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Senate Hearing For Supreme Court Nominee Ketanji Brown Jackson. Aired 2:30-3p ET

Aired March 22, 2022 - 14:30   ET



KETAJI BROWN JACKSON, U.S. SUPREME COURT NOMINEE: 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.

And in the area of anti-trust that is ensuring that there is consumer protections.


And just to play it out a little bit, since the 1980s, the court in cases like Trinco and Credit Suisse, Ohio v. American Express has made it increasingly difficult to enforce the antitrust laws and protect competition.

And during that same time -- and I know many of my colleagues know this -- we have seen a rise in industry consolidation, market power, not only in tech with companies like Google and Amazon and Facebook and Apple, but also across our economy, really, in everything from pharma to cat food to caskets.

Do you -- what role do you think that congressional intent should play in the court's interpretation of the antitrust laws?

And I say that because I think that we're dealing with some cases where justices have actually substituted their own ideologies for the intent of Congress in originally passing the laws.

And I think it was Justice Souter who once said before this committee, when we are dealing with anti-trust laws, we are dealing with one of the most spectacular examples of delegation to the judiciary that our legal system knows.

And he added this. "Certainly, a respect for legislative intent has got to be our anchor for interpretation."

So, what role do you think congressional intent should play in the court's interpretation of the antitrust laws?


So, I've interpreted a number of statutes in my near decade on the bench. And in every case, the text of a statute is what the court looks at in order to ascertain what the legislature intended.

And that is important because, as I've said, courts are not policymakers, and judges should not be importing their own policy preferences.

Judges are restrained in our constitutional scheme in order to affect the will of Congress in terms of their interpretation of the laws.

KLOBUCHAR: OK. Thank you.

I'm going to turn to another topic, and that's freedom of the press. "New York Times" v. Sullivan, 1964 case.

We have recently witnessed, as you know, unprecedented attacks on journalists and journalism, whether it's violence overseas, recently losing, sadly, members of the press just in the last month in Ukraine, or threats and intimidation at home.

This is very concerning to me, given the important role of the First Amendment. My dad was a newspaper reporter, so the issues hit home for me.

Can you talk about your view of the role of journalists in our democracy?

JACKSON: Thank you, Senator.

Journalists, freedom of the press is protected by the First Amendment. It is about the dissemination of information, which is necessary for a democratic form of government.

The Supreme Court has held as much. And that was the basis for the court's determinations in protecting the press from liability in "New York Times" vs. Sullivan and its progeny.


As you know, that ruling was a unanimous ruling in support of the First Amendment.

And the court held that, "When newspapers report on public officials, they're only liable for untrue statements that are published with knowledge or reckless disregard for whether the statement was false."

The court in Sullivan based its decision on our country's, quote, "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open."

That's their quote.

And it recognized that, quote, "erroneous statement is inevitable in free debate," end quote, and quote, "must be protected if the freedoms of the press are to have the breathing space that they need to survive."

Do you agree that those principles are just as relevant today as they were when the Supreme Court first decided "New York Times" v. Sullivan?


JACKSON: "New York Times" v. Sullivan is the continuing binding precedent of the Supreme Court. And it does state the principles that the court has determined are undergirding the First Amendment right to free press.


And last summer, actually, in Barisha (ph) v. Lawson, the Supreme Court declined to review a case in which the 11th circuit applied "New York Times" v. Sullivan.

Justice Thomas and Justice Gorsuch each dissented from the decision not to grant cert, arguing that the court should reconsider its holding in Sullivan.

How would you approach a case that sought to limit or overturn the central holding in "New York Times" v. Sullivan?

JACKSON: Thank you, Senator.

Any time the court is asked to revisit a precedent, there are criteria that the court uses to decide whether or not to overrule a precedent.

"New York Times" vs. Sullivan is a precedent. And Stare Decisis is very important. The principle that courts -- that the Supreme Court should maintain its precedents for predictability and stability in the law.

If the court is asked to revisit a precedent, its criteria, what it looks at, are whether the precedent is wrong and, in fact, egregiously wrong, the court has said.

Whether there's been reliance on that precedent. Whether the -- there are other cases that are similar to the precedent or that relied on the precedent that have now shifted so that the precedent is no longer on firm footing.

Whether or not the precedent is workable. Sometimes the Supreme Court will issue a ruling and determine later that it's not actually doing what the court intended.

And whether or not there are new facts or new understanding of the facts.

Those various criteria are what the court looks at to decide whether or not to overturn a precedent. And they would be what I would look at if I were confirmed to the Supreme Court.

KLOBUCHAR: Thank you.

I was recalling, as you spoke, about Stare Decisis, at one of your first nomination hearings for the district court. And you actually, in response to one of my questions, you said, "Stare

Decisis is a bedrock legal principle that ensures consistency and impartiality of judgments."

