Strict Scrutiny - Backwards and in High Heels

Episode Date: March 28, 2022

Leah, Kate, and Melissa watched all the confirmation hearings for Judge Ketanji Brown Jackson-- so you don't have to. Here's our recap of the best, worst, and weirdest moments throughout four days of questioning. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. And also for the moment, it is a KBJ Stand podcast. And we are your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. Maybe not just for the moment. This

may be a KBJ Stand podcast for quite some time. And that is why this episode is going to be the rare, somewhat happy episode of the podcast. Or maybe the first 10 minutes will be a happy segment as we recap the confirmation hearings for the next Supreme Court justice, Judge soon-to-be Justice Katonji Brown Jackson. There is so much to say about these hearings that we are going to bracket all other SCOTUS news, including a lot of news related to Justice Clarence Thomas, who is hospitalized with an infection for a week and just discharged today, Friday, and also his wife, Ginny Thomas, whose activities I couldn't possibly summarize in a brief sentence and so won't even try. But we will be returning to both topics on a later episode,

so stay tuned for that. Just one little thing. We've been saying all along that there are so many Ginny Thomas shoes to drop, but we had no idea she was the Imelda Marcos of the Heritage Foundation. Like there's so many shoes. The room's full of shoes. It's going to get crazier. Okay. But for today, the hearings. Dear listeners, the three of us did the unthinkable and listened to virtually every minute of the hearings this week, which is why my anger levels are already at like 100 out of 10. And we did this so you don't have to. We will talk about the highlights and the incredibly lowlights of the hearings. And don't worry, we have spared you the full Josh Hawley segments.

Although honestly, like was he even the worst? You know, Marsha Blackburn made a big opening play for the worst. There are some other strong contenders. But let's start at the beginning, or at least on day one. So this episode doesn't become all about the senators. Why don't we start with Judge Jackson's opening statement and maybe a few highlights? So we knew that Judge Jackson was a speech and debate champion, and she was a champion in original oratory, which means that she would write her own speeches and then deliver them. And apparently she was so good at it that her co-captain on the debate team referred to her as the Simone Biles of oratory. And he was not wrong. There were some amazing moments in her very poignant, personal and meaningful introduction

to the Senate Judiciary Committee and to the country. She talked very movingly about the gratitude she felt for her parents. And she talked about how her parents had grown up under Jim Crow segregation, but believed that her path and her future would be clearer. And that if she worked hard and believed in herself, she would be able to do great things. And here she was before the Senate Judiciary Committee being vetted to be a justice of the Supreme Court. So that was an amazing introduction. And again, such a beautiful testament nod to her parents who were beaming with pride behind her.

For so many hours, for days and days, I couldn't believe their stamina. But I mean, what an incredible moment for them. God. There was also in her opening these remarks that totally brought tears to all of our eyes. And I'm sure many other people's eyes. I may get the waterworks going just describing this moment. But when she said, I'm saving a special moment in this introduction for my daughters, Talia and Layla. Girls, I know it has not been easy as I've tried to navigate the challenges of juggling my career

and motherhood. And I fully admit that I did not always get the balance right. But I hope that you've seen that with hard work, determination, and love, it can be done. I am so looking forward to seeing what each of you chooses to do with your amazing lives in this incredible country. I love you so much. Melissa, as we have mentioned on the pod before, you wrote a wonderful op-ed about how senators and the public more broadly should focus on how KBJ is also a working mom and give her the same credit and celebration that was afforded to Justice Barrett when she was before the same committee. Alas, I think at the end of the week, we can say that did not happen on the part of the Judiciary Committee. But you know what? She stepped up and made the same point herself.

I thought it was also really moving, not only that she gave the shout out to her daughters and acknowledged how difficult the juggle of motherhood and work can be, but she introduced her husband, Patrick. And as she did this, he was just sobbing behind her. And I was like, ladies, get you someone who sobs when you talk in a good way, the way that Patrick Jackson sobbed when she talked to him. And she said to me, Patrick, I love you. Let's play the clip because I'm not doing it justice.

I would like to introduce you to my husband of 25 years, Dr. Patrick Jackson. I have no doubt that without him by my side from the very beginning of this incredible professional journey, none of this would have been possible. We met in college more than three decades ago, and since then, he's been the best husband, father, and friend I could ever imagine. Patrick, I love you. Not only was Patrick Jackson big upping his wife, like super supportive, he brought some real sartorial flair to the proceedings. It was like he knew this is like the three days where I don't have to wear surgeon scrubs

and I'm going to do the most. And so he had, it was like this really cool suit, a sort of a light colored suit. It wasn't like a secret service kind of regulation blue suit. It was like, had a little more flair. And then he wore these very cool socks that apparently come in a four pack of Benjamin Franklin, George Washington, Abe Lincoln, and John Kennedy. He did not wear the Lincoln socks, but he wore the other three for the three days. And every time he crossed his legs, he just gave a little flash. And so I respect that for him. We see you, Dr. Patrick Jackson, MD, and we salute you and your flair. We should also salute just how on the ball he was with the hydration, right? He was providing

bottles of water, freshening up her tea. He seemed to be attending beautifully to Judge Jackson during this grueling 22-plus hours of questioning. And I salute him for that, too. He's watched how the second gentleman does his job. And he's like, I can do that, too. And I love the energy. I love the energy. I wish some other people would also watch. Where's my water? I'm parched. So Judge Jackson in her opening

statement also reiterated some of what she had said in her speech when the president nominated her saying how humbling it was to be considered for Justice Breyer's seat, invoking what Justice Breyer said at his confirmation hearings. And she again ended with a reference to Judge Constance Baker Motley. I stand on the shoulders of so many who have come before me, including Judge Constance Baker Motley, who was the first African-American woman to be appointed to the federal bench and with whom I share a birthday. And like Judge Motley, I have dedicated my career to ensuring that the words engraved on the front of the Supreme Court building, equal justice under law, are a reality and not just an ideal. Her opening statement was so good, it made TMZ. TMZ was literally like,

we're going to take a break from Bennifer 2.0, just maybe for an hour, and we will focus on this. This is what it means to make history. And she did it. All right. So I want to set the stage here for another, I think, quite poignant moment in the process. And it was Cory Booker's opening remarks. And Cory Booker is going to have a couple of poignant moments because he too was sort of on the hydration team for KBJ. Hydration being a metaphor in many ways. Emotional, spiritual hydration. dehydration. Yeah, all of that. Right, right. A bomb for the soul, if you will. But his opening remarks were really memorable because he had this unfiltered, unabashed, almost maniacal joy at what was happening. And it was infectious. It was a lot, but it was also, it was nice to see because he was, I think, sort of saying what so many people outside of the chamber were feeling. So let's have a little clip of Cory Booker really leaning into the moment. Forgive me, I grew up in a small black church where I was taught to make a joyous noise unto

