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Senate Hearing For Supreme Court Nominee Ketanji Brown Jackson. Aired 10:30-11a ET

Aired March 22, 2022 - 10:30   ET

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

[10:30:07]

JUDGE KETANJI BROWN JACKSON, SUPREME COURT NOMINEE: That was the only person that I represented in the context of my private firm who was a detainee. I worked on a couple of habeas briefs for judges and a variety non-profits, including the Rutherford Institute, the Cato Institute and the Constitution Project, who were all interested in making arguments to the Supreme Court that was considering these very novel legal issues.

SEN. PATRICK LEAHY (D-VT): You know, I sit here and I think of the 20 Supreme Court nominees I've gotten to vote on over my years here, and I think of the remarkable praise you got from the former Republican House speaker, Paul Ryan, who most of us know well. He did mention his politics may be different than yours but his praise for your character, for your character, for your integrity is unequivocal. That's powerful praise.

And I think it goes to really fundamental point and that's this. One doesn't have the same political beliefs or ideologies as a judicial nominee to recognize their integrity and intellect. When I voted to confirm Chief Justice John Roberts to the Supreme Court, I guessed that vote knowing very well that he and I would disagree on many policy and political issues, but I voted yes because I believed he had what it takes to serve as an impartial, fair chief justice who would uphold the rule of law and I wanted to take out the partisan politics.

Now, what would you say to people whose politics may be different than yours, like Speaker Ryan who has endorsed you, what would you say to those people about your readiness to serve as an even-handed, unbiased Supreme Court justice?

JACKSON: Thank you, senator. I would say that I am committed to serving as an even-handed Supreme Court justice if I'm confirmed by this body. And I have a record over the past decade, that's precisely how I've treated all of my cases. And I've been serving in the District of Columbia both as a trial judge and as an appellate judge and we see some of the most politically contentious issues. My record demonstrates my impartiality.

LEAHY: Well, along with that, because I watched this court. I used to go there as a young law student and sit in the back and just watching it. I continue to watch it. I see the chief judge of the federal district court, Judge Beryl Howell, who I was privileged to have her serve as my chief counsel on this committee and learned from her then, I learned from her now.

But I also -- as a lawyer, I hear a lot of talk about reversal rates. Now, no judge has goes without the reverse somewhere. If they never reverse, they haven't heard many cases. But your time in the D.C. District Court, less than 2 percent of your more than 550 cases were reversed, considering the fact that the D.C. Circuit reverses an average of 13 percent of the cases in years. You've got a pretty good record. But what does a judge who's been reversed, what do they take from that reversal? What do they -- or what should they think about?

JACKSON: Well, you obviously look at it very carefully. What it means is that a panel of judges who have reviewed what you determined for some reason has decided differently.

[10:35:02]

And there are times when panels of judges decide differently because they are making a new statement about the law or they're establishing a standard that had not previously been the case in the area. And so you learn, oh, this is a new standard now that I need to apply.

There are times when you disagree, that people can disagree about the way in which the law works and that's why we have panels, because people have different -- judges can have different perspectives and, in good faith, reach different results.

And so, obviously, when you're on the trial court, the Court of Appeals is binding and they tell you in this case, no, we're going to -- the result is something different, and so you learn.

LEAHY: You know, anytime I had an opportunity to argue cases at the appellate level, I don't think I ever thought about who nominated or appointed the judges as before. I just want to know what I would think about their experience. And I would think about that when I made the argument.

Now, I don't think I've ever had the opportunity to argue before anybody with your breadth of legal experience here. You served as a federal trial court, a federal appellate court judge for almost ten years. You clerked at all three levels of the federal judiciary. You practice law as a federal public defender in private practice and I know we confirmed you as a member of the U.S. Sentencing Commission.

This may seem like an easy question, but I just ask you, you've had such broad experience, but they're all different in a way. How does that shape your approach in deciding a case?

JACKSON: Thank you, Senator. As I mentioned at the beginning, I have a methodology that I apply when I'm deciding cases, and maybe my various experiences helped me to get to the point of understanding the importance of impartiality, staying in my lane as a judge because the prior experiences were different roles in the system, because I saw the different roles. I think I have a good appreciation of what it means to be a judge and the limitations on my own authority.

