cases by essentially clearing the debt trying to get to a point of neutrality, then listening to the arguments from both sides and then trying to stay in her lane. She kept saying that.

So it really is a push back against this idea that somehow she is captive of the radical left or that somehow she is also a judicial activist. That's a question that Lindsey Graham had of her and she said absolutely not. And given her methodology, it's clear that she likes to clear the decks, as she said when she approaches these different issues as a judge.

TOOBIN: Kate, can I just have -- can I just have one point about these kiddie porn cases? And this came up, I remember when I was an Assistant U.S. Attorney back in the 90s, is that when those -- when those sentencing guidelines were written for those cases, this was a time when the people who committed these crimes would order individual photos and get -- and then get them usually through e-mail, and then they would be sentenced based on the number of photos they possessed. This was all pre-internet.

So, once the Internet came in, and people got access to hundreds and then thousands of photos, they would -- the sentencing guidelines would reflect hundreds and then thousands of photos. Federal judges have been struggling with the issue of how do you create a fair system that was designed pre-internet that was -- you have to sentence people post-internet.

And what I thought Chairman Durbin pointed out is the judges across the country, including Republican-appointed judges, have been saying, look, we can't apply the rules pre -- that were designed pre-internet for an Internet Society, and many judges have been giving somewhat less sentences as a result.

[11:40:00]

TOOBIN: And I thought that was a very clear explanation of why Judge Jackson imposed sentences that were all prison sentences. It wasn't like she was letting these people go, but they were somewhat less than the guidelines because the guidelines had not been adapted for the Internet era.

BOLDUAN: Everyone, stand by, we're going to get 0n a quick break as we're waiting for the live coverage of the Supreme Court confirmation hearings to pick back up as they are in the midst of a break as you see it live, look in the room right there. Stick with us. We'll be right back.

(COMMERCIAL BREAK)

[11:45:00]

BOLDUAN: All right, welcome back. We're keeping a very close eye on Capitol Hill. There's a live look in the hearing room. We're going to update you, we're going to take you back to those confirmation hearings when they do start back up but we do want to update you now on the breaking news on the latest on the invasion of Ukraine. The besieged port city of Mariupol has faced heavy bombardment for weeks.

Now, the president, President Zelenskyy, says that city has been "reduced to ashes." Also this morning, several large explosions in the capital city of Kyiv, as Ukraine says it is -- it has retaken a key suburb of that capital. CNN's Fred Pleitgen is live in Kyiv with the very latest. Fred, there is a lot happening. What is the latest? Where do you want to begin?

FREDERIK PLEITGEN, CNN SENIOR INTERNATIONAL CORRESPONDENT: Yes, you're absolutely right, Kate. There's a lot happening and there's a massive battle waging in and around Kyiv right now. In fact, we're seeing black smoke over the Capital, over the outskirts of the Capital, and large explosions also, towards the east of the Capital. There's been some towards the west, but especially towards the northern part of the Capital.

In fact, as we're speaking right now, we were hearing massive salvos of what to us sounded like artillery, which may have been outgoing artillery from the Ukrainians but of course, from our vantage point, very difficult to say. But if you look at the northern outskirts of Kyiv, that's the area where the Russians are, that's where the area from where they've been trying to advance.

That is really where we've seen a lot of those heavy explosions take place and where we're seeing large plumes of smoke coming from there as well, also air raid sirens going off throughout the entire course of the day. This is much heavier fighting that we have seen over the past couple of days, as we've been monitoring, of course, have also been seeing the situation unfold on the ground.

The Ukrainians are also saying that the Russians fired one very large missile at Kyiv. They say they were able to intercept that missile and shoot it down and the remnants of that missile actually landed in the Dnieper River, of course, the very wide river that goes through this city. But again, that battle, I'd say it's been going on for at least five hours now, where you do hear a lot of fighting, also, machine gunfire coming, especially from the northern parts of the city, Kate.

BOLDUAN: Yes, Fred, we've also been hearing today that the U.S. can't determine if Russia has a top commander kind of on the ground overseeing that offensive at this point. What are you hearing -- that's on the Russian side, of course, but what are you hearing then about the Ukrainian strategy?

