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Supreme Court Confirmation Hearings. Aired 2-2:30p ET

Aired March 22, 2022 - 14:00   ET

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

[14:00:00]

JUDGE KETANJI BROWN JACKSON, SUPREME COURT NOMINEE: Federal regulation of interstate commerce and the growth of the economy in this country.

But, over time, the Supreme Court has made clear that the Commerce Clause limits the federal government, that there's limited authority under the Commerce Clause. The state of the law now is such that the federal government through the Commerce Clause is only permitted to regulate channels of interstate commerce, instrumentalities of interstate commerce, and activities that substantially affect interstate commerce.

And with respect to the third category, the Supreme Court has made clear in the Lopez case and in Morrison that noneconomic activities are not covered by Commerce Clause authority. And in the NFIB case, the ACA case, the Supreme Court made clear that inactivity is also not covered and not authorized under the Commerce Clause.

SEN. MIKE LEE (R-UT): Right.

And most of the -- most of the items that I identified in my question, in fact, all of them, I believe, would fall under the category of channels and instrumentalities of interstate commerce. We're dealing with interstate airways -- airwaves, waterways, networks, things like that, things that depend, for their existence, for their effectiveness, on their operation interstate and such that they couldn't -- no one could effectively regulate them and preserve their core function unless that was federal.

Those fit into the category of the channels and instrumentalities.

With the third item that you described, the substantial effects, interstate commerce, is there much of a limiting principle there? I mean, with -- you referred to Lopez and Morrison and NFIB vs. Sebelius. To my knowledge, those are the only three cases the Supreme Court has decided since its ruling in 1937 on NLRB vs. Jones and Laughlin Steel, which essentially created the modern substantial effects case, the modern substantial effects standard.

Those are the only three instances in which the Supreme Court identified as outside the Commerce Clause authority something that Congress had enacted. Are these meaningful constraints, in your view, or are they examples of Congress just getting reckless and sloppy in the way it drafted things? Some have argued, for instance, that as long as Congress doesn't get

reckless and sloppy, it can do whatever it wants under those. Do you have any view on that?

JACKSON: Well, these cases come through the courts, so I will be general.

The fact that Congress is limited in its authority under the Commerce Clause is established law. It is a fundamental principle of our constitutional order. And those limits that the Supreme Court has recognized do carve out categories of activity that Congress is not permitted, the federal government is not permitted to regulate. Noneconomic activity is a category. Inactivity is a category.

LEE: Now, the Supreme Court has also, through the Commerce Clause, established rules for things that the states may not do. This is referred to as the so-called dormant Commerce Clause.

The dormant Commerce Clause acknowledges the power of Congress, the exclusive domain of Congress as being regulating interstate commerce, but there's no federal cause of action to allow for the invalidation of a state law under the Commerce Clause.

It's been something that's been adopted by the courts. Is that an appropriate exercise of the court's judicial power, or does that amount to de facto legislation the part of the courts?

JACKSON: Well, Senator, I wouldn't characterize it.

I know that that's what the Supreme Court has permitted. The dormant Commerce Clause is a principle that supports the interstate nature and regulation and authority of the federal government. And so states are not permitted, under that doctrine, to discriminate against other states, to preference their own commerce in a way that interferes with interstate commerce.

[14:05:06]

LEE: I want to turn back for a moment to a line of inquiry you had with Senator Durbin earlier today when you were talking about your sentencing in these child pornography cases.

I want to make sure that I understand your answer there. If I understand it, you were making the argument that your concern was that the laws in this area didn't adequately take into account the transfer of these materials by electronic means, to be retransmitted, received, and stored through computers? Is that my -- am I understanding that correctly?

JACKSON: Well, Senator, my -- the point that I was making was that the Sentencing Commission, back when I was part of it and even since, tasked with the responsibility to evaluate and make recommendations and look at the data and information about cases, has looked at the operation of the child pornography guideline, not so much the statute, but the guidelines, which the Congress has tasked the Sentencing Commission with developing. And there are aspects of the child pornography guideline that Congress and legislation has required. It required certain enhancements to be included in the guideline. And some of those enhancements, the data is now revealing, don't take into account the change in the way that this horrible offense is now committed.

