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Second Day of Hearing for Supreme Court Nominee Ketanji Brown Jackson. Aired 9-9:30a ET

Aired March 22, 2022 - 09:00   ET

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

[09:00:00]

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Nominees often refused to wade in on what can come before the court, often to the concern and consternation of members on this committee. So expect some -- some key -- some moments of contentiousness between Republicans and this nominee. We'll see how she responds to pointed and direct questions. Will she get tripped up and will anything change and will she win over any Republicans to ultimately support her?

One Republican who could break ranks, Lindsey Graham, who voted for her for the D.C. Circuit, told me yesterday that it is a, quote, different game when it comes to the Supreme Court. So, we'll see where she comes down in today what will be a long day of questioning that could extend late into the night.

Poppy.

POPPY HARLOW, CNN ANCHOR: Manu, thank you very much.

And stay with us.

Let me bring in all of our experts to break down the headlines.

And, Joan Biskupic, let me begin with you, because her experience here is diverse and it's really important. I mean when you look at the number, she has more judicial experience actually serving than 43 of the last 58 justices. And that experience is diverse. Again, being the first and only would be, you know, former federal public defender.

Can you explain why that diversity of experience is so important on the high court?

JOAN BISKUPIC, CNN LEGAL ANALYST AND SUPREME COURT BIOGRAPHER: Well, thanks, Poppy, and it's great to see you.

You know, think of all the cases that the justices take each term. You know, they run the gamut of ones from, you know, criminal defendants, from civil plaintiffs, from people who all across America have civil and criminal grievances. And it's important to have the nation's highest court understand that kind of range. And we have to go back as far as Thurgood Marshall in the 1960s to find a justice who had significant experience representing criminal defendants.

But she's got much more, as you mentioned. Her extensive background even as a judge, as most of our prior nominees were on lower courts before they ascended. So she'll be trying to translate that experience to key senators, such as Lindsey Graham, on this committee, but also speaking beyond the committee, to people like Susan Collins and Lisa Murkowski, who were key swing votes the last time she was up there and voted for her.

HARLOW: Right.

BISKUPIC: So what she's going to try to do is fend off some of the criticism regarding the, quote, soft on crime that was previewed yesterday with some senators, but also show why the diversity of experience that you're speaking about here, Poppy, is exactly what the Supreme Court could use at this time.

HARLOW: Yes. Yes. There is so much diversity in her experience beyond the obvious diversity of, you know, being the first black woman to sit on the court if confirmed.

Laura, to you, she closed her remarks yesterday, reminding everyone of the four words inscribed above the door to the Supreme Court, equal justice under law. And she said, let us hope that that can be a reality, not just an ideal.

I wonder how you think she would alter this court in its opinions, but also, because she's not going to shift the conservative/liberal majority, but also in the cases it decides to take.

LAURA COATES, CNN SENIOR LEGAL ANALYST: You know, I think she will play a very influential role. We don't always know what happens behind closed doors among the justices when they are conferring and they're talking about these issues, but the breadth of experience she brings, the idea of having the policy background. I remind people, of course, the other person to be on the Supreme Court who's had sentencing commission experience is the person that she stands to possibly replace and succeed in that notion, Justice Stephen Breyer. And so the confluence of all these factors, somebody who has been a trial judge, somebody who has been on circuit court, somebody who has been a public defender and someone in policy, all of this further informs your ability to be impartial and objective.

There's no requirement, frankly, that you -- in order to be objective and impartial you have to apply the law robotically. You are informed and infused by all the things that you bring to the table. And so those conversations can be that much richer. I suspect that they'll probably lean on her expertise in those areas to figure out what it's like in the reality of practice, not just the esoteric conversations in a law school classroom.

And, remember, there are a number of cases that the Supreme Court takes, even in their shadow dockets, where we have no idea what they're truly thinking about those issues.

HARLOW: Right.

COATES: That's going to be the very transparent among themselves moment, but to the public we have no idea. In the instances involving criminal defendants in particular, I suspect she'll be particularly influential at this court on the shadow docket.