the Lord. And this is not a normal day for America. We have never had this moment before. And I just want to talk about the joy. I know tomorrow and the coming hearings, we're going to have tough, hard questions. But please, let me just acknowledge the fact that this is not normal. It's never happened before. The Senate is poised right now to break another barrier. We are on the precipice of shattering another ceiling, another glass ceiling. It's a sign that we as a country are continuing to rise to our collective cherished highest ideals. I just feel this sense of overwhelming joy as I see you sitting there, as I see your family sitting behind you. So Judge Jackson was introduced by her longtime friend and college

roommate and celebrated professor at Penn Law. And strict scrutiny super guest. And strict scrutiny super guest, Lisa Fairfax, who we had on this show to share some of her experiences with Judge Jackson. Judge Jackson was also introduced by former Judge Thomas Griffith, who was also the former general counsel of Brigham Young University, a former D.C. Circuit judge nominated by President Bush, you know, proud member of the Federalist Society, stalwart conservative. And in his opening remarks, he called Judge Jackson an independent jurist, said she was in no way a partisan, seemed, I thought, to really link opposition to her nomination and the kind of hyper-partisanship that he obviously saw coming, though it had not yet begun, at least in the hearings themselves when he gave this opening,

he kind of linked all of it to the actual, the very rule of law, right? Suggested that if you're committed to the constitution and the rule of law, you really should support her nomination. And actually, you know, linked threats to democracy and the rule of law in the United States to those happening right now in Ukraine and talked about autocrats and their sympathizers and didn't necessarily say he was talking about anybody on the Senate Judiciary Committee in particular.

Josh Hawley. It sort of, it hung there and it was so powerful. So maybe let's play that clip here. The rule of law is a fragile possibility in the best of times. Today, it is literally under attack in Ukraine and is threatened around the world and in our own country by autocrats and their sympathizers who give lip service to the rule of law, but then work to undermine it at every turn. Yeah, look, I mean, I think Judge Griffith was basically saying,

you believe in democracy and the rule of law, you got to vote for Judge Jackson. And a lot of these people are not going to vote for her. And I think there's only one conclusion to draw. Yeah, I endorse. So two other highlights other than Senator Booker, the newest committee members were great. Senator Alex Padilla from California ended his remarks in Spanish. The Supreme Court decides dozens of cases every year that affect our lives and our fundamental rights. And those decisions will affect the future of our country through issues such as a través de temas como el derecho al voto, inmigración, protección ambiental, derechos laborales, y mucho más. Esta semana, el Senado y el país verán

lo preparada y calificada que está la jueza Jackson para la Corte Suprema. We also heard from John Ossoff, the junior senator from Georgia, who, like Padilla, was at his first SCOTUS confirmation hearing, and he invoked the voting rights and the Constitution's unfulfilled promises. For any colleagues who doubt that those promises remain unfulfilled to too many, I remind them that in my state you can predict how long someone must wait to vote by where they live and the color of their skin. In practice, the promises made in the plain text of our Constitution are still too often broken for too many of our fellow Americans. And so the court remains essential to that national process of becoming in real life what America is in text. And now, dear listeners, we come to the others. And at this point, ask your significant other for that hydration and or chocolate and wine.

Something strong. Right. Something strong. Because at this point, we are going to shift to covering some of the themes that came up at the hearing, which we are going to do as a list. And I think if this list had a name, it would be the Federalist Society slash Heritage Foundation list of imagined grievances and threats to the republic and life as we, parenthesis, we white people, know it and like it. Up first on this list is CRT. Because, of course. Because, of course. It is the number one threat facing America today, obviously. Right. So as Leah said, a lot of the hearings were devoted to this long list of cultural grievances that the Republicans on the committee seem to think will

help them in the midterms or drive their base to the polls. These grievances did not have anything to do with Judge Jackson, frankly, anything to do with reality, but that did not stop Republicans on the committee from focusing on them ad nauseum. And the attacks, you know, did have something to do with Judge Jackson in as much as like the not so subtle subtext of these GOP complaints slash questions slash non-questions slash attacks was that because Judge Jackson is Black, she is a radical and she is coming for white people. Like this is false, this is inflammatory, this is racist, I could go on, but that's what was happening here. Like the association with CRT, critical race theory, and Black radicalism is something they can do

because Judge Jackson is Black. They're taking books by Kendi and statements by Ellie Mistal and acting like she ghost wrote them because she's Black. They're basically insinuating you're going to sympathize with the wrong people. Well, it's not just you're going to sympathize with the wrong people, but you are one of the wrong people because you're black like those people. Yep. But I think the real ace of this whole moment was Marsha Blackburn, who really, really seemed to be competing for a slot on the Fox News evening lineup. And she accused Judge Jackson in her opening statement of having a hidden agenda to incorporate CRT into our legal system, to let violent cop killers roam the streets. I can't do it justice. Let's just play the clip. You once wrote that every judge has,

and I quote, personal hidden agendas, end quote, then influence how they decide cases. So I can only wonder, what's your hidden agenda? Is it to let violent criminals, cop killers, and child predators back to the streets? Is it to restrict parental rights and expand government's reach into our schools and our private family decisions? Is it to support the radical left's attempt to pack the Supreme Court? You have praised the 1619 Project, which argues the U.S. is a fundamentally racist country, and you have made clear that you believe judges must consider critical race theory when deciding how to sentence criminal defendants. Is it your personal hidden agenda to incorporate

critical race theory into our legal system? What to say about this? I mean, one thing to observe is that part of the reason it felt so unhinged was because it was such vile rhetoric and delivered in such a faux sweet voice that it just felt like my head was exploding. Yeah, it was very sugary and syrupy. What is the word to describe it? I don't even know. But I mean, it was like, but it was the disjunction between the tone and the rhetoric was really, really remarkable. All I have to say about this is like, literally, Jesus, be a fence, be an absolute fence here. I mean, you know, speaking of the like faux sweet tone and the disjunction, I mean, I am just going to put a little pin slash detour into a rant on white

women for a second, because like the reality is, is like you can use your femininity, which is oftentimes perceived as like weak or non threatening for good or for bad. And here, right, Marsha Blackburn is using it to smear a black woman for being black, you know, other people will use, you know, their white femininity to like, never raise a fuss and to like, cozy up to those people in power. And like, this is basically why Marsha Blackburn is on the Judiciary Committee. You know, she was put on the Judiciary Committee after the GOP had to hire an outsoiled lawyer who was a woman to avoid the optics of their all male panel grilling Christine Blasey Ford. That's what Political Report did, for example. And, you know, so she's there to do these things and to do them in this nice white lady way. And I just want to point out, she didn't even make the Fox Evening News programs on the end

of day three hearings, because the patriarchy is never going to accept you, Marsha, like white women, you need to get this into your brains. And like, part of the insanity for me was, you know, at the end of day one, the GOP was apparently like, yes, this, right? Let's go with this because the official GOP account tweeted out this horrible racist meme that had an image of Judge Jackson and her initials. And then they cross out her initials, KBJ, and write out CRT. It's like no dog whistle, right? Just like a foghorn with a megaphone, right? Projecting to Mars. With space lasers. Anyway, she was a pretty big contender for the most objectionable, but not to be outdone and fresh from yelling at airport personnel in Montana. He screamed apparently at the Montana airport personnel, like, do you know

who I am? Which is big Reese Witherspoon energy, if you think about it. And that, of course, is none other than Rafael Ted Cruz, who was obviously mad that Justice Breyer was approached by TMZ and he wasn't this week. You know, I think I think that was partially what was driving this. I mean, who doesn't want to be pepped by TMZ? Let's let's be real. But yes, the senator from Cancun got in on this line of questioning. He asked Judge Jackson such penetrating questions as, are babies racist? That is the direct quote. Play the clip. We maybe need to also play the pause that followed the clip.

