Tangle - Ketanji Brown Jackson's hearing.
Episode Date: March 23, 2022Jackson was nominated to become a United States Supreme Court justice on February 25. Yesterday was the second day of Jackson's hearing in front of the 22-member Senate judiciary committee. Plus, a qu...estion about Tulsi Gabbard running on a republican ticket.You can read today's podcast here.You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.
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From executive producer Isaac Saul, this is Tangle.
Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else.
I'm your host, Isaac Saul, and on today's episode, we are going to be talking about Katonji Brown Jackson, the Supreme Court nominee who sat before the Senate Judiciary Committee yesterday.
But before we jump in, we'll start off with some quick hits.
First up, the Pentagon said Ukrainians reclaimed some territory from Russian forces while intense
fighting continues in the city of Mariupol. Number two, President Biden is headed to Europe today.
He is expected to coordinate
with allies on delivering aid to Ukraine and a new set of Russian sanctions. Number three,
the United States and United Kingdom struck a deal to end tariffs on British steel and American
whiskey. Number four, the Taliban broke a promise to Afghanistan to reopen girls' high schools,
saying they would remain closed until a plan
drawn up in accordance with Islamic law was put into place. Number five, Project Veritas,
the conservative group, said the Justice Department secretly seized a trove of its
internal emails in 2020, just weeks after learning the group had obtained a copy of of President Biden's Daughter's Diary. All right, that is it for our quick hits today,
which brings us to our main topic, Katonji Brown Jackson. Yesterday, Jackson's hearing in front of
the 22-member Senate Judiciary Committee to become a United States Supreme Court Justice
entered its second day. Jackson answered questions for 13 hours about her judicial philosophy and record on sentencing
offenders in child pornography cases, her upbringing, Roe v. Wade, critical race theory,
and which justices she models herself after. She was also accused of calling George W. Bush
and Donald Rumsfeld war criminals, though fact-checkers
quickly shot down the accusation. In a legal filing while representing a Guantanamo Bay detainee,
Jackson referred to acts of torture and indefinite detention as constituting war crimes, but she did
not name Bush or Rumsfeld. In yesterday's hearing, each senator had 30 minutes to ask questions,
and as senators on both sides tend to do, many spent their time
delivering monologues about whatever issues they wanted. Today, senators on the committee will get
another 20 minutes each to question Jackson. There are many angles to cover in a hearing like this.
When Jackson was first nominated, we covered the debate over her qualifications and the historic
nature of her nomination. When these hearings conclude, and she is confirmed, as it appears she will be, we'll focus on the debate about her judicial philosophy and how
she might change the court. Today, we're mostly going to provide commentary about days one and
two of the hearings, the topics discussed, how Jackson was treated, and what we learned.
However, some discussion of her judicial philosophy will be unavoidable. To that end,
it's worth defining a few terms.
Originalism is the enforcement of the original public meaning of a constitutional provision
or how it was understood at the time of ratification. Textualism is when judges
apply the words of a statute to a ruling rather than applying legislative history or original
intent. Both of these terms are typically associated with conservative justices.
intent. Both of these terms are typically associated with conservative justices.
The counter to these philosophies are judicial pragmatism, often referred to as a living constitution, which holds that the constitution is dynamic, evolves, and must be interpreted to
fit the present day, even without its actual text being amended. In a moment, you'll hear
some arguments from the left and the right, and then my take.
you'll hear some arguments from the left and the right, and then my take.
First up, we'll start with what the left is saying.
The left criticized Republicans for baseless attacks on and distortions of Jackson's rulings as a judge. They said Republicans focused on culture war issues, not questions of her experience
or judicial qualifications.
Some argued that Jackson shrewdly navigated the hearings with conservative-friendly language.
In Vox, Ian Millhiser called the attacks on Jackson nasty, even by Republican standards.
One day after Republican senators promised they wouldn't levy personal tax against Supreme Court nominee Ketanji Brown Jackson, several of them generated a storm of misleading and often offensive attacks against her. Tuesday, the first day of the hearing where senators on the
Judiciary Committee could actually ask questions of Judge Jackson, included allegations from five
Republican senators that Jackson is soft on child pornography offenders, Millhiser wrote.
