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Senate Hearing for Supreme Court Nominee Ketanji Brown Jackson; Sr. Defense Official: Ukrainians fight to Regain Land from Russia; Counter-Attack May Prevent Russia From Surrounding Kyiv. Aired 3:30-4p ET

Aired March 22, 2022 - 15:30   ET



SEN. CHRIS COONS (DE): I've heard references to the 1619 project and critical race theory but I didn't hear cited in reference to your opinions as a judge. In your nine years on the bench as a District Court judge more than 570 decisions, have you ever cited the 1619 Project?


COONS: In your nine years on the bench and more than 570 opinions, have you ever cited the journalist or principal author of that 1619 Project, Ms. Hannah-Jones?

JACKSON: I have not.

COONS: And in your nine years on the bench and more than 570 decisions, have you ever used, employed, relied upon critical race theory to determine the outcome of any case or to impose any sentence or as a frame work for your decision making?

JACKSON: No, Senator.

COONS: Would you just explain briefly what sort of factors you do in fact consider in your analysis?

JACKSON: Senator, when I analyze a case, I am looking at the arguments that the parties raise in the case. I'm looking at the record which is the facts of the case developed -- if I'm on the court of appeals -- developed below. And I'm looking at the law. I'm looking at any statutes. I'm shoeing to the text. I'm looking at constitutional provisions to the extent they are applicable and any precedents related to the case at issue. Those are inputs that are appropriate for a judge to consider and those are the only things that I use in my decision making.

COONS: Well, I appreciate your laying that out.

VICTOR BLACKWELL, CNN HOST: All right, you've been listening to Senator Chris Coons question Supreme Court nominee Judge Ketanji Brown Jackson. Another quick break here. We'll be right back.


BLACKWELL: Let's go back to Capitol Hill now. Where Senator Chris Coons is asking Supreme Court nominee Judge Ketanji Brown Jackson about Hillary Clinton's e-mails.

COONS: ... both the substance and the timing of the case are really quite striking.


COONS: The RNC made Freedom of Information Act request for certain e- mails involving the former secretary. And despite what the RNC would have us now believe, in this case, you reenforced your deserved reputation for following the law, not a partisan agenda, because you ordered USAID to produce thousands of pages of document related to Secretary Clinton. Do you recall when you issued that order?

JACKSON: I don't.

COONS: Well, I'll tell you. It was just before the presidential conventions. So, if there was a moment when the RNC had a political objective, it was right before the convention. And you actually issued a ruling that they were entitled to e-mail production from that USAID on the basis of legal arguments presented to you, the statute at issue and the evidence, is that correct?

JACKSON: That is correct.

COONS: Well, your honor, I'm, you know, I'm frankly really struck at the fact that, you know, for all the back and forth in Senate hearings and academic circles about the judicial philosophy of Supreme Court nominees, you've shown what the experience of nearly a decade overwhelmingly spent on the District Court has produced. A methodology and approach that looks at the Constitution, the statute, the facts, the arguments of the parties and reaches a result. Without fear of favor, without taking into account the partisan issue at stake.

You know, I don't believe that a judicial philosophy is always all that meaningful. The judge for home I clerked on the Third Circuit had spent years is a District Court judge and when I asked her, you know, what's your judicial philosophy. She looked at me and said I just call balls and strikes. I'm a judge rules on the case before me in exactly the same frame that you offered.

A judicial philosophy does not in and of itself constrain a judge. What constrains a judge is a judge who is willing to be constrained. Who understands that the role of the federal judiciary is a limited one. And so, the real question I think a president should consider when they make a nomination, the question that we as Senators need the answer to in order to perform our function of advice and consent and the question I think resonates best with the American people. Who are concerned about this hearing and this nomination and how it will impact the country and their lives is sort of what kind of justice will you be. We want to know if you'll be fair. We want to know if you'll be

faithful to the Constitution and to the rule of law. You've been a judge almost 10 years and you've written more than 570 opinions. I'd say your record as a judge is the best answer to the question what kind of justice you will be.

How will you say, your honor, that your approach to judging on the District Court related to the way you are now judging on the Circuit Court and what approach do you think you will bring with you if confirmed to the Supreme Court?

JACKSON: Thank you, Senator. My approach all the way through is one that I believe is required by my duties, by my oath as a judge. We rule without fear or favor. We are independent as judges in our responsibilities.


