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

Aired March 22, 2022 - 15:00   ET

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

[15:00:03]

SEN. TED CRUZ (R-TX): You wrote your note on "The Harvard Law Review" on sex crimes. Your note is your major academic work in the law review. And yours is entitled prevention versus punishment towards a principled distinction in the restraint of released sex offenders.

And in it, you argue and I quote, a recent spate of legislation purports to regulate release sex offenders by requiring them to register with local law enforcement official, notify community members of their presence, undergo DNA testing and submit to civil commitment for an indefinite term. Although many courts and commentator herald these laws as valid regulatory measures, others them as punitive enactments that violate the riots of individuals who have already been sanctioned for their crimes. Under existing doctrine, the constitutionality of sex offenders statutes depends upon their characterization as essentially preventative rather than punitive.

And what you go onto explain is if they are viewed as punitive, they are unconstitutional. If they are viewed as preventative, they are not. And throughout the course of your note, you argue they should be viewed as punitive and therefore unconstitutional.

Indeed in the second to last page, you go through each of the four categories. You say requirements that sex offenders register may or may not be unconstitutional depending upon whether, quote, sex -- in which sex offenders have no privacy right and registration information or blood sample. So, you suggest that may or may not be constitutional, although you raise doubts about it.

And then you raise very significant doubts about community notification and you heavily suggest that civil commitment for sexual predators is unconstitutional.

Do you still agree with the sentiments you expressed in your law school note?

KETANJI BROWN JACKSON, SUPREME COURT JUSTICE NOMINEE: Those are not the sentiments that I expressed in my law school note. My law school note was about sex offender registration laws which at the time were relatively new. As you know from our time in law school, one of the things that law school students do is they look for new developments in the law and they try to analyze them. That's something that makes for good fodder for a law school note. My note, which came out in 1996, was shortly after there were new

Megan's laws, and the point that I was making was not that the laws were bad, that the laws were wrong. I was trying to assess something that is sort of fundamental in terms of the characterization of the laws. I didn't say that they were unconstitutional one way or the other. What I was trying to assess was how they are characterized.

Some -- some courts would look at those laws and call them preventative, and that has a certain set of consequences. Some courts would call them punitive and that has a certain set of consequences. And what I was trying to figure out how to make the determination whether they were punitive or preventative.

CRUZ: Well, your note argued that they were punitive. And I would note that that view, there's been some on the bench that have advocated that. The Supreme Court in 1997 decided a case called Kansas versus Hendricks in which it upheld Kansas' civil commitment statute. That was a 5-4 vote.

This is a question that's been close at the Supreme Court, and I would note beyond that that in terms of the prevalence of these statutes, all 50 states in D.C. have registry requirements. Forty-seven states have community notification requirements. All 50 states have DNA or blood banks for sex offenders requirements and 20 of the states, the federal government in D.C. have laws that law for the indefinite retention of sex offenders.

I would note, in the state of Texas, a strict state court of appeals relying on very much the same sort of reasoning you advocated in your note struck down Texas' sexually violent predator civil commitment law. At the time, I was the solicitor general of Texas, I personally argued that appeal in the Texas Supreme Court and the Texas Supreme Court unanimously reversed the court of appeals and upheld our statute.

And if the views you advocated in law school prevailed, civil commitment laws across the country would be struck down, releasing sexual predators, and under the argument, community notification and DNA bank laws could well be struck down as well.

[15:05:01]

Is that -- is that an outcome that should concern people?

JACKSON: Senator, my note wasn't advocating for the striking down of those laws. My note was trying to identify criteria that I thought could be applied consistently to determine whether the laws were punitive or preventative. Either --

CRUZ: But with respect, Ms. Jackson, you argued that they were punitive and you further say in the note, if they're punitive, they're unconstitutional.

JACKSON: I was looking at four different kinds of laws and not all of them did I say were punitive. CRUZ: OK. So, let's take civil commitments laws. If you look at civil

commitment laws right now, the UCLA School of Law, Williams Institute estimates more than 6,300 sex offenders are currently detained in civil commitment programs. If the view you advocated prevailed, presumably, those 6,300 sex offenders would be released to the public.