Oh, I want to talk about the pause. I want to talk about the pause. Like, let's play it all. Okay, here it is. 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. 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. Now this is a book that is taught at Georgetown Day School to students in pre-K

through second grade, so four through seven years old. Do you agree with this book that is being taught with kids that babies are racist? Senator, this pause when she answers. This is every black woman who has been confronted with some jackhole saying something to her at work. And you literally pause and you think, do I risk it all and let this catch hands? Or do I keep this to myself, keep my job, continue to feed my children and pay my mortgage? And it was such a long pause. She was like, it was like there were two angels. There's an angel and one and a devil. And the devil was like, tear his ass up.

And the angel was like, no, girl, sit on the Supreme Court. And she was like, oh. And finally she just went with the angel. It was like. She did not choose violence. It must have been tempting. So I told my, I co-teach a mini seminar in the Supreme Court. And we met, you know, at the end of the day of hearings where Ted Cruz asked this question. And I told the students he asked this question.

And I swear half the students thought I was joking. Like they couldn't. No. No. The more important thing is that he's, it's this book, Anti-Racist Baby by Ibram Kendi that is apparently at Georgetown Day in their library. And Georgetown Day is a school where Judge Jackson's children have attended.

It's also a book in the school that Ted Cruz's daughter goes to. Yes. But for the reasons that we just mentioned, she is responsible for the contents of the book. She's obviously responsible for it. Because she's a black woman. Right.

The ghostwriter of Anti-Racist Baby. Yes. My quick insight about this one is I was teaching during that exchange and I came out and looked down at my text messages and someone had texted me, when you think about it, a racist baby would actually be a perfect Supreme Court nominee for the Republican Party. Like, that's actually who they would like to put on the Supreme Court, a racist baby. And I was like, I think that might make sense, but what are you talking about? And then I figured it back out. But I liked the observation. Actually,

that's who they're going to nominate the next time they have a vacancy, or an actual racist baby. A racist fetus. A racist fetus would actually be more perfect. Okay, so we mentioned, obviously, that Cruz's reference specifically to the curriculum at the Georgetown Day School. It has apparently a very progressive curriculum that is, according to Ted Cruz, ruining the republic more broadly, not just in terms of its library offerings. Judge Jackson had a characteristically fantastic response to the criticisms of the school. So let's play that here. 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. I got to say, as an aside on this kind of discussion of the school, it is so vile to me that Cruz and others spent time calling out her children's school by name, at the same time that you are 100% aware of the lunatics you are spinning up with some of your attacks on her, in particular, the ones that suggest that she was soft on crime and child pornography in particular, which we will get to. So that seemed especially vile to me in a week with many, many vile displays. I do know where Ted Cruz's kids go to school.

I would never say it on this podcast. Didn't you love her answer, though? I mean, because it was like, yes, it was fantastic. Are babies racist? Actually, this book appears at a school that Jewish and black parents created in the 1940s to send their kids to school together. I did not know that history. And I loved it. It was amazing. Yeah. She's like the best at all of these responses. She's the best at pausing and not throwing hands. She is the best at giving

considered, detailed, thoughtful responses to stupid-ass questions. Like, she's just the best. And honestly, I feel like that's partially why we'll also get to this. The Republicans escalated their behavior because they realized this is someone who on the substance knows things and can answer questions, and so we just need to scream at her so she doesn't actually get any airtime. They also raised some other cultural grievances. Raising some other cultural grievances is a bit of an understatement, Leah. I mean, this was literally like screaming at her as though you were an unhinged kid rock fan at some concert for hours and hours and hours. I mean, it was just outrageous.

And it was beyond disrespectful. They would never have done it to anyone else. They would never have done it to another nominee. And the next kind of set of cultural grievances is also ones that Marsha Blackburn got started. So she started out in her opening statement talking about how trans women are being allowed to play sports. Moms and dads are very concerned about this progressive agenda that

is being pushed in some of our public schools. Educators are allowing biological males to steal opportunities from female athletes in the name of progressivism. Just last week, an entire generation of young girls watched as those charged with protecting them allowed a biological male to compete and beat a biological woman at the highest level of collegiate sports. Some girls have been forced to share locker rooms with biological males. Rather than defending our girls, those in power are teaching them that their voices don't matter. They're being treated like second-class citizens. And Americans need a Supreme Court justice who will protect our children and will defend parents' constitutional right to decide what is best for their own kids. I agree, Senator Blackburn.

What about the Texas AG's directive that prevents parents from providing their children with gender-affirming therapies? I would love to know more about your views of parental rights. And those views are just so obviously incoherent, right? So one, as you point out, rights for some parents are good, but not others. So that's sort of incoherent, point one. And even before you get there, parental rights, even the ones that Blackburn seems to support, spring from the same constitutional provisions that are the basis for cases protecting the right to contraception and abortion. So, you know, if she's going to go all in for parental rights, there are other unenumerated rights the

Constitution contains that she might have to figure out how to grapple with. So the whole line was just as was basically every point that she spent time on, totally internally incoherent. Kate, I think you're going to have a level of incoherence when you believe the Constitution provides for life, liberty, and the pursuit of happiness. Yeah, Marsha Blackburn just tweeted that out at the end of the hearings. This is what we call textualism. So once again, the patriarchy was like, yes, let's co-opt Marsha's arguments, but be more of an asshole in doing them. So Ted Cruz. It was like a kind of mansplaining her.

It was. It was a he-peat. It was a he-peat. Yes, exactly. Exactly. And in some ways, this is really quite a flex because Senator Blackburn herself was pretty strong on the I'm going to be a jackal vibes. So during the second round of questioning, here is Ted Cruz. OK, if I can change my gender, if I can be a woman and then an hour later, if I decide I'm not a woman anymore, I guess I would lose Article 3 standing. Tell me, does that same principle apply to other protected characteristics? For example, I'm an Hispanic man. Could I decide I was an Asian man? Would I have the ability to be an Asian man and challenge Harvard's discrimination because I made that decision? I would just like to point out, like, Ted Cruz obviously knows the answers to these questions.

