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

Aired March 22, 2022 - 10:00   ET

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

[10:00:00]

SEN. CHUCK GRASSLEY (R-IA): You've described that so you don't have to go through that again with me. But if Congress writes a law that does not explicitly allow private parties to sue, do you believe that the federal courts have the authority to create implied causes of action? And I'd like to have you elaborate if you say yes to that.

JUDGE KETANJI BROWN JACKSON, SUPREME COURT NOMINEE: I would say that as a general matter, no, Senator. I mean, our obligation as judges is not to create policy. And if Congress has enacted a statute that establishes a cause of action or restricts causes of action, then as a general matter, I don't think that courts can impose one.

Now, you know, I'm saying generally because there may be circumstances that I'm not thinking of. I know that the Supreme Court has, in very narrow circumstances at times, discussed implied causes of action, but I think the charge of the judge is to impose the law as written.

GRASSLEY: There's 115 justices that serve before you, if you are approved by the Senate. Is there any of them now or in the past that has a judicial philosophy that most closely resembles your own?

JACKSON: You know, I haven't studied the judicial philosophies of all of the prior justices. I will say that I come to this position, to this moment as a judge who comes from practice that I was a trial judge and my methodology has developed in that context.

I don't know how many other justices other than Justice Sotomayor have that same perspective, but it informs me with respect to what I understand to be my proper judicial role.

GRASSLEY: What aspect of your record as a judge you believe have been the most important for the good of the country?

JACKSON: Well, I think that all of my record is important to some degree because I think it clearly demonstrates that I'm an independent jurist, that I am ruling in every case consistent with the methodology that I've described, that I'm impartial. I don't think that anyone can look at my record and say that it is pointing in one direction or another, that it is supporting one viewpoint or another. I am doing the work and have done the work for the past ten years that judges do to rule impartially and to stay within the boundaries of our proper judicial role. GRASSLEY: Let's go to immigration. Congress gave the attorney general, quote/unquote, sole and unreviewable discretion, whether expedited removal would apply to both an alien who has not been paroled or admitted to the United States. You decided a case called Make the Road New York where you seem to agree Congress gave the Department of Homeland Security sole and unreviewable discretion to decide which illegal immigrants would be subject to expedited removal.

But you still went on to review the department's decision. In fact, you issued a nationwide injunction blocking Department of Homeland Security from removing illegal immigrants who have been in the country for less than two years.

In that hearing, you told us that if the text was clear, that ended the question. The law specifically says that Homeland Security, not the courts, was responsible for making the decision. Could you please explain why you believed a federal court could review something Congress called unreviewable?

JACKSON: Thank you, Senator, for allowing me to address that opinion in my analysis with respect to it.

[10:05:01]

As you said, Make the Road was a case involving a challenge to expedited removal, which was a way in which Congress had given me authority to homeland -- to the Department of Homeland Security to make a decision about how to deport people who are non-citizens.

Prior to the challenge that I heard, the Department of Homeland Security, since it received that authority several decades ago, had decided that people who are in this country for up to 14 days and are found within 100 miles of the border are subject to expedited removal.

The challenge that I heard involved the department's sudden shift to a determination that expedited removal would be applied to anyone who was found anywhere in the country and who had been here up to two years.

Importantly, the challenge was not about the actual determination. The challenge was about the procedures that the agency undertook to make that determination. And so the statute said, as you rightly pointed out, that the agency had sole and unreviewable discretion to decide. And in interpreting that, I took into account the language of that statute and the language of another statute that Congress has enacted to direct agencies with respect to the manner in which they exercise their discretion.

So, I said, and I believed, that sole meant that the Department of Homeland Security was the only agency who got to make this determination as to how many months a person should be in the United States, and unreviewable meant it was final. Once the agency decided, then there was no ability to review substantively their determination.

And I should say that importantly, the statute that Congress enacted gave the agency the discretion to make this determination between 0 and 24 months. There's a limit in the statute. It says Congress -- excuse me, Department of Homeland Security, you get to decide where between 0 and 24 months a person who's been in this country can be subject to expedited removal. So, I read the statute. DHS gets the sole ability to make that decision. DHS makes that decision and it's final.

What wasn't clear to me based on that language was whether Congress intended to preclude its procedural requirements for the exercise of agency discretion. And in the D.C. Circuit, there was precedent that indicated even when Congress gives a great deal of discretion to an agency, procedural requirement may still apply. It is presumptive that the APA applies, meaning that an agency can't act arbitrarily and capriciously when it undertakes to exercise discretion. It has to do certain things in order to make the determination that Congress has given it.