HARLOW: Yes. That's a great point about the shadow docket as well. I mean look how critical it has been just in the last term.

Gloria Borger, to you.

They're -- she talked about judicial philosophy and said I -- you know, essentially yesterday, do not have a specific judicial philosophy, like originalism or fragmentism (ph). She's be taking Breyer's seat. Remember, he wrote that book, "Making Democracy Work."

GLORIA BORGER, CHIEF POLITICAL ANALYST: Right.

HARLOW: So it was about, you know, being pragmatic.

Mitch McConnell took aim at her for that, saying, you know, we need an answer, we need to know what her judicial philosophy is. How much of the line of questioning today do you think will be focused on that?

BORGER: Look, I think they're going to ask and they're not going to get an answer, and they know they're not going to get an answer. Her general answer is that she doesn't have a philosophy, she has a methodology.

[09:05:02]

That she is careful. That her opinions are very often long winded. That she wants people to know what her thought process was as she went through the process of coming to a conclusion.

But people who want to be justices these days do not give a philosophy. Judge Bjork gave a philosophy and he did not get confirmed.

HARLOW: Didn't work out.

BORGER: Didn't work out so well.

HARLOW: Yes.

BORGER: So it's a very, very dangerous proposition for her to do that.

She's been confirmed multiple times. She knows the dangers of that. And they know that they're not going to get an answer. At some point, Poppy this just becomes kind of a kabuki dance here because they ask her the questions, they know she's not going to answer them, they cherry pick some of her writings, as Marsha Blackburn did yesterday. She's going to clarify it. And you're going to go back and forth and back and forth for hours and hours.

And, you know, now that we know, you need 51 votes, that this is no longer subject to a filibuster, that it is very likely, unless something explosive comes out of these hearings, that the Democrats are going to support her and that you have four Republicans probably who are running for president who sit on this dais, and see this as an opportunity to show themselves to the American public. HARLOW: Right.

I mean it's such a good point, Gloria -- I'm just looking -- I mean the seat that she would take, Stephen Breyer was confirmed 87-9.

BORGER: Yes.

HARLOW: I mean you remember those -- remember those days as we look at images. You see her right there. You see Judge Jackson walking in, getting ready for her confirmation hearing.

As we wait for her to take her seat, Manu, to you.

I thought it was interesting, as long as there are no other Supreme Court vacancies before January, this will be Senator Patrick Leahy's last Senate confirmation hearing for the Supreme Court. He's been at every once since John Paul Stevens was confirmed in 1975. And he lamented yesterday sort of where our country is in this process. And he said, I'm under no illusion that we can mend this process overnight, but he said, perhaps Judge Jackson's confirmation hearing can, quote, bring us together again.

What do you think?

RAJU: I think that's (INAUDIBLE) comments --

HARLOW: There, you told me what you think with that -- with that laugh.

RAJU: That's right. I mean this -- the way that the Supreme Court processes have gone over the last several nominees has just descended into more and more bitterness and partisanship. And despite the qualifications of a nominee, even if the American Bar Association rates a nominee as well qualified, as Ketanji Brown Jackson has been rated by the ABA, that is still certainly not enough for members to vote for her, to cross party lines. That is why we expect this to come down -- to be a very narrow vote. Even if she performs --

HARLOW: All right, Manu, they're gaveling in.

So, let's listen to the chairman of the Senate Judiciary Committee, Senator Dick Durbin.

SEN. DICK DURBIN (D-IL): Good morning, Judge Jackson. Welcome back to you and your family.

JUDGE KETANJI BROWN JACKSON, SUPREME COURT NOMINEE: Good morning, Mr. Chairman.

DURBIN: This second day is known affectionately by a term of medieval justice known as the trial by ordeal. This will be your opportunity to speak, but each member of the committee has 30 minutes to ask. And I know that they're going to be careful to stay within time limits of those 30 minutes. I do want to remind my colleagues that history has proven that speeches don't have to be eternal to be immortal. President Lincoln learned at Gettysburg that 275 words were enough. So, I hope my colleagues and friends will stick to the 30-minute guideline. I'll tap on the gavel if you're getting perilously close to extending beyond.