We understand at the District Court level, at the Court of Appeals level and at the Supreme Court that judges are restrained, are constrained in the exercise of our power under our constitutional scheme. My methodology is designed to help me to make decisions within those confines at every level. It's no different now that I'm on the Court of Appeals than when I was on the District Court with respect to my understanding of the constraints on my authority and my responsibility to be impartial in my rulings. And I think it would be no different at the Supreme Court.

COONS: Well, your honor, I know we've walked through just a few cases today, now. In some ways we've only scratched the surface of your decade and more than 570 opinions you've written. But it's clear to me from what I've reviewed and from just these sample that -- as we heard from colleagues from conservative lawyers, from judges who wrote to the committee that you are judicious and even handed. That you have a demonstrated record of excellence. That you adjudicate based on the facts of the law and not as advocate activist or partisan.

And I encourage my colleagues who want to know what kind of a justice you'll be to take a fair and even-handed look at your record, at your impartiality and your methodology.

Your experience is extensive and broad. Your commitment to follow the law impartially without the influence of politics is evident in your record. Your keen legal mind, judicial temperament and impeccable character are playing to all. Judge Griffith told this committee and a review of your record makes clear, you've demonstrated that the way you approach cases is based on the law and not on some political agenda.

You understand the reason why the robes of our federal judges are black, not red or blue. The American justice system, as many have said, is rooted in the impartiality, the independence and the reliability of our federal judicial system is one of the most critical bull works of our system of ordered liberty.

No wonder that when you came before this body to be confirmed for the District Court, then the Circuit Court, you earned and received bipartisan support. I know President Biden counts nominating a Supreme Court justice among the most significant decisions of his presidency. And our role here in the Senate in confirming it justice to our highest court is among our most solemn obligations and greatest privileges. So, in nominating you I believe our president has met his mission and it will be my honor to join the overwhelming majority of my colleagues in supporting your confirmation as an associate Justice of the United States Supreme Court. Thank you, Your Honor.

UNIDENTIFIED MALE: Thank you, Senator Coons. Last week the committee received a letter from the National Coalition Against Domestic Violence representing survivors --

BLACKWELL: Coming up here at the halfway point of questioning for day one for President Biden's nominee Judge Ketanji Brown Jackson to join the Supreme Court. 11 Senators have asked their first-round questions. There's still 11 to go today in round one. So, we'll stop here for some discussion about what we've heard over the last several hours. Including discussion of critical race theory, sentencing of child pornography defendants. Many other things. Let's bring in now CNN anchor and Senior political correspondent Abby Phillip, CNN's chief legal analyst Jeffrey Toobin. Also, with me CNN political analyst and Senior correspondent Natasha Alford and CNN senior legal analyst Elie Honig. Welcome to you all. Let me start with Jeffrey. Your thoughts on what we've heard over the last several hours. Your assessment of what's happening so far?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, the bottom line it seems to me is that Judge Jackson is in fine shape. There's nothing that has come up that would seem to change any votes from a yes to a no. There've been a lot of Republicans who are trying to make political points. Some of which were at her expense. Some of which were at the larger expense of the Democratic Party.

We had a trip to the surreal during Ted Cruz's questioning when there was extensive discussion of the summer reading list that the Georgetown Day school. The relevance of which was really hard to see. But I think just in general you see that the judge is knowledgeable, very calm, very thoughtful and someone who knows a hell of a lot more about the law than any of these Senators do.


BLACKWELL: All right. Let's take another trip down that summer reading list and get a reminder for people who are joining us late. This is Senator Ted Cruz. He had blowups up of pictures from these children's books of Georgetown Day School in which we know -- and there's the judge taking a break as well. She is on the board of trustees of Georgetown Day School. Here's what we heard from Senator Ted Cruz.


SEN. TED CRUZ (R-TX): If you look at the Georgetown Day School's curriculum, it is filled and over flowing with critical race theory. That among the books that are either assigned or recommended -- they include a book called "Antiracist Baby," by Ibram Kendi. And there are portion 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 is no neutrality. Another portion of the book, they recommend the babies confess when being racist. Now this is a book that is taught at Georgetown Day School to students in pre-K to 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.