The Sentencing Commission was a policy-making branch of the judicial branch. The commission and the commissioners develop sentencing policy. Congress delegated that authority to create the commission, and so they're doing the policy work, gathering data, making recommendations. That is totally different than the work that I do as a judge. Advocacy on behalf of your clients, making critical arguments, the best arguments you can come up with, is a service to the court but it's a totally different thing than operating as a judge.

And so I think that having had those various experiences, I now am really mindful of my role and limitations in the judicial branch.

LEAHY: Well, and the president referring to you as a consensus noter, and I think he was also thinking of your predecessor, Justice Breyer, in that regard. And I think over the years how important that is even in a body like the U.S. Senate. I see Senator Tillis here. He and I worked together on I.P. issues, Senator Cornyn and I on Freedom of Information issues, so did Grassley and I on other issues and Graham and I on various issues. And, usually, in the Senate, at least, if we work across the ideological spectrum, you get better results.

[10:40:08]

So, let me ask you. How would you describe your approach to building consensus on cases related to issues like intellectual property that are less likely to break along traditional ideological lines?

JACKSON: Thank you, thank you, Senator. One of the things that I was able to do when I worked on the sentencing commission was work with people who had very different perspectives than I did about the criminal justice system and come to consensus.

It's very important, as you've said, to try to find common ground. And Justice Breyer was such a wonderful model, a role model for that kind of ability as a Supreme Court justice. It's something I learned from him and something I tried to model in my work on the commission, that I tried to model in my work as an appellate judge and that I would model or do if I were confirmed to the Supreme Court.

LEAHY: Thank you, Chair Durbin.

SEN. DICK DURBIN (D-IL): Thanks, Senator Leahy. We have now Senator Graham.

SEN. LINDSEY GRAHAM (R-SC): Thank you, Judge. Again, congratulations.

I want to talk to you a little bit about family and faith, because in your opening statement. And the people who introduce you to the committee, that was a very glowing praise of you as a person, a good friend. You have a wonderful family. You should be proud in your faith that matters to you.

What faith are you, by the way?

JACKSON: Senator, I am protestant.

GRAHAM: Okay. JACKSON: Non-denominational.

GRAHAM: Okay. Could you fairly judge a catholic?

JACKSON: Senator, I have a record of --

GRAHAM: I need the answer, be it --

JACKSON: -- judging everyone.

GRAHAM: I believe you can. I'm just asking this question because how important is your faith to you?

JACKSON: Senator, personally, my faith is very important, but, as you know, there's no religious test in the Constitution under Article VI and --

GRAHAM: There will be none with me.

JACKSON: And it's very important to set aside one's personal views about things in the role of a judge.

GRAHAM: I couldn't agree with you more and I believe you can.

So, on a scale of one to ten, how faithful would you say you are in terms of religion? You know, I go to church probably three times a year, so that speaks poorly of me. Or do you attend church regularly?

JACKSON: Well, Senator, I am reluctant to talk about my faith in this way just because I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views.

GRAHAM: Well, how would you feel if the senator up here say your faith, dogma lives loudly within you and that's of concern? How would you feel if somebody up here on our side said, you know, you attend church too much for me or your faith is a little bit different to me and they would suggest that it would affect your decision? Would you find that offensive?

JACKSON: Senator, I am --

GRAHAM: I would if I were you. I found it offensive when they said it about Judge Barrett. The reason I ask these questions is I have no doubt that your faith is important to you and I have zero doubt that you can adjudicate people's cases fairly if they're an atheist. If I had any doubt, I would say so.

But the only reason I mention this, Judge, you're reluctant to talk about it because it's uncomfortable. Just imagine what would happen if people on late night television called you an f'ing nut, speaking in tongues because you've practiced of the catholic faith in a way they couldn't relate to or found uncomfortable.

So, Judge, you should be proud of your faith. I am convinced that whatever faith you have and how often you go to church, it will not affect your ability to be fair. And I just hope going in the future that we all can accept that and that Judge Barrett, I thought, was treated very, very poorly. So, I just wanted to get that out.

Let's talk about family. Do you know Janice Rogers Brown?

JACKSON: Yes, I do know her.

GRAHAM: How do you know her?

