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The Lead with Jake Tapper

Smoke Rises Over Kyiv As Loud Explosions Rock The City Center; Ukrainian Forces Claim To Recapture Suburb Near Kyiv; Senate Hearing For Supreme Court Nominee Ketanji Brown Jackson. Aired 4-5p ET

Aired March 22, 2022 - 16:00   ET

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

[16:00:06]

VICTOR BLACKWELL, CNN HOST: We'll see if they move on that.

MJ Lee for us at the White, thank you, MJ.

And THE LEAD with Jake Tapper starts right now.

ANNOUNCER: This is CNN breaking news.

Welcome to THE LEAD. I'm Pamela Brown, in for Jake Tapper.

We are following two major stories today. In just a few minutes, the first day of questioning for Supreme Court nominee, Judge Ketanji Brown Jackson, is set to resume on Capitol Hill. Judge Jackson is appearing in front of the judiciary committee today for a hearing that has been at times contentious. We'll bring you more of that questioning when it resumes.

But first, our other major story, The Russian siege of Ukraine. Thick black smoke in the capital of Kyiv today after several large explosions rocked nearby suburbs. CNN teams on the ground also reportedly heard shelling and gunfire.

And on the outskirts of Kyiv, signs the Ukrainians are making some head way in pushing back Russian troops. Kyiv regional police posted this video, claiming its forces have now retaken the town of Makariv from Russian troops after days of fighting. CNN confirmed that's where this video was taken. It is about 40 miles west of Kyiv.

CNN's Sam Kiley is live in Kyiv.

So, Sam, what can you tell us about the fighting in and around the capital today?

SAM KILEY, CNN SENIOR INTERNATIONAL CORRESPONDENT: Well, I think if we look at what has been going on around the capital today, Pamela, you can see a continuation of the Ukrainian declaration that they were going on get on the counteroffensive about a week ago. This has been during a 36-hour curfew that has been imposed on the capital that is getting people off the streets.

And it has been repeated today, following that curfew, you see on the horizon in particular, a lot of explosions. A lot of black smoke and even here in town, occasional sounds of automatic gunfire. I think the latter is probably much more to do with jumpy soldiers than an actual kind of combat inside the city.

But what we have also seen out toward Makariv to the west of the city, we can't verify it, a successful recapture of it and we've seen pressure being put on the northern axis. This is consistent, really, with the Ukrainians saying they are being successful in securing Kyiv. They no longer think the capital is in danger of encirclement. Indeed, they're saying they are trying to put in three lines of defense.

What that may mean in the longer term, particularly if there is, as is being flagged out of the United States in March, the potential for Belarus to join the fight, to come in and reinforce Russians who may be on the back foot around the capital in the coming days. We will have to see. But for the time being, here in the north of the country, the Ukrainians are feeling a lot more bullish about their success.

BROWN: And this comes as the Pentagon is saying today that Russia has begun faring on the Kyiv port town of Mariupol from its ships in the sea. What more do we know that the fight for southern Ukraine at this point?

KILEY: Well, this is an area, there is a much deeper concern for the Ukrainians. This is where the Russians seem to be concentrating a lot of their fire power, their troop strength and of course, it is where the humanitarian disaster is at its most vivid, particularly in Mariupol. Now, when it comes under bombardment from weapons fired from battleships in the Azov Sea, the level of devastation will inevitably shoot up, if you'll excuse the pun there. It is really vicious.

These are very heavy guns that can be brought to bear on land targets, and clearly, this is part of the ongoing attempt to take over Mariupol if they can manage to do that, notwithstanding the significant civilian population there. Then the Russians will be able to join up their forces between the Donetsk area, which was, of course, captured in 2014, and their forces further to the west. It would give them control of the Azov Sea, arguably something that they prioritized strategically now, perhaps even getting into Kyiv, because getting into Kyiv was part of the initial objective, to topple the government. That now looks like a nonstarter, at least in the medium term.

So a lot of the energy of the Russian forces are in the south. There is also very deep concern among Ukrainians that their forces in the east more generally could be cut off by operations down there and that would make the rest of the country much more vulnerable.