And I think, as you know, by how you've talked more broadly about this, moving off of the First Amendment questions, throughout the court's history, Stare Decisis has been so key.

And the court has relied on it to maintain stability in the law re its impartiality.

As a former justice -- I know Senator Durbin just read a very famous book about him.

Minnesotan, Justice Harry Blackman, who actually Justice Breyer succeeded on the court, said in his concurrence in Planned Parenthood v. Casey about the court's decision to uphold Roe v. Wade, he said:

"What has happened today should serve as a model for future justices and a warning for all who have tried to turn this court into yet another political branch."

What role do you think that Stare Decisis plays in protecting the independence of the judiciary and avoiding the perception that the court is acting at another, quote, "political branch?"

JACKSON: I think it plays a very important role as a doctrine that keeps shifts from happening in the court.

As I previously mentioned, it's very important to have stability in the law for the rule of law purposes so that people can order themselves and predict their lives, given what the Supreme Court has already said.

And if there were massive shifts every time a new justice came on or every time new circumstances arose, there would be a concern that public confidence would be eroded.

And so Stare Decisis is a very important doctrine that the Supreme Court has established. And it's one that furthers the rule of law in this country.


KLOBUCHAR: Thank you very much.

Well, that's a good way to end, Judge Jackson.

And I do see Senator Cruz waiting in the wings.

So by coincidence -- and it looks like he has things he's putting up, charts.

By coincidence, I have a -- I was going to put on the record -- and since he's here, it makes a lot of sense from the judge that you clerked for, Senator Cruz, Judge Luttig, who's now retired. And I know you were very close to him. And he actually submitted a

letter on your behalf, Judge Jackson, and said, in this letter -- and he's an appointee of George H.W. Bush, similar to Judge Griffith, who introduced you yesterday.

And I have been very impressed by the support you have had from retired judges.

Obviously, not appropriate for current judges, but retired judges appointed by both Democratic and Republican presidents as well as the bipartisan votes that you have gotten through the U.S. Senate for your other positions.

But in this letter, the judge -- former Judge Luttig says that you are "eminently qualified" to serve on the Supreme Court of the United States.

And then he actually says, "Republicans and Democrats alike should give their studied advice and then their consent to the president's nomination."

And he adds, "Republicans in particular should vote to confirm Judge Jackson."

So I thought that might be a good segue, Senator Cruz, to your questions.

So, I ask, Chairman, that the letter of support from former Judge Luttig, who employed Senator Cruz as a trusted law clerk, be admitted to the record.



KLOBUCHAR: Thank you very much, Judge Jackson.

JACKSON: Thank you.

UNIDENTIFIED CHAIRMAN: Senator Klobuchar finds a Minnesota connection to almost everything. Very proud of the fact. But Justice Blackman was born in Nashville, Illinois.

KLOBUCHAR: OK. He was a lawyer at the Mayo Clinic, as we know, and spent a lot of time --

UNIDENTIFIED CHAIRMAN: I'm going to lose this battle.

KLOBUCHAR: A lawyer in Minnesota when he was chosen to the Supreme Court. But thank you for pointing that out.

UNIDENTIFIED CHAIRMAN: And now to the great state of Texas, Senator Cruz.

CRUZ: Thank you, Mr. Chairman.

Judge Jackson, welcome.

JACKSON: Thank you.

CRUS: Congratulations.

JACKSON: Thank you.

CRUZ: You and I have known each other a long time.

JACKSON: We have.

CRUZ: We went to law school together. We were on the Law Review together. We were a year apart.

JACKSON: Happily so, I hope, Senator.

CRUZ: We were not particularly close, but we were always friendly and cordial.

JACKSON: We were.

CRUZ: And you and I had a very positive and productive meeting in my office where we discussed a number of things, including you were there with former Senator Doug Jones.

And we discussed how he and I and a number of other Senators had, for two different years, participated in reading aloud on the Senate floor Dr. Martin Luther King Jr.'s letter from a Birmingham jail, which is one of the truly great advocacies for civil rights our nation has seen.

And you and I talked together about our shared admiration for Dr. King.

When Senator Grassley questioned you earlier, he asked in particular about Dr. King's speech on the steps of the Lincoln Memorial where he said, most critically:

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

Do you agree with what Dr. King said in that speech there?

JACKSON: I do, Senator.

CRUZ: As we were discussing it, you referenced, in my office, a speech that you gave in January of 2020 at the University of Michigan School of Law.

And after our discussion, I pulled a copy of your speech and read the speech in its entirety, and there were elements of the speech that I thought were really powerful.

And let me say, your opening remarks yesterday were powerful and inspirational as well. And I think you and your family, the journey you have taken to

becoming a federal judge, to becoming a federal court of appeals judge, I think demonstrates the incredible promise and the incredible opportunity this nation offers all of us.

