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Senate Hearing For Supreme Court Nominee Ketanji Brown Jackson. Aired 12-12:30p ET

Aired March 22, 2022 - 12:00   ET



KETANJI BROWN JACKSON, FORMER VICE CHAIR OF UNITED STATES SENTENCING COMMISSION: I am aware that there are various religious states that define marriage in a traditional way.

SEN. JOHN CORNYN (R-TX): Do you see that when the Supreme Court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably set in conflict between those who ascribe to the Supreme Court's edict and those who have a firmly held religious belief that marriage is between a man and a woman?

JACKSON: Well, Senator, these issues are being litigated as you know, throughout the courts as people raise issues. And so, it's I'm limited in what I can say about them. I'm aware that there are cases.

CORNYN: I'm not asking you to decide a case or predict how you would decide in the future. I'm just asking, isn't it apparent that when the Supreme Court decides that something that is not even in the constitution is a fundamental right, and no state can pass any law that conflicts with the Supreme Court's edict, particularly in an area where people have sincerely held religious beliefs? Doesn't that necessarily create a conflict between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the lamb?

JACKSON: Well, Senator, that is the nature of a right. That when there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs.

CORNYN: We agree, marriage is not mentioned in the constitution, is it?

JACKSON: It is not mentioned directly, no.

CORNYN: And religious freedom and is mentioned in the First Amendment explicitly, correct?


CORNYN: Do you share my concern that when the court takes on the role of identifying an unenumerated right? In other words, is not mentioned in the constitution and creates a new right, declaring that anything conflicting with that is unconstitutional, that it creates a circumstance for those who may hold traditional beliefs, like something as important as marriage, that they will be vilified, as unwilling to assent to this new orthodoxy.

JACKSON: So, Senator, I understand that concern, and because there are cases that are addressing these sorts of issues, I'm not in a position to comment about either my personal views or whether---.

CORNYN: And I'm not asking you too. Justice Alito, in the in the Obergefell case wrote, he said, I assume those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes. But if they repeat those views in public, they will risk being labeled as bigots, and treated as such by government, employers and schools. So, the Obergefell case, we to nerd out with you again, was decided under a doctrine known as substantive due process, correct?

JACKSON: If memory serves, yes, substantive due process, and I think there might have been equal protection concerns.

CORNYN: And the court - the Supreme Court has applied that somehow miss fairly mysteriously by saying, it's created by the confluence of the Fifth Amendment and the 14th Amendment to the United States Constitution. But historically, it's been applied in ways that seem to sanction explicit policymaking by the courts.

For example, the Lochner versus New York case, which I know you talked to Senator Lee about in particular, which was a new deal case, which set limitations on how long bakers could work in New York. The Supreme Court struck that down and said that violated the right of free contract.

Now Lochner as you know, was overruled 30 something years later, but it's also been applied in a number of different circumstances. For example, it's been suggested that Dred Scott, which treated slaves as chattel property was a product of substantive due process.


Justice Hugo Black has criticized the doctrine of substantive due process as the arbitrary FIA of the man or men in power, or the court declaring a law invalid, because it shocked the consciences of at least five members of the court.

He went on to say this use of judicial review thus subverts the liberty of government, by the people overturning laws enacted by legislators - legislatures, who are answerable to the electorate, rather than a majority of the Supreme Court.

Finally, he said - finally, for the purpose of my question, he said, the adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts, which I believe Justice Black that is, and I'm constrained to say will be bad for the courts and worse for the country.

Judge Justice Jackson, why is it substantive due process analysis? Just another form of judicial policymaking, which you've suggested policymaking is not in your lane, or and you strive to be a political something I applaud. But why isn't substantive due process just another way for judges to hide their policymaking under the guise of interpreting the constitution?

JACKSON: Well, Senator, the justices have interpreted the due process clause of the 14th Amendment to include a substantive provision. The rights to due process, they have interpreted that to mean not just procedural rights, relative to government action, but also the protection of certain personal rights related to intimacy and autonomy. They include things like the right to rear one's children.

