[Senate Hearing 117-422]
[From the U.S. Government Publishing Office]







                                           S. Hrg. 117-422, Part 1 of 3

                          CONFIRMATION HEARING
                          ON THE NOMINATION OF
                       HON. KETANJI BROWN JACKSON
                   TO BE AN ASSOCIATE JUSTICE OF THE
                   SUPREME COURT OF THE UNITED STATES

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                     MARCH 21, 22, 23, and 24, 2022

                               ----------                              

                           Serial No. J-117-56

                               ----------                              

                              PART 1 OF 3

                               ----------                              

         Printed for the use of the Committee on the Judiciary




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]






















                                           S. Hrg. 117-422, Part 1 of 3 

                          CONFIRMATION HEARING
                          ON THE NOMINATION OF
                       HON. KETANJI BROWN JACKSON
                   TO BE AN ASSOCIATE JUSTICE OF THE
                   SUPREME COURT OF THE UNITED STATES

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                     MARCH 21, 22, 23, and 24, 2022

                               __________

                          Serial No. J-117-56

                               __________

                              PART 1 OF 3

                               __________

         Printed for the use of the Committee on the Judiciary  
         
         
         
  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]







                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
47-858 PDF               WASHINGTON : 2023
	        
         
         
         
         
         
         
         
         
         
         
         
         
         
         
         

                       COMMITTEE ON THE JUDICIARY

                   RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa,     
DIANNE FEINSTEIN, California             Ranking Member
SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
ALEX PADILLA, California             TOM COTTON, Arkansas
JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                     THOM TILLIS, North Carolina
                                     MARSHA BLACKBURN, Tennessee
             Joseph Zogby, Chief Counsel and Staff Director
      Kolan L. Davis, Republican Chief Counsel and Staff Director  
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
                            C O N T E N T S

                              ----------                              

    March 21, 11:02 a.m.; March 22, 9:07 a.m.; March 23, 9:06 a.m.;
                     and March 24, 2022, 9:03 a.m.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Blackburn, Hon. Marsha, a U.S. Senator from the State of 
  Tennessee......................................................    56
Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................    34
Booker, Hon. Cory A., a U.S. Senator from the State of New Jersey    45
Coons, Hon. Christopher A., a U.S. Senator from the State of 
  Delaware.......................................................    28
Cornyn, Hon. John, a U.S. Senator from the State of Texas........    15
Cotton, Hon. Tom, a U.S. Senator from the State of Arkansas......    42
Cruz, Hon. Ted, a U.S. Senator from the State of Texas...........    25
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois:
    March 21, 2022, opening statement............................     1
    March 22, 2022, opening statement............................    67
    March 23, 2022, opening statement............................   231
    March 24, 2022, opening statement............................   371
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    13
Graham, Hon. Lindsey O., a U.S. Senator from the State of South 
  Carolina.......................................................    11
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
    March 21, 2022, opening statement............................     5
    March 23, 2022, opening statement............................   235
Hawley, Hon. Josh, a U.S. Senator from the State of Missouri.....    37
Hirono, Hon. Mazie K., a U.S. Senator from the State of Hawaii...    39
Kennedy, Hon. John, a U.S. Senator from the State of Louisiana...    48
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota..    22
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     8
Lee, Hon. Michael S., a U.S. Senator from the State of Utah......    19
Ossoff, Hon. Jon, a U.S. Senator from the State of Georgia.......    55
Padilla, Hon. Alex, a U.S. Senator from the State of California..    50
Sasse, Hon. Ben, a U.S. Senator from the State of Nebraska.......    31
Tillis, Hon. Thom, a U.S. Senator from the State of North 
  Carolina.......................................................    52
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................    17

                              INTRODUCERS

Fairfax, Hon. Lisa M., Presidential Professor and Co-Director, 
  Institute for Law & Economics, University of Pennsylvania Carey 
  Law School, Philadelphia, Pennsylvania.........................    61
Griffith, Hon. Thomas B., Judge, retired, U.S. Court of Appeals 
  for the District of Columbia Circuit, Washington, DC...........    59

                       STATEMENTS OF THE NOMINEE

Witness List.....................................................   441
Jackson, Hon. Ketanji Brown, Nominee to serve as an Associate 
  Justice of the Supreme Court of the United States:
    March 21, 2022, statement....................................    62
    questionnaire and biographical information...................   443
    attachment: question 12(a)...................................   592
    attachment: question 12(b)...................................   857
    attachment: question 12(c)...................................   991
    attachment: question 12(d)...................................  1137
    attachment: question 12(e)...................................  2046
    attachment: question 13(b)...................................  2087
    attachment: question 13(g)...................................  2563
    attachment: question 16(e)...................................  2585
    attachment: question 19......................................  2630

                      STATEMENTS OF THE WITNESSES

Beatty, Hon. Joyce, a Representative in Congress from the State 
  of Ohio and Chair, Congressional Black Caucus..................   392
    prepared statement...........................................  2670
Drayton, Joseph M., American Bar Association, Standing Committee 
  on the Federal Judiciary, Washington, DC.......................   376
Goluboff, Risa, dean, Arnold H. Leon Professor of Law, and 
  professor of history, University of Virginia, Charlottesville, 
  Virginia.......................................................   395
    prepared statement...........................................  2673
Henderson, Wade, president and chief executive officer, The 
  Leadership Conference on Civil and Human Rights, Washington, DC   399
    prepared statement...........................................  2677
Marshall, Hon. Steve, Attorney General, State of Alabama, 
  Montgomery, Alabama............................................   393
    prepared statement...........................................  2709
Mascott, Jennifer, assistant professor of law and co-executive 
  director, C. Boyden Gray Center, Antonin Scalia Law School, 
  George Mason University, Arlington, Virginia...................   397
    prepared statement...........................................  2685
McCullen, Eleanor, Massachusetts resident and sidewalk counselor.   400
    prepared statement...........................................  2706
Rosenthal, Richard B., solo appellate lawyer, Miami, Florida, and 
  San Francisco, California......................................   403
    prepared statement...........................................  2696
Russell, Keisha, counsel, First Liberty Institute, Plano, Texas..   405
    prepared statement...........................................  2699
Serano, Alessandra Parisi, chief legal officer, International 
  Operations, Operation Underground Railroad, Anaheim, California   408
    prepared statement...........................................  2704
Thomas, Frederick L., Captain, East Baton Rouge Parish Sheriff's 
  Office, Baton Rouge, Louisiana, and national president, 
  National Organization of Black Law Enforcement Executives......   407
    prepared statement...........................................  2717
Veta, D. Jean, American Bar Association, Standing Committee on 
  the Federal Judiciary, Washington, DC..........................   375
Williams, Hon. Ann Claire, Judge, retired, and American Bar 
  Association, Standing Committee on the Federal Judiciary, 
  Washington, DC.................................................   373
    prepared statement...........................................  2647

                               QUESTIONS

Questions submitted to Hon. Ketanji Brown Jackson by:
    Senator Blackburn............................................  2891
    Senator Cornyn...............................................  2740
    Senator Cotton...............................................  2816
    Senator Cruz.................................................  2750
    Senator Graham...............................................  2737
    Senator Grassley.............................................  2722
    Senator Hawley...............................................  2794
    Senator Kennedy..............................................  2823
    Senator Lee..................................................  2744
    Senator Sasse................................................  2791
    Senator Tillis...............................................  2827

                                ANSWERS

Responses of Hon. Ketanji Brown Jackson to questions submitted 
  by:
    Senator Blackburn............................................  3218
    Senator Cornyn...............................................  2940
    Senator Cotton...............................................  3095
    Senator Cruz.................................................  2967
      attachment: Probation Office chart.........................  3035
    Senator Graham...............................................  2935
    Senator Grassley.............................................  2893
    Senator Hawley...............................................  3042
    Senator Kennedy..............................................  3112
    Senator Lee..................................................  2949
    Senator Sasse................................................  3036
    Senator Tillis...............................................  3126

  LETTERS RECEIVED BY THE COMMITTEE REGARDING THE NOMINATION OF HON. 
 KETANJI BROWN JACKSON TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT 
                          OF THE UNITED STATES

3M Indivisible--Monroe, McMinn, Meigs Counties, Tennessee, et 
  al., 233 Indivisible groups across the United States; April 6, 
  2022...........................................................  3223
9to5, National Association of Working Women, Georgia Chapter, 
  Atlanta, Georgia, et al., organizations committed to democratic 
  and economic empowerment of the people of Georgia; March 29, 
  2022...........................................................  3230
Aagard, Sarah, assistant public advocate, Kentucky Department of 
  Public Advocacy, Frankfort, Kentucky, et al., current and 
  former public defenders; April 1, 2022.........................  3232
Abbott, Ross, Richland County, South Carolina, et al., current 
  and former U.S. public defenders; March 22, 2022...............  3245
Abdallah, Nabila, California, et al., law students from across 
  the United States; March 31, 2022..............................  3280
Abely, Christine, faculty fellow, New England Law, Boston, 
  Massachusetts, et al., women law professors from across the 
  United States; March 8, 2022...................................  3284
A Better Balance, New York, New York; March 17, 2022.............  3328
Abraham, David, professor of law emeritus, University of Miami 
  School of Law, Coral Gables, Florida, et al., professors who 
  teach at law schools in the State of Florida; March 23, 2022...  3330
Abrams, Hon. Robert, former Attorney General of the State of New 
  York, et al., former State Attorneys General, former U.S. 
  Senators, a current State Governor, and current State Attorneys 
  General from across the United States; March 10, 2022..........  3338
Abratt, Daniela B., Thomas & LoCicero, Ft. Lauderdale, Florida, 
  et al., leaders in the legal communities of the State of 
  Florida; March 23, 2022........................................  3346
Access Ready Inc., Pinellas Park, Florida, et al., organizations 
  and individuals representing the interests of individuals with 
  disabilities; March 18, 2022...................................  3360
Access Ready Inc., Pinellas Park, Florida, et al., organizations 
  and individuals representing the interests of individuals with 
  disabilities; April 6, 2022....................................  3365
Adams, Aileen, former director, U.S. Department of Justice, 
  Office for Victims of Crime, Los Angeles, California, et al., 
  victims and survivors of crime, their advocates, and providers 
  of critical assistance services to crime victims and survivors; 
  March 9, 2022..................................................  3371
Adams, Faith, University of Mississippi School of Law, Class of 
  2024, University, Mississippi, et al., current law school 
  students and law school graduates from across the United 
  States; March 11, 2022.........................................  3374
Adams-Seaton, Briana, Howard University School of Law, Class of 
  2021, et al., graduates of the six law schools at Historically 
  Black Colleges and Universities (HBCU); March 7, 2022..........  3408
Alexander, Anne, professor of law and director of legal research 
  and writing, University of Missouri School of Law, et al., 
  lawyers and legal academics who work and teach in the State of 
  Missouri; March 23, 2022.......................................  3422
Allen, Alena M., interim dean and professor of law, University of 
  Arkansas School of Law, Fayetteville, Arkansas, et al., Black 
  deans of law schools in the United States; March 18, 2022......  3427
American Association for Access, Equity and Diversity (AAAED), 
  Washington, DC; March 22, 2022.................................  3435
American Association for Justice (AAJ), Navan Ward, Jr., 
  president, Washington, DC; March 21, 2022......................  3439
American Federation of Government Employees (AFGE) Local 704, 
  Chicago, Illinois, et al., environmental groups and coalition 
  partners; March 17, 2022.......................................  3441
American Federation of Labor and Congress of Industrial 
  Organizations (AFL-CIO), Elizabeth H. Shuler, president; April 
  1, 2022........................................................  3446
American Federation of Teachers (AFT), Randi Weingarten, 
  president, Washington, DC; March 21, 2022......................  3447
Association of Village Council Presidents (AVCP), Tribal 
  consortium with 56 federally recognized Tribes as members, 
  Vivian Korthuis, chief executive officer, Bethel, Alaska; March 
  23, 2022.......................................................  3449
Ayer, Hon. Donald B., former Deputy Attorney General of the 
  United States, et al., lawyers and others who served in 
  Republican administrations; March 3, 2022......................  3451
Beatty, Hon. Joyce, a Representative in Congress from the State 
  of Ohio and Chair, Congressional Black Caucus, et al., Members 
  of Congress of the Congressional Black Caucus and Members of 
  Congress of the Democratic Women's Caucus; March 19, 2022......  3454
Bellinger, John B., III, former legal adviser, National Security 
  Council and Department of State, et al., attorneys who served 
  on both sides of litigation for detainees at Guantanamo Bay 
  detention camp, Cuba; March 28, 2022...........................  3456
Bennett, James, former law clerk to Justice Anthony M. Kennedy, 
  et al., law clerks during the Supreme Court's October Term 1999 
  who worked with Judge Jackson when she served as a law clerk to 
  Justice Stephen Breyer; March 3, 2022..........................  3460
Black Men Lawyers' Association (BMLA), Chicago, Illinois; March 
  21, 2022.......................................................  3463
Breyer, Julia M., et al., former law clerks to Judge Ketanji 
  Brown Jackson; March 17, 2022..................................  3464
Burck, William A., former law clerk to Justice Anthony M. 
  Kennedy; February 28, 2022.....................................  3467
Butler, Rev. Jennifer, chief executive officer, Faith in Public 
  Life, Washington, DC, et al., faith leaders from across the 
  United States; March 30, 2022..................................  3469
Catholics for Choice, Jamie L. Manson, president, Washington, DC; 
  March 21, 2022.................................................  3520
Center for Disability Rights (CDR), L. Dara Baldwin, MPA, 
  director of national policy, Rochester, New York; March 17, 
  2022...........................................................  3522
Center for Law and Social Policy (CLASP), Olivia A. Golden, 
  executive director, Washington, DC; March 23, 2022.............  3524
Coffey, Kendall, former U.S. Attorney, Southern District of 
  Florida, et al., former federal prosecutors who served 
  throughout the State of Florida; March 22, 2022................  3525
Coffey, Kendall, former U.S. Attorney, Southern District of 
  Florida, et al., former federal prosecutors who served the 
  State of Florida and who served South Florida; March 22, 2022..  3530
Common Cause, Karen Hobert Flynn, president, Washington, DC; 
  March 17, 2022.................................................  3535
Constitutional Accountability Center (CAC), Elizabeth B. Wydra, 
  president, Washington, DC; March 15, 2022......................  3538
Council on American-Islamic Relations (CAIR), Robert S. McCaw, 
  director, government affairs department, Washington, DC; March 
  16, 2022.......................................................  3548
Davis, Kenya K., professor, American University, and former 
  Assistant U.S. Attorney for the District of Columbia and 
  frontline prosecutor in the Sex Offense Domestic Violence 
  section, Cyber Crime, and the Child Exploitation and Human 
  Trafficking sections, Washington, DC; March 28, 2022...........  3551
Everytown for Gun Safety, John Feinblatt, president, and Eric 
  Tirschwell, executive director and chief litigation counsel, 
  Everytown Law, New York, New York; March 22, 2022..............  3553
Finney, Kathryn, managing general partner and founder, Genius 
  Guild, Chicago, Illinois, et al., Black women business owners, 
  entrepreneurs, and job creators; March 21, 2022................  3555
Ford, Hon. Aaron, Attorney General of the State of Nevada, Carson 
  City, Nevada, et al., State Attorneys General from across the 
  United States; March 15, 2022..................................  3560
Futures Without Violence, San Francisco, California, et al., 
  organizations from across the United States working to ensure 
  the safety and well-being of individuals; March 20, 2022.......  3564
Futures Without Violence, San Francisco, California, et al., 
  victim service providers and victims and survivors of domestic 
  violence and sexual assault; March 20, 2022....................  3567
Griffith, Hon. Thomas B., Judge, retired, U.S. Court of Appeals 
  for the District of Columbia Circuit, Washington, DC; February 
  26, 2022.......................................................  3569
Herbert, Lenese, professor of law, Howard University School of 
  Law, Washington, DC, et al., professors of law from across the 
  United States; March 14, 2022..................................  3571
Hodge, Jamila, former Assistant U.S. Attorney, et al., former 
  federal prosecutors and alumni of the United States Attorney's 
  Office for the District of Columbia; March 30, 2022............  3613
Human Rights Campaign (HRC), Joni Madison, interim president, 
  Washington, DC; March 21, 2022.................................  3618
Indivisible, Leah Greenberg, co-executive director, Washington, 
  DC; March 18, 2022.............................................  3620
Innocence Project, Christina Swarns, executive director, New 
  York, New York; March 24, 2022.................................  3621
International Association of Chiefs of Police (IACP), Dwight E. 
  Henninger, chief and president, Alexandria, Virginia; March 14, 
  2022...........................................................  3624
International Federation of Professional and Technical Engineers 
  (IFPTE), Matthew S. Biggs, president, and Gay Henson, 
  Secretary-Treasurer, Washington, DC; March 29, 2022............  3625
Intersections of Our Lives, a Reproductive Justice collaborative 
  of organizations, led by National Asian Pacific American 
  Women's Forum (NAPAWF), Sung Yeon Choimorrow, executive 
  director, Chicago, Illinois; National Latina Institute for 
  Reproductive Justice, Lupe M. Rodriguez, executive director, 
  New York, New York; and In Our Own Voice: National Black 
  Women's Reproductive Justice Agenda, Marcela Howell, president 
  and chief executive officer, Washington, DC; March 18, 2022....  3626
Jackson Lee, Hon. Sheila, a Representative in Congress from the 
  State of Texas and senior Member of the U.S. House of 
  Representatives Judiciary Committee; March 31, 2022............  3628
Japanese American Citizens League (JACL), David Inoue, executive 
  director, San Francisco, California; March 21, 2022............  3632
Johnson, Hon. Jeh Charles, former Secretary, U.S. Department of 
  Homeland Security, Hon. Loretta E. Lynch, former U.S. Attorney 
  General, and J.W. Crawford, III, Vice Admiral, Judge Advocate 
  General Corps, USN, retired, et al., national security lawyers' 
  perspectives on Judge Jackson's representation of several 
  detainees from Guantanamo Bay detention camp, Guantanamo Bay 
  Naval Base, in the period 2005-2009; March 16, 2022............  3634
Jones, Joshua Aaron, law professor, California Western School of 
  Law, San Diego, California, et al., LGBTQ+ law professors and 
  allies; March 4, 2022..........................................  3637
Lawyers' Committee for Civil Rights Under Law, Damon Hewitt, 
  president and executive director, Washington, DC, et al.; March 
  30, 2022.......................................................  3646
Leadership Conference on Civil and Human Rights, The, Washington, 
  DC, et al.; March 17, 2022.....................................  3652
League of Conservation Voters (LCV), Gene Karpinski, president, 
  Washington, DC; March 17, 2022.................................  3662
League of United Latin American Citizens (LULAC), Sindy M. 
  Benavides, chief executive officer, Washington, DC; April 4, 
  2022...........................................................  3664
Levi, David F., president, American Law Institute (ALI), and 
  director, Bolch Judicial Institute at Duke Law School, Durham, 
  North Carolina; March 2, 2022..................................  3665
Lynch, Hon. Loretta E., former Attorney General of the United 
  States and former U.S. Attorney, Eastern District of New York, 
  et al., former senior lawyers in the U.S. Department of 
  Justice; March 9, 2022.........................................  3667
Martin, Areva, civil rights attorney, nonprofit leader, and 
  working mother, and Ginger McKnight-Chavers, attorney, author, 
  and working mother, et al., African-American women representing 
  a cross-section of ages and socioeconomic, familial, national, 
  and professional backgrounds; March 10, 2022...................  3671
Menefee, Hon. Christian D., Harris County Attorney, Houston, 
  Texas, et al., Black attorneys licensed to practice law in 
  Texas; March 18, 2022..........................................  3678
Motley, Joel, son of Constance Baker Motley, former NAACP Legal 
  Defense and Educational Fund attorney and lead strategist on 
  Brown v. Board of Education litigation, New York, New York; 
  March 31, 2022.................................................  3681
NARAL Pro-Choice America, Mini Timmaraju, president, Washington, 
  DC; March 18, 2022.............................................  3682
National Asian Pacific American Bar Association (NAPABA), Priya 
  Purandare; Asian Americans Advancing Justice (AAJC), John C. 
  Yang; and National Council of Asian Pacific Americans (NCAPA), 
  Gregg Orton; Washington, DC, et al.; March 18, 2022............  3686
National Association for the Advancement of Colored People 
  (NAACP), Derrick Johnson, president and chief executive 
  officer, Baltimore, Maryland; March 18, 2022...................  3688
National Association for the Advancement of Colored People 
  (NAACP), Derrick Johnson, president and chief executive 
  officer, Baltimore, Maryland; April 5, 2022....................  3704
National Association of Women Lawyers (NAWL), Karen M. 
  Richardson, executive director, Chicago, Illinois, letter and 
  statement; March 19, 2022......................................  3720
National Bar Association (NBA), Hon. Carlos Moore, president and 
  chairman, Washington, DC; March 31, 2022.......................  3724
National Black Law Students Association (NBLSA), Simone Yhap, 
  national chair and chief executive officer, Washington, DC; 
  February 25, 2022..............................................  3731
National Coalition Against Domestic Violence (NCADV), Denver, 
  Colorado; March 18, 2022.......................................  3733
National Coalition on Black Civic Participation (NCBCP) and Black 
  Women's Roundtable, Melanie L. Campbell, president and chief 
  executive officer, NCBCP, and national convener, Black Women's 
  Roundtable, Washington, DC; April 2, 2022......................  3735
National Congress of American Indians (NCAI), Fawn Sharp, 
  president, Washington, DC, and Native American Rights Fund 
  (NARF), John E. Echohawk, executive director, Boulder, 
  Colorado; March 28, 2022.......................................  3738
National Congress of Black Women (NCBW), Judge Doris Smith-
  Ribner, retired, chairperson emeritus, Philadelphia, 
  Pennsylvania, et al.; March 29, 2022...........................  3740
National Council of Jewish Women (NCJW), Jody Rabhan, chief 
  policy officer, Washington, DC; March 11, 2022.................  3741
National Education Association (NEA), Rebecca S. Pringle, 
  president, Washington, DC; March 25, 2022......................  3743
National Employment Lawyers Association (NELA), Laura M. Flegel, 
  legislative and public policy director, and Jeffrey A. Mittman, 
  executive director, Concord, California; March 27, 2022........  3745
National Hispanic Leadership Agenda (NHLA), Kenneth Romero, chair 
  and executive director, National Hispanic Caucus of State 
  Legislators (NHCSL), et al., Washington, DC; April 6, 2022.....  3748
National Organization for Women (NOW), Christian F. Nunes, 
  president, Washington, DC; March 24, 2022......................  3750
National Organization of Black Law Enforcement Executives 
  (NOBLE), Alexandria, Virginia; February 28, 2022...............  3751
National Organization of Concerned Black Men (CBM), Dr. Karen 
  McRae, national president and chief executive officer, 
  Washington, DC; March 21, 2022.................................  3752
National Partnership for Women & Families, Jocelyn Frye, 
  president, Washington, DC; March 18, 2022......................  3754
National Urban League (NUL), Marc H. Morial, president and chief 
  executive officer, New York, New York, and Joi O. Chaney, 
  executive director, Washington Bureau, and senior vice 
  president, policy & advocacy, Washington, DC; March 17, 2022...  3758
National Women's Law Center, Fatima Goss Graves, president and 
  chief executive officer, Washington, DC; March 31, 2022........  3760
National Women's Law Center, Washington, DC, et al., advocates 
  for gender justice in the courts, in public policy, and in 
  society; March 31, 2022........................................  3764
National Women's Law Center, Washington, DC; Women's Bar 
  Association of the District of Columbia, Washington, DC; and 
  California Women Lawyers, Sacramento, California; March 31, 
  2022...........................................................  3769
NETWORK Lobby for Catholic Social Justice, Mary J. Novak, 
  executive director, Washington, DC; March 29, 2022.............  3792
Oglala Sioux Tribe, Kevin Killer, president, Pine Ridge, South 
  Dakota; March 11, 2022.........................................  3793
Onwuachi-Willig, Angela, dean, and Ryan Roth Gallo & Ernest J. 
  Gallo Professor of Law, Boston University School of Law, 
  Boston, Massachusetts, et al., Black women law professors; 
  March 18, 2022.................................................  3795
Organized Village of Saxman (OVS), a federally recognized 
  sovereign Tribe, Joe Williams, Jr., president, Saxman and 
  Ketchikan, Alaska; April 4, 2022...............................  3812
Pass Her the Gavel, a network of Black law students and Black 
  professionals; March 26, 2022..................................  3813
People For the American Way (PFAW), Marge Baker, executive vice 
  president, Washington, DC; March 30, 2022......................  3814
People's Parity Project (PPP), Molly Coleman, executive director, 
  and Tristin Brown, policy and program director; March 21, 2022.  3822
Physicians for Reproductive Health (PRH), Dr. Kristyn Brandi, MD, 
  MPH, board chair, Hartsdale, New York; March 21, 2022..........  3824
Racicot, Marc, former Governor and former Attorney General, 
  Missoula, Montana, et al., lawyers from the State of Montana; 
  March 30, 2022.................................................  3826
Racine, Karl A., Attorney General, Office of the Attorney General 
  for the District of Columbia (OAG), Washington, DC; March 31, 
  2022...........................................................  3829
Resources Legacy Fund, Avi Garbow, president, Sacramento, 
  California; March 21, 2022.....................................  3830
Schwartz, Paul H., Boulder, Colorado, October 1994 Term of Court, 
  et al., former law clerks to Justice Stephen G. Breyer; March 
  16, 2022.......................................................  3832
Service Employees International Union (SEIU), Mary Kay Henry, 
  international president, Washington, DC; March 18, 2022........  3838
Sigma Pi Phi Fraternity, Dwayne M. Murray, Esq., Grand Sire 
  Archon, Atlanta, Georgia; letter and a 2022 Resolution; March 
  25, 2022.......................................................  3840
Southern Christian Leadership Conference (SCLC), Dr. Bernard 
  LaFayette, Jr., chairman, Board of Directors, and Dr. Charles 
  Steele, Jr., president and chief executive officer, Atlanta, 
  Georgia; March 31, 2022........................................  3843
Thomson, J. Scott, former Camden County Police Chief, Camden, New 
  Jersey, et al., members of the law enforcement community; March 
  7, 2022........................................................  3844
Toussaint, Etienne C., assistant professor of law, University of 
  South Carolina School of Law, Columbia, South Carolina, et al., 
  Black male law deans and law professors of United States law 
  schools; March 14, 2022........................................  3849
United States Black Chambers (USBC), Ron Busby, president and 
  chief executive officer, Washington, DC; March 2, 2022.........  3861
United States Hispanic Chamber of Commerce (USHCC), Ramiro A. 
  Cavazos, president and chief executive officer, Washington, DC; 
  March 8, 2022..................................................  3862
Unite for Reproductive & Gender Equity (URGE), Desiree S. Luckey, 
  Esq., Director of Policy, Washington, DC; March 31, 2022.......  3864
Women's Rights and Empowerment Network (WREN), Columbia, South 
  Carolina, et al.; March 30, 2022...............................  3866
Young Black Lawyers' Organizing Coalition (YBLOC), Abdul Dosunmu, 
  founder and chief strategist, New York, New York; March 17, 
  2022...........................................................  3869
YWCA USA, Margaret Mitchell, chief executive officer, Washington, 
  DC; March 23, 2022.............................................  3871

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

African American Mayors Association (AAMA), Hon. Sylvester 
  Turner, Mayor, City of Houston, Texas, and AAMA president, 
  Washington, DC, statement......................................  3873
Blackburn, Hon. Marsha, a U.S. Senator from the State of 
  Tennessee, and Tommy Tuberville, a U.S. Senator from the State 
  of Alabama; a letter to Rebecca S. Pringle, president, National 
  Education Association (NEA), with regard to New Business Item 2 
  and New Business Item 39, considered and adopted during the 
  NEA's 2021 Representative Assembly; July 19, 2021, letter......  3875
Cato Institute, Clark M. Neily, III, senior vice president for 
  legal studies, Washington, DC, statement.......................  3876
Coe, Aebra, and Chris Villani, ``1st Circ. Judge Selya Says 
  Jackson Will Be `Balanced','' Law360, February 25, 2022, 
  article........................................................  3880
Doiron, Sarah, `` `A Terrific Addition': Biden's Supreme Court 
  Nominee Worked Alongside RI Judge,'' WPRI.com, posted February 
  25, 2022, and updated March 22, 2022, article..................  3882
Family Equality, Shelbi Day, chief policy officer, New York, New 
  York, email correspondence statement...........................  3885
Fitzpatrick, Edward, ``Supreme Court Nominee Judge Ketanji Brown 
  Jackson Reminds Others of Ruth Bader Ginsburg,'' The Boston 
  Globe, March 22, 2022, article.................................  3887
Fraternal Order of Police (FOP), Patrick Yoes, president, 
  National Fraternal Order of Police, Washington, DC, statement..  3891
Gertner, Hon. Nancy, Judge, retired, U.S. District Court of 
  Massachusetts, and senior lecturer of law, Harvard Law School, 
  Cambridge, Massachusetts, et al., former U.S. district and 
  appellate judges address criticisms leveled at Judge Ketanji 
  Brown Jackson's record on child pornography sentencing, March 
  21, 2022, letter...............................................  3892
Gertner, Hon. Nancy, Judge, retired, U.S. District Court of 
  Massachusetts, and senior lecturer of law, Harvard Law School, 
  Cambridge, Massachusetts, et al., former U.S. district and 
  appellate judges address the release of pre-sentence reports 
  relating to defendants sentenced by Judge Ketanji Brown Jackson 
  for the crime of possession of images of child pornography, 
  March 28, 2022, letter.........................................  3894
Harvard Law Review, ``Prevention Versus Punishment: Toward a 
  Principled Distinction in the Restraint of Released Sex 
  Offenders,'' Vol. 109, No. 7 (May 1996), pp. 1711-1728, article  3896
Henry, Mary Kay, international president, Service Employees 
  International Union (SEIU), Washington, DC, et al., a coalition 
  of elected labor leaders of 27 unions and worker organizations 
  representing working people providing essential services, 
  statement......................................................  3914
Hispanic National Bar Association (HNBA), Washington, DC, 
  statement......................................................  3916
Immigration Hub, Sergio Gonzales, executive director, Washington, 
  DC, statement..................................................  3918
Jones, Hon. Doug, a former U.S. Senator from the State of 
  Alabama, ``Vivian Malone Jones: Alabama Women's Hall of Fame'' 
  recognizes Vivian Malone Jones at the time of her posthumous 
  induction into the State of Alabama Women's Hall of Fame Class 
  of 2021, tribute speech........................................  3921
Luttig, J. Michael, former Judge, U.S. Court of Appeals for the 
  Fourth Circuit, statement......................................  3933
Mulvaney, Katie, ``Here's What RI's Legal Community Says About 
  Supreme Court Nominee Ketanji Brown Jackson,'' The Providence 
  Journal, February 25, 2022, article............................  3934
National Association for the Advancement of Colored People 
  (NAACP) Legal Defense and Educational Fund (LDF), Janai S. 
  Nelson, president and director-counsel, et al., New York, New 
  York, statement................................................  3938
National Association for the Advancement of Colored People 
  (NAACP) Legal Defense and Educational Fund (LDF), ``The Civil 
  Rights Record of Judge Ketanji Brown Jackson,'' report.........  3940
Planned Parenthood Federation of America (PPFA), Karen Stone, 
  vice president, public policy and government relations, 
  Washington, DC, statement......................................  3979
Tushnet, Mark, ``Parents Involved and the Struggle for Historical 
  Memory,'' Indiana Law Journal, Vol. 91, No. 2 (April 2016), pp. 
  493-503, article...............................................  3981
United States Senate Committee on the Judiciary, Hon. Charles E. 
  Grassley, a U.S. Senator from the State of Iowa and Ranking 
  Member, U.S. Senate Judiciary Committee; Hon. Lamar Smith, a 
  Representative in Congress from the State of Texas and 
  Chairman, U.S. House of Representatives Judiciary Committee; 
  and Hon. F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin and Chairman, U.S. House 
  Judiciary Subcommittee on Crime, Terrorism and Homeland 
  Security; a letter to Hon. Patti B. Saris, Chairwoman, U.S. 
  Sentencing Commission, with regard to a Public Hearing on 
  Federal Child Pornography Crimes on February 15, 2012; February 
  14, 2012, letter...............................................  3992
United States Senate Committee on the Judiciary, Hon. Charles E. 
  Grassley, a U.S. Senator from the State of Iowa and Ranking 
  Member, U.S. Senate Judiciary Committee, et al.; a letter to 
  Hon. Richard J. Durbin, a U.S. Senator from the State of 
  Illinois and Chair, U.S. Senate Judiciary Committee, with 
  regard to providing documents to the Republican Members of the 
  Senate Judiciary Committee in connection with President Biden's 
  nomination of Judge Ketanji Brown Jackson to be an Associate 
  Justice of the Supreme Court of the United States; March 22, 
  2022, letter...................................................  3996
United States Sentencing Commission, ``Recidivism and Federal 
  Sentencing Policy: Overall; Offender Characteristics; Crime 
  Types; and Sentence Length,'' research report data chart.......  3999
  
  
 
                          CONFIRMATION HEARING 
                          ON THE NOMINATION OF 
                       HON. KETANJI BROWN JACKSON 
                   TO BE AN ASSOCIATE JUSTICE OF THE 
                   SUPREME COURT OF THE UNITED STATES

                              ----------                              


                         MONDAY, MARCH 21, 2022

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 11:02 a.m., in 
Room 216 of the Hart Senate Office Building, Hon. Richard J. 
Durbin, Chair of the Committee, presiding.
    Present: Senators Durbin [presiding], Leahy, Feinstein, 
Whitehouse, Klobuchar, Coons, Blumenthal, Hirono, Booker, 
Padilla, Ossoff, Grassley, Graham, Cornyn, Lee, Cruz, Sasse, 
Hawley, Cotton, Kennedy, Tillis, and Blackburn.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. This hearing of the Senate Judiciary 
Committee will come to order.
    Today, the Committee will begin its consideration of the 
nomination of Judge Ketanji Brown Jackson to be the 116th 
Justice of the United States Supreme Court. Welcome, Judge 
Jackson, and congratulations to you and your family.
    Judge Jackson. Thank you, Senator.
    Chair Durbin. This is a momentous occasion, and you have 
much to be proud of. I know you have many family members and 
friends who want to--you want to introduce, and we all look 
forward to hearing those introductions when you make your 
opening statement later.
    At the outset, I want to note that I was sorry to hear that 
Justice Clarence Thomas was hospitalized yesterday. I am sure I 
speak for all the Members of the Committee in wishing him a 
speedy recovery.
    Before I turn to my own opening statement, I want to 
briefly discuss today's order of events and the ground rules 
for the hearing.
    Today, each Member of the Committee has 10 minutes to make 
an opening statement. We'll go in seniority order, switching 
between Democratic and Republican Senators. After all Members 
have made their opening statements, we'll hear from Judge 
Thomas Griffith and Professor Lisa Fairfax, who are here today 
to introduce Judge Jackson. Each introducer will have 5 minutes 
to make an opening statement. Finally, we'll administer the 
oath to Judge Jackson and she will make her opening statement, 
and that will conclude today's events. Tomorrow, we'll begin 
rounds of questions.
    For those sitting in the audience, welcome. We are glad you 
could be here to witness this historic occasion. I ask all of 
our guests to be respectful and quiet during the hearing. 
Please do not stand up unless you're entering or exiting the 
room, and if you stand up, you will be asked by one of our 
distinguished members of the Capitol Police to sit down. If you 
refuse, you'll be escorted out of the room. Let me clear: we 
will not tolerate any disruptions from the audience. Any 
disruption will result in immediate removal. I also ask that 
our audience be respectful of the members of the Capitol Police 
who are here today to ensure everyone's safety.
    With that, we'll proceed to opening statements. Judge 
Jackson, as I said, thank you, again, for being here today with 
your family and friends.
    The Supreme Court has a long and storied history. Its ranks 
have been filled by many superb Justices, whose contributions 
to the rule of law have stood the test of time. But the 
reality--the reality--is that the Court's members in one 
respect have never really reflected the Nation they served. 
When the Supreme Court met for the very first time in February 
of 1790, in the Exchange Building in New York, there were 
nearly 700,000 slaves without the right of citizenship in this 
new Nation of nearly 4 million people. Neither African 
Americans nor women had the right to vote. There was no equal 
justice under the law for a majority of people living in 
America.
    In its more than 230 years, the Supreme Court has had 115 
Justices. A hundred and eight have been white men. Just two 
Justices have been men of color. Only 5 women have served on 
the Court, and just one a woman of color. Not a single Justice 
has been a Black woman. You, Judge Jackson, can be the first. 
It's not easy being first. Often, you have to be the best, and, 
in some ways, the brightest. Many are not prepared to face that 
kind of heat, that kind of scrutiny, that ordeal in the glare 
of the national spotlight. But your presence here today, your 
willingness to brave this process will give inspiration to 
millions of Americans who see themselves in you. As I mentioned 
to you, I was at the steps of the Supreme Court this morning to 
see the rally in support of you. There were so many young 
African-American women and law students there seeing your 
pursuit as part of their dream.
    In other important ways, though, you are no different than 
many nominees who have become before us. President Biden 
nominated you because he knew your qualifications are 
outstanding. This Committee knows you. You've appeared three 
previous times, and each time you've been confirmed with 
bipartisan support. And your professional record and life 
experience tell us what kind of lawyer, what kind of judge, and 
what kind of person you really are. Your guiding principles can 
be found in your life and in your work: that the Constitution 
must work for all Americans, not just the wealthy and powerful, 
that judges must show no favoritism, and that the judiciary 
must live up to the words emblazoned above the entrance, 
``Equal Justice Under Law.''
    So today is a proud day for America. We've come a long way 
since 1790, and we know that we still have a long way to go to 
form a more perfect Union. It's a moment that brings to mind 
something that the late Senator from Illinois, Paul Simon, my 
friend, said to Judge Ruth Bader Ginsburg at her nomination 
hearing. He said, ``You face a much harsher judge than this 
Committee, and that is the judgment of history, and that 
judgment is likely to revolve around the question, did she 
restrict freedom or did she expand it? '' I return to this 
statement time and again because it asks a vital question: how 
will history judge us? Judge Jackson, I have no doubt that 
history will remember you as a Justice who never stopped 
working to defend the Constitution, but I also ask the Members 
of this Committee, as we begin this landmark confirmation 
process, to consider how history will judge each Senator as we 
face our constitutional responsibility to advise and consent.
    This moment also brings to mind something President Barack 
Obama, another trailblazer said, of a fellow Illinoisian when 
the late Justice John Paul Stevens announced his retirement. 
President Obama said, ``While we cannot replace Justice 
Stevens' experience or wisdom, I will seek someone with similar 
qualities: an independent mind, a record of excellence and 
integrity, a fierce dedication to the rule of law, and a keen 
understanding of how the law affects the daily lives of 
America.'' Much like Justice Stephens, we cannot replace 
Justice Breyer, but with you, Judge Jackson, we have a nominee 
who embodies the same qualities as both of these outstanding 
Justices. You're independent minded and understand the critical 
importance of judicial independence.
    Your record is one of excellence and integrity from the 
championship debate team at Miami Palmetto Senior High School, 
to Harvard and Harvard Law School, to your three judicial 
clerkships, your work as a Federal public defender, a lawyer in 
private practice, a member of the Sentencing Commission, a 
Federal district judge, and circuit court judge. Throughout 
your career, you've been a champion for the rule of law, 
determined to get it right, even at the risk of public 
criticism. As a member of the United States Sentencing 
Commission, a bipartisan group which reflected the spectrum of 
American thinking on law enforcement, you set out to make 
policy that truly represented congressional intent when it came 
to making Federal criminal sentencing fairer, and you did it by 
finding bipartisan common ground.
    During your tenure on that Commission, 95 percent of the 
Commission's votes were either unanimous or consensus. For 
example, the Commission implemented the Fair Sentencing Act, a 
law that I negotiated with then-Senator Jeff Sessions, that 
reduced the infamous 100-to-1 crack-powder sentencing 
disparity, and you joined every one of your colleagues to make 
that change to the sentencing guidelines retroactive. You gave 
a powerful speech, and I'm going to quote it. You said, ``There 
is no excuse for insisting that those who are serving excessive 
sentences under the long-disputed and now discredited prior 
guideline must carry on as though none of this has happened.'' 
The vote in favor of retroactivity was unanimous on the 
Commission. Republicans and Democrats shared your view.
    And you've gone to great lengths to explain how the law 
affects real people. Indeed, with your nomination, we can be 
confident that the Court, its role, and its decisions will be 
more understandable to the American public. In your time on the 
bench, you've taken the time to explain your decisions and 
their consequences. When you were before this Committee just 
last year for your D.C. Circuit hearing, you described how you 
``take extra care to communicate with parties.'' You added, and 
I quote, ``I speak to them directly and not just to their 
lawyers. I use their names. I explain every stage of the 
proceeding because I want them to know what's going on.'' As a 
result of that approach, you've made the law more approachable 
to litigants and American people.
    The cameras and the lights here today can make it easy to 
forget that, at its core, the responsibility you seek is one of 
service, and I am fully confident you'll serve Americans from 
all walks of life and all backgrounds fairly and faithfully. 
Now, there may be some who claim, without a shred of evidence, 
that you'll be a rubber stamp for this President. For these 
would-be critics, I have four words: look at the record.
    Your complete record has been scoured by this Committee on 
four different occasions: all of your nearly 600 written 
opinions read and reread; 12,000 pages of transcripts, meeting 
minutes, and other materials from the Sentencing Commission; 
your sworn testimony before the Committee less than a year ago; 
every published and reported word you've written or spoken; 
your detailed answers to lengthy questions. For those who say 
they need more, I would answer that you have sat down 
personally with every Member on this dais of the Committee, 
Democrats and Republicans. A fair review of all this makes 
clear your values and your guiding principles. You have ruled 
for and against Presidents and administrations of both parties. 
You've ruled for prosecutors and for defendants. You've ruled 
for workers and for their employers, and you've been faithful 
to the law and not to any person or political cause.
    Now, there may be others who allege that you are before us 
today as a product of a campaign of dark money groups. Once 
again, your record and the process that led to this nomination 
belie that claim. To suggest that you're here merely because an 
organization supports you ignores your qualifications and the 
broad range of support you bring to this. In selecting you as 
his nominee, President Biden undertook a transparent selection 
process. He sought the input of Senators from both parties. 
Senator Grassley and I met in the Oval Room with the President. 
He invited us to proffer any nominees that we cared to do. At 
the end of the day, the President alone chose you. He's put his 
faith in you to deliver justice at the level of the Court. I 
share that faith.
    In announcing your nomination, the President spoke to many 
reasons that you deserve to sit on the High Court. He noted the 
perspective you'll bring as a former member of the Sentencing 
Commission, as the first Justice since Thurgood Marshall with 
considerable criminal defense experience, as the second current 
Justice--only the second--to serve as a Federal trial court 
judge. He also noted your upbringing and the fact that you come 
from a law enforcement family. Yet despite that shared family 
experience, despite your record, we've heard claims that you 
are ``soft on crime.'' These baseless charges are unfair. A 
conservative National Review columnist called claims brought by 
one of my colleagues, ``meritless to the point of 
demagoguery.'' They fly in the face of pledges my colleagues 
made that they would approach your nomination with civility and 
respect. And fact checkers, including The Washington Post, ABC 
News, and CNN have exposed some of these charges as falsehoods.
    Critics have even stooped to accusing you of sharing the 
views of the clients you represented, even though they know 
that your work as an attorney was in service to the Bill of 
Rights and the Constitution's promise of effective assistance 
of counsel. Would law enforcement officials and organizations, 
including the International Association of Chiefs of Police, 
the National Organization of Black Law Enforcement Executives, 
and the Fraternal Order of Police, have endorsed your 
nomination if you were soft on crime? Of course not. I'm 
confident the American people will see through these attacks 
and any other last-minute attempts to derail your confirmation.
    In closing, I want to share the words of one more 
Illinoisian, if you would bear with me, a rather famous one 
named Abraham Lincoln. In August 1864, at the height of the 
Civil War, President Lincoln addressed the 166th Ohio Regiment. 
Lincoln said to the soldiers, and I quote, ``I happen 
temporarily to occupy this big White House. I am living witness 
that one of your children may look to come here as my father's 
child has.'' Judge Jackson, we are all just temporary occupants 
of the Senate, the House, even the lifetime appointment to the 
highest court in the land. You, Judge Jackson, are one of Mr. 
Lincoln's living witnesses of an America that is unafraid of 
challenge, willing to risk change, confident of the basic 
goodness of our citizens. And you are a living witness to the 
fact that in America, all is possible.
    I now recognize my colleague and friend, the Ranking 
Member, Senator Grassley.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Judge Jackson, congratulations. Welcome 
to you and your family. I thank you for taking time to visit 
with me in my office after the President nominated you. Since 
President Biden announced his nominee for the Supreme Court, I 
have been encouraging my colleagues to schedule meetings with 
you, Judge Jackson, and they have come off. In addition, I've 
continually emphasized the need for a thorough, respectful 
process by the Committee.
    Now, I want to talk a bit about what everyone watching 
should expect from this hearing and what they shouldn't expect 
at the hearing. We will conduct a thorough, exhaustive 
examination of Judge Jackson's record and views. We won't try 
to turn this into a spectacle based upon alleged process fouls. 
Good news on that front, we're off to a very good start. Unlike 
the start to the Kavanaugh hearings, we didn't have repeated 
choreographed interruptions of Senator Durbin during his 
opening statements like Democrats interrupted me for more than 
an hour during my opening statement on the Kavanaugh hearings.
    What we will do, however, is ask tough questions about 
Judge Jackson's judicial philosophy. In any Supreme Court 
nomination, the most important thing that I look for is the 
nominee's view of the law, judicial philosophy, and view on the 
role of a judge in our constitutional system. I'll be looking 
to see whether Judge Jackson is committed to the Constitution 
as originally understood.
    We all know there's a difference of opinion about the role 
judges should play. Some of us believe that judges are supposed 
to interpret the law as it was understood when written, not 
make new law or simply fill in a vacuum. Those of us who share 
that view think that, under our Constitution, Congress and not 
the Federal courts are given the authority to make law and to 
set policy. Now, there are others who believe that the courts 
should make policy. They believe in a so-called living 
Constitution. They think that the Constitution's text and 
structure don't limit what a judge can do. To them, deciding 
what the Constitution means is really a ``value judgment.'' 
Under that approach, judges can exercise their own independent 
value judgments.
    One of the leading advocates for this approach explained 
that as a judge, you ``reach the answer that essentially your 
values tell you to reach.'' In other words, those who ascribe 
to this philosophy think that the founders really meant to hide 
elephants in mouse holes. Then, with a bit of creativity, these 
judges can always find that elephant. That sounds like a good 
job description instead for legislators and not for judges. 
But, for at least 4 years, Democrats have systemically voted 
against many well-credentialed nominees that were diverse 
professionally, diverse geographically, diverse religiously, 
and diverse ethnically. Was it racist or anti-women for them to 
do so? I don't believe that it was. Democrats did it because 
the nominees didn't agree with living constitutionalism, just 
as Republicans have opposed nominees based upon their judicial 
philosophy.
    There are lots of problems with living constitutionalists. 
In the Senate, we spend a lot of time writing legislation. We 
argue over the language. We negotiate over how broad or narrow 
certain provisions of law should be. If we can't convince our 
colleagues to adopt all of our ideas, we have been known to 
compromise every once in a while. We depend on judges to 
interpret the laws as we write them. If judges impose their own 
policy preferences from the bench and, essentially, revise the 
laws we pass, it makes it harder for us to write good laws. 
Sometimes we need to include a provision that's very broad to 
get a colleague's support. If a judge rewrites the law later 
because of vague notions about fairness, or equity, or common 
good, that unravels all of our work here in the Congress. More 
importantly, the American people should be able to read a law 
and know what it means. They shouldn't have to ask how a 
Federal judge who disagrees with the law could reinterpret the 
words on that page. All of this leads to the conclusion as to 
why we must carefully examine Federal judges' records, 
especially Supreme Court nominees.
    Judge Jackson has served as an assistant public defender, 
worked in private practice, and served on the United States 
Sentencing Commission. She also served as a Federal district 
court judge from 2013 to 2021. She's served on the D.C. Circuit 
since June last year. I'm sure Senators will have a few 
questions for Judge Jackson about the two opinions she's 
authored since joining the D.C. Circuit. As for her district 
court record, there have been some accusations that we cherry-
picked some of Judge Jackson's criminal cases. Well, don't 
worry. We're going to talk about other cases as well.
    I was disappointed that we weren't able to get bipartisan 
agreement to ask for Judge Jackson's documents from her time as 
vice chair of the Sentencing Commission. ``The Commission is an 
independent agency created to advise and assist Congress and 
the executive branch in the development of effective and 
efficient crime policy,'' and that's a quote. Unfortunately, it 
sounds like we'll have to wait until those documents are 
required to be released, and that will be about 20 years from 
now.
    Democrats have argued that Judge Jackson's time on the 
Commission is an important part of her experience that she'll 
draw on as a judge. The Democrats are right on that point. 
That's why it would've been good to see what her views were as 
the head of the Commission. Explained in a letter to Senator 
Durbin, the public documents turned over to this Committee 
represent the consensus views of the Commission and not 
necessarily Judge Jackson's own views.
    The Obama White House sent us roughly 68,000 pages of 
material, but more than 38,000 of the 68,000 pages are repeated 
copies of email threads that--keeping track of the tweets about 
the Garland nomination. Those emails contained just one tweet 
about Judge Jackson. More than 13,000 of the 68,000 pages are 
just lists of previous nominations, so that leaves only 16,000 
of 68,000 that we received from the White House that aren't 
obviously--useless like all the other documents received. But 
for comparison, the White House has still withheld 48,000 pages 
under the Presidential Records and FOIA exemptions. Now that's 
a lot of hiding, but the limited number of useful records that 
we received from the Obama White House show exactly why the 
Sentencing Commission documents would've been important.
    There are a number of dark money groups on the left that 
argue Federal judges should make policy decisions based on 
judges' own values. I've talked about the troubling role of 
far-left dark money groups, like Demand Justice, have played in 
this administration's judicial selection process. When Demand 
Justice isn't creating short lists for President Biden to pick 
judicial nominees from or putting out new litmus tests, they're 
running ads--campaigns attacking the independence of the 
judiciary. They've strongly supported the so-called progressive 
prosecutors who are soft on violent crime in the face of rising 
crime waves in cities like San Francisco, Philadelphia, Boston, 
and Los Angeles.
    Now, what does that have to do with the nominee before us? 
The Obama White House records indicate that a co-founder of the 
Demand Justice played an important role in Judge Jackson's 
nomination to the Sentencing Commission and the district court. 
The Demand Justice co-founder even interviewed Judge Jackson 
about the nomination to the Sentencing Commission. It would be 
helpful to know what the Demand Justice co-founder learned from 
that process and why they strongly support Judge Jackson.
    However, it hasn't all been bad on the document front, I 
want to make clear. We'd ask for briefs that aren't available 
online for D.C. Circuit cases Judge Jackson worked on as an 
attorney. At first, we were told they might not be available 
for a few weeks, but to our pleasant surprise, we received them 
early, apparently because the White House had asked for the 
documents as well. Judging by the timetable we were originally 
given to get the briefs, that request was made after she was 
announced. Now, those documents concern Judge Jackson's time as 
Assistant Federal Public Defender.
    Democrats have accused Republicans of vilifying nominees 
who have represented criminal defendants. That's just not the 
case, and I think that's a very unfair accusation. Previous 
Supreme Court nominees have also represented criminal 
defendants on appeals. Chief Justice Roberts was appointed by 
the Supreme Court to represent a defendant in an important 
criminal law case, and he also helped represent an inmate in a 
Florida death row. And Justice Barrett represented a criminal 
defendant appealing their conviction while she was in private 
practice. Now, I've distinguished between two types of nominees 
who have worked in criminal cases. There are Bill of Rights 
attorneys who want to protect defendants' constitutional 
rights, then there are what I've called criminal defense 
lawyers, who disagree with our criminal laws. They want to 
undermine laws that they have policy disagreements with, and, 
of course, that's a very important difference. Just a year 
ago--no, maybe it's now 2 years ago--Democrats had no trouble 
opposing nominees based on arguments these nominees made on 
behalf of clients. I can read off quotes of Democrats doing 
that to Trump nominees, but we only have a few minutes for 
these opening statements, and I'd run out of time.
    On a final note, during Justice Barrett's confirmation 
hearing, Democrats said that she would be a ``judicial torpedo 
aiming at protecting--protections for pre-existing 
conditions.'' We heard that argument repeatedly. Conservatives 
and anyone who actually looked at her record and laws said that 
that was strictly nonsense, but Democrats were sure otherwise. 
Well, when that case was finally decided, Democrats were proven 
wrong. I'm sure that won't deter any of my Democrat colleagues 
for making some confident predictions this time around as well, 
but the public record should remember their track record and 
perhaps take those claims with a grain of salt. They were wrong 
in their strong declarations how Justice Barrett would rule.
    Judge Jackson, congratulations on your nomination. I look 
forward to hearing from you about your record, your views on 
the law, and your judicial philosophy. Thank you.
    Chair Durbin. Thank you, Senator Grassley.
    Next is the President Pro Tem of the Senate and former 
Chairman of the Committee, Patrick Leahy.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Senator Leahy. Well, thank you, Mr. Chair. Judge Jackson, 
welcome. It's really good to see you again.
    You know, today and actually throughout this week, the 
Committee and the country are going to hear from Judge Jackson. 
She's been nominated to be the next Associate Justice of the 
United States Supreme Court. Any nomination--any nomination--to 
the Court is historic. There have only been 115 Justices in our 
Nation's history. Judge Jackson's nomination, of course, is 
historic in more ways than one. Her nomination, pending a 
confirmation by the Senate, will bring us one step closer to 
having a Supreme Court that is more reflective of our Nation, 
one where diversity, race, and gender, background, education, 
and experience allow all Americans to look to their Court and 
see in its Justices a reflection of the American people.
    Judge Jackson, you know, with your presence here today, you 
are writing a new page in the history of America, a good page. 
Who the President nominates and the Senate decides to confirm 
to our Federal judiciary, and especially our Nation's highest 
court, that's extremely important. The American people, our 
constituents, and their faith--and their faith in the courts, 
that's central to our democracy. If they lose their faith, then 
democracy loses.
    The decisions made in our courts and, ultimately, in the 
Supreme Court affect the daily lives of each one of us. 
Fundamental questions about, for example, access to healthcare, 
the integrity of our elections, the fairness of our criminal 
justice system, the preservation of bedrock environmental laws, 
protections for workers, these issues and many more are 
routinely decided by the Court. Every American must believe 
that the Court is going to be impartial. They must believe that 
our courts are not a mere political arm of the Executive or the 
Congress but faithful only to the rule of law. The stakes in 
democracy are simply too high.
    Let's make a few things clear. Judge Jackson is no judicial 
activist. She is not a puppet of the so-called radical left. 
She's been praised by Republican-appointed judges for 
jurisprudence. Lawyers from the right and the left who appeared 
before her in court have called her judicious and even-handed. 
Before I was in the Senate, I tried a lot of cases in trial 
court and then courts of appeal. That's what I wanted, somebody 
who was judicious and even-handed. I didn't care what their 
politics were. Judge Jackson is not anti-law enforcement. She 
hails from a law enforcement family. She's also won the support 
of preeminent national law enforcement organizations, including 
the National Fraternal Order of Police.
    And, no, she's not soft on crime. Her background as a 
Federal public defender would bring an informed perspective of 
our criminal justice system to the Supreme Court. I'm proud of 
being a former prosecutor, but confidence in my prosecution of 
a case was strongest when I knew the defendant had the best 
possible representation. When both sides and the presiding 
judge have real grasp of our criminal justice system, that's 
when justice is most likely to be done. So I would say that 
Judge Jackson's background is not a liability to the Court. 
It's a much-needed asset to the Court.
    And since her nomination, again, here today, we've heard 
about the long, distinguished record of Judge Jackson: graduate 
of Harvard, Harvard Law School; a judicial clerk at the 
district, circuit, and Supreme Court level; a Federal appellate 
judge; a Federal district court judge; a member of the U.S. 
Sentencing Commission; an attorney in private practice; and a 
Federal public defender. What a resume. All these experiences 
and perspectives have provided her a mastery of our justice 
system, and that's, in particular, the criminal justice system. 
If she is confirmed, she would become the first-ever Justice to 
have served as a Federal public defender. That's an important 
experience given how much the Court shapes our criminal justice 
system. I say that from my experience as a Senator but also my 
experience for nearly a decade as a prosecutor.
    And perhaps most of all, it is Judge Jackson's nearly 10 
years as an appellate and trial judge that underscore the 
experience she would bring to the Supreme Court. She was 
confirmed unanimously by the Senate in 2013 to the D.C. Circuit 
Court. She served with distinction for 8 years, she issued more 
than 500 opinions, she presided over a dozen trials, and a 
bipartisan majority of the Senate confirmed her to the D.C. 
Circuit Court of Appeals last year. Let's be honest. She's a 
fair and impartial jurist with a fidelity to the law above all 
else. That's what Americans want to see in a Supreme Court 
Justice.
    Years of so-called judicial wars have left Americans 
feeling like our courts have become increasingly partisan. The 
extreme interests of pressure groups on both sides of the 
political spectrum have left the American people wondering if 
they can get a fair shake in our courts. And yet, in this 
moment, we have before us a unique opportunity to change that 
narrative. I'm under no illusion that we can mend this process 
overnight, but we have before us a nominee who has brought us 
together across party lines before and one I hope who could 
bring us back together again. The Senate can change course, 
return to how we fairly and objectively evaluate nominees. We 
can do that with the highly qualified nominee we have in Judge 
Jackson.
    Now, as Chair Durbin said, I'm the President Pro Tempore of 
the Senate. I'm a former Chairman of this Committee. I have 
participated in 20 prior Supreme Court nomination processes, 
mostly into confirmation, a small handful. In fact, the first 
Justice I voted on was from your State, Senator Durbin, John 
Paul Stevens. I've supported nominees from both Democratic and 
Republican Presidents. And in Judge Jackson, I've found a 
distinguished nominee with an unassailable record and who 
merits our respect regardless of party.
    I believe the American people will see in her what I've 
come to learn in my review of her career and her life story. 
Her nomination is reflection of the arc of our democracy, the 
arc that bends toward justice, as Dr. King once said. Although 
in fits and starts with every generation, we have sought to 
become more inclusive, more representative. We've looked to 
civic leaders, elected representatives, and, yes, to judges to 
strengthen our democracy and to recognize that our strength 
comes from our diversity. Judge Jackson's story, her nomination 
today, is part of the evolving story of America.
    So, Judge Jackson, I want to congratulate you on this 
nomination. Despite all the darkness in the world and the 
political brinkmanship that has unfortunately become a hallmark 
of Congress in recent years, your nomination actually fills me 
with hope, hope for the Court, hope for the rule of law, hope 
for the country. One need look no further than the chaos, the 
devastation, and the inhumanity halfway around the world in 
Ukraine to know how precious our democracy is and how precious 
is the legacy we have in our independent Federal judiciary.
    I need look no further than my own grandchildren, all of 
them, to know how necessary our fight for freedom, fairness, 
and equality is. The independence and impartiality of our 
courts, including the Supreme Court, are a cornerstone in the 
great experiment as the United States. And you, the American 
people, have a nominee in whom they can be proud. We have 
before us an historic moment, and I hope we can meet it as 
Senators, so I look forward to your testimony. Thank you.
    Chair Durbin. Thank you, Senator Leahy.
    Next is another former Chair of the Committee, the Senator 
from South Carolina, Lindsey Graham.

          OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
        A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman. Again, 
congratulations, a well-deserved honor here. You have worked 
hard all your life, and you have much to be proud of.
    I have said in the past that I think it's good for the 
Court to look like America, so count me in on the idea of 
making the Court more diverse. And in the history of our 
country, we've never had an African-American woman serve on the 
Court, but I also said--that didn't get much coverage--I want--
I want--I want the Court to play a particular role in America. 
One is make it more look like the country but also make it 
operate in the confines of the Constitution. That didn't get a 
lot of coverage.
    So the hearings are going to be challenging for you, 
informative for the public, and respectful by us. I hope we can 
meet that--those criteria. It won't be a circus. We're off to a 
good start. Chairman Grassley couldn't get the first word out 
of his mouth before they shut down the place, so that's off to 
a good start. Most of us couldn't go back to our offices during 
Kavanaugh without getting spit on. I hope that doesn't happen 
to y'all. I don't think it will.
    As to the historic nature of your appointment, I 
understand, but when I get lectured about this from my 
Democratic colleagues, I remember Janice Rogers Brown, an 
African-American woman. It was filibustered by the same people 
praising you. I remember Miguel Estrada, one of the finest 
people I've ever met, completely wiped out, didn't make it 
through the gang of 14, whatever gang I was in--I've been in so 
many, I can't remember. He didn't make the cut; well-lived 
life, just completely ruined. So if you're a Hispanic or 
African-American conservative, it's about your philosophy. Now 
it's going to be about the historic nature of the pick. No, 
it's going to be about the philosophy.
    The bottom line here is when--it is about philosophy. When 
it's somebody of color on our side, it's about we're all 
racists if we ask hard questions. It's not going to fly with 
us. We're used to it by now, at least I am, so it's not going 
to matter a bit to any of us. We're going to ask you what we 
think you need to be asked. And, Senator Hawley, you need to 
ask her about her record as a district court judge. You should. 
I hope you do, and we'll see what she says. Very fair game.
    Now, President Biden had a choice here, and he has every 
right to make it. Elections have consequences. He had many 
qualified African-American women to choose from. He chose you. 
Michelle Childs, a district court judge from South Carolina 
supported by Jim Clyburn that was in the mix. I think it came 
down to about 2, 3, 4 people. I don't know for sure, but that's 
what the press was reporting. And when it came to Judge Childs, 
this Arabella Group--Senator Whitehouse, you talk about dark 
money. You may be on to something. This Arabella Group is 
funded by Soros and some other liberal billionaire. They got so 
many groups within their group, I can't name them all now, but 
they basically said if you--if you pick Childs, you may have a 
primary opponent. The AFL-CIO said Justice--Judge Childs was a 
union buster. The attacks from the left against Judge Childs 
was really pretty vicious, to be honest with you. So you say, 
Judge Jackson, you don't have any judicial philosophy per se. 
Well, somebody on the left believes you do or they wouldn't 
have spent the money they spent to have you in this chair, so 
we're going to find out how that statement holds up over time.
    A viewer's guide to this hearing, she will be asked about 
her sentencing practices as a district court judge, and she'll 
have a chance to explain her reasoning. And you can make up for 
yourself what this means, but it's good to be asked about her 
legal views. I'll ask her about the law of armed conflict and 
her view of the law of armed conflict. The fact that you 
represented Gitmo detainees is not a problem with me. Everybody 
deserves a lawyer. You're doing the country a great service 
when you defend the most unpopular people. But I do want to 
know about your amicus briefs after you're no longer a defense 
counsel weighing in to the Supreme Court about how they decide 
law of war issues. That matters a lot to me.
    I think it does matter that the groups that came to your 
aid at the expense of Judge Childs, how did that happen and why 
were they doing what they were doing. What is it about your 
nomination that the most liberal people under the umbrella of 
Arabella threw their money, their time, their support to you, 
and threatened Joe Biden if he picked Judge Childs? I want to 
know more about that. I want to know about your judicial 
philosophy because people on the left, the far extreme part of 
the left, believe that you were the best bet, and I want to 
know why they reached that conclusion. Maybe there's no 
explanation you can give us, but let--we'll talk about that.
    Now when we say this is not Kavanaugh, what do we mean? It 
means that Democratic Senators are not going to have their 
windows busted by groups. That's what it means. It means that 
no Republican Senator is going to unleash on you an attack 
about your character when the hearing is virtually over. None 
of us, I hope, have been sitting on information about you as a 
person for weeks or months, you come into our offices, and we 
never share it with you to allow you to give your side of the 
story. We wait to the very last minute when the hearing's about 
to be gaveled, concluded, and say, oh, by the way, I've got 
this letter. And it so happened that every media outlet in the 
country had the letter, too, so the next morning, there were 
headlines all over the country, really, accusing Judge 
Kavanaugh being basically Bill Cosby. None of us are going to 
do that to you, and if any of us does that to you, all hell 
will break out, and it should.
    The media will be your biggest cheerleader. They're in your 
camp. They have every right to pick who they want to pick. 
There won't be this constant attack on you like Judge Kavanaugh 
and other conservative judicial appointments. There won't be 
any questioning of where you go to church, what kind of groups 
you're in in church, how you decide to raise your kids, what 
you believe and how you believe in God. Nobody's going to do 
that to you, and that's a good thing. So you're the beneficiary 
of a lot. You're the beneficiary of Republican nominees having 
their lives turned upside down, and it didn't work. So I'm 
hoping that we can have a hearing that's respectful, that's 
informative, that's challenging.
    And President Biden has every right to pick who he'd like 
to pick. That comes with winning the White House, and I've been 
very inclined to support the picks of people that I would not 
have chosen. But this is a new game for the Supreme Court, and 
this game is particularly disturbing to me because there's been 
a wholesale effort of the left to take down a nominee from my 
State, and I don't like it very much. And if that's the way the 
game is going to be played, then I'll have a response, and I 
don't expect it to be--reward that way of playing the game. 
Justice Childs--Judge Childs would've gotten 60-plus votes. 
There have been people in my caucus that would've voted for 
her, even though we knew she would be a reliable liberal vote, 
because I and Senator Scott would've stepped up. Now we're 
pick--now we're facing a choice sponsored by the most radical 
elements of the Democratic Party when it comes to how to be a 
judge. They have the most radical view of what a judge should 
do, and you were their choice.
    And you will be asked do you support expanding the Supreme 
Court. I hope you can give us an answer because it shouldn't be 
hard. Either you do or you don't. Justice Ginsburg said no. She 
thought if you just change the number of the Court every time 
somebody new came in power, it would ruin the Court in the eyes 
of the public and make it a joke over time. I agree with that. 
So I hope you can give us an answer to that question because I 
think the Court would be better off if the judges stood up for 
the Court, if the judges told politicians don't play this game 
with the Court because over time, nobody wins.
    So congratulations. It's going to be a couple interesting 
days, and we're off to a better start than we have been in the 
past. And the one thing I can promise you, you will not be 
vilified. You won't--you will not be attacked for your 
religious views. You will not be accused of something that you 
could not defend yourself against until it was too late. Thank 
you.
    Chair Durbin. Thank you, Senator Graham.
    Senator Feinstein.

          OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
          A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thanks very much, Mr. Chairman. I want 
to begin by congratulating you, Judge Jackson, on this 
appointment. I've reviewed the records of a number of judicial 
nominees during my service on this Committee. This is actually 
the 10th set of confirmation hearings for a Supreme Court 
nominee that I've participated in during my time in the Senate. 
In looking at your record, it's clear that you have the 
qualifications, and the experience, and the knowledge needed to 
serve on the Supreme Court, and as a woman, it makes me very 
proud of that.
    As we begin these hearings, we as Senators take seriously 
our constitutional duty to advise the President on his 
appointment of a new Supreme Court Justice. In the current term 
alone, the Supreme Court is addressing cases on issues that are 
foundational to who we are as a country. Let me just give you 
three examples: The Court is considering a woman's fundamental 
right to control her own body and make her own healthcare 
decisions, it is considering the legal authority of the 
Environmental Protection Agency to fight climate change, and 
it's considering whether States have the power to enact 
commonsense gun safety protections. As a former mayor, I saw 
how these official--how these problems affect people, everyday 
people on everyday streets throughout my city and then, 
subsequently, the State of California.
    This is not your first time at this. In fact, it's your 
fourth time in front of this Committee. The full Senate has 
already confirmed you on a bipartisan basis three times to 
serve as vice chair of the U.S. Sentencing Commission in 2010, 
as a Federal district court judge, 2013, and as a Federal 
appellate court judge in 2021, and you have done us proud. Each 
of the three times, the Senate has considered your record, your 
experience, and your ability. Senators on both sides of the 
aisle have determined that you have the qualifications and the 
temperament it takes to uphold the values of our judicial 
branch. As I see it, those values are knowledge, even-
handedness, impartiality, integrity, respect for the rule of 
law, and fundamental fairness to all, and your record actually 
shows that you exemplify these values.
    The Supreme Court is not a political institution. Rather, 
the Court stands above politics and above partisanship, and we 
look at Federal judges to be independent and unbiased. Judge 
Jackson, in reviewing your record, one thing in particular 
stands out to me, and that's your commitment to uphold justice 
under the law. This is one of the ultimate responsibilities of 
the Supreme Court, and your record suggests to me that you 
understand the weight of that responsibility. You've had 
several mentors early in your career who understand--who I 
understand were important in instilling these values in you as 
a young lawyer. One of these--those mentors was Justice Stephen 
Breyer, who you served as a law clerk, and to whose seat on the 
Supreme Court you have now been nominated. What a treat for you 
to see that happen and I know for him as well. Justice Breyer 
has been a thoughtful and even-handed judge throughout his 
career, so you have learned from the best, and you have brought 
those lessons and that dedication to equal justice with you 
throughout your career in the law.
    You have strong credentials. You're a graduate of both 
Harvard University and Harvard Law School, a former Supreme 
Court clerk, and you have served as a Federal judge for 9 
years, most recently on the U.S. Court of Appeals for the 
District Circuit. These are impressive credentials, and they 
are also familiar to those of us who have received--excuse me--
who have reviewed numerous nominees to the Court. But you also 
bring experiences that are less common, especially at the 
Supreme Court. The first is your service as a Federal public 
defender earlier in your career. If you are confirmed, you 
would be the first ever Federal public defender to sit on the 
Court and the first Justice since Thurgood Marshall with 
significant experience representing low-income defendants in 
criminal cases.
    I believe this is very significant and important because, 
as a former public defender, you understand the power of our 
constitutional rights, including the Sixth Amendment right to 
counsel and the Fifth Amendment right to due process. You also 
understand the effect of law and the law enforcement system on 
the most vulnerable, and I believe your 8 years of expertise as 
a trial judge on the D.C. District Court is very valuable. So 
if confirmed, you would be one of only two former Federal 
district court judges serving on the Court, the other being 
Justice Sotomayor.
    I believe your perspective as a former trial judge will 
serve you well on the Court. You've been responsible for 
implementing the precedents set by higher courts, and, because 
of that, you understand the need for clarity in legal opinions, 
for achieving consensus wherever consensus is possible, and 
that has been your record. It's important to have Justices with 
a broad set of views and experiences on the Supreme Court, and 
I believe your background and your experience will only serve 
to strengthen the Supreme Court.
    I trust that my colleagues on this Committee will recognize 
that you are unquestionably qualified for this position. I wish 
you well. I look forward to learning more about you over the 
course of the coming days. Thank you, Mr. Chairman.
    Chair Durbin. Thanks, Senator Feinstein.
    Senator Cornyn of Texas.

             OPENING STATEMENT OF HON. JOHN CORNYN,
             A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Cornyn. Thank you, Mr. Chairman. Judge Jackson, let 
me join my colleagues in extending a warm welcome to you and 
your family. Congratulations on your nomination.
    I enjoyed sitting down with you recently and talking about 
your experience as both a lawyer and a judge and how that's 
molded your views of our judicial system. In the coming days, I 
hope we can have a candid conversation about your record and 
your judicial philosophy. As I told you the other--the other 
day, these proceedings will be thorough but civil. As a Member 
of this Committee I've had the opportunity to provide advice 
and consent on seven previous Supreme Court nominations. This 
is number eight. I've seen the good, the bad, and the ugly when 
it comes to the way the Senate conducts these proceedings, and 
so have the American people.
    One of the best things I think comes from this process is--
I think this is a teachable moment that will remind all of us 
about the wisdom of the founders who wrote a Constitution that 
made sure that our rights would be fixed and certain so that 
these rights, whether they are the right to keep and bear arms 
or the right to practice one's faith, would be preserved from 
generation to generation. As you know, the founders established 
three separate branches of our Government, a system of checks 
and balances, if you will. This was done for the purpose of 
preserving individual freedom and avoiding tyranny, and ensure 
that our Government was ultimately accountable to the people 
from whom all political power derives.
    Article III, as you know, vests the Supreme Court and 
inferior courts with the judicial power, but the framers were 
very clear the Courts are not vested with a policymaking 
authority. According to our Constitution, courts hear cases and 
controversies and decide them, nothing more, nothing less. 
That's an important distinction to remember in the days that 
lie ahead. Indeed, the framers envisioned that the Courts would 
be--would have a modest, but very important, role in our three 
branches of Government. You'll recall Federalist 78 where 
Alexander Hamilton said the courts would have ``no influence 
over either the sword or the purse,'' and that, ``It may truly 
be said to have neither force nor will but merely judgment.'' 
Part of that judgment requires a judge to go where the law 
commands, whether or not you personally approve or not, and it 
starts with deciding cases as presented and not cherry-picking 
the facts or the law, and starting with the decision and then 
justifying it by the way--by cherry-picked facts and provisions 
of the law.
    While the framers provided that the President would 
nominate judges, the framers also set up a framework that 
allowed judges, once you are confirmed, to exercise independent 
judgment, free from elections and politics. And so these 
Supreme Court confirmation hearings are really the only chance 
we have as representatives of the people to vet somebody who 
will serve the remainder of their life. Unfortunately, there 
are some driven by their ideology that want the Supreme Court 
to do more than what I've just described. These are some of the 
same people who tried to bully Justice Breyer into an early 
retirement. These activists demand that the Court make policy 
and deliver results they can't achieve through the 
deliberation, compromise, and rough and tumble of legislative 
politics. And when the Court does not deliver the results they 
want, they attack its institutional integrity and legitimacy.
    In recent years, these radical views have made their way 
into the mainstream. On the campaign trail, President Biden 
refused to disavow court packing. Two years ago, the Democratic 
Leader of the Senate went to the Supreme Court steps and 
threatened two sitting Supreme Court Justices by name if they 
did not rule in a particular way. Dark money groups, like 
Demand Justice, have paid millions of dollars to promote court 
packing and sow public distrust in the legitimacy of the 
Supreme Court. Justice Breyer, as you know, recently warned of 
the crippling effect this politicization of the Court in its 
decisionmaking can have. He said, ``Without the public's trust, 
the Court would no longer be able to act as a check on the 
other branches of Government and a guarantee--guarantor of the 
rule of law, threatening the foundations of our constitutional 
system.''
    Judge, I know you know that the courts are not designed to 
deliver particular policy outcomes or to invent new rights out 
of whole cloth. That's why it's imperative that we explore your 
judicial philosophy during this hearing. I will say I was a bit 
troubled when you--that you have not so far provided us with 
much clarity on that matter. Someone as accomplished as you 
are, who spent years engaging and thinking about our 
Constitution and laws, has surely formed a judicial philosophy. 
This is not your first rodeo. You've had an impressive career, 
Judge, as a Supreme Court clerk, appellate advocate, and trial 
court judge. I like the fact that you've had such broad 
experience in our judicial and legal system, but there are 
still unanswered questions that remain.
    I'm a bit troubled by some of the positions you've taken 
and arguments that you've made representing people who have 
committed terrorist acts against the United States and other 
dangerous criminals. As someone who has deep respect for the 
adversarial system of justice, I understand the importance of 
zealous advocacy, but it appears that sometimes this zealous 
advocacy has gone beyond the pale, and, in some instances, it 
appears that your advocacy has bled over into your decision-
making process as a judge.
    You've had some cases reversed, like all judges do, but 
some of them were particularly high profile when you ruled 
against a Republican administration. I'm eager to understand 
why, in some instances, you found that you could not decide a 
particular issue while, in other instances, you enjoined a 
Republican administration from implementing its policies. I'm 
also interested, as others have mentioned, in your opinion why 
pro-abortion dark money groups, like Demand Justice, and anti-
religious liberty groups are pouring millions of dollars into a 
public campaign in support of your nomination.
    Judge Jackson, these are some of the questions and concerns 
I have. I assure you that you will have every opportunity to 
address these concerns as the Committee evaluates your ability 
to fairly and impartially deliver justice, should you be 
confirmed. So I welcome your testimony at these hearings, and I 
look forward to our give and take. Thank you very much.
    Chair Durbin. Thanks, Senator Cornyn.
    Senator Whitehouse, Rhode Island.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
         A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you very much, Chairman.
    Welcome, Judge Jackson. I could not be more delighted to 
have you here.
    This is a refreshing moment. We are holding a hearing for 
an accomplished, experienced, highly qualified nominee to the 
Supreme Court, who came to us not through a dark money-funded 
turnstile, but through a fair and honest selection process.
    Judge Jackson has unparalleled breadth of experience, both 
on and off the bench. She has already been confirmed by the 
Senate three times. She serves on what is often called the 
second-highest court in the land. The D.C. Circuit handles some 
of the most difficult and consequential cases in the Nation, 
often taking up questions that later come before the Supreme 
Court. Judge Jackson, that will enable you to jump right in 
once confirmed.
    Before the D.C. Circuit, Judge Jackson was a trial judge in 
the District Court in the District of Columbia, ruling on 
hundreds of cases and presiding over trials, including many 
jury trials. Judge Jackson, you have presided over virtually 
every kind of case a Federal trial judge can hear across 
criminal and civil law. You have more experience actually 
trying cases in your courtroom than any other member of the 
Court.
    As a member of the U.S. Sentencing Commission, you helped 
establish the policies and practices for Federal courts when 
deciding criminal punishments. With commissioners from both 
parties, you helped implement our bipartisan Fair Sentencing 
Act, complicated and consequential work, and we thank you.
    It matters to me, Mr. Chairman, that Judge Jackson was also 
a civil litigator and public defender. She wasn't groomed in 
partisan petri dishes. She learned practical courtroom 
experience in both civil and criminal law, how the judicial 
system works, and how it serves or doesn't serve different 
litigants.
    And I must say that in Rhode Island, we love that before 
you clerked for Justice Stephen Breyer, you clerked for Rhode 
Islander Bruce Selya on the First Circuit. Judge Selya was 
nominated by Ronald Reagan. He is well regarded by bench and 
bar, and he thinks the world of Judge Jackson.
    ``She is absolutely everything you would want in a Supreme 
Court Justice,'' he told the Boston Globe in February. ``She 
has all the tickets in terms of her intelligence, her 
education, her work experience, and her demonstrated judicial 
temperament.''
    He actually said that waiting for the Supreme Court 
selection process to take place made him feel like a father 
waiting to hear his daughter's college admissions results. We 
very much appreciate that Rhode Island touch to this 
nomination.
    Judge Jackson is steadfastly committed to the Constitution 
and the rule of law, and her record reflects the type of even-
handedness and independence that will make her such a good 
Supreme Court Justice. Her guiding principle, she has said, is 
to ``consistently apply the same level of analytical rigor to a 
case, no matter who or what is involved in the legal action.'' 
She says this means you can--quoting again--``be consistent in 
the way you are analyzing the issues, and you can set aside any 
thoughts about who is making the arguments and what advantages 
any side might take away from your opinions.''
    ``If you have fidelity to the rule of law that is grounded 
in looking at only those inputs,'' she said, ``then I think you 
can rule without fear or favor.''
    Mr. Chairman, Judge Jackson will be an exemplary Justice, 
both because of the qualities that she possesses and because 
she did not undergo a secret preselection process to get here. 
She is before us on the basis of her own merit, not on the 
recommendation of a secretive right-wing donor operation hiding 
behind anonymous multimillion dollar donations and aimed at 
capturing the United States Supreme Court as if it were some 
19th century railroad commission.
    The unpleasant fact is that the present Court is the Court 
that dark money built. Anonymous donations funded the 
Federalist Society while it housed the selection turnstile run 
by the dark money donors. Anonymous money funded the dark money 
group down the same hallway as the Federalist Society that ran 
the dark money political campaigns for the selected Justices.
    And because of all that secrecy, Americans are denied any 
real understanding of the overlap of all that dark money with 
the political dark money funding the Republican Party, which 
could well explain the wreckage of Senate norms, rules, and 
procedures that accompanied the confirmation process of recent 
nominees.
    Judge Jackson's nomination and the process by which she was 
selected stand in sharp contrast. President Biden undertook a 
thorough and independent review of her record, and she will 
proceed through a thorough and fair process here in the Senate. 
We will abide by the new precedents set by Republicans in 
recent years, but we will not be fabricating new ones.
    We've already seen dark money groups use dark money to run 
ads charging that dark money swayed this selection. We are 
hearing that again today. Ironic, when hundreds of millions of 
dollars in right-wing dark money built the current Court 
majority and still signals its wishes through flotillas of dark 
money front groups posing as amici curiae. I welcome the debate 
on these points, and I look forward to hearing more from the 
excellent nominee before us.
    Judge Selya counted the late Justice Ruth Bader Ginsburg an 
old friend. ``I see some of the same qualities in Ketanji that 
I saw in Ruth,'' he said, ``humility, the ability to inspire 
others in a quiet way, not at the top of her voice.''
    ``Some people,'' he said, ``have the capacity to inspire by 
example and the force of their reason.'' Judge Jackson, I'm 
certain your capacity to inspire through force of reason will 
be on display here this week.
    Thank you, Chairman Durbin, for your leadership of the 
hearing, and thank you, Judge Jackson, for being with us today.
    Chair Durbin. Thanks, Senator Whitehouse.
    Senator Lee of Utah.

           OPENING STATEMENT OF HON. MICHAEL S. LEE,
             A U.S. SENATOR FROM THE STATE OF UTAH

    Senator Lee. Thank you, Mr. Chairman.
    Thank you, Judge Jackson, for joining us today.
    I appreciated the conversation you and I had in my office a 
few days ago and your willingness to engage in a lively and 
interesting conversation during that and look forward to more 
of that this week.
    I've enjoyed also meeting your husband and your two lovely 
daughters. They're wonderful people.
    I'm grateful to you for your service, your service to the 
Federal judiciary and as a member of the bar. You bring to the 
Court, as I mentioned to you last week, a unique set of 
experiences. If you're confirmed, you will be someone who has 
served at all three levels of the Federal judiciary, and as a 
result of that, you'll have a perspective that's different than 
that of most who have served on that Court during the modern 
era. And I appreciate your willingness to be considered and to 
be here to talk to us about our questions.
    I echo what many of my colleagues have said today in that I 
am dedicated, as I always have been, to making sure that these 
hearings are respectful. Engaging in the politics of personal 
destruction is not something we should ever aspire to. It is 
something that has occurred on this Committee in the context of 
Supreme Court nominations.
    I'm pleased to say that it has never been under Republican 
leadership that such attacks have occurred, and I intend to 
make sure that this hearing is no exception to that. Here are a 
few reasons for that.
    First and foremost, the most obvious is that respect to 
human beings requires it. Second, it's important because we 
focus on personal effects. That means we will be betraying our 
duty under the Constitution and to our constituents to make 
sure that we do our jobs fairly and properly. When we're 
focused on things that we have no business doing, like bringing 
forward spurious, last-minute, uncorroborated accusations of a 
personal nature, we neglect the importance of talking about the 
jurisprudential role, the philosophy that guides individual 
jurists, and the document that we're all sworn to uphold and 
protect, the Constitution of the United States.
    It's also important for an additional reason, a third 
reason, that has to do with the fact that having been nominated 
to this position, we know that you stand a very decent 
likelihood of ultimately being confirmed to this position, in 
which case you'll serve as a member of the Supreme Court of the 
United States. And I think it's important that even when, 
especially when we've disagreed with decisions issued by that 
tribunal, we as a Committee, as the Senate Judiciary Committee, 
not engage in speech or behavior that would undermine the 
legitimacy of the Supreme Court of the United States.
    You see, it's the legitimacy of the courts that gives them 
their potence, their power, their significance in our system of 
Government. We all have a duty to make sure that we don't 
undermine that very thing that we purport to be protecting.
    Let me tell you some of the things that I look for when 
reviewing a nominee and a few things that I intend to focus on 
in these hearings with you. One of them will involve any 
nominee's commitment to judicial self-restraint, to 
understanding the judicial role, what it is and what it is not.
    Any judicial nominee these days will acknowledge that he or 
she understands that the role of the judge is to interpret the 
law based on what it says, rather than on the basis of the 
judge's personal opinion. This is all very true. It raises 
questions as to how exactly that goes about and what steps, 
what tools, what rhetorical linguistic devices the jurist in 
question might follow in order to do that.
    I'm looking for someone who is ideally going to echo 
something that Justice Amy Coney Barrett said in her 
confirmation proceedings, in which she likened the 
Constitution--this document written by wise men nearly 2\1/2\ 
centuries ago, wise men who I believe were raised up by 
almighty God to that very purpose. To the extent we've followed 
that document, it's helped foster the development of the 
greatest civilization the world has ever known.
    But she likened this and our commitment to it as a little 
like what Odysseus told his crew. She said the Constitution is 
like how Odysseus ties himself to the mast to resist the song 
of the sirens. She then goes on to explain that he told the 
crew, ``Do not untie me. No matter how much I beg or plead, 
don't untie me from the mast.'' He wanted to avoid the tempting 
call of the sirens.
    The tempting call of the sirens is inherent in Government 
itself. It's understandable, and that's why we tie ourselves to 
it. Critical to that is the Federal judiciary, the ultimate 
backstop, the backstop that's there to resolve disputes.
    Now the Constitution isn't just something for the courts. 
It's not something that's owned exclusively and independently 
by the Federal judiciary or the Supreme Court itself. But it 
does play an important role because the Court is there to 
resolve disputes that arise within the Court's jurisdiction as 
to the meaning of a particular provision of Federal law, 
whether in the Constitution itself or as enacted into law by 
Congress.
    So we need a jurist who's willing to respect that role and 
demonstrate judicial humility. What I mean by that is an 
ability to acknowledge that there are a lot of things not 
within the province of the courts that entail policy. The job 
of a court of the judiciary is never to exert will or force. It 
is only judgment. It's discerning what the law says.
    A nominee also, I believe, needs to show a steadfast 
commitment to the principle of separation of powers. There are 
a couple of forms of separation of powers required by the 
Constitution along two axes. One operates along the vertical 
axis that we call federalism. It says most of the power of 
Government within the United States, most powers that 
Government might exercise, are to be exercised at the State and 
local level. Power that's Federal is the exception, not the 
norm, in our constitutional system of government.
    The other form of separation of powers operates along the 
horizontal axis. It's one that recognizes within the Federal 
Government, which is limited, we have one branch, our branch, 
Congress, that makes the laws; another branch headed by the 
President, the executive branch, that enforces them; and the 
third branch, which interprets them, resolving disputes between 
parties coming before the Court's jurisdiction.
    Third, I think it's important that a jurist within our 
system of government acknowledge the importance of interpreting 
the law as it was written, as it was understood by the public 
at the time of its enactment, if a statute, or, if a provision 
of the Constitution, at the time of its ratification. This is 
part of how we tie ourselves to the mast, making sure that we 
undertake efforts to make sure that we're interpreting it based 
on how the public understood those words, regardless of the 
subjective intent of any particular lawmaker or group thereof, 
the public meaning at the time it became law.
    This is how we maintain the rule of law. This is part of 
how we've given force to this greatest civilization that human 
history has ever recorded. It's through the rule of law and 
tying ourselves to that mast.
    There are increasing threats to this. We've seen those 
threats arise with efforts to delegitimize the Court, and I'm 
sickened every time I see or hear or experience one of those 
efforts to delegitimize it. We've heard some today, in fact. 
Comments that I think by their very nature delegitimize the 
Court.
    Another thing that can delegitimize the Court are arguments 
made in favor of packing the Supreme Court. This was attempted 
by President Franklin D. Roosevelt in 1937. It did lasting 
damage to the Court. It didn't succeed as a legislative matter, 
but it's arguable that it left a mark and not a pretty one.
    There is nothing in the Constitution that requires us to 
have nine and only nine Justices. That is under the 
Constitution left to Congress' determination. But nine is a 
number that works. It's worked now for 152 years. It's not one 
that we ought to revisit, and it's one that Supreme Court 
Justices of various ideologies, including your former boss 
Justice Breyer whom I really enjoyed getting to know when 
serving as a law clerk on the Supreme Court. I enjoyed our 
conversations with him. He, Justice Ginsburg, Justice Thomas, 
and so many others have been against that.
    We must protect the Court. We may not protect the Court. We 
lose ability to protect the Court if we allow arguments to take 
root that are focused on expanding that and turning the Court 
into a political body.
    Thank you, Mr. Chairman.
    Chair Durbin. Thanks, Senator Lee.
    Senator Klobuchar of Minnesota.

            OPENING STATEMENT OF HON. AMY KLOBUCHAR,
           A U.S. SENATOR FROM THE STATE OF MINNESOTA

    Senator Klobuchar. Thank you very much, Chairman Durbin, 
and thank you, Ranking Member Grassley.
    Judge Jackson, welcome. We met recently in my office, and 
we have seen you in this Committee before, and we are so happy 
to have you back. If Senator Whitehouse is pleased that you 
once clerked for a Rhode Island judge, we in Minnesota are 
equally happy that you are wearing bold purple today, winning 
over both Prince and Minnesota Vikings fans the world over.
    I'd like to welcome your husband, Patrick, and your two 
daughters and your other family members and friends. It is 
clear that your family, starting with your parents, who I got 
to meet--who are sitting there in the front row, who once 
worked as teachers--that your family has been a constant source 
of inspiration and support for you.
    My mom taught second grade until she was 70 years old. So I 
know firsthand it's pretty great to have a parent who was also 
a teacher, and they never stop checking your spelling.
    As a lawyer who also balanced work with parenthood myself, 
I particularly enjoyed your story, Judge, about sitting with 
your dad. You had a coloring book, and he was studying his law 
books.
    While these hearings are truly an opportunity, as my 
colleagues have pointed out, for Americans to get to know your 
legal acumen, we also learn about your background, your 
experiences, your values. And for so many of us, including 
people watching this hearing across the country, our values 
start with our family.
    There is something else particularly special about this 
hearing, of course. You've been nominated by President Biden as 
the first Black woman to serve on the Supreme Court. That's 
historic. With 115 Justices having served so far in our 
history, you're the first Black woman, and it's long past time.
    In fact, this entire hearing is about opening things up. 
The hearing room, we've opened it up with actual guests for the 
first time in a while, and you're opening up the Senate and the 
Court by virtue of your very presence. You, Judge, are opening 
a door that's long been shut to so many, and by virtue of your 
strong presence, your skills, your experience, you are showing 
so many little girls and little boys across the country that 
anything and everything is possible.
    We're here to carry out one of this Committee's most solemn 
constitutional obligations, to advise and consent on President 
Biden's nomination to the Supreme Court. But this is also a 
time for us to consider the Supreme Court's place in our 
democracy and how it impacts people.
    You've been nominated to Justice Breyer's seat. You clerked 
for him, and I know he's been and is a wonderful mentor to you. 
So I'd like to start with some of his words.
    Justice Breyer once wrote that the Supreme Court must help 
maintain public acceptance of its own legitimacy. He said, ``It 
can do this best by helping ensure that the Constitution 
remains workable in a broad sense of the term. Specifically, it 
can and should interpret the Constitution in a way that works 
for the people of today.''
    Making it work for the people of today, those words--his 
words--are highly relevant to the Court. And Justice Breyer 
didn't just write about those values. In his 27 years on the 
Court, he lived them. He approached cases with a pragmatic view 
of the law, and he understood that reference to the 
Constitution requires not just a respect for the past--although 
it does that--but also an eye toward the future.
    As we are here to confirm a new Justice for his seat, I 
urge my colleagues to remember his words about how the Court 
must consider the effect of its actions on people's lives, how 
it must be able to see the real people at the other end of its 
rulings.
    Like Americans who are one Supreme Court decision away from 
losing their health insurance, or one Court decision away from 
the ability to make their own healthcare choices, or the 
Dreamers who could lose the only country they've ever known, or 
the people who waited for hours in the rain one recent Election 
Day in Wisconsin wearing garbage bags and homemade masks in the 
middle of what would soon become a global pandemic just to cast 
a ballot, just to exercise their constitutional right to vote.
    The Court decides cases with life-changing consequences for 
people. It makes decisions that dictate health and safety 
standards for workers, protections for seniors, whether we can 
have clean air and clean water. The Supreme Court issues 
rulings that can determine who can make their voices heard in 
our democracy and how they can do it.
    So, Judge Jackson, this week I look forward to hearing more 
on your views about the real world implications of the law and 
about how you will respect the Constitution and legal 
precedent, all the while striving to ensure we have a Court 
that works for the American people.
    Judge, I believe you have exactly the sort of understanding 
of what the law means in people's lives that Americans would 
want in a Justice. You're from a family that knows something 
about making it work. Both of your parents attended segregated 
primary schools and later became teachers. And when your dad 
set his sights on becoming a lawyer, your mom figured out how 
to support the family while he attended law school.
    After being a star debater in high school, you went on to 
graduate magna cum laude in college and went on to graduate 
with honors from law school. After law school, you clerked for 
Federal judges nominated by both Democratic and Republican 
Presidents. And, of course, you had the honor of serving as a 
clerk to Justice Breyer.
    These aren't just lines on your resume. They show that you 
have worked to apply the law at every level of the Federal 
system. And beyond those credentials, you have the perspectives 
of someone who has seen the law through the eyes of those 
closest to it. Your brother worked as a police officer in 
Baltimore. One of your uncles was a detective, and another was 
a chief of police of the City of Miami.
    You know what it means for a person to put their life on 
the line to defend the rule of law. It is no surprise to me 
that you received the letter that Chairman Durbin mentioned, 
the letter of support from the Fraternal Order of Police. And 
as a former Federal public defender, you also understand that 
for our justice system to be truly workable, it must account 
for those who lack the resources to defend themselves, and you 
would be the first Justice to bring that experience to the 
Court.
    Judge, I believe it is because of your experience and 
respect for the law that the Senate has confirmed you three 
times with bipartisan support, as vice chair and commissioner 
of the U.S. Sentencing Commission, judge on the D.C. District 
Court, and most recently, the D.C. Circuit Court of Appeals. In 
each of these roles, you've lived up to that bipartisan 
support.
    As a commissioner, over 90 percent of the votes you 
participated in were either unanimous or voice votes. As a 
district court judge, you wrote nearly 600 opinions, applying 
the law and precedent to the facts fairly and impartially 
without regard to your personal views.
    I will note that if you are confirmed, you will join 
Justice Sotomayor as the only other Justice on the Bench with 
experience as a trial court judge. As a circuit court judge, 
you have written decisions joined by judges appointed by 
Presidents of both parties. And let's not forget you have 9 
years of judicial experience, more than 4 other Justices 
currently on the Court prior to their confirmations. Not that 
we're counting.
    Judge Jackson--and I expect this to come through loud and 
clear during these hearings--you have the experience and record 
of a jurist who is dedicated to the fair application of the 
law, committed to consensus, and determined to make sure that 
the Court and the Constitution work for the people of today.
    And one last point, Judge, your confirmation hearing comes 
at a moment in our history when the people of this country are 
once again seeing--this time in Ukraine--that democracy can 
never be taken for granted. Eternal vigilance, it's been said, 
is the price of liberty.
    Last week, I was at the Ukrainian-Polish border with 
refugees streaming through checkpoints, leaving everything they 
had behind, with only a suitcase and a backpack walking into 
the loving arms of their neighbors in Poland, a country with a 
long, hard history of having been invaded by Nazis and Russians 
and Prussians and Hapsburgs.
    As our Ambassador there told me, at this moment in history, 
the people of Poland are achieving the dreams that their 
grandparents could never realize. They are saying to their 
Ukrainian neighbors, we value freedom and respect your 
democracy. We value you so much that we will take you into our 
homes and into our hearts. We will open our doors and not shut 
you out.
    And this horrendous war against evil--and the courageous of 
the Ukrainian people--is happening at the very same time our 
country is opening our minds after being separated through a 2-
year pandemic from our neighbors not only around the world, but 
in our own country, in our own towns. This moment bestows upon 
us a new opportunity to see one another again and to be part of 
our own democracy, to respect each other's rights and views, to 
see that we are not a nation of 300-plus million silos. 
Instead, we are a nation that must re-embrace the simple 
principle that unites us as Americans, and that is that our 
country is so much bigger in what unites us than what divides 
us.
    That's the pivotal moment we are in. That's your moment. 
It's a time for us to consider what the courts mean to our 
democracy, to recall how the Framers envisioned the Court to 
work as a ballast in our system of government and to rededicate 
ourselves to the sacred protection of our rights and the 
upholding of our Constitution.
    So as we move forward with these hearings, let us be 
grounded in the central role of the Court and the Constitution 
in our democracy, of what it means to our system of government 
that we can never take for granted, and how we must always be 
vigilant that it is serving the people.
    Judge Jackson, I'm confident you will come to the Bench as 
a Justice with a bedrock appreciation of what the Constitution 
and the law means to America, with the real world perspective 
we need. Thank you for your willingness to serve at this 
important time.
    Chair Durbin. Thanks, Senator Klobuchar.
    Senator Cruz of Texas.

              OPENING STATEMENT OF HON. TED CRUZ,
             A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Cruz. Thank you, Mr. Chairman.
    Judge Jackson, congratulations on your nomination.
    Eleven thousand one hundred and seven men and women have 
served as Members of the House of Representatives. One thousand 
nine hundred and ninety-four men and women have served as 
Members of the United States Senate. Only 115 men and women 
have served as Supreme Court Justices.
    The position to which you have been nominated is 
extraordinarily important, and that is why the Senate is given 
the responsibility for advice and consent under the 
Constitution because the job matters immensely. Supreme Court 
confirmations were not always controversial. In fact, Bushrod 
Washington, when nominated to the Supreme Court in 1798, was 
confirmed the very next day.
    So what changed? Well, what changed is starting in the 
1960s and the 1970s, the Supreme Court's role in our society 
changed dramatically. The Supreme Court became a policymaking 
body rather than a merely judicial body.
    Just a moment ago, my colleague Senator Klobuchar said we 
should consider the Supreme Court's place in our democracy. 
Well, starting in the 1960s and 1970s, the Supreme Court 
decided its place in our democracy, at least to many Justices, 
was to set aside the democratic decisions of the people and 
instead to mandate the policy outcomes they themselves 
supported.
    Our Democratic colleagues want the Supreme Court to be 
anti-democratic. Our Democratic colleagues get frustrated with 
the democratic process. When they can't pass gun control laws 
because the American people don't support them, they want 
unelected judges to mandate those same laws instead.
    Law after law after law that they can't get through the 
democratic process, the Democrats have decided it's much 
simpler to convince five lawyers in black robes than to try to 
convince 330 million Americans. That is why Supreme Court 
confirmation hearings have become so contentious is because the 
Supreme Court has arrogated to itself a responsibility the 
Constitution doesn't give it, which is to make contested policy 
decisions and take them away from the American people.
    Now what should this hearing be, and what should it not be? 
Well, you've heard a number of Members on the Republican side 
of the aisle quite clear on what it should not be. This will 
not be a political circus. This will not be the kind of 
character smear that, sadly, our Democratic colleagues have 
gotten very good at.
    And it's important to note, you know, a couple of years 
ago, I was doing my weekly podcast, and I was on with a noted 
liberal intellectual who made a comment something to the effect 
of, well, both sides do this. Both sides smear Supreme Court 
Justices. And I was forced to laugh out loud and say, look, I 
understand that's a pretty good talking point. It just happens 
not to be true.
    It is only one side of the aisle, the Democratic aisle that 
went so into the gutter with Judge Robert Bork that they 
invented a new verb, ``to bork'' someone.
    It is only one side of the aisle that with Justice Clarence 
Thomas was so reprehensible that as the President who nominated 
him, President George Herbert Walker Bush, wrote at the time, 
``What's happening to Clarence Thomas is just plain horrible. 
All the groups that tried to beat him up on abortion or 
affirmative action have now come out of the woodwork. They are 
trying to destroy a decent man. This is an ugly process, and 
one can see clearly why so many good people elect to stay out 
of public life.''
    As Justice Thomas observed in that hearing, what happened 
there was, to use his words, ``a high-tech lynching.'' And I 
would note the Chairman who presided over that disgrace was Joe 
Biden.
    And then most of the Members of this Committee remember the 
confirmation hearing of Brett Kavanaugh, one of the lowest 
moments in the history of this Committee. Where Democrats on 
this Committee sat on allegations, didn't refer them to the 
FBI, didn't ask for investigations, hid them and then leaked 
them against the wishes of the complainant.
    And we began a circus that featured Spartacus moments, 
featured such nuts as Michael Avenatti, whom CNN breathlessly 
for some months described as ``a possible Democratic 
Presidential candidate.'' That's before, presumably, he became 
a felon in recent months.
    Judge Jackson, I can assure you that 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? ''
    But that's not to say this hearing should be non-
substantive and non-vigorous. In this hearing, this Committee 
has a responsibility to focus on issues, to focus on your 
record, to focus on substance, to do our very best to ascertain 
what kind of Justice you would be.
    And a couple of straw men, it is no longer the case that 
Supreme Court confirmation hearings are merely about 
qualifications. There are some who say, well, if the Justice is 
qualified, the Senate should confirm. There was a time that was 
the case. Our Democratic colleagues have abandoned that 
standard long ago.
    Our Democratic colleagues, then-Senator Joe Biden was 
perfectly happy to vote against John Roberts, someone who was 
unquestionably qualified for the Court. He was perfectly happy 
to vote against Sam Alito, someone who was unquestionably 
qualified for the Court. And indeed, every Member of our 
Democratic colleagues who was here at the time participated in 
the first-ever filibuster of a Supreme Court Justice on 
partisan lines with Justice Neil Gorsuch. They did so for 
someone unquestionably qualified, but they had a political 
agenda, and so every one of them happily filibustered Justice 
Gorsuch.
    Likewise, it's not about race. We will see Democrats and 
the media suggest that any Senator that is skeptical of your 
nomination, that questions you vigorously, or that dares to 
vote against you must somehow harbor racial animus. If that 
were the standard, I would note we are sitting on a Committee 
where multiple Members of this Committee, the senior Democrats 
in the Committee, happily filibustered Judge Janice Rodgers 
Brown, a very qualified African-American woman nominated to the 
D.C. Circuit, and they did so precisely because they wanted to 
prevent Judge Brown from becoming Justice Brown, the first 
African-American woman. Joe Biden was among the Democrats 
filibustering the first African-American woman nominated to 
D.C. Circuit.
    The senior Democrats on this Committee also filibustered 
Miguel Estrada. As the staff for Senator Ted Kennedy said in 
writing at the time, the Democrats filibustered Miguel Estrada, 
quote, ``because he is Hispanic.'' They were explicitly racial. 
If you dare, if you are Hispanic or African American and you 
dare depart from their political orthodoxy, they will crush 
you. They will attack you. They will slander you. They will 
filibuster you. So this is not about race.
    It is, however, about issues and substance. And I've got to 
say I agree with Chairman Durbin. Chairman Durbin quoted Paul 
Simon, and he said history will judge, quote, ``Did she 
restrict freedom, or did she expand it? '' I agree with that.
    The reason the American people care about the Supreme Court 
is it is integral to protecting or taking away our 
constitutional rights. When it comes to free speech, this 
Committee should inquire: Will you protect the rights of 
Americans to speak, to say unpopular ideas, to say ideas that 
the Government doesn't want you to say that you, nonetheless, 
have a right to say? Will you protect freedom or restrict it?
    When it comes to religious liberty, will a Justice vote to 
protect your right to live according to your faith and 
according to your conscience, or will a Justice vote to crush 
religious liberty and strip those rights away?
    The Second Amendment. Will a Justice vote to defend your 
Second Amendment rights to keep and bear arms, to defend your 
family, to defend your children, or will a Justice roll over to 
the Democrats that want to disarm citizens?
    The right to life. Will a Justice protect the rights of the 
people, the rights of State legislatures to enact laws 
protecting innocent life, protecting unborn life, stopping 
abominations like partial-birth abortion, or will a Justice 
view her job as a super-legislator, striking down all such 
rights?
    School choice. Will a Justice protect the rights of kids to 
get a quality education, or will a Justice legislate from the 
Bench and shut down school choice programs across this country?
    And crime. We are seeing murder rates, carjacking rates, 
crime rates skyrocketing across the country in significant part 
because political Soros-backed district attorneys, because of 
Democratic efforts to abolish the police. And part of the 
Democratic effort to abolish the police is nominating Justices 
that consistently side with violent criminals, release violent 
criminals, refuse to enforce the law, and that results in 
jeopardizing innocent citizens.
    So all of those questions are fair game. Will you follow 
the law? What does your record indicate? Will you protect the 
rights of every American citizen, regardless of race, 
regardless of party, regardless of views? That's what the focus 
of this hearing should be.
    Chair Durbin. Thanks, Senator.
    Senator Coons from Delaware.