[10:45:00]

JACKSON: She was a judge on the court that I now serve. We didn't overlap and I'm struggling to remember whether I ever met her, but she was a judge on the Circuit Court.

GRAHAM: Right, and you were a district court judge, is that right?

JACKSON: I was, but I don't know whether she had retired at that time.

GRAHAM: I think you were. Are they in the same building?

JACKSON: They are in the same building. They are --

GRAHAM: So, you really don't know her.

JACKSON: I know of her, yes.

GRAHAM: What do you know of her? What's her reputation?

JACKSON: I know that she's a very well respected judge on my circuit.

GRAHAM: Okay. And in terms of family issues, the daughter and granddaughter of sharecroppers, she was raised in Alabama under Jim Crow. Despite this adversity, she threw herself into law school as a single working mother. That's pretty impressive, isn't it?

JACKSON: Yes, Senator.

GRAHAM: Your background is very impressive. You seem to have a great family. If family mattered, we would not have done to her what was done to her here in the United States Senate. Do you realize that she was filibustered for two years when she was appointed to the D.C. Circuit?

JACKSON: I didn't know that.

GRAHAM: Did you know that Joe Biden actively filibustered Janice Rogers Brown?

JACKSON: I did not know that.

GRAHAM: Did you know that he told Face the Nation, if Bush nominates her for the Supreme Court, I can assure you that would be a very, very, very difficult fight and she probably would be filibustered. Is that news to you too?

JACKSON: Yes. GRAHAM: Okay.

Now that you know that, how do you feel about it?

JACKSON: Senator, I can't speak to something that I just learned two seconds ago in your conversation to with me.

GRAHAM: Fair enough. You're in the Black Law School Society, right?

JACKSON: The Black Law Student Association.

GRAHAM: Okay. Okay, the Black Law Student Association.

JACKSON: Yes.

GRAHAM: You're a member at Harvard?

JACKSON: Yes.

GRAHAM: And some time, the Mr. Jeffries thing, you remember that whole dust-up? You've got --

JACKSON: Only in preparation for this, and I think I was in college at the time. It was my senior year of college.

GRAHAM: Okay. So, you weren't actually in the group when he was indicted to speak?

JACKSON: I don't know which group invited him to speak. I was a black student at Harvard both in the Harvard Undergraduate Black Students Association and the Harvard Law School Black Students Association.

GRAHAM: Right. Do you remember going to a speech given by Mr. Jeffries? I think he's the uncle of Hakeem Jeffries.

JACKSON: I did not go to his speech given by Mr. Jeffries.

GRAHAM: Okay. Are you now familiar with the press reports about what Mr. Jeffries' views are?

JACKSON: Just in preparation for this.

GRAHAM: Okay. And do you associate yourself with those views?

JACKSON: I do not, Senator.

GRAHAM: As a matter of fact, he's been called by many as very anti- Semitic. He called you skunk who stink up the place. You don't agree with that, do you?

JACKSON: I do not, Senator.

GRAHAM: And it would be wrong for me or anyone else to hold his statement against you because he spoke at some group you remember of, right?

JACKSON: Senator, I don't have -- yes.

GRAHAM: It would be, yes, that's right. That's the right answer. I thought that was the right answer with Judge Alito, when they made a big deal about some group he was in that had views that he didn't agree with and tried to call him basically a racist and found out that Senator Kennedy, God rest his soul, would beat the crap out of the guy for being part of some supper club that was actually in some organization called The Owl that didn't admit women.

So, I guess the reason I'm bringing all this up is it gives me a chance to remind this committee and America there are two standards going on here. If you're an African-American conservative woman, you're fair game to have your life turned upside-down, to be filibustered, no matter how qualified you are, and if you express your faith as a conservative, all of the sudden, you're an f'ing nut. And we're tired of it. And it's not going to happen to you.

But it just appalls me that we can have such a system in America that if a conservative woman wants to stand out and say, I love my family just as much as you love yours, and my faith means just as much to me as it does you, then all of a sudden, there comes some kind of weirdo. And a guy like Justice Alito, who is in the same type of situation you're in, being in a group, doesn't agree with everything they do or what people may say at a meeting he didn't go, all of a sudden, they own it.

[10:50:03]

This stuff needs to stop. Our people deserve better respect and I hope when this is over, people will say you were at least well treated even if we don't agree with you.