LEE: But the fact that it's easier to commit the offense shouldn't diminish the severity of the punishment, should it, I mean, any more than the more widespread availability of certain drugs, the more widespread availability of certain weapons might -- surely, you wouldn't argue for a lower sentence when certain things become easier in other criminal contexts.

So why is this one different?

JACKSON: Well, the sentencing enhancements that are in the guidelines are designed to help courts differentiate between different levels of culpability.

Congress will say, this is an offense, whatever it is, and the maximum penalty is X, and, in most cases, the range is between zero and something like 20 years that Congress gives when it establishes a penalty. The point of the guidelines is to help judges figure out where in that range, between zero and 20 years, a particular defendant should be sentenced.

And the guidelines have gradations in them that relate to various aspects of the commission of the crime.

(CROSSTALK)

LEE: Go ahead.

JACKSON: Sorry.

So, the commission does data -- it does data gathering and research to figure out how crimes are committed and what gradations should matter in terms of the range of culpability, because the problem of not doing that or of getting it wrong is that you are not able to adequately assess and determine the differences among offenders on the scale.

LEE: Right. I understand that.

And so -- but, in these cases, as I understand it, all 10 of the cases that we have reviewed on record where you have sentenced someone to a -- for a child pornography conviction, in all 10 of those cases, you departed from the guidelines and departed downward.

It's hard for me to understand departing from those in every case you have got, because isn't that supposed -- isn't a departure supposed to be grounded in finding that it's outside the heartland of cases in that range, cases of that sort?

JACKSON: Yes, Senator.

And, as I said before, these are horrible cases that involve terrible crimes. And the court is looking at all of the evidence, consistent with Congress' factors for sentencing. The guidelines are one factor, but the court is told that you look at the guidelines, but you also look at the nature and circumstances of the offense, the history and characteristics of the offender.

There are a series of factors. In the cases, you are also getting recommendations. And, in most of the cases -- I haven't pinned it all down, but in most of the cases, if not all of the cases, the government is asking for a sentence below the guidelines, because this guideline system is not doing the work in this particular case.

[14:10:21]

LEE: Understood.

Section 230 of the Telecommunications -- of the Communications Decency Act provides a degree of immunity for tech companies operating in the space of being online interactive service providers. It immunizes them from certain causes of action that would otherwise apply against them.

Would it be within Congress' authority to condition the receipt and availability of Section 230 immunity on those online interactive service providers operating as a public forum, that is, not discriminating on the basis of viewpoint or the viewpoint of those posting on them? Would that be within our authority?

JACKSON: Senator, I can't comment on a particular issue about whether or not it is constitutional or not.

But the criteria that you identify, it would be relevant, I think, as to whether or not the government is seeking to regulate along viewpoint lines under the First Amendment. That is something that is generally impermissible.

LEE: Thank you, Mr. Chairman.

SEN. RICHARD DURBIN (D-IL): Thank you very much, Senator Lee.

Senator Klobuchar.

SEN. AMY KLOBUCHAR (D-MN): Thank you very much, Chairman and Senator Grassley.

Welcome again, Judge, your wonderful family. They all seem to be awake throughout this entire hearing.

I just wanted to -- before I start, wanted to get at something Senator Lee was talking about. It's not the dormant Commerce Clause, but I really appreciated early on how you talked about these child pornography cases. A former prosecutor could totally see where you were coming from when you talked about looking at these cases as a mom and a judge.

And would it surprise you at all that other judges, including a number of them that were supported by our colleagues on the other side of the aisle, have given out similar sentences in child pornography cases? JACKSON: No, Senator, it would not surprise me, because these cases

are horrific. And there's a lot of disparity because of the way the guidelines are operating in this particular area.

KLOBUCHAR: Thank you.