Like, men can challenge gender-based restrictions. White people can challenge race-based distinctions. This happens all the time. This is just him screaming at her about cultural grievances. And it's, it was shocking. It was shocking. And this seems like as good a moment as any for a quick break. And now back to the show. Okay, so let's pivot now to something that was, you know, probably the most frequently invoked line of questioning. Questioning actually is really totally the wrong way to describe this. Insane unhinged attacks on Judge Jackson, which is her sentencing in particular in child pornography cases. So we got a bunch of GOP senators insinuating broadly that Judge Jackson is soft on crime and insinuating and sometimes

seeming to basically say that maybe she has a soft spot for child pornographers and people who sexually abuse children, because of course this is how they would attempt to smear the first Black woman nominated to the Supreme Court. And the way they did this was by pulling out of context about a half dozen cases in which Judge Jackson sentenced defendants below the sentencing guidelines range. To be very clear, not only were they accusing her of being soft on child pornographers and putting pedophiles back on the street. They did it in front of her parents and her daughter and her husband. So there was that. More importantly, for our purposes, it is, I think, feeding into a line of discourse

that is very much au courant among the whole QAnon, Pizzagate conspiracy theorists. So QAnon is a once fringe, now likely on the wall kind of theory that posits that there is some kind of Democrat, George Soros-funded deep state that is basically a secret cabal running things, and they are trafficking in children while they are also running the country. And sure enough, after this line of questioning, all of these QAnon accounts were literally pinging off the wall. So the New York Times reported that QAnon supporter Zach Payne declared in a video that Judge Jackson was an

apologist for child molesters. Another QAnon website administrator said that Judge Jackson is a pedophile enabler. There were QAnon telegram channels that noted that she had committed unbelievable crimes against humanity with her judgeship, and some talked about actual violence against her. And again, I'm underscoring the violent aspect of this because the QAnon movement, as it were, is responsible for this Pizzagate theory that Satan-worshipping Democrats were trafficking children out of the basement of a Washington pizza restaurant. And in 2017, a believer in these theories came armed with an assault rifle and stormed in and fired his weapon in that pizza shop. And FYI, this is the sort of ironic part of it, Judge Jackson was the trial court judge in the case where the Pizzagate gunman was sentenced to four years imprisonment for doing so. So the idea that she is soft on crime and enabling pedophiles, it's all

incredibly linked. And it's meant, I think, to target her. And if you think about what has happened in the last couple of years, the death of Judge Salas's son in New Jersey, the threats against other judges, including Justice Sotomayor, that they would do this to me seems utterly reprehensible. I want to spend a beat on this to explain why these claims are meritless, in part because I actually received some DMs from like strict scrutiny listeners that were like, like, this sounds bad. And I feel like this got traction because the Republicans understood that this was theater and they're screaming and doing this stuff that gets picked up for the cameras, preventing her from responding when she did respond.

Right. Like it's a long block that's not getting picked up by the media. And Senate Democrats were also kind of like not doing anything to capture the response in a soundbite that would get picked up. But after explaining why it's meritless, I also wanted to scream back at them and kind of do what Senate Democrats were unwilling to do, like stand up for someone who was being bullied and smeared and treated in just an appalling fashion. So Dahlia Lithwick at Slate has a wonderful piece about, you know, what they didn't do. And that's not because Judge Jackson was unwilling or was unable to defend herself. She did defend herself on the merits. But because she didn't have like Brett Kavanaugh's white male privilege of being able to yell obscenities and attacks at the senators, like there weren't those soundbites that were going to get picked up. And Republican senators were screaming at her and interrupting her. So she didn't have an uninterrupted period to try to explain these things.

Okay, so first, like the merits, what are they talking about? We've talked about the sentencing guidelines on this podcast. What they are is they're a set of recommendations created by the sentencing commission that tell federal judges, like, here's the recommended range in which to sentence people. But the Supreme Court has said federal judges cannot simply say, I will sentence you to the term provided by the guidelines. The guidelines are not mandatory. Instead, there is a federal statute that requires judges to consider a list of factors before they impose a sentence, 3553A. And one of those factors is to impose a sentence that is sufficient but not greater than necessary to achieve the sentencing purposes. The reality is that the sentencing guidelines for child pornography create sentences that are greater than necessary because they aren't tied to the phenomenon of the internet where people can more easily possess a greater quantity

of images than when they used to exchange them in person or by the mail. As a result, in so-called non-production cases where people aren't making pornography, 70% of federal judges sentence people below the guidelines. That happens in 80% of cases in the district where Judge Jackson sits and in 77% of cases in Josh Hawley's district. Trump judges, judges who were confirmed by the Republican Senate under Trump to do this. Judge Bianco did that in at least three cases. Judge Erickson in nine, more than Judge Jackson. Judge Brasher, Judge Thapar, Judge Sullivan, Judge St. Eve. I could go on. The Sentencing Commission authored a report, co-authored,

including by one of the, again, Trump judges on the same court as Judge Jackson, recognizing that the sentencing guidelines don't fulfill Congress's goals. And so the reality is, is that if a judge just sentenced a person convicted of child pornography to a range within the guidelines, that judge would be reversed because they wouldn't be complying with the statute. And if the government thought the judge was imposing a sentence that actually wasn't sufficient, the government can appeal. The government didn't successfully appeal any of Judge Jackson's sentences. Also, in like two of the seven cases, only in two of the seven did she sentence below

the probation office. And one of those actually was within the guideline range. It's just that Josh Hawley didn't agree with her interpretation of the seven did she sentence below the probation office. And one of those actually was within the guideline reigns. It's just that Josh Hawley didn't agree with her interpretation of the guidelines. It's just remarkably bad faith. I mean, Andrew McCarthy of NRO, who is like a conservative conspiracy theorist and opposes Judge Jackson's nomination, said it is meritless to the point of demagoguery. Like these objections have no legs. So we have outside folks like Andrew McCarthy who have been scathing in their indictment of this line of attack. There was also a group of retired federal judges, including several Republican appointees, who told the Senate

Judiciary Committee on Monday night that Judge Jackson's record on these cases is entirely consistent with the records of other judges across the country. So, you know, it's not really in dispute that her practices in sentencing were well within the mainstream. And I thought your point, Leah, about how underrepresented her explanations were in the coverage this week was so true. And in part, I think it's because, one, she was interrupted constantly and had a very hard time actually getting a complete answer out. But two, the one or two times she was actually able in response to Democratic questioning to explain what essentially the dynamics that you were describing here. She did what she does, which is to beautifully and in great detail explain the way the guidelines work, the way the statute requires her to approach these cases, the datedness of the guidelines in this particular area, the reasons for needing to treat these cases consistent with other cases.

And in light of all of the factors the defendant presents, and she did a beautiful job, but I think her very kind of length and clarity, which is something she described her opinions as often reflecting, worked against her in terms of the news cycle because you didn't see those clips circulate and they were just so good if you sat down to watch them start to finish. It wasn't just the length though. I mean, it's true that they were lengthy because they had to be because it was complicated and detailed. And I think the sort of, it's so arcane that I don't think that lay people could understand it even, not that lay people are not smart, but it's so arcane that I don't think that lay people could understand it even,

not that lay people are not smart, but it's just so fine grained and granular. And I, it just doesn't play well on TV. I mean, this is like, I mean, you understand this, Kate, like when you have to explain something for a television audience, like it's very different from what you would do if you were explaining it to law students or to other people who have legal training. And it just doesn't lend itself well to an easy, digestible answer. And I think that was part of the problem. But you know who did have an easy, digestible answer for some of this? One Joe Manchin of West Virginia.

