Judging Freedom - Ketanji Brown Jackson confirmation hearing

Episode Date: March 22, 2022

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Hello there everyone, Judge Andrew Napolitano here with Judging Freedom. Today is Tuesday, March 22nd, 2022. It's about 2.40 in the afternoon here on the East Coast. I've been spending part of the day, because they're a little boring, even though this is my field, the Constitution, watching the confirmation hearings of Judge Katanji Brown Jackson before the Senate Judiciary Committee. There were some fireworks, and we found them for you. I'll lay this out for you. Senator Lindsey Graham, a conservative Republican from South Carolina, was interrogating Judge Jackson. She, President Biden's nominee to fill the seat of the retiring Justice Stephen Breyer,

for whom she once was a law clerk after she graduated from Harvard Law School. Senator Graham is very frustrated about the treatment of detainees at Guantanamo Bay. He seems to feel, and the Supreme Court has disagreed with him on this, and the Supreme Court makes these decisions. He seems to feel they should have no rights and they ought to be able to be locked up with the key thrown away. Justice Jackson represented an interesting array of clients, some left progressive clients and some right libertarian clients, all of whom argued in favor of putting these people on trial. And if there's not enough evidence to try them, sending them back. In many cases, there's not enough evidence to try them. The government doesn't even know who they are or how they came into the government's custody. Many of them were

arrested by militias in the Middle East and were sold as if they were slaves, were sold to the American military. But some of them, there's a lot of evidence against them and the government ought to try them. There has not been a single trial at Guantanamo Bay in the 20 years that it's been open. This is frustrating to Senator Graham because he's the architect of the system in place there. I remember arguing on Fox News at the time with some of my colleagues, there's an old phrase, military justice is to justice as military music is to music, meaning you don't want to go there. It's slow, it's ponderous, and because careers in the military change, the prosecutors and the judges change, as keeps happening in Guantanamo Bay. So Justice or Judge Jackson,

when she was just Mrs. Jackson, wrote a brief in support of the argument that the detainees should be tried or let go. Senator Graham was saying, well, you wrote this brief, you must believe it. And she's saying, it's the position of my clients. It's not my personal position. We're going to show you that. And then we're going to show you a few minutes later, the Senator losing his cool. I wouldn't say stormed out, but without saying anything to Judge Jackson or being polite to her, he just got up and left. Here we go. More of the briefs, you argued that the executive branch doesn't have that option. That if you had had your way, the executive branch could not do periodic reviews about the danger

the detainee presents to the United States, they would have to make a decision of trying them or releasing them. Is that not accurate? Respectfully, Senator, it was not my argument. I was filing an amicus brief on behalf of clients, including the Rutherford Institute, the Cato Institute, and the Constitution Project. When you sign on to a brief, does it not become your argument? It does not, Senator. If you are an attorney, you're not going to be a lawyer.

Look at the friggin' Afghan government. It's made up of former detainees and Gitmo. This whole thing by the left about this war ain't working. Well, he has a problem with his temper, and I thought he was very rude to her, and his point is he's unhappy at the situation in Afghanistan. I mean, going way back when he and the late Senator John McCain were the principal neocon arguers in favor of invading Afghanistan. President Donald Trump said he was going to pull the troops out. He pulled a lot out, but under President Joe Biden's watch, the last of the troops came out, and then we know what happened. The bad guys took over again. It was a colossal, colossal waste. But Senator Graham's problem is really with the Supreme Court, because the Supreme Court ruled five times that the detainees

in Guantanamo Bay, because they are persons, because they are human beings, are entitled to the protections accorded to persons in the Constitution. Senator Graham believes, contrary to history and contrary to the plain meaning of the text, that somehow the rights in the Constitution only protect Americans. Supreme Court has said wherever the government goes, the Constitution goes with it, and whoever the government confines, as long as they're a person, a human being, they have the rights that are recorded persons. So he's venting his anger at the case, all the cases that the George Bush administration lost. There were five Supreme Court arguments about Gitmo. Excuse me,

there were six. The bush administration lost five and the fifth just had to do with where a person was going to be tried uh new york chicago or south carolina but the five substantive ones about what rights the detainees have the government lost senator graham's bitter and he's taking it out on Judge Jackson, which is absurd. First, when you sign a brief, it doesn't mean that you personally believe those arguments. It means these are the arguments your client wants. Before I was a judge, I was a litigator, and I represented a lot of clients, many of whom I got to know well, some of whom I didn't want to know well,

and I would never invite into my home. But I made the best arguments I could for those clients, whether I agreed with the arguments or not. I don't know if Senator Graham ever practiced law. He is a lawyer, but if he did practice law, he would know that that is a true and accurate statement of the relationship between the litigator and the client. Judge Jackson is correct. And as for the state of affairs in Afghanistan, that's the fault of those who caused Afghanistan to be invaded and wasted $2 trillion. And Judge Jackson is not among them. Look, there was a time when Supreme Court justices were just put on the court by presidents while the Senate was in recess. They sat there for three or four months. If the court liked them and they liked the court, then they were confirmed by the Senate.

But since the fiasco involving Judge Robert Bork, nominated by President Reagan in 1987, a nomination that was defeated by a very narrow vote. These Supreme Court hearings have become spectacles, usually spectacles in which the senators are addressing their constituents back home. Senator Graham may have a short temper and he may be incorrect on understanding the relationship between a litigator and the client, but he's a lawyer, he's a politician, he's not stupid. He understands that his folks back home are watching him and he obviously wants to make a point whether it has anything to do with Judge Jackson's worthiness for the court or not. I think she'll be confirmed. I think she'll get some Republican votes, obviously not Senator Graham's. If more of this happens, we'll bring it

to you, Judge Napolitano, for judging freedom.