JACKSON: But, in every case, in every case that I handled involving these terrible crimes, I looked at the law and the facts.

I made sure that the victims, the children's perspectives were represented, and I also imposed prison terms and significant, significant supervision and other restrictions on these defendants.

KLOBUCHAR: Well, thank you.

And I just also want to note -- and I know others have brought this up -- the letter of support from the Fraternal Order of Police, in which they said: "From our analysis of Judge Jackson's record and some of her cases, we believe she has considered the facts and applied the law consistently and fairly on a range of issues. There is little doubt that she has the temperament, intellect, legal experience and family background to have earned this appointment.

"We are reassured that, should she be confirmed, she would approach her future cases with an open mind and treat issues related to law enforcement fairly and justly."

And that matters a lot to many of us.

Now, I want to go back to something I was talking about yesterday. And that is why today's hearing is so monumental, including that it is occurring at a time when we, as Americans, have been reminded again, due to the courage of Ukrainians thousands of miles away, that we can never take our democracy or, for that matter, our courts for granted.

It is also happening at a time when we are seeing each other for the first time after a two-year pandemic, connecting to each other again. And I hope this moment will be a moment where we see a renewed interest in our democracy, that we respect each other's rights and views, and that we see that we are not a nation of 300-plus million silos. Instead, we are a nation committed to this idea that what unites us as Americans is much bigger than what divides us.

[14:15:02]

And so, in that context, you come before us with this incredible strength, legal acumen, grace under pressure that you have demonstrated today. And you also come before us, as we have noted, as the first black woman to be nominated, following 115 justices who have been confirmed.

And I will note, of the 115 justices, 110 have been men. And I actually once reminded late-night show Trevor Noah of similar issues in the U.S. Senate. In fact, in the history of the U.S. Senate, of the nearly 2,000 people who have served, only 58 have been women. And he responded that, if a nightclub had numbers that bad, they'd shut it down.

(LAUGHTER)

KLOBUCHAR: But today, Judge, we're not shutting anything down, not the court, not the Senate, and you are opening things up.

And I think one of the things your nomination presents is an opportunity to address a decline in the public's confidence in our court. And, increasingly, many, if you see public opinion polls, see the court as overpoliticized or out of touch.

At the same time, we have seen an alarming rise in threats targeting members of our judiciary for just doing their jobs. How do you think we can work to maintain the public's confidence in the court? What do you see your role in that?

JACKSON: Thank you, Senator.

Public confidence in the court is crucial. As has been said here earlier, the court doesn't have anything else, that that is the key to our legitimacy in our democratic system. And I am honored to accept the president's nomination, in part because I know it means so much to so many people. It means a lot to me.

I am here standing on the shoulders of generations of Americans who never had anything close to this kind of opportunity, from my grandparents, who had just a grade school education, but instilled in my parents the importance of learning, and my parents, who I have mentioned here many times already, who were the first in their families to get to go to college.

So, this nomination, against that backdrop, is significant to a lot of people. And I hope that it will bring confidence, it will help inspire people to understand that our courts are like them, that our judges are like them, doing the work, being a part of our government. I think it's very important.

KLOBUCHAR: Very good.

I think, along those lines, your wonderful mentor, Justice Breyer, I quoted him about how he said, we can help maintain public acceptance of the court -- and these are his words -- we can do it best by helping ensure that the Constitution remains workable in a broad sense of the term.

Specifically, the court can and should interpret the Constitution in a way that works for the people of the day. Like, as you know, I think Section 2 -- Article 2, Section 2 doesn't refer to the Air Force, because we didn't have an Air Force back then. So, there are things about the Constitution that, of course, as we have gone along, have been interpreted to meet the moments of our time.

What do you think Justice Breyer means when he says the Constitution should be interpreted in a way that works for the people of today? And do you think a justice can be both pragmatic and objective and respect history? JACKSON: I do.

And I think that the justices have demonstrated that. Some of their recent opinions have had to deal with modern technology, technologies that did not exist at the time of the founding.