Is that an outcome that should be concerning?

JACKSON: Senator, in law school when I was writing a note, I was looking at a brand new set of laws that had not previously been enacted in any jurisdiction. They were new. And I was assessing at the time, as law school students do, what criteria I thought might be used by courts to make a determination in the future as to whether or not they should be treated as punitive and therefore not unconstitutional but as therefore ones that carry with them certain rights versus pu -- excuse me, preventative. Those --

(CROSSTALK)

CRUZ: OK, Judge Jackson, so you pointed that these reviews in law school -- and listen, I will recognize that all of us when we were students may have views that as time and maturity passes on, we may change. But what troubles me is this was not just a law school view. It's one that has continued.

So, when you were vice chairman of Sentencing Commission, you expressed significant concerns that the White House has argued that your quotes were taken out of context. I want to provide the full context of your quote, because you said, yes, I want to ask you about the means by which we can distinguish more or less serious offenders. I know that all of you touched on that. Mr. Petrel (ph), you talked about going from singular to one on one, to group experience.

I'm just wondering if there are some sort of inevitable and natural progression from one state to the other, such that you could say the least singular offenders are in the singular experience stage.

And I guess my thought is, in looking at some of the testimony that other people will have later in the day, I was surprised at some of the testimony with respect to motivation of offenders and we're talking about child pornography offenders, and there are people who get involved with this kind of activity who may not be pedophiles and who may note be necessarily interested really in the child pornography, but have other motivations with respect to the use of technology and being in the group, and, you know, here are lot of reasons perhaps why people might engage in this.

And so, I'm wondering if you could say there could be a less serious child pornography offender who is engaging in the type of conduct in the group experience level because their motivation is the challenge or to use the technology. They are very sophisticated technologically but they aren't necessarily interested in the child pornography piece of it.

Now, I find that a pretty remarkable argument that people in possession of child pornography are not actually interested in the child porn. They're not pedophiles. They are just interested in technology.

Is that -- I want to provide the whole quote because the White House said that portions of this were used out of context. So, this is your entire quote.

Do you agree with that sentiment that there is some meaningful population of people who have child pornography but are not, in fact, pedophiles or getting -- getting satisfaction from it?

JACKSON: Thank you, Senator, for allowing me to address what appears to be a question that I was asking in the context of a hearing on child pornography. You provided the entire quote and it looks as though I was asking that of someone, not taking that position.

And the position that I have taken in all of my sentencings involving child pornography offenders is to ensure that despite the attitude and view of many of the offenders who came before me when I was a trial judge that they were just lookers, they weren't really harming anyone, that they were curating their collections and they never touched a child, I made sure they understood that notwithstanding their collecting behavior that they were causing significant harm.

[15:10:03]

CRUZ: So, Judge Jackson, all right, you raise your actual sentencing and I think that's productive. Let's take a look at your actual sentencing. You had ten different cases involving child pornography. These are the cases, that there are two, U.S. versus Butrey (ph) and U.S. very Cann (ph) for which the government did not make a recommendation.

And you said earlier when Chairman Durbin was trying to preempt this line of attack, you said it's a sickening and egregious crime, which I very much agree. And you said the guidelines lead to extreme departures. OK.

Let's look at what the prosecutors are asking for and I would note that this was in the District of Columbia, where prosecutors are far more liberal than many of the prosecutors in this country. And in every case in which, so United States versus Hess, there was a mandatory, statutory minimum of 60 months, ad you imposed 60 months because you had no discretion. In the United States versus Nickerson, there was a mutual agreement of the parties to 120 months and that's what you imposed.

In every other case, United States versus Chasten (ph), the prosecutor asked for 78 to 97 months. You imposed 28 months, 28 months is a 64 percent reduction.