We'll take a few breaks throughout the day. A number of them are scheduled. One from lunch, one for dinner and several perhaps shorter ones in the meantime.

If votes are called on the Senate floor, which is a possibility, we'll do our best to keep the hearing going as members go back and forth.

As I mentioned yesterday, we welcome all of our friends in the audience and ask that they be quiet and respectful during the hearing.

So, let's get started with the questioning, and I'll begin at this point.

Judge Jackson, there are two issues that came up repeatedly yesterday from the other side of the aisle, and I want to address at the outset.

One of them was a question of judicial philosophy. No one questions either your academic law school credentials or your service as clerk and as federal judge, but time and again you have been asked what is your judicial philosophy. Does it fit into Scalia's originalism, Kavanaugh's texteralism (ph), is it construction (ph), is it liberal, is it conservative? Lo and behold I have discovered the answer. It turns out that during the course of your time as a judge, you have actually had written opinions, 573 to be exact, I think, maybe I'm off by one or two, and they more or less express your view of the law as the facts are presented to you in each one of those cases.

[09:10:17]

And then some 12,000 pages from the sentencing commission, transcripts of deliberations on important issues. For most of us, as elected senators, if people asked, what's your philosophy, we'd point to our voting record. You have a record when it comes to court decisions. And this committee, for the fourth time, is delving into everything that you've published as a judge, and even before.

So, would you like to comment at the outset of those who are looking for a label what your position is on judicial philosophy?

JACKSON: Yes. Thank you, Mr. Chairman.

Over the course of my almost decade on the bench, I have developed a methodology that I use in order to ensure that I am ruling impartially and that I am adhering to the limits on my judicial authority. I am acutely aware that as a judge, in our system, I have limited power, and I am trying, in every case, to stay in my lane.

And so what I do is, I essentially follow three steps. The first step is, when I get a case, I ensure that I am proceeding from a position of neutrality. This means that, you know, you get a case and it's about something, and it's submitted by certain parties, I am clearing my mind of any preconceived notions about how the case might come out, I'm setting aside any personal views. It's very important that judges rule without fear or favor.

The second step is, once I've cleared the decks, so to speak, in this way, I am able to receive all of the appropriate inputs for the case. That is the party's arguments. They've written briefs. Sometimes we have a hearing. Sometimes we hear from other parties. Amici in a case.

And then there's the factual record. I am evaluating all of the facts from various perspectives. I think my experience, all of the various experiences that I've had, really helps me at this stage to see the perspectives of all of the parties and to understand their arguments.

And then the third step is the interpretation and application of the law to the facts in the case. And this is where I am really observing the constraints on my judicial authority. There are many constraints in our system, importantly, because judges have limited authority, and so I am, first of all, looking at my jurisdiction. Threshold matter in every federal case is to make sure that you even have the power to hear the case. In evaluating jurisdiction, you're looking at all sorts of things, the text of a jurisdictional provision, for example, precedent related to it.

If I can get to the merits of the case, if I have jurisdiction, then I am observing the limits on my authority concerning the questions. So, if it is a statute, for example, or a provision of the Constitution, I am looking at the text. The adherence to text is a constraint on my authority. Trying to figure out what those words mean as they were intended by the people who wrote them.

So, at this point, I'm looking at original documents. I am focusing on the original public meaning because I'm constrained to interpret the text. Sometimes that's enough to resolve the issue in terms of the merits. Judges also look at history and practice at the time of the -- the document was created. If it's a statute, I'm looking at Congress' purposes because, again, I am not importing my personal views or policy preferences. The entire exercise is about trying to understand what those who created this policy or this law intended.

I'm also looking at precedent, which is another constraint on judicial authority.

[09:15:06]

I am looking at prior cases and trying to understand what other judges have said. As a lower court judge, I'm bound by the precedent. And even in the Supreme Court, if I was fortunate enough to be confirmed, there's stare decisis, which is a binding kind of principle that the justices look at when they're considering precedence.

So, all of these things come into play in terms of my judicial philosophy.