I believe the right to travel, the right to marriage, interracial marriage, the right to an abortion, the contraception.

CORNYN: Treating of slaves as chattel property.

JACKSON: I don't quite remember the basis for the (Inaudible) opinion, but I'll trust you that that---

CORNYN: What if, the fact is, is it not that you can use substantive due process to justify basically any result?

JACKSON: While the court---

CORNYN: Whether it's conservative or liberal, libertarian or conservative, whatever you would like to call? It's just a - it's a mode of analysis by the court that allows the court to substitute its opinion for the elected representatives of the people. And would you agree?

JACKSON: The court has identified standards for the determination of rights under the 14th Amendment substantive due process.

CORNYN: And who gives them the right to do that? If it's not mentioned in the constitution, where does the right of the court to substitute its views for that of the elected representatives of the people? Where does that come from?

JACKSON: Well, the court has interpreted the 14th Amendment to include this component, the unenumerated right to substantive due process, and the court has said that that the kinds of things that qualify are implicit in the concept of ordered liberty, excuse me, or deeply rooted in our nation's history and tradition. Those are standards that identify a narrow set of activities.

CORNYN: Well, judge, in the Obergefell case, Justice Roberts in his dissent noted that, the court invalidated marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis for human society for millennia. So, that was the basis for the institution of marriage is the practice for millennia and the recognition that marriage was between a man and a woman.

[12:10:00] Now, don't get me wrong. I'm not arguing the merits or lack of merits of same sex marriage. I believe the states and the voters can choose what they will. And that's their prerogative and I think that's legitimate. But when the court overrules the decisions made by the people as they did in 32 of the 35 states that decided to recognize only traditional marriage between a man and a woman.

KATE BOLDUAN, CNN HOST: You've been listening to Republican Senator, John Cornyn, question President Biden Supreme Court nominee Ketanji Brown Jackson. We'll have more questions from Capitol Hill, right after this quick break.




BOLDUAN: And you are watching of the confirmation hearing the Supreme Court nominee Ketanji Brown Jackson. We're going to jump right back into questions from Senator John Cornyn.

JACKSON: Well, Senator, I've not had that particular situation, but I do. I have a methodology that is designed to avoid my importation of policy perspectives. The judges are constrained in our system. That's part of the constitutional design. And so, in all cases, I am looking neutrally at the arguments of the parties. And presumably in a case like this, there would be arguments made on both sides of the issue.

CORNYN: Your Honor, if you'll forgive me.


CORNYN: One reason, I think the Supreme Court's different is because in your previous capacity as a trial judge, of course, you were bound by Circuit Court precedent. And on the Circuit Court, you're bound by the Supreme Court precedent. But as a member of the United States Supreme Court, you will be bound by nothing. You will be unaccountable to the voters. And so, you said you can---

JACKSON: Well, respectfully, Senator, I mean, yes.

CORNYN: So, you're not going to be able to find the answer in some law book somewhere, you're going to be presented with a case and the argument is going to be made. This is an unenumerated, fundamental right. And the voters whatever they've said, is irrelevant. Because we five members of the Supreme Court are going to decide what the law of the land should be.

And anybody who disagrees with us, will be labeled a bigot, or be accused of discrimination. Even if those their beliefs happened to flow from sincerely held religious conviction, like the definition of a marriage between a man and a woman. But you've already told me that you see why this is a concern.

JACKSON: I see why it is a concern. And I would just say that, although the Supreme Court is not, you know, bound in the sense of having to apply prior precedent, there is starry decisis in our system. There are now standards in the starry decisis world that the Supreme Court applies when it's asked to --sorry?

CORNYN: Well, thank goodness, the Supreme Court has been willing to revisit its precedent, or we'd still be living with Plessy versus Ferguson, or Dred Scott. You know, one of the things Senator Whitehouse, and I agree on his, he and others frequently asked nominees for the Supreme Court. Do you think Brown versus Board of Education has settled law?