Before those misleading attacks kicked off in real force, Senator Lindsey Graham stormed out of the hearing after attacking Jackson for providing legal counsel to Guantanamo Bay detainees and suggesting that by doing so, Jackson endangered national security.
Two other Republican senators attacked the high school that one of Jackson's daughters attends.
The most inflammatory and sadly the most predictable allegation against Jackson was that she spent her career trying to protect sexual predators, and specifically child pornographers, Milhiser added.
This allegation is narrowly truthful. Jackson did, indeed, sentence these offenders to a prison term below that recommended by the guidelines.
But this is the ordinary practice within the federal judiciary.
The consensus view among judges and sentencing policymakers is that these guidelines
recommend sentences that are too harsh for non-production child pornography crimes,
that is, crimes where the offender views or distributes child sex abuse material but does
not produce it. Jackson handed down sentences that were at or above the probation office's
recommendations in five of the seven cases identified by Halley. In the Washington Post,
Philip Bump called out Republicans for questioning Jackson about critical race theory.
Critical race theory was elevated and expanded as a way of talking about conservative concerns
about the perception that whites held a diminished position in American society
without being explicit about that perception. Here, the Sutter fuge is stripped away.
Republicans are being warned that a black
nominee for the Supreme Court is hoping to inculcate this anti-white agenda, Bump said.
Ask a Republican voter what CRT means, and they are likely to offer up some past-ish of concerns
about children being taught that white people are inherently guilty or bad and that the United
States is foundationally racist. CRT has been recodified to annex the entire range of cultural
constructions that are unpopular with Americans as Christopher Ruffo promised, where Americans
means heavily conservative white Americans. This sits on top of a central concern of many white
Republicans, that whites and Christians are newly disadvantaged in American society. Polling has
repeatedly showed that white Republicans see whites as targets of discrimination to a similar extent as non-whites. That, in other words, reverse racism
is rampant, Bump wrote. You see where this comes back to the initial response to Jackson's
nomination, or rather the pledge to nominate a black woman to the Supreme Court. The concern
isn't that so few non-white people have been on the bench, a centuries-long failure to ensure the Supreme Court reflects the country's population.
Instead, it's that Biden chose to explicitly reject that pattern.
In Slate, Mark Joseph Stern praised Jackson's shrewd tactic of endorsing conservative theories like originalism and textualism.
Her embrace of the conservative legal movement's prized judicial philosophies delighted many commentators on the right,
who cheered Tuesday's, quote,
thorough route for progressive theories of law, Stern observed.
These commentators are correct that Jackson's rhetoric signals the triumph of originalism and textualism,
which are now firmly established as the default mode of judging.
But her rhetoric does not mean that she is further to the right than Democrats assumed,
let alone a secret reactionary. The truth is that left-leaning jurists have long deployed originalism and
textualism as useful tools of interpretation, and Jackson is canny enough to emphasize them before
an evenly divided Senate. Democratic senators may still rail against these methodologies,
but progressive judges have figured out how to use them to their advantage. Jackson's rhetorical
turn to the right pleased many of her Republican critics, Stern wrote.
This commentary reflects some antiquated assumptions about liberal judging today.
Many Democratic politicians still do describe the Constitution as a living or evolving document,
in President Joe Biden's words, but progressive jurists rarely do. Instead, they understand that
originalism and textualism are genuinely useful tools that can frequently result in a liberal outcome. It turns out that how you
apply these theories is just as important as whether you apply them. A rigidly textualist
reading of the Civil Rights Act, for example, protects LGBTQ employees, while a looser analysis
that factors in congressional intent does not. All right, so that's it for what the
left is saying, which brings us to what the right is saying. The right, said Jackson, got the more
respectful hearing that past conservative nominees deserve but did not. Some said her
answers showed how liberal judicial viewpoints are dying out. Others said liberals could learn
from Jackson's love of America. Tiana Lowe said the GOP refused to give Jackson the racist
treatment Senator Dick Durbin and President Joe Biden gave Miguel Estrada. The Senate Judiciary
Committee did not accuse Ketanji Brown Jackson of attempting to rape an underage girl, Lowe wrote.