In the United States versus Cooper, the prosecutor asked for 72 months. You imposed 60 months. That was a 17 percent reduction.

In United States versus Downs (ph), the prosecutor asked for 70 months. You imposed 60. That was a 14 percent reduction.

In United States versus Hawkins, the prosecutor asked for 24 months. You imposed three months. That was an 88 percent reduction.

In United States versus Savage, the prosecutors asked for 49 months, you imposed 37. That was a 24 percent reduction.

In United States versus Stuart (ph), the prosecutor asked for 97 months, you imposed 57. That was a 41 percent reduction. Every single case, 100 percent of them when prosecutors came before you with child pornography cases, you sentence the defenders to substantially below, not just the guidelines, which are way higher, but what the prosecutor asked for on average of these case, 47.2 percent less.

Now, you said you made sure the voice of the children was heard. Do you believe in a case like United States versus Hawkins where the prosecutor asked for 24 months and you sentence the offender to only three months, do you believe the voice of the children is heard when 100 percent of the time you're sentencing those in possession of child pornography to far below what the prosecutor is asking for?

JACKSON: Yes, Senator, I do.

CRUZ: Could you explain how.

JACKSON: I will.

A couple of observations. One is that your chart does not include all of the factors that Congress has told judges to consider, including the probation office's recommendation in these cases.

CRUZ: Judge, we don't have those probation. The committee has not been given the probation office's recommendation. We would welcome them. I would love -- Mr. Chairman, I would love to see those. We don't have access to it.

JACKSON: The second -- the second thing I would say is that I take these cases very seriously as a mother, as someone who, as a judge, has to review the actual evidence in these cases and based on Congress' requirement take into account not only the sentencing guidelines, not only the recommendations of the parties, but also things like the stories of the victims, also things like the nature and circumstances of the offense and the history and characteristics of the defendant.

Congress is the body that tells sentencing judges what their supposed to look at and Congress has said that a judge is not playing a numbers game. The judge is looking at all of these different factors and making a determination in every case based on a number of different considerations. And in every case, I did my duty to hold the defendants accountable in light of the evidence and the information that was presented to me.

[15:15:01]

CRUZ: In 100 percent of the cases, was the evidence less than what the prosecutor asked for?

JACKSON: Senator, the evidence in these cases are egregious. The evidence in these cases are among the worst that I have seen and yet as Congress directs, judges don't just calculate the guidelines and stop. Judges have to take into account the personal circumstances of the defendant because that's a requirement of Congress. Judges have to consider things like the victims and when I was talking about making sure that victims' circumstances are heard, it was about my sentencing practices that I --

(CROSSTALK)

CRUZ: -- victims being heard, with respect. Thank you, Mr. Chairman.

SEN. DICK DURBIN (D-IL): In 2012, the Sentencing Commission on a unanimous bipartisan basis issued a report recommending changes to sentencing for non-production child pornography which is the subject at hand. Offenses because of widespread concern among judges and other stakeholders, for example, 70 percent of surveyed judges said the guideline ranges for possession receive offenses were too high, 71 percent said the mandatory minimums were too high. Notably the report was supported by every member of the commission. I believe the question the senator of Texas was referring was part to have the proceedings that led to that report, unanimous bipartisan basis commission report.

CRUZ: Mr. Chairman, very briefly, I would ask unanimous consent that the books I referenced be entered into the record.

DURBIN: Without objection.

Senator Coons?

SEN. CHRIS COONS (D-DE): Thank you, Chairman Durbin, Ranking Member Grassley.

Judge Jackson, good to be with you.

JACKSON: Good to be with you, Senator.

COONS: I'd like to take a few minutes and give you a chance to address some of the issues just raised. My colleague suggested that you've never sentenced a defendant in a child pornography case consistent with what the government request -- what the prosecution requested. But according to my staff's research that's not true.

So, let me briefly ask you about three specific sentencing cases. Do you remember U.S. v Nickerson. You sentenced Charles Nickerson Jr. to ten years in prison. Exactly what the government requested.