BROWN: Well, it certainly would.

All right. Sam Kiley in Kyiv, Ukraine, thank you for the latest there.

And here in the United States, President Joe Biden is calling on business leaders to prepare for Russian cyberattacks.

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Biden says Putin is likely to use this tactic as a form of retaliation against the U.S. for harsh sanctions.

Let's go right to CNN's Jeff Zeleny live at the White House.

So, Jeff, tell us more about the president's warning.

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: Well, Pamela, President Biden is delivering that blunt warning. In fact, he did it last night directly to American business leaders at a meeting of the business roundtable in Washington and he told the American business leaders to really shore up their cyber defenses. He believes an attack could be imminent from Vladimir Putin in retaliation, as you said, to all the sanctions that have been imposed over the last month or so. We're learning more information.

A top cyber security official said this is not about espionage. This is about destructive activity that could be planned for some type of U.S. sector. Now, one thing also happening at the same time, the FBI sent out an urgent warning a couple days ago saying that Russian hackers had been looking at five energy companies, essentially, surveying their computer software.

The FBI bulletin also included more than a dozen other businesses where there could be potential hacking efforts. So, Pamela, all of this is coming as President Biden is on the eve of leaving for Europe tomorrow to meet with NATO leaders on Thursday in Brussels. And the national security adviser, Jake Sullivan, here at the White House, a short time ago said there would be new sanctions announced from President Biden and other world leaders on Thursday, those new sanctions aimed at Russia.

That is why the U.S. government is warning of potential cyberattacks. And, Pamela, we also learned today that the White House press secretary Jen Psaki tested positive for COVID-19. President Biden, we're told in a new test has tested negative so his trip is still scheduled tomorrow but that is a bit of a scare here at the White House on the eve of the president's trip to Europe -- Pamela.

BROWN: Certainly, understandably.

Jeff Zeleny at the White House, thank you.

So let's discuss all of this with the former U.S. defense secretary, former CIA director and former White House chief of staff, Leon Panetta.

Hi, Mr. Secretary. Thanks for joining us.

So, first off, this afternoon, CNN's Christiane Amanpour spoke with Putin's main spokesperson. So, I want to get your take on this. When pressed on nuclear weapons, this is what Dmitry Peskov said.

(BEGIN VIDEO CLIP)

DMITRY PESKOV, KREMLIN SPOKESPERSON: We have a concept of domestic security. If it is an existential threat for our country, then it can be used in accordance with our concept. (END VIDEO CLIP)

BROWN: The Pentagon just said that this type of rhetoric is, quote, dangerous. How do you see these comments?

LEON PANETTA, FORMER DEFENSE SECRETARY UNDER PRESIDENT OBAMA: I don't see how you can see it any other way but as dangerous. So, when Russia is looking for a possible excuse for the use of low yield nuclear weapons, and is basing it, frankly, on a very false premise, which is that somehow Russia is being threatened, I think that presents a real concern that Russia at least is considering that possibility.

I don't know that it will happen. I still think that Putin has to worry about how the U.S. would respond. And he has to worry about his own survival.

So I'm not sure that ultimately, that decision will be made. But it is of concern that they would even try to, in any way, rationalize that kind of attack.

BROWN: Yeah. And put it out there like that.

U.S. and NATO officials are telling CNN that Belarus could soon join Russia in its war against Ukraine and that they believe the country is already taking steps to do so. If Belarus does enter the conflict and help Russia, what should the United States do about it in your view?

PANETTA: Well, again, that would without question expand the war that is occurring in the Ukraine if Belarus decides to enter. I think Putin is having problems with his military. They're not only obviously bogged down, but they're trying to get people to join the army.

They've lifted their conscription age. They're trying to get 18-year- olds to join. They really don't have a very large army. It is only about a tenth of what it was during the Soviet Union days.

