The Daily - The Confirmation Hearing of Ketanji Brown Jackson

Episode Date: March 23, 2022

Democratic support for Judge Ketanji Brown Jackson, who could become the first Black woman to serve as a Supreme Court justice, was never in much doubt. Less certain was the depth of Republican opposition.To analyze how the arguments have played out so far in her confirmation hearing, we look at four key moments.Guest: Adam Liptak, a reporter covering the Supreme Court for The New York Times.Have you lost a loved one during the pandemic? The Daily is working on a special episode memorializing those we have lost to the coronavirus. If you would like to share their name on the episode, please RECORD A VOICE MEMO and send it to us at [e-mail]. You can find more information and specific instructions here.Background reading: In her first day of hearings, Judge Jackson gave few hints about her judicial philosophy but spoke forcefully about public safety and terrorism.On Tuesday, Judge Jackson pushed back against Republican attacks on her record, presenting herself as a firm believer in judicial restraint.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. This meeting of the Senate Judiciary Committee will come to order. What we've learned so far from the confirmation hearings of President Biden's first nominee to the Supreme Court, Judge Katonji Brown Jackson. I spoke with my colleague, Adam Liptak, about four key moments.

It's Wednesday, March 23rd. In its more than 230 years, the Supreme Court has had 115 justices. 108 have been white men. Just two justices have been men of color. Only five women have served on the court and just one a woman of color. Not a single justice has been a black woman. Adam, we are talking to you at a little after 6 p.m. on the second day of the confirmation hearings for Judge Ketanji Brown-Jackson. And just to set the stage heading into these hearings, Democratic support for Judge Jackson

has not seemed in doubt. It is sufficient, we believe, to very narrowly confirm her. And so the real question is the depth of opposition from Senate Republicans, what arguments they'd make against her, and whether those arguments might endanger her Democratic support. And so that's the prism through which

we want to examine a few key moments from these hearings. And I think we should start with Judge Jackson's opening statement, where she really has a chance to frame her story. So let's do that. Chairman Durbin, Ranking Member Grassley, and distinguished members of the Judiciary Committee, thank you for convening this hearing and for considering my nomination as Associate Justice of the Supreme Court of the United States. Well, Michael, nobody doubts, and this includes Republicans, that Judge Jackson's story, her life story, is inspirational and could really only have happened in the last few decades.

The first of my many blessings is the fact that I was born in this great nation. A little over 50 years ago in September of 1970, Congress had enacted two Civil Rights Acts in the decade before. She was born not long after the Civil Rights Movement achieved tremendous gains and transformed American society. And like so many who had experienced lawful racial segregation firsthand, my parents, Johnny and Ellery Brown, left their hometown of Miami, Florida, and moved to Washington, D.C. to experience new freedom. And to express both pride in their heritage

and hope for the future, they gave me an African name, Ketanji Onyeka, which they were told means lovely one. And she was able to go, as her parents were not, to an unsegregated public school. My very earliest memories are of watching my father study. He had his stack of law books on the kitchen table while I sat across from him with my stack

of coloring books. She recounted vivid memories of, for instance, her father, a public school teacher, studying to become a lawyer, and the two of them sitting together, the father with a stack of law books and the daughter with a stack of coloring books. My parents also instilled in me and my younger brother, Ketaj, the importance of public service. She also spoke about the tradition of public service in her family. Ketaj started out as a police officer, following two of our uncles. After the September 11th attacks on our country, Ketaj volunteered for the Army. Her brother, two of her uncles, served as law enforcement officers. After the September 11th attacks, her younger brother signed up for the military and served two tours of duty in the Middle East.

younger brother signed up for the military and served two tours of duty in the Middle East. And she herself goes to Harvard College and Harvard Law School and clerks for three different federal judges, including Justice Stephen Breyer, whom she hopes to replace. 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. So there's really no question that her life story is emblematic of the progress of American society. And I don't think, at least on biographical grounds, there's any reason to think that she didn't charm all of the senators. Thank you, Judge Jackson. Senator Grassley.

Thank you, Mr. Chairman. Welcome again to our committee. Okay, so let's turn to the next big moment in these hearings, which was an exchange where Judge Jackson is asked by Republican Senator Chuck Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, to really explain her judicial philosophy, which is a key question for Republicans about her. And what they really seem to be trying to get at is, how do you apply the law? I ask you whether you believed in the theory that the Constitution is a living document whose meaning evolves over time.