        OPENING STATEMENT OF HON. CHRISTOPHER A. COONS,
           A U.S. SENATOR FROM THE STATE OF DELAWARE

    Senator Coons. Thank you, Chairman Durbin, Ranking Member 
Grassley.
    Judge Jackson, congratulations on your nomination. It is a 
joy and a blessing to welcome you and your family and your 
supporters here this morning.
    As both Senators Klobuchar and Cruz have laid out in great 
and forceful detail, the decisions of the United States Supreme 
Court have daily impact, regular bearing on the lived 
experience of Americans, and that is in part why hearings for 
this important role are so contentious. I have been looking 
forward to this day since President Biden announced your 
nomination in February. And over the next several days, Members 
of this Committee will have the privilege of helping introduce 
you to the American people so that they can gain the sense of 
confidence that I have in your values, your skills, your 
competence, and the necessity of confirming you to the Supreme 
Court.
    We'll be inviting you to speak directly to the American 
public and share the lived experiences, the strong 
qualifications, the judicial temperament, and the strength of 
character that made you not only an historic nominee to the 
Supreme Court, but an outstanding one as well.
    I want to acknowledge up front that President Biden 
selected you to fill the seat on the Court being vacated by 
Justice Breyer, a Justice whom I admire and in the work he's 
done as a jurist over decades has shown us a model of a Supreme 
Court Justice. In his 42 years on the Federal bench, 30 years 
on the Supreme Court, he's lived up to the highest ideals of 
American jurisprudence.
    He has served with wisdom, with fairness, and respect for 
the Constitution, the laws of our Nation, and its people. He 
has a keen legal mind and a love of the law that are obvious to 
anyone who's heard him ask questions or read his decisions and 
certainly to someone who clerked for him on the Supreme Court 
and who has had the benefit of his mentorship over many, many 
years.
    You've had broad experience in your stellar legal career 
that will make you a unique contributor to the Supreme Court. 
You've worked as a lawyer or as a judge in just about every 
level of our legal system, engaging in just about every area of 
Federal law. Your experiences as a private practice attorney 
with large law firms, as a Federal public defender, as vice 
chair of the U.S. Sentencing Commission, and your near decade 
of service as a Federal judge have given you insights into the 
ways that our Constitution, our statutes, our sentencing 
guidelines, and judicial decisions all come together to 
directly impact individuals, families, and our communities.
    You're able to perceive the full sweep of our law without 
losing sight of the human beings, the individuals and families 
impacted by it, caught up in it, and it is critically 
important, in my view, that we have Justices on the Supreme 
Court with this practical and proximate view.
    You began your legal career with the invaluable experience 
of clerking for judges at the Federal District Court, at the 
Circuit Court, and for Justice Breyer on the Supreme Court, 
judges appointed by Presidents of both parties. You developed 
your career as a legal advocate in private practice and in the 
Federal Public Defenders Service.
    As part of this work, you took on complex cases involving 
challenging and unsettled areas of the law. You worked pro bono 
on behalf of clients without regard to their political views or 
the political consequences of those cases, and you helped 
ensure bedrock constitutional guarantees in our legal system 
held strong even in times of great stress and crisis. The work 
you did in these roles distinguished you as a talented 
appellate litigator with a formidable legal mind.
    You helped to craft policy as counsel to the U.S. 
Sentencing Commission, the independent agency within the 
judicial branch that establishes sentencing guidelines followed 
by all Federal judges. And then years later, you served again 
on the Commission as its vice chair. While on the U.S. 
Sentencing Commission, you partnered with colleagues whose 
perspectives on the law span the ideological spectrum, and 
together, you enacted meaningful reforms designed to reduce 
unjust disparities and increase fairness in sentencing.
    In the days ahead, I expect to discuss your Sentencing 
Commission experience with you in some detail. Nearly all the 
decisions you were part of while serving on the Commission were 
unanimous, and they grew out of a careful consideration of 
highly complex numerous factors that involved commissioners 
working hard to achieve common ground. In at least one notable 
instance, you ended up joining two conservative commissioners 
to oppose an amendment because you thought the law required a 
different result, and you followed the law.
    Something that often gets lost in our debates and 
discussions about the Supreme Court is that many, in some terms 
a majority of Supreme Court decisions are unanimous or decided 
by very broad majorities. These decisions are every bit as 
critical to the rule of law and the functioning and legitimacy 
of the Court as the handful that are very contentious and 
widely discussed publicly.
    Your service on the Sentencing Commission and your time on 
the Circuit Court have prepared you to be a positive force for 
consensus among the Justices in this challenging chapter in 
American history.
    I also think we will have some extended discussions this 
week about your record of service on the Federal bench. You 
were confirmed to the Federal District Court for the District 
of Columbia in 2013 and have written more than 500 published 
opinions. You were confirmed to the D.C. Circuit Court of 
Appeals last year. And in your near decade as a judge, you've 
authored opinions in cases spanning a myriad of complicated 
issues from administrative law to civil rights, from criminal, 
environmental matters, labor and employment law, national 
security and sovereign immunity, immigration law, and many 
more.
    Your rich, complex, and deep decisional record gives us the 
best possible evidence of what kind of Justice you will be. And 
I've concluded you are judicious and impartial, great qualities 
for a Justice.
    In every case, you methodically consider the parties' 
arguments, the relevant facts, and the law--including, of 
course, the foundation of the Constitution--the text of 
applicable statutes, and the precedents that apply. And 
ultimately, from what I've seen, you've come to a decision 
based on that methodology, not on any particular policy 
preferences or activism.
    This Committee has also received a striking outpouring of 
support for your nomination from a very broad range of sources. 
I'm certain we'll be hearing about some of the more 
enthusiastic statements in detail over the coming days, but in 
several of the letters I've had a chance to review personally, 
I've been struck. These were letters from lawyers that held 
appointed positions in Republican administrations, letters from 
prominent law enforcement organizations, Federal judges 
appointed by Republican Presidents. They praise your 
qualifications, your character, your experience, and your 
commitment to even-handed and impartial judging and the rule of 
law.
    This is the fourth Supreme Court nomination process in 
which I'm participating as a Senator, and I know our role in 
confirming a Justice to the highest court is among the most 
solemn obligations we have as Senators. As we begin this week's 
hearings, I remain hopeful that we can come together as a 
Committee and engage in respectful, good faith, bipartisan 
consideration of your nomination.
    I look forward to your testimony this week. I'm excited so 
many of my colleagues have had a chance to get to know you a 
bit, to meet with you, to talk with you one on one and get a 
sense of your character, your experiences, and your background, 
and then we'll have the opportunity to question you to bring 
that out in more detail.
    I have every expectation that at the end of this week's 
hearings, it will be clear to all that you are impeccably 
qualified in the law. And I think will be plain to any American 
watching you have a demonstrated record of excellence as a 
jurist, you will decide cases as a Justice on the basis of the 
facts and the law, and that you will be faithful to the 
Constitution.
    It's also my hope folks will get a chance to meet the 
family that shaped you. It was delightful to have a few moments 
to get to talk with your parents and your brother before we 
began today and to reflect on how having parents, graduates of 
HBCUs, public school teachers who then went on to great careers 
of accomplishment.
    Johnny Brown, Esq., and Dr. Ellery Brown set a great 
standard. But frankly, to me, one of the most memorable 
sentences before this was in talking to your brother, Ketajh, 
who said, ``Oh, I'm not surprised to be here at all. This was 
the sort of thing for which my sister was destined from the 
very start.''
    Destined perhaps, but today you are beginning a process of 
walking through this door because of courage, humility, 
determination, and a commitment to excellence. Just as another 
person in American history, Ruby Bridges, walked through a 
critical door in our history with her chin held high, her back 
held straight, and a fierce determination to make a difference, 
so you, too, today begin the process of walking through this 
next open door with the sort of sparkling wit, brilliant mind, 
and commitment to excellence that will make its mark in 
American history.
    I look forward to your opening and to this week. Thank you, 
Your Honor.
    Chair Durbin. Thank you, Senator Coons.
    Senator Sasse of Nebraska.

              OPENING STATEMENT OF HON. BEN SASSE,
           A U.S. SENATOR FROM THE STATE OF NEBRASKA

    Senator Sasse. Thank you, Chairman.
    And Chris is tough to follow. That was a good flourish at 
the end.
    Judge, congratulations on your nomination. Thanks for 
spending time in my office with me.
    Congratulations to your daughters and your family more 
broadly. This is a big day for lots of folks in your family.
    Today, the Senate takes up our constitutional duty to 
advise the President on his nominee to the Supreme Court. The 
Senate's Advice and Consent Clause and our role is especially 
important these days when we all, Republicans and Democrats, 
agree that the nine Justices of the Court exercise a lot of 
power over policy decisions. Surely much, much more power than 
our Constitution's Framers ever anticipated.
    So let's talk about how we got into this mess. We're here 
in part because of decades and decades of recklessness by all 
three branches. Not just one, but by all three. Congress, the 
Article I branch, fails to carry out our tasks responsibly and 
regularly. Rather than make tough policy choices, we pass 
incredibly vague laws and then just push the details on down 
Pennsylvania Avenue to unelected bureaucrats in the Article II 
branch.
    Then the head of the executive branch, meanwhile, whichever 
party he or she comes from, grabs more and more power with 
their pens and their phones. And finally, the Supreme Court at 
the top of Article III, tends to overstep the bounds that the 
Constitution sets on judicial power. The Court has ignored 
restrictions on its authority, inserting itself into policy 
debates that are supposed to be entrusted exclusively to the 
two political branches.
    And what do we mean by that? What do we mean when we say 
Articles I and II are political? It means that the people are 
in power over Articles I and II, but not, in the long term, 
over Article III. The men and women in Article I and Article II 
are supposed to be answering directly to the American people, 
and importantly, the American are going to hire us or get to 
fire us every 2, 4, or 6 years.
    But rather than honor the roles given to each branch, 
activist judges usurp the powers given to Articles I and II, 
which Articles I and II were complicit in this overreach. Many 
years of corroding our constitutional order have contributed to 
the polarization and the viciousness that are poisoning our 
politics more broadly. We all know that our civic health and 
our civic life is not healthy. And as was mentioned at the 
beginning of the hearing, it's at least good that this one got 
kicked off without a bunch of yokels having to be arrested and 
carried from the room.
    When Chairman Grassley tried to speak a couple years ago at 
one of these, it took like an hour to get started. That kind of 
nonsense, the theatrics that happen at these hearings are 
because of a broader problem.
    As textualists and originalists have sought to return the 
Court to its historic role, the Supreme Court nomination 
process has been increasingly punctuated with not just those 
theatrics, but also with lots of personal attacks. That's not 
what this process is supposed to be. This is process is 
supposed to be a careful, thorough investigation of a nominee's 
record to help the Senate make an informed decision on a 
nominee's fitness for a lifetime appointment.
    That's why these hearings are supposed to be different, not 
just people act like jackwagons, but because the people before 
us nominated by the President are potentially going to serve 
for a lifetime. That office, as Supreme Court Justice, is 
incredibly important, and it's also carefully circumscribed 
precisely because it's a lifetime responsibility.
    But we know that it's been a long time since this process 
has worked like that. Instead, this is often a staging ground 
for nasty, evidence-free personal attacks.
    We started down this road of character assassination in the 
1980s with Judge Bork's hearings, and Senators have been 
engaged in disgusting theatrics ever since. The most recent 
Supreme Court nominee was subjected to repeated accusations 
that were nothing more than unfiltered religious bigotry 
against her. The nominee before her was accused of serial rape, 
aided by Members of this Committee.
    If this process were conducted in good faith, Miguel 
Estrada and Janice Rogers Brown might well be on the Supreme 
Court today. But their opponents lied and bullied rather than 
accepted principled minority judges.
    We've gotten so used to this kind of bullying that 2 years 
ago, the current Senate Majority Leader stood on the steps of 
the United States Capitol and screamed threats against two 
sitting Justices of the Supreme Court that they would ``reap 
the whirlwind'' if they ruled in a way that didn't align with 
Chuck Schumer's political preferences.
    That's weird. We should all be able to pause and say that's 
weird. That kind of behavior shouldn't happen.
    This process is broken, but it's a product of a broader 
brokenness in the erosion of our constitutional structure. A 
lot of people are willing to take a sledgehammer to the 
structure if it offers them a quick political win, and it's no 
coincidence that as more of us embrace an ``end justifies the 
means'' philosophy of our jobs, which are supposed to be jobs 
of public trust, our politics becomes uglier, more brutal, and 
more pathological.
    Well, we have an opportunity today to do something 
different, and we can demonstrate that the Congress can carry 
out its constitutional duty responsibly without a lot of that 
past ugliness. Judge Jackson has served for the last 9 months 
on the prestigious U.S. Circuit Court of Appeals for the D.C. 
Circuit, and before that, you spent 8 years on the D.C. 
District Court. She has a long record of public service and a 
long roster of colleagues and friends who will testify to her 
professionalism.
    The President believes that she should have a lifetime seat 
on the Supreme Court, and it's the job of this body to evaluate 
that recommendation on its merits. So what should we be looking 
for? We should start with judicial philosophy.
    The Senate should have a good sense of the principles that 
will guide a nominee's decisionmaking on the Bench. A robust 
and thorough judicial philosophy can help us understand how, 
when faced with difficult or unprecedented decisions, as the 
Court occasionally is--and I would just like to compliment 
Senator Coons a minute ago mentioning that a huge, huge share 
of decisions that come out of the Supreme Court are actually 9-
0. They just tend to not be the ones that make the headlines, 
but they're incredibly important, and the public trust that we 
need to restore in all three branches of Government would be 
well served by us paying more attention to some of those 9-0 
decisions.
    But the ones that tend to be most contentious and the ones 
that tend to generate the most headlines are the occasions 
where judges have to figure out what they do in areas which are 
gray and ambiguous, where the law might not be clear. And so 
it's incredibly important for a judge to tell us how she or he 
works out those principles in times that are new and confusing. 
This will make their rulings more durable and sound, and it 
will help rebuild public trust in the Court and in the 
Government more generally.
    Unfortunately, too many of the Court's decisions do not 
rest on solid constitutional foundations and reliable legal 
reasoning. Justices have too often written decisions to claim 
partisan policy victories and then retrofit bad legal reasoning 
or political decisionmaking to justify that ruling. Some of the 
most divisive cases in the Court's recent history fit that 
bill.
    It's for that reason that while we should all respect the 
Ginsburg rule, the idea that judges sitting before this panel 
should not weigh in on hypothetical cases that are likely to 
come before the Court, nominees do, nonetheless, have a duty to 
be very clear about their judicial philosophy, their legal 
views, and their interpretive principles. The American people 
should not be asked to consent to any nominee who operates on 
principles that are obscure, confused, or concealed.
    That means that each of us has a job to do in these 
hearings. It is our job on the Senate Judiciary Committee to 
ask questions that help give the American people a clear view 
of the nominee. It's Judge Jackson's job to make her philosophy 
clear and well understood.
    And at the end of a constructive hearing, a nominee will 
have given us a good sense of how she thinks about the 
constitutional structure, what it does and doesn't do, and the 
key pillars that support it. Most fundamentally, the separation 
of powers and our carefully calibrated system of checks and 
balances.
    Throughout this process, we should all remember that a 
Supreme Court Justice is not a lawmaker by another name. A 
Supreme Court Justice performs a crucial, but limited function 
in our political system, namely, to interpret and fairly apply 
the text of the law as written and as understood at the time it 
was adopted.
    A forthcoming nominee will make clear a commitment to 
uphold that purpose, which is the Court's true purpose, not the 
purpose concocted for it by decades of political use, abuse, 
and overreach. A good nominee will show a commitment to the 
strict protection of enumerated rights, not the fabrication of 
unenumerated rights through contorted readings.
    An excellent nominee will offer a robust judicial 
philosophy that makes sound decisions more likely and more 
trusted by the public.
    Chairman, I look forward to hearing from Judge Jackson this 
coming week.
    Chair Durbin. Thanks, Senator Sasse.
    Senator Blumenthal of Connecticut.

         OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
          A U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Senator Blumenthal. Thanks, Mr. Chairman.
    Good afternoon, Judge. Thank you for being here, thank you 
to your family, and thank you to President Biden for his vision 
and wisdom and courage in nominating you.
    First, on a personal note, for all of your extraordinary 
accomplishments and your immense distinction you have shown two 
qualities that are rare among powerful, accomplished people--
kindness and humor--and you're, obviously, a good listener 
because you're doing a lot of listening here today.
    As you've seen, we're likely to hear more than a few straw 
men today, worn talking points, imagined grievances. But this 
hearing, really, should be about you, not about us.
    Historic is a word often overused in this place where a lot 
of history is made but today seems, truly, to merit it. 
Certainly, it is an inflection point--an inflection pinnacle--
for our Nation.
    The appointment of a Black woman to the United States 
Supreme Court, let's be very blunt, should have happened years 
ago. This day is a giant leap into the present for our country 
and for the Court.
    The appointment of a Black woman to the Court means that 
your service will make the Court look more like America. 
Hopefully, too, it will make the Court think more like America.
    We will never know in detail all of the challenges and 
obstacles that you've overcome to be here today. But we know 
for sure that you will bring an important perspective, in fact, 
a unique perspective, to a court that deeply needs it.
    Representation matters with the legitimacy and credibility 
of our judicial system. Judges are the face and voice of 
justice. People walking into your courtroom or any other in 
this country look to the human being, not just to the robe.
    Too often, our courts are isolated, seemingly sterile 
marble halls, lacking emotional intelligence or a sensitivity 
to the impact they have on people, a fact that you clearly and 
dramatically understand.
    What really knocked me over in our meeting was the fact 
that you discussed your job as a judge in terms of the people 
who are affected by your ruling, the people whose lives are 
touched by the justice system, whether as victims, as criminal 
defendants, or as people dealing with a personal or 
professional conflict.
    You will be the first public defender on the Court. You 
understand our justice system uniquely through the eyes of 
people who couldn't afford a lawyer--they couldn't afford their 
own lawyer--and you advocated for them.
    You will also bring to the Court extraordinary intellect 
and character as well as diverse personal and, indeed, 
professional experience. Your presence will ensure the Court 
more fully and deeply understands the lives and experiences of 
everyday Americans.
    You grew up as the daughter of two public servants, public 
school teachers and administrators. You're the niece of uncles 
who have impressive law enforcement careers, including one as 
Miami's chief of police, and you also have family members who 
have struggled, as do every American, and you've advocated for 
defendants standing accused of serious crimes as well as 
sentencing defendants who have been convicted of such crimes.
    You are an immensely devoted parent who has achieved eye-
popping professional distinction. You've had a long career 
already as a distinguished jurist. In fact, you would bring 
more experience as a trial judge than any current Justice on 
the Supreme Court.
    Now, I'd like to address directly the importance of your 
work as a public defender. I was a prosecutor and in law 
enforcement for a while, 4 years as U.S. Attorney and 20 years 
as Connecticut's Attorney General, and as a prosecutor I know 
the system works best when there are good lawyers on both 
sides. My worst nightmare as a prosecutor was a defendant 
representing himself.
    My second worst nightmare was an incompetent counsel 
representing a defendant because I know effective 
representation on the other side means more likely an error-
free trial.
    I'd also like to address an issue that's been raised, first 
by Senator Durbin and then by Senator Graham. I'm likely to be 
followed by one or more colleagues who have raised allegations 
about your record that are simply unfounded in fact and, 
indeed, irresponsible. They're unproven and unprovable. 
They're, simply, false.
    One of the first lessons that you learn as a prosecutor is 
never to promise a jury evidence that you don't have. There is 
simply no evidence to support these unfounded attacks.
    In fact, a commentary in the National Review cited by 
Senator Durbin said about those allegations they are meritless 
to the point of demagoguery.
    Importantly, your record as a jurist also reveals 
impartiality. You're a proven unifier and a consensus builder, 
someone who can build bridges among colleagues, even 
adversaries.
    Not surprisingly, you've been confirmed on a bipartisan 
basis three times by the Senate. You've received glowing 
endorsements from former judges who are stalwarts of the 
conservative movement.
    The Court needs a bridge builder now more than ever. It has 
become more polarized, more politicized, more divided than at 
any point in our history and it faces a crisis of legitimacy as 
a result.
    Dark money special interest groups have sought to radically 
reshape the Court. Their recent selection of Justices was, to a 
remarkable degree, outsourced to ideological groups with the 
express aim of remaking the Court in the image of the far-right 
conservative movement.
    This Court has signaled that it will continue to overthrow 
well-established precedents after disingenuously promising us, 
Members of this Committee, that it would respect those 
precedents and, instead, it threatens to adopt preferred policy 
views.
    I revere the United States Supreme Court. I clerked for a 
Justice myself, Harry Blackmun. I've argued four times before 
the Court.
    I'm deeply concerned that this court is careening toward a 
precipice that will gravely threaten its role in our history, 
that it is out of step with America and that it is losing the 
trust and respect of the American people that are essential to 
its authority.
    Trust in the United States Supreme Court is at a new low. 
The Supreme Court has no armies, no police force, to enforce 
its decisions.
    Its authority depends on its credibility and the respect 
and trust of the American people. My hope is that you will help 
to restore that trust, that you will reinspire the confidence 
of the American people in the Court.
    I traveled, as did my colleague, Senator Klobuchar, to 
Poland just a week ago and I saw people fleeing bombs and 
destruction, people--mostly women and children--who wanted 
nothing more than the kinds of freedom that we have in this 
country.
    We have an obligation to preserve them and my hope is that 
your nomination will help us do so.
    Thank you. I look forward to your testimony.
    Chair Durbin. Thank you, Senator Blumenthal.
    Senator Grassley just asked me what the plan is. The plan 
is to recognize two more Senators and then take a 30-minute 
break for lunch. Is that okay, Judge?
    All right. We have Senator Hawley of Missouri.

             OPENING STATEMENT OF HON. JOSH HAWLEY,
           A U.S. SENATOR FROM THE STATE OF MISSOURI

    Senator Hawley. Thank you very much, Mr. Chairman.
    Judge, congratulations on your nomination. It's nice to see 
you again. Congratulations to all of your family. I know that 
this is a big moment for you and for them, and rightly so. I 
enjoyed our meeting a couple of weeks ago.
    You know, as I've said to folks who've asked about it, one 
of the things I particularly appreciated about our meeting, 
besides how much time you gave me, was how candid and 
forthcoming you were, which I really respected, and I look 
forward to a candid conversation again in the days that come. 
And, by the way, I'm admiring how you're sitting so stoically 
through all of this Senator talk. But I'm looking forward to 
visiting with you again.
    You did me the honor when we sat down of being very candid 
and I hope I was candid with you. I've been candid since. I 
want to be candid with you today so you know exactly what it is 
I want to talk about and so you know exactly where my head is 
at.
    So let me say a few things that I'm concerned about, 
aspects of your record that trouble me. This will come as no 
surprise. I've said it in public already. But I want to be, 
again, very candid in the interest of an open and honest 
discussion and specific.
    So here are, I hope, in the next couple of days some of the 
cases from your time on the court--the district court, the 
Federal district court--that I hope that we can talk about. Let 
me just run through a few of them so you know exactly which 
ones I mean.
    United States v. Hawkins. This was a child pornography case 
where the defendant distributed multiple images of child porn, 
possessed dozens more, including videos.
    The Federal sentencing guidelines recommended a sentence of 
97 to 121 months in prison. Prosecutors recommended 24 months 
in prison. Judge Jackson gave the defendant 3 months in prison.
    United States v. Chazin. That case the defendant possessed 
48 files of child pornography. The Federal guidelines 
recommended 78 to 97 months in prison. The prosecutor 
recommended the same. Judge Jackson sentenced him to 28 months.
    United States v. Cooper. There, the defendant possessed 
dozens of images of child pornography and distributed--I should 
say, distributed dozens of images of child pornography, 
possessed over 600.
    The Federal guidelines recommended 151 to 188 months in 
prison. That's a long time. The prosecutor recommended 72 
months. Judge Jackson gave the defendant 60 months, which was 
the lowest sentence permitted by the law.
    United States v. Downs. That's a case where the defendant 
distributed 33 graphic images and videos of child sexual 
assault to an anonymous messaging app, unfortunately, a 
practice that's becoming more common.
    The Federal guidelines recommended 70 to 87 months in 
prison. The prosecutor recommended 70 months in prison. Judge 
Jackson sentenced him to only 60 months. Again, that's the 
lowest level that was permitted by law in that case.
    United States v. Stewart. The defendant there distributed 
scores of images of children suffering sexual abuse. The 
guidelines recommended 97 to 121 months in prison. The 
prosecutor recommended 97 months in prison. Judge Jackson gave 
him 57 months.
    In United States v. Sears, the defendant distributed over 
100 videos of child pornography. The guidelines recommended 97 
to 121 months in prison. The prosecutor recommended 97 months 
in prison. Judge Jackson gave him 71 months.
    In United States v. Savage, the defendant was convicted of 
traveling across State lines to engage in sexual intercourse 
with a child and also possessed six separate thumb drives of 
child pornography.
    The guidelines recommended 46 to 57 months in prison. The 
prosecutor recommended 49 months in prison. Judge Jackson 
sentenced him to 37 months in prison.
    Now, those are seven cases that represent, as near as we 
can tell, all of Judge Jackson's cases dealing with child 
pornography from her time on the District Court in which she 
had some discretion to hand down a sentence. There are some 
other cases in which the law--she didn't have any discretion. 
The law bound the sentences she had to give.
    And what concerns me, and I've been very candid about this, 
is that in every case, in each of these seven, Judge Jackson 
handed down a lenient sentence that was below what the Federal 
guidelines recommended and below what the prosecutors 
requested. And so I think there's a lot to talk about there and 
I look forward to talking about it.
    Now, I will note that some have said that the Federal 
sentencing guidelines are too harsh on child sex crimes, 
especially child pornography. I've heard that argument a lot in 
recent days. The Chairman quoted someone earlier today who 
takes that point of view.
    I'll just be honest, I can't say that I agree with that. I 
mean, the amount of child pornography in circulation has 
absolutely exploded in recent years. Here's a New York Times 
report from 2019.
    I'm quoting now: ``Last year, tech companies reported over 
45 million online photos and videos of children being sexually 
abused, more than double what they found the previous year.''
    The report goes on to say this: ``Twenty years ago, these 
online images were a problem. Ten years ago they were an 
epidemic. Now the crisis is at a breaking point.''
    Unfortunately, it's even worse than that. Just last week, 
the National Center for Missing and Exploited Children reported 
finding 85 million files of child pornography in 2021 and, of 
course, this Committee has heard testimony from prosecutors and 
others who are grappling with the problem of how to get at this 
porn and those who distribute it, how to prosecute them and 
hold them accountable.
    Here's my point. I think it's difficult against this 
backdrop to argue that the sentencing guidelines are too harsh 
or outmoded, or that we should be somehow treating child porn 
offenders more leniently than the guidelines recommend.
    But I want to be clear about this, that those arguments 
that I've just been rehearsing, those who say that, those 
aren't--that's not what Judge Jackson has said. She hasn't had 
the chance yet to respond to this and she deserves that chance.
    So others have made these arguments. I don't agree with 
them. But I think it's important we hear from Judge Jackson and 
we'll have the chance to in coming days. And I think, again, 
the candor that Judge Jackson has shown previously I look 
forward to and she deserves the ability to speak for herself on 
this issue.
    So I will just say in closing, Mr. Chairman, some have 
asked why did I raise these questions ahead of the hearing; why 
not wait until the hearing and spring them on Judge Jackson, as 
it were.
    And my answer to that is very simple. I'm not interested in 
trapping Judge Jackson. I'm not interested in trying to play 
gotcha. I'm interested in her answers, because I found in our 
time together that she was enormously thoughtful, enormously 
accomplished, and, I suspect, has a coherent view and 
explanation and a set of thinking--way of thinking about this 
that I look forward to hearing and I think she deserves the 
chance to talk about it and I think the American people deserve 
the chance to hear her answers.
    So there are my concerns, Judge. They're the cases I--I 
imagine there will be others that we can talk about on other 
subjects but I'd like to talk about those so you know exactly 
where I'm coming from.
    Thanks again for giving me the time a few weeks ago. 
Congratulations again. I look forward to finally hearing from 
you tomorrow.
    Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Hawley.
    Certainly, the Judge deserves to be heard on that type of a 
charge.
    Senator Hirono.

           OPENING STATEMENT OF HON. MAZIE K. HIRONO,
            A U.S. SENATOR FROM THE STATE OF HAWAII

    Senator Hirono. Thank you, Mr. Chairman.
    Judge Jackson, aloha to you and your family and all of your 
friends. I also note that there are Members of the U.S. House 
here to support you as well as members of the public. So aloha 
to all of you.
    Congratulations, Judge Jackson, on all that you have 
accomplished throughout your life and career. I realize that a 
lot of your background and experiences have already been cited. 
But there are things that are worth repeating so I'm going to 
repeat some of them.
    You were the national champion in speech and debate as a 
high schooler. You have undergraduate and law degrees from 
Harvard, each with honors; three clerkships in Federal court, 
including one at the Supreme Court for Justice Breyer, whom you 
have been nominated to replace.
    You have an accomplished career as a lawyer at the trial 
and appellate levels both in private practice and as a public 
defender; two stints at the U.S. Sentencing Commission, 
including as vice chair; 9 years as a Federal judge, first, in 
the D.C. District Court and currently in the D.C. Circuit 
Court.
    And now you've been nominated to the United States Supreme 
Court. I have enjoyed reviewing your record and getting to know 
you over the past few weeks and now the American people will 
get to know you over the course of this week.
    Beyond your impressive credentials there are a few other 
things I want the American people to know. You were born in 
Washington, DC, to two public school teachers. You moved to 
Miami, Florida, at a young age so your dad could go to law 
school, and you were inspired to pursue a career in law by 
watching your dad study for his law classes at the kitchen 
table.
    You first considered attending Harvard--a thought that 
hadn't previously entered your mind--after attending a speech 
and debate competition on the Harvard campus during high 
school, and then you thought this is possible.
    You've been confirmed three times by the Senate, all on a 
bipartisan basis, first, to the Sentencing Commission, and 
later to be judge on the D.C. District Court and the D.C. 
Circuit Court.
    You're the second generation in your family to go to 
college and worked extremely hard to get to where you are 
today. You are a wife and mother of two children. Clearly, your 
life and your career have more than prepared you to serve on 
our Nation's highest court, which is why it is no surprise that 
there is broad consensus across the political spectrum that you 
are an eminently qualified and fair person to serve on the 
Supreme Court.
    As former Fourth Circuit Judge Michael Luttig, a George 
H.W. Bush appointee, said, you are, quote, ``as highly 
credentialed and experienced in the law as any nominee in 
history,'' end quote. In history. That's over 200 years.
    Twenty-three Attorneys General said, ``Judge Jackson is a 
highly qualified legal mind who has been at the forefront of 
the legal field for decades and will serve our Nation well as 
the first Black woman to serve on the U.S. Supreme Court.''
    A group of law enforcement officers from across the country 
said, quote, ``Judge Jackson brings a depth of character, 
public service, and judicial service that leads to but one 
conclusion. She is eminently qualified to serve on the Supreme 
Court of the United States,'' end quote.
    You are an accomplished jurist, having issued nearly 600 
opinions that demonstrate a clear, even-handed approach to the 
law. You have sided with workers, with employers, for and 
against the Government, for prosecutors and for criminal 
defendants.
    Former D.C. Circuit Judge Thomas Griffith, a George W. Bush 
appointee, summed it up best when he said you, Judge Jackson, 
quote, ``will adjudicate based on the facts and the law and not 
as a partisan,'' end quote.
    Having reviewed your record, I strongly agree with the 
statement. But you are not just extremely qualified to serve as 
a Supreme Court. Your nomination is, of course, an historic 
one.
    The Supreme Court has existed for over 233 years and over 
the 115 Justices in the history of the Supreme Court only five 
of them have been women, only two have been Black, and not a 
single one has been a Black woman.
    This is a court that has decided cases that have had 
sweeping effects on everyday life, as a number of my colleagues 
have pointed out, including decisions that have solidified 
rights for the LGBTQ+ community, decisions that have empowered 
women that have strengthened unions, and more.
    But this is also the same court that has throughout the 
course of history upheld slavery, Jim Crow laws, and the 
unlawful internment of Japanese Americans.
    For over 233 years, the individual making decisions that 
have altered the course of this country have almost exclusively 
been white men. It's pretty remarkable when you consider the 
power that this Court has and the historical lack of diversity 
of the people who exercise that power--the Justices.
    But instead of celebrating the long-overdue diversity Judge 
Jackson would bring to the Court, some of my Republican 
colleagues and public figures have attempted to undermine your 
qualifications through their pejorative use of the term 
affirmative action and they have implied you were solely 
nominated due to your race and not for other factors.
    Apparently, some have even claimed that you need to show 
your LSAT scores to determine whether you are a top legal mind. 
This is incredibly offensive and condescending.
    Let me be clear. Your nomination is about--not about 
filling a quota. It is about time. It's about time that we have 
a highly qualified, highly accomplished Black woman on the 
Supreme Court.
    It's about time our highest court better reflects the 
country it serves. It's about time that Black women and girls 
across the country can finally see themselves who look like 
them sitting on the highest court making decisions that will 
impact their lives, and they will know that it is possible for 
them to do the same.
    One cannot overstate the importance of representation. Your 
experiences and your background as a trial judge, public 
defender, a mother, a Black woman, and so much more provides 
you with a uniquely different perspective than any of the eight 
other Justices on the Court.
    Like your mentor, Justice Breyer, I know you will incur--
you will engage with the other Justices, both liberal and 
conservative. You are a consensus builder, to share their 
perspectives, challenge their views, and shape the Court's 
direction for the better.
    With the personal and professional diversity you bring, you 
will expand the experience and knowledge of the Supreme Court 
and the decisions the Court makes will be better as a result.
    Before I end, I also wanted to mention I was so glad to 
hear you reference Constance Baker Motley during your 
introductory press conference at the White House.
    Constance Baker Motley was an icon of the civil rights 
movement as a lawyer for the NAACP Legal Defense Fund. She 
helped craft the argument in Brown v. Board of Education that 
finally put an end to separate but equal.
    She was the first Black woman to argue before the Supreme 
Court, ultimately, arguing 10 cases before the Court and 
winning nine, including the case that allowed James Meredith to 
enroll at the University of Mississippi.
    She became the first Black woman appointed as a Federal 
judge, serving on the Southern District of New York for 20 
years, and in a world free from discrimination she may have 
been the first Black woman to sit on the Supreme Court some 50 
years ago.
    As you said at your press conference, you stand on Judge 
Motley's shoulders. I have no doubt there will be a generation 
of young girls who will stand on yours. I also have no doubt 
that you will respond forcefully to some of the allegations 
that have been lodged against you, Judge Jackson.
    I congratulate you and your family on this historic 
nomination. I look forward to hearing from you this week. 
Mahalo and aloha.
    Chair Durbin. Thank you, Senator Hirono.
    Now we're going to break and return at 2:05 when you will 
hear this and we're back in business.
    In the meantime, I thank my colleagues, and I particularly, 
thank the Judge for her patience.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. The Senate Judiciary Committee will resume, 
and next up is the Senator from Arkansas, Senator Cotton, for 
opening statement.

             OPENING STATEMENT OF HON. TOM COTTON,
           A U.S. SENATOR FROM THE STATE OF ARKANSAS

    Senator Cotton. I welcome Judge Jackson and her family, and 
I congratulate her on her nomination.
    This important occasion, the Biden administration is waging 
a war on the rule of law, the separation of powers, and the 
Constitution. The lawlessness of the administration highlights 
the importance of judges who faithfully apply the law. To 
understand the ongoing power grab, let's consider President 
Biden's failed nominee to lead the Department of Justice's ATF. 
The man he nominated can only be described as an anti-gun 
zealot. Thanks to the courage of some of my Democratic 
colleagues, that nominee was withdrawn. But it is disturbing 
that the President was ever willing to nominate someone who 
planned to shred the Second Amendment and ban virtually every 
modern hunting rifle in America.
    Just a few weeks ago, the Biden administration tried to 
twist the authority of the Occupational Safety and Health 
Administration, a relatively obscure agency designed to 
regulate things like ladder safety on construction sites, and 
use it as a weapon to force virtually every American to choose 
between getting vaccinated or losing their livelihood. 
Thankfully, the Supreme Court struck down that unlawful power 
grab.
    Or look at the southern border, where Joe Biden and his 
Secretary of Homeland Security steadfastly refuse to enforce 
our laws. As a result, 2 million illegal aliens streamed across 
our borders just last year.
    And less than 6 months ago, the Attorney General of the 
United States, himself a former judge, ordered that Federal 
prosecutors, the FBI, and even the National Security Division 
of the Department of Justice be mobilized against parents who 
dared question the entrenched teachers' unions for poisoning 
their children with racist vitriol, known as Critical Race 
Theory.
    As Justice Scalia was fond of saying, every banana republic 
has a bill of rights, but it is nothing more than a parchment 
barrier without free and fair elections, without separate 
powers, without the rule of law, and without an independent 
judiciary to uphold it all. Perhaps recognizing what Justice 
Scalia meant, the progressive left is not just threatening the 
rights of Americans but our very system of constitutional 
government.
    Those on the left, including some of my colleagues here in 
the Senate, including on this Committee, want to pack the 
Supreme Court. I would hope that anyone nominated to the Court 
would have no problem echoing the words of Justice Ginsberg and 
Justice Breyer. Both of these liberal lions have said that 
expanding the Supreme Court to achieve favored legal and 
political outcomes is a dangerous idea, and that the Court 
should have nine Justices and no more. But for some, political 
outcomes on the Court are exactly their goal.
    The Democratic Leader, Senator Schumer, stood on the steps 
of the Supreme Court almost exactly 2 years ago and yelled at 
specific Justices, quote, ``You have unleashed the whirlwind 
and you will pay the price,'' and added, quote, ``You won't 
know what hit you if you go forward with these awful 
decisions,'' end quote.
    The Chief Justice rightly condemned these words. Again, I 
hope any nominee to the Court would be comfortable condemning 
these words from Senator Schumer as well.
    The Supreme Court is not the only constitutional limit on 
power that the left would like to destroy. The Associate 
Attorney General of the United States has said that she 
believes that every single American--every single American--and 
every single institution in this country are inherently racist, 
and that the very concepts of the rule of law and equal justice 
for all are actually, quote, ``code words''--that is what she 
said, ``code words''--for some kind of twisted, secret racism.
    These threats to the rule of law are not merely 
theoretical. We are witnessing a breakdown of society. There 
are many Americans who no longer feel safe today. Parents are 
scared to walk down the streets that used to be free from 
crime. In 2020, anarchists, rioters, and left-wing street 
militias raged across the country, and murders increased at the 
fastest rate in history. And in the first year of the Biden 
administration, violent crime got even worse. It is no 
coincidence that this violence came as localities and States 
pushed to defund the police and reduce the punishment for 
criminals. Career criminals are committing violent crimes and 
going free, under the guise of a supposedly more equitable 
justice system, and liberal judges who have more sympathy for 
the victimizers than for the victims are a big part of the 
problem.
    The Biden administration has committed to these soft-on-
crime policies, like ending cash bail to create a catch-and-
release system for violent criminals. Progressive Soros 
prosecutors, who are supported by the Biden administration, 
have nullified entire sections of law to destroy our criminal 
justice system from within. The consequences are obvious. 
Skyrocketing violent crime, emboldened gangs, and drug 
overdoses reaching numbers never before seen in American 
history.
    If Judge Jackson is confirmed, her decisions will have a 
direct impact on the safety of the American people. So we are 
going to look at her past decisions and her statements, because 
the best predictor of future performance is past performance.
    That brings us to today. We are asked to determine whether 
the President's nominee to the Supreme Court is able and 
willing to meet these vital challenges. I enjoyed meeting with 
Judge Jackson last week in my office. We had a good 
conversation, and over the next few days I will have many more 
questions. Let's be clear about this. The confirmation hearing 
is not a test of how well nominees can filibuster or how many 
questions they can avoid answering. It is true that there is a 
tradition of avoiding any stances on how one might rule in 
specific cases, if confirmed, and there is good reason for 
that. But that is not a license to refuse to discuss one's 
views of the law, how one would go about conducting legal 
interpretation, or one's philosophy as a judge.
    Judge Jackson is not nominated to be a district judge or a 
circuit judge this time around, so it is not enough to say that 
she will approach things with integrity and fairness and 
faithfully apply precedents set by higher courts. Just as you 
would not hire a teacher who refused to say anything about 
their teaching philosophy other than that they would look at 
the curriculum and appropriately teach the students, it is not 
enough to say only that one would look at the facts and 
arguments in the case and fairly apply the law. That would not 
tell us anything about how one plans to do the job, how one 
interprets the law, how one understands our Constitution.
    It is no secret that I voted against Judge Jackson's 
nomination to the circuit court last year, but I want to give 
her the opportunity to show why I should vote for her this 
time. So I want to be clear about what would convince me to 
support any Supreme Court nominee.
    I am looking for a Justice who will uphold the 
Constitution, not use it to invent new so-called rights.
    I am looking for a Justice who understands that the 
Constitution means what it says and does not mean what it does 
not say. Someone who understands that it is not up to nine 
unaccountable, unelected politicians in black robes to decide 
some new, evolving meaning of the Constitution based on public 
opinion polling or views of the legal elite.
    I am looking for a Justice who realizes that a so-called 
living Constitution really means that the Constitution is dead. 
Instead, we should have an enduring Constitution, as Justice 
Scalia contended.
    I am looking for a Justice who understands that there is a 
process for updating the Constitution, and that process is by 
amending the Constitution. I will not support anyone who seeks 
to rewrite the Constitution from the Bench, rather than through 
our constitutional amendment process.
    I am looking for a Justice who understands that nobody is 
above the law and will not coddle criminals or put illegal 
aliens ahead of American citizens.
    I am looking for a Justice who will protect the right to 
life of innocent infants, instead of caving to the abortion 
lobby, creating whole new swaths of law out of whole cloth.
    I am looking for a Justice who will make decisions based on 
the law, not based on their personal experiences or 
preferences, not on empathy, not on desired political outcomes, 
but on the law and the Constitution.
    If Judge Jackson is confirmed, her job will be simple--
leave the legislating to Congress and to elected, accountable 
office-holders in our States and our municipalities, to 
zealously protect the separation of powers, and do not overturn 
laws unless they violate the Constitution.
    I look forward to these hearings. Thank you very much.
    Chair Durbin. Thank you, Senator Cotton.
    Senator Booker of New Jersey.

           OPENING STATEMENT OF HON. CORY A. BOOKER,
          A U.S. SENATOR FROM THE STATE OF NEW JERSEY

    Senator Booker. Thank you very much, Mr. Chairman. Judge, 
Your Honor, it is very good to see you. Forgive me. When you 
were in my office you were focused on the hearings and a lot of 
the stuff, since I had such great questions. I could not stop 
being just joyous that you were sitting in my office, and I 
could not stop bringing up to you the historical nature of 
this.
    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, in the 
coming hearings, we are going to have tough, hard questions, 
but please, let me just acknowledge the fact that this is not 
normal. It has 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 is 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.
    You know, the greatness of America is that these imperfect 
geniuses at our founding founded a nation different than any 
before in human history. It was not because we all prayed the 
same or looked the same. They put forth, in a Constitution, the 
best hopes for humanity, and the story of America, I think, is 
a testimony to this world of what diverse people can achieve.
    It has been said by so many of my colleagues about the fact 
that we have had 115 Supreme Court Justices, and we should not 
diminish the accomplishments of mostly these 108 white men. 
They were extraordinary patriots who helped shape this country. 
But now we are seeing, to the highest court in our land, a 
hopeful day like this, that so many of the people, so much of 
the rich talent of our Nation, who could not scarcely ever 
dream of sitting on the Supreme Court, now we are showing that 
we will indeed go deep into the waters of our Nation and pull 
forth the best talent. Extraordinary legal talent comes from 
all backgrounds.
    I know that in our Nation, for the 200-plus years of our 
history, there have been extraordinarily talented Black people, 
men and women, Muslim men and women, from the founding of our 
Nation. We have seen extraordinary indigenous men and women, 
all who probably could have added to the greatness of our 
courts but they were denied that opportunity.
    I believe we say these words, ``justice for all,'' but 
there are many people who feel those words have been diminished 
by the lack of representation, the lack of avenues for talented 
people to ascend to our courts. But fortunately, thanks to the 
sacrifices of all Americans, people on both sides of the 
political aisle, we have begun to see more and more diverse 
Americans slowly get onto our Federal courts. My family 
celebrated that.
    I was born in 1969, the year that President Johnson 
nominated Thurgood Marshall, the first African American to 
serve on the Supreme Court. It shook the wonderful foundations 
of our Nation, and he became a symbol to all of us, Black and 
white, of what a Supreme Court Justice can be. And then Ronald 
Reagan, in 1981, roughly 200-plus years since the founding of 
our Nation, put Justice Sandra Day O'Connor. That was not a 
normal moment. It was a moment to rejoice. And now we have seen 
President Obama put Justice Sonia Sotomayor, the first 
Hispanic, on the Court. And what I am seeing in this Congress, 
my colleagues and I, doing, is we are opening the doors of 
diverse talent to our Federal courts in ways we have never seen 
before.
    Think about this. President Biden has nominated the first-
ever Article III Muslim judge to our Federal courts. He 
nominated the first openly LGBTQ woman to serve on our Federal 
court. He nominated Native-American and Asian-American 
candidates who have appeared before this Committee. Incredibly 
talented individuals, worthy of their positions, now act in 
roles to the benefit of our whole Nation. They herald the truth 
of who we are as a country, an inclusive, multicultural nation 
that shows the world the promise of a true democracy.
    In all, over two-thirds of the confirmed judges under the 
Biden administration have come from groups who historically 
have not been represented on our Federal courts.
    So for those reasons, and more, today, to me, is a day of 
joy. I cannot tell you how happy I am. Today we should rejoice, 
because President Biden nominated someone that we have heard to 
be the 116th Associate Judge of the Supreme Court, who is 
extraordinarily talented, and who also happens to be a Black 
woman, something we have never seen before.
    Judge Jackson's nomination breaks an artificially confining 
mold of our past and opens up a more promising potential-filled 
future for us all as Americans. It signals that this Nation 
will draw more deeply from all of our talent and genius, it 
will benefit all Americans. This is the America that most of 
our families speak of, from all our diverse backgrounds, an 
America where anybody can achieve anything, not because of the 
color of their skin but because of the content of their 
character. And God, I cannot wait for America to find out more 
about your character.
    When the next generation behind us looks at the highest 
courts in the land, this ideal will be made more real in even 
just the faces of the nine. You bring this wealth of experience 
that is exciting to me. You have seen so many parts of our 
legal system. But I just want to talk about your role as a 
public defender, because that too is unprecedented.
    I have a friend that just was at the prayer breakfast here 
in Congress, Bryan Stevenson. He has a saying. He says, ``We 
have a justice system that treats you better if you are rich 
and guilty than if you are poor and innocent.'' I am not sure 
if most Americans know that 80 percent of those who go before 
our Nation's criminal courts cannot afford an attorney. To this 
end, a public defender should be looked at as one of the most 
honorable roles within our judicial system, and yet we have 
never had a public defender, or anyone who has served as a 
public defender, on our highest court. And it, unfortunately, 
is very lacking amongst all Federal judges.
    You wrote, Judge, that the role of the public defender made 
you a better judge. You said it gave you a chance to, quote, 
``help people in need and to promote core constitutional 
values.'' Well, the Sixth Amendment, right to the assistance of 
counsel, is guaranteed regardless of wealth and despite the 
nature of the accusations. I honor that more than you know, as 
someone who started in legal clinics at Yale. I had my empathy 
expanded. I had my understanding of the struggles of my fellow 
Americans in ways that shaped my entire professional career.
    I love the fact that you have been a bridge-builder in so 
many ways. You have the support of Republican-appointed judges 
and Democratic-appointed judges. Heck, you were confirmed by 
the Senate, in a bipartisan manner, three times. I love the 
fact that you have the support of civil rights lawyers and our 
largest police organizations, like the FOP. It is a testimony 
to what this Nation needs more of--people that will find ways 
not to accentuate the lives that divide but try to find more 
ties that bind us together.
    Let me go one note more personal, back to you sitting in my 
office. I cannot tell you how, before our meeting, how many 
people reached out to me with very emotional moments. You know, 
my mom's Deltas? I heard from many Link Sisters. I cannot tell 
you what it meant to me. So when you came to my office I was a 
little kind of nervous, even.
    And then you started talking about your family and your 
parents. I want to tell your parents you and I have something 
in common. We are both around the same age. Both of our parents 
graduated from HBCUs. My dad, Dr. Brown, is also an Eagle. He 
went to North Carolina Central, just like you. And they came to 
DC. My mom worked in the DC public schools, Ms. Brown, just 
like you.
    And your story, the more you talked, Americans from all 
backgrounds know what it is to be underestimated and looked 
down upon, when they told you you were too ambitious for 
wanting to go to Harvard. You were a mom that faced career 
challenges at your private law firm. How many women can relate 
to that? The more you spoke about your personal story, the more 
I know it is an American story that folks from all backgrounds 
can relate to.
    But there is something that really moved me. Behind you, in 
your family, is your daughter, Leila. And when she was 11 years 
old--I love this--she wrote a letter to President Obama, urging 
him to nominate her mother, you, to the United States Supreme 
Court. Wow. And in that letter her recommendation put forward 
that you, Judge Jackson, would be, quote, ``a great Supreme 
Court Justice.''
    I suspect after these proceedings, and please, God, after 
your confirmation to the Supreme Court, something new will 
happen in America, that that letter from your daughter will not 
be exceptional. Generations of little, young girls and 
generations of little, young boys, no matter who their parents 
are, will have the audacity to write the President of the 
United States, whether they are daughters of white parents or 
Black parents or biracial parents or Muslim and Jewish parents, 
Sikh or Hindu parents. We are going to see a new generation of 
children talking about their mamas, and daring to write to the 
President of the United States of America, that my mom should 
be on the Supreme Court.
    Well, I want to tell your daughter right now that that 
dream of hers is so close to being a reality. Some tough days 
ahead, but I think it could happen. And your grandparents' 
generation, literally this week back in 1965, when my parents 
were in Washington, DC, in that week there was a man named 
Martin Luther King who began, on this day, a march from Selma 
to Montgomery. And when he finally made it, on the 25th of 
March, he talked to people who were losing faith in America, 
that we can be who we say we are. And he says for those folks, 
how long will we have to wait? Not long, because ``the arc of 
the moral universe is long and it bends toward justice.''
    Well today America is witnessing the literal bending of the 
arc and the conducting of one of the most sacred ideals of this 
country, justice for all. I think more people, at the end of 
these hearings, and after a Senate vote, more people will 
believe that we can be the Nation we say we are when we put our 
hand on our heart. Indeed, I think you and your family are 
giving a lot more people faith that we will achieve a nation of 
liberty and justice for all. Thank you.
    Chair Durbin. Thank you, Senator Booker.
    Senator Kennedy of Louisiana.

            OPENING STATEMENT OF HON. JOHN KENNEDY,
           A U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Kennedy. Hello, Judge. If you are a lawyer or an 
American I guess it does not get any bigger or better than 
this. Congratulations.
    In addition to honoring the wonderful State of Minnesota, 
and unless you correct me, I am going to assume that your 
purple attire is also meant to honor LSU in my State. And if I 
squint real hard I might call it Marian blue, the colors of my 
Southern University in Louisiana.
    I want to compliment you and the Biden White House for 
selecting Senator Doug Jones to advise you. Senator Jones knows 
the Senate, and the Senate knows Senator Jones, and we know him 
to be quite the intellect, but more important, we know him to 
be a person of good judgment and goodwill, and I am glad that 
you have been listening to him.
    I hope we will be able to use this hearing today to talk 
about, if not implicitly, at least implicitly, two subjects. 
The first is the legitimacy of the United States Supreme Court. 
Where does the Court get its legitimacy? What can we do to 
enhance it?
    Judicial legitimacy is important. I do not need to tell you 
that. I am rather fond of the Constitution. I know you are too. 
When members of the United States Supreme Court interpret it, I 
want the American people to believe them. I want the American 
people to say, ``Well, I may not agree but the men and women 
who made that decision are intellectually honest and people of 
good faith.''
    One of the primary roles of the United States Supreme Court 
is to uphold the rule of law, and sometimes Justices have to 
uphold the rule of law when it is not popular. Sometimes 
Justices have to uphold the rule of law when it is not popular 
with the majority of Americans. Boy, that is tough. It is also 
important. Sometimes--not generally, but sometimes--the 
majority can mean that just all the fools are on the same side, 
and that is what the courts are for.
    And I am rather fond of the Bill of Rights too, and I know 
you are as well. I have never believed that the Bill of Rights 
was there for the high school quarterback or the prom queen. 
They are covered by it, but the Bill of Rights is there to 
protect the rights of people who do not see the world exactly 
like everybody else, or who do not look exactly like everybody 
else.
    Now unfortunately, through history we have had people, some 
well intentioned, who tried to delegitimize the Supreme Court. 
We had a President, way back when, who tried to impeach a 
Supreme Court Justice. We had another President who wanted to 
pack the Court. I remember the ``Impeach Earl Warren'' signs. 
And most of the people who want to delegitimize the Supreme 
Court believe that unlike our founders, in my judgment, believe 
that members of the Supreme Court ought to be, and are, 
politicians in robes. They believe that the United States 
Supreme Court ought to be a mini-Congress. They believe that 
the law is not the law. The law is supposed to just be 
politics, practiced in a different way. And they believe in 
court packing, and they are wrong.
    Number two. I hope today that we can use this as an 
opportunity to talk about, if not explicitly, at least 
implicitly--that is what I am going to try to do--the 
appropriate balance between representative government and 
declarative government. Now in representative government, as 
you well know, people, through their elected representatives, 
make policy. In declarative government, policy is made by the 
unelected, the administrative state and the Federal judiciary.
    Now both are important. Both are important. I am not saying 
this is a zero-sum game or either-or. But what is just as 
important is we have the appropriate balance between 
representative government and what I will call declarative 
government. I mean, we have an administrative state. Did any of 
us ever think it would get this big? Is that healthy? We need 
to ask ourselves that.
    Is it really healthy to arrive at a circumstance where the 
administrative state passes 35 laws a year to our 1? Is it 
really healthy to have an administrative state that makes its 
own laws, interprets its own laws, and forces its own laws 
before courts, with the respect to which the administrative 
state appoints the judges? I think that is a fair question to 
ask.
    In terms of with respect to declarative government and the 
Supreme Court and the Federal judiciary, Federal judges have 
enormous power. They have to. But they do. They have enormous 
power. You are appointed for life. You cannot be un-elected. 
Your salary cannot even be reduced. And you have to have that 
power. Judicial power is important. So is judicial restraint.
    I believe that the appropriate role of the Federal 
judiciary is the following: Federal judges do not make law. 
They do not tell us what the law ought to be. They tell us what 
the law is.
    Now I said ``primarily'' because, of course, sometimes 
Federal judges make law. I mean make the law on the case. You 
decide a case. You have to tell us what ``reasonable'' means in 
terms of searches and seizures. You have to help us define 
restraint of trade, after we pass a statute. So, of course, 
judges make law. But I am talking about the proper balance.
    I will leave you with these last thoughts, and then I will 
yield back my time. I want you to hear the words of, what in my 
opinion, is one of our most distinguished Supreme Court 
Justices. I am going to read his words. ``The American people 
love democracy, and the American people are not fools. The 
people know their value judgments are quite as good as those 
taught in any law school, maybe better. Value judgments, after 
all, should be voted on, not dictated.''
    I look forward, Judge, to getting to know you better, and 
congratulations, Mom and Dad.
    Chair Durbin. Thank you, Senator Kennedy.
    Senator Padilla.