So he is struggling right now in terms of maintaining the force that he used for the invasion. So he may well be talking to Belarus but I think it is important for the United States to send Belarus a very clear message, if they decide to get involved, they're going to be targeted for the same kind of price that Russia has had to pay for the invasion.

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Whether it is in sanctions, whether it is other ways, I think they need to know that if they decide to enter, they will pay a heavy price. Period.

BROWN: It has been 27 days since Russia first invaded Ukraine. The initial expectation among U.S. officials that Putin had was that Russian forces would be able to take over Kyiv in two days. Clearly, that has not happened.

But the southern city of Mariupol is reduced to ashes, according to the Ukrainian president. But they are not surrendering to Russia. What has surprised you about this fighting and where do you see things

going from here?

PANETTA: Well, in many ways, I think we've concluded phase one of this war. It is almost going to be a month that Russia has tried to invade Ukraine. They obviously had a plan to do it quickly. Take over the capital city. Bring down the government.

That has not proven effective. It hasn't worked. And so now we are in a stalemate period. And phase two is probably going to be Russia almost trying to lay siege to Ukraine. Not having a very effective army to be able to move quickly so they're going to use a lot of artillery, a lot of missiles, and a lot of destructive power to try to see if they can break the backs of the Ukrainians.

But I think the Ukrainians have really hung tough in this battle. And have fought back, as you heard. They've actually regained a city in the outskirts of Kyiv. That is really very important, that they are continuing to move. And even though there are threats in the south, and that's where the Russians are probably focusing right now, the fact is that the Ukrainians are still putting up a hell of a fight.

And as long as the Ukrainians fight, Putin loses. I think that's the bottom line. That's why I hope that the United States and our allies can remain unified and that the president can deliver that message to Brussels that we have to be unified, because I think that kind of pressure is putting Putin in a difficult position right now.

BROWN: All right. Secretary Leon Panetta, thank you so much.

PANETTA: Thank you.

BROWN: Coming up, one couple's painful decision to leave loved ones behind to escape Russia's war. See the emotional moment when that family reunited, up next.

Plus, our other big story this hour. The confirmation hearing for Supreme Court justice nominee, Judge Ketanji Brown Jackson. We're back in just a moment.

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BROWN: Back in our world lead, new U.N. estimates show that 3.5 million refugees have now escaped Ukraine since Russia's invasion. In so many cases, people are leaving loved ones behind to make that journey.

CNN's Ed Lavandera shows us what that looked like for one family who managed to reunite.

(BEGIN VIDEOTAPE)

ED LAVANDERA, CNN SENIOR NATIONAL CORRESPONDENT (voice-over): Tucked away in the back of the train station in Przemysl, Poland, we see the latest train from Ukraine arrive, filled with families escaping war.

And it's where we find Tatiana Trut and her husband Vitali, waving joyfully at one of the carriages. This train is carrying special cargo.

Through the metal barricades, Tatiana sees her son, two sisters and their three children walking off the train. She has waited three excruciating weeks for this moment.

You have a very big smile on your face. I imagine you're very happy right now. Yes, he says. It is very scary there and we have been waiting for them for a very long time. Tatiana also tells us, they could not leave for a long time.

The family tells us their journey to get to Poland was a path through death and destruction. They live in a small village south of Kyiv. They say the only road Ukrainian civilians could use to escape was constantly attacked by Russian forces.

He says, there was shelling from both sides. Everyone who wanted to leave by car was simply shot. We were afraid that if our family decided to leave, we would lose them. We waited a long time for the military to allow it. We waited for the Russian troops to be removed so that our family could leave and we succeeded. We immediately told them to go.

This was the escape route, the sister's father drove them in his car from their village to the city of Mykolaiv. From there they jumped in a mini bus helping families escape to Odessa. That's where they boarded the train that brought them to Poland.

The area this family escaped has seen brutal warfare the last three weeks. Tatiana was in Poland working and couldn't return home in time when the war broke out. She says her son often told her about hearing military planes flying over their home and missiles exploding.

Finally, the family is reunited outside the train station. In the moment, it seemed unnecessary to ask Tatiana what this moment meant to her. Sometimes hugs and kisses speak far louder than words.