It did not accuse her of being a mere puppet for partisans hellbent on depriving millions of people of health care via judicial fiat.
And it did not accuse her very nomination to the Supreme Court of being illegitimate.
The bar isn't very high, but all things considered, the committee granted the nominee to replace Stephen Breyer a respectful and dignified first day of her confirmation hearing. Regardless of one's perfectly legitimate quibbles with Jackson's
progressive jurisprudence, the bipartisan show of decorum was one befitting of an objectively
qualified nominee. And, assuming Jackson gets confirmed, it will be because Republicans denied
her the same racist treatment Democrats Biden and current Judiciary Chairman Dick Durbin
included, gave to Miguel Estrada two decades ago. George W. Bush nominated Estrada, a Honduran
immigrant and prominent attorney unanimously deemed well-qualified by the ABA, to the U.S.
Court of Appeals for the District of Columbia Circuit in 2001, Lowe wrote. Democrats ultimately
made the unprecedented move not just to filibuster a
judicial nominee from joining a court, but filibustering one backed by a clear majority
of the Senate, including a handful of Democrats. Biden, then a senator from Delaware, was not one
of them, nor was Durbin. A leaked memo to the senator from his staff indicates pretty clearly
why. Estrada was deemed especially dangerous because he has a minimal paper trail, he is
Latino,
and the White House seems to be grooming him for a Supreme Court appointment.
Dan McLaughlin said the hearing was a route for progressive pieties.
My hopes for Katonji Brown Jackson departing from the party line on the bench are slim, McLaughlin said.
Even with that in mind, however, this hearing so far has been a thoroughing route for progressive theories of law and politics. Jackson has repeatedly embraced interpreting the Constitution
according to its original public meaning. She affirmed that the Supreme Court has established
that the right to keep and bear arms is a fundamental right, although that doesn't
commit her to adhere to that view herself. Asked by Chuck Grassley about Justice Stephen
Breyer's tendency to cite international law as a source for interpreting the Constitution, Jackson said that she respectfully disagreed with her former boss and that international law should not be used to determine the meaning of the Constitution, he added.
Asked to name a justice whose philosophy resembles her own, she could have named Breyer, but she didn't and declined to name one, instead pointing to her own record.
She has continued to
speak movingly about the cops in her family and the role of and need for police. She talked about
how her experience growing up was completely different from her parents' attendance of
segregated schools, and she cited how far we have come as a sign of the greatness of America.
The Wall Street Journal said liberals could learn something from Jackson.
We'd still like to hear her speak candidly about how she thinks judges ought to interpret the Constitution, the board said,
but it was hearkening to hear Judge Jackson affirm the promise of America.
Too many on the left seem to think that the U.S. is structurally, irredeemably flawed.
President Biden has joined this narrative with his focus on systemic racism and equity in place of equality.
narrative with his focus on systemic racism and equity and place of equality. Judge Jackson might or might not agree with the ideal of colorblindness to say nothing of her views on specific
controversies like the one involving Harvard's admission policies, yet she appears to see the
best in America. This has been a theme for Judge Jackson in the short time that the public has been
getting to know her. Among many blessings, and indeed the very first, is the fact that I was
born in this great country, she said last month at the White House. The United States of America is the greatest beacon
of hope and democracy the world has ever known, she added. We expect to disagree with Judge Jackson
if she is confirmed to the Supreme Court, the board concluded, but the progressives supporting
her nomination could stand to learn from her about the country that has elevated her to such judicial heights. All right, that is it for what the left and right are saying, which brings us to my take.
So, in many ways, Judge Jackson...
All right, that is it for what the left and right are saying, which brings us to my take.
So, in many ways, Judge Jackson sounded
like something out of a conservative laboratory. She spoke about the anxiety of having loved ones
who serve in law enforcement. She spoke about her belief that the Supreme Court has affirmed
the Second Amendment as a fundamental right. She spoke about the validity of originalism and a
judge's constrained ability to interpret texts. She spoke about the time she ruled in favor of the Republican National Committee when it sought to access Hillary
Clinton's emails. And she spoke about the greatness of America she's witnessed in her own lifetime.