How do you interpret the Constitution? And really, just how liberal a judge are you? So walk us through that exchange. I'm very acutely aware of the limitations on the exercise of my judicial power. the limitations on the exercise of my judicial power? Well, the answers she gave would be ones you would think the Republicans would like. That she's closely focused on the relevant text, whether it's the Constitution or a statute. And I do not believe that there is a living Constitution in the sense that it's changing and it's infused with my own policy perspective or, you know, the policy perspective of the day.

That she doesn't believe in a living constitution. Can you explain that phrase, living constitution, and what it would mean to someone like Chuck Grassley to ask her about it? And what would it mean for her to have said, I don't believe in that concept? So I guess the most extreme version of a living constitution would allow judges to infuse the constitutional text with whatever they believed was the appropriate answer given contemporary circumstances to any particular legal question. I think that's a little bit of a caricature, probably closer to the reality of what a sympathetic version

of a living constitution would mean, is that the founders used general phrases in the constitution, the freedom of the press, equal protection of the laws, and so on, in order to let succeeding generations fill that with meaning relevant to contemporary circumstances. But most conservatives would adopt the Antonin Scalia version of the Constitution when he would say it's not living, it's dead, dead, dead. Right. And that all that matters is how it was understood when it was adopted and ratified.

The Supreme Court has made clear that when you're interpreting the Constitution, you're looking at the text at the time of the founding and what the meaning was then as a constraint on my own authority. And her version of her judicial philosophy was much closer to the Scalia version, and her explicit rejection of a living Constitution approach should have heartened Republicans. And so I apply that constraint.

I look at the text to determine what it meant to those who drafted it. Right. This is in many ways the language we associate with the Republican appointed justices on the Supreme Court. So it felt a little unexpected out of the mouth of a Democratic nominee from President Biden? Yeah, I suppose. Although many liberal scholars and judges now use these tools, these interpretive methods, originalism and textualism, to reach liberal results. So on the one hand, it tells the Republican senators what they want to hear.

On the other hand, they know and we know it doesn't actually predict what kind of justice she's going to be. So you're saying Republicans might appreciate this language from Judge Jackson, but they aren't necessarily buying it. And they're very eager to poke holes in it. And that's exactly what happens next, of course, Adam. in it. And that's exactly what happens next, of course, Adam. We saw in several exchanges, Republicans attempting to portray Judge Jackson as left-leaning, as in some cases, radical. And the first of these exchanges came under questioning from Senator Lindsey Graham of South Carolina. So walk us through that. Thank you, Judge. Again, congratulations. Senator Lindsey Graham asked her about her representation of detainees at Guantanamo Bay,

Cuba. So now let's talk about Vietnam. Where after the September 11 attacks, the United States sent people they considered terrorists or enemy combatants, and where they've been held, some of them now, for two decades. Explain why Judge Jackson ever came to represent people at Guantanamo Bay. What was happening in her career? She was a federal public defender. She was an appellate lawyer, an assistant federal public defender. And there came a time when the Supreme Court said that detainees could file petitions for habeas corpus,

petitions seeking to be released. And she filed a series of those. And Senator Graham said, on the one hand, everyone deserves a lawyer. And do you think it's important to the system that everybody be represented? Absolutely. It's core constitutional value. You'll get no complaint from me. That was my job in the Air Force. I was a Air Defense Counsel. I represented... But on the other hand, he seemed to take offense to some of what he

characterized as the arguments she made. And what were the arguments he found offensive? So my question is very simple. Do you support the idea, did you support then the idea that indefinite detention of an enemy combatant is unlawful? that indefinite detention of an enemy combatant is unlawful. Respectfully, Senator, when you are an attorney and you have clients who come to you, whether they pay or not, you represent their positions before the court. Did you ever accuse in one of your habeas petitions the government of acting as war criminals or holding the detainees? The holding of the detainees by our government that we were acting as war criminals. He said that she had accused the government of being a war criminal

and that's a very loose interpretation of the language of the legal filings that she had submitted. Senator, I don't remember that accusation, but I will say that... Do you believe that's true, that America was acting as war criminals and holding these detainees? Senator, the Supreme Court held that the executive branch has the authority to detain people who are designated as enemy combatants for the duration of the habeas petitions at this very early stage in the process was making allegations to preserve issues on behalf of my clients. Apparently she said that torturing detainees, and there was significant evidence that there was such torture, amounts to a war crime.

She didn't associate that concept with anyone in particular. Right. So she never called anyone war criminals. That's right. Lawyers make allegations. You know, I've been a lawyer too, but I don't think it's necessary to call the government a war criminal in pursuing charges against a terrorist. I just think that's too far. I don't know why he chose those words. That's just too far.