So a reporter asked him about this line of attacks against KBJ and whether she was soft on crime and lenient on child pornography sentencing. And he said he was unmoved. So he was in Paris at the time. And when someone asked him about it, he responded, it's Holly, right? Take that for what it's worth. This is your colleague. Epic neg.

Epic neg. Love it. And he this morning reiterated his support for her and said that he does intend to support her nomination. So that was good news for the Democrats. Perhaps it shouldn't have been good news. Perhaps it should have been expected, but it was good news nonetheless. It's still welcome.

That did make me wonder whether Senator Cruz actually has some competition these days for the most hated senator. I don't know. Holly's putting quite a run for it. Yeah. So just on this point of lengthy responses, I mean, so I get, you know, Judge Jackson isn't and shouldn't be a television commentator. But like the people who need to learn that skill and understood the assignment were the

senators, right? And the Democratic senators, they didn't capture that like punchy response that could be communicated to the public to illustrate why these are such bad faith attacks. I think Senator Booker, right, did have a moment, which I'll play here. I mean, this is a new new low. And what's especially surprising about this is it didn't happen last year. You were put on a court that I'm told is considered like the second most powerful court in our land. And you were passed with bipartisan support. Nobody brought it up then.

Did they not do their homework? Were they lax? Did they make a mistake? I wonder, as they ask you the question, do you regret? I wonder if they regret that, that they didn't bring that out. No. Why? Because it was an allegation that is meritless to the point of demagoguery. I think not only was Cory Booker right, it was a new low. But I mean, I think your point, Leah, is exactly spot on. I think Dahlia Lithwick also made the same point as Peace for Slate. They were not there for her the way that they needed to be. I don't know exactly what the response should have been. We'll talk in a second about the Democratic senators who I did think like did have a response. And the response doesn't have to be going low and screaming at the Republicans about how

they're soft on child predators, although I will do that for like a second. But like, you know, part of the response has to be this is extremely dangerous, right? You are basically fomenting violence against the first Black woman to be nominated to the Supreme Court, right? Creating another Pizzagate possibility. And, you know, when someone raised that to a Democratic senator, they just dismissed the possibility that Republicans were talking to QAnon. And I just think that is ignoring reality.

And then, you know, why didn't a Democratic senator just say like, hey, Josh Hawley, remember when you refused to say whether you were voting for Roy Moore, like the guy who basically trolled malls looking for underage girls? Or like, how's Jim Jordan doing on reporting sexual assault of college athletes? Or remember Donald Trump or Brett Kavanaugh? I mean, Ted Cruz in these hearings referred to the allegations against Kavanaugh as, quote, teenage dating habits. So here's that clip. But your hearing will feature none of that disgraceful behavior. No one is going to inquire into your teenage dating habits. No one is going to ask you with mock severity,

do you like beer? The point is Democratic senators just didn't understand the assignment. They basically abandoned her and they weren't prepared to like create those defenses that were media ready, except for Cory Booker. It is true that I think individuals did, but I mean, this had to be, I think, a coordinated effort.

They had to have a kind of coordinated response to this this that they were like, whether it was like cutting microphones or having an immediate rapid response. But it wasn't enough that individual senators stepped in to sort of make space for her. And even when Durbin did try to cut Cruz off when he went over time, he didn't really control that interaction. Cruz kept interrupting him and continuing. And it was like about two minutes of bickering. And, you know, so I'm not sure even when he tried that it was very effectively discharged. Can I just point out something that's different from the past confirmation hearings? There is no black woman in this room except the nominee, because I think if Kamala Harris had been there, she would have been like... I've been thinking about her a lot. Yeah. Fuck around and find out. Yeah. Exactly.

Yeah. We do want to play the clips of the senators, you know, who did attempt to say something. And again, Cory Booker did this in just an incredible way. And I think managed to like shift the tone of the hearings and like get them, you know, back to a certain level. So let's play his speech now. And I'm telling you right now, I'm not letting anybody in the Senate steal my joy. I told you this at the beginning. I, I have, I I'm embarrassed. It happened earlier today. I just look at you and I, I start of emotion. And you did not get there because of some left-wing agenda. You didn't get here because of some dark money groups.

You got here how every black woman in America who's gotten anywhere has done. By being like Ginger Rogers said, I did everything Fred Astaire did, but backwards in heels. And so I'm just sitting here saying, nobody's stealing my joy. Nobody's going to make me angry, especially not people that are called in a conservative magazine, demagogic. And I want to tell you, when I look at you, this is why I get emotional. You have earned this spot. You are worthy. You are a great American. So you got five more folk to go through. Five more of us. But don't worry, my sister. Don't worry. God has got you. And how do I know that? Because you're here. And I know what it's taken for you to sit in that seat. And then, you know, the two other senators I wanted to highlight were, as we noted in the opening, the two newest members. So Senator Ossoff, as well as Senator

Padilla. So let's play Senator Ossoff basically recognizing what the nominee was forced to go through. You have conducted these hearings with extraordinary poise, strength, grace under pressure. You've had a lot of poison thrown at you. And you've responded with substance and truth. And it's shone through, not just in this room, but across the country and around the world. And then Senator Padilla complimented her composure. Just in closing, not an additional question, but Judge Jackson, I've listened to you respond to questions now for the last 12 hours. And i've watched some of my colleagues take some of your work and some of your views out of context to try unsuccessfully to paint you as someone that you

are not i've been struck by your thoughtfulness your temperament and your integrity in responding to these questions. And I really hope that America is watching today because if they are, they've seen the perfect example of what the temperament of a judge should be. Thoughtful, balanced, and very, very patient. And then she had this wonderful exchange with him that was just another like tear-jerking moment about her advice to young people, her experience being like a Black woman in primarily white spaces. So let's play that clip here. The young people are the future. And so I want them to know that they can do and be anything. And I'll just say that I will tell them what an anonymous person said to me once.

I was walking through Harvard Yard my freshman year. As I mentioned, I went to public school and I didn't know anything about Harvard until my debate coach took me there to enter a speech competition. And I thought this is a great university. It was basically one of the only ones I'd seen. And I said, maybe I'll apply when I'm a senior. But I get there and whoa, so different. I'm from Miami, Florida. Boston is very cold. It was rough. It was different from anything I'd known. There were lots of students there who were prep school kids like my husband who knew all about

knew all about Harvard and that was not not me and I think the first semester I was really homesick I was really questioning. Do I belong here? Can I can I make it in this environment and I was walking through the yard in the evening and a black woman I did not know was passing me on the sidewalk. And she looked at me, and I guess she knew how I was feeling. And she leaned over as we crossed and said, Persevere. I would tell them to persevere.