So, now let's talk about Gitmo. Being a public defender, did you consider that rewarding?

JACKSON: Senator, yes, I did because public service is very important to me. It is an important family value. It is something that now I dedicated my career to.

GRAHAM: Yes. And do you think it's important to the system that everybody be represented?

JACKSON: Absolutely. It's a core constitutional value.

GRAHAM: You'll get no complaint from me. That was my job in the Air Force. I was an Air Defense Counsel. I represented anybody that came in the door, whether I liked them or not. I did my best. Is that what you did?

JACKSON: Yes, sir.

GRAHAM: Okay, good.

Now, so the American people deserve a system where everybody's represented, whether you like them or not, and anybody who takes up that cause, no problem with me. You're just doing your job and I think you make our country stronger.

But there's the other side of the story that never gets mentioned when I talk about Gitmo. The American people deserve a system that can keep terrorists off the battlefield. They deserve a system that understands the difference between being at war and in crime. Do you consider 9/11, you said a terrible tragic event, would you consider it an act of war?

JACKSON: Yes, Senator.

GRAHAM: Okay. I would too. I think it was an act of war with Al Qaeda and associated groups against the people of the United States.

So, as you rightfully or proud of your services as a public defender and you represented Gitmo detainees, which is part of our system, I want you to understand and the nation to understand what's been happening at Gitmo. What's the recidivism rate at Gitmo?

JACKSON: Senator, I'm not aware.

GRAHAM: It's 31 percent. How does that strike you?

JACKSON: Any --

GRAHAM: Is that high, low, about right?

JACKSON: I don't know how it strikes me overall.

GRAHAM: It strikes me. It strikes me as terrible.

JACKSON: Yes, that's what I was going to say.

GRAHAM: Okay, good. We found common ground.

Of the 229 detainees released from Gitmo -- 729 released, 229 have gone back to the --

POPPY HARLOW, CNN NEWSROOM: All right. We are continuing to listen to Senator Lindsey Graham questioning Supreme Court Nominee Judge Ketanji Brown Jackson. We're going to get a quick break in. We'll be right back with more of this hearing.

(COMMERCIAL BREAK)

[10:55:00]

HARLOW: All right, let's take you back now, Senator Lindsey Graham questioning Supreme Court Nominee judge Jackson.

JACKSON: And as a nominated Supreme Court, that's the kind of issue. The Supreme Court did not address that issue. They -- in fact, the case became moot.

GRAHAM: Did you organize an effort to get 20 judges to file a brief on the Supreme Court decision?

JACKSON: Not on that issue, no, Senator.

GRAHAM: Any other issue?

JACKSON: Yes, senator.

GRAHAM: Okay. Did you actively go out and recruit 20 judges to help you file a brief on another issue regarding detention?

JACKSON: Not technically.

GRAHAM: What do you mean by that?

JACKSON: What I mean is that I was at Morrison & Foerster, which was my law firm in the Supreme Court and appellate group. One of the partners at Morrison & Foerster was a former federal judge who wanted to make this argument and who said, we -- I have former federal judges who are friends of mine who would like to join with me to make this argument. So, I worked with her, the partner at my firm, who was a former federal judge to make --

GRAHAM: That was her idea to get former judges to write this, not yours?

JACKSON: Yes.

GRAHAM: And you just helped in the implementation of that idea?

JACKSON: So, Senator, as a member of the Supreme Court and appellate group in a law firm, that is the practice.

GRAHAM: Right.

JACKSON: Amicus practice, yes.

GRAHAM: No, I'm asking was, it wasn't your idea, it was somebody else's?

JACKSON: Yes.

GRAHAM: Okay. So, now, there are people still held at Gitmo today. Do you understand that?

JACKSON: Yes.

GRAHAM: Okay. What system is in place regarding their future?

JACKSON: I am not aware of the system right now. I'm not sure exactly what you mean.

GRAHAM: Well, let me tell you what it is.

JACKSON: Yes.

GRAHAM: There's a periodic review process made up of an interagency where they go through the files of these folks and they determine whether or not they still present a threat to the United States or the world at large. And I think it's six months, maybe a year, but that goes on at least on an annual basis.

[11:00:05]