And believe it or not, some nominees won't answer the question. I mean, it boggles the mind. I tend to think that nominees for both parties tend to be over coached. And not - and told you can't be - if you don't answer the question, you have a better chance of being confirmed. But some of these things are obviously settled.

And I wish we had a more candid conversation about the source of the power that unelected lifetime tenure judges have to basically rule America, when they decide that something is an unenumerated fundamental right.

Let me in the minute 48 seconds, I have, asked you about a specific case. You remember U.S. versus brown. This was a guilty plea, and where you were asked to assess a punishment. And at one point in the proceedings, you said, I'm going to state for the record, however, that this court has a longstanding policy disagreement with the criminal history guidelines with respect to the application of the two-point enhancement. Do you remember when you said that?

JACKSON: I don't remember that particular statement.

CORNYN: How is that policy disagreement different from other disagreements, where you said that you're not going to get out of your lane, you're not going to get into the policy lane?

JACKSON: Yes, Senator. The Supreme Court in the sentencing realm has made the guidelines, the sentencing guidelines advisory. They used to be mandatory. Judges used to have to calculate the guidelines for sentencing purposes, and then essentially apply a sentence within the guideline range.


In a case called United States versus Booker. The Supreme Court determined that the guidelines were are advisory now, so they don't have to be applied in every case that you have to calculate them. But judges have more freedom to give effect to Congress's the various provisions in the statute related to sentencing.

In Booker, and in its progeny, the Supreme Court made clear that judges at sentencing---

CORNYN: Judge, I only have a limited amount of time. So, let me just close on one other question. And forgive me for interrupting.


CORNYN: But there's such a thing as a judicial filibuster to---

JACKSON: Sorry. I was trying to get to the point.

CORNYN: Let me just ask, I don't know you well, but I've been impressed by our interaction, and you've been gracious and charming. Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing? It seems so out of character for you.

JACKSON: Senator, you may have been taught. Are you talking about briefs that I or habeas petitions that are filed?

CORNYN: Talking about when you were representing a member of the Taliban, and the department of defense identified him as an intelligence officer for the Taliban, and you referred to the secretary of defense and the sitting president of the United States is war criminals. Why would you do something like that? It seems so out of character.

JACKSON: Well, Senator, I don't remember that particular reference in I was representing my clients and making arguments. I'd have to take a look at what you meant. I did not intend to disparage the president or the secretary of defense.

CORNYN: Well, what being a war criminal has huge ramifications, you could be subject to the jurisdiction of the International Criminal Court and hauled before that international tribunal and tried for war crimes. So, it's not a casual comment, I would suggest. Thank you.

CHAIRMAN SEN. DICK DURBIN (D-IL): Thank you, Senator Cornyn. Senator Whitehouse?

SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Chairman. Judge Jackson, good to be with you again.

JACKSON: Good to be with you.

WHITEHOUSE: I know that a great many people are extremely proud that you are here today. I don't know that there are a great many who are prouder than Bruce Selya. And so, with your permission, I'll take a moment and offer into the record some of his comments about you. And then, maybe give you a chance to reciprocate with a word about him.

But yesterday in my opening remarks, I mentioned the Boston Globe article in which Judge Selya said that about you. She has absolutely everything you'd want in a Supreme Court justice. She has all the tickets in terms of her intelligence, her education, her work experience and her demonstrated judicial temperament.

I see some of the same qualities in her that I saw in Ruth Bader Ginsburg, humility, the ability to inspire others in a quiet way, not at the top of her voice. Some people have the capacity to inspire by example, in the force of their reason. Intellectually, she is very smart, very well informed, and she's very hardworking and focus. She gets the big picture.

Asking I've consented the globe article be admitted into the record, without objection. But he didn't stop there. Your honor. He went on to WPRI, a local station in Rhode Island and said about you. She's worked hard. She deserves it. And I literally don't think that the president could have made a better choice.