In any other era, under any other circumstances, you might think she'd be flying through the Senate
with at least a third of Senate Republicans voting for her. Unfortunately, we are not in that era.
Instead, a huge chunk of the four and a half
hours of the hearings that I watched live were spent on questions about child pornography
sentencing and critical race theory. Jackson testified for 13 hours, and while it's clear
from the transcripts that she got to talk about many things, the dishonest attacks against her
record were a reminder that we're still living in a hyper-partisan time, even when the nominee
is singing in a key Republicans typically adore. Senators Ted Cruz, the Republican from Texas,
Lindsey Graham, the Republican from South Carolina, Marsha Blackburn, the Republican
from Tennessee, Tom Cotton, the Republican from Arkansas, and Josh Halley, the Republican from
Missouri, accounting for five of the 11 Republicans on the Senate Judiciary Committee,
spent nearly all of their time, subtly or not so subtly,
accusing Jackson of having a soft spot for people who watch child pornography,
terrorists, drug kingpins, and everything that has to do
with the increasingly undefinable term of critical race theory.
The most pernicious of these claims is the allegation that Jackson
had a habit of under-sentencing people convicted of possessing child pornography.
As Jackson explained over and over, and as the conservative legal scholars like Andrew McCarthy
honorably pointed out, the allegations have no merit. It is common for prosecutors to recommend
sentences below the guidelines, which means it's obvious a judge regularly would as well.
The senators seem to think judges are rubber stamps for prosecutors, which is basically the
opposite of the truth. Not only that, but judges are also guided by the probation office, an arm
of the court that advises on sentencing during trials. As McCarthy pointed out, in most of the
cases Howley and others brought up, Jackson's sentences equaled or exceeded the recommended
sentence, meaning the reality was actually the opposite of the allegation. In other words, it was
all hogwash,
but no matter how many times she tried to explain this,
the senators kept coming back to it.
Their intent, to me, seemed obvious.
They want to loosely associate her name with soft-on-crime or soft-on-child pornography,
which, for whatever it's worth, seems part of a larger trend,
even fixation in some fringe conservative circles,
associating Democrats, liberals, and Hollywood elites with pedophilia. Some astonishing polling now shows that 15% of Americans believe Satan-worshipping
pedophiles run the country, and that half of Trump supporters apparently think top Democrats
are involved in sex child trafficking, which implies this is a belief of many of my listeners.
All of this, of course, distracted from what could have been a much more fascinating and
rewarding exploration of Jackson's views on the Constitution.
That's something I'm excited to do in a future edition of Tangle,
and given how much of the conservative punditry criticized Republican senators and celebrated Jackson's apparent reverence for originalism,
it's something I hope the commentary moves toward in earnest going forward.
Of course, my expectations are low.
moves toward an earnest going forward. Of course, my expectations are low. As is usually the case these days, Democrats seem to have little interest in doing anything but heaping praise on their
nominee. Meanwhile, Republicans are clearly still furious about the war zone that became Brett
Kavanaugh's hearing, which they referenced repeatedly yesterday. During Amy Coney Barrett's
nomination process, some liberal pundits stooped to the rather disgusting accusation that her
adopted children were props. Democrats in the room implied she may not have been able to do her job because
of her religious views and got increasingly confrontational as the hearings went on,
not less so. My biggest gripe with the Barrett nomination was the process, and just as I said
about Barrett on several occasions, there is zero doubt about Jackson's qualifications.
Throughout the day, I was struck by how intelligent,
knowledgeable, and level-headed Judge Jackson seemed to be, especially in contrast to some
of the questions. She spent much of the day explaining to Congress that it was actually
their job to set sentencing guidelines, not hers, as an important reminder of how our government is
supposed to function. Her love of country was as apparent as her belief that all Americans deserve
fair representation, forgiveness, and second chances. She seemed to be practical, empathetic, humble,
and cautious, and her personal story will probably be the subject of a movie one day.
