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Supreme Court Nominee Ketanji Brown Jackson Hearing. Aired 9:30-10a ET

Aired March 22, 2022 - 09:30   ET

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

[09:30:00]

SEN. DICK DURBIN (D-IL): This criticism misses one critical point, the right to council is a fundamental part of our constitutional sentence system, even for the most unpopular defendants.

I want to thank Senator Graham, who served as an Air Force lawyer for decades, for offering his perspective yesterday. He said, and I quote, the fact that you're representing Gitmo detainees is not a problem with me, Senator Graham said. Everyone deserves a lawyer. You're doing the country a great service when you defend the most unpopular people.

And then Judge Roberts said during his confirmation hearing, it's a tradition of the American Bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients. The most famous example probably was John Adams, the chief justice said, who represented the British soldiers charged in the Boston massacre.

This sentiment is shared by lawyers across the political spectrum.

I want to give you an opportunity to address this issue, because it applies not just to Gitmo detainees, but to your work as a public defender. In terms of the wisdom, acceptability of providing counsel in those cases, and what impact it's had on you personally in terms of your rulings on the bench.

JACKSON: Thank you, Senator.

September 11th was a tragic attack on this country. We all lived through it. We saw what happened. And there were many defenses, important defenses, that Americans undertook. There were Americans whose service came in the form of military action. My brother was one of those Americans, those brave Americans who decided to join the military to defend our country. There are others of you in this body who have military service, and I honor that, to protect our country.

After 9/11, there were also lawyers who recognized that our nation's values were under attack, that we couldn't let the terrorists win by changing who we were fundamentally. And what that meant was that the people who were being accused by our government of having engaged in actions related to this, under our constitutional scheme, were entitled to representation. Were entitled to be treated fairly. That's what makes our system the best in the world. That's what makes us exemplary. I was in the federal public defender's office when the Supreme Court

-- excuse me, right after the Supreme Court decided that individuals who were detained at Guantanamo Bay, by the president, could seek review of their detention. And those cases started coming in. And federal public defenders don't get to pick their clients. They have to represent whoever comes in. And it's a service. That's what you do as a federal public defender, you are standing up for the constitutional value of representation.

And so I represented, as an appellate defender, some of those detainees. In the early days, the legal landscape was very uncertain. This had never happened before, not only the attack, but also the use of executive authority to detain people in this way, and there were a lot of questions that the court was asking. The Supreme Court had taken a series of cases to try to understand what are the limits of executive authority, which is important. All of our liberty is at stake if we don't get it right in terms of what the executive can do.

The Supreme Court has recently reaffirmed that the Constitution does not get suspended in times of emergency. And so lawyers were trying to help the court to figure out, figure out what the executives' power was in this circumstance. And as an appellate defender, I worked on the habeas petitions of some of these detainees. Me petitions were virtually identical because we had very little information. Part of the issue, at the very beginning of these cases, was that most of the factual information was classified.

[09:35:08]

So, defense counsel were appointed to represent these defendants. We had no facts. And I was making legal arguments about the circumstances. That is what gave rise to my representation, and I would just emphasize that that's the role of a criminal defense lawyer. Criminal defense lawyers make arguments on behalf of their clients in defense of the Constitution and in service of the court.

DURBIN: Judge Jackson, those of us who read about the workings of the Supreme Court realize it's a close relationship among the justices. You've seen it personally as a clerk and as an attorney yourself.

I'm going to close with one question here that comes to my mind. I was in the House of Representatives when the war on drug measure was passed 30 years ago or so. It was at the advent of crack cocaine. It scared the hell out of us. The notion of a cheap narcotic, highly addictive, destructive to mothers and their fetus. It led us to impose a sentencing disparity between crack and powder cocaine that was unprecedented, 100-1. Our notion was to come down hard, make it clear that it was a federal standard, impose that standard and stop the advance of crack cocaine.

We failed from the outset. The price of cocaine -- crack cocaine on the street went down. It's -- up instead of down. The -- I'm sorry, I did that wrong, down instead of up, and the number of users went up instead of down. And we found ourselves in a position where we were filling the federal prisons with violations primarily for possession of crack cocaine. Hundreds of thousands being incarcerated at the time.

I came here to this committee in an effort to try to change it, negotiated a revision of that measure from 100 to 1 to 18 to 1 with Senator Jeff Sessions. It was passed by the committee, by the Senate, and by the House of Representatives and signed into law by President Obama.