BLACKWELL: Abby Phillip, the GOP has been telegraphing that this punch would come. They tweeted out, you know, scratching out KBJ and instead writing CRT. What do you think about this exchange we just watched?

ABBY PHILLIP, CNN ANCHOR, INSIDE POLITICS SUNDAY: Her pause at the beginning of her answer really said it all in terms of just the level of frustration that it seemed she had even while she was answering the questions in an incredibly, you know, sort of judicious manner. But this is exactly the kind of thing that I think some Republicans had been concerned about. Because one of the problems with Senator Cruz's questioning of her along these lines was that he asked her about Georgetown Day School.

And it gave her an opportunity to explain that when she talks about social justice in relation to Georgetown Day School, it is because that school was founded explicitly to integrate schools during a time when the law required that public schools be racially segregated. So, he kind of teed up a softball for her to really sort of undermine this whole avenue of questioning and many Republicans have been concerned this is frankly just kind of embarrassing. It does not lead to anything of substance and she clearly, you know, I think, in particularly because some of this has to do with the school that her kids went to or go to.

I think there was clearly some tension there but she answered all the questions. And at the end of the day, it was Ted Cruz holding up pictures of a picture book. And I think that in the context of a Supreme Court nomination, that just seems sort of below the line of what is important in the big scheme of things.

BLACKWELL: Natasha, you have been sitting with me here for the last hour and 40 minutes and you said several times during that, it's a private school. What's your reaction of what you watch there?

NATASHA ALFORD, CNN POLITICAL ANALYST: Well, you know, Ted Cruz promised that he would not allow a political circus to take place and he was a clown. Right. He put on a performance. So much of what he said was getting at the culture wars in America right now. It was not about Judge Jackson. And that's what I feel is playing out often with criticisms and sort of the questioning from GOP Senators. Is that's not actually about her record. It's about how can we take issues that are controversial and somehow try to tie them to her. Being soft on crime, quote unquote. Or even CRT which she mentions in a very long quote along with other elements of law, like criminal law or constitutional law. So, there's distortion. There's grasping. There's cherry picking of quotes and it all just sort of wreaks of desperation.

BLACKWELL: Elie, let's turn to the child pornography defendant line here. Ted Cruz said that he saw in Judge Jackson an activism and advocacy as it concerned sexual predators, sexual offenders. Is he trying to argue that she is pro-child porn defendant? I don't know what that line of questioning was about specifically. Would you pick up?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: It almost sounded to me like that's what he was trying to do, which is a ridiculous line of attack.


This whole argument is wildly misleading and I'm being polite, the way I'm phrasing that. But let me explain why. In every federal criminal case, the judge has to calculate the sentencing guidelines. It is a big thick book. You have to run the numbers. And then it says here's the recommended sentencing range. It is not mandatory but the judge has to consult it.

However, reality is across the country there is a broad consensus, Democrat, Republican, liberal, conservative, that those numbers -- not unanimous -- but that those numbers tend to be too high in possessory child pornography cases. And if you look at the numbers in nearly 59 percent of all cases judges across the country sentence below that recommended range. And we saw how Judge Jackson in some but not all cases did that. And she -- I think her answer was right on point. She said my job in every case is to consider the factors that Congress, you all, have told me to consider and then all the facts of the case and to give a just sentence.

BLACKWELL: Yes, well we know Josh Hawley is going to come up and bring this to Judge Jackson. He has certainly said that will be part of his questioning. We are going to take a break. Abby Phillip, Elie Honig, Natasha Alford, Jeffrey Toobin, thank you all.

Of course, we are following more breaking news out of Ukraine. There's been a counter attack on Russian forces as Ukraine appears to be retaking some of the territory. More only, next.


BLACKWELL: There are signs of progress for Ukrainians against the Russian invasion, that's according to a senior U.S. defense official. They said that Ukraine's forces are now fighting to take back land the Russians had captured. And he describes Ukraine's defense as nimble and agile in their push to regain southern territory in Kherson and Mykolaiv.

The Ukrainian forces posted online they've regained control of Makariv, a town 30 miles west of Kyiv. They claim the state flag of Ukraine was raised over the city as the Russians retreated.


Now CNN cannot confirm that detail. A senior Pentagon official says the U.S. has also seen indications some Russian soldiers are suffering from frostbite because of a lack of proper gear. Still, this port city of Mariupol which is about 35 miles from the Russian border remains under siege. Russia has launched new attacks using approximately seven ships in the Sea of Azov.