I think she'll be a terrific addition to the Supreme Court. She listens to what other people have to say but makes up her own mind. She has a very scholarly approach toward the law. She has a very winning personality. She's kind of the people she comes in contact with. And she has a certain humility that I find very attractive in people. May ask you unanimous consent that the statement from WPRI be put into the record?

DURBIN: That objection.

WHITEHOUSE: Judge, I tell you, went on law 360 and said, I sense that she, you, she has the same sort of desire to achieve consensus and a pragmatic streak that is characterized some of justice Breyer's work. I think she will be quite balanced. I have not found her to be an ideologue.


She understands what the job of being a judge or being a justice is. She wants very much to do it in the right way. And she will bend her considerable talents to that direction and won't get distracted by any extraneous considerations or side issues.

I think the country will appreciate that and will appreciate that this is a woman who understands the importance of the position and will give 100 percent of her talents every day to do that job in the right way, and in accordance with her oath of office. Unanimous consent that that be put into the record?

DURBIN: Without objection.

WHITEHOUSE: And then finally, the Providence Journal, our home state newspaper. Katie Mulvaney, in an interview heard Judge Selya say, I think it's a terrific appointment. She's a very thoughtful person and wonderfully well qualified. I'm happy not only for her, but for the whole country. She listens well. She gets the whole picture. Has great respect for the rule of law. I think she's got the whole package. Unanimous consent that that article be put in the record?

DURBIN: Without objection.

WHITEHOUSE: So, any reflections on Judge Selya?

JACKSON: Well, that was very moving. Thank you, Senator, for reading his lovely remarks. It's exactly who I know, Judge Selya, to be always eloquent, always insightful. And I'm so flattered by his admiration because he is someone that I have admired my entire professional life. He taught me how to look at issues very carefully. How to write in a lot of ways because of the way in which he's so fastidious with his opinions. And he's been an extraordinary mentor and role model for me.

WHITEHOUSE: Well, we are very proud of him in Rhode Island, as you know, he's on senior status. And when he went on senior status, we're able to recommend the Rogeriee Thompson to succeed him, of whom I think Rhode Islanders are equally proud. And she has now gone on senior status. And Mr. Chairman, I hope will be considering shortly and equally impressive Biden nominee for her position.

On an unrelated subject and it relates to yesterday's activities. You can relax a moment, your Honor. This will not be a question for you. But a lot was said in this room yesterday about dark money by our Republican friends to the point where one of the headlines about yesterday read Republicans' hammer dark money groups.

And I'll be the first to concede that there is dark money on both sides. And I hope very much we can get rid of it on both sides, shortly by legislation. But there is a difference, I believe between a dark money interest rooting for someone and rightwing dark money interests having a role in actually picking the last three Supreme Court justices.

Now, how do we know that they had a role in doing that? Well, we know because everybody involved said so, was pretty straightforward stuff. President Trump said, we're going to have great judges conservative, all picked by the Federalist Society. That's pretty plain.

Senator Orrin Hatch, former chairman, was asked --some of it was said, some have accused President Trump of outsourcing his judicial selection process to the Federalist Society, I say, damn right. The co-founder of the Federalist Society said that the administration is relying on the federal society to come up with qualified nominees.

And then Don McGahn, who ran the operation for Trump in the White House said, I've been a member of the federal society since law school, still am. So frankly, it seems like that role has been insourced. So, there's pretty clear and pretty broad agreement that that selection process took place out of the public eye, and it appears to have been informed heavily by dark money interests.

They were not alone, in saying this. Here's Laura Ingraham on Fox News. Concerned about abortion cases coming up before the court, we have six Republican appointees on this court. After all the money that's been raised, the Federalist Society, all these big fat cat dinners. If this court was six justices, cannot do the right thing. And I think it's time to circumscribe the jurisdiction of this court. That's the way to change things finally. So, we have people who are in a position to know, what's going on behind the scenes describing the six Republican appointees on the court.