Then you, on the Sentencing Commission, had to consider what to do with the new guidelines coming from Congress. And you achieved a consensus. I think most people don't realize the Sentencing Commission is a pretty diverse group and very transparent.

Could you close in the last minute or so and tell me about that effort to find consensus on an issue that controversial.

JACKSON: Yes, Senator.

As you mentioned, the Sentencing Commission is a very diverse group of people who have been appointed by presidents of different parties by law. And at the time that I was on the commission, we had a range of people. Judges from different backgrounds, who had different views about the criminal justice system, but we had a directive from Congress insofar as Congress had changed the penalties, as you mentioned, related to crack cocaine. And so we worked together to make a determination about whether or not the guidelines needed to change, and, if so, whether or not to impose those changes retroactively in light of all of the evidence that you point out, all of the Congress' changes and the need to avoid unwarranted sentencing disparities, which is exactly the charge that this body has given to the commission.

And we worked together. We reached unanimous agreement that the change in the guidelines that was necessitated by the change in the statute should apply retroactively to people who have been convicted and sentenced under the prior regime and then Congress followed shortly thereafter by making it a statutory change to apply those changes retroactively.

DURBIN: Thank you, Judge Jackson.

Senator Grassley.

SEN. CHUCK GRASSLEY (R-IA): Thank you, Mr. Chairman.

Welcome, again, to our committee.

I got home last night about 8:00. The first thing I heard was my wife's opinion that you did very good in your opening statement.

JACKSON: Thank you.

GRASSLEY: She didn't have anything to say about my statement.

Also, besides the fact that we might have some votes on the United States Senate, just so you know, I'm not being rude to you, I may have to go across the hall to the Finance Committee on some issues with tariffs and down to the Agriculture Committee for some issues on rural healthcare.

[09:40:12]

Do you believe -- well, let me ask it this way. Do the First Amendment, free speech protections, apply equally to conservative and liberal protesters?

JACKSON: Yes, Senator.

GRASSLEY: OK.

Do you believe the individual right to keep and bear arms is a fundamental right?

JACKSON: Senator, the Supreme Court has established that the individual right to keep and bear arms is a fundamental right.

GRASSLEY: Could you tell me how you might go about deciding what a fundamental right is under the Constitution?

JACKSON: Well, Senator, I don't know that I can tell you that in the abstract, in the sort of way that you may have posed the question. There is precedent in the Supreme Court related to various rights that the court has recognized as fundamental. The court has some precedence about the standards for determining whether or not something is fundamental. The court has said that the 14th Amendment, substantive due process clause, does support some fundamental rights, but only things that are implicit in the ordered concept of liberty or deeply rooted in the history and traditions of this country. The kinds of rights that relate to personal individual autonomy. And they've recognized a few things this that category. And that's the tradition of the court for determining whether something is fundamental in that way.

GRASSLEY: OK.

On another subject, kind of personal to me over a long period of time and about half of this committee, but it's a controversial issue, even within this committee. I favor allowing Supreme Court hearings to be televised. What's your view on this? How would you feel about cameras in the courtroom, which about 40, 50 -- or 40 or 45 of our states allow?

JACKSON: Well, Senator, I would want to discuss with the other justices their views and understand all of the various potential issues related to cameras in the courtroom before I took a position on it.

GRASSLEY: I think that's a fair answer at this point.

I'm going to ask you about a bill that I got passed a long, long time ago. And it's something that at some level of courts, sometimes the district court, sometimes the circuit court and even once or twice at the Supreme Court they tend to -- these courts tend to do damage to a bill called the False Claims Act. This bill has brought $70 billion of fraudulently taken money back into the federal treasury since it's been passed. And courts have weakened it and Senator Leahy and I usually find ourselves having to pass legislation to say to the courts, you got it wrong. In fact, there's a very controversial bill right now before the United States Senate on that very subject. It's fought fraud and the Department of Defense, healthcare industry, the pharmaceutical industry. $70 billion is pretty important. So when you get -- if you're approved to be on the Supreme Court, and the issue of false claims comes up, I hope you think of Chuck Grassley.

UNIDENTIFIED MALE: You may want to reword that, Chuck.

GRASSLEY: It's -- it's one of -- well, and Leahy. OK.