As I read your speech at the University of Michigan Law School, however, there was a portion that surprised me.

And in particular, in that speech, you referenced the work of, quote, "acclaimed investigative journalist, Nicole Hannah Jones, and her -- and again, this is a quote from the speech -- "provocative thesis that America was born -- that the -- provocative thesis that the America that was born in 1776 was not the perfect union that it purported to be."


And, indeed, Miss Hannah Jones in her 1619 Projects describes the central thesis of the 1619 Project, which "The New York Times" laid out as a revisionist look at history, revising American history.

And Miss Hannah Jones described her central thesis as, quote, "One of the primary reasons the colonists decided to declare independence was because they wanted to protect the institution of slavery."

Now, that claim is a highly contested historical claim.

Do you agree with Miss Hannah Jones that one of the primary reasons the colonists decided to declare independence is because they wanted to protect the institution of slavery?

JACKSON: Thank you, Senator.

When I gave that speech at the University of Michigan, I was asked to speak on Martin Luther King Day. And every year they have a Martin Luther King Day speaker.

And I gave a speech about Black women in the civil rights movement. Most of the speech, if not all of the speech, was focused on African- American women, their contributions to the civil rights movement, unsung contributions in many cases.

And then some of the more recent African-American women, who have made claims, who have done things in our society.

One slide was of Ms. -- a journalist, as you say, who made that statement. And I called it provocative.

It is not something that I have studied. It doesn't come up in my work. I was mentioning it because it was, at least at that time, something that was talked about and well known to the students that I was speaking to at the law school.

CRUZ: So, are you aware that since the 1619 Project came out, that it has been roundly refuted by very respected historians, including Gordon Wood, of Brown University, including James McPherson, of Princeton University.

McPherson called it a, quote, "very unbalanced, one-sided account, which lacks content and perspective."

And, indeed, it was so thoroughly refuted that "The New York Times" quietly altered the digital version to remove references to 1619 as the year of America's true founding and the moment America began.

Were you aware of that?

JACKSON: I was not.

CRUZ: So, let me ask you, related to the 1619 Project, which I believe is deeply inaccurate and misleading, 1619 Project is closely intertwined with a movement that is called Critical Race Theory.

Critical Race Theory, as you know, originated at your and my alma mater, at the Harvard Law School.

In your understanding, what does Critical Race Theory mean? What is it?

JACKSON: Senator, my understanding is that Critical Race Theory is a -- it is an academic theory that is about the ways in which race interacts with various institutions.

It doesn't come up in my work as a judge. It's never something that I have studied or relied on. And it wouldn't be something that I would rely on if I was on the Supreme Court.

CRUZ: So, Critical Race Theory, as you know, has its origins in the critical legal studies movement, which also came from Harvard Law School, from a number of critical legal studies professors, Crits, as they were known when we were in law school, who were explicitly Marxist and they find their origins in Marxism.

Although critical legal studies frames society as a fundamental battle between socioeconomic classes, Critical Race Theory frames all of society as a fundamental and intractable battle between -- between the races. It views every conflict as a racial conflict.

Do you think that's an accurate way of viewing society and the world we live in?

JACKSON: Senator, I don't think so. But I've never studied Critical Race Theory. And I have never used it. It doesn't come up in the work that I do as a judge.

CRUZ: So, with respect, I find that a curious statement, because you gave a speech in April of 2015 at the University of Chicago in which you described the job you do as a judge.


And you said, "Sentencing is just plain interesting because it melds together myriad types of law, criminal law and, of course, constitutional law, Critical Race Theory."

So you described in a speech to a law school what you were doing as Critical Race Theory.

So I guess I would ask, what did you mean by that when you gave that speech?

JACKSON: With respect, Senator, the quote that you are mentioning there was about sentencing policy. It was not about sentencing.

I was talking about the policy determinations of bodies like the Sentencing Commission when they look at a laundry list of various academic subjects as they consider what the policy should be.


CRUZ: You're the vice chair of the Sentencing Commission. Let me ask, again, what did you mean by, because that was an official responsibility of yours?

JACKSON: What I meant was that there are a number of -- that slide does not show the entire laundry list of different academic disciplines that I said relate to sentencing policy. But none of that relates to what I do as a judge.

CRUZ: So let me ask you a different question. Is Critical Race Theory taught in schools? Is it taught kindergarten through 12th?

JACKSON: Senator, I don't know. I don't think so. I believe it's an academic theory that's at the law school level.


As you may recall, during the confirmation hearings of Justice Amy Coney Barrett, there was a great deal of attention to she was as a board member on the board of a religious private schools. And the press focused very intently on the views of that school.