The back-to-back of Booker and then Padilla at the end of day two, which had been so brutal, the two of them completely reclaiming the celebration, the joy, the historic nature of the moment. Those both felt like very cathartic exchanges in that she was, of course, like, composed, but there were tears on her face, and she was really, really moved. Before we leave this topic, there's just one other thing I wanted to say about, you know, just thinking about history and parallels, which is that in particular, Hawley, you know, I think it was really just Hawley who did this. But the first time he started kind of launching this soft on child pornography offenders line of attack, he started with this really gratuitous description of the images in one of the cases

that he wanted to ask her about. And it was giving me flashbacks, honestly, to Anita Hill being forced by the Senate Judiciary Committee to repeat the horrific things that she'd already told the committee that Clarence Thomas said to her, right? She had to report and then to repeat the things that he said to her. And I honestly thought for a moment when Hawley was describing the materials, he was going to ask her to talk about them. And there was just, and he didn't. So I guess like tiny, tiny little graces that he didn't. But we all had to listen and she had to listen.

And she had already had to review these materials as part of her job as a judge, which is a horrifying part of any sentencing judge's job. And so to be forced to revisit some of the details, just it had this like sadistic and like sexualized feel to it that I thought was just so vile. And again, you know, he was only doing because it was a black woman before the committee and it just felt like there were shades of the Anita Hill exchange. So we really haven't come that far at all, I guess,

is my big takeaway. Know what else we haven't come far on? Interrupting women. Because that was a repeated theme of this confirmation hearing. So I mean, I guess they were just getting her used to being a justice of the court where she is likely, according to Tanya Jacoby, to be interrupted ad nauseum by both her colleagues and the public in general. So let's play some clips of the interruptions. Senator, I've appreciated the kindness that each of you has shown me to see me in your offices, to talk with me about my approach. But my question is, what if during our 15 minutes change, it was very... Senator, she's had nothing to do with the... No, but I'm asking her about how she may feel about what y'all did.

Senator, your time has expired, and I'm going to give her an opportunity to finally complete an answer. So if I could address... Just answer the question. Senator, I don't have any comment on what procedures took place in this body regarding... What'd you think about the Kavanaugh Kavanaugh what I'd like to answer Senator no one case can stand in for a judge's entire sentencing record I've sentenced more than a hundred people you have eight or nine cases in that chart Okay judge you said that before these are the eight or nine child porn cases. I will say to correct the record

I just say to the judge. there's no point in responding. He's going to interrupt you. Thank you. Look, I appreciate the chairman trying to filibuster. And if you don't like your witnesses' answers, you're welcome to provide your own. Senator, I don't know. Do you regret it? I don't remember whether it was distribution or possession in the law.

It was both. Do you regret it? In the law, there are different crimes that people commit in this area. Judge, you gave him three months. My question is, do you regret it or not? Senator, I've tried to explain many times. You regret that we're focusing on your cases? I don't understand. No, no, no. I'm talking about the fact that you're talking about seven very serious cases. I'm glad we agree on that. Some of which involve conduct

that I sentenced people to 25, 30 years. Three months in this case, Judge, do you regret it? You haven't answered my question yet. Do you regret this sentence? So she got interrupted a bunch. And I think she was just like, you know what? I'm a black woman, but I'm not a saint. And at some point she was like, we're done. And she just was like, you know what? I'm a black woman, but I'm not a saint. And at some point she was like, we're done. And she just was like, I've answered this question. Thank you so much. So let's hear that. Why, why didn't you apply the enhancements as they were asked for? Senator, I've answered this question many times from many senators who've asked me, so I'll stand on what I've already said. So now maybe we can go on to some of the other like thematic lines of quote attack.

I mean, there's just nothing here. So they, of course, criticized her for representing people as part of her job as a public defender. You know, when she represented people who were detained at Guantanamo Bay. It's so tired. It's worth nothing. I mean, public defenders, it's like the only constitutionally mandated role for lawyers. And just the like specter and dichotomy of like Lindsey Graham wanting to argue that like detainees at Guantanamo should receive no due process and maybe be tortured, but also that Brett Kavanaugh received an unfair process and

procedure was just like the tension was a little much for me. There was also a lot of discussion of unenumerated rights. And I thought this was really interesting because we've heard unenumerated rights mentioned in confirmation hearings before, but the secret subtext has always been about abortion. But we all recognize that abortion is pretty much on the chopping block and will be dead by June. So why the insistence on talking about this? And I wrote a piece in the Washington Post that recently came out that discusses this. And I think what they're doing is telegraphing what the post-Roe landscape is going to look like. Instead of asking about the views of stare decisis and Roe, they're asking about these other unenumerated rights,

because that's where they're headed next. And again, I just come back to you, you're delusional if you think that abortion is the end game. There's obviously more here. And if abortion isn't constitutionally protected, neither is contraception, neither is same-sex marriage or interracial marriage or any of these other things, like the rights of parents to raise their children in the manner of their choosing. And so I wasn't surprised to hear Senator Blackburn talking about Griswold. Constitutionally unsound rulings like Griswold versus Connecticut. Interestingly, another senator, Senator Braun, challenged the notion that interracial marriages were constitutionally protected.

He later walked that back, probably got a text from Ginny Thomas. And we had Senator Cornyn pressing Judge Jackson repeatedly about her views on Obergefell versus Hodges. That, of course, is the 2015 decision that legalized same-sex marriage. And at one point, he linked Obergefell to Dred Scott. So let's hear that. Let me talk to you a little bit about some of the decisions that have been made by the Supreme Court over many years, starting perhaps with Dred Scott, that adopts the substantive due process argument to determine the constitutionality of various laws. Perhaps the most recent decision by the Supreme Court that was a dramatic departure

from previous laws in the states and in the nation was the Oberfeld case, which dealt with same-sex marriage. And then Senator Kennedy, not to be outdone, Senator Kennedy of Louisiana introduced a new unenumerated right, one that would sound in the register a fetal personhood. Do you have a personal belief, though, about when life begins? I have a religious view. Religious belief? That I set aside when I am ruling on cases. Okay. When does equal protection of the laws attach to a human being? The post-Roe landscape looks awesome. What do you think?

I just want to say a few short things here. One is it was remarkable the shift in tone, the Republican senators, whereas previous confirmation hearings, they've basically been saying, well, of course, no nominee is actually going to overrule Roe. And now all of a sudden, they're laying preemptive defenses for when they do. Second is they're doing with other rights what they did with Roe, right, like launching these seeds and suggesting we need nominees who will question the validity of these other precedents, Obergefell, the right to marriage equality, Loving, the right to interracial marriages, Griswold, the right to contraception. And the reality is, is Roe is linked to all of these decisions, right? The criticism of Roe, it's not in the text. It's grounded in this notion of substantive due process, right? Like that critique applies equally to all of those other decisions.

This is not a subtle or like ball hiding exercise. This is here. Here's the roadmap of what's happening next. And it's a really, really terrifying map that we just got a little peek at. Again, one more note, this is why Democrats need to figure out messaging about the courts, right? Because this is an agenda that truly lacks any semblance of Democratic popular support.