DURBIN: Another issue which has come up, to my surprise, and I've spoken to my Republican colleagues about their fascination with it, is the notion of the composition of the Supreme Court, which euphemistically is referred to as court packing. I have said on the floor, and I will repeat here, there is exactly one living senator who has effectively changed the size of the Supreme Court, that was the Republican leader, Senator McConnell, who shrank the court to eight seats for nearly a year in 2016 when he blocked President Obama's nomination of Merrick Garland.

Now, that question on court packing was posed to Amy Coney Barrett, justice on the court, when she appeared before this committee. She was asked about it. She said, and I quote, could not opine on it. And on many other policy issues, then Judge Barrett said repeatedly she could not share her views, stating, and I quote, I will not express a view on a matter of public policy, especially one that is politically controversial, because that is inconsistent with the judicial role.

I do believe we should have rules, and traditions and precedence, but we shouldn't have a separate set of rules for Republican nominees and Democratic nominees.

So, Judge Jackson, if a senator were to ask you today about proposals about changing the current size of the Supreme Court, what would your response be?

JACKSON: Senator, I agree with Justice Barrett in her response to that question when she was asked before this committee.

Again, my north star is the consideration of the proper role of a judge in our constitutional scheme. And, in my view, judges should not be speaking into political issues and certainly not a nominee for a position on the Supreme Court. So, I agree with Justice Barrett.

DURBIN: Let me address another issue that came up yesterday, in the opening phase of this nomination hearing. And it's the issue involving child pornography.

I want to turn to that issue because it was raised multiple times primarily by the senator from Missouri. And it was -- he was questioning your sentencing record in child pornography cases that do not involve the production of pornographic material. They're known as non-production cases.

I wanted to put some context here. The senator from Missouri has in his tweets said of your position on this issue, Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and a policymaker. She has been advocating it since law school. This goes beyond soft on crime, the senator said. I'm concerned this is a record that endangers our children.

I thought about his charges as I watched you and your family listening carefully yesterday and what impact it might have had on you personally to know that your daughter, your husband, parents, family and friends were hearing the charges that your implementation of this law, sentencing, endangered children.

Could you tell us what was going through your mind at that point?

JACKSON: Thank you, Senator. As a mother, and a judge who has had to deal with these cases, I was

thinking that nothing could be further from the truth. These are some of the most difficult cases that a judge has to deal with, because we're talking about pictures of sex abuse of children, we're talking about graphic descriptions that judges have to read and consider when they decide how to sentence in these cases, and there's a statute that tells judges what they're supposed to do. Congress has decided what it is that a judge has to do in this and any other case when they sentence.

[09:20:04]

And that statute -- that statute doesn't say look only at the guidelines and stop. The statute doesn't say, impose the highest possible penalty for this sickening and egregious crime. The statute says calculate the guidelines, but also look at various aspects of this offense and impose a sentence that is, quote, sufficient but not greater than necessary to promote the purposes of punishment.

And in every case, when I am dealing with something like this, it is important to me to make sure that the children's perspective, the children's voices are represented in my sentencings. And what that means is that for every defendant who comes before me, and who suggests, as they often do, that they're just a looker, that these crimes don't really matter, they've collected these things on the Internet and it's fine, I tell them about the victims' statements that have come in to me as a judge. I tell them about the adults who are former child sex abuse victims who tell me that they will never have a normal adult relationship because of this abuse. I tell them about the ones who say, I went into prostitution, I fell into drugs because I was trying to suppress the hurt that was done to me as an infant.

And the one that was the most telling to me that I describe at almost every one of these sentencings when I look in the eyes of a defendant who is weeping because I'm giving him a significant sentence, what I say to him is, do you know that there is someone who has written to me and who has told me that she has developed agoraphobia, she cannot leave her house because she thinks that everyone she meets will have seen her, will have seen her pictures on the Internet, they'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. I say to them that there's only a market for this kind of material because there are lookers, that you are contributing to child sex abuse, and then I impose a significant sentence, and all of the additional restraints that are available in the law. These people are looking at 20, 30, 40 years of supervision. They can't use their computers in a normal way for decades. I am imposing all of those constraints because I understand how significant, how damaging, how horrible this crime is.