I looked at those statutes -- oh, I'm sorry. I looked at those statutes and I considered the canons of construction that say that statutes should be read harmoniously, that as a court, you're supposed to understand that Congress has directed, sometimes in more than one statute, what is supposed to happen.

And so I read them together to mean that the court could still do what it almost always does in a case involving a challenge to the manner in which the agency makes its decision and, in fact, I thought, as I say in my opinion, that Congress intended for the APA to apply because it had not excluded it, which it had done expressly in other parts of the INA, it had not excluded it here, and it made sense to require the agency to use its expertise.

If Congress wanted the agency to act arbitrarily in picking a number, Congress could have done that.

[10:10:03]

Congress said, you can do it up to 24 months. It could have randomly picked a number, but it was giving it to the agency, I thought, and reason to precisely because it wanted the agency to use its expertise, to do its research and to figure out what amount of time is sufficient.

And so it was important, I thought, to lay that out in the statute and I determined that both of those statutory directives of Congress should apply.

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

Senator Leahy.

SEN. PATRICK LEAHY (D-VT): Thank you, Chair Durbin.

Judge, congratulations again on your nomination to our nation's highest court. You're an impressive jurist. I hope the broader public sees that and enjoy the opportunity to meet your family here yesterday. And I though before I begin my questions, I was going to respond to something the junior senator from Texas said yesterday. He suggested Democrats exacted a political agenda by opposing the nominations in Judge Gorsuch to the Supreme Court. I kind of chuckle at that because along with others, others repeatedly and clearly stated substantive concerns with Justice Gorsuch's nomination. I explained my votes on the record. There's no political agenda.

I contrast that with Republicans' treatment of then-Judge Merrick Garland. We're still waiting today for Republicans to explain on the record what kind of substantive concerns they had with Merrick Garland. They blocked him for over a year and would not even allow a vote on his nomination, apparently because of a politically-driven agenda.

All I'm saying is let's make history this week but let's not rewrite it. This is a historical time.

Judge Jackson, one of the topics we discussed in our meeting was our respective experiences. You as a former federal public defender, myself as a prosecutor, as a federal public defender here in Washington, you were assigned to and then represented clients who couldn't otherwise afford a lawyer. One of the valuable lessons I learned as a prosecutor was this.

For our criminal justice system to function properly, you have to have skilled, dedicated lawyers on both sides, both the prosecutor and the defense attorney. It's equally essential for judges to have a nuanced and balanced understanding of our criminal justice system if we're going to have justice done.

Now, it's really concerning, it's confusing to some view your background as a federal public defender some kind of a liability. Those of us who spent time in courtrooms know you have to have both a skilled prosecutor and a skilled defender. I believe that -- in fact, don't think of it as a liability. I think it's going to be a major asset to you. I think it should be welcome on the Supreme Court.

In fact, if you're confirmed to the court, I look back over, you're going to be the first former federal public defender on the court. You're going to be the first nominee since Justice Thurgood Marshall with a significant background in criminal defense. That's pretty impressive.

So, all of us should want that represented on the Supreme Court because decisions on the Supreme Court can have a lasting impact on our criminal justice system.

My question is this. I believe that your experience as a federal public defender has made you a better judge, helped you maintain impartial and balanced perspective in criminal and in other cases and I assume you would agree with that.

JACKSON: Yes, Senator. I think that experience in the criminal justice system, whether, as you say, on the prosecution side or the defense side, having actual experience is an asset as a judge. You understand the way the system works.

[10:15:01]

And as a defense counsel, you have interacted with defendants in a way that as a judge, at least as a trial judge, I thought was very beneficial.

One of those ways is it helped me to develop a sense of the need to communicate directly with defendants and it didn't change, I think, in any way the outcomes of the cases when I was a trial judge. But I understood from my time as appellate defender that a lot of defendants go through the system and don't really understand it.

And the problem with that from our society's standpoint is that when people go through the criminal justice system and don't have a good understanding, they tend to not take responsibility for their own actions. They tend to be bitter and feel as though the justice system has wronged them. And so while they're doing their time, rather than reflecting on the fact that this is the consequence that they have to face for actually committing a crime, instead of doing the work to rehabilitate themselves, they're, you know, focusing on how wronged they are, how victimized they feel.

And so what I decided as a trial judge was that I was going to make sure that everyone who was in my courtroom, and especially the defendant, understood all of the procedures that we were going through, all of the steps. I spoke directly to them. I asked them, do you understand what's happening because I wanted them to know.

And then even perhaps more importantly, as I said about my child pornography cases, I focused on the harms of the behavior that was at issue. When I sentenced the defendant, I made clear in every case, here is the problem. This is what you've done. Here is the damage to our society. And I don't know that I would have done that if I had not been a criminal defense lawyer.