And Democrats need to be able to say, this is what Republicans would like to use the courts to do, right? Like overrule marriage equality, overrule interracial marriages, right? Like outlaw contraception. And there's not much messaging on that point coming out of this hearing. And so, yeah, I mean, I think you're right. There's no strategy here. And, you know, interestingly, and this I think is connected to the topic that we were just talking about, there were a lot of questions, a surprising number of questions, you know, at least I

initially found myself surprised as I thought about it, it made perfect sense, but about court packing, right? So they wanted KBJ to give her position on court packing. She did what Amy Coney Barrett did during her confirmation hearing, say basically this is a matter for Congress. Let's play a quick clip of Barrett responding to Mike Lee. The Constitution does not, that is a question left open to Congress. It's my understanding that it's been nine for about 150 years, but that's as a matter of statute, not constitutional

requirement. But a bunch of people pressed her on this. And I was initially like, I'm kind of surprised this keeps coming up. The Democrats have made clear they're not pursuing court packing right now. And so they're just giving oxygen to something that presumably they're worried about. But as I thought about it more, maybe they are right, the Republicans, that is, to be concerned. Because if the court goes quickly through the checklist that you just walked through, Melissa, and actually starts, you know, upending enormous swaths of American law, just beginning with Roe, but by no means ending there, then maybe we will be, and certainly the Democrats should be, in a position of a very active public debate about the legitimacy of the Supreme Court and potentially pursuing court packing. Obviously,

the viability of any such plan will turn on the composition of Congress. But it's just interesting to me that they are having preemptive anxiety about the possible blowback to this agenda they see this very conservative court pursuing. And I think, you know, maybe they're right that court packing will again be something in the public conversation and on the front burner if the court actually does begin down this road quickly. So I thought it was all interesting in that regard. I think that's exactly right. I think in the same way they've basically dismantled the structure of democracy with gerrymandering and voter suppression to essentially insulate themselves from the blowback that will inevitably come if they overrule Roe.

They are preemptively insulating themselves from the real blowback that will come if they go the full measure, which is to unravel all of these things, because people are going to have a kind of, you know, New Deal moment where they're like, this court is completely lawless, and we need to do something about it. And they're basically using her confirmation hearings as a forum for getting their base exercised about the prospect of court packing being illegitimate. Anyway, in addition to other things they're getting their base exercised about, they're being soft on crime.

And this made me so angry. So both Tom Cotton and Marsha Blackburn focused on rising crime. And Sherilyn Ifill noted on Twitter that the whole prospect of allegedly rising crime rates was also a theme in the confirmation hearings for Justice Thurgood Marshall. So what are the similarities? I'm not surprised that this was also reprising themes from the Marshall confirmation. Marshall, of course, was the court's first black justice.

He was also the last justice that had considerable experience representing criminal defendants. This is the kind of theme I think you get when you have a nominee who is a minority and who has this kind of professional experience. I mean, it's almost like you're in league with criminals and maybe you are a criminal, who knows? Like all of it seems like not too far off the mark. But again, this is for the base. This is political theater for the base. This is political theater for the base. This isn't about her. Yeah. In some, what I also think was kind of political theater, some of the Republicans wanted to like attack the Democrats for like dark money and dark money groups. And here there actually is a senator who is prepared, right, to rebut these attacks in a tone and manner that is ready for primetime. And that

would be Senator Sheldon Whiteboard Whitehouse, who was like, little bitch, please. I brought my charts and here they are. So let's play his rejoinders, or at least an excerpt of them here. 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 right-wing 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. It was pretty straightforward stuff.

President Trump said we're going to have great judges, conservative, all picked by the Federalist Society. If you go back to before this enterprise got underway, the money that came into the Federalist Society from what's called Donors Trust, which has been described as the dark money ATM of the right, a Koch Brothers affiliated operation, back say in 2002, it got $5,000. No big deal. By 2019, when this operation was in full swing, it got $7 million. We don't know who the real donor was because that's the job of donor's trust is to de-identify the donor, to launder the identity off the donation so you can't connect the dots any longer. But $7 million, I think, is quite a lot of money. And unfortunately, the Federalist Society was not alone.

Right down the hallway is something called the Judicial Crisis Network. Its office is on the same hallway as the Federalist Society in the downtown Washington building, although JCN's website and tax filings list a mailing address at a different location, an address shared by multiple companies. And right down that hallway at that judicial crisis network, there's even more money pouring. And here is how much poured into the last three nominations via the judicial crisis network. $21 million related in time to the Gorsuch nomination, $17 million to the Kavanaugh nomination, $14 million to the Barrett nomination.

And of course, we don't know who the actual donor is. Could be the same donor, who knows? And because we don't know who the donor is, we don't know what business they might have had before the court. And they didn't stop with the Trump nominees. They got up on the air, a dark money group using dark money to accuse Biden's Supreme Court nominee, at that point, a player to be named later, Judge Jackson had not been selected at this point,

of being a tool or a stooge of liberal activist dark money. Senator Whitehouse, Sheldon Whiteboard, White House, strict scrutiny, super guest, had a great moment on the external witnesses day when he was grilling the Alabama attorney general, who is one of the witnesses for the minority. He's against Judge Jackson. And White House was essentially like, this you? And was pointing at the insurrection. Do you believe Joe Biden is the duly elected president? And the guy would not say whether or not that was the case. And it was so devastating. You could tell he was a prosecutor. And you just have a master class before all of these things with your colleagues. And just everyone get teched up on how to do this. And it also really drove home,

I think, the subtext of the Griffith speech that you flagged, Kate, namely that opposition to Judge Jackson is rooted in and related to undermining and like threats to the rule of law in this country. Yeah. Okay. So few small things that we also wanted to highlight. Some news that came out of the hearings was recusal. Judge Jackson said she would recuse in the Harvard affirmative action case given her role on the Harvard Board of Overseers. University of North Carolina's admissions policies. So it's possible the court could separately hear arguments in those cases to allow Judge Jackson, future Justice Jackson, hopefully to participate in the UNC case. Yeah, it reminded me of that challenge to the so-called faithless electors a couple of terms ago. Because, right, so DeMaior had a conflict that broke late, and they still decided the case on the merits because they had two cases. So I think there certainly is a way to have her participate in the UNC case.