She was just as advertised, and the country is lucky to have her. At this point, she deserves
to peel off a few Republican votes, even in this hyper-polarized climate, especially given the fact
that Democrats can get her seated with or without Republicans. But at the very least,
she's already given every American reason to be encouraged.
All right, that is it for my take, which brings us to your questions answered.
This one is from Mark in Carver, Massachusetts. Mark said Tulsi Gabbard is all
over the conservative outlets these days. Makes a lot of sense given her military, congressional,
and foreign policy background, but I wonder if there's more at play here. If the Republicans
come to their senses and do not hand over the nomination to Trump in 2024, what are your
thoughts on someone like DeSantis or Crenshaw naming her as their running mate? So I'm tempted to say hell no, but I'll leave a little bit of wiggle room just so I don't have
to take my foot out of my mouth if it comes to fruition. But still, the odds of this seem very,
very low. I agree that Gabbard is interesting. Frankly, besides her anti-war stances, I'm not
really sure what she stands for at all. She seems to be a bit of a political chameleon, and I don't mean that as a compliment. I like some of the stuff she says,
but she strikes me as the kind of person who changes her tune depending on who's listening.
Again, I don't mean that as a compliment. Anyway, I think a proper lens to view Gabbard
through is the same one many liberals use to view Mitt Romney, Liz Cheney, or Adam Kinzinger.
They're useful and celebrated
to a point, but running mate in a presidential race? I doubt it. I think it has about the same
odds as the eventual Democratic nominee picking Romney or Liz Cheney, which I'd peg at very,
very, very low. If Republicans want a woman on the ticket with wide appeal, they'd go to Nikki Haley,
Iowa Governor Kim Reynolds, or Senator Susan Collins. Not someone who wants to end cash bail, eliminate private prisons, raise the minimum wage, study reparations,
offer free college, and ban assault weapons as Gabbard has said she wants to do.
All right, that's it for our reader question for the day, which brings us to our story that
matters. Over 3.6 million refugees have now fled Ukraine and approximately 6.5 million more are internally displaced.
That means that more than 10 million Ukrainians, a quarter of the country's population,
have been displaced since the invasion began. Refugees are now crossing into Poland, Romania,
Hungary, Moldova, Slovakia, and even into Russia. Among those refugees are more
than 1.5 million children who have left Ukraine, about 55 kids a minute since the conflict started.
The UN has warned that the influx of refugees will not just leave millions of people without
school or necessary medical supplies, but will also pose major challenges to the European
countries trying to help those refugees that are already running thin on housing. The Washington Post has a story about this phenomenon. There is a link to
it in today's newsletter. All right, next up is our numbers section. The age of Katonji Brown
Jackson is 51 years old. The average number of years served by a Supreme Court justice,
though they are confirmed for life, is 17 years. The longest tenure of any Supreme Court justice
served by William O. Douglas from 1939 to 1975 was 36 years. The number of justices who have
served on the Supreme Court since 1790 is 115. The number of Republican votes Jackson got in the Senate
when confirmed to a federal appeals court last year was three.
All right, and last but not least, our Have a Nice Day section. In Houston, a historic theater
seemed to have become one of the many casualties of COVID-19 until its supporters jumped in to
save it. The River Oaks
Theater had closed up shop thanks to the economic challenges from the pandemic. The theater opened
in 1939 and had been an art house theater showcasing independent and foreign cinema,
according to the Associated Press. But an army of supporters who met every week via Zoom banded
together, inundated the mayor's office with emails and held fundraiser events, and eventually were able to resurrect the theater from the dead. The Associated Press
has the story. There is a link to it in today's newsletter.
All right, everybody, that is it for the podcast. Before you go, before you go,
don't turn it off yet. If you're driving, maybe focus on the road. But before you go, before you go, don't turn it off yet. If you're driving, maybe focus on the road,
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If you do, I'll be sending you some big internet thank yous. Peace.
Our newsletter is written by Isaac Saul, edited by Bailey Saul, Sean Brady, Ari Weitzman,
and produced in conjunction with Tangle's social media manager, Magdalena Bokova, who also helped create our logo. The podcast is edited by Trevor
Eichhorn, and music for the podcast was produced by Diet75. For more from Tangle, subscribe to
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