            OPENING STATEMENT OF HON. ALEX PADILLA,
          A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Padilla. Thank you, Mr. Chair.
    Judge Jackson, welcome back to the Senate Judiciary 
Committee. Now the last time you were before us, just less than 
a year ago, I recall that you mentioned that every once in a 
while you make it a point to walk a few blocks from your 
courthouse to the National Archives. As we all know, the 
National Archives is where the Declaration of Independence, the 
Constitution, and the Bill of Rights are housed. You shared 
that you go there and reflect on the momentousness of the 
office that you hold, and it is a fitting place, these 
Archives, to be reminded of our Nation's highest ideals, our 
pursuit of a Union that is more fair, that is more free, and 
that is striving to be more perfect.
    It is also a place to see how, for two and a half 
centuries, our democracy has remained a work in progress, and 
that it is incumbent upon all of us, yes, as a nation, but each 
of us, as individuals, to continue making that progress.
    The men who wrote our founding documents could never have 
imagined that you would one day be here. A former public 
defender, a proud graduate of a public high school, a working 
mom, and yes, the first Black woman nominated to serve on the 
Nation's highest court. Colleagues, our Founding Fathers also 
could never have imagined that the Senators sitting before 
Judge Jackson would include the first women to represent 
California, Hawaii, and Tennessee; the first Jewish man to 
represent Georgia; the first Hispanic man to represent Texas; 
the first Black man to represent New Jersey; nor could they 
have imagined that the list would include me.
    I am here as a proud son of immigrants from Mexico, who 
came to this country with little formal education but with big 
dreams and a tremendous work ethic. And it is because of the 
decades of hard work and sacrifice by Santos and Lupe Padilla, 
my dad as a short-order cook, my mom as a housekeeper, that I 
would enjoy tremendous opportunities in my life, and that 
includes the honor of representing the State of California in 
the United States Senate and being the first Latino to do so. 
So like so many of us in this room, I am blessed to live the 
American dream.
    Now looking around you can see the strides that our 
democracy has made toward strengthening our institutions by 
including more voices and more perspectives. Judge Jackson if 
you are confirmed we will take another step toward making our 
Government better reflect the America that it serves, toward 
making the promise of America more real.
    And we know that progress does not come easily. Breaking 
barriers and being the first means not just significant 
opportunity but tremendous responsibility. But Judge Jackson, I 
also know you are equipped with a tremendous record of 
experience and accomplishment and you are ready to blaze this 
trail, a trail that your grandparents may have found 
unfathomable, but one that your daughters and my sons and 
future generations will now see as a natural part of the 
American story.
    Judge Jackson, even before your next opinion or dissent, 
your appearance before us today already begins a new chapter in 
our Nation's history. And I can say for certain that by the end 
of these hearings those watching across the country will know 
of your outstanding qualifications, your experience, and your 
accomplishments, which bear repeating over and over again.
    A public education, including graduating from Miami 
Palmetto High School--I see that smile--followed by degrees 
from Harvard College and Harvard Law School, clerkships at the 
Federal district court, the Federal court of appeals, and the 
United States Supreme Court. Two years as a Federal public 
defender. Two years as a staff member of the United States 
Sentencing Commission, and 4 years as its Vice-Chair. You have 
been confirmed by this Senate not once, not twice, three times, 
each on a bipartisan basis, including two lifetime judicial 
appointments. And you bring nearly a decade of judicial 
experience, which, by the way, is more than the combined total 
of four of the currently sitting Justices at the time they were 
nominated.
    So yes, you are clearly more than qualified to serve as a 
Justice of the Supreme Court of the United States. And yes, you 
bring a wealth of other important experiences and perspective 
to the Court, including as a working mother and as a Black 
woman.
    Now in these hearings I look forward to speaking further 
about your background, your experiences, both on and off the 
bench, and your approach to the law. But based on our 
conversations already and my review of your record, I believe 
you have the expertise, the insights, and the heart to elevate 
the weighty deliberations of the Supreme Court.
    Every year the Supreme Court decides dozens of cases that 
shape the fundamental rights and lives of the American people. 
Only a small percentage of those cases will ever be highlighted 
in history books, make the front page of newspapers, or go 
viral on social media. But the choices of the Supreme Court 
will certainly shape the future of labor rights, voting rights, 
women's rights, criminal justice, immigration, technology, 
environmental protection, and so much more.
    And I also want to be clear about something important. If 
you are confirmed, I do not expect to agree with every detail 
of every decision that you make. That is not my test. That is 
not our test. Our job on this Committee is to make sure that 
the next Justice will honor the rule of law and the principle 
of equal justice for all. We must ensure that the next Justice 
will help the Supreme Court live up to its responsibility to 
the American people. And yes, America is watching. America is 
watching these hearings to see what the future holds, not just 
for themselves but for the Court as well.
    Judge Jackson, like you I believe in the greatness and the 
promise of this Nation. I believe that we can continue building 
on our dream of a more perfect Union, and that includes 
building a government that better reflects and represents the 
people that it serves. It is a dream that we have spent 2\1/2\ 
centuries struggling to realize. And while this hearing may not 
be the last step on that journey, it is a momentous step 
forward indeed.
    Judge Jackson, you are an outstanding nominee for our 
Nation's highest court, and I thank you for your service, and I 
thank you for sharing your faith in America's promise, a faith 
that is stronger because you know how far our Nation has come.
    And, Mr. Chair, before closing, and with your indulgence, I 
would like to share a few words in Spanish, on the importance 
of this nomination.
    La Corte Suprema decide docenas de casos cada ano que 
afectan nuestras vidas y nuestros derechos fundamentales. Y 
esas decisiones afectaran el futuro de nuestro pais atreves de 
temas como el derecho al voto, inmigracion, proteccion 
ambiental, derechos laborales, y mucho mas.
    Esta semana, el Senado y el pais veran lo preparada y 
calificada que esta la jueza Jackson para la Corte Suprema.
    Espero escuchar mas sobre la jueza y las perspectivas 
importantes y necesarias que traeria a la Corte Suprema.
    Judge Jackson, I look forward to your testimony over the 
next few days, and I thank you, Mr. Chairman.
    Chair Durbin. Muchas gracias, Senator Padilla.
    Senator Padilla. De nada.
    Chair Durbin. Senator Tillis of North Carolina.

             OPENING STATEMENT OF HON. THOM TILLIS,
        A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

    Senator Tillis. Thank you, Mr. Chairman and Ranking Member. 
It is real honor to now participate in my fourth Supreme Court 
nomination and confirmation process, and Judge Jackson, 
congratulations on your nomination. I do feel like you and your 
family have every reason to be very proud, and your daughter, 
apparently, has pretty weighty letter-writing skills.
    When we met together I wanted to thank you for the time 
that we spent together. I asked about your family. You beamed 
with pride, and can understand why. You have parents, brothers, 
siblings, family members who are public servants themselves, 
and now you have gone on to do that, continue that legacy, in 
your public defender role and as a judge. And you should be 
very proud of that.
    And we should also recognize the historic nature of this 
event. The first African American female to be put forth for 
confirmation for the Supreme Court is quite extraordinary.
    I also want to recognize that when we had the meeting in my 
office I asked you, ``Why on Earth are you doing this? '' 
because this week is not going to be particularly fun, every 
moment of it. Why on Earth are you doing this? You are 
brilliant. You are well educated. You are studied in the law. 
There are so many other things that you could do. And you said 
that it really is the pinnacle of your profession, and I guess 
in many respects this is the realization of a dream of yours. 
But I also think that it is probably putting within reach, for 
many young boys and girls, young men and women, the reality 
that they too someday could be here before the Senate, being 
considered for confirmation to the highest court in the land. 
So you are not only fulfilling your dreams, you are making the 
dreams of others appear to be within reach.
    I think as we go through this hearing this week we are also 
going to get an opportunity to see the content of your 
character demonstrated. I, for one, think you have a strong 
track record of ethical values--honesty, integrity, respecting 
others, and endeavoring to be fair, just, and compassionate.
    You know, confirming a Supreme Court Justice is one of the 
most important responsibilities I think I have as a U.S. 
Senator. The outcome of our decision will impact millions of 
lives, and the very structure in the future of our 
constitutional republic. Supreme Court Justices must find 
answers to some of the most pressing constitutional and legal 
questions of our time. They are confronted with complex 
questions; many of them do not have good answers, or at least 
easy ones. That is why it is critical whenever we confirm a 
Supreme Court Justice we understand the nominee's judicial 
philosophy and then reconcile it with our conception of the 
best mindset to bring to the Bench.
    In my opinion, a Justice's job is to interpret the text and 
words of the Constitution as written, and give them their 
original meaning. I reject the notion that the Constitution is 
a living, evolutionary document that changes based on the 
impulses of five unelected Justices.
    A good judge must understand that his or her job is not to 
legislate from the bench and read in their preferred policy 
outcomes into statutes. If the words of a statute are clear, a 
good judge will reach a decision based on those words, and 
those words alone, even if it creates an outcome they may 
disagree with personally.
    In other words, in the words of Chief Justice Roberts, a 
good Justice has one job--calling balls and strikes. Nothing 
more and nothing less. Sometimes that leads to rulings that 
Republicans like and Democrats hate. Other times it leads to 
rulings that Democrats like and Republicans hate. And sometimes 
it leads to rulings that everybody hates. But that is okay. 
That is really your job as a Supreme Court Justice.
    I had the opportunity to meet Judge Jackson, I said 
earlier, and I also wanted to thank you for your indulgence. I 
may have done my interviews a little bit differently than other 
ones. I asked some questions and then I had all my staff ask a 
number of questions. I was quite impressed with how engaged you 
were with some of the former Members of the Judiciary Committee 
and other staff, and I even scared one person, who was just on 
the job a week and a half. I said, ``Have you got a question 
for the Supreme Court Justice? '' and he had a question. It was 
a good question and you were very indulgent in your answer.
    I just thought you were honest and forthcoming. I wanted 
you to know that. I have said that in the press. I think that 
you have the right temperament, just based on how I have seen 
you react to the questions--not the questions, but the 
statements today. I also appreciate how your unique 
perspective, your upbringing, your family, and your experience 
as a former public defender have shaped your views.
    As I noted during your confirmation to the circuit court, I 
do have some additional questions and concerns that I want to 
ask about to kind of weave together or reconcile my conception 
of the right mindset for a judge going to the Supreme Court. I 
am concerned, and will look into, questions over the next 
couple of days, and I will be here for the majority of the 
hearing, to kind of put together the foundation that I need to 
ultimately make a decision on your confirmation.
    So as I proceed with the hearing this week I will be in 
attendance most of the time, except for breaks, and I will 
focus on better understanding your writings--I am in the middle 
of your thesis right now; I should be finished by tomorrow 
morning--your political activities, and opinions with the goal 
of determining your philosophy, and whether or not it fits with 
my conception of the right philosophy for somebody that I would 
vote to confirm.
    I will listen thoroughly. I will keep an open mind, as I do 
with every nominee before this Committee. But at the end of the 
week I will ultimately have to conclude whether or not I am 
comfortable with putting someone in a lifetime position and 
whether that person is likely to have the kind of philosophy 
that I want.
    I have told Justice Gorsuch, Justice Kavanaugh, and Justice 
Barrett that I hope, and I expect it, that they would take 
opinions that would make me mad, and that is okay. I just want 
to know that they do it for the right reason. I do not want an 
activist at either end of the spectrum, although I think some 
folks are okay with one end of the spectrum and not the other. 
If we are talking about preserving the integrity of the Court, 
there is no place on the Supreme Court for judicial activism. 
And the best thing that we can do here is make sure that we 
have Justices that are going to be stewards of the 
Constitution, respectful of the measures that we pass out of 
here, and call those balls and strikes.
    So I look forward to the hearing tomorrow. You are going to 
get a lot of questions asked. I do thank all of my colleagues 
in advance for being respectful, thoughtful, and open-minded, 
and I look forward to hearing your opening statement.
    Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Tillis.
    Senator Ossoff of Georgia.

             OPENING STATEMENT OF HON. JON OSSOFF,
            A U.S. SENATOR FROM THE STATE OF GEORGIA

    Senator Ossoff. Thank you, Mr. Chairman and Ranking Member 
Grassley.
    Judge Jackson, good afternoon. Good afternoon to your 
family. Congratulations to your family. Congratulations to you 
for your nomination, and welcome back to the Judiciary 
Committee.
    I engage in these proceedings with deep respect for the 
responsibility that the Senate has to advise and consent on the 
lifetime appointment of a Supreme Court Justice, who would be 
responsible for interpreting and applying constitutional and 
statutory law in the most complex and contested and nationally 
significant cases.
    The Constitution was a ground-breaking document when 
written, and still, by today's standards, as amended, 
considering the tyranny that prevails in much of the world. Its 
guarantees of liberty and privacy and due process are 
exceptional as a governing document.
    Often in our history it has fallen to the Court, through 
its decisions, to ensure the enforcement of those guarantees. 
Yet our Constitution's guarantees of individual rights and 
equal protection under the law remain too often, and for too 
many, unfulfilled. For any colleagues who doubt this, I remind 
them of Ahmaud Arbery's murder in Glynn County, Georgia, just 2 
years ago, when a young Black man was shot dead in cold blood, 
on camera, in the street, and the local authorities buried the 
case and looked the other way. Only a massive civil rights 
mobilization pressured State and eventually Federal prosecutors 
to act.
    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.
    Today's hearing, Judge Jackson, is evidence that this 
process continues, and above all, a testament to you 
personally, that in a nation still striving to transcend the 
legacies of slavery and segregation and institutionalized 
racism, through your brilliance and resilience and hard work 
you have already rendered great service to the Nation as a 
Federal judge. And as a Black woman you have overcome deeply 
rooted obstacles to earn nomination to our Nation's highest 
court for the first time in history.
    Alongside our Constitution's exceptional guarantees of 
individual rights and equal protection is its exception system 
of checks and balances. Restraints on political power imposed 
by the diffusion of authority across three co-equal branches, 
between Federal and State governments, with the President and a 
Federal legislature directly accountable to voters and an 
independent Federal judiciary, whose judges must be confirmed 
by elected Senators.
    This constitutional system has endured and developed for 
nearly a quarter of a millennium. It is resilient. But 
democracy remains the exception, not the norm, in history and 
around the world, and we cannot take the survival of our 
republic for granted. And so I look forward to engaging with 
you, Judge Jackson, to discuss your perspective on the 
separation of powers and the resilience of our Constitution, 
when threatened by political actors who would ignore the rule 
of law or seek to seize power by illegal or extraordinary 
means.
    Among the Court's most challenging tasks are to grapple 
with unsettled law when the stakes are highest, or even 
existential, for individuals and for the country, and to apply 
the Constitution faithfully over the long arc of history as the 
world changes in profound ways and the text of faithful 
constitutional interpretation meets new facts, new contexts, 
and new technologies.
    Judge Jackson, should you be confirmed you may serve as a 
Supreme Court Justice well into the middle of this century. You 
will rule on cases whose contours and complexity we cannot yet 
imagine. And so among several areas of interest I look forward 
to learning how you will consider protections against 
unreasonable search and seizure in an age of ubiquitous 
surveillance; how you might approach disputes over war powers, 
where law remains unsettled, between executive and legislative 
claims; how you will approach questions pertaining to freedoms 
of speech and of the press; and seek that confirmation that you 
will apply the law faithfully, without regard for your own 
opinions, as my review of your extensive work to date 
demonstrates that I believe you will.
    This constitutional process of advice and consent is vital 
to the integrity and legitimacy of the Court. And Judge 
Jackson, on behalf of my constituents in Georgia, I look 
forward to engaging in this process with you and my colleagues.
    Mr. Chairman, I yield.
    Chair Durbin. Thank you, Senator Ossoff.
    Senator Blackburn of Tennessee.

          OPENING STATEMENT OF HON. MARSHA BLACKBURN,
           A U.S. SENATOR FROM THE STATE OF TENNESSEE

    Senator Blackburn. Thank you, Mr. Chairman. Judge Jackson, 
welcome. You are indeed to be congratulated, and your entire 
family with you, and thank you for your time to visit. I 
appreciated so much that. And to your daughters, her best job 
is being mama. She likes that one.
    But we have talked today a little bit about the momentous 
occasion that this is in bringing you forward, and indeed it 
is, because unlike any other Federal office this is a lifetime 
appointment, and the decisions that you are going to make are 
going to impact rights and freedoms of every single American 
citizen.
    And, you know, President Biden thinks you are the right 
person for the job, but it does not end there. We do have that 
role of advice and consent, and it is up to us to carry that 
job out. So as you have heard repeatedly, this is going to be a 
fair and very thorough and very respectful hearing, and we are 
going to work through this process with some tough questions, 
but do it in a manner, the respect that you deserve.
    And we have talked some today about the treatment of 
Justice Thomas and Justice Kavanaugh, Justice Barrett, who was 
questioned about her faith and whether that made her suitable 
for the Court. And I know your faith is important to you. We 
have also talked some about Janice Rogers Brown and the 
treatment that she endured here.
    So we are going to be pleased to move forward and focus on 
the issues that the American people want to focus on, because 
they want to know about you and how you are going to approach 
your job, and the decisions that you have made in the past, 
what you have written, what you have said.
    And I have got a few areas that I am going to want to delve 
a little bit further with you, and we touched on some of these 
as we talked. Right now, when I talk to Tennesseans, one of the 
most important things that they bring up is the issue of 
parental rights and wanting to be able to rear their children 
as they see fit. And 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 do not 
matter. They are 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.
    And here we need a little clarity. At a time when these 
parental rights appear to be under assault by the radical left, 
your public comments about, and I am going to quote you, ``the 
transformative power of progressive education,'' end quote. 
These are deeply concerning. You serve on the board of a school 
that teaches kindergarteners, 5-year-old children, that they 
can choose their gender, and teaches them about so-called white 
privilege. This school has hosted an organization called ``Woke 
Kindergarten,'' and pushes an anti-racist education program for 
white families. Your public endorsement of this type of 
progressive indoctrination of our children causes one great 
concern when it comes to how you may rule on cases involving 
parental rights.
    Parents also know that it is only a matter of time before 
we have the next pandemic, and they are concerned about more 
mask mandates or lockdowns from unelected bureaucrats that 
would harm their children's mental health and stunt their 
development. The American people want a Supreme Court Justice 
who will protect their families' freedoms, not allow government 
overreach into private family decisions.
    Now moms that I am speaking with raised the issue of crime, 
and you have consistently called for greater freedom for 
hardened criminals. At the start of the COVID-19 pandemic, you 
advocated, and again I quote, ``for each and every criminal 
defendant in the DC Department of Corrections custody should be 
released.'' That would have been 1,500 criminals back on the 
street if you had had your way.
    And you used the COVID-19 pandemic as justification to 
release a fentanyl drug dealer, a bank robber addicted to 
heroin, and a convict who murdered a U.S. Marshal into our 
communities. But your effort to protect convicts began long 
before the pandemic. You used your time and talent not to serve 
our Nation's veterans or other vulnerable groups but to provide 
free legal services to help terrorists get out of Gitmo and go 
back to the fight.
    You also have a consistent pattern of giving child porn 
offenders lighter sentences. On average, you sentenced child 
porn defendants to over 5 years below the minimum sentence 
recommended by the sentencing guidelines. And you have stated 
publicly that it is a mistake to assume that child pornography 
offenders are pedophiles. Your philosophy, it appears, is 
backward on these issues, restrictions on children and families 
and freedom for criminals.
    In fact, your philosophy, or lack thereof, may be the root 
of the problem here. I was concerned during our conversation 
earlier this month when you told me that you really did not 
have a judicial philosophy. The American people deserve a 
Supreme Court Justice with a documented commitment to the text 
of the Constitution and the rule of law, not a judicial 
activist who will attempt to make policy from the Bench. 
Without a judicial philosophy, a judge is legally adrift and 
will be inclined to consider policy rather than law.
    You once wrote that every judge has, and I quote, 
``personal hidden agendas,'' end quote, that influence how they 
decide cases. So I can only wonder, what is 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 your personal 
hidden agenda to incorporate Critical Race Theory into our 
legal system? These are answers that the American people need 
to know.
    So we are going to look at past statements and decisions 
and seek clarification from this Committee before we make our 
decision.
    So let me close again by congratulating you on your 
impressive career and your nomination to the Nation's highest 
court. Regardless of the outcome of the confirmation process, 
you and your family should be incredibly proud of all that you 
have achieved. Your story is a wonderful example of the 
American dream fulfilled. You are able to sit here today 
because you were reared and built your career in a free 
country, whose laws protect equal justice and opportunity for 
all. To ensure that future generations can expect the same 
blessings and opportunities you received, we need Justices who 
will be dedicated to justice and the rule of law.
    Our questions to you over the coming days are going to be 
tough, but they are tough by necessity, because it is our duty 
to determine whether you will, first and foremost, uphold the 
Constitution and our Nation's founding principles.
    Thank you so much for joining us.
    Chair Durbin. Thank you, Senator Blackburn.
    All Committee Members have now completed their opening 
statements. At this point in time we are going to have a little 
shuffle of logistics, and I will ask that the two introducers 
please come forward to the witnesses table.
    Judge Jackson, you can take a brief rest from the glare of 
the spotlight.
    We are fortunate today to have two distinguished guests 
introducing Judge Jackson. We will hear from Judge Thomas 
Griffith, who served as a judge on the U.S. Circuit Court of 
Appeals for the District of--D.C. Circuit from 2005 to 2020, 
and Professor Lisa Fairfax, who serves as a presidential 
professor and co-director of the Institute for Law and 
Economics at the University of Pennsylvania Carey Law School.
    Judge Griffith, we will start with you. Make sure your 
microphone is turned on; there is a red button.
    Judge Griffith. How is that?
    Chair Durbin. It has been a while since you have been here.
    Judge Griffith. Okay.

 INTRODUCTION OF HON. KETANJI BROWN JACKSON, NOMINEE TO BE AN 
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY 
HON. THOMAS B. GRIFFITH, JUDGE, RETIRED, U.S. COURT OF APPEALS 
      FOR THE DISTRICT OF COLUMBIA CIRCUIT, WASHINGTON, DC

    Judge Griffith. Chairman Durbin, Ranking Member Grassley, 
and Members of the Senate Judiciary Committee, I come here 
today as a retired Federal appeals court judge with 15 years of 
experience on the United States Court of Appeals for the D.C. 
Circuit. I come here as a jurist appointed by Republican 
President George W. Bush.
    And I come here as someone who understands that there are 
few greater responsibilities under the Constitution than 
serving as a Justice on the United States Supreme Court. It 
takes a jurist of high character, keen intellect, deep legal 
knowledge, and broad experience to ensure that the judiciary 
plays its unique role under the Constitution: to uphold the 
rule of law impartially, and not to be, in the words of Justice 
Stephen Breyer, ``partisans in robes.''
    Today, I have the high honor to introduce Judge Ketanji 
Brown Jackson, a jurist who has all of those qualities. When 
President Biden introduced her to the Nation a little over 3 
weeks ago, the American people caught their first glimpse of 
Judge Jackson's character.
    You may recall that she began her remarks with an 
expression of her faith in God and her gratitude for this 
Nation, which she rightly observed, ``is the greatest beacon of 
hope and democracy the world has ever known.''
    I first met Judge Jackson in 2013 after the Senate had 
confirmed her nomination to the Federal district court as a 
trial judge. Eight years later, she joined the D.C. Circuit as 
an appellate judge after another Senate confirmation.
    I have had many opportunities to review her work and 
observe her work over the years as a judge and on several 
occasions, I reviewed her decisions on appeal. Although, we did 
not always agree on the outcome the law required, I respected 
her diligent and careful approach, her deep understanding, and 
her collegial manner; indispensable traits for success as a 
Justice on the Supreme Court.
    About her collegial manner, that important feature of the 
Justice's work is often overlooked. Although appointed by 
different Presidents, the Justices have genuine fondness and 
respect for one another. We saw some of that in their 
expressions of admiration and love for Justice Breyer when he 
announced his retirement.
    The civil manner in which the Justices debate the large and 
vexing issues before them is vital not only to the success of 
the Supreme Court, but to the success of our Nation. The 
Constitution requires that of all of us. It goes without saying 
that civility of debate and respect for the differing views of 
others are sorely lacking from our public life.
    Judge Jackson's life has modeled these qualities. Perhaps 
most important, Judge Jackson is an independent jurist who 
adjudicates based on the facts and the law and not as a 
partisan. Time and again, she has demonstrated that 
impartiality on the bench; sometimes ruling in favor of the 
Government, sometimes ruling against the Government, sometimes 
ruling in favor of the individual, sometimes ruling in favor of 
the corporation. Her rule is simple: follow the law.
    As some think it noteworthy that a former judge appointed 
by a Republican President would enthusiastically endorse a 
nomination to the Supreme Court by a Democratic President, that 
reaction is a measure of the dangerous hyperpartisanship has 
that seeped into every nook and cranny of our Nation's life and 
against which, the framers of the Constitution warned us. There 
should be nothing unusual about my support for a highly 
qualified nominee who has demonstrated through her life's work, 
her commitment to the rule of law, and an impartial judiciary.
    Former colleagues in the Federal judiciary, Michael Luttig, 
Michael Chertoff, David Levi, and Andrew Gilford, each 
appointed by Republican Presidents and all highly respected 
judicial conservatives, have also voiced their strong support 
for Judge Jackson's confirmation.
    There was a time not so long ago when bipartisan support of 
the President's nomination of a highly qualified jurist was 
regular order: Anthony Scalia was confirmed by the Senate 98-0; 
Ruth Bader Ginsburg, by a vote of 96-3.
    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.
    As Justice Scalia taught us so well for so long, an 
indispensable feature of the republic the Constitution created 
is an independent judiciary of judges who have taken an oath 
not to a President or a party, but to the American people and 
to God, that they will be impartial.
    Judge Ketanji Brown Jackson has demonstrated her unwavering 
commitment to that oath. I applaud this exceptional nomination, 
which I encourage the Senate to confirm. Thank you.
    Chair Durbin. Thank you, Judge.
    Professor Lisa Fairfax.

 INTRODUCTION OF HON. KETANJI BROWN JACKSON, NOMINEE TO BE AN 
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY 
   LISA M. FAIRFAX, PRESIDENTIAL PROFESSOR AND CO-DIRECTOR, 
  INSTITUTE FOR LAW AND ECONOMICS, UNIVERSITY OF PENNSYLVANIA 
          CAREY LAW SCHOOL, PHILADELPHIA, PENNSYLVANIA

    Professor Fairfax. Chairman Durbin, Ranking Member 
Grassley, and Members of the Senate Judiciary Committee, my 
name is Lisa Fairfax. I am a presidential professor of law at 
the University of Pennsylvania School of Law and co-director of 
its Institute for Law and Economics.
    Prior to my academic career, I worked at corporate and 
securities law at a large law firm. But before that, I was 
roommate and a very dear friend at Harvard College and Harvard 
Law School of Judge Ketanji Brown Jackson, who I am so very 
honored to introduce to you today and to the American people.
    Ketanji and I met during our first days of college, nearly 
35 years ago. Those first moments when you wonder if you 
belong, she is the friend that made sure we all did. A woman of 
deep faith in God and unyielding love for family, Ketanji 
defines friendship. She is the friend who you are immediately 
drawn to for their outgoing and friendly nature.
    As our circle of friends grew, she is the one who became 
the rock for us all. Even though we are the same age, she is 
the role model who makes you believe in what she says: you can 
do it and here is how. And she showed us how by the power of 
her example of hard work, preparation, and excellence at 
transforming the seemingly impossible into the achievable.
    Together, we poured our souls into our studies, graduating 
college with honors, and then doing it all over again when we 
enrolled and graduated law school with honors. We became 
sisters and saw each other's families as our own. We both met 
our husbands when we were students and we were there for each 
other as we walked down the aisle, started our legal careers, 
and eventually, our lives as working mothers.
    My husband, Roger Fairfax, now dean of American 
University's Washington College of Law, has described Ketanji's 
impeccable credentials that has distinguished her at every 
level of her professional career. He also knows her as one of 
our children's most favorite people in the world.
    Our college roommate Nina Simmons, a top corporate lawyer, 
has described Ketanji's unwavering work ethic. She puts her 
head down and gets it done, even, and perhaps especially, when 
no one is watching.
    Our other college roommate, Antoinette Coakley, a 
distinguished business law professor, has described Ketanji as 
a coalition builder. We knew early on that she could be 
anything she chose to be, but also, that she seemed destined to 
be a judge because of her ability to see all sides and render 
fair and level-headed decisions.
    But our tight new group of girlfriends also knows that 
there is so much more to Ketanji beyond her brilliant mind. 
There is her wonderful sense of humor, her gift of 
storytelling, her heart of gold that always shows up from the 
first call you make for advice about your career to the first 
knock you hear on the door after learning you are diagnosed 
with cancer. You never have to ask; she is always there.
    Above all, Ketanji is humble enough not to pretend she 
knows how to have it all, but she does know how to give it her 
all. And what she gives to her family, her friends, she also 
gives to the law and to this country. A testament of her 
character is all the people of different backgrounds and 
beliefs who understand that essence of Ketanji.
    We have seen that in her endorsements from bipartisan 
colleagues from the bench and the bar, and from both, civil 
rights leaders and members of law enforcement, and we will see 
it in the history she will make. I know she is honored and 
humbled by the significance of this moment, not for what it 
means for her, but what it means for our amazing country; 
confirmation of the idea that America is a place in which all 
of us can feel a sense of belonging and all of us can reach our 
fullest potential.
    While challenging, I would summarize nearly 35 years of 
friendship in this way: by highlighting Ketanji's faith in God 
and country, her intellectual brilliance, her goodness and 
grace, and a work ethic that makes her perfectly suited for the 
serious task of serving on the Supreme Court. It is with 
tremendous pride, love, and gratitude for her willingness to 
serve that I introduce to you my dear friend and an exemplar of 
the best of America's promise, Judge Ketanji Brown Jackson. 
Thank you.
    Chair Durbin. Thank you both.
    Professor Fairfax and Judge Griffith, I am sure that Judge 
Jackson and her family deeply appreciate your being here today 
and your kind words.
    I want to add to the list of introducers, the man sitting 
behind you, Senator Doug Jones, who has introduced Judge 
Jackson to many of us, not for the first time, maybe 
reintroduced her, but Doug, thank you for serving in this cause 
and for helping the President and Judge Jackson.
    Thank you, all three, for being with us today.
    We are now going to move to the next phase of the program, 
and that is to hear from Judge Jackson. So, if we could set up 
a table.
    Before you sit down, Judge, I am going to ask that you take 
the oath.
    Please raise your right hand.
    [Nominee is sworn in.]
    Judge Jackson. I do.
    Chair Durbin. Let the record reflect that the Judge has 
answered in the affirmative.
    And having met that requirement, you may now proceed with 
your remarks.

STATEMENT OF HON. KETANJI BROWN JACKSON, NOMINEE TO SERVE AS AN 
  ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

    Judge Jackson. 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.
    I am humbled and honored to be here, and I am also truly 
grateful for the generous introductions that my former judicial 
colleague Judge Tom Griffith, and my close friend, Professor 
Lisa Fairfax, have so graciously provided.
    I am also very thankful for the confidence that President 
Biden has placed in me and for the kindness that he and the 
First Lady and the Vice President and the Second Gentleman have 
extended to me and my family.
    Today will be the fourth time that I have had the honor of 
appearing before this Committee to be considered for 
confirmation. Over the past 3 weeks, I have also had the honor 
of meeting each Member of this Committee separately and I have 
met with 45 Senators in total.
    Your careful attention to my nomination demonstrates your 
dedication to the crucial role that the Senate plays in this 
constitutional process and I thank you.
    And while I am on the subject of gratitude, I must also 
pause to reaffirm my thanks to God, for it is faith that 
sustains me at this moment. Even prior to today, I can honestly 
say that my life has been blessed beyond measure. 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 1970.
    Congress had enacted two Civil Rights Acts in the decade 
before, 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, DC, 
to experience new freedom.
    When I was born here in Washington, my parents were public 
school teachers. And to express both, pride in their heritage 
and hope for the future, they gave me an African name, Ketanji 
Onyika, which they were told means ``lovely one.''
    My parents taught me that unlike the many barriers that 
they had had to face growing up, my path was clearer, so that 
if I worked hard and I believed in myself and America, I could 
do anything or be anything I wanted to be. Like so many 
families in this country, they worked long hours and sacrificed 
to provide their children every opportunity to reach their God-
given potential.
    My parents have been married for almost 54 years and they 
are here with me today. I cannot possibly thank them enough for 
everything they have done for me. I love you, Mom and Dad.
    My father, in particular, bears responsibility for my 
interest in the law. When I was 4, we moved back to Miami so 
that he could be a full-time law student, and we lived on the 
campus of the University of Miami Law School. During those 
years, my mother pulled double-duty, working as the sole 
breadwinner of our family, while also guiding and inspiring 4-
year-old me.
    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.
    My parents also instilled in me and my younger brother, 
Ketajh, the importance of public service. After graduating from 
Howard University, Ketajh started out as a police officer, 
following two of our uncles. After the September 11 attacks on 
our country, Ketajh volunteered for the Army and eventually 
became an infantry officer, serving two tours of duty in the 
Mideast. Ketajh is here today, providing his love and support, 
as always.
    And speaking of unconditional love, 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 3 decades ago, and since then, 
he has been the best husband, father, and friend I could ever 
imagine. Patrick, I love you.
    William, Patrick's identical twin brother, is here as well, 
along with his wonderful wife Dana. Also here from Park City, 
Utah, are Patrick's older brother Gardie and his wife Natalie. 
And last, but certainly not least, my very dear in-laws, the 
matriarch and patriarch of the Jackson Family, Pamela and 
Gardner Jackson, have traveled here from Boston to be with me 
today.
    I am saving a special moment in this introduction for my 
daughters, Talia and Leila. Girls, I know it has not been easy, 
as I have 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 have seen that with 
hard work, determination, and love, it can be done. I am so 
looking forward to see what each of you chooses to do with your 
amazing lives in this incredible country. I love you so much.
    There are so many others who are not here today, but whom I 
need to acknowledge. I have a large, extended family on both 
sides. They are watching from Florida, North Carolina, New 
Jersey, Connecticut, New York, Massachusetts, Colorado, and 
beyond.
    I also have incredible friends. Three of my college 
roommates came here today to support me and I have so many 
other boosters from Miami Palmetto Senior High School, Harvard 
undergrad, Harvard Law School, and all throughout my personal 
and professional life.
    I have also had extraordinary mentors like my high school 
debate coach Fran Berger; may she rest in peace. She invested 
fully in me, including taking me to Harvard, the first I had 
ever really thought of it, to enter a speech competition. Mrs. 
Berger believed in me and, in turn, I believed in myself.
    In the category of great mentors, it was also my great good 
fortune to have had the chance to clerk for three brilliant 
jurists: U.S. District Judge Patty Saris, U.S. Court of Appeals 
Judge Bruce Selya, and Supreme Court Justice Stephen Breyer. 
These extraordinary people were exceptional role models.
    Justice Breyer, in particular, not only gave me the 
greatest job that any young lawyer could ever hope to have, but 
he also exemplifies what it means to be a Supreme Court Justice 
of the highest level of skill and integrity, civility, and 
grace.
    It is extremely humbling to be considered for Justice 
Breyer's seat, and I know that I could never fill his shoes, 
but if confirmed, I would hope to carry on his spirit.
    On the day of his Supreme Court nomination, Justice Breyer 
said, ``What is law supposed to do, seen as a whole? It is 
supposed to allow all people--all people--to live together in a 
society, where they have so many different views, so many 
different needs, to live together in a way that is more 
harmonious, that is better, so that they can work productively 
together.''
    I could not have said it better myself.
    Members of this Committee, if I am confirmed, I commit to 
you that I will work productively to support and defend the 
Constitution and this grand experiment of American democracy 
that has endured of these past 246 years. I have been a judge 
for nearly a decade now and I take that responsibility and my 
duty to be independent very seriously. I decide cases from a 
neutral posture. I evaluate the facts and I interpret and apply 
the law to the facts of the case before me, without fear or 
favor, consistent with my judicial oath.
    I know that my role as a judge is a limited one, but the 
Constitution empowers me only to decide cases and controversies 
that are properly presented. And I know that my judicial role 
is further constrained by careful adherence to precedent.
    Now in preparing for these hearings, you may have read some 
of my more than 570 written decisions and you may have also 
noticed that my opinions tend to be on the long side. That is 
because I also believe in transparency, that people should know 
precisely what I think and the basis for my decision. And all 
of my professional experiences, including my work as a public 
defender and as a trial judge, have instilled in me the 
importance of having each litigant know that the judge in their 
case has heard them, whether or not their arguments prevail in 
court.
    During this hearing, I hope that you will see how much I 
love our country and the Constitution and the rights that make 
us free. 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.
    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.
    Chair Durbin. Thank you, Judge Jackson.
    Well, this is the end of the first day of the first 3 days, 
which are involving more personal--on a personal level, the 
Senators on the Judiciary Committee. In a way, it is the 
easiest day because 10 minutes is merely a throat-clearing 
warm-up for most Senators on this Committee.
    [Laughter.]
    Chair Durbin. Starting tomorrow will be some serious 
exchange in questions for 30 minutes and then the following 
day, 20 minutes for each Senator to participate in this. We are 
looking forward to this opportunity to finally, really give you 
a fulsome opportunity to respond to many of the things that you 
have heard and to answer direct questions.
    Members have until Thursday at 5 p.m. to submit questions 
for the record.
    We are going to reconvene tomorrow morning at 9 a.m. to 
begin the 30-minute rounds of questions.
    We thank all the participants and members of our audience 
for keeping this dignified, respectful, and civilized, and we 
hope to continue that tradition tomorrow.
    With this, the Committee stands adjourned.
    [Whereupon, at 3:37 p.m., the hearing was recessed.]
    [Additional material submitted for the record for Day 1 
follows Day 4 of the hearing.]



                          CONTINUATION OF THE 
                          CONFIRMATION HEARING 
                          ON THE NOMINATION OF 
                       HON. KETANJI BROWN JACKSON 
                   TO BE AN ASSOCIATE JUSTICE OF THE  
                   SUPREME COURT OF THE UNITED STATES 