JACKSON: I do, Senator.

COONS: Do you remember U.S. v. Pife (ph). You sentenced him to 20 years in prison, exactly what they requested.

JACKSON: I do, Senator.

COONS: And do you recall, U.S. v. Nagin (ph), you sentenced him to 27 months, exactly what the prosecution requested. JACKSON: I do, Senator.

COONS: So, in these three cases, it's also true that the government, the prosecution, requested below guidelines sentences. Would that seem surprising to you at all?

JACKSON: It would not.

COONS: And is that because overwhelmingly, nationwide, in 70 percent of cases and in your district, 80 percent of cases, downwards departures from guidelines are the norm?

JACKSON: That is correct, Senator.

COONS: So, to the extent, there seem be a concerted effort to try and characterize you as being soft on crime or somehow unconcerned about child safety, I just wanted to take another moment and give you a chance to respond to that. As a parent, as a member of a family that's had several members who've served, your brother, your uncles in law enforcement, could you share a bit about how having loved ones who served as law enforcement officers, in one case a detective on a sex crimes unit has had an impact on your sentence of balance of justice and mercy in the case of ensuring we hold to account those who commit crimes against children?

JACKSON: Thank you, Senator. As a mother, these cases involving sex crimes against children are harrowing. What I think is important to understand is that trial judges who have to deal with these cases are presented with the evidence or descriptions, graphic descriptions.

These are the cases that wake you up at night because you're seeing the worst of humanity, when -- when there are victims statements that are presented, when people talk about how their lives have been destroyed as children, how the people who they trusted to take care of them were abusing them in this way and then putting the pictures on the Internet for every one to see.

[15:20:16]

I sometimes still have nightmares about the main witness, the woman I mentioned earlier who cannot leave her house because of this kind of fear, the vulnerability, the isolation. These crimes are horrible.

And so, I take them seriously just as I did all crimes but especially crimes against children.

COONS: So, Your Honor, if I could, the characterization that was presented, in a recent column in "The National Review", a conservative publication, has characterized that view of you as a smear that appears meritless to the point of demagoguery and characterizes your approach in sentencing in these cases as mainstream and correct.

And I'll just remind my colleagues and those watching, that two of the largest, most substantial law enforcement advocacy organizations in our country, the National Fraternal Order of Police and the International Association of Chiefs of Police have spoken up in support of your qualifications and your capabilities. The FOP letter says there's little doubt you have the temperament, intellect, legal experience and family background to have earned this appointment.

That sentiment was echoed by the IACP. In their letter, they said, you believe you have a deep understanding of and appreciation for the challenges and complexities confronting the policing profession and you have -- during your time as a judge displayed your dedication to ensuring our communities are safe and the interest of justice are served.

I find it hard to believe that these organizations having looked closely at your judicial decisional record, your sentencing decisions, your lifetime conduct would have taken those unusual steps to be that forceful in supporting you if, in fact, you had somehow a disturbing record of coddling child pornographers or being soft on crime. In fact, Judge, your record in my view demonstrates you're an even-handed and impartial judge.

I can see that when you look at cases that you ruled on that involve very politically charged or partisan interest. You've delivered rulings on both sides for plaintiffs and defendants and in my review of your record, you put any personal views or concerns aside. You based your decision on the argument of the party, the fact and the record.

And the well-reasoned and thorough opinions you have written show to me a judge striving to make even-handed decisions based on facts and law, not on some caricature of a leftist agenda.

But don't just take my word for it. We received an outpouring of support for your nomination. As we'll hear on Thursday, a wide range of groups and individuals have sent letter or testimony to this committee in support of your nomination. It's no surprise to me that your legal mind, your experience, your temperament inspires strong support from some of the best and brightest of our legal community.

And I think it's worth highlighting that among those that have written to us are included, well-respected conservative and Republican lawyers and Republican-appointed judges who agree with my characterization that you're evenhanded and impartial judge. We received a letter from 24 conservative lawyers who held positions in Republican administrations or well-known for their conservative, political or legal views who wrote this committee to urge your speedy confirmation. They praised your character and intellect and called you and I quote, a truly excellent person.