So she's not completely boxed out of the issue. But they preempted a lot of discussion of recusal, but I think it was probably unnecessary because any discussion of recusal would, I think, prompt questions from the other side about what are you doing about Clarence Thomas? And the fact that his wife may have been involved in that insurrection. Well, I mean, textualism comes in many forms, Leah. Speaking of textualism and text messages. Text message-ism. Okay. You can tell, you all can tell we cannot wait until we get an episode in which we can spend like 30 minutes on this, but not today, not today. One thing I wanted to quickly see what you guys thought about was her response to questions about her judicial philosophy, right, or methodology as she described it. And she really kind of demurred in being, you know, giving some neat encapsulation of her judicial philosophy,

which I thought was totally legitimate. I sort of wish that she had basically said, the truth is that all of the justices are pluralists and that's fine. And we all will look, you know, they all look. I would, if confirmed, look at a range of sources. And among those are text and original public meaning and things like that. You know, she didn't, she wasn't sort of as detailed in this. and did use kind of originalist catchphrases like original public meaning in ways that seemed to broadcast real sympathy with the originalist project without like committing herself to any particular methodology. But, you know, I'm curious what to make of this. Obviously, she did not see

any upside in a prolonged or protracted debate about interpretive methods. But I just wondered whether it was seeding too much methodologically to basically suggest that kind of the only things that were worth really naming were kind of these more conservative methods like textualism and originalism. What did you guys think? I think she was sort of casting herself in the model of Elena Kagan, we're all textualists now, right? I mean, so in a way, I think she was making the point that you're making, it just wasn't crisp in the way that you made it. And I think she was saying, this is a methodology that should be congenial to conservatives and progressives alike, and nothing to see here. It got less pickup, I think, than it should have, because I thought it actually was a really good teaching moment. She was

actually very good at providing lots of public education moments about how courts work, how sentencing works. What she didn't provide public education in, nor should she have, is whether or not there are religious tests for justices. And Lindsey Graham once again screamed at her about her faith and asked her to rate on a scale of 1 to 10 how faithful was she. It was just like, are you hot for God or not? It was really awful. It was actually awful. It was like, rate my Skype room but for your religion.

Literally. Like, are you a 7? Are you a 9? I just want to underscore, this man voted for her to be on the D.C. Circuit a year ago. So this is just manufactured outrage. He has to do this to explain the disjunction between what will be his the D.C. Circuit a year ago. So this is just manufactured outrage. Like, he has to do this to explain the disjunction between what will be his two votes.

But gross. And as poised as she was, she looked horrified by that question. Oh, absolutely. As rightfully so. But I mean, her face didn't have a lot of chill at that moment when she's like, wait, this is literally a religious test for office. And the Constitution has many general provisions, but some very clear ones. And there's a very clear one that says you can't ask me this. Lindsey Graham in manufacturing or trying to manufacture

something to do tried to smear her with guilt by association about the conversation surrounding another possible shortlister, Judge Michelle Childs. So let's play that clip. Did you know that a lot of people from the left were trying to destroy Michelle Childs? Did you notice that? Senator, a lot of people were supporting various people for this nomination. So you're saying you didn't know there was a concerted effort to disqualify Judge Childs from South Carolina because she was a union-busting, unreliable Republican in disguise? Senator, I was, I'm a sitting judge. I was focused on my cases.

No, I didn't know that. No, I didn't know that. No, I didn't know that. Would it bother you if that happened? Part of what's so ridiculous about this is, of course, Judge Childs is still the nominee to the D.C. Circuit. So just completely unhinged. Then he tried to smear her again, you know, basically making her responsible for, you know, everything that every black person has ever said. So let's play that clip here. Here's what I would say, that every group that wants to pack the court, that believes this court is a bunch of right wing nuts are going to destroy America,

that consider the Constitution trash, all wanted you picked. We all know each other. Other moments. Ted Cruz used the hearings to plug his podcast. As one does. I wanted to take a shower when I learned this. Did you guys know he had a podcast? I was like, I don't want to be fellow podcasters or fellow anythings with Ted Cruz. I'm offended on behalf of the medium that he has one. It's true. I knew Josh Hawley had one. I don't know that I knew Ted Cruz had a podcast. This is going to be the guy that kills podcasting. What's it called? Is it called like cruise control?

Wouldn't that be a good podcast name? He's nowhere near as clever as you. No, it's literally, it has, what is it called? I actually- Grievances. Grievances. He was also such a dick to her in the introductions. You and I have known each other a long time. We have.

We went to law school together. We were on the law review together. We were a year apart. Happily so, I hope, Senator. We were not particularly close, but we were always friendly and cordial. It was like a little bit of like the Mariah Carey, like, I don't know her moment. Except not cool. Except it was like, no, that's backwards. You're wrong. Like she should have said that to you. I can't believe she even acknowledged knowing, but Ted Cruz is going to Ted Cruz. Verdict is the name of his, I'm sure, terrible podcast. If I'm feeling really masochistic this weekend. I might listen to a couple of minutes. I will not. I will not. Anyway, some other things. We need someone in the room. I volunteer. I will be a tribute to fact check these senators because it was driving me crazy. So John Cornyn, the senior

senator from Texas who once served on the Texas Supreme Court, noted that the Supreme Court of the United States overruled Dred Scott. I'm sorry, sir, that is an F. It was the 13th and 14th Amendments that repudiated Dred Scott. What case, Senator Cornyn, could you name the case, please? That would be helpful. Like I said, a member of the Texas Supreme Court at one point of his career. He also referred to Lochner versus New York, which was decided in 1905 as a quote unquote, New Deal case. So either the staffers need to get better or the senator needs to go back for con law, but a lot of mistakes, sloppy, sloppy mistakes here. And I felt a little bit like Miranda Priestly from The Devil Wears Prada. Like, no, no, no. Why is nobody ready? Why? That's how I felt. It was just like, this is amateur hour. It's terrible. Anyway, final

thoughts? Final thoughts. I think Senator Booker is right. This is a new low for the Senate. But a new high maybe for nominee performance. Honestly, she was so incredible. Yeah. Twice as good. Yeah. In heels and backwards. All of which is to say, you know, it all made me, I'm sure like all of us, like extremely excited to see what she will bring to the court, you know, including I think just being good at explaining things to the public. And I'm hoping that that will go a long way toward like increasing the transparency of the court and like the public's understanding of the institution and laws. And also just interest in, right? She's such a compelling and charismatic figure, more public attention to the court and what it is doing, especially what it is poised to do, I think is only to the good.

And so I hope that her addition to the court increases the level of public attention and engagement with the work of the court. Judge Jackson, if you listen to this podcast, and there's no reason why you should, but if you do, we were so impressed. We thought you were absolutely amazing under incredible pressure, under the kind of treatment that no one should have to endure in a professional setting. You are absolutely remarkable, an inspiration to us as women lawyers and to our law students. And we agree. It is a foregone conclusion that you are going to be on this court. So we applaud you. We are so excited for you. And we can't wait to see what you do. So KBJ all the way, all the way with KBJ. Cannot wait. I mean, part of what made it so

horrible is that they were doing this to her and she is so wonderful, right? Like just the demeaning horror of it all. She understood the assignment. The Democratic senators might not have. She was the Simone Biles, not just of oratory, but of Supreme Court confirmation hearings. And she is going to make a fantastic justice. and we are going to be delighting in recounting her questions and her opinions for years to come they will be a high point on what is oftentimes a very sad podcast very sad down podcast I mean look we're covering the court. Strict Scrutiny is a Crooked Media production. It is hosted and executive produced by Melissa Murray, Kate Shaw, and me, Leah Littman. It is produced and edited by Melody Rowell with audio engineering by Kyle Seglin, music by Eddie Cooper, production support from

Michael Martinez, Sandy Gerard, and Ari Schwartz, and digital support from Amelia Montooth.