PLEITGEN: Well, I think that Ukrainians are aiming just to try and start maybe some sort of counter-offensive, and I think they have actually been doing that in certain areas over the past couple of days. You know, when you speak to some of the Ukrainian forces that we've seen here in Kyiv, you speak to some of the officials, they do seem a lot more confident than they have been throughout the course as this war has been unfolding.

And, you know, yesterday, we were in an area where were Russian missile landed, and even there, you could see the Ukrainians moving hardware into that firing back at the Russians, of course, they're actually repurposing also some of the gear that the Russians leave behind and firing it back at the Russians.

So, especially if you look at around Kyiv, which, of course, the U.S. says is still the main objective of the Russians to try and take the city to try and circle that city, there, it seems to us as though the Ukrainians have halted them and are possibly even pushing them back. And, you know, you mentioned that one town in the lead up to our live

shot now, Makariv, that's a -- that's a pretty strategic place. It's very important for the Ukrainians to have taken that place back, it's towards the west of the city, it basically stops the Russians from encircling the city, is also a really important logistics route as well.

So, the Ukrainians certainly believe that they are making some headway but of course, it still is very difficult for them since they are very much outgunned by this very large Russian military that is in so many parts of this country, Kate.

BOLDUAN: Fred, thank you so much. It's good to see you. I really appreciate it. We're going to keep -- we're going to obviously stay close to Fred and all of our teams on the ground in Ukraine. Let's head back to Washington right now, head back to Capitol Hill for the confirmation hearing for Supreme Court nominee Ketanji Brown Jackson will be resuming very shortly. Obviously, they're in the midst of that break.

And then in the meantime, let me bring back in my panel. Is Manu Raju still standing by, guys, outside the Hill? All right, we're going to get Manu up because I had a question for him. But in the meantime, I also want to speak with Joan Biskupic. Joan, one thing that we did see towards the end from Senator Lindsey Graham was some theatrics, some emotion during Graham's questioning I guess we could say, specifically one a lot of issues but I wanted to focus in on his -- on his question when it came to Guantanamo Bay detainees.

[11:50:00]

BOLDUAN: Graham, pressing the judge on whether or not she supports the indefinite detention of enemy combatants or if she thought believes it's unlawful as she had argued. What do you think of her response in that moment, and then the entire exchange?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: You know, he had several points where he became very emotional, you know, on the military. He is a former judge, advocate general, I mean, he's always had a strong interest in military issues but he was -- he was caricaturing her writings from that, and I thought she was very effective at firing -- steadily giving a response.

The other time when she -- when he did that to her was when he brought up Judge Amy Coney Barrett with the faith issues. He kept saying, do you go to church? What is -- you know, what is your religion? What -- and she talked about being a Protestant, non-denominational, and he was -- he was there, harkening back to questions about now-Justice Amy Coney Barrett's religion, but those were much more in the context of how she might vote on reproductive rights, what she had already said about her opposition to abortion religion.

So it wasn't, as he was characterizing it as if the senators at the time were just asking about whether she was going to church. And I just wanted to make clear that context as well as the context I'm getting on, Kate. BOLDUAN: Context seems to be a key throughout all of this, of course, that's great. Thank you, Joan, for that. Let's jump back into the hearing. It looks like they're starting back in with Republican Senator John Cornyn.

(BEGIN VIDEOTAPE)

JACKSON: Well established now that the cases that overruled, Dred Scott and Plessy were correctly decided.

SEN. JOHN CORNYN, (R-TX): Yes. I mean, there is the means by which the courts can correct their mistakes, correct, by overruling previous decisions?

JACKSON: If the various considerations that the Supreme Court has -- uses to make that determination, and satisfied.

CORNYN: And have you -- have you ever heard a federal judge talk about super-duper precedent or super precedent?

JACKSON: I have not.

CORNYN: I've never seen it either in any opinion. I've heard it here in the judiciary committee on a number of occasions when somebody has a favorite case or outcome that they don't want to see the Supreme Court revisit. Let me ask a minute.

Obviously, your nomination by President Biden is historic and I congratulate you again, I just congratulated you previously, and I think it's been long overdue. When Clarence Thomas, the second African-American who was nominated to and confirmed by the Supreme Court -- was nominated to the court, did you celebrate that as a historic event?