Ed Lavandera, CNN, Przemysl, Poland.

(END VIDEOTAPE)

BROWN: What a story from our Ed Lavandera.

And also this hour, we're monitoring the confirmation hearing for Supreme Court justice nominee Ketanji Brown Jackson. Her answers to key questions and reaction from senators in the room, up next.

(COMMERCIAL BREAK)

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BROWN: The Senate hearing for Supreme Court nominee, Judge Ketanji Brown Jackson, has resumed. JUDGE KETANJI BROWN JACKSON, SUPREME COURT NOMINEE: Where the

justices, even the justices in dissent, were all analyzing the issues in the Second Amendment through an historical lens. What was meant at the time of the founding? So that is now the way in which constitutional interpretation is done.

SEN. BEN SASSE (R-NE): But do you identify with that position?

JACKSON: I identify with the position in so far as that's how the text is interpreted of the Constitution. That I am a strong believer, as I said, in precedent, in stare decisis, in predictability, in the rule of law and the way that the law now interprets the Constitution is through this historical frame.

SASSE: I'm grateful for your last couple minutes because I think that it is in the American civic interest for us to understand these different schools. Again, non-lawyer here, but my simple way of summarizing some of what I think I heard you just say is that Scalia argues hard that the constitution has a fixed meaning and justices aren't really free to depart it from without a constitutional amendment passed by the political branches, so that the voters get to hire and fire the people or have a role at the state level in the ratification of a constitutional amendment, and Breyer's position seems to me, and I won't get it precise enough and technical legal terms, just prudential terms probably to satisfy him, but that the Constitution is speaking to more abstract principles, and therefore, there's a lot more play in the joints of what a justice's job is.

I think the way you summarized the debate was pretty fair. And I think it is fair for us to want to understand your position about it, because you're obviously, as I've said, incredibly smart and incredibly likable and winsome, and on the stage for a lot of Americans to look up to. I'm at the rah, rah, hear, hear side of the debate, at the level of what is a Supreme Court justice's job, I think that's what a lot of us are tease out the philosophical distinction which I think is more than just a methodology. I want to thank you for that answer.

You've have also brought up the Fourth Amendment a number of times in our conversation and I would like to talk a little more about the Constitution and whether its meaning changes. And so, I would like to go back to the Fourth Amendment topic you brought up in my office.

You said, I think, that -- and correct me if I'm mis-summarizing your position. You said originalism wouldn't have much to say about the Fourth Amendment because the Founding Fathers never conceived of a tool, a piece of telecommunications equipment like this.

So I think during our conversation you said that the original meaning of the Fourth Amendment won't tell you what to do with a new technology.

My guess is that originalists, and Scalia in particular, would disagree. So what do you do if the text of the Fourth Amendment doesn't answer a question? Where do you go next? JACKSON: Well, Senator, just to clarify what I intended to say, and I

may well have misspoken, there is an originalist take, I think, on the question of what happens with a cell phone. As the Supreme Court held in the Riley case, there was a way in which you assess principles of the Constitution, the text of the Constitution, and apply it to modern technology. And you have to because there is no question that cell phones didn't exist at the time of the founding.

So if the originalist principle is, we look only at the constitution as it relates to things that existed at the time of the founding, there would be no answer to what to do about a cell phone. And so what the Supreme Court has said and done is to determine that the principle of the Fourth Amendment with respect to searches is to determine whether there is a reasonable expectation of privacy. They also have looked at property interests with respect to whether or not there is an invasion of privacy, and then determined from history what that reasonable expectation of privacy related to back at the time of the founding, and analogized to current circumstances related to thing like cell phones.

It is a method of interpretation that allows you to instead of the alternative, which would be don't worry about the history. Just look at the words in the Constitution and say, what do I think is reasonable or unreasonable with respect to police officers searching cell phones.

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That's not the way the Supreme Court handles it. They try to determine what was unreasonable historically, and then given those principles historically, it would be unreasonable for police officers to enter someone's home, to rifle through their papers and documents. They then analogized to current circumstances and the fact that a cell phone is like your personal file cabinet.