I'd like to focus on the way these conservative lawyers characterized your judicial decision-making which is the core issue before us, is whether you are the sort of judge that the district court, circuit court, that should be elevated to the Supreme Court, and they note in this letter that in nearly ten years on the bench, as a district judge and a court of appeals, Judge Jackson has been involved in thousands of cases running the full range of federal law.

You're approximately 500, I think it's more than 570 opinions written during this time have and I'm quoting, demonstrated complete command of the legal subject matter, a judicious and even handed approach, a fine ability to express yourself with force and great clarity.

They've also demonstrated and I'm quoting, another attribute essential for a judge, a sense of empathy for the situation of others.

[15:25:08]

Judicious and even handed. These prominent conservative lawyers want this committee to know you're judicious and even-handed, and recommend you for the Supreme Court without reservation despite having noted they differ with you concerning some political or partisan issues.

And they're not alone. Judge Griffith in a letter to this committee and followed up with personal testimony in your introduction yesterday, a judge appointed by former President George W. Bush, enthusiastically supports your nomination.

I was struck by his description of your intellectual capacity, your keen legal mind, as well as your character and judicial approach. And now, I'm quoting from his testimony to this committee yesterday.

Judge Jackson, he told us is an independent jurist who adjudicates based on facts and the law, not as a partisan. He went on. As Justice Scalia taught us, an indispensable feature of the republic the Constitution created is an independent judiciary of judges who have taken an oath not to a president or a party, but to the American people and to God that they will be impartial and he concluded that you, Judge Jackson, have demonstrated an unwavering commitment to that oath.

That's a conservative judge appointed by Republican president who told this committee he is confident you'll decide cases based on the facts and the law, not as a partisan. Now, I value the working relationships I have with my colleagues on both sides of the aisle. We can and do at times have fierce policy disagreements but we also work together to try and find ways as lawmakers and individuals to respect each other.

And I take it as a personal sort of badge or source of pride when someone with whom I really disagree on one issue is able to legislate with me on another. And so, I imagine Your Honor, it must be gratifying that a judge who sent in judgment of, reviewed dozens and dozens of your opinion, I think he reversed you once.

JACKSON: Oh, more than -- more than.

COONS: Here is he closely reviewed your decisions and as a circuit judge sat in review of your work over years as a district -- hundred of opinions as a district court judge and has such unequivocal praise for the even-handed, impartial, thorough and nonpartisan way you've approached decision-making.

Could you just briefly share with me what it means to hear that someone like Judge Griffith has such confidence you would make an excellent member of our highest court?

JACKSON: Thank you, Senator. It means the world to me to have the support of Judge Griffith. His

coming here yesterday and testifying on my behalf was so gratifying. I have tried in every respect to follow my methodology that enables me to rule impartially in every case and understand the limits of my own judicial authority and reach decisions without fear or favor.

My record demonstrates that I am not proceeding from any sort of pre- conceived notion about how a case comes out. I'm not ruling consistent with any sort of ideology. I'm doing what impartial and fair judges do, which is to decide in every case based only on the facts and the law of that case.

And I'm very, very pleased that Judge Griffith has seen that in the years that he supervised me effectively as a court o appeals judge when I was a district judge. And I think it's wonderful that he was able to come here and testify to that.

COONS: Well, Judge, for those watching and for those following this that they might be puzzled, because my colleague, the junior senator from the state of Texas, has tried to ascribe all sorts of views to you in his recent questioning, that try to paint you as some kind of an activist with a radical agenda. And in my review of your experience, you're your record, these letters from judges and scholars, I don't see anything that remotely substantiates that claim.

We are here to evaluate your qualifications, your judicial decision- making. So, let me get at a few of these points, specifically, if I could. I've heard references to the 1619 Project and critical race theory, but I didn't hear that cited in my reference to your opinions as a --