JACKSON: I'm trying to remember where I was at the time. I believe I did. Yes.

CORNYN: When we're talking about staying in your lane, and I appreciate your responses to a number of the questions, even though I'd love to get your answer to the question, but where you've deferred answering, saying you want to stay in your lane and not be seen as a policymaker, would you agree with me that one of the most important questions under our constitutional form of government, and the separation of powers is who decides?

In other words, some questions are appropriately decided by judges who are elected -- are unelected, excuse me, sir, for life, insulated from politics, and other decisions are appropriately within the -- left up to the legislative branch because they are -- we are accountable to the people who can vote for us, they can vote against us if they don't like the policies that we -- that we enact in legislation, would you agree with that who decides is an important question in terms of determining the appropriate role for both the judiciary and the legislature?

JACKSON: As a general matter, I agree it rarely comes directly like that as an issue. It's usually not a jump ball between the legislature and the executive branch.

CORNYN: I get it. You don't get a lot of easy, easy questions.

JACKSON: Well --

CORNYN: But you, as a general proposition, you won't disagree with me.

JACKSON: What I'd say is that the courts are properly tasked with resolving legal questions and that --

[11:55:00]

CORNYN: Cases are controversies, right?

JACKSON: Exactly.

CORNYN: Right.

JACKSON: In every case and --

CORNYN: Congress is not similarly constrained. We can pass broad policies, comprehensive legislation, changing policy. But the difference is -- one of the differences is, the voters can unelect us if they don't like what we're doing.

JACKSON: That is true.

CORNYN: I want to ask you, what -- did you study under Laurence Tribe when you were at Harvard?

JACKSON: I did not.

CORNYN: Well, as you know, Justice Breyer, your mentor, wrote a little book called Active Liberty and Laurence Tribe, who was a -- formerly a law professor at Harvard, wrote a review of that book in the New York Time Review of Books, and the title of it is Politicians In Robes. Are you familiar with that article?

JACKSON: I am not.

CORNYN: Well, in the article, Professor Tribe accuses justice Breyer of engaging in what he calls a noble lie. And he said, he talks about the morality of resorting to falsehoods, and delusions to conceal, usually from the masses, but sometimes from oneself, the truths whose revelation would wreak havoc, or at least do more harm than good.

Professor Tribe goes on in criticizing Justice Breyer's book. He says in his stubborn vowel, that the court even with its current far-right, supermajority remains an apolitical body, he perpetuates a lie. That is anything but noble. You've talked about staying in your lane not making policy decisions, not being seen as political, do you agree with Justice Breyer that -- or with Professor Tribe?

JACKSON: Senator, I believe that judges are not policymakers, that we have a constitutional duty to decide only cases and controversies that are presented before us and within that framework, judges exercise their authority to interpret the law and not make the law.

CORNYN: So you would -- you would agree with me that judges should not be politicians?

JACKSON: Yes.

CORNYN: Let me talk to you a little bit about some of the decisions that have been made by the Supreme Court over many years, starting perhaps with Dred Scott that adopts the substantive due process argument to determine the constitutionality of various laws.

Perhaps the most recent decision by the Supreme Court that was a dramatic departure from previous laws in the States, and then the nation was the Obergefell case, which dealt with same-sex marriage.

In the opinions that were written there, it was noted that here we are 200 -- at the time, 234 years after the Constitution had been ratified, 135 years since the 14th Amendment had been ratified, that the Supreme Court articulated a new fundamental right which is a right to same-sex marriage. You're familiar with that case, aren't you?

JACKSON: I am.

CORNYN: At the time, it was noted that 11 states including the District of Columbia had passed laws, sanctioning same-sex marriage but also at the same time, there were 35 states who put it on the ballot and 32 of those states decided to maintain the traditional definition of marriage between a man and a woman. Do you agree with me that marriage is not simply a governmental institution it's also a religious institution?

JACKSON: Well, Senator, marriages are often performed in religious institutions.

CORNYN: Well, when the -- when the Supreme -- you agree with me that many of the major religions that I can think of, I mean there are Christianity, Judaism, Islam, embraces a traditional definition of marriage, correct?

JACKSON: I am aware that there are various religious faiths that define marriage in a traditional --

END