And they say, okay, given what we understood the framers to have intended about the need for a warrant or the need for protection against unreasonable searches, we're going to apply that to modern circumstances. It is still an originalist way of analyzing the current dispute.

SASSE: So are there non-originalist ways to wrestle through that same question? What would they be?

JACKSON: One could imagine that rather than referencing history at all, that the court would look at the Constitution. It says no unreasonable searches and seizures. And would just ask, in light of modern sensibilities, in light of what we would think would be reasonable today, or what the court itself would be reasonable today. We would apply that modern understanding to the cell phone situation.

And the danger I think Justice Scalia would say is that is a kind of framing that permits judges to make a determination based on their own views, rather than hewing themselves, as Senator Lee said before, that Justice Barrett pointed out, hewing themselves to the text of the Constitution. SASSE: And does Breyer have a different view?

JACKSON: You know, I haven't -- I'm trying to think. My understanding of the living constitutional principle is that it is closer to looking at the needs of modern society. But I'm not well-versed in it, in part because the Supreme Court has now so clearly taken the historical perspective of, the originalist perspective in its interpretations.

SASSE: You brought up the cell phone example with me, but I know you have others. What are some other areas of life where the original meaning seems to be two and a half centuries removed? What are places the Constitution seems to not speak to?

JACKSON: Well, Senator, I'm reluctant to spell out different circumstances. What I will say is that when you look at the language in the Constitution, there are some provisions that are completely clear on their face without any question of what was intended. The age of -- the required age of senators. The required age of the -- the minimum age of the president. These kinds of provisions, all you need is the text and there you are.

But there are provisions of the constitution that are broader than that and therefore some interpretive frame is necessary. And to the extent -- I mean, every question the Supreme Court gets that involves new technology, for example, that relates to constitutional provisions will require some kind of analogy, I think. But I can't speak to anything more than that.

SASSE: You have described Justice Breyer's constitutional approach as pragmatic. What does that mean?

JACKSON: I understand it to be -- and his approach, to be about ensuring that the rules that follow from the Supreme Court's determinations are ones that make sense and are workable.

SASSE: He said recently, explaining his approach to interpreting a statute, you're not going to go outside the words but it often doesn't give you the answer. You look at the history and you look at its purposes and you look at the consequences, too, and you will try to evaluate them from that.

[16:35:02]

The point of view of what a reasonable legislature writing the statute have thought these words were there to achieve.

Do you align yourself with that position?

JACKSON: In the broad sense that what it is that the court is tasked with, when statutory interpretation is being undertaken, is to achieve the purposes of the legislature. The text is the primary and in most cases sole indication of what the legislature intended, as opposed to the court saying, I see this statute but I am, you know, uncomfortable with how it is going to turn out or what it will mean. So I'm going to import my own policy perspective. Instead, the court is constrained to say, regardless of what I think

the right policy objective should be with respect to this law, my purpose, my requirement is to determine what Congress intended.

SASSE: But with respect to legislative intent, when a Congress of 535 often distracted people, 100 in this body and 435 in the other, pass something by a 2-1-ish vote and it is a part of a large piece of legislation, how do you determine what the intent is? When it is 535 people doing something that has many, many different purposes for why somebody might vote yes?

JACKSON: Well, you look at the text. The way in which statutes are interpreted is based on what the legislature says. There are times in which there are statutes in which Congress includes a purpose statement, for example, in the actual text of the statute. You look at the text of the provision.

If that isn't clear, you look at the structure of the statute. There are cannons of interpretation that courts use to evaluate and interpret statutes. Things like a word that appears in the section that you are interpreting should be defined the same way it is in another section. The same word being used, Congress probably intended for it to have the same meaning.

So, there are tools in the law that exist to help courts to interpret the text. But, again, the goal is to interpret the Texas a means of understanding and reflecting what Congress intended. And of course, in statutory interpretation, if Congress decides that the court has gotten it wrong, then as has happened many times, Congress comes back and clarifies and tells court, no, this is what the statute means.