The False Claims Act is one of the best tools that we have to fight against government fraud and to recover taxpayers' money. I've worked for decades to protect whistle-blowers who shine a light on fraud, waste and abuse in the government. So, I'd like to ask you a couple questions. And I'm going to start with a former attorney general, unnamed, once suggested that qui tam suits were, in his words, patently unconstitutional and another word he used was dangerous. He argued that it violated the appointments clause.

[09:45:04]

So, understanding that you may get a case before you on the False Claims Act, but maybe this appointment clause is sound enough, you could answer, do qui tam suits violate the appointments clause?

JACKSON: So, Senator, I am -- I am not familiar with that representation.

GRASSLEY: Could you answer -- could you answer in writing then?

JACKSON: Well, I'd be happy to do whatever. I'm just trying to assess --

GRASSLEY: I'm sorry, I shouldn't have interrupted you.

JACKSON: No, no, that's all right. Sorry.

I am trying to -- I'm not familiar with the quotation or what the attorney may have said about them. I know that the Supreme Court has considered various qui tam actions and has issued opinions in the area and has not, at least to date, found them to be unconstitutional. But I don't know if that issue has been squarely presented to the court, and I would be loathed to comment on it just because if it's being litigated, it's something I wouldn't be able to address.

GRASSLEY: Well, let me -- on the same subject, also this former attorney general also argued that qui tam suits also violate a broader separation of power principles. Are the -- can you tell me whether you think the president's constitutional powers are violated when private citizens are allowed to sue in the name of the United States, and that's what qui tam suits are all about, right, is citizens going to court.

JACKSON: Well, Senator, it's a -- it is an important concern. There are statutes that do allow for the kinds of lawsuits that you are articulating. I am not aware of impediments to those, but, again, you know, this is the kind of thing that may be litigated and I would have to look, as I do, consistent with my methodology, at any arguments that are raised about the constitutionality or lawfulness of those actions.

GRASSLEY: Remember in about all of these suits that involved the courts in making interpretations of the False Claims Act, most of them are brought by whistle-blowers. And, remember, the government would not even know about these fraudulent use of taxpayers without whistle- blowers coming forward. And they ought to be given some credit for wanting the government to do what the laws say it ought to do and spend the money the way that the Constitution -- or that the Congress implies that that money be spent.

I want to move on.

At an event at the University of Chicago School of Law in 2020, you quoted Martin Luther King Jr., who dreamt of a time when, quote, the sons of former slaves and the sons of former slave owners would be able to sit down together at the table of brotherhood, end of quote. You talked about how quickly things in the country then changed, including the civil rights laws over the next few years because of the civil rights movement. You added that, quote, less than a decade after Dr. King's words, that was the world that you inhabited.

Dr. King hoped for a country where we would all be judged by the content of our character, rather than our race. Do these quotes still reflect your views on this very important topic today?

JACKSON: Yes, Senator. In that speech I talked about my background, my upbringing, the fact that my parents, when they were growing up in Miami, Florida, attended and had to attend racially segregated schools because, by law, when they were young, white children and black children were not allowed to go to school together.

And my reality, when I was born in 1970, and went to school in Miami, Florida, was completely different. I went to a diverse public junior high school, high school, elementary school. And the fact that we had come that far was, to me, a testament to the hope and the promise of this country, the greatness of America, that in one generation -- one generation we could go from racially segregated schools in Florida to have me sitting here as the first Floridian ever to be nominated to the Supreme Court of the United States.

[09:50:26]

So, yes, Senator, that is my -- that is my belief.

GRASSLEY: And I think that it is good that the country had an opportunity to hear what you just told us about your experience.

I'm going to go to something that the chairman brought up, and I've written down the three points -- three steps you go through. No, another question, but also one that he brought up on court packing

and your opinion. And I heard what you said and you said it should be a policy question, but I want to go to something in 2013 during your hearing to be a district court judge.

Senator Coburn asked you whether you believed in the theory that the Constitution is a living document whose meaning evolves over time. You said no. In 2021, however, during your circuit court nomination hearing, you declined to answer the same question when asked why the answer -- when asked why the answer to your question of 2013 and not in 2021, in written questions, you noted that you weren't a sitting judge. So please explain to me, or describe for us, the difference between ethical rules for sitting judges versus judicial nominees who are not already judges.

JACKSON: Senator, I don't know that there are ethical rules that are different. What I'll say is, with respect to my approach to judging, there is not a label, I think, that fits what it is that I do and how I've approached my role.