                              ----------                              


                        TUESDAY, MARCH 22, 2022

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:07 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Richard J. 
Durbin, Chair of the Committee, presiding.
    Present: Senators Durbin [presiding], Leahy, Feinstein, 
Whitehouse, Klobuchar, Coons, Blumenthal, Hirono, Booker, 
Padilla, Ossoff, Grassley, Graham, Cornyn, Lee, Cruz, Sasse, 
Hawley, Cotton, Kennedy, Tillis, and Blackburn.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. This meeting of the Senate Judiciary 
Committee will come to order.
    Good morning, Judge Jackson. Welcome back to you and your 
family.
    Judge Jackson. Good morning, Mr. Chairman.
    Chair Durbin. This second day is known affectionately by a 
term of medieval justice known as the ``trial by ordeal.''
    [Laughter.]
    Chair Durbin. This will be your opportunity to speak, but 
each Member of the Committee has 30 minutes to ask, and I know 
that they're going to be careful to stay within time limits of 
those 30 minutes. I do want to remind my colleagues that 
history has proven that speeches don't have to be eternal to be 
immortal.
    [Laughter.]
    Chair Durbin. President Lincoln learned at Gettysburg that 
275 words were enough, so I hope my colleagues and friends will 
stick to the 30-minute guideline. I will tap on the gavel if 
you're getting perilously close to extending beyond.
    We'll take a few breaks throughout the day. A number of 
them are scheduled: one for lunch, one for dinner, and several 
perhaps shorter ones in the meantime. If votes are called on 
the Senate floor, which is a possibility, we'll do our best to 
keep the hearing going as Members go back and forth. As I 
mentioned yesterday, we welcome all of our friends in the 
audience and ask that they be quiet and respectful during the 
hearing.
    So let's get started with the questioning, and I'll begin 
at this point.
    Judge Jackson, there are two issues that came up repeatedly 
yesterday from the other side of the aisle that I want to 
address at the outset. One of them was a question of judicial 
philosophy. No one questions either your academic, law school 
credentials or your service as clerk and as Federal judge, but 
time and again you have been asked what is your judicial 
philosophy. Does it fit into Scalia's originalism, Kavanaugh's 
textualism? Is it strict construction? Is it liberal? Is it 
conservative? Lo and behold, I have discovered the answer. It 
turns out that during the course of your time as a judge, you 
actually have written opinions, 573 to be exact, I think. Maybe 
I'm off by one or two. And they more or less express your view 
of the law as the facts are presented to you in each one of 
those cases, and then some 12,000 pages from the Sentencing 
Commission, transcripts of deliberations on important issues. 
For most of us as elected Senators, if people asked what's your 
philosophy, we'd point to our voting record. You have a record 
when it comes to court decisions, and this Committee for the 
4th time is delving into everything that you've published as a 
judge and even before.
    So would you like to comment at the outset, of those who 
are looking for a label, what your position is on judicial 
philosophy?
    Judge Jackson. Yes, thank you, Mr. Chairman. Over the 
course of my almost decade on the bench, I have developed a 
methodology that I use in order to ensure that I am ruling 
impartially and that I am adhering to the limits on my judicial 
authority. I am acutely aware that as a judge in our system, I 
have limited power, and I am trying in every case to stay in my 
lane. And so what I do is I essentially follow three steps.
    The first step is when I get a case, I ensure that I am 
proceeding from a position of neutrality. This means that, you 
know, I get a case, and it's about something, and it's 
submitted by certain parties. I am clearing my mind of any 
preconceived notions about how the case might come out. I'm 
setting aside any personal views. It's very important that 
judges rule without fear or favor. The second step is once I've 
cleared the decks, so to speak, in this way, I am able to 
receive all of the appropriate inputs for the case, that is, 
the parties' arguments. They've written briefs. Sometimes we 
have a hearing. Sometimes we hear from other parties, an amici 
in a case, and then there's the factual record. I am evaluating 
all of the facts from various perspectives. I think my 
experience--all of the various experiences that I've had really 
helps me at this stage to see the perspectives of all of the 
parties and to understand their arguments.
    And then the third step is the interpretation and 
application of the law to the facts in the case, and this is 
where I'm really observing the constraints on my judicial 
authority. There are many constraints in our system, 
importantly, because judges have limited authority. And so I 
am, first of all, looking at my jurisdiction, the threshold 
matter in every Federal case, to make sure that you even have 
the power to hear the case. In evaluating jurisdiction, you're 
looking at all sorts of things, the text of a jurisdictional 
provision, for example, precedent related to it.
    If I can get to the merits of the case if I have 
jurisdiction, then I am observing the limits on my authority 
concerning the question. So if it is a statute, for example, or 
a provision of the Constitution, I'm looking at the text. The 
adherence to text is a constraint on my authority. I'm trying 
to figure out what those words mean as they were intended by 
the people who wrote them. So at this point, I'm looking at 
original documents. I am focusing on the original public 
meaning because I'm constrained to interpret the text. 
Sometimes that's enough to resolve the issue in terms of the 
merits. Judges also look at history and practice at the time of 
the document was created. If it's a statute, I'm looking at 
Congress' purposes because, again, I am not importing my 
personal views or policy preferences. The entire exercise is 
about trying to understand what those who created this policy 
or this law intended.
    I'm also looking at precedent, which is another constraint 
on judicial authority. I am looking at prior cases and trying 
to understand what other judges have said. As a lower court 
judge, I'm bound by the precedent, and even in the Supreme 
Court, if I was fortunate to be confirmed, there is stare 
decisis, which is a binding kind of principle that the Justices 
look at when they're considering precedents. So all of these 
things come into play in terms of my judicial philosophy.
    Chair Durbin. Another issue which has come up, to my 
surprise, and I've spoken to my Republican colleagues about 
their fascination with it, is the notion of the composition of 
the Supreme Court, which euphemistically is referred to as 
court packing. I have said on the floor and I will repeat here, 
there is exactly one living Senator who has effectively changed 
the size of the Supreme Court. That was the Republican Leader, 
Senator McConnell, who shrank the Court to eight seats for 
nearly a year in 2016 when he blocked President Obama's 
nomination of Merrick Garland.
    Now, that question on court packing was posed to Amy Coney 
Barrett, a Justice on the Court, when she appeared before this 
Committee. She was asked about it. She said, and I quote, 
``could not opine on it.'' And on many other policy issues, 
then Judge Barrett said repeatedly she could not share her 
views, stating, and I quote, ``I will not express a view on a 
matter of public policy, especially one that is politically 
controversial, because that is inconsistent with the judicial 
role.'' I do believe we should have rules, and traditions, and 
precedents, but we shouldn't have a separate set of rules for 
Republican nominees than Democratic nominees.
    So, Judge Jackson, if a Senator were to ask you today about 
proposals about changing the current size of the Supreme Court, 
what would your response be?
    Judge Jackson. Senator, I agree with Justice Barrett in her 
response to that question when she was asked before this 
Committee. Again, my North Star is the consideration of the 
proper role of a judge in our constitutional scheme. And in my 
view, judges should not be speaking in--to political issues and 
certainly not a nominee for a position on the Supreme Court. So 
I agree with Justice Barrett.
    Chair Durbin. Let me address another issue that came up 
yesterday in the opening phase of this nomination hearing, and 
it's the issue involving child pornography. I want to turn to 
that issue because it was raised multiple times primarily by 
the Senator from Missouri. And it was--he was questioning your 
sentencing record in child pornography cases that do not 
involve the production of pornographic material. They're known 
as non-production cases. I wanted to put some context here. The 
Senator from Missouri has in his tweets said of your position 
on this issue, ``Judge Jackson has a pattern of letting child 
porn offenders off the hook for their appalling crimes, both as 
a judge and a policymaker. She's been advocating it since law 
school. This goes beyond soft on crime,'' the Senator said. 
``I'm concerned this is a record that endangers our children.''
    I thought about his charges as I watched you and your 
family listening carefully yesterday and what impact it 
might've had on you personally to know that your daughters, 
husband, parents, family, and friends were hearing the charges 
that your implementation of this law at sentencing endangered 
children. Could you tell us what was going through your mind at 
that point?
    Judge Jackson. Thank you, Senator. As a mother and a judge 
who has had to deal with these cases, I was thinking that 
nothing could be further from the truth. These are some of the 
most difficult cases that a judge has to deal with because 
we're talking about pictures of sex abuse of children. We're 
talking about graphic descriptions that judges have to read and 
consider when they decide how to sentence in these cases, and 
there's a statute that tells judges what they're supposed to 
do. Congress has decided what it is that a judge has to do in 
this and any other case when they sentence, and that statute--
that statute doesn't say look only at the guidelines and stop. 
The statute doesn't say impose the highest possible penalty for 
something this sickening and egregious a crime. The statute 
says calculate the guidelines, but also look at various aspects 
of this offense and impose a sentence that is ``sufficient but 
not greater than necessary to promote the purposes of 
punishment.''
    And in every case, when I am dealing with something like 
this, it is important to me to make sure that the children's 
perspective, the children's voices are represented in my 
sentencings. And what that means is that 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 into me as 
a judge. I tell them about the adults who are former child sex 
abused victims who tell me that they will never have a normal 
adult relationship because of this abuse. I tell them about the 
ones who say, I went into prostitution, I fell into drugs 
because I was trying to suppress the hurt that was done to me 
as an--as an infant.
    And the one that was the most telling to me that I describe 
at almost every one of these sentencings 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.
    I say to them that there's only a market for this kind of 
material because there are lookers that you are contributing to 
child sex abuse. And then I impose a significant sentence and 
all of the additional restraints that are available in the law. 
These people are looking at 20, 30, 40 years of supervision. 
They can't use their computers in a normal way for decades. I 
am imposing all of those constraints because I understand how 
significant, how damaging, how horrible this crime is.
    Chair Durbin. It is--it should be noticed as well that the 
cases which the Senator from Missouri referred to yesterday all 
resulted in incarceration of some magnitude. In one case, the 
Hillie case, I want to quote what you said on the record: 
``This family has been torn apart''--speaking to the 
defendant--``by your criminal actions. You saw it on the faces 
of those women. You heard it in their voices. And the impact of 
your acts on those very real victims who are still struggling 
to recover this day makes your crime among the most serious 
criminal offense this court has ever sentenced.'' And you 
imposed a sentence of 29-and-a-half years on that defendant, so 
the notion that you look at this casually or with leniency, as 
the Senator said, your record belies that.
    And, in fact, what we're dealing with here is an issue 
which even this Committee and Members on the Committee have 
been loath to address again. The original law was written at 
least 9 or 10--maybe longer--years ago, and the quantity of 
material was relevant to the sentencing. And now that we have 
computer access to voluminous amounts of material, it has 
raised questions, has it not, within the judiciary as to the 
appropriate sentencing in today's circumstances. This was a 
question that was raised before the Sentencing Commission, was 
it not?
    Judge Jackson. It was, Senator. The Sentencing Commission 
has written at least one report--it did when I was there--
looking at the operation of this guideline. As you said, the 
guideline was based originally on a statutory scheme and on 
directives--specific directives by Congress at a time in which 
more serious child pornography offenders were identified based 
on the volume, based on the number of photographs that they 
received in the mail. And that made totally--total sense before 
when we didn't have the internet, when we didn't have 
distribution. But the way that the guideline is now structured, 
based on that set of circumstances, is leading to extreme 
disparities in the system because it's so easy for people to 
get volumes of this kind of material now by computers. So it's 
not doing the work of differentiating who is a more serious 
offender in the way that it used to.
    So the Commission has taken that into account, and, perhaps 
even more importantly, courts are adjusting their sentences in 
order to account for the changed circumstances. But it says 
nothing about the court's view of the seriousness of this 
event.
    Chair Durbin. Judge, the--there have been several news 
organizations that have taken a look at the Senator from 
Missouri's charges. ABC News, CNN News, The Washington Post, 
and others have concluded that they are inaccurate and unfair 
to you in their conclusions. In fact, one writer has said they 
are meritless to the point of unacceptable levels.
    Nationally, in 2019, only 30 percent of non-production 
child pornography offenders received a sentence within the 
guideline's range. Fewer than 30 percent. Between 2015 and 
2020, in the D.C. District Court where you served, judges 
imposed below guideline sentences in non-production cases 80 
percent of the time for the reason you've just explained. 
Judges in Missouri, the home State of the Senator who's 
criticized your record, did so 77 percent of the time. One 
particular judge, whom the Senator supported to become a 
Federal judge by appointment of President Trump, unfortunately 
has a 77 percent record if--I'm sorry. I want to make sure that 
this accurate.
    Here it is. In United States v. Klotz, Trump-appointed 
judge, Sarah Pitlyk, the Senator's choice for the Eastern 
District of Missouri, sentenced an individual convicted of 
possession of child pornography to 60 months, well below the 
135- to 168-month sentence recommended by the guidelines. She 
appears to have run into the issue, the same challenge that you 
have described here. So going forward in terms of this issue, 
it seems that we at least share the burden, by your 
interpretation, as to define this statute in modern terms and 
in terms of technology as it exists today. Is that the way you 
see it?
    Judge Jackson. Senator, Congress is tasked with the 
responsibility of setting penalties. Congress tells judges what 
we're supposed to do when we sentence, and what I'd say is that 
Congress has to determine how it wishes for judges to handle 
these cases. But as it currently stands, the way that the law 
is written, the way that Congress has directed the Sentencing 
Commission appears to be not consistent with how these crimes 
are committed, and, therefore, there is extreme disparity, as 
you pointed out. There are judges who are varying because our 
ultimate charge from this body is to sentence in a way that is 
sufficient but not greater than necessary to promote the 
purposes of punishment.
    Chair Durbin. Judge Jackson, we've heard criticism from 
some of your previous work representing detainees at Guantanamo 
Bay. In fact, for years we've heard criticisms leveled against 
lawyers who have provided Guantanamo detainees with legal 
representation. This criticism misses one critical point. The 
right to counsel is a fundamental part of our constitutional 
system, even for the most unpopular defendants.
    I want to thank Senator Graham, who served as an Air Force 
lawyer for decades, for offering his perspective yesterday. He 
said, and I quote, ``The fact that you're representing Gitmo 
detainees is not a problem with me,'' Senator Graham said. 
``Everyone deserves a lawyer. You're doing the country a great 
service when you defend the most unpopular people.'' And then 
Judge Roberts said during his confirmation hearing, ``It is a 
tradition of the American Bar that goes back before the 
founding of the country that lawyers are not identified with 
the positions of their clients. The most famous example 
probably was John Adams,'' the Chief Justice said, ``who 
represented the British soldiers charged in the Boston 
Massacre. This sentiment is shared by lawyers across the 
political spectrum.''
    I want to give you an opportunity to address this issue 
because it applies not just to Gitmo detainees but to your work 
as a public defender in terms of the wisdom, acceptability of 
providing counsel in those cases, and what impact it's had on 
you personally in terms of your rulings on the bench.
    Judge Jackson. Thank you, Senator. September 11th was a 
tragic attack on this country. We all lived through it. We saw 
what happened, and there were many defenses, important 
defenses, that Americans undertook. There were Americans whose 
service came in the form of military action. My brother was one 
of those Americans--those brave Americans who decided to join 
the military to defend our country. There are others of you in 
this body who have military service, and I honor that, to 
protect our country. After 9/11, there were also lawyers who 
recognized that our Nation's values were under attack, that we 
couldn't let the terrorists win by changing who we were 
fundamentally. And what that meant was that the people who were 
being accused by our Government of having engaged in actions 
related to this, under our constitutional scheme were entitled 
to representation, were entitled to be treated fairly. That's 
what makes our system the best in the world. That's what makes 
us exemplary.
    I was in the Federal Public Defender's Office when the 
Supreme Court--excuse me--right after the Supreme Court decided 
that individuals who were detained at Guantanamo Bay by the 
President could seek review of their detention. And those cases 
started coming in, and Federal public defenders don't get to 
pick their clients. They have to represent whoever comes in, 
and it's a service. That's what you do as a Federal public 
defender. You are standing up for the constitutional value of 
representation.
    And so I represented, as an appellate defender, some of 
those detainees. In the early days, the legal landscape was 
very uncertain. This had never happened before, not only the 
attack, but also the use of Executive authority to detain 
people in this way, and there were a lot of questions that the 
Court was asking. The Supreme Court had taken a series of cases 
to try to understand what are the limits of Executive 
authority, which is important. All of our liberty is at stake 
if we don't get it right in terms of what the Executive can do. 
The Supreme Court has recently reaffirmed that the Constitution 
does not get suspended in times of emergency, and so lawyers 
were trying to help the Court to figure out--figure out what 
the Executive's power was in this circumstance. And as an 
appellate defender, I worked on the habeas petitions of some of 
these detainees.
    My petitions were virtually identical because we had very 
little information. Part of the issue at the very beginning of 
these cases was that most of the factual information was 
classified, so defense counsel were appointed to represent 
these defendants. We had no facts, and I was making legal 
arguments about the circumstances. That is what gave rise to my 
representation, and I would just emphasize that that's the role 
of a criminal defense lawyer. Criminal defense lawyers make 
arguments on behalf of their clients in defense of the 
Constitution and in service of the court.
    Chair Durbin. Judge Jackson, those of us who read about the 
workings of the Supreme Court realize it's a close relationship 
among the Justices. You've seen it personally as a clerk and as 
an attorney yourself. I'm going to close with one question here 
that comes to my mind. I was in the House of Representatives 
when the War on Drugs measure was passed 30 years ago or so. It 
was at the advent of crack cocaine. It scared the hell out of 
us. The notion of a cheap narcotic, highly addictive, 
destructive to mothers and their fetus, led us to impose a 
sentencing disparity between crack and powder cocaine that was 
unprecedented: 100-to-1. Our notion was to come down hard, make 
it clear that it was a Federal standard, impose that standard, 
and stop the advance of crack cocaine.
    We failed from the outset. The price of cocaine--crack 
cocaine on the street went down--up instead of down. I'm sorry, 
I did that wrong--down instead of up, and the number of users 
went up instead of down. And we found ourselves in a position 
where we were filling the Federal prisons with violations 
primarily for possession of crack cocaine, hundreds of 
thousands being incarcerated at the time.
    I came here to this Committee in an effort to try to change 
it. I negotiated a revision of that measure from 100-to-1 to 
18-to-1 with Senator Jeff Sessions. It was passed by the 
Committee, by the Senate, and by the House of Representatives, 
and signed into law by President Obama. Then you on the 
Sentencing Commission had to consider what to do with these new 
guidelines coming from Congress, and you achieved a consensus. 
I think most people don't realize the Sentencing Commission is 
a pretty diverse group and very transparent. Could you close in 
the last minute or so and tell me about that effort to find 
consensus on an issue that controversial?
    Judge Jackson. Yes, Senator. As you mentioned, the 
Sentencing Commission is a very diverse group of people who've 
been appointed by Presidents of different parties by law. And 
at the time that I was on the Commission, we had a range of 
people, judges from different backgrounds who had different 
views about the criminal justice system. But we had a directive 
from Congress insofar as Congress had changed the penalties, as 
you mentioned, related to crack cocaine. And so we worked 
together to make a determination about whether or not the 
guidelines needed to change, and, if so, whether or not to 
impose those changes retroactively in light of all of the 
evidence that you point out, all of the Congress' changes and 
the need to avoid unwarranted sentencing disparities, which is 
exactly the charge that this body has given to the Commission.
    And we worked together. We reached unanimous agreement that 
the change in the guidelines that was necessitated by the 
change in the statute should apply retroactively to people who 
had been convicted and sentenced under the prior regime. And 
then Congress followed shortly thereafter by making it a 
statutory change to apply those changes retroactively.
    Chair Durbin. Thank you, Judge Jackson.
    Senator Grassley.
    Senator Grassley. Thank you, Mr. Chairman. Welcome again to 
our Committee. I got home last night about 8 o'clock. The first 
thing I heard was my wife's opinion that you did very good in 
your opening statement.
    [Laughter.]
    Judge Jackson. Thank you.
    Senator Grassley. She didn't have anything to say about my 
statement.
    [Laughter.]
    Senator Grassley. Also, besides the fact that we might have 
some votes on the United States Senate, just so you know, I'm 
not being rude to you. I may have to go across the hall to the 
Finance Committee on some issues with tariffs and down to the 
Agriculture Committee for some issues on rural healthcare.
    Do you believe--well, let me ask it this way. Do the First 
Amendment free speech protections apply equally to conservative 
and liberal protesters?
    Judge Jackson. Yes, Senator.
    Senator Grassley. Okay. Do you believe the individual right 
to keep and bear arms is a fundamental right?
    Judge Jackson. Senator, the Supreme Court has established 
that the individual right to keep and bear arms is a 
fundamental right.
    Senator Grassley. Could you tell me how you might go about 
deciding what a fundamental right is under the Constitution?
    Judge Jackson. Well, Senator, I don't know that I can tell 
you that in the abstract in the sort of way that you may have 
posed the question. There is precedent in the Supreme Court 
related to various rights that the Court has recognized as 
fundamental. The Court has some precedents about the standards 
for determining whether or not something is fundamental. The 
Court has said that the Fourteenth Amendment Substantive Due 
Process Clause does support some fundamental rights, but only 
things that are implicit in the ordered concept of liberty or 
deeply rooted in the history and traditions of this country. 
They're the kinds of rights that relate to personal, individual 
autonomy, and they've recognized a few things in that category. 
And that's the tradition of the Court for determining whether 
something is fundamental in that way.
    Senator Grassley. Okay. On another subject kind of personal 
to me over a long period of time, about half on this Committee, 
but it's a controversial issue with--even within this 
Committee. I favor allowing Supreme Court hearings to be 
televised. What's your view on this? How would you feel about 
cameras in the courtroom, which about 40--50 or 40 or 45 of our 
States allow?
    Judge Jackson. Well, Senator, I would want to discuss with 
the other Justices their views and understand all of the 
various potential issues related to cameras in the courtroom 
before I took a position on it.
    Senator Grassley. I think that's a fair answer at this 
point. I'm going to ask you about a bill that I got passed a 
long, long time ago, and it's something that, at some level of 
the courts--sometimes the district court, sometimes the circuit 
court, and even if--once or twice at the Supreme Court--they 
tend--these courts tend to do damage to a bill called the False 
Claims Act. This bill has brought $70 billion of fraudulently 
taking money back into the Federal Treasury since it's been 
passed. And courts have weakened it, and then Senator Leahy and 
I usually find ourselves having to pass legislation to say to 
the courts, you got it wrong. In fact, there's a very 
controversial bill right now before the United States Senate on 
that very subject. It's fought fraud in the Department of 
Defense, healthcare industry, the pharmaceutical industry. 
Seventy billion dollars is pretty important. So when you get--
if you're approved to be on the Supreme Court and the issue of 
false claims comes up, I hope you think of Chuck Grassley.
    [Laughter.]
    Senator Leahy. You may reword that.
    [Laughter.]
    Senator Grassley. Well, and Leahy.
    [Laughter.]
    Senator Grassley. The False Claims Act is one of the best 
tools that we have to fight against Government fraud and to 
recover taxpayers' money. I've worked for decades to protect 
whistleblowers who shine a light on fraud, waste, and abuse in 
the Government. So I'd like to ask you a couple questions, and 
I'm going to start with a former Attorney General, unnamed, who 
once suggested that qui tam suits were, in his words, patently 
unconstitutional, and another word he used was ``dangerous.'' 
He argued that it violated the Appointments Clause. So 
understanding that you may get a case before you on the False 
Claims Act, but maybe if this Appointments Clause is sound 
enough, you could answer. Do qui tam suits violate the 
Appointments Clause?
    Judge Jackson. So, Senator, I am not familiar with that 
representation----
    Senator Grassley. Could you answer in writing then?
    Judge Jackson. Well, I'd be happy to do whatever. I'm just 
trying to assess the----
    Senator Grassley. I'm sorry. I shouldn't have interrupted 
you.
    Judge Jackson. No, that's all right. Sorry. I am trying 
to--I'm not familiar with the quotation or what the attorney 
may have said about them. I know that the Supreme Court has 
considered various qui tam actions and has issued opinions in 
the area, and has not, at least to date, found them to be 
unconstitutional. But I don't know if that issue has been 
squarely presented to the Court, and I would be loath to 
comment on it just because if it's being litigated, it's 
something I wouldn't be able to address.
    Senator Grassley. Yes. Let me on the same subject, also 
this former Attorney General also argued that qui tam suits 
also violate our broader separation of power principles. Are 
the--can you tell me whether you think the President's 
constitutional powers are violated when private citizens are 
allowed to sue in the name of the United States? And that's 
what qui tam suits are all about, private citizens going to 
court.
    Judge Jackson. Well, Senator, it's a--it is an important 
concern. There are statutes that do allow for the kinds of 
lawsuits that you are articulating. I am not aware of 
impediments to those, but, again, you know, this is the kind of 
thing that may be litigated, and I would have to look, as I do, 
consistent with my methodology, at any arguments that are 
raised about the constitutionality or lawfulness of those 
actions.
    Senator Grassley. Remember, in about all of these suits 
that involve the courts in making interpretations of the False 
Claims Act, most of them are brought by whistleblowers. And 
remember, the Government would not even know about these 
fraudulent uses of taxpayers' dollars without whistleblowers 
coming forth. And they ought to be given some credit for 
wanting the Government to do what the laws say it ought to do, 
and spend the money the way the Constitution or the Congress 
implies that that money be spent.
    I want to move on. At an event at the University of Chicago 
School of Law in 2020, you quoted Martin Luther King, Jr., who 
dreamt of a time when, ``the sons of former slaves and the sons 
of former slave owners would be able to sit down together at 
the table of brotherhood.'' You talked about how quickly things 
in the country then changed, including the civil rights laws 
over the next few years, because of the Civil Rights Movement. 
You added that, ``less than a decade after Dr. King's words 
that was the world that you inhabited. Dr. King hoped for a 
country where we would all be judged by the content of our 
character rather than our race.'' Do these quotes still reflect 
your views on this very important topic today?
    Judge Jackson. Yes, Senator. In that speech, I talked about 
my background, my upbringing, the fact that my parents, when 
they were growing up in Miami, Florida, attended and had to 
attend racially segregated schools because, by law, when they 
were young, white children and Black children were not allowed 
to go to school together. And my reality, when I was born in 
1970 and went to school in Miami, Florida, was completely 
different. I went to a diverse public junior high school, high 
school, elementary school, and the fact that we had come that 
far was, to me, a testament to the hope and the promise of this 
country, the greatness of America, that in one generation--one 
generation--we could go from racially segregated schools in 
Florida to have me sitting here as the first Floridian ever to 
be nominated to the Supreme Court of the United States. So, 
yes, Senator, that is my--that is my belief.
    Senator Grassley. And I think that it's good that the 
country had an opportunity to hear what you just told us about 
your experience.
    I'm going to go to something that the Chairman brought up, 
and I have written down the three point--three steps you go 
through.
    Now, another question but also one that he brought up was 
on court packing and your opinion. I heard what you said, and 
you said it should be a policy question, but I want to go to 
something in 2013 during your hearing to be a district court 
judge. Senator Coburn asked you whether you believed in the 
theory that the Constitution is a living document whose meaning 
evolves over time. You said ``no'' in 2021. However, during 
your circuit court nomination hearing, you declined to answer 
the same question. When asked why, the answer--when asked why 
the answer to your question of 2013 and not in 2021, and in 
written questions, you noted that you weren't a sitting judge. 
So please explain to me or describe for us the difference 
between ethical rules for sitting judges versus judicial 
nominees who are not already judges.
    Judge Jackson. Senator, I don't know that there are ethical 
rules that are different. What I'll say is, with respect to my 
approach to judging, there is not a label, I think, that fits 
what it is that I do and how I've approached my role. As I 
mentioned to the Chairman, I'm very acutely aware of the 
limitations on the exercise of my judicial power, and those 
limitations come in the form of adherence to the text when 
you--assuming you even get to that stage of the process, that 
you have--you have subject matter jurisdiction, you can reach 
the merits. Then you are looking at the text.
    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. Instead, 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 so I apply that constraint. 
I look at the text to determine what it meant to those who 
drafted it.
    Senator Grassley. On the same subject, I want to point out 
a difference between you and a couple people that have sat on 
the Supreme Court. Justice Breyer said that, ``A structural 
alteration of the Supreme Court, motivated by a perception of 
political influence, can only feed the perception of political 
influence''--that's my parenthetical--``further eroding that 
trust.'' Justice Ginsburg also cited court packing as being ``a 
bad idea.'' court packing is creating new seats for political 
purposes for a President to appoint more judges. Do you agree 
with Justice Breyer and Justice Ginsburg that court packing is 
a bad idea? Before you respond, I'd like to say that you say 
this question should be left to Congress as a policy issue. I 
reiterate that sitting Supreme Court Justices have spoken on 
that matter, so I don't think it'd be inappropriate for you to 
do if other people sitting there have said that it's a bad 
idea.
    Judge Jackson. Well, respectfully, Senator, other nominees 
to the Supreme Court have responded as I will----
    Senator Grassley. Okay.
    Judge Jackson [continuing]. Which is that it is a policy 
question for Congress. And I am particularly mindful of not 
speaking to policy issues because I am so committed to staying 
in my lane of the system, because I'm just not willing to speak 
to issues that are properly in the province of this body.
    Senator Grassley. Okay. Then I would interpret your answer, 
and you don't have to respond to this, but I think you're 
saying Breyer and Ginsburg should not have stated their views 
on that issue. During his opening statement yesterday, one 
Member of this Committee suggested that the Supreme Court has 
been bought by dark money groups. Do you agree that the Supreme 
Court has been bought by dark money groups?
    Judge Jackson. Senator, I don't have any reason to believe 
that that's the case. I have only the highest esteem for the 
members of the Supreme Court, whom I hope to be able to join if 
I'm confirmed, and for all of the members of the judiciary.
    Senator Grassley. Thank you for that answer. I'm going go 
to international law. During an ABA panel on international law 
last year, Justice Breyer said that as a Federal judge, ``You 
can't do your job properly'' without considering international 
law ``in some cases, and it's a growing number,'' and I assume 
a growing number of opportunities to use international law. In 
a 2018 op-ed, Justice Breyer said that, ``The best way to 
preserve American values may well be to take account of what 
happens abroad.'' Under what circumstances is it appropriate to 
consider international law when interpreting our Constitution?
    Judge Jackson. Thank you, Senator. I have nothing but the 
highest esteem and respect for my former boss, who I've spent 
the better past--the better part of the past couple decades 
calling, ``my Justice,'' having clerked for him, but I do think 
that the use of international law is very limited in our scheme 
and in our judging. There are certain cases in which it is 
relied upon where Congress directs or where the standards are 
such, the case involves a treaty, for example, and you have to 
interpret international law in order to be able to address it. 
But there are very, very few cases, I think, in which 
international law plays any role, and certainly not in 
interpreting the Constitution.
    Senator Grassley. I think you probably have answered my 
next two questions, but if you say you have nothing to add, I 
would still want to ask the questions. Do you think it's 
appropriate to look to international law when interpreting 
enumerated and unenumerat-ed constitutional rights?
    Judge Jackson. No, Senator.
    Senator Grassley. What specific--again, I think you've 
answered this, but I want to ask it anyway. What specific 
constitutional clauses or rights has the Supreme Court held 
that can be interpreted by looking to international law?
    Judge Jackson. I'm not aware of any that are properly 
illuminated by reference to international law.
    Senator Grassley. Yes. Now, I want to go to a question that 
Senator Durbin asked. I'll probably go a little more. But I 
remember when--this is about your judicial philosophy, and you 
made three points, three steps you take to go through a case 
and apply the law, and you say your methodology is limited 
power and stay within your lane. I'd like to ask you, well, 
you've served on the district court for several years and spent 
8 months on the D.C. Circuit. During yesterday's opening 
statement, we heard a lot about the importance of judicial 
philosophy. In your own words, you've described that, so you 
don't have to go through that again with me. But if Congress 
writes a law that does not explicitly allow private parties to 
sue, do you believe that the Federal courts have the authority 
to create implied causes of action? And I'd like to have you 
elaborate if you say ``yes'' to that.
    Judge Jackson. I would say that, as a general matter, no, 
Senator. I mean, our obligation as judges is not to create 
policy, and if Congress has enacted a statute that establishes 
a cause of action or restricts causes of action, then, as a 
general matter, I don't think that courts can impose one. Now, 
you know, I'm saying ``generally'' because there may be 
circumstances that I'm not thinking of. I know that the Supreme 
Court has, in very narrow circumstances, at times discussed 
implied causes of action, but I think the charge of the judge 
is to impose the law as written.
    Senator Grassley. There's 115 Justices that served before 
you. If you are approved by the Senate, is there any of them 
now or in the past that has a judicial philosophy that most 
closely resembles your own?
    Judge Jackson. You know, I haven't studied the judicial 
philosophies of all of the prior Justices. I will say that I 
come to this position, to this moment as a judge who comes from 
practice, that I was a trial judge and my methodology has 
developed in that context. I don't know how many other 
Justices, other than Justice Sotomayor, have that same 
perspective, but it informs me with respect to what I 
understand to be my proper judicial role.
    Senator Grassley. What aspect of your record as a judge do 
you believe has been the most important for the good of the 
country?
    Judge Jackson. Well, I think that all of my record is 
important to some degree because I think it clearly 
demonstrates that I'm an independent jurist, that I am ruling 
in every case consistent with the methodology that I've 
described, that I'm impartial. I don't think that anyone can 
look at my record and say that it is pointing in one direction 
or another, that it is supporting one viewpoint or another. I 
am doing the work and have done the work for the past 10 years 
that judges do to rule impartially and to stay within the 
boundaries of our proper judicial role.
    Senator Grassley. Let's go to immigration. Congress gave 
the Attorney General ``sole and unreviewable discretion'' to 
decide whether expedited removal would apply to ``an alien who 
has not been paroled or admitted to the United States.'' You 
decided a case called Make the Road New York where you seem to 
agree that Congress gave the Department of Homeland Security 
sole and unreviewable discretion to decide which illegal 
immigrants would be subject to expedited removal, but you still 
went on to review the Department's decision. In fact, you 
issued a nationwide injunction blocking the Department of 
Homeland Security from removing illegal immigrants who had been 
in the country for less than 2 years. In that hearing, you told 
us that if the text was clear, that ended the question. The law 
specifically says that Homeland Security, not the courts, was 
responsible for making the decision. Could you please explain 
why you believed a Federal court could review something 
Congress called unreviewable?
    Judge Jackson. Thank you, Senator, for allowing me to 
address that opinion and my analysis with respect to it. As you 
said, Make the Road was a case involving a challenge to 
expedited removal, which was a way in which Congress had given 
the authority to Homeland--to the Department of Homeland 
Security to make a decision about how to deport people who are 
non-citizens. Prior to the challenge that I heard, the 
Department of Homeland Security, since it received that 
authority several decades ago, had decided that people who are 
in this country for up to 14 days and are found within 100 
miles of the border are subject to expedited removal. The 
challenge that I heard involved the Department's sudden shift 
to a determination that expedited removal would be applied to 
anyone who is found anywhere in the country and who had been 
here up to 2 years.
    Importantly, the challenge was not about the actual 
determination. The challenge was about the procedures that the 
Agency undertook to make that determination. And so the statute 
said, as you rightly pointed out, that the Agency had sole and 
unreviewable discretion to decide. And in interpreting that, I 
took into account the language of that statute and the language 
of another statute that Congress has enacted to direct agencies 
with respect to the manner in which they exercise their 
discretion. So I said and I believed that ``sole'' meant that 
the Department of Homeland Security was the only agency who got 
to make this determination as to how many months a person 
should be in the United States, and ``unreviewable'' meant it 
was final. Once the Agency decided, then there was no ability 
to review substantively their determination.
    And I should say that, importantly, the statute that 
Congress enacted gave the Agency the discretion to make this 
determination between zero and 24 months. There's a limit in 
the statute. It says Congress, you--I mean, excuse me--
Department of Homeland Security, you get to decide where 
between zero and 24 months a person who's been in this country 
can be subject to expedited removal. So I read the statute. DHS 
gets the sole ability to make that decision. DHS makes that 
decision and it's final. What wasn't clear to me based on that 
language was whether Congress intended to preclude its 
procedural requirements for the exercise of Agency discretion.
    And in the D.C. Circuit, there was precedent that indicated 
that even when Congress gives a great deal of discretion to an 
agency, procedural requirements may still apply. It is 
presumptive that the APA applies, meaning that an agency can't 
act arbitrarily and capriciously when it undertakes to exercise 
discretion. It has to do certain things in order to make the 
determination that Congress has given it.
    Senator Grassley. Well----
    Judge Jackson. I looked at those statutes--oh, I'm sorry.
    Senator Grassley. No, no.
    Judge Jackson. I looked at those statutes, and I considered 
the canons of construction that say that statutes should be 
read harmoniously, that you're--that as a court, you're 
supposed to understand that Congress has directed, sometimes in 
more than one statute, what is supposed to happen. And so I 
read them together to mean that the court could still do what 
it almost always does in a case involving a challenge to the 
manner in which an agency makes its decision. And, in fact, I 
thought, as I say in my opinion, that Congress intended for the 
APA to apply because it had not excluded it, which it had done 
expressly in other parts of the--of the INA. It had not 
excluded it here, and it made sense to require the Agency to 
use its expertise.
    If Congress wanted the Agency to act arbitrarily in picking 
a number, Congress could've done that. Congress said you can do 
it up to 24 months. It could've randomly picked a number, but 
it was giving it to the Agency, I thought and reasoned, 
precisely because it wanted the Agency to use its expertise, to 
do its research, and to figure out what amount of time is 
sufficient. And so it was important, I thought, to lay that out 
in the statute, and I determined that both of those statutory 
directives of Congress should apply.
    Chair Durbin. Thank you, Senator Grassley.
    Senator Leahy.
    Senator Leahy. Thank you, Chair Durbin.
    Judge, congratulations again on your nomination to our 
Nation's highest court. You're an impressive jurist. I hope the 
broader public sees that, and I've enjoyed the opportunity to 
meet your family here yesterday.
    But I thought before I begin my questions, I was going to 
respond to something the junior Senator from Texas said 
yesterday. He suggested Democrats exacted a political agenda by 
opposing the nomination of then Judge Gorsuch to the Supreme 
Court. I kind of chuckle at that because, along with others, I 
and others repeatedly and clearly stated substantive concerns 
with Justice Gorsuch's nomination.
    I explained my votes on the record. There was no political 
agenda. I contrast that with Republicans' treatment of then 
Judge Merrick Garland. We're still waiting today for 
Republicans to explain on the record what kind of substantive 
concerns they had with Merrick Garland that they blocked him 
for over a year and would not allow--even allow a vote on his 
nomination apparently because of a politically driven agenda. 
All I'm saying is let's make history this week, but let's not 
rewrite it. This is a historical time.
    Judge Jackson, one of the topics we discussed in our 
meeting was our respective experiences, you as a former Federal 
public defender, myself as a prosecutor. As a Federal public 
defender here in Washington, you were assigned to and then 
represented clients who couldn't otherwise afford a lawyer.
    One of the valuable lessons I learned as a prosecutor was 
this. For our criminal justice system to function properly, you 
have to have skilled, dedicated lawyers on both sides of the 
issue, both the prosecutor and the defense attorney. It's 
equally essential for judges to have a nuanced and balanced 
understanding of our criminal justice system if we're going to 
have justice done.
    Now it's really concerning and it's confusing that some 
view your background as a Federal public defender as some kind 
of a liability. Those of us who have spent time in courtrooms 
know you have to have both a skilled prosecutor and a skilled 
defender. I believe that--in fact, I don't think of it as a 
liability. I think it's going to be a major asset to you, and I 
think it should be welcomed on the Supreme Court.
    In fact, if you're confirmed to the Court, as I look back 
over, you're going to be the first former Federal public 
defender on the Court. You're going to be the first nominee 
since Justice Thurgood Marshall with a significant background 
in criminal defense. That's pretty impressive. So all of us 
should want that represented on the Supreme Court because 
decisions on the Supreme Court can have a lasting impact on our 
criminal justice system.
    My question is this. I believe that your experience as a 
Federal public defender has made you a better judge, helped you 
maintain impartial and balanced perspective in criminal and 
other cases. And I assume you would agree with that?
    Judge Jackson. Yes, Senator.
    I think that experience in the criminal justice system, 
whether, as you say, on the prosecution side or the defense 
side, having actual experience is an asset as a judge. You 
understand the way the system works. And as a defense 
counselor, you have interacted with defendants in a way that, 
as a judge--at least as a trial judge--I thought was very 
beneficial.
    One of those ways is it helped me to develop a sense of the 
need to communicate directly with defendants, and you know, it 
didn't change, I think, in any way the outcomes of the cases 
when I was a trial judge. But I understood from my time as an 
appellate defender that a lot of defendants go through the 
system and don't really understand it.
    And the problem with that from our society's standpoint is 
that when people go through the criminal justice system and 
don't have a good understanding, they tend to not take 
responsibility for their own actions. They tend to be bitter 
and feel as though the justice system has wronged them. And so 
while they're doing their time, rather than reflecting on the 
fact that this is the consequence that they have to face for 
actually committing a crime, instead of doing the work to 
rehabilitate themselves, they're, you know, focusing on how 
wronged they are, how victimized they feel.
    And so what I decided as a trial judge was that I was going 
to make sure that everyone who was in my courtroom, and 
especially the defendant, understood all of the procedures that 
we were going through, all of the steps. I spoke directly to 
them. I asked them, ``Do you understand what's happening? '' 
because I wanted them to know.
    And then, even perhaps more importantly, as I said about my 
child pornography cases, I focused on the harms of the behavior 
that was at issue. When I sentenced a defendant, I made clear 
in every case here is the problem. This is what you've done. 
Here is the damage to our society. And I don't know that I 
would have done that if I had not been a criminal defense 
lawyer.
    Senator Leahy. Well, that's sort of what I was getting to, 
the fact that you have that experience. Also it's obvious you 
don't get--as a public defender, you don't get the right to--
you don't get to choose your clients. It's not like you're 
going out there picking and choosing. You're told you're going 
to defend this person.
    But they're given that right under the Sixth Amendment, and 
we all--if you're a member of the bar or a judge or a public 
defender, you take an oath to uphold the Constitution, and the 
Sixth Amendment is a pretty important part of it, wouldn't you 
say?
    Judge Jackson. Absolutely, Senator.
    Senator Leahy. And it's also a pretty important part for 
indigent defendants. Is that not correct?
    Judge Jackson. That is correct, especially for indigent 
defendants because they are determined to not be able to afford 
counsel. And as you said, Senator, for a judge, it is crucial 
that you have arguments that are being made and presented on 
both sides of the issue. That is what allows for judges to 
reach just results in cases, and it's what makes our system so 
exemplary.
    Senator Leahy. And it also guarantees that our Constitution 
is going to be followed.
    I think it's important you went around with Senator Doug 
Jones, who is highly respected in the Senate on both sides of 
the aisle, but you got to meet other Senators. I was delighted 
you came to spend time in my office, and you noted in your 
public remarks at the White House when you were nominated that 
you have been--your parents are married for 54 years and both 
public servants in their own right, and they were proudly 
watching you being announced by the President. And I must admit 
to watching them the last couple of days, they're proudly 
watching you here, as are other members of your family.
    Your younger brother became a police officer, a detective 
in Baltimore, before serving in the Army. Two tours of duty in 
the Middle East. Two uncles have served as police officers.
    So I'm not really surprised that you understand law 
enforcement. The National Fraternal Order of Police has 
expressed strong support for your nomination. In fact, in their 
letter dated February 25, 2022, they said you have ``considered 
the facts and applied the law consistently and fairly on a 
range of issues.'' And they went on to say there is little 
doubt that you have ``the temperament, intellect, legal 
experience, and family background to earn this appointment.''
    And they added, ``We are reassured that, should she be 
confirmed, she would approach her future cases with an open 
mind and treat issues related to law enforcement fairly and 
justly.''
    Chair Durbin, I'd ask consent that the letter from the 
Fraternal Order of Police be included in the record at this 
point.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Leahy. Now that's a statement from the largest law 
enforcement labor organization in the United States. What do 
you say to people who say you're soft on crime or even anti-law 
enforcement because you accepted your duties as a public 
defender?
    Judge Jackson. Thank you, Senator.
    I would make--I'd make three observations in response to 
those critiques. The first is that as someone who has had 
family members on patrol and in the line of fire, I care deeply 
about public safety. I know what it's like to have loved ones 
who go off to protect and to serve and the fear of not knowing 
whether or not they're going to come home again because of 
crime in the community.
    As you said, my brother--my brother patrolled the streets 
of Baltimore, and I had two uncles who were career law 
enforcement, including one who became the chief of police of 
the City of Miami Police Department in the 1990s. So crime and 
the effects on the community and the need for law enforcement, 
those are not abstract concepts or political slogans to me.
    The second observation that I would make is that as a 
lawyer and as a citizen, I care deeply about our Constitution 
and about the rights that make us free. As you say, criminal 
defense lawyers perform a service, and our system is exemplary 
throughout the world precisely because we ensure that people 
who are accused of crimes are treated fairly. It's very 
important to me in that capacity, as a lawyer and as a citizen.
    Senator Leahy. And I----
    Judge Jackson. Oh, I'm sorry. I was just going to say the 
third thing I would say is, is as a judge. As a judge, I care 
deeply about the rule of law, and I know that in order for us 
to have a functioning society, we have to have people being 
held accountable for committing crimes, but we have to do so 
fairly under our Constitution.
    As a judge who has to decide how to handle these cases, I 
know it's important to have arguments from both sides, to have 
competent counsel. And it doesn't mean that lawyers condone the 
behavior of their clients. They're making arguments on behalf 
of their clients in defense of the Constitution and in service 
of the court. And it is a service.
    Senator Leahy. I know in our conversation, I mentioned my 
own experience as a prosecutor. I wanted the best defense 
attorney on the other side because you want to make sure that 
as the trial went on, everything was done properly.
    And let's talk about Guantanamo Bay. Controversial. And 
we've had two Presidents, one Republican and one Democrat, who 
said they wish it could be closed. But the fact is individuals 
were detained there. The whole world was watching this.
    We--I know I heard from people I respect throughout the 
world, asking questions about Guantanamo, and that's precisely 
the situation we want our best and our brightest lawyers to 
step into the fray. However politically controversial, we have 
to make sure that we do not become unmoored from our core 
commitments to the rule of law, but that also both in our own 
country and outside our country, people can see that we're 
following that.
    So you were in private practice when you took on these 
cases. Uncharted legal waters, war. What principles drove you 
to get involved with cases in such a difficult time in 
Guantanamo Bay?
    Judge Jackson. Well, thank you, Senator.
    And I do want to clarify, when I first started working on 
these cases, I was an Assistant Federal Public Defender. The 
Supreme Court in 2004 issued two opinions that began this group 
of cases and these issues, and this was in the wake of the 
tragic and terrible attack on this country in 9/11 and the 
Executive's use of authority to detain enemy combatants at 
Guantanamo Bay.
    In 2004, the Supreme Court ruled that the Executive did 
have the authority to make those detentions in one case, and 
then in another case, the Supreme Court ruled that anyone so 
detained could file a legal challenge. They had habeas rights. 
And as you know, habeas is in the Constitution.
    In 2005, I joined the Federal Public Defender's Office, and 
those cases started coming in, the requests from detainees 
asking for legal representation, consistent with our 
constitutional scheme, to have help to file their habeas 
petitions. This was very early in the days of these kinds of 
legal actions. There was a lot unknown about what these 
petitions could look like, what arguments could be made and 
considered by the Court, and perhaps most importantly, what the 
facts were related to any of these individuals because almost 
everything was classified. So defense counsel was getting these 
people in with no information.
    I was in the appellate division of my office, and as an 
appellate defender, I worked on legal issues. I was paired with 
my--I was assigned by the Federal Public Defender, I was an 
Assistant Federal Public Defender, and I was paired with a 
trial defender who attempted to do the fact gathering, who 
traveled to Guantanamo Bay. I never traveled there or anything 
like that. I worked on the law.
    And as you noted, the law was very uncertain. This was 
brand new, and people were trying to figure out what are the 
limits of Executive authority in this context. We knew that the 
Constitution was not suspended even though we had this 
emergency. So what did that mean with respect to these 
individuals?
    I filed--as a Federal public defender, I was assigned to 
work on four cases, and I filed almost identical petitions 
because what you're doing, especially when you have no facts, 
is just preserving legal arguments for your clients. That is 
consistent with what lawyers do.
    And then you mentioned private practice. So I went into 
private practice in I believe it was 2007, and by that time, 
lots of private practices around the country had started taking 
on these cases because there were lots of people who needed 
representation. And so pro bono practices were receiving 
requests, usually through nonprofits. And one of the 
individuals that I had represented as a defender ended up being 
assigned to my firm, unbeknownst to me.
    So I arrive at my firm, and the partners realized that this 
same person was someone that, according to the docket, I had 
previously represented, and they asked if I would review some 
of his materials and continue the representation. That was the 
only person that I represented in the context of my private 
firm who was a detainee.
    I worked on a couple of habeas briefs for judges and for a 
variety of nonprofits, including the Rutherford Institute, the 
Cato Institute, and the Constitution Project, who were all 
interested in making arguments to the Supreme Court that was 
considering these very novel legal issues.
    Senator Leahy. You know, I sit here and I think of the 20 
Supreme Court nominees that I've gotten to vote on over my 
years here, and I think of the remarkable praise you got from 
former Republican House Speaker Paul Ryan, who most of us know 
well. He did mention his politics may be different than yours, 
but his praise for your intellect, for your character, for your 
integrity, is unequivocal.
    That's powerful praise, and I think it goes to a really 
fundamental point, and that's this. One doesn't have to have 
the same political beliefs or ideologies as a judicial nominee 
to recognize their integrity and intellect.
    When I voted to confirm Chief Justice John Roberts to the 
Supreme Court, I cast that vote knowing very well that he and I 
would disagree on many policy and political issues. But I voted 
yes because I believed that he had what it takes to serve as an 
impartial, fair Chief Justice who would uphold the rule of law, 
and I wanted to take it out of partisan politics.
    Now what would you say to people whose politics may be 
different than yours, like Speaker Ryan, who has endorsed you? 
What would you say to those people about your readiness to 
serve as an even-handed, unbiased Supreme Court Justice?
    Judge Jackson. Thank you, Senator.
    I would say that I am committed to serving as an even-
handed Supreme Court Justice, if I am confirmed by this body. 
And I have a record over the past decade that's precisely how 
I've treated all of my cases, and I've been serving in the 
District of Columbia both as a trial judge and as an appellate 
judge, and we see some of the most politically contentious 
issues. My record demonstrates my impartiality.
    Senator Leahy. Well, I'd go along with that because I've 
watched this court. I used to go there as a young law student, 
sit in the back, and just watch it. I have continued to watch 
it. I see the chief judge of the Federal district court, Judge 
Beryl Howell, who I was privileged to have her serve as my 
chief counsel on this Committee, and learned from her then. I 
learn from her now.
    But I also, as a lawyer, I hear a lot of talk about 
reversal rates. Now no judge goes without being reversed 
somewhere. If they're never reversed, they haven't heard many 
cases. But your time in the D.C. District Court, less than 2 
percent of your more than 550 cases were reversed.
    Considering the fact that the D.C. Circuit reverses an 
average of 13 percent of the cases it hears, you've got a 
pretty good record. But what does a judge who's been reversed, 
what do they take from that reversal? What do they--what do 
they or what should they think about it?
    Judge Jackson. Well, you obviously look at it very 
carefully. What it means is that a panel of judges who've 
reviewed what you determined for some reason has decided 
differently. And there are times when panels of judges decide 
differently because they are making a new statement about the 
law or they're establishing a standard that had not previously 
been the case in the area, and so you learn, oh, this is a new 
standard now that I need to apply.
    There are times when you disagree, that people can disagree 
about the way in which the law works, and that's why we have 
panels. Because people have different--judges can have 
different perspectives and in good faith reach different 
results.
    And so, obviously, when you're on the trial court, the 
court of appeals is binding, and they tell you in this case, 
no, we're going--the result is something different, and so you 
learn.
    Senator Leahy. You know, any time I had an opportunity to 
argue a case at an appellate level, I don't think I ever 
thought about who nominated or appointed the judges I was 
before. I'd just want to know--I would think about their 
experience, and I would think about that when I made the 
argument.
    Now I don't think I've ever had the opportunity to argue 
before anybody who had your breadth of legal experience. You 
served as a Federal trial court, a Federal appellate court 
judge for almost 10 years. You clerked at all three levels of 
the Federal judiciary. You practiced law as a Federal public 
defender, in private practice, and I know we confirmed you as a 
member of the U.S. Sentencing Commission.
    This may seem like an easy question, but I just ask you 
that you've had such broad experience, but they're all 
different in a way. How does that shape your approach when 
deciding a case?
    Judge Jackson. Well, thank you, Senator.
    As I mentioned at the beginning, I have a methodology that 
I apply when I'm deciding cases, and maybe my various 
experiences helped me to get to the point of understanding the 
importance of impartiality, staying in my lane as a judge 
because the prior experiences were different roles in the 
system. Because I saw the different roles, I think I have a 
good appreciation of what it means to be a judge and the 
limitations on my own authority.
    The Sentencing Commission was a policymaking branch of the 
judicial branch. The Commission and the commissioners developed 
sentencing policy. Congress delegated that authority to create 
the Commission, and so they're doing the policy work, gathering 
data, making recommendations. That is totally different than 
the work that I do as a judge.
    Advocacy on behalf of your clients, making critical 
arguments, the best arguments you can come up with is a service 
to the court, but it's a totally different thing than operating 
as a judge. And so I think that having had those various 
experiences, I'm now really mindful of my role and limitations 
in the judicial branch.
    Senator Leahy. Well, and the President referred to you as a 
proven consensus builder, and I think he was also thinking of 
your predecessor, Justice Breyer, in that regard. And I think 
over the years how important that is, even in a body like the 
U.S. Senate. I see Senator Tillis here. He and I have worked 
together on IP issues. Senator Cornyn and I on freedom of 
information issues. Senator Grassley and I on other issues. 
Senator Graham and I on various issues.
    And usually, in the Senate at least, if you work across the 
ideological spectrum, you get better results. So let me ask 
you. How would you describe your approach to building consensus 
on cases related to issues like intellectual property that are 
less likely to break along traditional ideological lines?
    Judge Jackson. Thank you. Thank you, Senator.
    One of the things that I was able to do when I worked on 
the Sentencing Commission was work with people who had very 
different perspectives than I did about the criminal justice 
system and come to consensus. It's very important, as you said, 
to try to find common ground. And Justice Breyer was such a 
wonderful model, a role model, for that kind of ability as a 
Supreme Court Justice. It's something I learned from him and 
something I tried to model in my work on the Commission, that I 
try to model in my work as an appellate judge, and that I would 
model or do if I were confirmed to the Supreme Court.
    Senator Leahy. Thank you, Chair Durbin.
    Chair Durbin. Thank you, Senator Leahy.
    And now Senator Graham.
    Senator Graham. Thank you.
    Judge, again, congratulations. I want to talk to you a 
little bit about family and faith because in your opening 
statement and the people who introduced you to the Committee, 
there was very glowing praise of you as a person, a good 
friend. You have a wonderful family. You should be proud. And 
your faith matters to you.
    What faith are you, by the way?
    Judge Jackson. Senator, I am Protestant.
    Senator Graham. Okay.
    Judge Jackson. Nondenominational.
    Senator Graham. Okay. Could you fairly judge a Catholic?
    Judge Jackson. Senator, I have a record of fairly----
    Senator Graham. I think the answer would be yes.
    Judge Jackson [continuing]. Judging everyone.
    Senator Graham. I believe you can. I'm just asking this 
question because how important is your faith to you?
    Judge Jackson. Senator, personally, my faith is very 
important. But as you know, there's no religious test in the 
Constitution under Article VI and----
    Senator Graham. There will be none with me.
    Judge Jackson. And it's very important to set aside one's 
personal views----
    Senator Graham. Yes.
    Judge Jackson [continuing]. About things in the role of a 
judge.
    Senator Graham. I couldn't agree with you more, and I 
believe you can. So on a scale of 1 to 10, how faithful would 
you say you are in terms of religion? You know, I go to church 
probably three times a year. So that speaks poorly of me. Or do 
you attend church regularly?
    Judge Jackson. Well, Senator, I am reluctant to talk about 
my faith in this way just because I want to be mindful of the 
need for the public to have confidence in my ability to 
separate out my personal views.
    Senator Graham. Well, how would you feel if a Senator up 
here said your faith, the dogma lives loudly within you, and 
that's of concern? How would you feel if somebody up here on 
our side said, you know, you attend church too much for me, or 
your faith is a little bit different to me, and they would 
suggest that it would affect your decisions? Would you find 
that offensive?
    Judge Jackson. Senator, I'm--I'm----
    Senator Graham. I would, if I were you. I found it 
offensive when they said it about Judge Barrett.
    The reason I ask these questions is I have no doubt that 
your faith is important to you, and I have zero doubt that you 
can adjudicate people's cases fairly if they're an atheist. If 
I had any doubt, I would say so.
    But the only reason I mention this, Judge, you're reluctant 
to talk about it because it's uncomfortable. Just imagine what 
would happen if people on late-night television called you an 
``effing nut speaking in tongues'' because you've practiced the 
Catholic faith in a way they couldn't relate to or found 
uncomfortable.
    So, Judge, you should be proud of your faith. I am 
convinced that whatever faith you have and how often you go to 
church, it will not affect your ability to be fair. And I just 
hope going in the future that we all can accept that and that 
Judge Barrett, I thought, was treated very, very poorly. So I 
just wanted to get that out.
    Let's talk about family. Do you know Janice Rogers Brown?
    Judge Jackson. Yes, I do know her.
    Senator Graham. How do you know her?
    Judge Jackson. She was a judge on the court that I now 
serve. We didn't overlap, and I'm struggling to remember 
whether I ever met her. But she was a judge on the circuit 
court.
    Senator Graham. Right. And you were a district court judge. 
Is that right?
    Judge Jackson. I was, but I don't know whether she had 
retired----
    Senator Graham. I think you were. Are they in the same 
building?
    Judge Jackson. They are in the same building.
    Senator Graham. Okay.
    Judge Jackson. They are in the same building.
    Senator Graham. So you really don't know her?
    Judge Jackson. I know of her, yes.
    Senator Graham. Okay. What do you know of her? What's her 
reputation?
    Judge Jackson. I know that she's a very well-respected 
judge on my circuit.
    Senator Graham. Okay. And in terms of family, she is the 