SASSE: I want to go back to an exchange you had with Senator Cornyn. Substantive due process is a document that allows courts to create new fundamental rights. What is the test to create a new fundamental right?

JACKSON: The Supreme Court has said in the Glucksberg case that the fundamental rights that are recognized or that are included in substantive due process are those that are deeply rooted in the nation's history and tradition. In a case prior to that, the court had defined it as the rights that are implicit in the ordered concept of liberty, or the concept of ordered liberty. So there are standards for the courts to use to identify these times of rights.

SASSE: So did the Supreme Court use this test in Roe or Casey?

JACKSON: In Roe and Casey, I don't know that the court used that formulation. I know that after Casey, the court has determined not so much that the right to terminate a woman's pregnancy is fundamental. The right exists and it is subject to the framework in Casey that allows for regulation so long as there's not an undue burden on the exercise of the right pre-viability.

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SASSE: I think some of what we're wrestling with here is the question of -- and I think what Senator Cornyn is driving at, is how particular the concept of deeply rooted goes and how that really is abound on what the judiciary can do.

But I want to thank you. We're nearly at time. I want to thank you for engaging in the back and forth. I want to think more about what you said and look forward to discussion tomorrow.

It still appears that there is a very basic difference between a judicial philosophy and a judicial methodology in how you go about applying that when you're interpreting the law and making a determination about constitutionality or none. And I know that you haven't claimed a judicial philosophy at all, but a judicial philosophy of originalism here, but I do think the fact that you've at least nodded to it in the committee hearing today is in and of itself pretty great testimony to how much of Scalia and Bork's work has moved the legal field.

So I'm grateful for the time you're taking with us. I look forward to listening tonight and talking with you again tomorrow.

JACKSON: Thank you.

SEN. DICK DURBIN (D-IL): Thank you, Senator Sasse.

Senator Blumenthal?

SEN. RICHARD BLUMENTHAL (D-CT): Thank you, Judge, for your patience and your perseverance. I want to begin by thanking you also for an extraordinary moment in our history. I think we all as Americans feel excitement and pride in really making history here.

And the old saying that a picture is worth a thousand words, as I look at your parents and your husband and your daughters, what I see is America, and the best of America. So I think we should all feel that excitement and pride in this moment. And the extraordinary journey that has brought you here.

You will make the court look more like America, but also, think more like America. In the obstacles and challenges that you've overcome to be here, we don't know all of them. But you will provide a very important perspective, indeed, a unique perspective that the court needs more than ever at this moment in its history. There are a lot of people who are book smart. There are not as many people who are person smart. And you are both.

That kind of emotional intelligence is what our courts need. Not just our Supreme Court.

So, I want to really begin by asking you as a role model for others, to talk a little bit to the young women and girls of America. Particularly black young women and girls, about those challenges and obstacles that you've had to overcome to be here and what has helped you do it.

JACKSON: Thank you, Senator. I am humbled and honored to have the opportunity to serve in this capacity and to be the first and only black woman to serve on the United States Supreme Court.

I stand on the shoulders of generations past who never had anything close to this opportunity, who were the first and the only in a lot of different fields. My parents, as I said, were the first in their families to have the chance to go to college. I've been the first and the only in certain aspects of my life so I would say that I agree with you, that this is a moment that all Americans should be proud.

BLUMENTHAL: Now, you've never been a prosecutor. A lot of us on this panel have been prosecutors. I was the U.S. attorney to chief federal prosecutor in Connecticut four and a half years and then I was attorney general of my state for 20 years.

But I would say one of the most meaningful cases in my career was as a defense counsel. I was asked by the NAACP legal defense fund to represent a black man on death row in your home state of Florida. He had been convicted of murder and rape, had been on death row for a number of years.

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And I took the case because I was asked to do it and eventually, somewhat to my surprise found he had never done the crime of which he had been convicted. And eventually, we won his freedom because the prosecutor in the case concealed evidence which was a violation of his constitutional rights, and he was a free man as a result.