DURBIN: It is -- it should be noticed as well that the cases which the senator from Missouri referred to yesterday all resulted in incarceration of some magnitude. In the one case, the Hilley (ph) case, I want to quote what you said on the record, this family has been torn apart, speaking to the defendant, by your criminal actions. You saw it on the faces of those women. You heard it in their voices. And the impact of your acts on those very real victims who are still struggling to recover this day makes your crime among the most serious criminal offense this court has ever sentenced. And you imposed a sentence of 29 and a half years on that defendant.

So, the notion that you look at this casually or with leniency, as the senator said, your record belies that.

And, in fact, what we are dealing with here is an issue which even this committee and members on the committee have been loathe to address again. The original law was written at least nine or ten, maybe longer, years ago. And the quantity of material was relevant to the sentencing. And now that we have computer access to voluminous amounts of material has raised questions, has it not, within the judiciary, as to the appropriate sentencing in today's circumstances?

[09:25:08]

This was a question that was raised before the Sentencing Commission, was it not?

JACKSON: It was, Senator. The Sentencing Commission has written at least one report, it did when I was there, looking at the operation of this guideline. As you said, the guideline was based originally on a statutory scheme and on directives, specific directives by Congress, at a time in which more serious child pornography offenders were identified based on the volume, based on the number of photographs that they received in the mail. And that made total sense before, when we didn't have the Internet, when we didn't have distribution. But the way that the guideline is now structured, based on that set of circumstances, is leading to extreme disparities in the system, because it's so easy for people to get volumes of this kind of material now by computers.

So, it's not doing the work of differentiating who is a more serious offender in the way that it used to. So, the commission has taken that into account, and perhaps even more importantly courts are adjusting their sentences in order to account for the change circumstances. But it says nothing about the court's view of the seriousness of this offense.

DURBIN: Judge, the -- there have been several news organizations that have taken a look at the senator from Missouri's charges, ABC News, CNN News, "The Washington Post" and others that have concluded that they are inaccurate and unfair to you in their conclusions.

In fact, one writer has said they are meritless to the point of unacceptable levels.

Nationally, in 2019, only 30 percent of non-production child pornography offenders received a sentence within the guidelines range. Fewer than 30 percent. Between 2015 and 2020, in the D.C. District Court, where you served, judges imposed below guideline sentences in non-production cases 80 percent of the time for the reasons you've just explained.

Judges in Missouri, the home state of the senator who has criticized your record, did so 77 percent of the time. One particular judge, whom the senator supported to become a federal judge by appointment of President Trump, unfortunately, has 77 percent record if I -- I'm sorry, let me make sure that this is accurate. Here it is. In the United States versus (INAUDIBLE), Trump appointed Judge Sarah Pitly (ph), the senator's choice for the Eastern District of Missouri, sentenced an individual convicted of possession of child pornography to 60 months, well below the 135 to 168 month sentence recommended by the guidelines. She appears to have run into the same issue, or same challenge that you have described here.

So, going forward, in terms of this issue, it seems that we at least share the burden by your interpretation as to define the statute in modern terms and in terms of technology as it exists today. Is that the way you see it?

JACKSON: Senator, Congress is tasked with the responsibility of setting penalties. Congress tells judges what we're supposed to do when we sentence. And what I'd say is that Congress has to determine how it wishes for judges to handle these cases.

But as it currently stands, the way that the law is written, the way that Congress has directed the sentencing commission appears to be not consistent with how these crimes are committed, and therefore there is extreme disparity, as you pointed out. There are judges who are varying because our ultimate charge from this body is to sentence in a way that is sufficient but not greater than necessary to promote the purposes of punishment.

DURBIN: Judge Jackson, we've heard criticism from some of your previous work representing detainees at Guantanamo Bay. In fact, for years we've heard criticisms leveled against lawyers who have provided Guantanamo detainees with legal representation.

[09:30:01]

This criticism misses one critical point, the right to counsel is a fundamental part of our constitutional sentence system.