daughter and granddaughter of sharecroppers. She was raised in 
Alabama under Jim Crow. Despite this adversity, she put herself 
through law school as a single working mother. That's pretty 
impressive, isn't it?
    Judge Jackson. Yes, Senator.
    Senator Graham. Your background is very impressive. You 
seem to have a great family. If family mattered, we would not 
have done to her what was done to her here in the United States 
Senate. Do you realize that she was filibustered for 2 years 
when she was appointed to the D.C. Circuit?
    Judge Jackson. I didn't know that.
    Senator Graham. Did you know that Joe Biden actively 
filibustered Janice Rogers Brown?
    Judge Jackson. I did not know that.
    Senator Graham. Did you know that he told Face the Nation 
if Bush nominates her for the Supreme Court, ``I can assure you 
that would be a very, very, very difficult fight, and she 
probably would be filibustered.'' Is that news to you, too?
    Judge Jackson. Yes.
    Senator Graham. Okay. Now that you know that, how do you 
feel about it?
    Judge Jackson. Senator, I can't speak to something that I 
just learned 2 seconds ago in your conversation with me.
    Senator Graham. Okay, fair enough. Fair enough.
    You were in the Black Law School Society, right?
    Judge Jackson. The Black Law Students Association.
    Senator Graham. Okay, okay. Black Law Students Association.
    Judge Jackson. Yes.
    Senator Graham. You were a member at Harvard?
    Judge Jackson. Yes.
    Senator Graham. And sometime, the Mr. Jeffries thing, do 
you remember that whole dust-up? He got----
    Judge Jackson. Only in preparation for this, and I think I 
was in college at the time. It was my senior year of college.
    Senator Graham. Okay. So you weren't actually in the group 
when he was invited to speak?
    Judge Jackson. I don't know which group invited him to 
speak. I was a Black student at Harvard, both in the Harvard 
undergraduate Black Students Association and the Harvard Law 
School Black Students Association.
    Senator Graham. Right. Do you remember going to a speech 
given by Mr. Jeffries? I think he's the uncle of Hakeem 
Jeffries.
    Judge Jackson. I did not go to a speech given by Mr. 
Jeffries.
    Senator Graham. Okay. Are you now familiar with the press 
reports about what Mr. Jeffries' views are?
    Judge Jackson. Just in preparation for this.
    Senator Graham. Okay. And do you associate yourself with 
those views?
    Judge Jackson. I do not, Senator.
    Senator Graham. As a matter of fact, he's been called by 
many as very anti-Semitic. He called Jews, ``skunks who stink 
up the place.'' You don't agree with that, do you?
    Judge Jackson. I do not, Senator.
    Senator Graham. And it would be wrong for me or anybody 
else to hold his statement against you because he spoke at some 
group you're a member of, right?
    Judge Jackson. Senator, I don't have--yes, it would.
    Senator Graham. It would be. Yes, that's right. That's the 
right answer. I thought that was the right answer with Judge 
Alito, when they made a big deal about some group he was in 
that had views that he didn't agree with and tried to call him 
basically a racist and found out that Senator Kennedy, God rest 
his soul, would beat the crap out of a guy for being part of 
some supper club that was actually in some organization called 
the Owl that didn't admit women.
    So I guess the reason I'm bringing all this up is it gives 
me a chance to remind this Committee and America there are two 
standards going on here. If you're an African-American 
conservative woman, you're fair game to have your life turned 
upside down, to be filibustered, no matter how qualified you 
are. And if you express your faith as a conservative, all of a 
sudden, you're an ``effing nut.'' And we're tired of it, and 
it's not going to happen to you.
    But it just appalls me that we can have such a system in 
America that if a conservative woman wants to stand out and say 
I love my family just as much as you love yours, and my faith 
means just as much to me as it does you, then all of a sudden, 
they're some kind of weirdo.
    And a guy like Justice Alito, who was in the same type 
situation you're in, being in a group, doesn't agree with 
everything they do or what people may say at a meeting he 
didn't go to, all of a sudden, they're on it. This stuff needs 
to stop. Our people deserve better respect, and I hope when 
this is over, people will say you were at least well treated, 
even if we don't agree with you.
    So now let's talk about Gitmo. Being a public defender, did 
you consider that rewarding?
    Judge Jackson. Senator, yes, I did. Because public service 
is very important to me. It is an important family value. It is 
something that now I've dedicated my career to.
    Senator Graham. Yes. And do you think it's important to the 
system that everybody be represented?
    Judge Jackson. Absolutely. It's a core constitutional 
value.
    Senator Graham. You'll get no complaint from me. That was 
my job in the Air Force. I was an area defense counsel. I 
represented anybody that came in the door. Whether I liked them 
or not, I did my best. Is that what you did?
    Judge Jackson. Yes, sir.
    Senator Graham. Okay, good. Now, so the American people 
deserve a system where everybody is represented whether you 
like them or not, and anybody who takes up that cause, no 
problem with me. You're just doing your job, and I think you 
make our country stronger.
    But there's the other side of the story that never gets 
mentioned when I talk about Gitmo. The American people deserve 
a system that can keep terrorists off the battlefield. They 
deserve a system that understands the difference between being 
at war and a crime.
    Do you consider 9/11--you said ``a terrible, tragic 
event.'' Would you consider it an act of war?
    Judge Jackson. Yes, Senator.
    Senator Graham. Okay, I would, too. I think that it was an 
act of war by al-Qaeda and associated groups against the people 
of the United States. So as you rightfully are proud of your 
service as a public defender and you represented Gitmo 
detainees, which is part of our system, I want you to 
understand and the Nation to understand what's been happening 
at Gitmo.
    What's the recidivism rate at Gitmo?
    Judge Jackson. Senator, I'm not aware.
    Senator Graham. It's 31 percent. How does that strike you? 
Is that high, low, about right?
    Judge Jackson. Any--I don't--I don't know how it strikes 
me. Overall----
    Senator Graham. You know how it strikes me? It strikes me 
as terrible.
    Judge Jackson. Yes, that's what I was going to say.
    Senator Graham. Okay, good. We found common ground. Of the 
229 detainees released from Gitmo--729 released, 229 have gone 
back to the fight. Here are some of the notables.
    Former Gitmo detainee Zakir was named the Interim Defense 
Minister of Afghanistan. I don't know exactly what his job is 
today, but during the transition, they made him the defense 
minister, and he was in Gitmo.
    Of the five men we released from Gitmo as part of the 
prisoner swap for Sergeant Bergdahl, here's where they're at. 
Mohammed Fazl was appointed Deputy Minister of Defense. Noori 
was appointed Acting Minister of Borders and Tribal Affairs. 
Wasiq was appointed as Acting Intelligence Director. Khairkhwa, 
Acting Minister of Information and Culture Defense. Omari was 
appointed as the new Governor of the southeastern province of 
Khost.
    These were five people that we had in our control that are 
now helping the Taliban run the country. Would you say that our 
system in terms of releasing people needs to be relooked at?
    Judge Jackson. Senator, what I'd say is that that's not a 
job for the courts in this way. That----
    Senator Graham. As an American, does that bother you?
    Judge Jackson. Well, obviously, Senator, any repeated 
criminal behavior or repeated attacks, acts of war, bother me 
as an American.
    Senator Graham. Well, it bothers me. While I will not hold 
it against you, nor should I, the fact that you represented 
Gitmo detainees, I think it's time to look at this system anew, 
folks. When 31 percent of the people are going back to fight, 
to kill Americans, and are now running the Taliban government, 
we have gone wrong somewhere.
    Are we still at war?
    Judge Jackson. So the AUMF, the authorization for military 
force, is still in effect. Congress has authorized the use of 
force against people in this way.
    Senator Graham. But do you personally believe that al-
Qaeda, ISIS-type groups are still at war with us?
    Judge Jackson. I think--yes. I mean, I think we----
    Senator Graham. So we're still in a state of war with 
certain elements of radical Islam to this very day?
    Judge Jackson. I believe that's documented, yes.
    Senator Graham. Okay. Now what's the process to determine 
whether one is an enemy combatant under our law?
    Judge Jackson. Well, I believe that the executive branch 
makes an assessment of whether or not someone has taken up arms 
against the United States somewhere in the world related to all 
of this.
    Senator Graham. Okay. So it's an executive branch function 
to determine whether or not this person qualifies as an enemy 
combatant?
    Judge Jackson. Well, I believe that they make a----
    Senator Graham. Under current law?
    Judge Jackson. Under current law, I believe that 
determination is made by the executive branch, and the person 
is put into--is detained. And then the question becomes whether 
they are able to bring some sort of legal challenge to that 
determination.
    Senator Graham. They have a habeas right?
    Judge Jackson. Yes.
    Senator Graham. Okay. So the law is that the executive 
branch determines if you're an enemy combatant, and under our 
law, you can appeal that decision to a Federal court through 
habeas. Is that correct?
    Judge Jackson. I believe that's correct.
    Senator Graham. Okay. Is it your view that we can hold 
enemy combatants as long as they're a threat to the United 
States?
    Judge Jackson. I believe that's what the Supreme Court has 
determined.
    Senator Graham. Okay. Did you argue that that should not be 
the case before in an amicus brief?
    Judge Jackson. I'm trying to think--I had two amicus briefs 
that I worked on, or three, technically, but two different 
cases.
    Senator Graham. We'll have another visit tomorrow.
    Judge Jackson. Yes.
    Senator Graham. Go back and check.
    Judge Jackson. Yes.
    Senator Graham. I'm pretty sure that in your brief, you 
argued that the executive branch should not have the ability to 
hold an enemy combatant indefinitely. You need to try them 
through some process or release them.
    Judge Jackson. Yes, Senator. As you were talking, my 
clients--the Cato Institute, the Rutherford Institute, and the 
Constitution Project--made that argument and asked me to draft 
their brief.
    Senator Graham. Yes. Well, do you agree with that argument?
    Judge Jackson. Senator, my responsibility was to make my 
clients' arguments. And as a nominee to the Supreme Court, 
that's the kind of issue the Supreme Court did not address that 
issue. They, in fact--the case became moot. So----
    Senator Graham. Did you organize an effort to get 20 judges 
to file a brief to the Supreme Court on this issue?
    Judge Jackson. Not on that issue. No, Senator.
    Senator Graham. On another issue?
    Judge Jackson. Yes, Senator.
    Senator Graham. Okay. Did you actively go out and recruit 
20 judges to help you file a brief on another issue regarding 
law of war detention?
    Judge Jackson. Not technically.
    Senator Graham. What do you mean by that?
    Judge Jackson. What I mean is that I was at Morrison & 
Foerster, which was my law firm, in the Supreme Court and 
appellate group. One of the partners at Morrison & Foerster was 
a former Federal judge who wanted to make this argument and who 
said we--I have former Federal judges who are friends of mine 
who would like to join with me to make this argument. So I 
worked with her, the partner at my firm who was a former 
Federal judge, to make----
    Senator Graham. So it was her idea to get former judges to 
write this, not yours?
    Judge Jackson. Yes. Yes.
    Senator Graham. And you just helped in the implementation 
of that idea?
    Judge Jackson. So, Senator, as a member of the Supreme 
Court and appellate group in a law firm that is the practice.
    Senator Graham. Right. No, I'm asking----
    Judge Jackson. Amicus practice, yes.
    Senator Graham [continuing]. It wasn't your idea. It was 
somebody else's?
    Judge Jackson. Yes.
    Senator Graham. Okay. So now there are people still held at 
Gitmo today. Do you understand that?
    Judge Jackson. Yes.
    Senator Graham. Okay. What system is in place regarding 
their future?
    Judge Jackson. I am not aware of the system right now. I'm 
not sure exactly what you mean.
    Senator Graham. Well, let me tell you what it is.
    Judge Jackson. Yes.
    Senator Graham. There is a periodic review process made up 
of an interagency, where they go through the files of these 
folks and they determine whether or not they still present a 
threat to the United States or the world at large. And I think 
it's 6 months, maybe a year. But that goes on at least on an 
annual basis.
    And if there's a determination that this person still 
represents a threat to the United States, they're continued to 
be confined. That's the way the system works.
    Are you okay with that?
    Judge Jackson. As a policy matter, Senator, I'm not 
speaking to my views, that that's my understanding is that the 
periodic review----
    Senator Graham. Yes.
    Judge Jackson [continuing]. System is an executive branch 
determination of whether or not they are going to continue to 
hold people that they----
    Senator Graham. Does that make sense to you as a way to 
deal with these detainees?
    Judge Jackson. Senator, I'm not in a position to speak to 
the policy or the discretion of the executive branch regarding 
how they're going to handle detainees.
    Senator Graham. The reason I mention it is because in one 
of the briefs, you argued that the executive branch doesn't 
have that option. That if you had had your way, the executive 
branch could not do periodic reviews about the danger the 
detainee presents to the United States. They would have to make 
a decision of trying them or releasing them.
    Is that not accurate?
    Judge Jackson. Respectfully, Senator, it was not my 
argument. I was filing an amicus brief on behalf of clients, 
including the Rutherford Institute, the Cato Institute, and the 
Constitution Project, who----
    Senator Graham. When you sign on to a brief, does it not 
become your argument?
    Judge Jackson. It does not, Senator.
    Senator Graham. All right.
    Judge Jackson. If you are--if you are an attorney and you 
are representing a client, in amicus----
    Senator Graham. But was that your position when you were in 
private practice? I mean, you sign on to this brief making this 
argument that you say is not your position. I mean, why would 
you do that if it's not your position? Why would you take a 
client that has a position like that, and this is voluntary. 
Nobody is making you do this.
    Judge Jackson. Oh, Senator, I would refer you to the same 
sorts of statements that Chief Justice Roberts made when he 
came before the Committee, which is that lawyers represent 
clients, and they may----
    Senator Graham. I get that. I'm not holding the clients' 
views against you. Like the people you represented at Gitmo, 
they deserve representation. But this is an amicus brief where 
you and other people tried to persuade the Court to change 
policy. The policy I described is a periodic review.
    If the Court had taken the position argued in the brief 
that you signed upon, we would have to release these people or 
try them, and some of them, the evidence we can't disclose 
because it's classified. You're putting America in an untenable 
position.
    This is not the way you fight a war. If you tried to do 
this in World War II, they'd run you out of town. We hold enemy 
combatants as long as they're a threat. There is no magic 
passage of time that you got to let them go.
    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?
    Judge Jackson. 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.
    Senator Graham. I'm sure--I'm sure everybody at Gitmo wants 
out. I got that. This is an amicus brief, and I just don't 
understand what you're saying, quite frankly. I'm not holding 
it against you because you represented a legal position I 
disagree with. I mean, that happens all the time.
    I'm just trying to understand what made you join this 
cause, and you say somebody hired you. But did you feel okay in 
adopting that cause? I mean, when you signed on to the brief, 
were you not advocating that position to the Court?
    Judge Jackson. Senator, as a judge now----
    Senator Graham. Okay.
    Judge Jackson [continuing]. In order to determine the 
lawfulness or unlawfulness of any particular issue, I need to 
receive briefs and information making positions on all sides. 
And the----
    Senator Graham. No, I got what a judge is all about. 
Listen, I'm not asking you to decide the case in front of me 
right here. I'm asking you to explain a position you took as a 
lawyer regarding the law of war, and I am beyond confused. I 
know what you said in your brief. Whether I agree with it or 
not is not the point. I just want you to understand that it's 
important for all of us to know where you were coming from.
    If that brief had been accepted by the Court, it would be 
impossible for us to fight this war because there's some people 
who are going to die in jail in Gitmo and never go to trial for 
a lot of good reasons. Because the evidence against them is so 
sensitive, we can't disclose it to the public. That we're not 
charging them with a crime, what we're doing is saying that you 
engaged in hostile activities against the United States, that 
you are an enemy combatant under our law, and you will never be 
released as long as you're a danger until the war is over or 
you're no longer a danger. That's the difference between 
fighting a crime and a war.
    Did you ever accuse in one of your habeas petitions the 
Government of acting as war criminals for holding the 
detainees?
    Judge Jackson. I'm--I'm----
    Senator Graham. The holding of the detainees by our 
Government that we were acting as war criminals?
    Judge Jackson. Senator, I don't remember that accusation, 
but I will say that----
    Senator Graham. Do you believe that's true, that America 
was acting as war criminals in holding these detainees?
    Judge Jackson. 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 
hostilities. And what I was doing in the context of the habeas 
petitions at this very early stage in the process was making 
allegations to preserve issues on behalf of my clients.
    A habeas petition is like a complaint that lawyers make 
allegations----
    Senator Graham. 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 you chose those words. That's 
just too far. But we are where we are.
    So let's talk about the nomination process. Have you ever 
had any interaction with a group called Demand Justice?
    Judge Jackson. No.
    Senator Graham. Directly or indirectly?
    Judge Jackson. No.
    Senator Graham. Have you ever had any interaction with a 
group called American Prospect?
    Judge Jackson. No.
    Senator Graham. Do you know anything about Arabella? Is 
that the right term? Have you ever heard of a group called 
Arabella?
    Judge Jackson. I've heard of a group that I think is 
Arabella, or something like that?
    Senator Graham. Yes, I think you're right.
    Judge Jackson. Yes.
    Senator Graham. Arabella, yes. Do you know anything about 
them? Have you had any contact with them?
    Judge Jackson. No.
    Senator Graham. Okay. In your nomination, did you notice 
that people from the left were pretty much cheering you on?
    Judge Jackson. A lot of people were cheering me on, 
Senator.
    Senator Graham. That's true. That's true. Did you know that 
a lot of people from the left were trying to destroy Michelle 
Childs? Did you notice that?
    Judge Jackson. Senator, a lot of people were supporting 
various people for this nomination.
    Senator Graham. 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?
    Judge Jackson. Senator, I was--I'm a sitting judge. I was 
focused on my cases. I----
    Senator Graham. Yes. But the answer is, no, I didn't know 
that?
    Judge Jackson. No, I didn't know that.
    Senator Graham. And would it bother you if that happened?
    Judge Jackson. Senator, it is troublesome that people are 
or were doing things related to the nomination----
    Senator Graham. I think that's the best way to say it. 
People have a right to speak out and pick the person of their 
choice, but all I can say is that if you missed the fact that 
there was an organized effort--well, here is, ``President Biden 
has only a certain amount of political capital for keeping his 
party united. If he needlessly angers progressives on this 
SCOTUS pick, that could create all sorts of problems for him 
down the line.'' Jeff Hauser, the Revolving Door Project.
    Let's see. I just got so many quotes. ``It's difficult to 
imagine someone with a record like Judge Childs' winning votes 
from criminal justice advocates like Senator Cory Booker or 
even Dick Durbin.''
    ``Childs' experience is nothing like the `diversity of 
experience' that the Biden administration has championed.''
    Just let's see. ``Picking her''--Childs--``would demoralize 
the base, side with corporate America. The fact that Lindsey 
Graham is vouching for her should give the White House 
pause.''--``Our Revolution,'' Joseph Geevarghese, or whatever 
his name is. And I'm sorry about that, Joseph. He's Bernie 
Sanders' PAC director.
    You didn't know that all these people were declaring war on 
Judge Childs?
    Judge Jackson. Senator, I did not.
    Senator Graham. Okay. Well, no, I'm not saying you did. You 
said you didn't know. I'll take you at your word. But I am 
saying that what is your judicial philosophy?
    Judge Jackson. So I have a methodology that I use in my 
cases in order to ensure that I am ruling impartially and 
that----
    Senator Graham. Okay. Your judicial philosophy is to rule 
impartially?
    Judge Jackson. No, my judicial philosophy is to rule 
impartially and to rule consistent with the limitations on my 
authority as a judge. And so my methodology actually helps me 
to do that in every case.
    Senator Graham. So you wouldn't say that you're an activist 
judge?
    Judge Jackson. I would not say that.
    Senator Graham. Okay. So we'll have 20 minutes more later 
on, but 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 that are going to destroy America, that consider the 
Constitution trash, all wanted you picked. And this is all I 
can say is the fact that so many of these leftwing radical 
groups that would destroy the law as we know it declared war on 
Michelle Childs and supported you is problematic for me.
    Thank you.
    Chair Durbin. Thank you, Senator Graham.
    Let me mention a few points here. Congressman Jim Clyburn 
was a strong supporter of Michelle Childs, and now I believe he 
is publicly supporting your nomination. And Michelle Childs has 
been nominated by President Biden to be a circuit judge, and 
she will be considered by this Committee as quickly as 
possible.
    On the issue of Guantanamo, there are currently 39 
Guantanamo detainees remaining. The annual budget for 
Guantanamo is $540 million per year, which means each of these 
detainees is being held at the expense of $12 million or $13 
million per year. If they would be incarcerated at Florence, 
Colorado, the supermax prison, Federal prison, the amount would 
be dramatically, dramatically less.
    Since 9/11, nearly 1,000 convicted in the United States on 
terrorism charges. Since 2009, with the beginning of the Obama 
administration, the recidivism rate of the Guantanamo detainees 
released is 5 percent.
    Senator Graham. Mr. Chairman, according to the Director of 
National Intelligence, it's 31 percent. Somebody is wrong here.
    If you're going to talk about what I said, I'm going to 
respond to what you said. If we close Gitmo and move them to 
Colorado, do you support indefinite detention under the law of 
war for these detainees?
    Chair Durbin. I would just say I'm giving the facts and----
    Senator Graham. The answer is, no.
    Chair Durbin [continuing]. I want to make sure that it's 
clear the 31 percent you referred to goes back to the year 
2009?
    Senator Graham. What does it matter when it goes back to? 
We had them, and they got loose, and they started killing 
people.
    Chair Durbin. Well, I could just say that----
    Senator Graham. If you're one of the people killed in 2005, 
does it matter to you when we released them?
    Chair Durbin. I would suggest that a President of your own 
party released them and creating that major----
    Senator Graham. I'm suggesting the system has failed 
miserably, and advocates to change this system like she was 
advocating would destroy our ability to protect this country. 
We're at war. We're not fighting a crime. This is not some 
passage of time event.
    As long as they're dangerous, I hope they all die in jail 
if they're going to go back and kill Americans. It won't bother 
me one bit if 39 of them die in prison. That's a better outcome 
than letting them go.
    And if it costs $500 million to keep them in jail, keep 
them in jail. Because they're going to go back to the fight. 
Look at the friggin' Afghan Government. It's made up of former 
detainees at Gitmo. This whole thing by the left about this war 
ain't working.
    Chair Durbin. Let me also note that Larry Thompson, who 
served as Deputy Attorney General under President George W. 
Bush; Orin Kerr, Special Counsel; Viet Dinh, who served as 
Assistant Attorney General for Legal Policy in the George W. 
Bush administration; John Bellinger; and former D.C. Circuit 
Judge, Solicitor General, and Independent Counsel Ken Starr 
were also prominent conservative lawyers signing a letter 
defending attorneys who represented Guantanamo Bay detainees.
    I don't believe that we should associate that activity as 
being inconsistent with our constitutional values.
    We are going to at this point recognize Senator Feinstein 
and then take a break after she has completed her questioning.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman, and I 
just would like to compliment the witness. I think you're doing 
very well and, as you can see, this is a bit of a tough place.
    So, Judge, one of the issues that I often discuss with 
nominees, particularly to the Supreme Court, is the issue of 
abortion. I've asked the three most recent Supreme Court 
nominees about this issue and so I'd like to discuss it a bit 
with you today.
    In 2017, I asked Justice Gorsuch about this during his 
confirmation hearing. I asked him to expand on a comment he had 
made about his belief that precedent is important because it 
adds stability to the law. In response, Justice Gorsuch 
reiterated his belief that precedent is important because, and 
I quote, ``Once a case is settled that adds to the determinacy 
of the law,'' end quote. He also stated that Roe has been 
reaffirmed many times.
    I also spoke with Judge Kavanaugh about this issue in 2018. 
I asked him whether he believes that Roe was settled law and, 
if so, whether it was correctly settled. Justice Kavanaugh said 
that Roe, quote, ``is settled as a precedent of the Supreme 
Court,'' end quote. He said that Roe, quote, ``has been 
reaffirmed many times over the past 45 years and, most 
prominently, most importantly, reaffirmed in Planned Parenthood 
v. Casey,'' end quote, and he described Casey as having the 
value of a ``precedent on precedent,'' end quote.
    I most recently spoke about this issue with Justice Barrett 
in 2020. I asked her whether she agreed with Justice Scalia's 
view that Roe was wrongly decided. She committed to, quote, 
``obey all the rules of stare decisis,'' end quote, if faced 
with the question of whether to overrule Casey. She said she 
had, quote, ``no agenda to try to overrule Casey,'' end quote.
    So here's the question. Do you agree with Justice Kavanaugh 
that Roe v. Wade is settled as a precedent and will you, like 
Justice Barrett, ``commit to obey all the rules of stare 
decisis in cases related to the issue of abortion,'' end quote?
    Judge Jackson. Thank you, Senator.
    I do agree with both Justice Kavanaugh and Justice Barrett 
on this issue. Roe and Casey are the settled law of the Supreme 
Court concerning the right to terminate a woman's pregnancy.
    They have established a framework that the Court has 
reaffirmed and in order to revisit, as Justice Barrett said, 
the Supreme Court looks at various factors because stare 
decisis is a very important principle. It provides and 
establishes predictability, stability. It also serves as a 
restraint in this way on the exercise of judicial authority 
because the Court looks at whether or not precedents are relied 
upon, whether they're workable, in addition to whether or not 
they're wrong and other factors as well.
    So I agree with both of the statements that you read.
    Senator Feinstein. Well, let me add one to that and then 
we'll move on. I'm particularly interested in the case of Roe 
v. Wade. Roe was decided nearly 50 years ago and it's been 
reaffirmed over a dozen times since then. So my question is 
this. Does Roe v. Wade have the status of being a case that is 
a super precedent and what other Supreme Court cases do you 
believe have that status?
    Judge Jackson. Well, Senator, all Supreme Court cases are 
precedential, they're binding, and their principles and their 
rulings have to be followed.
    Roe and Casey, as you say, have been reaffirmed by the 
Court and have been relied upon, and reliance is one of the 
factors that the Court considers when it seeks to revisit or 
when it's asked to revisit a precedent, and in all cases, 
those--the precedents of the Supreme Court would have to be 
reviewed pursuant to those factors because stare decisis is 
very important.
    Senator Feinstein. Thank you.
    If you are confirmed, you would be one of only two Justices 
who has also served on a Federal district court, the other 
being Justice Sotomayor. In your 8 years as a trial judge on 
the D.C. District Court, you wrote nearly 600 opinions and 
presided over nine jury trials and three bench trials.
    As you know from your service on the District Court, it's 
important for appeals courts and especially the Supreme Court 
to be clear in their decisions. The clarity is necessary, as 
you well know, for trial judges to effectively do their job and 
properly apply legal precedents that are fair and consistent. 
As a district judge, you were responsible for applying 
precedent from the Supreme Court and the court of appeals to 
your case, and now as a judge in the D.C. Circuit you're 
drafting those precedents. Your experience as a trial judge is 
one of your most significant assets, and I just want to add a 
personal comment. This is a tough place and you are handling it 
very well, and I appreciate your directness and think that's 
important.
    Here's a question. I have two related questions. How did 
you make sure that you were properly applying the relevant 
precedents as a district court judge and, if you're confirmed 
to the Supreme Court, what would you do to make sure your 
opinions are clear so they could be applied correctly by 
district courts?
    Judge Jackson. Thank you, Senator.
    As you noted, in my time as a district court judge, I had 
the opportunity to apply precedents that were handed down by 
the court of appeals and the Supreme Court. The district court 
is bound by the law as stated by those other tribunals, and I 
was very focused on making sure that I found the right 
precedents and applied them faithfully.
    As I mentioned, with respect to my methodology, part of the 
process is receiving information from the parties in a case, 
and the parties write briefs and, in most cases, they identify 
the precedents that they, at least, believe are applicable and 
then the court does its own legal research as well to determine 
whether all of the relevant cases have been identified, and 
then you look to see whether there's anything that directly 
controls and, if it does, that's your answer.
    In many cases, the precedents might be a little bit 
different in certain ways and you are assessing the parties' 
arguments and determining within your proper role whether what 
the appellate courts have said provides the law of decision for 
the case. But what's important, as you've mentioned, is the 
clarity by which courts of appeals and the Supreme Court need 
to operate so that the lower courts can actually follow the 
precedents. And I'm very conscious of that, as you said, as 
someone who has had to follow precedent and I would think 
carefully about that and use my communication skills to ensure 
that the precedents are clear so that lower courts can follow 
them.
    Senator Feinstein. Thank you.
    I'd like to discuss, quickly, a letter this Committee 
received in support of your nomination from the International 
Association of Chiefs of Police, and as you know, this is the 
world's largest professional association of law enforcement 
leaders. And the letter states, ``Judge Jackson has several 
family members in law enforcement and we believe this has given 
her a deep understanding of and an appreciation for the 
challenges and complexities confronting the policing 
profession.
    ``During her time as a judge, she has displayed her 
dedication to ensuring that our communities are safe and that 
the interests of justice are served.'' And so, Mr. Chairman, 
I'd like to put this letter in the record, if I may.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Feinstein. Thank you.
    I understand that your brother served with the Baltimore 
Police Department for several years. So here's the question. 
How, if at all, has having several family members in law 
enforcement impacted your understanding of the law or your 
approach to your judicial service?
    Judge Jackson. Thank you, Senator.
    Some of my earliest memories, in addition to my father at 
the kitchen table with his law books, were of my uncles. Two of 
my uncles were career law enforcement and one was a detective--
uniformed detective. One was City of Miami Police Department 
officer--patrol officer--for a long time before he became the 
chief. And I remember very well we would go to my grandmother's 
house on Sundays and she would make a big dinner for our family 
and my uncles would sometimes come off of their shifts.
    So I see, in my mind, their uniforms coming in and they 
would always--they'd be carrying their weapons and they'd take 
them off and put them way up high on the china cabinet so the 
kids couldn't get to them and I remember feeling very proud of 
them and the service that they provided, and I think it's 
probably what led my brother, who is 10 years younger than I 
am, to decide that after he graduated from college he would 
want to also be in law enforcement.
    So I'm very familiar with law enforcement, the important 
service that they provide, the perils of being out on the 
street protecting and serving and having a family that cares 
about you and worries about your safety. And so this is not 
something that is unfamiliar, and I'm very gratified by the 
support of the group that you mentioned and other law 
enforcement groups as I go through this process.
    Senator Feinstein. I joined this Committee in January 1993, 
and a few months later we considered the nomination of Ruth 
Bader Ginsburg to the Supreme Court. Justice Ginsburg's 
confirmation made her only the second woman to ever serve on 
the Supreme Court, after Justice Sandra Day O'Connor.
    So we have come a very long way since then, though still 
not far enough. Women now make up about 35 percent of active 
judges on the Federal district bench and 37 percent of active 
judges on the Federal appeals courts.
    Judge Jackson, if confirmed, you would become the sixth 
woman to ever serve on the Supreme Court. You would join 
Justices Sotomayor, Kagan, and Barrett on the Bench. This would 
be the nearest we have ever come to gender equity on the 
Supreme Court. There would be four women on a court with nine 
Justices.
    So I have my own thoughts about why gender balance is 
important on our Nation's courts. But I'd really like you to 
tell us all what are your thoughts on what it means for our 
country to have women serve in meaningful numbers on the 
Federal bench, and, in particular, what it would mean to have 
four women serving on the Supreme Court for the first time in 
history?
    Judge Jackson. Thank you, Senator.
    I think it's extremely meaningful. One of the things that 
having diverse members of the Court does is it provides for the 
opportunity for role models.
    Since I was nominated to this position, I have received so 
many notes and letters and photos from little girls around the 
country who tell me that they are so excited for this 
opportunity and that they have thought about the law in new 
ways because I am a woman because, I am a Black woman--all of 
those things people have said have been really meaningful to 
them--and we want, I think, as a country for everyone to 
believe that they can do things like sit on the Supreme Court.
    And so having meaningful numbers of women and people of 
color, I think, matters. I also think that it supports public 
confidence in the judiciary when you have different people 
because we have such a diverse society.
    Senator Feinstein. Well, I just want to say thank you very 
much. This is often a hard place, and how you go through those 
hard times, I really think, is the most important thing and 
it's pretty clear to me that you go through hard times by 
holding your head up high and doing well. So I thank you very 
much.
    Judge Jackson. Thank you, Senator.
    Chair Durbin. Thank you, Senator Feinstein.
    We're going to take a break. Let's see. Let's take 15 
minutes starting now and then we'll return to more questions. 
We'll have a lunch break this--later this afternoon, in the 
earlier part of the afternoon.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. The Senate Judiciary Committee will come to 
order.
    We're going to have two Senators ask questions and then 
break for lunch, somewhere around an hour from now. Senators 
Cornyn and Whitehouse will be recognized in succession.
    First, Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. Judge, I want you 
to do me a favor. Will you nerd out with me a little bit----
    [Laughter.]
    Judge Jackson. I will try, Senator.
    Senator Cornyn. And we'll start with stare decisis.
    Judge Jackson. Yes.
    Senator Cornyn. And I never figured out why lawyers speak 
in Latin rather than in English when describing these concepts 
by which judges apply precedent. But would you agree with me 
that even under an appropriate stare decisis analysis, that 
Dred Scott and Plessy v. Ferguson were appropriately overruled 
by the Supreme Court?
    Judge Jackson. Well, Senator, I've not engaged in the 
actual analysis, but I think it is well established now that 
the cases that overruled Dred Scott and Plessy were correctly 
decided.
    Senator Cornyn. Yes. I mean, there is the--a means by which 
the Court can correct their mistakes, correct, by overruling 
previous decisions?
    Judge Jackson. If the various considerations that the 
Supreme Court has--uses to make that determination is 
satisfied.
    Senator Cornyn. And have you ever heard a Federal judge 
talk about super-duper precedent or super precedent?
    Judge Jackson. I have not.
    Senator Cornyn. I've never seen it either in any opinion. 
I've heard it here on the Judiciary Committee on a number of 
occasions when somebody has a favorite case or outcome that 
they don't want to see the Supreme Court revisit. Let me ask a 
minute. Obviously, your nomination by President Biden is 
historic, and I congratulate you again. I congratulated you 
previously, and I think it's been long overdue. When Clarence 
Thomas, the second African American who was nominated to and 
confirmed by the Supreme Court, was nominated to the Court, did 
you celebrate that as a historic event?
    Judge Jackson. I'm trying to remember where I was at the 
time. I believe I did, yes.
    Senator Cornyn. When we're talking about staying in your 
lane, and I appreciate your responses to a number of the 
questions even though I'd love to get your answer to the 
question, but where you've deferred answering, saying you want 
to stay in your lane and not be seen as a policymaker. Would 
you agree with me that one of the most important questions 
under our constitutional form of government and the separation 
of powers is who decides? In other words, some questions are 
appropriately decided by judges who are elected--unelected--
excuse me--serve for life, insulated from politics, and other 
decisions are appropriately within the--left up to the 
legislative branch because they are--we are accountable to the 
people who can vote for us? They can vote against us if they 
don't like the policies that we--that we enact in legislation. 
Would you agree with--that who decides is an important question 
in terms of determining the appropriate role for both the 
judiciary and the legislature?
    Judge Jackson. As a general matter, I agree. It rarely 
comes directly like that as an issue. It's usually not a jump 
ball between the legislature and the executive branch.
    Senator Cornyn. I get it. You don't get a lot of easy 
questions----
    Judge Jackson. Well----
    Senator Cornyn [continuing]. But as a general proposition, 
you won't disagree with me.
    Judge Jackson. What I'd say is that the courts are properly 
tasked with resolving legal questions and that----
    Senator Cornyn. Cases or controversies, right?
    Judge Jackson. Exactly, in every case, and----
    Senator Cornyn. Right. Congress is not similarly 
constrained. We can pass broad policies, comprehensive 
legislation changing policy, but the difference is--one of the 
differences is the voters can un-elect us if they don't like 
what we're doing.
    Judge Jackson. That is true.
    Senator Cornyn. I want to ask you what--did you study under 
Laurence Tribe when you were at Harvard?
    Judge Jackson. I did not.
    Senator Cornyn. Well, as you know, Justice Breyer, your 
mentor, wrote a little book called Active Liberty, and Laurence 
Tribe, who was formerly a law professor at Harvard, wrote a 
review of that book in The New York Times review of books, and 
the title of it is, ``Politicians in Robes.'' Are you familiar 
with that article?
    Judge Jackson. I am not.
    Senator Cornyn. Well, in the article, Professor Tribe 
accuses Justice Breyer of engaging in what he called a noble 
lie. And he said--he talks about ``the morality of resorting to 
falsehoods and delusions to conceal, usually from the masses, 
but sometimes from oneself, the truths whose revelation would 
wreak havoc, or at least do more harm than good.'' Professor 
Tribe goes on in criticizing Justice Breyer's book. He says, 
``In his stubborn avowal that the Court, even with its current 
far-right supermajority, remains an apolitical body, he 
perpetuates a lie that is anything but noble.'' You've talked 
about staying in your lane, not making policy decisions, not 
being seen as political. Do you agree with Justice Breyer 
that--or with Professor Tribe?
    Judge Jackson. Senator, I believe that judges are not 
policymakers that we have a constitutional duty to decide only 
cases and controversies that are presented before us. And 
within that framework, judges exercise their authority to 
interpret the law and not make the law.
    Senator Cornyn. So you would--you would agree with me that 
judges should not be politicians.
    Judge Jackson. Yes.
    Senator Cornyn. 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 
Obergefell case, which dealt with same-sex marriage.
    In the opinions that were written there, it was noted that 
here we are 200--at the time, 234 years after the Constitution 
had been ratified, 135 years since the Fourteenth Amendment had 
been ratified, that the Supreme Court articulated a new 
fundamental right, which is a right to same-sex marriage. 
You're familiar with that case, aren't you?
    Judge Jackson. I am.
    Senator Cornyn. At the time, it was noted that 11 States, 
including the District of Columbia, had passed laws sanctioning 
same-sex marriage, but also at the same time, there were 35 
States who put it on the ballot, and 32 of those States decided 
to maintain the traditional definition of ``marriage'' between 
a man and a woman. Do you agree with me that marriage is not 
simply a governmental institution, it's also a religious 
institution?
    Judge Jackson. Well, Senator, marriages are often performed 
in religious institutions.
    Senator Cornyn. Well, when the--when the--you would agree 
with me that many of the major religions that I can think of--
and they're Christianity, Judaism, Islam--embrace a traditional 
definition of ``marriage,'' correct?
    Judge Jackson. I am aware that there are various religious 
faiths that define ``marriage'' in a traditional way.
    Senator Cornyn. Do you--do you see that when the Supreme 
Court makes a dramatic pronouncement about the invalidity of 
State marriage laws, that it will inevitably sit in conflict 
between those who ascribe to the Supreme Court's edict and 
those who have a firmly held religious belief that marriage is 
between a man and a woman?
    Judge Jackson. Well, Senator, these issues are being 
litigated, as you know, throughout the courts as people raise 
issues, and so it's--I'm limited in what I can say about them. 
I'm aware that there are cases----
    Senator Cornyn. Well, I'm not asking you to decide a case 
or predict how you would decide in the future. I'm just asking 
isn't it apparent that when the Supreme Court decides that 
something that is not even in the Constitution is a fundamental 
right and no State can pass any law that conflicts with the 
Supreme Court's edict, particularly in an area where people 
have sincerely held religious beliefs, doesn't that necessarily 
create a conflict between what people may believe as a matter 
of their religious doctrine or faith and what the Federal 
Government says is the law of the land?
    Judge Jackson. Well, Senator, that is the nature of a 
right, that when there is a right, it means that there are 
limitations on regulation, even if people are regulating 
pursuant to their sincerely held religious beliefs.
    Senator Cornyn. You agree marriage is not mentioned in the 
Constitution, is it?
    Judge Jackson. It is not mentioned directly, no.
    Senator Cornyn. And religious freedom and--is mentioned in 
the First Amendment explicitly, correct?
    Judge Jackson. It is.
    Senator Cornyn. Do you share my concern that when the Court 
takes on the role of identifying an enumerated right--in other 
words, it's not mentioned in the Constitution--and creates a 
new right, declaring that anything conflicting with that is 
unconstitutional, that it creates a circumstance where those 
who may hold traditional beliefs, like something as important 
as marriage, that they will be vilified as unwilling to assent 
to this new orthodoxy?
    Judge Jackson. So, Senator, I understand that concern, and 
because there are cases that are addressing these sorts of 
issues, I'm not in a position to comment about either my 
personal views or whether----
    Senator Cornyn. I'm not asking--and I'm not asking you to. 
Justice Alito in the--in the Obergefell case wrote, he said, 
``I assume those who cling to the old beliefs will be able to 
whisper their thoughts in the recesses of their homes, but if 
they repeat those views in public, they will risk being labeled 
as bigots and treated as such by government, employers, and 
schools.'' So the Obergefell case we--to nerd out with you 
again, was decided under a doctrine known as substantive due 
process, correct?
    Judge Jackson. If memory serves, yes, substantive due 
process, and I think there might've been equal protection 
concerns mentioned as well.
    Senator Cornyn. And the--and the Court--the Supreme Court 
had applied that, somehow fairly mysteriously, by saying it's 
created by the confluence of the Fifth Amendment and the 
Fourteenth Amendment to the United States Constitution. But 
historically, it's been applied in ways that seem to sanction 
explicit policymaking by the courts. For example, the Lochner 
v. New York case, which I know you talked to Senator Lee about, 
in particular, which it was a New Deal case which set 
limitations on how long bakers could work in New York. The 
Supreme Court struck that down and said it violated the right 
of free contract. Now, Lochner, as you know, was overruled 30-
something years later, but it's also been applied in a number 
of different circumstances. For example, it's been suggested 
that Dred Scott, which treated slaves as chattel property, was 
a product of substantive process.
    Justice Hugo Black has criticized the doctrine of 
substantive due process as the arbitrary fiat of the man or men 
in power or the Court declaring a law invalid because it 
shocked the consciences of at least five members of the Court. 
He went on to say, ``This use of judicial review thus subverts 
the liberty of government by the people, overturning laws 
enacted by legislatures who are answerable to the electorate 
rather than a majority of the Supreme Court.'' Finally, he 
said, finally, for the purpose of my question, he said, ``The 
adoption of such a loose, flexible, uncontrolled standard for 
holding laws unconstitutional, if ever it is finally achieved, 
will amount to a great unconstitutional shift of power to the 
courts, which I believe''--Justice Black, that is--``and am 
constrained to say will be bad for the courts and worse for the 
country.''
    Justice Jackson, why isn't substantive due process analysis 
just another form of judicial policymaking, which you've 
suggested policymaking is not in your lane or--and you strive 
to be apolitical, something I applaud. But why isn't 
substantive due process just another way for judges to hide 
their policymaking under the guise of interpreting the 
Constitution?
    Judge Jackson. Well, Senator, the Justices have interpreted 
the Due Process Clause of the Fourteenth Amendment to include a 
substantive provision. The rights to due process, they have 
interpreted that to mean not just procedural rights relative to 
government action but also the protection of certain personal 
rights related to intimacy and autonomy. They include things 
like the right to rear one's children, I believe the right to 
travel, the right to marriage, interracial marriage, the right 
to an abortion, contraception.
    Senator Cornyn. Treating slaves as chattel property?
    Judge Jackson. I don't quite remember the basis for the 
Dred Scott opinion, but I'll trust you that that's----
    Senator Cornyn. Well, the fact is, is it not, that you can 
use substantive due process to justify basically any result----
    Judge Jackson. Well, the Court----
    Senator Cornyn [continuing]. Whether it's conservative, or 
liberal, libertarian, or conservative, whatever you would like 
to call it. It's just a--it's a mode of analysis by the Court 
that allows the Court to substitute its opinion for the elected 
representatives of the people. Would you agree?
    Judge Jackson. The Court has identified standards for the 
determination of rights under the Fourteenth Amendment, 
substantive due process.
    Senator Cornyn. And who gives them the right to do that? If 
it's not mentioned in the Constitution, where does the right of 
the Court to substitute its views for that of the elected 
representatives of the people, where does that come from?
    Judge Jackson. Well, the Court has interpreted the 
Fourteenth Amendment to include this component, the 
unenumerated right to substantive due process, and the Court 
has said that the kinds of things that qualify are implicit in 
the concept of ordered liberty--excuse me--or deeply rooted in 
our Nation's history and tradition. Those are standards that 
identify a narrow set of activities.
    Senator Cornyn. Well, Judge, in the Obergefell case, 
Justice Roberts in his dissent noted that the Court invalidated 
marriage laws of more than half the States and orders the 
transformation of a social institution that has formed the 
basis for human society for millennia. So that was the basis 
for the institution of marriage is the practice for millennia 
and the recognition that marriage was between a man and a 
woman. Now, don't get me wrong. I'm not arguing the merits or 
lack of merits of same-sex marriage. I believe the States and 
the elect--and the--and the voters can choose what they will, 
and that's their prerogative, and I think that's legitimate. 
But when the Court overrules the decisions made by the people, 
as they did in 32 of the 35 States that decided to recognize 
only traditional marriage between a man and a woman, that is an 
act of judicial policymaking, is it not?
    Judge Jackson. Senator, the Supreme Court has considered 
that to be an application of the Substantive Due Process Clause 
of the Fourteenth Amendment.
    Senator Cornyn. Right, and it doesn't--the Constitution 
doesn't mention anything about substance when it talks about 
due process. The Fourteenth Amendment and the Fifth Amendment 
don't talk about substantive due process. It talks about due 
process of law, correct?
    Judge Jackson. Correct.
    Senator Cornyn. Well, one of the things that concerns me is 
here is an example of the Court's finding a new fundamental 
right that is mentioned nowhere in the document of the 
Constitution. That's the product of simply Court-made law that 
we're all supposed to salute smartly and follow because nine 
people, who are unelected, who have lifetime tenure, whose 
salary cannot be reduced while they serve in office, they 
decide--five of them decide that this is the way the world 
should be.
    What other unenumerated rights do you believe exist, and 
how could we possibly anticipate what those might be? For 
example, the Ninth Amendment says, ``the enumeration in the 
Constitution of certain rights shall not be construed to deny 
or disparage other rights retained by the people,'' which 
suggests to me that there are other as yet unidentified rights 
out there, and somehow, someday, some court is going to tell us 
we've identified an unenumerated right. And we're going to 
reject the right of the American people to determine what the 
policies ought to be as regards that right because we, the nine 
people sitting on the Supreme Court, have decided we've 
discovered a new unenumerated right, and it shall be the law of 
the land, and no legislature can pass any law that conflicts 
with it. What other unenumerated rights are out there, or can 
you say?
    Judge Jackson. Senator, I can't say. It's a hypothetical 
that I've not--I'm not in a position to comment on. The rights 
that the Supreme Court has recognized as substantive due 
process rights are established in its caselaw.
    Senator Cornyn. But, Your Honor, this is not a trick 
question.
    Judge Jackson. Oh, I understand.
    Senator Cornyn. Okay.
    Judge Jackson. I'm just--I'm just not in a position to 
speak to the----
    Senator Cornyn. Well, can you understand why ordinary folks 
wonder who do these people think they are and where does this 
authority come from?
    Judge Jackson. Yes.
    Senator Cornyn. I think the authority comes from we, the 
people. That's the source of the legitimacy of government. But 
when the courts decide to identify an unenumerated right and 
negate anything that conflicts with it, can't you see how they 
might just--might feel that this is illegitimate or a sort of 
policymaking that you--that you have disavowed by saying that 
you don't want to make policy, you want to stay in your lane? 
Can you understand the concern?
    Judge Jackson. Absolutely, Senator, I do understand it.
    Senator Cornyn. And how do you--and how--because I believe 
the Court's legitimacy is very important. That's why I agree 
with Justice Breyer that, notwithstanding what anybody else 
says, that should be an aspirational goal of the judges because 
we're all concerned about the legitimacy of our institutions 
and, particularly, I would say the institution of our 
judiciary. So how do--how do you as a judge, when you are 
approaching your decisions, how do you try to avoid being seen 
as a policymaker by embracing doctrines like substantive due 
process, which is--essentially gives judges carte blanche to do 
whatever they want?
    Judge Jackson. Well, Senator, I've not had that particular 
situation, but I do--I have a methodology that is designed to 
avoid my importation of policy perspectives. The judges are 
constrained in our system. That's part of the constitutional 
design. And so in all cases, I am looking neutrally at the 
arguments of the parties and, presumably, in a case like this, 
there would be arguments made on both sides of the issue.
    Senator Cornyn. Your Honor, if you'll forgive me----
    Judge Jackson. Yes.
    Senator Cornyn [continuing]. One reason I think the Supreme 
Court's different is because in your previous capacity as a 
trial judge, of course, you were bound by circuit court 
precedent, and on the circuit court, you're bound by the 
Supreme Court precedent. But as a member of the United States 
Supreme Court, you will be bound by nothing. You will be 
unaccountable to the voters. And so you said you can----
    Judge Jackson. Well, respectfully, Senator, I mean, yes----
    Senator Cornyn. So you're not going to be able to find the 
answer in some law book somewhere. You're going to be presented 
with a case, and the argument is going to be made this is an 
unenumerated fundamental right, and the voters, whatever 
they've said is irrelevant because we five members of the 
Supreme Court are going to decide what the law of the land 
should be, and anybody who disagrees with us will be labeled a 
bigot or be accused of discrimination, even if those--their 
beliefs happen to flow from sincerely held religious 
conviction, like the definition of a--of a marriage between a 
man and a woman. But you've already told me that you see why 
the--this is a concern.
    Judge Jackson. I see why it is a concern, and I would just 
say that although the Supreme Court is not bound in the sense 
of having to apply prior precedent, there is stare decisis in 
our system. There are now standards in the stare decisis world 
that the Supreme Court applies when it--when it's asked to--
sorry.
    Senator Cornyn. Well, thank goodness the Supreme Court has 
been willing to revisit its precedent, or we'd still be living 
with Plessy v. Ferguson or Dred Scott. You know, one of the 
things Senator Whitehouse and I agree on is he and others 
frequently ask nominees for the Supreme Court, do you think 
Brown v. Board of Education is settled law, and believe it or 
not, some nominees won't answer the question. I mean, I'd--it 
boggles the mind. I tend to think that nominees from both 
parties tend to be over coached and not--and told you can't 
be--if you don't answer the question, you have a better chance 
of being confirmed. But some of these things are obviously 
settled, and I wish we had a more candid conversation about the 
source of the power that unelected lifetime tenured judges have 
to basically rule America when they decide that something is an 
unenumerated fundamental right.
    Let me in the minute, 48 seconds I have ask you about a 
specific case. You remember U.S. v. Brown. This was a guilty 
plea and where you were asked to assess a punishment. And at 
one point in the proceedings, you said, ``I'm going to state 
for the record, however, that this court has a longstanding 
policy disagreement with the criminal history guidelines with 
respect to the application of the two-point enhancement.'' Do 
you remember when you said that?
    Judge Jackson. I don't remember that particular statement.
    Senator Cornyn. How is that policy disagreement different 
from other disagreements when you said that you're not going to 
get out of--out of your lane, you're not going to get into the 
policy lane?
    Judge Jackson. Yes, Senator. The Supreme Court in the 
sentencing realm has made the guidelines--the sentencing 
guidelines advisory. They used to be mandatory. Judges used to 
have to calculate the guidelines for sentencing purposes and 
then essentially apply a sentence within the guideline range. 
In a case called United States v. Booker, the Supreme Court 
determined that the guidelines were--are advisory now, so they 
don't have to be applied in every case, that you have to 
calculate them, but judges have more freedom to give effect to 
Congress'--the various provisions in the statute related to 
sentencing. In Booker and in its progeny, the Supreme Court 
made clear that judges at sentencing----
    Senator Cornyn. Judge, I only have--I only have a limited 
amount of time, so let me just close on one other question, and 
forgive me for interrupting you.
    Judge Jackson. Yes.
    Senator Cornyn. But there's such a thing as a judicial 
filibuster, too.
    Judge Jackson. Sorry. I was trying to get to the point, 
but----
    Senator Cornyn. Let me just--let me just ask, I don't know 
you well, but I've been impressed by our interaction, and 
you've been gracious and charming. Why in the world would you 
call Secretary of Defense Rumsfeld and George W. Bush war 
criminals in a legal filing? It seems so out of character for 
you.
    Judge Jackson. Senator, you may have been talked--are you 
talking about briefs that I--or habeas petitions that I filed?
    Senator Cornyn. I'm talking about when you were 
representing a member of the Taliban, and the Department of 
Defense identified him as an intelligence officer for the 
Taliban, and you referred to the Secretary of Defense and the 
sitting President the United States as war criminals. Why would 
you do something like that? It seems so out of character.
    Judge Jackson. Well, Senator, I don't remember that 
particular reference, and I was representing my clients and 
making arguments. I'd have to take a look at what you--what you 
meant. I did not intend to disparage the President or the 
Secretary of Defense.
    Senator Cornyn. Well, being a war criminal has huge 
ramifications. You could be subject to the jurisdiction of the 
International Criminal Court and hauled before that 
international tribunal and tried for war crimes, so it's not a 
casual comment, I would suggest. Thank you.
    Chair Durbin. Thank you, Senator Cornyn.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman. Judge Jackson, 
good to be with you again.
    Judge Jackson. Good to be with you.
    Senator Whitehouse. I know that a great many people are 
extremely proud that you are here today. I don't know that 
there are a great many who are prouder than Bruce Selya. And so 
with your permission, I'll take a moment and offer into the 
record some of his comments about you, and then maybe give you 
a chance to reciprocate with a word about him.
    But yesterday in my opening remarks, I mentioned the Boston 
Globe article in which Judge Selya said that--about you, ``She 
is absolutely everything you would want in a Supreme Court 
Justice. She has all the tickets in terms of her intelligence, 
her education, her work experience, and her demonstrated 
judicial temperament. I see some of the same qualities in her 
that I saw in Ruth Bader Ginsburg: humility, the ability to 
inspire others in a quiet way, not at the top of her voice. 
Some people have the capacity to inspire by example and the 
force of their reason. Intellectually, she is very smart, very 
well-informed, and she's very hardworking and focused. She gets 
the big picture.''
    May I ask unanimous consent that the Globe article be 
admitted into the record?
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Whitehouse. But he didn't stop there, Your Honor. 
He went onto WPRI, the local station in Rhode Island, and said 
about you, ``She's worked hard. She deserves it, and I 
literally don't think that the President could've made a better 
choice. I think she'll be a terrific addition to the Supreme 
Court. She listens to what other people have to say but makes 
up her own mind. She has a very scholarly approach toward the 
law. She has a very winning personality. She's kind to the 
people she comes in contact with, and she has a certain 
humility that I find very attractive in people.'' May I ask 
unanimous consent that the statement from WPRI be put into the 
record?
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Whitehouse. Judge Selya went on Law360 and said, 
``I sense that she,''--you--``she has the same sort of desire 
to achieve consensus and a pragmatic streak that has 
characterized some of Justice Breyer's work. I think she will 
be quite balanced. I have not found her to be an idealogue. She 
understands what the job of being a judge or being a Justice 
is. She wants very much to do it in the right way, and she will 
bend her considerable talents to that direction and won't get 
distracted by any extraneous considerations or side issues. I 
think the country will appreciate that and will appreciate that 
this is a woman who understands the importance of the position 
and will give 100 percent of her talents every day to do that 
job in the right way and in accordance with her oath of 
office.''
    Unanimous consent that that be put into the record, Mr. 
Chairman?
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Whitehouse. And then finally, the Providence 
Journal, our home State newspaper, Katie Mulvaney in an 
interview heard Judge Selya say, ``I think it's a terrific 
appointment. She's a very thoughtful person and wonderfully 
well qualified. I'm happy not only for her but for the whole 
country. She listens well. She gets the whole picture, has 
great respect for the rule of law. I think she's got the whole 
package.'' Unanimous consent that article be put in the record.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Whitehouse. So any reflections on Judge Selya?
    Judge Jackson. Well, that was very moving. Thank you, 
Senator, for reading his lovely remarks. It's exactly who I 
know Judge Selya to be: always eloquent, always insightful. And 
I'm so flattered by his--by his admiration because he is 
someone that I have admired my entire professional life. He 
taught me how to look at issues very carefully, how to write, 
in a lot of ways, because of the way in which he's so 
fastidious with his opinions, and he's been an extraordinary 
mentor and role model for me.
    Senator Whitehouse. Well, we are very proud of him in Rhode 
Island. As you know, he's on senior status, and when he went on 
senior status, we were able to recommend the--Rogeriee Thompson 
to succeed him, of whom I think Rhode Islanders are equally 
proud, and she has now gone on senior status. And, Mr. 
Chairman, I hope we'll be considering shortly an equally 
impressive Biden nominee for her position.
    On an unrelated subject, and it relates to yesterday's 
activities--you can relax a moment, Your Honor. This will not 
be a question for you. But a lot was said in this room 
yesterday about dark money by our Republican friends, to the 
point where one of the headlines about yesterday read, 
``Republicans Hammer Dark Money Groups.'' And I'll be the first 
to concede that there is dark money on both sides, and I hope 
very much we can get rid of it on both sides, shortly by 
legislation. But there is a difference, I believe, between a 
dark money interest rooting for someone and 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.
    [Posters are displayed in the hearing room.]
    Senator Whitehouse. It was pretty straightforward stuff. 
President Trump said, ``We're going to have great judges, 
conservative, all picked by the Federalist Society.'' That's 
pretty plain. Senator Orrin Hatch, the former Chairman, was 
asked--said, ``Some have accused President Trump of outsourcing 
his judicial selection process to the Federalist Society. I 
say, `damn right.' '' The co-founder of the Federalist Society 
said that, ``The administration is relying on the Federalist 
Society to come up with qualified nominees.'' And then Don 
McGann, who ran the operation for Trump in the White House, 
said, ``I've been a member of the Federalist Society since law 
school. Still am. So, frankly, it seems like that role has been 
in-sourced.'' So there's pretty clear and pretty broad 
agreement that that selection process took place out of the 
public eye, and it appears to have been informed heavily by 
dark money interests.
    They were not alone in saying this. Here's Laura Ingraham 
on Fox News concerned about abortion cases coming up before the 
Court. ``We have six Republican appointees on this Court. After 
all the money that's been raised, the Federalist Society, all 
these big fat cat dinners, if this Court with six Justices 
cannot do the right thing, then I think it's time to 
circumscribe the jurisdiction of this Court. That's the way to 
change things finally.'' So we have people who are in a 
position to know what was going on behind the scenes describing 
the six Republican appointees on the Court who got there after 
all the money that has been raised, the Federalist Society and 
all these big fat cat dinners, and threatening if they don't do 
what she considers to be the right thing, they'll be punished 
by circumscribing the jurisdiction of the Court.
    That's pretty big talk, but it's backed up by pretty big 
dollars. If you go back to before this enterprise got under 
way, 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 
Donors 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 and in the downtown Washington building, although JCN's 
website and text 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 in, 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. It 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've had before the Court. And I think it matters when 
people are seeking to influence the makeup of the Court that 
the public understand what business they may have before the 
Court, and anonymity hides all of that.
    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 stooge of liberal activist dark 
money. This is a screenshot from their advertisement paid for 
by the Judicial Crisis Network.
    So it's worth understanding for a moment what the Judicial 
Crisis Network is and where it lies, and it lies in a network 
of organizations. The prevailing way that political mischief is 
accomplished these days is with a paired 501(c)(3) and 
501(c)(4) organization. The 501(c)(3) gets the tax deduction. 
The 501(c)(4) gets to participate in political activity. And 
sure enough, there's an 85 Fund and a Concord Fund that are 
twinned together as a 501(c)(3) and 501(c)(4) organization. And 
they filed under Virginia corporation law to operate under what 
they call fictitious names. That's the term of law under which 
they filed, ``fictitious names.'' And there's the Judicial 
Crisis Network, one of the fictitious names of the Concord 
Fund. It has a parallel judicial education project that has a 
fictitious name of the 85 Fund. If you're interested in voter 
suppression, you can move down to the Honest Elections Project 
Action, another fictitious name, and its 501(c)(3) twin, the 
Honest Elections Project. And they've even got new ones that 
are less active--Free to Learn Action and Free to Learn. So 
these are eight organizations that are essentially one 
organization.
    As lawyers, we think from time to time about piercing the 
corporate veil. That's corporate veiling that you could pierce 
with a banana, and it runs back and forth with three groups 
called CRC Advisors, CRC Strategies, and CRC Public Relations, 
that take and send money to these organizations as part of the 
sort of planning element. You might say that CRC Advisors, CRC 
Strategies, and CRC Public relations, this trio, is the command 
center, and this is the operational torso of the creature.
    So I show this all because it shows considerable effort 
when somebody goes to that much trouble to create that many 
organizations to hide how much money they've spent to control 