But we are where we are. So this was Senator Graham, who is himself a former military lawyer, maybe engaging in a little legal argument that doesn't hew entirely closely to the facts. So what Graham is really up to here, just to summarize this, is he's trying to portray Judge Jackson as overzealous in her defense of these detainees who he sees as a threat to the U.S., and he's trying to portray

her as antagonistic to the U.S. government at a time of war, and her reply is, look, as a lawyer, my job is to defend my client no matter who that client is, because everybody is entitled to a legal defense in the American justice system. Yeah, that's a fair characterization of it. I don't know that it got all that much traction from his Republican colleagues. from his Republican colleagues.

But it was one of several lines of attack in which Judge Jackson was portrayed by Republicans as siding with the wrong people. We'll be right back. Adam, the next moment we want to talk about feels very related to the exchange that we just discussed. Senator Graham had attempted to portray Judge Jackson as sympathetic to terrorists and not long after... Judge Jackson, welcome. Thank you.

Congratulations. Thank you. A fellow Republican, Senator Ted Cruz of Texas, attempts to portray Judge Jackson as overly sympathetic to people who possess child sexual imagery, imagery of child sexual abuse. So talk us through that exchange. Let's take a look at your actual sentencing. So Senator Cruz makes the case. You've had 10 different cases involving child pornography. In which he said that Judge Jackson, in sentencing people convicted of these terrible crimes, went too light on them. United States v. Chazen, the prosecutor asked for 78 to 97 months.

months. You imposed 28 months. 28 months is a 64% reduction. And he had charts and graphs. In United States versus Hawkins, the prosecutor asked for 24 months. You imposed three months. That was an 88% reduction. And examples and percentages. Every single case, 100% of them, when prosecutors came before you with child pornography cases, you sentenced the defenders to substantially below, not just the guidelines, which are way higher, but what the prosecutor asked for on average of these cases, 47.2% less. And how does she respond to that, Adam? She's not impressed by his chart. A couple of observations.

One is that your chart does not include all of the factors that Congress has told judges to consider, including the probation office's recommendation in these cases. She says it doesn't include all the factors that judges should consider. Not only the sentencing guidelines, not only the recommendations. Federal sentencing law is very complicated, and you can slice it and dice it a number of different ways. But sentencing experts seem to agree more or less on the following, that the sentencing guidelines, which are advisory and discretionary, are by all accounts

very harsh in this area, so much so that prosecutors often ask for substantially lighter sentences than the guidelines call for. And Congress has said that a judge is not playing a numbers game. The judge is looking at all of these different factors and making a determination in every case based on a number of different considerations. And in every case, I did my duty to hold the defendants accountable in light of the evidence and the information that was presented to me. And the evidence seems to be that she is completely in line with what other judges in D.C. where she served as a trial judge and across the nation are doing. But I don't want to suggest that her answer here is only technical. For every defendant who comes before me and who suggests, as they often do, that they're just a looker, that these crimes don't really matter,

they've collected these things on the internet and it's fine. I tell them about the victim statements that have come in to me as a judge. She became quite impassioned earlier in the hearing in describing the terrible harm that these images do, that people subjected to them have lifelong trauma. When I look in the eyes of a defendant who is weeping because I'm giving him a significant sentence, what I say to him is, do you know that there is someone who has written to me and who has told me that she has developed agoraphobia? She cannot leave her house because she thinks that everyone she meets will have seen her, will have seen her pictures on the internet. They're out there forever. At the most vulnerable time of her life. And so she's paralyzed. I tell that story to every child porn defendant as a part of my sentencings so that they understand what they have done.

So her larger point was to reject completely and emphatically the idea that she is soft on this kind of crime. And why did this series of exchanges on this subject matter? Well, I guess if you had to think about, you know, who are the people that the American public are least likely to be sympathetic to, you might start with terrorists and then go on to people complicit in child sexual abuse. Right. So it's, if nothing else, political hardball.

But it also gave us an opportunity to look at Judge Jackson under pressure. And she was throughout composed and forceful. Adam, our colleagues have reported that Republicans have really struggled with whether or how to engage the question of race in these hearings, either by talking about it or talking around it, given that Judge Jackson is the first black woman to be nominated to the Supreme Court and that they're trying to block her. So how do you think, ultimately,

the Republicans chose to handle that subject? Well, they talked about race in one context. Critical race theory, as you know, originated at your and my alma mater at the Harvard Law School. Which is critical race theory. In your understanding, what does critical race theory mean? What is it? Which was a legal movement that Ted Cruz discussed with Judge Jackson. They had been at Harvard Law School at the same time. And in law schools, critical race theory did play a role in some amount of legal thinking. Senator, my understanding is that critical race theory is, it is an academic theory that is about the ways in which race interacts with various institutions. It doesn't come up in my work as a judge. It's never something that I've studied or relied on,

and it wouldn't be something that I would rely on if I was on the Supreme Court. Judge Jackson said that she never studied it and certainly never used it in her jurisprudence, and she says it doesn't come up in the work that I do as a judge. Jackson said that she never studied it and certainly never used it in her jurisprudence. And she says it doesn't come up in the work that I do as a judge. So let me ask you a different question. Is critical race theory taught in schools? Is it taught kindergarten through 12th? Senator, I don't know.