Your husband as a surgeon, saves lives. Lawyers don't do it often. But I know from personal experience, the importance of having a good representative, an advocate, a counsel. In that case, he had been denied it when he originally went to trial. And only after years in both state and federal courts was the truth vindicated.

So I want you to talk a little bit about why it is important for defendants to be represented by zealous, really aggressive and energetic advocates who tell the truth to the court. Put on the evidence, and present the best possible case for a defendant accused of a crime.

JACKSON: Thank you, Senator.

The idea is one that is rooted in our Constitution. The framers were concerned about government overreach in a lot of different areas. The provisions of our constitution are protecting individual liberty from government overreach. This is why we have provisions about limited government, and there are many provisions in the constitution that are limiting government action when it comes to the deprivation of liberty, because the Framers understood how important liberty is to our society.

And so there is the Fourth Amendment, there's the Fifth Amendment, there's the Sixth Amendment, there's the Eighth amendment. These provisions are crucial and it is zealous defense counsel that ensures that the government is protecting these rights. That ensures these rights are protected, and that people are getting due process in the criminal justice system. And that's to all of our benefit. That helps everyone in America when

we ensure that liberty cannot be denied without due process. It's defense counsel, as I said, who are making arguments and they're not condoning the criminal behavior. They're making arguments on behalf of clients in defense of the Constitution and these constitutional values.

And as a judge, I now see how important it is for me to be able to make my decisions after hearing from both sides. That's crucial. We have an adversarial system which means that judges are presented with arguments from both the prosecution and the defense.

And only when I'm able to hear from both sides can I make a just, fair determination. Fairness is the hallmark of our Constitution scheme and it is what makes us the best system in the world.

BLUMENTHAL: And it's not only the reality of fairness but also the perception of fairness. The public's understanding of how courts work that is essential to the credibility courts have, correct?

JACKSON: That is correct.

BLUMENTHAL: So I feel very strongly, I know that a number of us on the committee agree that more transparency, more visibility is important for the public to understand what goes on in the courtroom.

I know you feel transparency is a good thing. You've been asked about cameras in the courtroom. I'm a supporter of Senator Grassley's Sunshine in the Courtroom Act, as well as Senator Durbin's Cameras in the Courtroom Act. I am hopeful that the court, the United States Supreme Court, actually will back these proposals, because their support would be very important.

[16:50:04]

Tell me how you feel about the basic principle of transparency and more visibility.

JACKSON: Well, Senator, one of the reasons, as I said, that I write such long opinions is because I want everybody to know exactly the arguments I've considered, the facts that I've reviewed, and in pretty fine detail, the course of my reasoning. And I've done this in 570 opinions.

I think it's important for public confidence, as you say, for people who are bound by the law and who are affected by the courts to know what the court's views are.

With respect to the issue of cameras in the courtroom, I understand that is something that is proceeding through Congress and if I was confirmed, I would look forward to talking with my colleagues to understand the positions that people have regarding that issue.

BLUMENTHAL: I appreciate that response.

One of the other areas that I think is important to transparency, and to public trust and confidence in the court is visibility as to its own decisions, which I think is directly contradicted by the shadow docket you've been asked about it before.

But I just want folks to understand that some of the most important decisions the Supreme Court has decided, or issues resolved without oral argument, without briefs, without any public explanation, a controversial travel ban has gone into effect. The first federal execution, 17 years, was permitted. Statewide COVID restrictions were enabled. The collection of data in the 2020 United States Census, and enforcement of voting restrictions in the 2020 presidential elections, as well as decisions relating to immigration and blocking the Biden administration from enforcing a federal moratorium on evictions imposed because of the COVID-19 pandemic. Americans have a right to an open, full, fair record of the court's making decisions.

So, I hope that you will urge your colleagues, when you talk to them about cameras in the courtroom also, to do less on the shadow docket, and I hope that perhaps if they don't -- Congress will take some action.