the nomination process to the Court, and it's no small amount 
of money. In the original Washington Post research, they pegged 
it at $250 million. Further research led to testimony in my 
Courts Subcommittee that the number is actually $400 million, 
and we have a recent report that we haven't fact checked that 
the number is actually even higher than that. So I may amend 
this number upward once we're done with our fact checking. Four 
hundred million dollars funding conservative activists' behind-
the-scenes campaign to remake the Nation's courts.
    That operation is a very different thing than a group 
rooting for somebody, and I want to make sure that that 
difference is clear since our friends on the Republican side 
made dark money such a big focus of their attention already. 
There is a drastic difference between rooting for somebody and 
controlling the turnstile that decides who gets on the Court, 
controlling the funding of the political campaigns that pursue 
the folks on the Court, and actually once you get on the Court, 
are working now with the judiciary itself to try to clean up 
the mess of that same anonymous money appearing before the 
Court through phony front groups that file amicus briefs and 
little flotillas, or if it's an important enough case, a full 
armada of dark money-funded front groups.
    So that bears not at all on this nominee. But because this 
is a very public forum and because we've heard all that so-
called hammering of dark money groups, I wanted to make sure 
that it was clear to everybody how this game is played and what 
the difference is in the way the two sides play it.
    So now, back to our business, Judge Jackson. You have 
served as a trial court judge?
    Judge Jackson. I have.
    Senator Whitehouse. You have served as an appellate court 
judge.
    Judge Jackson. I have.
    Senator Whitehouse. And with any luck, you are on your way 
to serve as a Supreme Court Justice. Now, one of the things 
that is very different about trial court judges and appellate 
court judges is what their role is with respect to fact 
finding. It's my belief from my time spent as a practicing 
lawyer that the role of fact finding belongs at the trial court 
level. That's where you can look the witnesses in the eye. 
That's where the evidence can be amassed. That's where the 
trial judge has the responsibility of sifting through it. If 
there's a jury, then the jury, of course, is the ultimate fact 
finder, but if you're in a non-jury trial, the trial judge is 
the fact finder. Then the case goes up on appeal, and it comes 
up with a record, a record of fact in the case. And, in my 
view, that record of fact that comes up to the appellate court 
is actually a constraint on the power of the appellate court to 
go wandering off. The court is obliged to consider the appeal 
based on the factual record that was adduced in the district 
court.
    So you having lived in both of those houses--the trial 
court house and the appellate court house--tell me a little bit 
about what that change meant to you as you went from being a 
trial judge to an appellate judge.
    Judge Jackson. Thank you, Senator. It is a really big 
difference. As you mentioned, at the trial court, you are on 
the ground level. Parties have filed the case. You have all of 
the issues usually at the trial level because you'll have the 
complaint if it's a civil case, and there'll be a lot of 
litigation about the development of the facts in the case. In 
civil cases, you have a period of discovery in many cases that 
is really about the development of the record, what actually 
happened in this case.
    Sometimes there's even a trial, and that, too, is a part of 
the development of the facts in the case because the jury will 
be charged with the responsibility of determining what 
happened, who's guilty, for example, if it's a criminal case, 
or who's liable, if any, if it's a civil case. And sometimes 
there are even questions presented to the jury that they have 
to determine the facts.
    At the appellate level, as you said, there is already a 
record, and the court is looking primarily at the law, the 
legal principles that guided the decision below based on the 
factual record. And, importantly, at the appellate level, there 
are standards of review that the court of appeals applies when 
it decides how to review, whether or not to reverse or affirm 
the judgment of the lower court. And I've been very mindful, 
especially as a trial judge, of the standards of review.
    Senator Whitehouse. When I was prepping lawyers for oral 
argument before appellate courts, I would often say, please 
don't quarrel with the facts unless you have a knockdown case 
because if you want to get the appellate court to re-litigate 
the facts, you're up against the harshest standard of review 
available, the clearly erroneous test, and clear error is no 
small thing. Outside of that narrow finding by an appellate 
court that somehow the district court got it wrong, filtered 
through that clear error standard, are there other 
circumstances in which it's proper for appellate courts to do 
their own independent fact finding outside of the record of the 
case that they're reviewing?
    Judge Jackson. I am not aware of any. There might--there 
may be, but in my experience, the fact finding is done at the 
trial level. The court of appeals only looks at facts under 
standards like clear error. And so, therefore, the record is 
usually set and established by the time you get to the court of 
appeals.
    Senator Whitehouse. Yes, and I think that it's actually one 
of the constraints on the judiciary that they don't get to go 
and do free-range fact finding. They have to be tethered to the 
record of the actual case before them. It's related to the case 
or controversy requirement.
    Judge Jackson. That is correct, Senator.
    Senator Whitehouse. And in that regard, civil juries are, I 
think, something that Americans have prided themselves on for a 
long time. You go back to the colonial days, and the civil jury 
was one of the immediate imports from England. Every colony set 
up civil juries. When the crown tried to interfere with civil 
juries in the colonies, it became casus belli for the 
Revolution. It was in the Declaration of Independence of what 
the king had done wrong that offended the colonists and caused 
the Revolution. And the documents around the founding and 
around their creation of the Constitution all reflect 
passionate belief in the importance of the jury, including the 
civil jury, which as you may know from your experience in the 
trial court, is getting to be a rarer and rarer creature. And, 
in fact, there are trial judges who have written about how do 
we--how do we keep the civil jury alive.
    And I'd like to hear your thoughts about whether there's 
more to the civil jury than just a fact-finding appendage of 
the trial judge, whether it was seen by the founders and 
whether it belongs in our constitutional structure as a part of 
the responsible self-governance that was established by our 
Constitution.
    Judge Jackson. Yes, Senator, it is part of our ordered 
liberty. It is a mechanism by which citizens can participate in 
governance. They can be called upon by the court to sit in 
judgment of other people in the community, and it was something 
that was a part of the democratic vision of the founders from 
the very beginning.
    Senator Whitehouse. Blackstone was one of the legal experts 
who the early lawyers of the United States relied on. I suppose 
there were lawyers who had nothing but Blackstone's 
commentaries and the Bible on their shelves. And Blackstone 
described the jury as having a role to make sure that the power 
and clout of big and powerful interests could be protected 
against, that it was a refuge from the power of what he called 
the more powerful and wealthy citizens. There was long 
experience in Government of corruption, whether it was getting 
to a Chief Executive and getting them to do things your way for 
improper reasons or whether it was controlling a legislature, a 
legislative body.
    But the jury is fundamentally different because they don't 
stick around. They're there for one case and one case only, 
then they disappear. You can't fix them so that they will 
decide your way over time. And if in that one case you try to 
fix them, you've likely committed a criminal offense. Tampering 
with the jury is a pretty significant thing, is it not?
    Judge Jackson. It is.
    Senator Whitehouse. If anybody tampered with the jury of 
yours, how would you respond?
    Judge Jackson. Oh, very seriously.
    Senator Whitehouse. So the jury lives in a protected 
environment from a lot of the political power and the danger of 
corruption that the elected branches often suffer. And do you 
have thoughts about the importance of the civil jury in that 
regard as the bastion where people can go where they'll get a 
square deal from regular citizens, and can stand toe-to-toe 
with the lawyers for however big or mighty an opponent they may 
have with almost no danger, let's put it that way, little 
danger, lessened danger, of the fix being put in?
    Judge Jackson. Well, certainly the jury system is designed 
in that manner, that citizens are brought in from the 
community. When we pick juries, we ask as judges, do any of you 
in this pool have any connection to anyone. You know, I've----
    Senator Whitehouse. So you screen them for conflicts of 
interest.
    Judge Jackson. You screen them heavily. That's part of 
the--what we call the voir dire, the sort of----
    Senator Whitehouse. Yes, we don't do that with people who 
come to Congress.
    [Laughter.]
    Judge Jackson. Well, in the court system.
    Senator Whitehouse. They come with their conflicts of 
interest, often right on their lapels, sometimes hidden in 
their back pockets, but juries, not so, correct?
    Judge Jackson. Not so, and, in fact, that would be a reason 
to exclude someone from the jury. And we even ask, you know, do 
any of you--as judges we say, do any of you know me, and if you 
do, you'll have to let me know and be removed because the idea, 
as you've indicated, is to get people from the community who 
have no connection to the case and can hear the evidence that's 
presented in the courtroom and the arguments of the lawyers, 
and make a decision that is unconnected to any sort of personal 
interest they might have.
    Senator Whitehouse. Protecting the jury against the dangers 
of bias or corruption, giving the parties before it a clean and 
fair shot.
    Judge Jackson. Yes, Senator.
    Senator Whitehouse. So with any luck, you'll be on the 
Supreme Court before long, and I hope you will remember all of 
this because it seems to me that the Court has been on 
something of a campaign to deprecate and diminish the civil 
jury, including by allowing big corporations to build into 
their standard contracts, buried way down in the fine print 
that folks often don't read. And even if they do read it, 
they'll never get through the phone tree to find somebody to 
complain about it to try to strike it out of the contract. It's 
a take-it-or-leave-it adhesion proposition, and they build into 
that that you've given up your right to a jury, your Seventh 
Amendment right to a civil jury. It's right actually in the 
Bill of Rights.
    I cannot think of another right that the Court pays less 
attention to or throws more readily under the bus. If you read 
the mandatory arbitration cases, there's rarely a mention of 
the Seventh Amendment, and it seems to me that flies in the 
face of the purpose of the jury, to allow the citizens of the 
greatest power and wealth, or, today, corporate citizens, to 
actually be able to take on the ability on their own through 
contracts that the customer has no chance to negotiate, the 
employee has no chance to negotiate, actually take away that 
right that was at the heart of our founding, without a squeak 
of objection or even notice by the Court. And I think it's 
created a dramatic shift in power toward big corporations, and 
I think it has harmed innumerable employees and customers.
    So I am extremely happy that you have been able to answer 
these questions with such clarity about the role, and the 
history, and the value of the civil jury and its importance, 
not just as your fact-finding adjunct, but it's an important 
part of our constitutional structure, part of our structured 
liberty as Americans. I wish you well. I'll see you again 
tomorrow, and thank you so much for your patience with all of 
us here today.
    Chair Durbin. Thank you, Senator Whitehouse. And let me 
just say a positive word to follow up. This Committee in the 
last few weeks has passed legislation signed into law by 
President Biden, which, in cases of sexual harassment, provide 
that individuals who are complaining have the option of a jury 
trial, despite efforts to steer them into mandatory 
arbitration. It is the decision of the complainant the venue 
that they will seek. I think that is a step in the right 
direction, and it was passed it out of this Committee on a 
bipartisan basis.
    And so I'd like to ask everyone to consider returning 
promptly at 1:30 for the much-anticipated Senator Lee of Utah.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. The Senate Judiciary Committee will resume.
    I would like to make a statement in terms of some research 
that was undertaken during the break.
    Judge Jackson, earlier, Senator Cornyn said that you had 
called former President George W. Bush and Secretary of Defense 
Donald Rumsfeld, a, quote, ``war criminal,'' unquote. I noticed 
a little surprise in your reaction and I was surprised by the 
allegation.
    During your service as a public defender, you filed several 
habeas petitions against the United States naming former 
President Bush and former Secretary Rumsfeld in their official 
capacities.
    You were advocating on behalf of individuals who argued 
they were civilians wrongly classified as enemy combatants of 
the United States and your filing was part of your professional 
responsibility to zealously advocate for your clients.
    In those petitions, the individuals raised more than a 
dozen claims for relief, one of which was an allegation that 
the Government had sanctioned torture against the individuals, 
which constituted war crimes under the Alien Tort Statute.
    The Alien Tort Statute allows courts to hear cases for 
alleged violations of the law of nations or the treaties of the 
United States. Apparently, this is what Senator Cornyn was 
referencing.
    So, to be clear, there was no time where you called 
President Bush or Secretary Rumsfeld a, quote, ``war 
criminal,'' close quote. Did you want to respond?
    Judge Jackson. Correct, Senator.
    Chair Durbin. Okay.
    Judge Jackson. No. Thank you. That was correct.
    Chair Durbin. Thank you very much.
    We now recognize Senator Lee.
    Senator Lee. Thank you, Mr. Chairman.
    Thank you, Judge Jackson, for being here.
    I want to talk today about some things you heard about 
yesterday. There was a lot of talk from Members of this 
Committee about judicial philosophy. I want to talk a little 
bit about what that means and why it's important.
    We'll start with what it means, at least, to me. One of the 
things that you heard from a lot of Members of the Committee, 
whether they couched it in terms of judicial philosophy or not, 
relates to the idea that justice should be blind, that justice 
properly administered within our system is blind, and that, 
therefore, individual justices and judges serving in Article 
III courts should be blind in the sense that they are able to 
see and understand and interpret the law, understand what the 
law is while understanding that the idea of what the law should 
be is left to other branches of Government, not to the 
judiciary.
    In this respect, we recognize that blind justice and blind 
justices--those who are blind to the things they're supposed to 
be blind to--are those willing to recognize that if there's a 
policy flaw in the law and if there's a policy change that 
needs to be made it's not the role of the court to change it. 
That belongs to two different branches of Government, 
primarily, to Congress.
    This, of course, requires judicial restraint. It requires 
judicial humility, and it gets back to what I was describing 
yesterday when I referred to Justice Barrett drawing on the 
analogy from ``The Odyssey'' of Odysseus binding himself to the 
mast of the ship.
    Most of us refer to this judicial philosophy as textualism. 
Textualism is neither liberal nor conservative. It's neither 
Republican nor Democratic. It is just the approach that says 
what the law says matters and the job of the jurist is to look 
at the text and figure out what the text means to ascertain the 
original public meaning of the text in question.
    While I doubt there are any Members of this Committee who 
would disagree with the idea that justice should be blind in 
this respect and that policy changes need to be made by the 
political branches of Government, primarily by the legislative 
branch and not by the courts, we did hear some statements that, 
I think, are at least a little bit at odds with that concept of 
justice.
    One of my colleagues mentioned that you should interpret 
the Constitution in a way that works for the people of today. 
Fair enough. We, certainly, don't want to interpret the 
Constitution in a way that doesn't work.
    But, again, that's not the objective. The objective is not 
to ascertain good policy. The objective is to ascertain what 
the law requires.
    You were urged to consider the effects of the Court's 
actions on people's lives. There, again, insofar as this 
relates to policy, it's not really the job of the courts.
    You were admonished that you must, quote, ``be able to see 
the real people at the other end of the Court's rulings like 
Americans who are one Supreme Court decision away from losing 
their health insurance or one Court decision away from the 
ability to make their own health care choices.'' And the list 
goes on and on.
    Now, that type of judicial philosophy would have you step 
into the role of policymaker and decide what the law should be 
rather than what the law is.
    You also heard quoted a couple of times yesterday--quoted 
or paraphrased or otherwise referenced--Federalist 78, in which 
Alexander Hamilton refers to the difference between law--
between will and judgment. Will, as expressed by Hamilton, 
refers to what the law should be. Judgment pertains to what the 
law is. The judicial branch has the latter power but not the 
former. The legislative branch has the former but not the 
latter.
    Judge Jackson, I'd love to get your thoughts on this 
discussion about what it means--what blind justice is, why 
that's important. Let's start with this formulation of it, 
though.
    Does the law determine the outcome of a case or does the 
outcome of the case determine the law?
    Judge Jackson. Thank you, Senator.
    The law determines the outcome of a case.
    Senator Lee. And so anytime you're looking at a case and 
you're looking at the outcomes for ordinary Americans, for day-
to-day Americans, if you're looking beyond the scope of 
deciding that case and if you're looking even within that case 
beyond what the law says, you would be stepping into a province 
of a different branch. Is that right?
    Judge Jackson. I believe so. The law and the facts of the 
case determine the outcome of cases.
    Senator Lee. I think that's an accurate statement. It's 
important to emphasize this. This is also something that 
Hamilton describes in Federalist 78, where he goes on to say 
anytime you start to see the courts start to exercise will 
instead of judgment, the result is supplanting the will of the 
people as expressed through their elected representatives 
through the courts, and that tends to undermine the whole 
system.
    You see, there's a reason, of course, why we give life 
tenure to Article III judges and justices and that is because 
we want to make sure that they have the power, the authority, 
the discretion, and the confidence to issue a decision that 
they might not be comfortable with.
    In fact, a judge who always agrees with and is always 
comfortable with his or her own opinions is, as Justice Scalia 
used to say, not a very good judge.
    So we wanted them, you, all, to have confidence in being 
able to make the right decision even knowing that you and the 
public at large might be uncomfortable with the result it 
produces.
    Congress makes laws that you won't always agree with. 
Congress is accountable to the people at regular intervals. You 
can fire every Member of the House of Representatives every 2 
years. You can fire one-third of us in the Senate every 2 
years.
    But we insulate judges and Supreme Court Justices from that 
same accountability precisely for this reason. It's because 
political accountability is so important.
    This is borne out in the judicial oath, one of the oaths 
that you'll take if confirmed to this position as an Associate 
Justice in which you'll swear or affirm that you'll administer 
justice without respect to persons and that you'll do it 
faithfully and impartially.
    I read this to mean that you'd do it without consideration 
of external circumstances, external considerations, policy 
considerations, or otherwise.
    Now, this relates to some interaction that you and I had 
when you came before this Committee for your confirmation to 
the U.S. Court of Appeals for the D.C. Circuit where you now 
sit.
    In connection with that hearing, I submitted some questions 
to the record in which I asked you whether--to what extent the 
Constitution protects rights that are not enumerated in the 
Constitution itself and, if so, to specify what those rights 
were.
    You responded by citing a number of cases including 
Griswold v. Connecticut, Roe v. Wade, Loving v. Virginia, and a 
handful of others. You also suggested that the Ninth Amendment 
was something--was a source for such rights, unenumerated 
rights.
    The Ninth Amendment, of course, states, quote, ``that the 
enumeration in the Constitution of certain rights shall not be 
construed to deny or disparage others retained by the people.''
    Judge Jackson, what specific rights has the Supreme Court 
identified as flowing from the Ninth Amendment? And by that, I 
mean, specifically from the Ninth Amendment, rather than in 
sort of an also-ran list of other features of the Constitution 
that might back up a particular ruling. What rights has the 
Constitution identified as flowing specifically from the Ninth 
Amendment?
    Judge Jackson. Thank you, Senator.
    The Supreme Court, as I understand it, has not identified 
any particular rights flowing directly from the Ninth 
Amendment, although, as you said, the text of the Amendment 
suggests that there are some rights that are not enumerated.
    Senator Lee. Right. Right. Its very existence and its very 
language suggest that, which opens up other questions as to how 
those are to be resolved. It's led to considerable debate among 
scholars and jurists alike as to whether, to what extent, and 
what way this is enforceable--those rights are enforceable by 
the courts.
    But how would we go about deciding that? How would--how 
would jurists go about deciding this question appropriately? In 
other words, would it be--would it be more appropriate to say 
we will ascertain the existence of rights protected by the 
Ninth Amendment based on the contemporaneous understanding at 
the time of the ratification of the Ninth Amendment or would it 
be more open ended to protect rights that we think are 
important today?
    Judge Jackson. Thank you, Senator.
    The Supreme Court now very clearly has determined that in 
order to interpret provisions of the Constitution we look to 
the time of the founding and we ascertain based on what the 
original public meaning of the words of the Constitution were 
at the time.
    Sometimes that yields a particular answer. Other times you 
may have to look to practices historically from that time. But 
that is--that would be the way in which you would go about 
interpreting the Ninth Amendment.
    Senator Lee. Could it also be that it leaves this to be 
decided at the discretion of the Supreme Court itself, in other 
words, not based on any historical precedent but based on what 
the Supreme Court Justices themselves deem appropriate at the 
moment?
    Judge Jackson. I don't think so.
    Senator Lee. And why is that?
    Judge Jackson. Because the way in which the Supreme Court 
interprets the Constitution is with reference to the meaning of 
the text at the time. That is one of the constraints, as I 
mentioned, in terms of my own way of handling--interpreting the 
law.
    One of the constraints is that you're bound by the text and 
what it meant to those who drafted it.
    Senator Lee. At the time. Gotcha. Yes.
    Now, on February 1st of this year, President Biden said 
that he was looking for a Supreme Court nominee--this was, as I 
recall, right after Justice Breyer announced that he would be 
stepping down and before he had announced whom he might 
nominate, that he was looking for a nominee, quote--with, 
quote, ``a judicial philosophy that's more one that suggests 
that there are unenumerated rights to the Constitution and all 
new members mean something, including the Ninth Amendment.''
    So do you share the judicial philosophy that President 
Biden described in that statement?
    Judge Jackson. Senator, I haven't reviewed that statement. 
But I have not discussed anything about enumerated rights--
unenumerated rights with the President.
    Senator Lee. With the President.
    Judge Jackson. Yes.
    Senator Lee. Did--so did President Biden ask you either 
about your judicial philosophy, more broadly, separate and 
apart from the Ninth Amendment or ask you about your approach 
to the Ninth Amendment?
    Judge Jackson. He did not.
    Senator Lee. In a primary election debate that he had as a 
Presidential candidate in Nevada in 2007, Joe Biden stated, 
quote, ``I would not appoint anyone who did not understand that 
Section 5 of the Fourteenth Amendment and the Liberty Clause of 
the Fourteenth Amendment provided a right to privacy. That's 
the question I'd ask them. If that is answered correctly that 
that is the case, then it answers the question, which means 
they would support Roe v. Wade.''
    I assume his reference to the Liberty Clause--I assume he's 
referring to the Due Process Clause of the Fourteenth 
Amendment. In context, that appears to be what he's saying. Did 
President Biden ask you whether you agreed with his analysis of 
the Fourteenth Amendment as it relates to the right to privacy?
    Judge Jackson. He did not.
    Senator Lee. Tell me this. When we look at any provision of 
the Constitution, one of the many reasons it's helpful to look 
at the original understanding in addition to the fundamental 
reason that you described, it can help us understand what 
motivated it and it can help us understand the actions of those 
who voted within Congress to propose text to be amended to the 
Constitution and those who voted to ratify it.
    We've got a number of amendments, including the amendment 
that he referred to in that last quote I read, that had an 
understanding, at least an understanding that included certain 
``thou shalt nots'' for Government.
    The Equal Protection Clause, I think, is a provision of the 
Fourteenth Amendment that people understood. Among anything 
else it might do restricts government's ability to treat people 
differently on the basis of race. Consistent with the Equal 
Protection Clause of the Fourteenth Amendment, when is it 
permissible for government to treat a person differently on the 
basis of race?
    Judge Jackson. Thank you, Senator.
    The Supreme Court has interpreted the Equal Protection 
Clause, as you say, to generally prohibit classifications on 
the basis of race and it said--says that those classifications 
are to be rigorously scrutinized. They--strict scrutiny, which 
is a standard that applies that looks at the purposes of the 
Government and the means by which the Government seeks to 
achieve any end related to such classification.
    The Government would have to have a compelling interest in 
making that classification and the means that it selects would 
have to be narrowly tailored to achieve that interest.
    Senator Lee. And so those compelling interests can't be for 
light or transient reasons. They can't just be something like 
we feel like it, in other words?
    Judge Jackson. Correct.
    Senator Lee. And the reason for this is because, well, 
number one, it's bad--bad for anyone to treat another person 
differently on the basis of race. It's especially bad when 
government does it because there's not exactly equal bargaining 
power when you're dealing with the relationship an individual 
has with government.
    By definition, it's a particularly unfair form of 
discrimination when it's government doing it. Governments have 
enforcement officers. They have armies. They have the means of 
enforcing their will and their laws, and that's one of the 
reasons why it's so important.
    What about under statute? Consistent with Title 7 of the 
Civil Rights Act of 1964, when is it permissible for an 
employer to treat an employee or a prospective employee 
differently on the basis of his or her race?
    Judge Jackson. By statute under Title 7, it is generally 
impermissible.
    Senator Lee. And permissible only in very narrow 
circumstances?
    Judge Jackson. I believe so. The statute itself has some 
restrictions in terms of to whom it applies----
    Senator Lee. Right.
    Judge Jackson [continuing]. The employers.
    Senator Lee. Some exclusions in terms of religious 
employers, for example, not being able to discriminate on the 
basis of race, but it exempts religious employers within 
certain spheres in order to be able to protect that religious 
employer's discretion to operate within its faith and the rules 
of its faith.
    And by doing that, it makes that much clearer--by making 
that distinction it makes that much clearer that discrimination 
on the basis of race in employment is not something that the 
law smiles upon, nor should it.
    Let's talk about the Commerce Clause for a minute, if 
that's all right.
    Now, at the time of the founding, the Founding Fathers 
didn't foresee and almost certainly could not have foreseen the 
invention of radios, televisions, airplanes, the internet, and 
telephone networks. And, yet, all of those things are governed 
by Federal law--by Federal law and not by State law. Why is 
this constitutional?
    Judge Jackson. Well, Senator, the Commerce Clause was 
initially interpreted by the Supreme Court to be very broad to 
allow for Federal regulation of interstate commerce and the 
growth of the economy in this country.
    But over time, the Supreme Court has made clear that the 
Commerce Clause limits the Federal Government, that there is 
limited authority under the Commerce Clause. The state of the 
law now is such that the Federal Government, through the 
Commerce Clause, is only permitted to regulate channels of 
interstate commerce, instrumentalities of interstate commerce, 
and activities that substantially affect interstate commerce.
    And with respect to the third category the Supreme Court 
has made clear in the Lopez case and in Morrison that 
noneconomic activities are not covered by Commerce Clause 
authority and in the NFIB case--the ACA case--the Supreme Court 
made clear that inactivity is also not covered and not 
authorized under the Commerce Clause.
    Senator Lee. Right. And most of the items that I identified 
in my question--in fact, all of them, I believe--would fall 
under the category of channels and instrumentalities of 
interstate commerce.
    We're dealing with interstate airways, airwaves, waterways, 
networks, things like that--things that depend for their 
existence, for their effectiveness, on their operation 
interstate such that they couldn't--no one could effectively 
regulate them and preserve their core function unless that was 
Federal. Those fit into the category of the channels and 
instrumentalities.
    With the third item that you described, the substantial 
effects interstate commerce, is there much of a limiting 
principle there? I mean, with--you referred to Lopez and 
Morrison and NFIB v. Sebelius. To my knowledge, those are the 
only three cases the Supreme Court has decided since its ruling 
in 1937 on NLRB v. Jones & Laughlin Steel, which essentially 
created the modern substantial effects case--the modern 
substantial effects standard.
    Those are the only three instances in which the Supreme 
Court identified as outside the Commerce Clause authority 
something that Congress had enacted.
    Are these meaningful constraints, in your view, or are they 
examples of Congress just getting reckless and sloppy in the 
way it drafted things?
    Some have argued, for instance, that as long as Congress 
doesn't get reckless and sloppy it can do whatever it wants 
under those. Do you have any view on that?
    Judge Jackson. Well, these cases come through the courts so 
I'll be general. The fact that Congress is limited in its 
authority under the Commerce Clause is established law.
    It is a fundamental principle of our constitutional order, 
and those limits that the Supreme Court has recognized do carve 
out categories of activity that Congress is not permitted--the 
Federal Government is not permitted to regulate. Noneconomic 
activity is a category. Inactivity is a category.
    Senator Lee. Now, the Supreme Court has also, through the 
Commerce Clause, established rules for things that the States 
may not do, as referred to as the--you know, the so-called 
Dormant Commerce Clause.
    The Dormant Commerce Clause acknowledges the power of 
Congress--the exclusive domain of Congress--as being--
regulating interstate commerce, that there's no Federal cause 
of action to allow for the invalidation of a State law under 
the Commerce Clause. It's been something that's been adopted by 
the courts.
    Is that an appropriate exercise of the courts' judicial 
power or does that amount to de facto legislation on the part 
of the courts?
    Judge Jackson. Well, Senator, I wouldn't characterize it. I 
know that's what the Supreme Court has permitted. The Dormant 
Commerce Clause is a principle that supports the interstate 
nature and regulation and authority of the Federal Government 
and so States are not permitted under that doctrine to 
discriminate against other States, to preference their own 
commerce in a way that interferes with interstate commerce.
    Senator Lee. I want to turn back for a moment to a line of 
inquiry you had with Senator Durbin earlier today when you were 
talking about your sentencing in these child pornography cases. 
I want to make sure that I understand your answer there.
    If I understand it, you were making the argument that your 
concern was that the laws in this area didn't adequately take 
into account the transfer of these materials by electronic 
means to be transmitted, received, and stored through 
computers. Is that--am I understanding that correctly?
    Judge Jackson. Well, Senator, my--the point that I was 
making was that the Sentencing Commission, back when I was part 
of it and even since, tasked with the responsibility to 
evaluate and make recommendations and look at the data and 
information about cases has looked at the operation of the 
child pornography guideline, not so much the statute but the 
guidelines, which the Congress has tasked the Sentencing 
Commission with developing, and there are aspects of the child 
pornography guideline that Congress, in legislation, has 
required.
    It required certain enhancements to be included in the 
guideline and some of those enhancements, the data is now 
revealing, don't take into account the change in the way that 
this horrible offense is now committed.
    Senator Lee. But the fact that it's easier to commit the 
offense shouldn't diminish the severity of the punishment, 
should it, I mean, any more than the more widespread 
availability of certain drugs, the more widespread availability 
of certain weapons might--I mean, surely you wouldn't argue for 
a lower sentence when certain things become easier in other 
criminal contexts. So why is this one different?
    Judge Jackson. Well, the sentencing enhancements that are 
in the guidelines are designed to help courts differentiate 
between different levels of culpability. Congress will say this 
is an offense, whatever it is, and the maximum penalty is X, 
and in most cases the range is between zero and something like 
20 years that Congress gives when it establishes a penalty.
    The point of the guidelines is to help judges figure out 
where in that range, between zero and 20 years, a particular 
defendant should be sentenced, and the guidelines have 
gradations in them that relate to various aspects of the 
commission of the crime.
    Senator Lee. Go ahead.
    Judge Jackson. Sorry. So the commission does data--it does 
data gathering and research to figure out how crimes are 
committed and what gradations should matter in terms of the 
range of culpability because the problem of not doing that or 
of getting it wrong is that you are not able to adequately 
assess and determine the differences among offenders on the 
scale.
    Senator Lee. I understand that. And so--but in these cases, 
as I understand it, all 10 of the cases that we've reviewed on 
record where you've sentenced someone to a--for a child 
pornography conviction--in all 10 of those cases you departed 
from the guidelines and departed downward.
    It's hard for me to understand departing from those in 
every case you've got because isn't that supposed to--isn't a 
departure supposed to be grounded in finding that it's outside 
the heartland of cases in that range--cases of that sort?
    Judge Jackson. Yes, Senator, and as I said before, these 
are horrible cases that involve terrible crimes, and the court 
is looking at all of the evidence consistent with Congress' 
factors for sentencing. The guidelines are one factor.
    But the court is told that you look at the guidelines but 
you also look at the nature and circumstances of the offense, 
the history and characteristics of the offender. There are a 
series of factors.
    In the cases you are also getting recommendations and in 
most of the cases--I haven't pinned it all down but in most of 
the cases, if not all of the cases, the Government is asking 
for a sentence below the guidelines because this guideline 
system is not doing the work in this particular case.
    Senator Lee. Understood. Section 230 of the Communications 
Decency Act provides a degree of immunity for tech companies 
operating in the space of being online interactive service 
providers. It immunizes them from certain cause of action that 
would otherwise apply against them.
    Would it be within Congress' authority to condition the 
receipt and availability of Section 230 immunity on those 
online interactive service providers operating as a public 
forum that is not discriminating on the basis of a viewpoint or 
the viewpoint of those posting on them? Would that be within 
our authority?
    Judge Jackson. Senator, I can't comment on a particular 
issue about whether or not it is constitutional or not. But the 
criteria that you identify it would be relevant, I think, as to 
whether or not the Government is seeking to regulate along 
viewpoint lines under the First Amendment. That is something 
that is generally impermissible.
    Senator Lee. Thank you, Mr. Chairman.
    Chair Durbin. Thank you very much, Senator Lee.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Chairman and 
Senator Grassley.
    Welcome, again, Judge, the wonderful family. They all seem 
to be awake throughout this entire hearing.
    I just wanted to--before I start, wanted to get at 
something Senator Lee was talking about. It's not the Dormant 
Commerce Clause. But I really appreciated early on how you 
talked about these child pornography cases.
    As a former prosecutor, I could totally see where you were 
coming from when you talked about looking at these cases as a 
mom and a judge, and would it surprise you at all that other 
judges, including a number of them that were supported by our 
colleagues on the other side of the aisle, have given out 
similar sentences in child pornography cases?
    Judge Jackson. No, Senator, it would not surprise me 
because these cases are horrific and there's a lot of disparity 
because of the way the guidelines are operating in this 
particular area.
    But in every case--in every case that I handled involving 
these terrible crimes I looked at the law and the facts. I made 
sure that the victims'--the children's perspectives were 
represented and I also imposed prison terms and significant 
supervision and other restrictions on these defendants.
    Senator Klobuchar. Well, thank you. And I just also want to 
note, and I know others have brought this up, the letter of 
support from the Fraternal Order of Police in which they said, 
``From our analysis of Judge Jackson's record in some of her 
cases we believe she has considered the facts and applied the 
law consistently and fairly on a range of issues. There is 
little doubt that she has the temperament, intellect, legal 
experience, and family background to have earned this 
appointment. We are reassured that should she be confirmed she 
would approach her future cases with an open mind and treat 
issues related to law enforcement fairly and justly,'' and that 
matters a lot to many of us.
    Now, I want to go back to something I was talking about 
yesterday and that is why today's hearing is so monumental, 
including that it is occurring at a time when we, as Americans, 
have been reminded again, due to the courage of Ukrainians 
thousands of miles away, that we can never take our democracy 
or, for that matter, our courts for granted.
    It is also happening at a time when we are seeing each 
other for the first time after a 2-year pandemic, connecting to 
each other again, and I hope this moment will be a moment where 
we see a renewed interest in our democracy, that we respect 
each other's rights and views, and that we see that we are not 
a nation of 300-plus million silos. Instead, we are a nation 
committed to this idea that what unites us as Americans is much 
bigger than what divides us.
    And so in that context, you come before us with this 
incredible strength, legal acumen, grace under pressure that 
you have demonstrated today and you also have come before us, 
as we've noted, as the first Black woman to be nominated 
following 115 Justices who have been confirmed.
    And I will note of the 115 Justices, 110 have been men, and 
I actually once reminded late-night show Trevor Noah of similar 
issues in the U.S. Senate. In fact, in the history of the U.S. 
Senate, of the nearly 2,000 people who have served, only 58 
have been women. And he responded that if a nightclub had 
numbers that bad they'd shut it down.
    But today, Judge, we're not shutting anything down, not the 
Court, not the Senate, and you are opening things up, and I 
think one of the things your nomination presents is an 
opportunity to address a decline in the public's confidence in 
our Court and, increasingly, many, if you see public opinion 
polls, see the Court as over politicized or out of touch.
    At the same time, we've seen an alarming rise in threats 
targeting members of our judiciary for just doing their jobs. 
How do you think we can work to maintain the public's 
confidence in the Court? What do you see your role in that?
    Judge Jackson. Thank you, Senator.
    Public confidence in the Court is crucial. As has been said 
here earlier, the Court doesn't have anything else, that that 
is the key to our legitimacy in our democratic system, and I am 
honored to accept the President's nomination, in part, because 
I know it means so much to so many people. It means a lot to 
me.
    I am here standing on the shoulders of generations of 
Americans who never had anything close to this kind of 
opportunity, from my grandparents, who had just a grade school 
education but instilled in my parents the importance of 
learning, and my parents, who I've mentioned here many times 
already, who were the first in their families to get to go to 
college.
    So this nomination, against that backdrop, is significant 
to a lot of people and I hope that it will bring confidence, it 
will help inspire people to understand that our courts are like 
them, that our judges are like them, doing the work, being part 
of our Government. I think it's very important.
    Senator Klobuchar. Very good. I think along those lines 
your wonderful mentor, Justice Breyer, I quoted him about how 
he said we can help maintain public acceptance of the Court--
and these are his words--``We can do it best by helping ensure 
that the Constitution remains workable in a broad sense of the 
term.''
    Specifically, the Court can and should interpret the 
Constitution in a way that works for the people of the day. 
Like, as you know, I think Section 2--Article II Section 2 
doesn't refer to the Air Force because we didn't have an Air 
Force back then. So there are things about the Constitution 
that, of course, as we've gone along, have been interpreted to 
meet the moments of our time.
    What do you think Justice Breyer means when he says the 
Constitution should be interpreted in a way that works for the 
people of today and do you think a Justice can be both 
pragmatic and objective and respect history?
    Judge Jackson. I do, and I think that the Justices have 
demonstrated that. Some of their recent opinions have had to 
deal with modern technology, technologies that did not exist at 
the time of the founding.
    So, for example, the Riley case, the Carpenter case--these 
were Fourth Amendment decisions in which the Court was asked to 
determine whether or not it violated the Fourth Amendment for 
the police to search someone's cell phone without a warrant or 
for the police to use GPS location data to determine where 
someone had been without a warrant and, obviously, those 
technologies did not exist. But what the Court did was it 
looked back at the time of the founding and determined what the 
reasonable expectations of privacy were related to the term 
unreasonable searches and seizures, which appears in the 
Constitution, and having assessed what that meant back then 
they could use those principles to decide whether or not a cell 
phone is like someone's home these days with all of the 
information and all of the things that are stored there.
    And the Court determined that it was a violation of the 
Fourth Amendment--that the police officers needed a warrant--
and they did so with reference to what the Constitution meant 
in history.
    Senator Klobuchar. Very good. You know, you were viewed as 
a judge--and you talked about this a bit yesterday--that writes 
lengthy opinions, that believes you should spell things out, 
and believes in being transparent. Is that a fair 
characterization? I just want to----
    Judge Jackson. That is. That is.
    Senator Klobuchar. Okay. Good. I'm sure your clerks know 
that.
    And I want to talk about something, to me, that's a bit the 
opposite and that's something that some have termed the shadow 
docket and that includes decisions that the Court makes on an 
expedited basis that are usually unsigned and issued without 
oral argument or a full briefing.
    In the last few years, we've seen the Court increasingly 
deciding cases in this way, often over the dissent of maybe 
three or four of the Justices.
    Last term, the Court granted 20 requests for emergency 
relief, a historically high number. Ten years ago, in the 
October term of 2011, the Court granted only six requests in an 
entire year.
    When do you think it's appropriate for the Supreme Court to 
grant emergency relief, use this docket? When are the 
circumstances that warrant this? And I think you know these 
decisions have a profound effect on people's lives. I'll just 
use one example.
    Last fall, in a one-paragraph decision, a majority of the 
Court refused to stop the enforcement of a Texas law that 
severely restricts a woman's access to abortion. In that case, 
even Chief Justice Roberts objected to the Court's decision to 
let the law take effect, calling the statutory scheme not only 
unusual but unprecedented.
    As someone who believes in transparency, could you talk, in 
general, about when you think the shadow docket should be used, 
when emergency relief should be given, and how, if it's 
overused, it could undermine public confidence in the Court?
    Judge Jackson. Thank you, Senator.
    Well, there's a balance that the Court has to consider, and 
that it--insofar as, on the one hand, it has always had an 
emergency docket. The need for flexibility, the ability to get 
answers to the parties at issue, is something that's important 
in our system.
    On the other hand, the Court has also considered the 
interest in allowing issues to percolate, allowing other courts 
to rule on things before they come to the Court. And I am not 
privy at the moment to the Justices' views and why and how 
they're using the emergency docket in these cases.
    If I was fortunate enough to be confirmed, I would look at 
those issues. But it's an interesting and important set of 
issues.
    Senator Klobuchar. Okay. You know, I think just another 
example of this, by the way, is the day before Wisconsin's 
primary election on April 6th, 2020, right as the first 
beginnings of some of the health orders that came out with the 
beginning of the pandemic the Court issued a 5-4 decision 
halting a district court's order allowing voters extra time to 
cast their absentee ballots so they could avoid waiting in line 
to vote and back then, people, literally, got COVID--election 
workers and the like--because of this.
    And, again, I'm not going to belabor this point, but I 
think some of this is these decisions that are made that don't 
reflect some of the careful consideration that you have made in 
many of your decisions as a judge.
    But speaking of voting, I'll ask you one question on that 
front. Since the Supreme Court gutted the Section 5 
preclearance regime of the Voting Rights Act in its decision in 
Shelby County, the D.C. Circuit has not seen many voting rights 
cases.
    However, as you know, Justice Ginsburg dissented in that 
case, describing the right to vote as the most fundamental 
right in our democratic system. Do you agree that the right to 
vote is fundamental?
    Judge Jackson. Senator, the Supreme Court has said that the 
right to vote is the basis of our democracy, that it is the 
right upon which all other rights are, essentially, founded 
because in a democracy there is one person, one vote and there 
are constitutional amendments that relate directly to the right 
to vote. So it is a fundamental right in our democracy.
    Senator Klobuchar. Yes. I know that's how Justice Barrett 
answered that question as well in her recent hearing.
    I'm going to turn to an area that Senator Lee and I--we 
both chaired the Subcommittee on Antitrust and so it's near and 
dear to my heart. So I thought I'd spend a little time. It 
usually gets relegated to the second round but I'm putting it 
up on the docket here.
    U.S. antitrust law has been described as a comprehensive 
charter of economic liberty, and I agree, and effective 
antitrust enforcement plays a critical role, as you know, in 
protecting consumers and workers, promoting innovation, 
ensuring new businesses have an opportunity to compete.
    It, actually, from really early on in our country's history 
has been a very important part of assuring that capitalism 
works.
    And in January, for the first time since the dawn of the 
internet, the Senate passed a tech competition bill out of the 
Judiciary Committee. It's a bill that Senator Grassley and I 
lead. Many of the Members of this Committee supported the 
bill--a 16 to 6 vote. It's called the American Innovation and 
Choice Online Act. It's now headed to the Senate floor.
    I'm not going to ask you about that bill, obviously. But I 
want to put this in some context.
    While tech monopolies have seized from 50 to 90 percent 
market share in major parts of their business lines, it is 
clear to me when you look at the plain language of the Sherman 
Act, Clayton Act, laws that are in place, that these monopolies 
are not okay.
    However, court rulings for decades in antitrust have 
created some major obstacles to taking on these cases, and it's 
not just court rulings. It is on us--with, as I said, the dawn 
of the internet decades having passed, it is on us, the Senate 
and the House, to update our laws this year to give enforcers 
the resources to do their jobs, something you, if confirmed, 
would not have a role in.
    But the role of the courts is also very critical. You have 
been nominated to replace Justice Breyer, who came to the Court 
with a strong background in antitrust law. I know you've 
handled a case. You and I discussed it in my office. I think it 
got--I think it got decided. The merger was abandoned. So you 
didn't have to rule on the merits of it. It was back in 2017--a 
FTC challenge.
    But I'll just quote something that Justice Breyer once 
said. He told this Committee, ``If you're going to have a free 
enterprise economy then you must have a strong and effective 
antitrust law.'' Do you agree with Justice Breyer's statement 
and how would you characterize the goals of our antitrust laws?
    Judge Jackson. Well, thank you, Senator.
    The antitrust laws protect competition and, as you said, 
therefore, protect consumers and competitors and the economy as 
a whole, and the Sherman Act and the Clayton Act are broad in 
their statements and their protections, and there's a lot of 
precedent in this area.
    If I were confirmed, I would use my methodology to look at 
the precedents in these areas to ensure that any legislation 
that I was considering is interpreted according to the text 
consistent with Congress' intent, and in the area of antitrust 
that is ensuring that there is consumer protections.
    Senator Klobuchar. Very good. And just to play it out a 
little bit, since the 1980s, the Court, in cases like Trinko 
and Credit Suisse, Ohio v. American Express, has really made it 
increasingly difficult to enforce the antitrust laws and 
protect competition.
    And during that same time, and I know many of my colleagues 
know this, we have seen a rise in industry consolidation, 
market power, not only in tech with companies like Google and 
Amazon and Facebook and Apple but also across our economy, 
really, in everything from pharma to cat food to caskets.
    Do you--what role do you think that congressional intent 
should play in the Court's interpretation of the antitrust 
laws? And I say that because I think that we're dealing with 
some cases where Justices have actually substituted their own 
ideologies for the intent of Congress in originally passing the 
laws.
    And I think it was Justice Souter who once said before this 
Committee, ``When we are dealing with antitrust laws we are 
dealing with one of the most spectacular examples of delegation 
to the judiciary that our legal system knows,'' and he added 
that, ``Certainly, a respect for legislative intent has got to 
be our anchor for interpretation.''
    So what role do you think congressional intent should play 
in the Court's interpretation of the antitrust laws?
    Judge Jackson. Thank you, Senator.
    So I've interpreted a number of statutes in my near decade 
on the bench and in every case the text of a statute is what 
the court looks at in order to ascertain what the legislature 
intended, and that is important because, as I've said, courts 
are not policymakers and judges should not be importing their 
own policy preferences.
    Judges are restrained in our constitutional scheme in order 
to effect the will of Congress in terms of their interpretation 
of the laws.
    Senator Klobuchar. Okay. Thank you.
    I'm going to turn to another topic and that's Freedom of 
the Press--New York Times v. Sullivan, a 1964 case. We have 
recently witnessed, as you know, unprecedented attacks on 
journalists and journalism, whether it's violence overseas, 
recently losing, sadly, members of the press just in the last 
month in Ukraine, or threats and intimidation at home.
    This is very concerning to me, given the important role of 
the First Amendment. My dad was a newspaper reporter so the 
issues hit home for me.
    Can you talk about your view of the role of journalists in 
our democracy?
    Judge Jackson. Thank you, Senator.
    Journalists and Freedom of the Press is protected by the 
First Amendment. It is about the dissemination of information, 
which is necessary for a democratic form of government.
    The Supreme Court has held as much and that was the basis 
for the Court's determinations in protecting the press from 
liability in New York Times v. Sullivan and its progeny.
    Senator Klobuchar. Okay. As you know, that ruling was a 
unanimous ruling in support of the First Amendment and the 
Court held that when newspapers report on public officials they 
are only liable for untrue statements that are published with 
knowledge or reckless disregard for whether the statement was 
false.
    The Court in Sullivan based its decision on our country's, 
quote, ``profound national commitment to the principle that 
debate on public issues should be uninhibited, robust, and wide 
open''--that's their quote--and it recognized that, quote, 
``erroneous statement is inevitable in free debate,'' end 
quote, and quote, ``must be protected if the freedoms of 
expression are to have the breathing space that they need to 
survive.''
    Do you agree that those principles are just as relevant 
today as they were when the Supreme Court first decided New 
York Times v. Sullivan?
    Judge Jackson. New York Times v. Sullivan is the continuing 
binding precedent of the Supreme Court and it does state the 
principles that the Court has determined are undergirding the 
First Amendment right to free press.
    Senator Klobuchar. Okay.
    And last summer, actually, in Berisha v. Lawson, the 
Supreme Court declined to review a case in which the Eleventh 
Circuit applied New York Times v. Sullivan.
    Justice Thomas and Justice Gorsuch each dissented from the 
decision not to grant cert, arguing that the Court should 
reconsider its holding in Sullivan. How would you approach a 
case that sought to limit or overturn the central holding in 
New York Times v. Sullivan?
    Judge Jackson. Thank you, Senator.
    Anytime the Court is asked to revisit a precedent there are 
criteria that the Court uses to decide whether or not to 
overrule a precedent.
    New York Times v. Sullivan is a precedent and stare decisis 
is very important--the principle that courts--that the Supreme 
Court should maintain its precedents for predictability and 
stability in the law.
    If the Court is asked to revisit a precedent, its 
criteria--what it looks at--whether the precedent is wrong and, 
in fact, egregiously wrong, the Court has said, whether there 
has been reliance on that precedent, whether the--there are 
other cases that are similar to the precedent or that relied on 
the precedent that have now shifted so that the precedent is no 
longer on firm footing, whether or not the precedent is 
workable--sometimes the Supreme Court will issue a ruling and 
determine later that it's not actually doing what the Court 
intended--and whether or not there are new facts or a new 
understanding of the facts.
    Those various criteria are what the Court looks at to 
decide whether or not to overturn a precedent and they would be 
what I would look at if I were confirmed to the Supreme Court.
    Senator Klobuchar. Thank you. I was recalling as you spoke 
about stare decisis at one of your first nominations hearing 
for the district court and you actually--answering in response 
to one of my questions you said stare decisis is a bedrock 
legal principle that ensures consistency and impartiality of 
judgments.
    And I think, as you know, about how you've talked more 
broadly about this--moving off of the First Amendment 
questions--throughout the Court's history stare decisis has 
been so key and the Court has relied on it to maintain 
stability in the law, reaffirm its impartiality.
    As a former Justice--I know Senator Durbin just read a very 
famous book about him--Minnesotan, Justice Harry Blackmun, who 
actually Justice Breyer succeeded on the Court, said in his 
concurrence in Planned Parenthood v. Casey about the Court's 
decision to uphold Roe v. Wade--he said, ``What has happened 
today should serve as a model for future Justices and a warning 
to all who have tried to turn this Court into yet another 
political branch.''
    What role do you think that stare decisis plays in 
protecting the independence of the judiciary and avoiding the 
perception that the Court is acting as another, quote, 
``political branch? ''
    Judge Jackson. I think it plays a very important role as a 
doctrine that keeps shifts from happening in the Court, that, 
as I previously mentioned, it's very important to have 
stability in the law for rule of law purposes so that people 
can order themselves and predict their lives, given what the 
Supreme Court has already said, and if there were massive 
shifts every time a new Justice came on or every time new 
circumstances arose there would be a concern that public 
confidence would be eroded.
    And so stare decisis is a very important doctrine that the 
Supreme Court has established and it's one that furthers the 
rule of law in this country.
    Senator Klobuchar. Thank you very much.
    Well, that's a good way to end, Judge Jackson. And I do see 
Senator Cruz waiting in the wings. So, by coincidence, and it 
looks like he has things he's putting up of charts--by 
coincidence, I have--I was going to put on the record, and 
since he's here it makes a lot of sense, from the judge that 
you clerked for, Senator Cruz, Judge Luttig, who's now retired, 
and I know you were very close to him.
    And he actually submitted a letter on your behalf, Judge 
Jackson, and said in this letter--and he's an appointee of 
George H. W. Bush, similar to Judge Griffith, who introduced 
you yesterday and I've been very impressed by the support 
you've had from retired judges--obviously, not appropriate for 
current judges but retired judges appointed by both Democratic 
and Republican Presidents as well as the bipartisan votes that 
you have gotten through the U.S. Senate for your other 
positions.
    But in this letter, the judge--former Judge Luttig says 
that you are eminently qualified to serve on the Supreme Court 
of the United States, and then he actually says Republicans and 
Democrats alike should give their studied advice and then their 
consent to the President's nomination and he adds, Republicans, 
in particular, should vote to confirm Judge Jackson.
    So I thought that might be a good segue, Senator Cruz, to 
your questions.
    So I ask, Chairman, that the letter of support from former 
Judge Luttig, who employed Senator Cruz as a trusted law clerk, 
be admitted to the record.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Klobuchar. Thank you very much, Judge Jackson.
    Judge Jackson. Thank you.
    Chair Durbin. Senator Klobuchar finds a Minnesota 
connection to almost everything.
    I'm very proud of the fact that Justice Blackmun was born 
in Nashville, Illinois.
    Senator Klobuchar. Okay, he was a lawyer at the Mayo 
Clinic, as we know, and spent a lot of time----
    Chair Durbin. I'm going to lose this battle.
    Senator Klobuchar. A lawyer in Minnesota when he was chosen 
to the Supreme Court, but thank you for pointing that out.
    Chair Durbin. And now to the great State of Texas, Senator 
Cruz.
    Senator Cruz. Thank you, Mr. Chairman.
    Judge Jackson, welcome.
    Judge Jackson. Thank you.
    Senator Cruz. Congratulations.
    Judge Jackson. Thank you.
    Senator Cruz. You and I have known each other a long time.
    Judge Jackson. We have.
    Senator Cruz. We went to law school together. We were on 
the Law Review together. We were a year apart.
    Judge Jackson. Happily so, I hope, Senator.
    Senator Cruz. We were not particularly close, but we were 
always friendly and cordial.
    Judge Jackson. We were.
    Senator Cruz. And you and I had a very positive and 
productive meeting in my office, where we discussed a number of 
things, including you were there with former Senator Doug 
Jones. And we discussed how he and I and a number of other 
Senators had, for 2 different years, participated in reading 
aloud on the Senate floor Dr. Martin Luther King, Jr.'s 
``Letter from a Birmingham Jail,'' which is one of the truly 
great advocacies for civil rights our Nation has seen. And you 
and I talked together about our shared admiration for Dr. King.
    When Senator Grassley questioned you earlier, he asked in 
particular about Dr. King's speech on the steps of the Lincoln 
Memorial, where he said, most critically, ``I have a dream that 
my four little children will one day live in a nation where 
they will not be judged by the color of their skin, but by the 
content of their character.''
    Do you agree with what Dr. King said in that speech there?
    Judge Jackson. I do, Senator.
    Senator Cruz. As we were discussing it, you referenced in 
my office a speech that you gave in January 2020 at the 
University of Michigan School of Law. And after our discussion, 
I pulled a copy of your speech and read the speech in its 
entirety, and there were elements of the speech that I thought 
were really powerful.
    And let me say your opening remarks yesterday were powerful 
and inspirational as well, and I think you and your family, the 
journey you have taken to becoming a Federal judge, to becoming 
a Federal Court of Appeals judge, I think demonstrates the 
incredible promise and the incredible opportunity this Nation 
offers all of us.
    As I read your speech at the University of Michigan Law 
School, however, there was a portion that surprised me. And in 
particular in that speech, you referenced the work of, quote, 
``acclaimed investigative journalist Nikole Hannah-Jones.'' And 
her--and again, this is a quote from the speech--``provocative 
thesis that the America that was born in 1776 was not the 
perfect Union that it purported to be.'' And indeed, Ms. 
Hannah-Jones in her 1619 Project describes the central thesis 
of the 1619 Project, which The New York Times laid out as a 
revisionist look of history, revising American history, and Ms. 
Hannah-Jones described her central thesis as ``One of the 
primary reasons the colonists decided to declare independence 
was because they wanted to protect the institution of 
slavery.''
    Now that claim is a highly contested historical claim. Do 
you agree with Ms. Hannah-Jones that one of the primary reasons 
the colonists decided to declare independence was because they 
wanted to protect the institution of slavery?
    Judge Jackson. Thank you, Senator.
    When I gave that speech at the University of Michigan, I 
was asked to speak on Martin Luther King Day, and every year, 
they have a Martin Luther King Day speaker. And I gave a speech 
about Black women in the civil rights movement. Most of the 
speech, if not all of the speech, was focused on African-
American women, their contributions to the civil rights 
movement, unsung contributions in many cases, and then some of 
the more recent African-American women who have made claims, 
who have done things in our society.
    One slide was of Ms.--a journalist, as you say, who made 
that statement, and I called it provocative. It is not 
something that I've studied. It doesn't come up in my work. I 
was mentioning it because it was, at least at that time, 
something that was talked about and well known to the students 
that I was speaking to at the law school.
    Senator Cruz. So are you aware that since the 1619 Project 
came out, that it has been roundly refuted by very respected 
historians, including Gordon Wood of Brown University, 
including James McPherson of Princeton University. McPherson 
called it a, quote, ``very unbalanced, one-sided account, which 
lacks content and perspective.''
    And indeed, it was so thoroughly refuted that the New York 
Times quietly altered the digital version to remove references 
to 1619 as the year of America's true founding and the moment 
America began. Were you aware of that?
    Judge Jackson. I was not.
    Senator Cruz. So let me ask you, related to the 1619 
Project, which I believe is deeply inaccurate and misleading, 
1619 Project is closely intertwined with a movement that is 
called Critical Race Theory. Critical Race Theory, as you know, 
originated at your and my alma mater, at the Harvard Law 
School.
    In your understanding, what does Critical Race Theory mean? 
What is it?
    Judge Jackson. 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.
    Senator Cruz. So Critical Race Theory, as you know, has its 
origins in the critical legal studies movement, which also came 
from Harvard Law School, from a number of critical legal 
studies professors--``crits'' as they were known when we were 
in law school--who are explicitly Marxist, and they find their 
origins in Marxism.
    Although critical legal studies frames society as a 
fundamental battle between socioeconomic classes, Critical Race 
Theory frames all of society as a fundamental and intractable 
battle between--between the races. It views every conflict as a 
racial conflict.
    Do you think that's an accurate way of viewing society and 
the world we live in?
    Judge Jackson. Senator, I don't think so. But I've never 
studied Critical Race Theory, and I've never used it. It 
doesn't come up in the work that I do as a judge.
    Senator Cruz. So, with respect, I find that a curious 
statement because you gave a speech in April 2015 at the 
University of Chicago in which you described the job you do as 
a judge. And you said, ``Sentencing is just plain interesting 
because it melds together myriad types of law, criminal law 
and, of course, constitutional law, Critical Race Theory.''
    So you described in a speech to a law school what you were 
doing as Critical Race Theory. And so I guess I would ask what 
did you mean by that when you gave that speech?
    Judge Jackson. With respect, Senator, the quote that you 
are mentioning there was about sentencing policy. It was not 
about sentencing. I was talking about the policy determinations 
of bodies like the Sentencing Commission when they look at a 
laundry list of various academic subjects as they consider what 
the policies should be. Critical race----
    Senator Cruz. But you were vice chair of the Sentencing 
Commission, so let me ask again what did you mean by it? 
Because that was an official responsibility of yours.
    Judge Jackson. What I meant----
    Senator Cruz. What did you mean by what you were doing was 
Critical Race Theory?
    Judge Jackson. What I meant was that there are a number--
that that slide does not show the entire laundry list of 
different academic disciplines that I said relate to sentencing 
policy. But none of that relates to what I do as a judge.
    Senator Cruz. So let me ask you a different question. Is 
Critical Race Theory taught in schools? Is it taught 
kindergarten through 12?
    Judge Jackson. Senator, I don't know. I don't think so. I 
believe it's an academic theory that's at the law school level.
    Senator Cruz. Okay. As you may recall, during the 
confirmation hearings of Justice Amy Coney Barrett, there was a 
great deal of attention paid to the fact that Justice Barrett 
served as a board member on the board of trustees of a 
religious private school, and the press focused very intensely 
on the views of that school.
    In your questionnaire to this Committee, you disclosed that 
you are similarly on a board. Specifically, the board of 
trustees for the Georgetown Day School. And that you've been a 
board member since 2019, and you're currently still a board 
member. Is that correct?
    Judge Jackson. That is correct.
    Senator Cruz. In regard to the Georgetown Day School, 
you've publicly said, quote, ``Since becoming a member of the 
GDS community 7 years ago, Patrick and I have witnessed the 
transformative power of a rigorous progressive education that 