I don't think so. And then noting that Judge Jackson sits on the board of a private school in Washington. I will confess, 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. He started showing her a number of books he said were in the curriculum at the school, including one called Anti-Racist Baby. There are portions of this book that I find really quite remarkable. One portion of the book says babies are taught to be racist or anti-racist. There is no neutrality. Do you agree with this book that is being taught with kids that babies are racist?

Senator. I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than, that they're a victim. What exactly is Cruz up to here? What is this about? What is this about? Well, basically what I think is going on with several of these lines of questioning from Republicans is that you need a reason to vote against the first black woman to serve on the Supreme Court. And you need to have something to say when you cast that vote. to say when you cast that vote. And so it seems to be an effort to try to find something that will sell to at least your constituents. That she likes terrorists. That she's soft on people involved in child sexual abuse. That she endorses racist baby books in private schools. And whatever force these critiques have,

their real purpose seems to be to provide a rationale for a vote against Judge Jackson. Right. Because as you said, Adam, her judicial philosophy would not alone seem sufficient for many of these Republicans to vote no. But you're saying in these narrow lines of attack, they're finding their reason to vote against her. Yeah, that's right. She's a conventional judge. She's a mainstream judge. Her description of how she goes about doing her judicial job ought to be attractive to Republicans.

Her description of her judicial philosophy ought to be attractive to Republicans. So if that's all they had to work with, it would be very hard to justify a vote against her. So you need a different, better, and apparently more colorful reason. So, Adam, as we wrap up here, where have these last two days of confirmation hearings left Judge Jackson's nomination?

There's every reason to think that she's going to be confirmed. There's little reason to think that she is going to attract many, if any, Republican votes. When she was confirmed last year to the Federal Appeals Court in Washington, she got the votes of Senators Graham, Collins, and Murkowski. The Graham vote on the evidence of Tuesday's hearing seems to be off the table. But it doesn't matter if she gets no Republican support, because if the 50 Democrats hang together, and there's every reason to think they will, aided by the tie-breaking vote of Vice President Harris, she'll get on the Supreme Court.

I am humbled and honored to have the opportunity to serve in this capacity and to be the first and only black woman to serve on the United States Supreme Court. The significance of that was not lost on Judge Jackson. stand on the shoulders of generations past who never had anything close to this opportunity. Who talked candidly about the history that had gone into her ability to even have a shot at the job and the fact that if confirmed, she'll serve as a role model for many people, but among them young black girls who may not have envisioned this as a possibility. Thank you for this historic chance to join the highest court, to work with brilliant colleagues, to inspire future generations, and to ensure liberty and justice for all.

Well, Adam, as always, thank you very much. Thank you, Michael. The confirmation hearings for Judge Jackson will resume this morning. A full Senate vote on her nomination is expected by mid-April. We'll be right back. Here's what else you need to know today. Ukrainian forces claimed an important victory on Tuesday, saying they had retaken a key town from Russian troops called Makariv, about 40 miles west of Kiev.

Meanwhile, in Russia, President Putin intensified his crackdown on dissent against the war. Courts under Putin's control sentenced his leading political opponent, Alexei Navalny, to an additional nine years in prison on the charge of fraud. On top of the two-and-a-half-year sentence, Navalny is already serving. In letters from jail, Navalny has been urging Russians to protest the war in Ukraine. protest the war in Ukraine. And Chinese authorities say they have found no survivors from the crash of a Boeing-made passenger plane flown by China Eastern Airlines that was carrying

132 people across southern China. On Monday, the plane plummeted more than 20,000 feet in about a minute, briefly regained altitude, then plunged again to the ground. So far, the cause of the crash is unknown. Today's episode was produced by Rachel Quester, Diana Nguyen, and Muj Zaydi. It was edited by John Ketchum and M.J. Davis-Lynn, contains original music from Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lanthfer of Wonderly. That's it for The Daily.

I'm Michael Barbaro. See you tomorrow.