In your questionnaire to this committee, you disclosed you are similarly on a board, specifically the board of trustees for the Georgetown Day School. And you've been board member since 2019 and you're currently still a board member.

Is that correct?

JACKSON: That is correct.

CRUS: In regard to the Georgetown Day School, you've publicly said, quote, "Since becoming a member of the GDS community seven years ago, Patrick and I have witnessed the transformative power of a rigorous progressive education that is dedicated to fostering critical thinking, interdependence and social justice."

When you refer to social justice in the school's mission on social justice, what did you mean by that?

JACKSON: Thank you Senator for allowing me to address this issue.

Georgetown Day School has a special history that I think is important to understand when you consider my service on that board.

The school was founded in 1945 in Washington, D.C., at a time in which, by law, there was racial segregation in this community.

Black students were not allowed in the public schools to go to school with white students.

Georgetown Day School is a private school that was created when three white families, Jewish families, got together with three Black families.

And said that despite the fact that the law requires us to separate, despite the fact that the law is set up to make sure that Black children are not treated the same as everyone else, we are going to form a private school so that our children can go to school together.

The idea of equality, justice is at the core of the Georgetown Day School mission.

And it's a private school such that every parent who joins the community does so willingly with an understanding that they are joining a community that is designed to make sure that every child is valued, every child is treated as having inherent worth, and none are discriminated against because of race.

CRUZ: Judge Jackson, all of us will agree that no one should be discriminated against because of race.

When you just testified a minute ago that you didn't know if Critical Race Theory was taught in K through 12, I will confess I find that statement a little hard to reconcile with the public record.

Because if you look at the Georgetown Day School's curriculum, it is filled and overflowing with Critical Race Theory.


That among the books that are either assigned or recommended, they include "Critical Race Theory, An Introduction." They include "The End of Policing, An Advocacy for Abolishing Police."

They include "How to be an Anti-Racist," Ibram X. Kendi. They include literally stacks and stacks of books.

And I'll tell you, two of the ones that were most stunning, they include a book called "Anti-Racist Baby," By Ibram Kendi.

There are portions of this book that I find really quite remarkable. One portion of the book says, "Babies are taught to be racist or anti- racist. There's no neutrality."

Another portion of the book, they recommend the babies confess when being racist. This is a book that is taught at Georgetown Day School to students in

pre-K through second grade, so 4 through 7 years old.

Do you agree with this book that is being taught with kids that babies are racist?

JACKSON: Senator, I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than, that they are victims, that they are oppressors. I don't believe in any of that.

But what I will say is that when you asked me whether or not this was taught in schools, Critical Race Theory, my understanding is that Critical Race Theory, as an academic theory, is taught in law schools.

And to the extent you were asking the question, I understood you to be addressing public schools.

Georgetown Day School just like the religious school that Justice barrett was on the board of, is a private school.

CRUZ: You agree Critical Race Theory is taught at Georgetown Day School?

JACKSON: I don't know. Because the board does not control the curriculum. The board does not focus on that. That's not what we do as board members. So I'm actually not sure.

CRUZ: I'll not that the board is shared by Professor Fairfax, your college roommate, who introduced you yesterday. So the two of you serve on the board together.

Another book that is on the summer reading for third through fifth grade is a book called "Stamp for Kids," again by Ibram Kendi.

I read the entirety of the book and I will say it is an astonishing book.

On page 33, it asks the question, "Can we send white people back to Europe?" That's what's on 33. That's what's being given to 8 and 9 years old.

It also, on page 115, says, "The idea that we should pretend not to see racism is connected to the idea that we should pretend not to see color. It's called color blindness."

Skipping ahead, "Here is what's wrong with this. It's ridiculous skin color is something we all absolutely see."

Skipping ahead, "So to pretend not to see color is pretty convenient if you don't want to stamp out racism in the first place."

Now what this book argues for is the exact opposite of what Dr. King spoke about on the floor of the Lincoln Memorial.

Are you comfortable with these ideas being taught to children as young as four, in respect to the first book, as young as eight and nine, in respect to the second book?

JACKSON: Senator, I have not reviewed any of those books, any of those ideas. They don't come up in my work as a judge, which I'm respectively here to address.

In my work, as a judge, which is evidenced from my near decade on the bench, I am --


CRUZ: OK. Good. Let's go back to your work as a judge.

As was noted in the first slide, you discuss sentencing as related to Critical Race Theory.

Earlier, there has been some back and forth as Democratic Senators have tried to address your sentencing patterns as it concerns child pornography.

I'll confess, Judge Jackson as -- look, I listen to your testimony, I believe you're someone who is compassionate. I believe you care for children. Obviously, your children and other children.


But I also see a record of activism and advocacy as it concerns sexual predators that stems back decades and is concerning.

You wrote your note on the Harvard Law Review on sex crimes. Your note -- it's your major academic work.