As I mentioned to the chairman, I'm very acutely aware of the limitations on the exercise of my judicial power. And those limitations come in the form of adherence to the text. When you -- assuming you even get to that stage of the process that you have -- you have subject matter jurisdiction, you can reach the merits, then you are looking at the text and I do not believe that there is a living Constitution in the sense that it's changing and it's infused with my own policy perspective or, you know, the policy perspective of the day.

Instead, the Supreme Court has made clear that when you're interpreting the Constitution, you're looking at the text at the time of the founding and what the meaning was then as a constraint on my own authority. And so I apply that constraint. I look at the text to determine what it meant to those who drafted it.

GRASSLEY: On the same subject, I want to point out the difference between you and a couple people that have sat on the Supreme Court. Justice Breyer said that a structural alteration of the Supreme Court motivated by perception of political influence can only feed the perception of political influence -- that's my parenthetical -- further eroding that trust.

Justice Ginsburg also cited court packing as being, quote/unquote, a bad idea. Court packing is creating new seats for political purposes for a president to appoint more judges.

Do you agree with Justice Breyer and Justice Ginsburg that court packing is a bad idea? Before you respond, I'd like to say that you say this question should be left to Congress as a policy issue. I reiterate that sitting Supreme Court justices have spoken on that matter, so I don't think it would be inappropriate for you to do if other people sitting there have said that it's a bad idea.

JACKSON: Well, respectfully, Senator, other nominees to the Supreme Court have responded, as I will. [09:55:07]

GRASSLEY: OK.

JACKSON: Which is that it is a policy question for Congress. And I am particularly mindful of not speaking to policy issues because I am so committed to staying in my lane of the system because I just am not willing to speak to issues that are properly in the province of this body.

GRASSLEY: OK.

Then I would interpret your answer, and you don't have to respond to this, but I think you're saying Breyer and Ginsburg should not have stated their views on that issue.

During his opening statement yesterday, one member of this committee suggested that the Supreme Court has been bought by dark money groups. Do you agree that the Supreme Court has been bought by dark money groups?

JACKSON: Senator, I don't have any reason to believe that that's the case. I have only the highest esteem for the members of the Supreme Court, whom I hope to be able to join if I'm confirmed, and for all of the members of the judiciary.

GRASSLEY: Thank you for that answer.

I'm going to go to international law.

During an ABA panel on international law last year, Justice Breyer said that as a federal judge, quote, you can't do your job properly, end quote, without considering international law and, quote again, in some cases, and it's a growing number, end of quote, and I assume a growing number of opportunities to use international law.

In 2018 op-ed, Justice Breyer said that, quote, the best way to preserve American values may well be to take account of what happens abroad, end quote.

Under what circumstances is it appropriate to consider international law when interpreting our Constitution?

JACKSON: Thank you, Senator.

I have nothing but the highest esteem and respect for my former boss, whom I've spent the better past -- better part of the past couple decades calling my justice, having clerked for him.

But I do think that the use of international law is very limited in our scheme, in our judging. There are certain cases in which it is relied upon where Congress directs or where the standards are such the case involves a treaty, for example, and you have to interpret international law in order to be able to address it. But there are very, very few cases, I think, in which international law plays any role, and certainly not in interpreting the Constitution. GRASSLEY: I'm -- I think you probably have answered my next two

questions, but if you say you have nothing to add, I'll still want to ask the questions.

Do you think it's appropriate to look to international law when interpreting enumerated and unenumerated constitutional rights?

JACKSON: No, Senator.

GRASSLEY: Which specific -- again, I think you've answered this, but I want to ask it anyway. Which specific constitutional clauses or rights has the Supreme Court held that can be interpreted by looking to international law?

JACKSON: I'm not aware of any that are properly illuminated by reference to international law.

GRASSLEY: Yes (ph).

Now I want to go to a question that Senator Durbin asked. I'll probably go a little more, but I remember when -- this is about your judicial philosophy and you made three points, the three steps you take to go through a case and apply the law, and you say your methodology is limited power and stay within your lane.

I'd like to ask you -- well, you've served on the district court for several years and spent eight months on the D.C. Circuit. During yesterday's opening statement we heard a lot about the importance of judicial philosophy. In your own words, you've describe that, so you don't have to go through that again with me.

[10:00:04]