LEAHY: And I was getting to the fact that you have that experience, it's obvious you don't get -- as a public defender, you don't get the right to -- you don't get to choose your clients. It's not like you're going out there picking and choosing. You're told, you're going to defend this person. But they're given that right under the Sixth Amendment. And we all remember the bar, judge, or public defender, you take an oath to uphold the Constitution and the Sixth Amendment is a pretty important part of it, wouldn't you say.

JACKSON: Absolutely, Senator.

LEAHY: And it's also pretty important part for indigent defendant, is that not correct?

JACKSON: That is correct, especially for indigent, because they're determined to not be able to afford counsel. And as you said, Senator, for a judge, it's crucial that you have arguments that are being made and presented on both sides of the issue. That is what allows for judges to reach just results in cases and it's what makes our system so exemplary. LEAHY: And also guarantees that our Constitution is going to be followed.

You know, I think it's important you went around with Senator Doug Jones, who's highly respected in the Senate, both sides of the aisle, but you've got to meet other senators. I was glad you came to spend time in my office and you note in your public remarks that the White House, when you were nominated, that you had been -- your parents were married for 54 years and both public servants in their own right, they are proudly watching you being announced by the president.

And most watching the last couple of days, they're proudly watching you here as all the members of your family. Your younger brother became a police officer, detective in Baltimore before serving the army, two tours of duty in the Middle East, two uncles who served as police officers.

[10:20:01]

So, I'm not really surprised that you understand law enforcement. The National Fraternal Order of Police has expressed strong support for your nomination. In fact, their letter dated February 25th, 2022, they said you have considered the facts and applied the law consistently and fairly in a range of issues and then went on to say there was no doubt you have the temperament, intellect, legal experience and family background to earn this appointment. And he added, we are assured that should she be confirmed, she'd approach her future cases with an open mind between issues related to law enforcement fairly and justly.

Chair Durbin, I'd ask that the letter for the Fraternal Order please be included in the record.

GRASSLEY: No objections.

LEAHY: Now, that's a statement from the largest law enforcement liberal organization in the United States. What do you say to people who say you're soft on crime or even anti-law enforcement because you accepted duties as a public defender?

JACKSON: Thank you, Senator. I would make three observations in response to those critiques. The first is that as someone who has had family members on patrol and in the line of fire, I care deeply about public safety. I know what it's like to have loved ones who go off to protect and to serve and the fear of not knowing whether or not they're going to come home again because of crime in the community.

As you said, my brother patrolled the streets of Baltimore and I had two uncles who were career law enforcement, including one who became the chief of police of the city of Miami Police Department in the 1990s. So, crime and the effects on the community and the need for law enforcement, those are not abstract concepts or political slogans to me.

The second observation that I would make is that as a lawyer and as a citizen, I care deeply about our Constitution and about the rights that make us free. As you say, criminal defense lawyers perform a service and our system is exemplary throughout the world precisely because we ensure that people who are accused of crimes are treated fairly. It's very important to me in that capacity as a lawyer and as a citizen.

I'm sorry, I was just going to say, the third thing I would say is as a judge. As a judge, I care deeply about the rule of law. And I know that in order for us to have a functioning society, we have to have people being held accountable for committing crimes, but we have to do so fairly, under our Constitution.

As a judge who has to decide how to handle these cases, I know it's important to have arguments from both sides, to have competent counsel. And it doesn't mean that lawyers condone the behavior of their clients. They're making arguments on behalf of their clients, in defense of the Constitution and in service of the court. And it is a service.

LEAHY: I know in our conversation, I had mentioned my own experience as a prosecutor. I wanted the best defense attorney on the other side.

POPPY HARLOW, CNN ANCHOR: All right. We are going to continue to monitor the questioning here of Supreme Court Nominee Judge Ketanji Brown Jackson. This is Democratic Senator Patrick Leahy questioning her.

We're going to get a quick break in and then we'll be back with our live coverage.

(COMMERCIAL BREAK)

[10:25:00]

HARLOW: All right. Let's take you back now to the Supreme Court nomination hearing for Judge Ketanji Brown Jackson.

JACKSON: -- around the country had started taking on these cases because there were lots of people who needed representation, and so pro-bono practices were receiving requests, usually through non- profits.

And one of the individuals that I had represented as a defender ended up being assigned to my firm unbeknownst to me. So, I arrive at my firm, and the partners realize the same person was someone that, according to the docket, I had previously represented and they asked if I would review some of his materials and continue the representation.

[10:30:07]