I finally want to ask, so far as this issue of transparency is about, codes of ethics. You have followed a code of ethics as a district court judge and court of appeals judge, correct?

JACKSON: I have.

BLUMENTHAL: Does that code of ethics apply to the United States Supreme Court?

JACKSON: My understanding is that it does not.

BLUMENTHAL: Correct.

And my hope is that you will perhaps urge your colleagues as well to support a code of ethics. They haven't done so as yet but I think we have an obligation in the Congress to set forth a code of ethics. And I hope they'll support it. Senator Durbin and others of us have supported that kind of measure as well.

And I would just ask you if you will raise it with your colleagues if you're confirmed.

JACKSON: Senator, certainly if Congress is taking anything up that requires our review, I would absolutely -- I would absolutely consider it. Even if not, I would consider it, talking to them about it.

BLUMENTHAL: Thank you. The reason I raise these points is that I respect the United States Supreme Court. I've argued for cases before it. I was a law clerk to Justice Blackmun, who by the way, was from Minnesota. In fact, he was known as one of the Minnesota twins when he was appointed because he was thought to be exactly like then Chief Justice Warren Berger who also was from Minnesota in his very, very conservative views.

And as it happened, Justice Blackmun became one of the most progressive members of the court over the years that he served. He had a capacity for growth. And for learning and listening, which I believe you have, and I think it is one of the most important characteristics of anybody who serves on the court.

But I do think the court's crisis of legitimacy is the result of divisions within the court, the polarization and politicization that has drawn lines, the process that has happened in reason years, in confirmation proceedings. And so, I really think that consensus- building, building bridges with your colleagues will be immense.

I think that's one of the reasons the president chose you. Have you talked to him about it? That you have that kind of persuasive and forceful intellect but also the personal charm and warmth and depth that will enable you to do it.

Maybe you can tell this committee about how you worked on the sentencing commission, for example, or in your previous experiences on that kind of consensus-building.

JACKSON: Thank you, Senator. Consensus building was one of the things that Justice Breyer was particularly good at in terms of his personality. In the time that I worked for him, I witnessed the way in which he continually reaches out to colleagues. Continually seeks common ground. And it is something that I would hope to be able to emulate if I were to be confirmed.

When I worked on the Sentencing Commission, the commission is a seven- member body working on sentencing policy which is at times a pretty contentious effort, because we're talking about criminal justice as commissioners. We are working on policy issues related to appropriate sentencing, and by statute, the commission is a bipartisan group.

And during my four years as a commissioner, I was able to work well with other members of the commission to find common ground, to work on issues, to come together. And the vast majority, I heard a statistic that something like 95 percent or 97 percent of the votes the commission took were unanimous. And that happened because of a lot of effort and intention on the part of all involved to see if we could work together.

And that would be the kind of thing that I would hope to do if I was confirmed to the Supreme Court.

BLUMENTHAL: You've mentioned in your previous testimony the challenges of applying the law to evolving new technology. Obviously, the Internet raises exactly those questions. Congress passed the Electronic Communications Privacy Act in 1986 when the Internet was barely recognizable. It was nascent, just starting.

And now, our nation faces a mental health crisis. It is partly aggravated by the pandemic, the isolation and anxiety that has resulted, but also by the Internet and by the tech platforms that drive toxic content at children, as a result of these black box algorithms that nobody understands, literally, no one understands because the tech platforms want to keep them secret.

And we are trying to upgrade the law and update it to give parents tools to have greater visibility as to what their children are doing, and to give parents and children tools to protect them against some of the bullying and eating disorder content and even suicidal and substance abuse stuff that they are driven to see.

And Senator Blackburn and I have introduced a bipartisan measure, the kids online safety ask --

PAMELA BROWN, CNN HOST: We've been listening to the questioning of Ketanji Brown Jackson on Capitol Hill.

I'm Pamela Brown, in for Jake Tapper. You can follow me on Twitter @PamelaBrownCNN or tweet the show @TheLeadCNN.

Our coverage continues now with Wolf Blitzer and "THE SITUATION ROOM."