Ukraine's president said the port city, once populated with 450,000 people is being reduced to ashes. Now U.S. and NATO officials believe that Belarus could soon join Vladimir Putin's forces. The Western officials say that Belarus has already taken steps to join Russia's invasion, although a U.S. defense official said the Pentagon sees no indication that Belarusian forces are preparing to move in.

CNN's senior international correspondent Fred Pleitgen is in Kyiv, which is now under curfew. Fred, we know there had been several explosions over the last day. What have you been seeing and hearing about this Ukrainian counter offensive?

FREDERIK PLEITGEN, CNN SENIOR INTERNATIONAL CORRESPONDENT: Well, hi there, Victor. Well, there was actually a massive battle raging here throughout the course of the day. Especially in the northern outskirts of Kyiv. We had air raid sirens that were going off throughout the day. But really also a lot of thuds that could be heard, explosions that could be both heard and seen.

And as I said, a lot of that concentrated on the northern outskirts of Kyiv. Especially the northwestern outskirts of Kyiv. And that's where we saw of the video that you can see on your screen right now. That black smoke really engulfing that part of the city. With, you know, explosions going off at various times throughout the day. So, it certainly seemed to us as though there was a lot of fighting going on up there.

It's very difficult for to us see because the Ukrainian officials haven't really said anything about it yet today. Whether or not it is a Ukrainian counter offensive that's going on up there or whether or not the Russians might be making some sort of push.

But certainly, from what we've seen on the ground here, over the last couple days, especially over the last 24 hours, is that Ukrainians have seemed to have moved some more assets into that area and certainly taking the Russians under fire. And you mentioned the town of Makariv that the Ukrainians said they have taken back. That would be sort of part of the same kind of frontline there in the northwestern part, or to the northwest of Kyiv. Where the Ukrainians say they want to try and push the Russian forces back.

There was one massive loud boom that we could hear in the capital city. And the Ukrainians later said that they shot down a Russian missile that was fired here toward the Ukrainian capital. And where the remnants of that they said landed in the Dnieper River. Which is of course the river that runs here through Ukrainian capital. And right now, Victor, things have become a little more quiet now that sort of night has fallen and daylight is gone. But certainly, it has been a day of very heavy fighting here in the capital -- Victor.

BLACKWELL: Fred Pleitgen for us there in Kyiv. Fred, thank you.

A short time ago we learned from the White House that President Biden will announce more sanctions on Russia when he joins fellow members of NATO at a summit in two days. Let's go now to CNN's MJ Lee at the White House. So, the U.S. will be rolling out this in conjunction with other NATO countries?

MJ LEE, CNN WHITE HOUSE CORRESPONDENT: That's right. White House National Security Advisor Jake Sullivan just announced that there will be a new round of sanctions against Russia that are announced on Thursday. And as you said, this will be announced in conjunction with other U.S. allies.

Thursday, of course, is the day that President Biden will attend this extraordinary NATO summit and meet with leaders of the G-7 and the European Council. And what Jake Sullivan said was that of course, he's not going to get into the specifics before the announcement, but that it might be useful to think about this in sort of two buckets. So first, there is the announcement of the new sanctions.

And then second, there is the enforcement of the sanctions going forward. So, we're talking about countries that might try to evade these sanctions, or also help Russia get around those sanctions as well. Take a listen.


JAKE SULLIVAN, NATIONAL SECURITY ADVISOR: One of the key elements of that announcement will focus not just on adding new sanctions, but on ensuring that there is joint effort to crack down on invasion, on sanctions busting, on any attempt by any country to help Russia basically undermine, weaken or get around the sanctions.


LEE: So just this next phase of the global efforts to try to contain Russia and punish Russia, we are going to learn a whole lot more come Thursday. I will just quickly note, too, one country that the U.S. is watching very closely is China. And Jake Sullivan just told reporters, that at this moment in time the U.S. does not believe that China has participated in providing military assistance to the Russians -- Victor.

BLACKWELL: Yes, has not participated but there is that intelligence that the U.S. government shared that said that they believe that China is open to the possibility. We'll see if they move on that. MJ Lee for us at the White House, thank you.

"THE LEAD" with Jake Tapper starts right now.