So, for example, the Riley case, the Carpenter case, these were Fourth Amendment decisions in which the court was asked to determine whether or not it violated the Fourth Amendment for the police to search someone's cell phone without a warrant or for the police to use GPS location data to determine where someone had been without a warrant.

And, obviously, those technologies did not exist. But what the court did was, it looked back at the time of the founding and determined what the reasonable expectations of privacy were related to the term unreasonable searches and seizures, which appears in the Constitution.

[14:20:20]

And having assessed what that meant back then, they could use those principles to decide whether or not a cell phone is like someone's home these days, with all of the information and all of the things that are stored there. And the court determined that it was a violation of the Fourth Amendment, that the police officers needed a warrant, and they did so with reference to what the Constitution meant in history.

KLOBUCHAR: Mm-hmm. Very good.

You know, you are viewed as a judge -- and you talked about this a bit yesterday -- that writes lengthy opinions, that believes you should spell things out and believes in being transparent.

Is that a fair characterization? I don't want to put words in your mouth.

JACKSON: That is. That is.

KLOBUCHAR: OK. Good. I'm sure your clerks know that.

And I want to talk to you about something to me that's a bit the opposite, and that's something that some have termed the shadow docket. And that includes decisions that the court makes on an expedited basis that are usually unsigned and issued without oral argument or full briefing.

In the last few years, we have seen the court increasingly deciding cases in this way, often over the dissent of maybe three or four of the justices. Last term, the court granted 20 requests for emergency relief, a historically high number. Ten years ago, in the October term of 2011, the court granted only six requests in an entire year.

When do you think it's appropriate for the Supreme Court to grant emergency relief, use this docket? When are the circumstances that warrant this? And I think you know these decisions have a profound effect on people's lives. I will just use one example. Last fall, in a one-paragraph decision, a majority of the court refused to stop the enforcement of a Texas law that severely restricts a woman's access to abortion. In that case, even Chief Justice Roberts objected to the court's decision to let the law take effect, calling the statutory scheme not only unusual, but unprecedented.

As someone who believes in transparency, could you talk in general about when you think this shadow docket should be used, when emergency relief should be given, and how, if it's overused, it could undermine public confidence in the court?

JACKSON: Thank you, Senator.

Well, there's a balance that the court has to consider, and that it, insofar as, on the one hand, it has always had an emergency docket, the need for flexibility, the ability to get answers to the parties at issue is something that's important in our system.

On the other hand, the court has also considered the interest in allowing issues to percolate, allowing other courts to rule on things before they come to the court.

And I am not privy at the moment to the justices' views in why and how they're using the emergency docket in these cases. If I was fortunate enough to be confirmed, I would look at those issues, but it's an interesting and important set of issues.

KLOBUCHAR: OK.

You know, I think just another example of this, by the way, is, the day before Wisconsin's primary...

VICTOR BLACKWELL, CNN HOST: All right, you have been listening to Senator Amy Klobuchar question Supreme Court nominee Judge Ketanji Brown Jackson.

We're going to take a quick break and return to this.

Stay with us.

(COMMERCIAL BREAK)

[14:28:46]

BLACKWELL: All right, let's return to Capitol Hill now, where the Senate Judiciary Committee is questioning Supreme Court nominee Judge Ketanji Brown Jackson.

Senator Amy Klobuchar is now asking about antitrust law.

KLOBUCHAR: ... a free enterprise economy, then you must have a strong and effective antitrust law.

Do you agree with Justice Breyer's statement? And how would you characterize the goals of our antitrust laws? JACKSON: Well, thank you, Senator.

The antitrust laws protect competition, and, as you said, therefore protect consumers and competitors and the economy as a whole. And the Sherman Act and the Clayton Act are broad in their -- in their statements, in their protections, and there's a lot of precedent in this area.

If I were confirmed, I would use my methodology to look at the precedents in these areas to ensure that any legislation that I was considering is interpreted according to the text, consistent with Congress' intent.

[14:30:00]