is dedicated to fostering critical thinking, independence, and 
social justice.''
    When you refer to social justice and the school's mission 
on social justice, what did you mean by that?
    Judge Jackson. Thank you, Senator, for allowing me to 
address this issue.
    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, DC, 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.
    Senator Cruz. So, Judge Jackson, all of us will agree that 
no one should be discriminated against because of race. When 
you just testified a minute ago that you didn't know if 
Critical Race Theory was taught in K through 12, 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. That among the books that are either assigned or 
recommended, they include ``Critical Race Theory: An 
Introduction.'' They include ``The End of Policing,'' an 
advocacy for abolishing police. They include ``How to Be an 
Antiracist'' by Ibram Kendi.
    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 ``Antiracist Baby'' by Ibram Kendi, and 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 
antiracist. There is no neutrality. Another portion of the 
book, they recommend that babies confess when being racist.
    Now this is a book that is taught at Georgetown Day School 
to students in pre-K through second grade, so 4 through 7 years 
old. Do you agree with this book that is being taught with kids 
that babies are racist?
    Judge Jackson. 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 are 
victims, that they are oppressors. I don't believe in any of 
that.
    But what I will say is that when you asked me whether or 
not this was taught in schools, Critical Race Theory, my 
understanding is that Critical Race Theory as an academic 
theory is taught in law schools. And to the extent that you 
were asking the question, I understood you to be addressing 
public schools. Georgetown Day School, just like the religious 
school that Justice Barrett was on the board of, is a private 
school.
    Senator Cruz. Okay. So you agree Critical Race Theory is 
taught at Georgetown Day School?
    Judge Jackson. I don't know because the board is not--the 
board does not control the curriculum. The board does not focus 
on that. That's not what we do as board members. So I'm 
actually not sure.
    Senator Cruz. Well, and I'll note that the board is chaired 
by Professor Fairfax, your college roommate who introduced you 
yesterday. So the two of you serve on the board together.
    Another book that is on the summer reading for third 
through fifth grade is a books called ``Stamped (For Kids),'' 
again by Ibram Kendi. I read the entirety of the book, and I 
will say it is an astonishing book.
    On page 33, it asks the question, ``Can we send white 
people back to Europe? '' That's on 33. That's what's being 
given to 8 and 9 years old.
    It also, on page 115, says, ``The idea that we should 
pretend not to see racism is connected to the idea that we 
should pretend not to see color. It's called color blindness.'' 
Skipping ahead, ``Here's what's wrong with this. It's 
ridiculous. Skin color is something we all absolutely see.'' 
Skipping ahead, ``So to pretend not to see color is pretty 
convenient if you don't actually want to stamp out racism in 
the first place.''
    Now what this book argues for is the exact opposite of what 
Dr. King spoke about on the floor of the Lincoln Memorial, and 
are you comfortable with these ideas being taught to children 
as young as 4 in respect to the first book, as young as 8 and 9 
in respect to the second book?
    Judge Jackson. Senator, I have not reviewed any of those 
books, any of those ideas. They don't come up in my work as a 
judge, which I'm, respectfully, here to address.
    In my work as a judge, which is evidenced from my near 
decade on the bench, I am----
    Senator Cruz. Okay, good. Then let's go back to your work 
as a judge. As was noted in the first slide, you discussed 
sentencing as being related to Critical Race Theory. And 
earlier, there's been some back-and-forth as Democratic 
Senators have tried to address your sentencing patterns as it 
concerns child pornography.
    And I'll confess, Judge Jackson, as--look, as I listened to 
your testimony I believe you are someone who is compassionate. 
I believe you care for children, obviously, your children and 
other children. But I also see a record of activism and 
advocacy as it concerns sexual predators that stems back 
decades, and that is concerning.
    You wrote your note on the Harvard Law Review on sex 
crimes. Your note is your major academic work on the Law 
Review, and yours is entitled, ``Prevention Versus Punishment: 
Toward a Principled Distinction in the Restraint of Released 
Sex Offenders.''
    And in it, you argue--and I quote--``A recent spate of 
legislation purports to regulate released sex offenders by 
requiring them to register with local law enforcement 
officials, notify community members of their presence, undergo 
DNA testing, and submit to civil commitment for an indefinite 
term. Although many courts and commentators herald these laws 
as valid regulatory measures, others reject them as punitive 
enactments that violate the rights of individuals who have 
already been sanctioned for their crimes. Under existing 
doctrine, the constitutionality of sex offender statutes 
depends upon their characterization as essentially preventative 
rather than punitive.''
    And what you go on to explain is if they're viewed as 
punitive, they are unconstitutional. If they're viewed as 
preventative, they are not. And throughout the course of your 
note, you argue they should be viewed as punitive and, 
therefore, unconstitutional.
    Indeed, in the second to last page, you go through each of 
those four categories. You say requirements that sex offenders 
register may or may not be unconstitutional depending upon 
whether, quote, ``in which sex offenders have no privacy right 
in registration information or blood samples.'' So you suggest 
that may or may not be constitutional. You raise doubts about 
it.
    And then you raise very significant doubts about community 
notification, and you heavily suggest that civil commitment for 
sexual predators is unconstitutional. Do you still agree with 
the sentiments you expressed in your law school note?
    Judge Jackson. Respectfully, Senator, those are not the 
sentiments that I expressed in my law school note. My law 
school note was about sex offender registration laws, which at 
the time were relatively new. As you know from our time in law 
school, one of the things that law school students do is they 
look for new developments in the law, and they try to analyze 
them. That's something that makes for good fodder for a law 
school note.
    My note, which came out in 1996, was shortly after there 
were new Megan's laws. And the point that I was making was not 
that the laws were bad, that the laws were wrong. I was trying 
to assess something that is sort of fundamental in terms of the 
characterization of the laws. I didn't say that they were 
unconstitutional one way or the other. What I was trying to 
assess was how they are characterized.
    Some--some courts would look at those laws and call them 
preventative, and that has a certain set of consequences. Some 
courts would call them punitive, and that has a certain set of 
consequences. And what I was trying to do is figure out how to 
make the determination, whether they were punitive or 
preventative.
    Senator Cruz. Well, your note argued that they were 
punitive, and I would note that view--there had been some on 
the bench that have advocated that. The Supreme Court in 1997 
decided a case called Kansas v. Hendricks, in which it upheld 
Kansas' civil commitment statute. That was a 5-4 vote.
    This has been a question that has been close at the Supreme 
Court, and I would note beyond that, that in terms of the 
prevalence of these statutes, all 50 States and DC have 
registry requirements. Forty-seven States have community 
notification requirements. All 50 States have DNA or blood 
banks for sex offenders requirements, and 20 of the States, the 
Federal Government, and DC have laws that allow for the 
indefinite detention of sex offenders.
    I would note in the State of Texas, a State court of 
appeals, relying on very much the same sort of reasoning you 
advocated in your note, struck down Texas' sexually violent 
predator civil commitment law. At the time I was the Solicitor 
General of Texas, I personally argued that appeal in the Texas 
Supreme Court, and the Texas Supreme Court unanimously reversed 
the court of appeals and upheld our statute.
    And if the views you advocated in law school prevailed, 
civil commitment laws across the country would be struck down, 
releasing sexual predators. And under the argument, community 
notification and DNA bank laws could well be struck down as 
well. Is that--is that an outcome that should concern people?
    Judge Jackson. Senator, my note wasn't advocating for the 
striking down of those laws. My note was trying to identify 
criteria that I thought could be applied consistently to 
determine whether the laws were punitive or preventative. 
Either----
    Senator Cruz. But with respect, Judge Jackson, you argued 
that they were punitive, and you further say in the note if 
they're punitive, they're unconstitutional.
    Judge Jackson. I was looking at four different kinds of 
laws, and not all of them did I say were punitive.
    Senator Cruz. Okay. So let's take civil commitment laws. If 
you look at civil commitment laws, right now the UCLA School of 
Law Williams Institute estimates more than 6,300 sex offenders 
are currently detained in civil commitment programs. If the 
view you advocated prevailed, presumably those 6,300 sex 
offenders would be released to the public. Is that an outcome 
that should be concerning?
    Judge Jackson. Senator, in law school, when I was writing a 
note, I was looking at a brand-new set of laws that had not 
previously been enacted in any jurisdiction. They were new. And 
I was assessing at the time, as law school students do, what 
criteria I thought might be used by courts to make a 
determination in the future as to whether or not they should be 
treated as punitive and, therefore, not unconstitutional, but 
as, therefore, ones that carry with them certain rights 
versus--excuse me, preventative. Those--those----
    Senator Cruz. Okay. Judge Jackson, so you've pointed that 
these were reviews in law school. Now, listen, I will recognize 
that all of us when we were students may have views that as 
time and maturity passes on, we may change. But what troubles 
me is this was not just a law school view, it's one that has 
continued.
    So when you were vice chairman of the Sentencing 
Commission, you expressed significant concerns that the White 
House has argued that your quotes were taken out of context.
    So I want to provide the full context of your quotes 
because you said, ``Yes, I want to ask you about the means by 
which we can distinguish more or less serious offenders. I know 
that all of you sort of touched on that.
    ``Mr. Fottrell, you talked about going from singular to 
one-on-one to group experience. I'm just wondering if there's 
some sort of inevitable and natural progression from one stage 
to the other such that you could say that the least serious 
offenders are in the singular experience stage?
    ``And I guess my thought is in looking at some of the 
testimony that other people will have later in the day, I was 
surprised at some of the testimony with respect to the 
motivation of offenders''--and we're talking about child 
pornography offenders--``and that there are people who get 
involved with this kind of activity who may not be pedophiles 
and who may not be necessarily interested really in the child 
pornography but have other motivations with respect to the use 
of technology and being in the group and, you know, here are 
lots of reasons perhaps why people might engage in this.
    ``And so I'm wondering whether you could say that there is 
a--that there could be a less serious child pornography 
offender who is engaging in the type of conduct in the group 
experience level because their motivation is the challenge or 
to use the technology? They're very sophisticated 
technologically, but they aren't necessarily that interested in 
the child pornography piece of it.''
    Now I find that a pretty remarkable argument that people in 
possession of child pornography are not actually interested in 
the child porn. They're not pedophiles. They're just interested 
in technology.
    Is that--and I wanted to provide the whole quote because 
the White House said that portions of this were used out of 
context. So this is your entire quote. Do you agree with that 
sentiment that there is some meaningful population of people 
who have child pornography but are not, in fact, pedophiles or 
getting--getting satisfaction from it?
    Judge Jackson. Thank you, Senator, for allowing me to 
address what appears to be a question that I was asking in the 
context of a hearing on child pornography. You've provided the 
entire quote, and it looks as though I was asking that of 
someone, not taking that position.
    And the position that I've taken in all of my sentencings 
involving child pornography offenders is to ensure that despite 
the attitude and view of many of the offenders who came before 
me when I was a trial judge that they were just lookers, that 
they weren't really harming anyone, that they were curating 
their collections, and they never touched a child, I made sure 
that they understood that notwithstanding their collecting 
behavior, that they were causing significant harm.
    Senator Cruz. So, Judge Jackson, all right. You raise your 
actual sentencing, and I think that's very productive. Let's 
take a look at your actual sentencing. And you've had 10 
different cases involving child pornography.
    These are the cases that there were two, U.S. v. Buttry and 
U.S. v. Cain, for which the Government did not make a 
recommendation. And you said earlier, when Chairman Durbin was 
trying to preempt this line of attack, you said it's a 
sickening and egregious crime, which I very much agree with. 
And you said the guidelines lean to extreme departures.
    Okay. Let's look at what the prosecutors are asking for, 
and I would note that this was in the District of Columbia, 
where prosecutors are far more liberal than many of the 
prosecutors in this country. And in every case in which--so 
United States v. Hess, there was a mandatory statutory minimum 
of 60 months, and you imposed 60 months because you had no 
discretion.
    In United States v. Nickerson, there was a mutual agreement 
of the parties to 120 months, and that's what you imposed. In 
every other case, United States v. Chazin, the prosecutor asked 
for 78 to 97 months. You imposed 28 months. Twenty-eight months 
is a 64 percent reduction.
    In United States v. Cooper, the prosecutor asked for 72 
months. You imposed 60 months. That was a 17 percent reduction.
    In United States v. Downs, the prosecutor asked for 70 
months. You imposed 60. That was a 14 percent reduction.
    In United States v. Hawkins, the prosecutor asked for 24 
months. You imposed 3 months. That was an 88 percent reduction.
    In United States v. Savage, the prosecutor asked for 49 
months. You imposed 37. That was a 24 percent reduction.
    In United States v. Stewart, the prosecutor asked for 97 
months. You imposed 57. That was a 41 percent reduction.
    Every single case, 100 percent 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 percent less.
    Now you said you made sure the voice of the children was 
heard. Do you believe in a case like United States v. Hawkins, 
where the prosecutor asked for 24 months, and you sentenced the 
offender to only 3 months, do you believe the voice of the 
children is heard, when 100 percent of the time you're 
sentencing those in possession of child pornography to far 
below what the prosecutor is asking for?
    Judge Jackson. Yes, Senator, I do.
    Senator Cruz. Good. Could you explain how?
    Judge Jackson. I will. 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.
    Senator Cruz. Well, Judge Jackson, we don't have those 
Probation--the Committee has not been given the Probation 
Office's recommendation. We would welcome them.
    Mr. Chairman, I would love to see those.
    Judge Jackson. The second----
    Senator Cruz. We don't have access to them.
    Judge Jackson. The second thing I would say is that I take 
these cases very seriously as a mother, as someone who, as a 
judge, has to review the actual evidence in these cases and, 
based on Congress' requirement, take into account not only the 
sentencing guidelines, not only the recommendations of the 
parties, but also things like the stories of the victims, also 
things like the nature and circumstances of the offense and the 
history and characteristics of the defendant.
    Congress is the body that tells sentencing judges what they 
are supposed to look at, 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.
    Senator Cruz. In 100 percent of the cases, was the evidence 
less than the prosecutors asked for?
    Judge Jackson. Senator, the evidence in these cases are 
egregious. The evidence in these cases are among the worst that 
I have seen, and yet, as Congress directs, judges don't just 
calculate the guidelines and stop. Judges have to take into 
account the personal circumstances of the defendant because 
that's a requirement of Congress.
    Judges have to consider things like the victims. And when I 
was talking about making sure that victims' circumstances are 
heard, it was about my sentencing practices that I----
    Senator Cruz. Well, it doesn't show victims being heard, 
with respect.
    Thank you, Mr. Chairman.
    Chair Durbin. In 2012, the Sentencing Commission, on a 
unanimous bipartisan basis, issued a report recommending 
changes to sentencing for nonproduction child pornography--
which is the subject at hand--offenses because of widespread 
concern among judges and other stakeholders. For example, 70 
percent of surveyed judges said the guideline ranges for 
possession and receipt offenses were too high. Seventy-one 
percent said the mandatory minimums were too high.
    Notably, the report was supported by every member of the 
Commission. I believe the question which the Senator from Texas 
was referring to was part of the proceedings that led to that 
Commission report, unanimous bipartisan basis Commission 
report.
    Senator Cruz. Mr. Chairman, very briefly, I would ask 
unanimous consent that the books I referenced be entered into 
the record.
    Chair Durbin. Without objection.
    Senator Coons.
    Senator Coons. Thank you, Chairman Durbin, Ranking Member 
Grassley.
    Judge Jackson, good to be with you.
    Judge Jackson. Good to be with you, Senator.
    Senator Coons. I'd like to take a few minutes, if I could, 
and just give you a chance to address some of the issues just 
raised. My colleague suggested that you've never sentenced a 
defendant in a child pornography case consistent with what the 
Government requested, what the prosecution requested. But 
according to my staff's research, that's just not true. So let 
me briefly ask you about three specific sentencing cases.
    Do you remember U.S. v. Nickerson? You sentenced Charles 
Nickerson, Jr., to 10 years in prison, exactly what the 
Government requested.
    Judge Jackson. I do, Senator.
    Senator Coons. Do you remember U.S. v. Fyffe? You sentenced 
him to 20 years in prison, exactly what the Government 
requested.
    Judge Jackson. I do, Senator.
    Senator Coons. And do you recall U.S. v. McGinn? You 
sentenced him to 37 months in prison, exactly what the 
prosecution requested.
    Judge Jackson. I do, Senator.
    Senator Coons. So, in these three cases, it's also true 
that the Government, the prosecution, requested below 
guidelines sentences. Would that seem surprising to you at all?
    Judge Jackson. It would not.
    Senator Coons. And is that because overwhelmingly 
nationwide in 70 percent of cases, and in your district 80 
percent of cases, downward departures from the guidelines are 
the norm?
    Judge Jackson. That is correct, Senator.
    Senator Coons. So to the extent there seems to be some 
concerted effort to try and characterize you as being soft on 
crime or somehow unconcerned about child safety, I just wanted 
to take another moment and give you a chance to respond to 
that. As a parent, as a member of a family that's had several 
members who've served--your brother, your uncles--in law 
enforcement, could you share a bit about how having loved ones 
who serve as law enforcement officers, in one case a detective 
on a sex crimes unit, has had an impact on your sense of the 
balance of justice and mercy in the case of ensuring that we 
hold to account those who commit crimes against children?
    Judge Jackson. Thank you, Senator.
    As a mother, these cases involving sex crimes against 
children are harrowing. What I think is important to understand 
is that trial judges who have to deal with these cases are 
presented with the evidence or descriptions, graphic 
descriptions. These are the cases that wake you up at night 
because you're seeing the worst of humanity.
    When--when there are victim's statements that are 
presented, when people talk about how their lives have been 
destroyed as children, how the people who they trusted to take 
care of them were abusing them in this way and then putting the 
pictures on the internet for everyone to see. I sometimes still 
have nightmares about the main witness, the woman I mentioned 
earlier who cannot leave her house because of this kind of 
fear, the vulnerability, the isolation. These crimes are 
horrible.
    And so I take them very seriously, just as I did all of the 
crimes, but especially crimes against children.
    Senator Coons. So, Your Honor, if I could, the 
characterization that was just presented in a recent column in 
the National Review, a conservative publication, has 
characterized that view of you as a smear that appears 
meritless to the point of demagoguery and characterizes your 
approach in sentencing in these cases as mainstream and 
correct.
    And I'll just remind my colleagues, and I was watching that 
two of the largest, most substantial law enforcement advocacy 
organizations in our country, the National Fraternal Order of 
Police and the International Association of Chiefs of Police, 
have spoken up in support of your qualifications and your 
capabilities.
    The FOP letter says, ``There is little doubt you have the 
temperament, intellect, legal experience, and family background 
to have earned this appointment.'' That sentiment was echoed by 
the IACP. In their letter, they said, ``We believe you have a 
deep understanding of and appreciation for the challenges and 
complexities confronting the policing profession, and you have 
during your time as a judge displayed your dedication to 
ensuring our communities are safe and that the interests of 
justice are served.''
    I find it hard to believe that these organizations, having 
looked closely at your judicial decisional record, your 
sentencing decisions, your lifetime conduct, would have taken 
those unusual steps to be that forceful in supporting you if, 
in fact, you had somehow a disturbing record of coddling child 
pornographers or being soft on crime.
    In fact, Judge, your record, in my view, demonstrates 
you're an even-handed and impartial judge. And I can see that 
when I look at cases you've ruled on that involve very 
politically charged or partisan interests. You've delivered 
rulings on both sides for plaintiffs and defendants, and in my 
review of your record, you've put any personal views or 
concerns aside. You've based your decisions on the argument of 
the parties, the facts in the record, the applicable law and 
precedent. And the well-reasoned and thorough opinions you've 
written show, to me, a judge striving to make even-handed 
decisions, based on facts and law, not on some caricature of a 
leftist agenda.
    But don't just take my word for it. We've received an 
outpouring of support for your nomination. As we'll hear on 
Thursday, a very wide range of groups and individuals have sent 
letters or testimony to this Committee in support of your 
nomination. It's no surprise to me that your legal mind, your 
experience, your temperament inspires strong support from some 
of the best and brightest of our legal community.
    And I think it's worth highlighting that among those many 
who have written to us are included well-respected conservative 
and Republican lawyers and Republican-appointed judges who 
agree with my characterization that you're an even-handed and 
impartial judge.
    We've received a letter from 24 conservative lawyers who 
held positions in Republican administrations or are well known 
for their conservative political or legal views, who wrote this 
Committee to urge your speedy confirmation. They praised your 
character and intellect and called you, and I quote, ``a truly 
excellent person.''
    Now I'd like to focus, though, on the way that these 
conservative lawyers characterized your judicial 
decisionmaking, which is, after all, the core issue before us 
is whether you are the sort of judge at the district court, the 
circuit court that should be elevated to the Supreme Court. And 
they note in this letter that in nearly 10 years on the bench 
as a district judge and then in the court of appeals, Judge 
Jackson has been involved in thousands of cases running the 
full range of Federal law.
    Your approximately 500--I think it's more than 570 now--
opinions written during this time have--and I'm quoting--
``demonstrated complete command of the legal subject matter, a 
judicious and even-handed approach, a fine ability to express 
yourself with force and great clarity.'' They've also 
demonstrated, and I'm quoting, ``another attribute essential 
for a judge, a sense of empathy for the situations of others, 
judicious and even-handed.''
    These prominent conservative lawyers want this Committee to 
know you're judicious and even-handed and recommend you for the 
Supreme Court without reservation, despite having noted they 
differ with you concerning some political or partisan issues.
    And they're not alone. Judge Griffith, in a letter to this 
Committee and then followed up with personal testimony in your 
introduction yesterday, a judge appointed by former President 
George W. Bush, enthusiastically supports your nomination. I 
was struck by his description of your intellectual capacity, 
your keen legal mind, as well as your character and judicial 
approach.
    And now I'm quoting from his testimony to this Committee 
yesterday. ``Judge Jackson,'' he told us, ``is an independent 
jurist who adjudicates based on the facts and the law, not as a 
partisan.'' He went on, ``As Justice Scalia taught us, an 
indispensable feature of the republic the Constitution created 
is an independent judiciary of judges who've taken an oath not 
to a President or a party, but to the American people and to 
God that they will be impartial.''
    And he concluded that you, Judge Jackson, have demonstrated 
an unwavering commitment to that oath. That's a conservative 
judge appointed by a Republican President who told this 
Committee he's confident you'll decide cases based on the facts 
and the law, not as a partisan.
    Now I value the working relationships I have with my 
colleagues on both sides of the aisle. We can and do at times 
have fierce policy disagreements, but we also work together to 
try and find ways as lawmakers and individuals to respect each 
other.
    And I take it as a personal sort of badge or source of 
pride when someone with whom I really disagree on one issue is 
able to legislate with me on another. And so I imagine, Your 
Honor, it must be gratifying to know that a judge who literally 
sat in judgment of, reviewed dozens and dozens of your 
opinions--in fact, I think he reversed you once.
    Judge Jackson. Oh, more than. More than.
    Senator Coons. Here is someone who closely read and 
reviewed your decisions and, as a circuit judge, sat in review 
of your work over years as a district--hundreds of opinions as 
a district court judge and has such unequivocal praise for the 
even-handed, impartial, thorough, and nonpartisan way you've 
approached judicial decisionmaking.
    Could you just briefly share with me what it means to you 
to hear that someone like Judge Griffith has such confidence 
you would make an excellent member of our highest court?
    Judge Jackson. Thank you, Senator.
    It means the world to me to have the support of Judge 
Griffith. His coming here yesterday and testifying on my behalf 
was so gratifying. I have tried in every respect to follow my 
methodology that enables me to rule impartially in every case 
and to understand the limits of my own judicial authority and 
thereby reach decisions without fear or favor.
    My record demonstrates that I am not proceeding from any 
sort of preconceived notion about how a case comes out. I'm not 
ruling consistent with any sort of ideology. I'm doing what 
impartial and fair judges do, which is to decide in every case 
based only on the facts and the law of that case.
    And I'm very, very pleased that Judge Griffith has seen 
that in the years that he supervised me, effectively, as a 
court of appeals judge when I was a district judge. And I think 
it's wonderful that he was able to come here and testify to 
that.
    Senator Coons. Well, Judge, for those watching and for 
those following this, they might be puzzled because my 
colleague, the junior Senator from the State of Texas, has 
tried to ascribe all sorts of views to you in his recent 
questioning that try to paint you as some kind of an activist 
with a radical agenda. And in my review of your experience and 
your record, these letters from judges and scholars, I don't 
see anything that remotely substantiates that claim.
    We are here to evaluate your qualifications, your judicial 
decisionmaking. So let me get at a few of these points 
specifically, if I could?
    I've heard references to the 1619 Project and Critical Race 
Theory, but I didn't hear that cited in any reference to your 
opinions as a judge. In your 9 years on the bench as a district 
court judge, more than 570 decisions, have you ever cited the 
1619 Project?
    Judge Jackson. No, Senator.
    Senator Coons. In your 9 years on the bench and more than 
570 opinions, have you ever cited the journalist or principal 
author of that 1619 Project, Ms. Hannah-Jones?
    Judge Jackson. I have not.
    Senator Coons. And in your 9 years on the bench and more 
than 570 decisions, have you ever used, employed, relied upon 
Critical Race Theory to determine the outcome of any case or to 
impose any sentence or as a framework for your decisionmaking?
    Judge Jackson. No, Senator.
    Senator Coons. Would you just explain to us briefly what 
sort of factors you do, in fact, consider in your analysis?
    Judge Jackson. Senator, when I analyze a case, I am looking 
at the arguments that the parties raise in the case. I'm 
looking at the record, which is the facts of the case 
developed--if I'm on the court of appeals, developed below, and 
I'm looking at the law. I'm looking at any statutes. I'm hewing 
to the text. I'm looking at constitutional provisions to the 
extent that they are applicable and any precedents related to 
the case at issue.
    Those are the inputs that are appropriate for a judge to 
consider, and those are the only things that I use in my 
decisionmaking.
    Senator Coons. Well, I appreciate your laying that out, and 
I'll just--let me dig into two cases, if I can, that I think 
are also probative here. Because I agree with the wide range of 
supporters we've heard from that you've demonstrated an even 
and impartial judicial approach in your record.
    But this is true not just in the hundreds of sort of run-
of-the-mill quotidian cases that are considered by a district 
court judge, but in several that have been highly charged and 
really quite political in terms of their consequences. I'd like 
to discuss your opinion in the Center for Biological Diversity 
v. McAleenan. Do you recall that case?
    Judge Jackson. I do, Senator.
    Senator Coons. It was a dispute between groups advocating 
for environmental protection and the Trump administration's 
Department of Homeland Security. The dispute was about 
President Trump's efforts to quickly construct a physical 
border wall between the United States and Mexico.
    I'm sure I don't need to remind you or anyone here that at 
the time, Democrats were just about unanimous in thinking that 
physically building a wall from coast to coast was not the 
wisest use of resources to secure the border. There were other 
ways to do it. And with Republicans pretty much unanimously 
willing to defend it. So it was a policy matter with some sharp 
divisions and some political consequences.
    You ultimately ruled in favor of the construction of the 
wall and against an attempt by environmental groups to halt its 
construction through a legal case. Can you discuss what you 
recall, just briefly, of the claims presented and how you came 
to a decision in favor of the Trump administration?
    Judge Jackson. Senator, the claims in that case, which, as 
you say, were brought by an environmental organization, related 
to the Administrative Procedures Act, which is something that 
we often see in the District of Columbia, and whether or not 
the agency could waive certain environmental laws pertaining to 
the construction of the wall, whether or not the agency's 
determination to do so was lawful.
    And I looked at the relevant circumstances, and I ended up, 
I believe, dismissing that case on threshold grounds before 
getting to that point in the analysis. But consistent with what 
you've said, I was guided by my understanding of the law and 
what it required and not by anything else.
    Senator Coons. I could spend a lot of time on the details 
of this case, but let me try and summarize it this way. You 
analyzed the statute. You concluded Congress had clearly 
blocked the courts from hearing non-constitutional challenges. 
There was no jurisdictional bar to the constitutional claims. 
To decide them, you considered whether the plaintiff's claims 
were viable.
    You looked for precedent. You found one. While not 
controlling, you thought it was legally sound and persuasive. 
But there was no controlling circuit court or Supreme Court 
precedent that stopped you.
    If you were, in fact, an activist judge, a motivated 
partisan determined to let these plaintiff environmental groups 
proceed, you certainly could have. There was no clear precedent 
that barred that from happening.
    You analyzed the statute. You applied the best precedent 
you could find, and you reached a result without regard to the 
political consequences.
    Judge Jackson. That is correct, Senator.
    Senator Coons. So, in my view, I wanted to talk about this 
case because there's really nothing unusual or special about it 
from your perspective?
    Judge Jackson. That is correct.
    Senator Coons. For those of us up here, there was a lot 
special and important about it. It was a highly charged 
partisan and political issue, but you looked at the statute, 
you found persuasive precedent, you applied it. You went on to 
the next case.
    Let me ask about another decision in a case addressing 
another very politically charged issue, and specifically, this 
involves the emails of former Secretary of State Hillary 
Clinton. Now the Republican National Committee, or the RNC, is 
opposing your nomination, publicly accusing you of being a 
partisan, a partisan Democrat. They argue you could not 
possibly be an impartial Justice.
    But ironically, back in 2016, you presided over a case 
brought by the RNC against USAID related to then Presidential 
candidate Clinton, and you ruled in favor of the RNC. Both the 
substance and the timing of the case are really quite striking.
    Judge Jackson. I did.
    Senator Coons. The RNC made Freedom of Information Act 
requests for certain emails involving the former Secretary. And 
despite what the RNC would have us now believe, in this case 
you reinforced your deserved reputation for following the law, 
not a partisan agenda, because you ordered USAID to produce 
thousands of pages of documents related to Secretary Clinton. 
Do you recall when you issued that decision, that order?
    Judge Jackson. I actually don't.
    Senator Coons. Well, I'll tell you. It was just before the 
Presidential conventions. So if there was a moment when the RNC 
had a political objective, it was right before the convention, 
and you actually issued a ruling that they were entitled to 
email production from the USAID on the basis of legal arguments 
presented to you, the statute at issue, and the evidence. Is 
that correct?
    Judge Jackson. That is correct.
    Senator Coons. Well, Your Honor, I'm frankly really struck 
at the fact that for all the back-and-forth in Senate hearings 
and academic circles about the judicial philosophy of Supreme 
Court nominees, you've shown what the experience of nearly a 
decade overwhelmingly spent on the district court has produced: 
a methodology, an approach that looks at the Constitution, the 
statute, the facts, the arguments of the parties, and reaches a 
result without fear or favor, without taking into account the 
partisan issue at stake.
    You know, I don't believe that a judicial philosophy is 
always all that meaningful. The judge for whom I clerked on the 
Third Circuit had spent years as a district court judge. And 
when I asked her ``What's your judicial philosophy? '' she 
looked at me and said, ``I just call balls and strikes. I'm a 
judge who rules on the case before me,'' in exactly the same 
frame that you offered.
    A judicial philosophy does not, in and of itself, constrain 
a judge. What constrains a judge is a judge who is willing to 
be constrained, who understands that the role of the Federal 
judiciary is a limited one.
    And so the real question I think a President should 
consider when they make a nomination, the question that we as 
Senators need the answer to in order to perform our function of 
advice and consent, and the question that I think resonates 
best with the American people, who are concerned about this 
hearing and this nomination and how it will impact the country 
and their lives, is sort of what kind of Justice will you be?
    We want to know if you'll be fair. We want to know if 
you'll be faithful to the Constitution and to the rule of law. 
You've been a judge almost 10 years, and you've written more 
than 570 opinions. I'd say your record as a judge is the best 
answer to the question what kind of Justice you will be.
    How would you say, Your Honor, that your approach to 
judging on the district court relates to the way you are now 
judging on the circuit court, and what approach do you think 
you will bring with you, if confirmed to the Supreme Court?
    Judge Jackson. Thank you, Senator.
    My approach all the way through is one that I believe is 
required by my duties, by my oath as a judge. We rule without 
fear or favor. We are independent as judges in our 
responsibilities. We understand at the district court level, at 
the court of appeals level, and at the Supreme Court that 
judges are restrained, are constrained in the exercise of our 
power under our constitutional scheme.
    My methodology is designed to help me to make decisions 
within those confines at every level. It's no different now 
that I'm on the court of appeals than when I was on the 
district court with respect to my understanding of the 
constraints on my authority and my responsibility to be 
impartial in my rulings. And I think it would be no different 
at the Supreme Court.
    Senator Coons. Well, Your Honor, I know we've walked 
through just a few cases today now. In some ways, we've only 
scratched the surface of your decade and the more than 570 
opinions you've written. But it's clear to me from what I've 
reviewed and from just this sample that as we also heard from 
colleagues, from conservative lawyers, from judges who wrote to 
the Committee, that you are judicious and even-handed, that you 
have a demonstrated record of excellence, that you adjudicate 
based on the facts and the law and not as an advocate, 
activist, or partisan.
    And I encourage my colleagues who want to know what kind of 
a Justice you'll be to take a fair and even-handed look at your 
record, at your impartiality, and at your methodology. Your 
experience is extensive and broad. Your commitment to follow 
the law impartially without the influence of politics is 
evident in your record. Your keen legal mind, judicial 
temperament, and impeccable character are plain to all.
    As Judge Griffith told this Committee and a review of your 
record makes clear, you've demonstrated that the way you 
approach cases is based on the law and not on some political 
agenda. You understand the reason why the robes of our Federal 
judges are black, not red or blue. The American justice system, 
as many have said, is rooted in the impartiality, the 
independence, and the reliability of our Federal judicial 
system. It is one of the most critical bulwarks of our system 
of ordered liberty.
    No wonder that when you came before this body to be 
confirmed for the district court and the circuit court, you 
earned and received bipartisan support. I know President Biden 
counts nominating a Supreme Court Justice among the most 
significant decisions of his Presidency, and our role here in 
the Senate in confirming a Justice to our highest court is 
among our most solemn obligations and greatest privileges. So 
in nominating you, I believe our President has met his mission, 
and it will be my honor to join, I hope, the overwhelming 
majority of my colleagues in supporting your confirmation as an 
Associate Justice of the United States Supreme Court.
    Thank you, Your Honor.
    Chair Durbin. Thank you, Senator Coons.
    Last week, the Committee received a letter, Judge, from the 
National Coalition Against Domestic Violence, representing 
survivors of domestic violence, urging the Senate to swiftly 
confirm you to the Supreme Court.
    The Committee also received a letter about your nomination 
from nine separate organizations representing both survivors of 
domestic violence and sexual assault. The letter said, and I 
quote, ``Judge Jackson is highly qualified for the position. As 
her career and record demonstrate, her historic confirmation as 
the Supreme Court's first Black woman and the sixth woman 
overall will represent monumental progress to the Nation it is 
charged to serve and that values all of its citizens equally.''
    The organizations also noted, quote, ``Judge Jackson's 
rulings reflect the judicial consensus.''
    I move to enter these letters into the record. Without 
objection, they will be.
    [The information appears as submissions for the record.]
    Chair Durbin. Senator Sasse, you're next up, and we're on 
the cusp of a vote. So I want to be fair to you. We were going 
to take a break at this point. I'm going to hope----
    Senator Sasse. I thought we were taking a break and going 
to go vote, but if you want me to go first, I'm good.
    Chair Durbin. No, I think we ought to go over there and----
    Senator Sasse. Okay.
    Chair Durbin [continuing]. Pray that it comes along, and we 
can return quickly. So why don't we declare this break time for 
20 minutes. 4:05 p.m., back in the room.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. The Senate Judiciary Committee will come to 
order.
    The Senator from Nebraska, Senator Sasse.
    Senator Sasse. Thank you, Chairman. Judge, welcome back. By 
my quick eyeballing count of this you are 51 percent done as of 
this moment, which feels more like curse than blessing, but I 
meant it as a good thing.
    Judge Jackson. Thank you.
    Senator Sasse. I think I am number 12 of 22, so you are 
just past halfway down on the downhill.
    That you as well for spending time with me in my office, 
and thank you for answering the questions of the Committee 
today and tomorrow. What you have said in public matches what 
you have said in private, and that is obviously a testament to 
your character. That also can be helpful to rebuilding public 
trust, so thank you for the ways you have engaged thus far.
    Judge, you are likely to go on to serve a lifetime 
appointment on the Supreme Court, which means that this is very 
likely the last job interview you ever have.
    Judge Jackson. And the most public, Senator.
    Senator Sasse. These processes are a lot like a proctology 
exam. That means that it is an opportunity for you to explain 
to the American people how you view a Supreme Court Justice's 
job and the limits and bounds on that job.
    So I want to go back to a topic that you and I have 
discussed a few times, which is how you approach cases. You 
have told this Committee, and you have told me in private that 
you do not have a judicial philosophy yet but that you think of 
yourself as having more of a judicial methodology. I would like 
to understand that a little bit more, and I think it would be 
helpful for the American people to understand that argument and 
that distinction a bit more as well.
    Earlier today you said that you, quote, ``do not believe 
there is a living Constitution,'' and you also said that you 
are constrained to interpret the text, and that, I think you 
said, sometimes that is enough to resolve the issue. So I think 
I have heard you pay partial tribute to the judicial philosophy 
of originalism but you have not adopted it or embraced it as a 
philosophy or label that applies to you.
    So maybe one of the places we could tease that out a little 
bit more is trying to dig into whose jurisprudence you most 
admire. We have heard many nominees before, like Senator 
Grassley, former Chairman of this Committee--I am not an 
attorney, so the farming and ranching people where I come from 
know that John Kennedy is super smart, Rhodes lawyer, who kind 
of pretends to be a, you know, ``Aw shucks'' kind of guy as he 
picks your pocket.
    Senator Kennedy. Do I get equal time, Mr. Chairman?
    [Laughter.]
    Senator Sasse. He always gets unequal time. He always gets 
bonus time.
    But I think it might be helpful for us to understand who 
you most identify with, and past nominees before this Committee 
have talked about the mold of particular Justices they thought 
they followed in. And so if you had to tell the American people 
who you are closest to, who is that Justice, or who are those 
Justices?
    Judge Jackson. Well, thank you for the question, Senator, 
and I must admit that I do not really have a Justice that I 
have molded myself after or that I would. What I have is a 
record. I have 570-plus cases in which I have employed the 
methodology that I described, and that shows people how I 
analyze cases.
    I, in every case, am proceeding neutrally, from a neutral 
posture. In every case I describe thoroughly all of the 
arguments that are made in the case to me as a judge, because I 
want, in my lengthy opinions, for people to understand the 
inputs. This, I say, is what I am considering because I lay out 
in very, you know, detailed way everything that people have 
argued in all of the cases, and then when I am doing my 
interpretation I am focused on the text of any statute or 
constitutional provision. I am looking, as appropriate, to the 
intentions of the people who wrote the words, because I view 
statutory interpretation, constitutional interpretation, those 
exercises consistent with my limited authority. I am conscious 
of not interpreting those texts consistent with what I believe 
the policy should be, or what I think the outcome should be.
    I am trying, in every case that involves that kind of 
interpretation, to assess what it is that the parties, the 
parties who wrote the text, intended. And, as a result, because 
my methodology involves these various pieces and because of the 
way in which I do things, I am reluctant to establish or to 
adopt a particular label, because the idea of how you interpret 
is just one part of the entirety of a judge's responsibility.
    As I mentioned, you know, I am looking at the facts in a 
case, and my experience as a trial judge helps me to assess the 
fact from all of the different perspective of the parties, 
because I am able to do that, I think, having heard from 
parties in all sorts of cases directly, as they present their 
arguments.
    That is a part of the judging responsibility that is not 
really captured by something like originalism or living 
Constitution. And I believe that the Constitution is fixed in 
its meaning. I believe that it is appropriate to look at the 
original intent, original public meaning of the words when one 
is trying to assess, because again, that is a limitation on my 
authority to import my own policy views.
    But there are times when the meaning--unreasonable searches 
and seizures, due process--looking at those words are not 
enough to tell you what they actually mean. You look at them in 
the context of history, you look at the structure of the 
Constitution, you look at the circumstances that you are 
dealing with in comparison to what those words meant at the 
time that they were adopted, and you look at precedents that 
are related to this topic. All of those tools judges use, and I 
have used, if you look at my cases.
    Senator Sasse. But when you said that you look at the 
intent of the authors of the statute, sometimes courts have to 
say the people who wrote the statute, whether they meant to or 
not, have done something that we, the judiciary, decides--
speaking in the voice of you--is unconstitutional. And deciding 
that something is unconstitutional requires an interpretive 
framework for how you get there, right?
    And so you and I talked in my office about the differences 
between Justices Kagan, Breyer, and Sotomayor's judicial 
philosophies, and you told me that you needed time to study 
that issue further. So assuming that you have had a chance to 
think about that a bit more I guess I would ask you again, what 
are the differences, among the three of their judicial 
philosophies?
    Judge Jackson. With respect, Senator, I have not actually 
had time, with all of my meetings with Senators and the work 
that I have done to appear before you today. I would say that 
there are differences, as you see from the various opinions 
that they have issued. I am not sure which one I would 
necessarily follow because it depends on the case. I think 
their differences indicate that they are looking at different 
provisions. They are using the various tools that judges use 
and that I have used in my cases.
    The idea of striking down a statute as unconstitutional is 
daunting, and should be daunting, I think for any judge or 
justice, and would have to be looked at very carefully because 
of the limited nature of the judicial role and the fact that 
the policies have been adopted by the branch of Government that 
has that authority under the Constitution.
    Senator Sasse. So I guess I am surprised, after 9 years on 
the bench, that--I mean, you are super smart. Nobody disputes 
that. And having worked for Justice Breyer and knowing of some 
of the fights, some of the philosophical arguments he and 
Justice Kagan had, it just seems surprising that you would not 
be able to at least speculate--not speculate, but reflect a 
little bit on the nature of those disagreements. Because to say 
it depends on the particular case, that is fine, but they have 
different philosophical and hermeneutic approaches to the text.
    So maybe another way to get at it. I think Justice Breyer, 
again, for whom you clerked, and Justice Scalia used to travel 
together and have lively debate circuit conversations. Can you 
tell the American people a little bit about what Breyer-Scalia 
road show looked like? What were they arguing about?
    Judge Jackson. Well, my understanding is they were arguing, 
or at least presenting two different viewpoints as to how the 
Constitution should be interpreted. And I would say, just as an 
aside before taking about their positions, that while I have 
been on the bench for nine-plus years, the issue of 
constitutional interpretation in that sense does not come up 
very often. It comes up to the Supreme Court for sure, but it 
does not come up very often in the lower courts.
    What Justice Scalia and Justice Breyer, I believe, were 
debating was Justice Scalia's notion of originalism meaning 
that the words of the Constitution should be interpreted as 
they were written by the founders in the founding era, and that 
they should not be considered to--essentially to establish 
principles that modern Justices could now apply, based on their 
own view of the needs of society, and that Justice Breyer's 
position was more toward that latter view, that the idea of the 
Constitution needing to be interpreted in a way that is 
consistent with modern sensibilities about the principles that 
the document reflects.
    And I would just say that it appears now that the Supreme 
Court has taken Justice Scalia's view that the prevailing 
interpretive frame for interpreting the Constitution is now 
very clearly looking back through history. So we see that even 
in the Heller case, where the Justices, even the Justices in 
dissent, were all analyzing the issues in the Second Amendment 
through a historical lens. What was meant at the time of the 
founding? So that is now the way in which constitutional 
interpretation is done.
    Senator Sasse. But do you identify with that position?
    Judge Jackson. I identify with the position insofar as that 
is how the text is interpreted, of the Constitution, that I am 
a strong believer, as I said, in precedent, in stare decisis, 
in predictability, in the rule of law, and the way that the law 
now interprets the Constitution is through this historical 
frame.
    Senator Sasse. I am grateful for your last couple of 
minutes because I think that it is in the American civic 
interest for us to understand these different schools. Again, 
non-lawyer here, but my simple way of summarizing some of what 
I think I heard you just say is that Scalia argues hard that 
the Constitution has a fixed meaning and Justices are not 
really free to depart from it without a constitutional 
amendment, passed by the political branches, so that the voters 
get to hire and fire the people or have a role, at the State 
level, in the ratification of constitutional amendment.
    And Breyer's position, it seems to me--and I will not get 
it precise enough, in technical, legal terms, jurisprudential 
terms probably, to satisfy him, but that the Constitution is 
speaking to more abstract principles and, therefore, there is a 
lot more play in the joints of what a Justice's job is.
    And I think the way you summarized their debate was pretty 
fair, and I also think it is fair for us to want to understand 
what your position is about it, because you are obviously, as I 
have said, incredibly smart and incredibly likeable and winsome 
and on the stage for a lot of Americans to look up to. I am at 
the ``rah-rah,'' ``hear, hear'' side of that debate, at the 
level of what is a Supreme Court Justice's job. I think that is 
why a lot of us are still trying to tease out the philosophical 
distinction, which I think is more than just a methodology. But 
I want to thank you for that answer.
    You have also brought up the Fourth Amendment a number of 
times in our conversation, and I would like to talk a little 
bit more about the Constitution and whether its meaning 
changes. And so I would like to go back to the Fourth Amendment 
topic you brought up in my office.
    You said, I think, and correct me if I am mis-summarizing 
your position, you said that originalism would not have much to 
say about the Fourth Amendment because the Founding Fathers 
never conceived of a tool, a piece of telecommunications 
equipment like this. And so I think during our conversation you 
said that the original meaning of the Fourth Amendment will not 
tell you much about what to do with a new technology. My guess 
is that originalists, and Scalia in particular, would disagree.
    So what do you do if the text of the Fourth Amendment does 
not answer a question? Where do you go next?
    Judge Jackson. Well, Senator, just to clarify what I 
intended to say, and I may well have misspoken, there is an 
originalist take, I think, on the question of what happens with 
a cell phone. As the Supreme Court held in the Riley case, 
there was a way in which you assess principles of the 
Constitution, the text of the Constitution, and apply it to 
modern technology, and you have to because there is no question 
that cell phones did not exist at the time of the founding. So 
if the originalist principle is we look only at the 
Constitution as it relates to things that existed at the time 
of the founding, there would be no answer to what to do about a 
cell phone.
    And so what the Supreme Court has said and done is to 
determine that the principle of the Fourth Amendment, with 
respect to searches, is to determine whether there is a 
reasonable expectation of privacy. They also have looked at 
property interests with respect to whether or not there is an 
invasion of privacy, and then determined from history what that 
reasonable expectation of privacy related to back at the time 
of the founding and analogized to current circumstances related 
to things like cell phones. It is a method of interpretation 
that allows you to instead of the alternative, which would be 
don't worry about the history, just look at the words in the 
Constitution and say, ``What do I think is reasonable or 
unreasonable with respect to police officers searching cell 
phones? ''
    That is not the way the Supreme Court handles it. They try 
to determine what was unreasonable historically, and then given 
those principles historically it would be unreasonable for 
police officers to enter someone's home, to rifle through their 
papers and documents. They then analogize to current 
circumstances and the fact that a cell phone is like your 
personal file cabinet, and they say, okay, given what we 
understood the framers to have intended about the need for a 
warrant or the need for protection against unreasonable 
searches, we are going to apply that to modern circumstances. 
It is still an originalist way of analyzing the current 
dispute.
    Senator Sasse. So are there non-originalist ways to wrestle 
through that same question, and what would they be?
    Judge Jackson. One could imagine that rather than 
referencing history at all that the Court would look at the 
Constitution, it says ``no unreasonable searches and 
seizures,'' and would just ask, you know, in light of modern 
sensibilities, in light of what we would think would be 
reasonable today or what the Court itself would think would be 
reasonable today. We would apply that modern understanding to 
the cell phone situation.
    And the danger, I think, Justice Scalia would say, is that 
that is a kind of framing that permits judges to make a 
determination based on their own views rather than hewing 
themselves, as Senator Lee said before, that Justice Barrett 
pointed out, hewing themselves to the text of the Constitution.
    Senator Sasse. And does Breyer have a different view?
    Judge Jackson. You know, I have not--I am just trying to 
think. My understanding of the living constitutional principle 
is that it is closer to looking at the needs of modern society, 
but I am not well versed in it, in part because the Supreme 
Court has now so clearly taken the historical perspective, the 
originalist perspective, in its interpretations.
    Senator Sasse. You brought up the cell phone example with 
me, but I know you have others. What are some other areas of 
life where the original meaning seems to be 2\1/2\ centuries 
removed? What are places that the Constitution seems to not 
speak to?
    Judge Jackson. Well, Senator, you know, I am reluctant to 
spell out different circumstances. What I will say is that when 
you look at the language in the Constitution there are some 
provisions that are completely clear on their face, without any 
question of what was intended--the required age of Senators, 
the minimum age of the President. These kinds of provisions, 
all you need is the text and there you are.
    But there are provisions of the Constitution that are 
broader than that, and therefore, some interpretive frame is 
necessary. And to the extent--I mean, every question the 
Supreme Court gets that involves new technology, for example, 
that relates to constitutional provisions will require some 
kind of analogy, I think. But, you know, I cannot speak to 
anything more than that.
    Senator Sasse. You have described Justice Breyer's 
constitutional approach as ``pragmatic.'' What does that mean?
    Judge Jackson. I understand it to be, his approach, to be 
about ensuring that the rules that follow from the Supreme 
Court's determinations are ones that make sense and are 
workable.
    Senator Sasse. He said recently, explaining his approach to 
interpreting a statute, ``You are not going to go outside the 
words, but it often does not give you the answer. And you look 
at the history and you look at its purposes, and you look at 
the consequences too, and you will try to evaluate them from 
that, the point of view of what a reasonable legislature, 
writing this statute, have thought that these words were there 
to achieve.''
    Do you align yourself with that position?
    Judge Jackson. In the broad sense that what it is that the 
Court is tasked with when statutory interpretation is being 
undertaken is to achieve the purposes of the legislature. The 
text is the prime area, and in most cases sole indication of 
what the legislature intended, as opposed to the Court saying, 
``I see this statute but I am, you know, uncomfortable with how 
it is going to turn out or what it is going to mean, and so I 
am going to import my own policy perspective.'' Instead, the 
Court is constrained to say, ``Regardless of what I think the 
right policy objective should be with respect to this law, my 
purpose, my requirement is to determine what Congress 
intended.''
    Senator Sasse. But with respect to legislative intent, when 
a Congress of 535 often distracted people, 100 in this body and 
435 in the other, pass something, you know, by a 2-to-1-ish 
vote, and it is a part of a large piece of legislation, how do 
you determine what the intent is when it is 535 people doing 
something that has many, many different purposes for why 
somebody might vote yes?
    Judge Jackson. Well, you look at the text. I mean, the way 
in which statutes are interpreted is based on what the 
legislature says. There are times in which there are statutes 
in which Congress includes a purpose statement, for example, in 
the actual text of the statute. You look at the text of the 
provision. If that is not clear you look at the structure of 
the statute.
    There are canons of interpretation that courts use to 
evaluate and interpret statutes, things like the word that 
appears in the section that you are interpreting should be 
defined the same way it is in another section, you know, the 
same word being used, Congress probably intended to have the 
same meaning.
    So there are tools in the law that exist to help courts to 
interpret the text, but again, the goal is to interpret the 
text as a means of understanding and reflecting what Congress 
intended. And, of course, in statutory interpretation if 
Congress decides that the court has gotten it wrong then, as 
has happened many times, Congress comes back and clarifies and 
tells the court, no, this is what the statute means.
    Senator Sasse. I want to go back to an exchange you had 
with Senator Cornyn. Substantive due process is a doctrine that 
often allows courts to create new fundamental rights. What is 
the test for determining a new fundamental right?
    Judge Jackson. The Supreme Court has said, in the 
Glucksberg case, that the fundamental rights that are 
recognized or that are included in substantive due process are 
those that are deeply rooted in the Nation's history and 
tradition. In a case prior to that, the Court had defined it as 
the rights that are implicit in the ordered concept of liberty, 
or the concept of ordered liberty. So there are standards for 
the courts to use to identify these types of rights.
    Senator Sasse. So did the Supreme Court use this test in 
Roe or Casey?
    Judge Jackson. In Roe and Casey, I do not know that the 
Court used that formulation. I know that after Casey, the Court 
has determined not so much that the right to terminate a 
woman's pregnancy is fundamental. The right exists and it is 
subject to the framework in Casey that allows for regulation, 
so long as there is not an undue burden on the exercise of the 
right pre-viability.
    Senator Sasse. I think some of what we are wrestling with 
here is the question of--and I think what Senator Cornyn was 
driving at--is how particular the concept of deeply rooted goes 
and how that really is a bound on what the judiciary can do.
    But I want to thank you. We are nearly at time. I want to 
thank you for engaging in the back-and-forth. I want to think 
more about what you have said, and I look forward to further 
discussion tomorrow.
    It still appears to me that there is a very basic 
difference between a judicial philosophy and a judicial 
methodology and how you go about applying that when you are 
interpreting a law and making a determination about 
constitutionality or non. And I know that you have not claimed 
a judicial philosophy at all, but a judicial philosophy of 
originalism here. But I do think the fact that you have at 
least nodded to it in the Committee hearing today is, in and of 
itself, a pretty great testimony to how much of Scalia and 
Bork's work has moved the legal field.
    So I am grateful for the time you are taking with us. I 
will look forward to listening tonight and talking with you 
again tomorrow.
    Judge Jackson. Thank you.
    Chair Durbin. Thank you, Senator Sasse.
    Senator Blumenthal.
    Senator Blumenthal. Thanks, Mr. Chairman. Thank you, Judge, 
for your patience and your perseverance. I want to begin just 
by thanking you also for an extraordinary moment in our 
history. I think we all, as Americans, feel excitement and 
pride in really making history here. And the old saying, ``A 
picture is worth a thousand words,'' as I look at your parents, 
and your husband, and your daughters, what I see is America, 
and the best of America.
    So I think we should all feel that excitement and pride in 
this moment, and the extraordinary journey that has brought you 
here. You will make the Court look more like America but also 
think more like America, in the obstacles and challenges that 
you have overcome to be here. We do not know all of them, but 
you will provide a very important perspective, indeed a unique 
perspective, that the Court needs more than ever at this moment 
in its history. There are a lot of people who are book-smart. 
There are not as many people who are person-smart, and you are 
both. That kind of emotional intelligence is what our courts 
need, not just our Supreme Court.
    So I want to really begin by asking you, as a role model 
for others, to talk a little bit to the young women and girls 
of America, particularly Black young women and girls, about 
those challenges and obstacles that you have had to overcome to 
be here, and what has helped you do it.
    Judge Jackson. Thank you, Senator. 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. I stand on the shoulders of generations past who 
never had anything close to this opportunity, who were the 
first and the only in a lot of different fields.
    My parents, as I said, were the first in their families to 
have the chance to go to college. I have been the first and the 
only in certain aspects of my life. So I would say that I agree 
with you that this is a moment that all Americans should be 
proud.
    Senator Blumenthal. Now you have never been a prosecutor. A 
lot of us on this panel have been prosecutors. I was the U.S. 
Attorney, the chief Federal prosecutor in Connecticut, for 4\1/
2\ years, and then I was Attorney General of my State for 20 
years. But I would say one of the most meaningful cases in my 
career was as a defense counsel. I was asked by the NAACP legal 
defense fund to represent a Black man on death row in your home 
State of Florida. He had been convicted of murder and rape. He 
had been on death row for a number of years. And I took the 
case because I was asked to do it, and eventually, somewhat to 
my surprise, found, in fact, he had never done the crime of 
which he had been convicted. And eventually we won his freedom 
because the prosecutor in the case concealed evidence, which 
was a violation of his constitutional rights, and he was a free 
man as a result.
    Your husband, as a surgeon, saves lives. Lawyers do not do 
it often. But I know, from personal experience, the importance 
of having a good representative, an advocate, a counsel, 
because in that case he had been denied it when he originally 
went to trial. And only after years in both State and Federal 
courts was the truth vindicated.
    So I want you to talk a little bit about why it is 
important for defendants to be represented by zealots, really 
aggressive and energetic advocates, who tell the truth to the 
court, put on the evidence, and present the best possible case 
for a defendant accused of a crime.
    Judge Jackson. Thank you, Senator. The idea is one that is 
rooted in our Constitution. The framers were concerned about 
government overreach in a lot of different areas. The 
provisions of our Constitution are protecting individual 
liberty from government overreach. This is why we have 
provisions about limited government, and there are many 
provisions in the Constitution that are limiting government 
action when it comes to the deprivation of liberty, because the 
framers understood how important liberty is to our society.
    And so there is the Fourth Amendment. There is the Fifth 
Amendment. There is the Sixth Amendment. There is the Eighth 
Amendment. These provisions are crucial, and it is zealous 
defense counsel that ensures that the Government is protecting 
these rights, that ensures that these rights are protected and 
that people are getting due process in the criminal justice 
system.
    And that is to all of our benefit. That helps everyone in 
America when we ensure that liberty cannot be denied without 
due process. It is defense counsel, as I said, who are making 
arguments, and they are not condoning the criminal behavior. 
They are making arguments on behalf of clients, in defense of 
the Constitution and these constitutional values.
    And as a judge, I now see how important it is for me to be 
able to make my decisions after hearing from both sides. That 
is crucial. We have an adversarial system, which means that 
judges are presented with arguments from both the prosecution 
and the defense, and only when I am able to hear from both 
sides can I make a just, fair determination. And fairness is 
the hallmark of our constitutional scheme, and it is what makes 
us the best criminal justice system in the world.
    Senator Blumenthal. And it is not only the reality of 
fairness but also the perception of fairness, the public's 
understanding of how courts work that is essential to the 
credibility that courts have. Correct?
    Judge Jackson. That is correct.
    Senator Blumenthal. And so I feel very strongly--I know 
that a number of us on the Committee agree--that more 
transparency, more visibility is important for the public to 
understand what goes on in the courtroom. I know you feel 
transparency is a good thing. You have been asked about cameras 
in the courtroom. I am a supporter of Senator Grassley's 
Sunshine in the Courtroom Act as well as Senator Durbin's 
Cameras in the Courtroom Act. I am hopeful that the Court, the 
United States Supreme Court, actually will back these 
proposals, because their support would be very important.
    Tell me how you feel about the basic principle of 
transparency and more visibility.
    Judge Jackson. Well, Senator, one of the reasons, as I 
said, that I write such long opinions is because I want 
everybody to know exactly the arguments I have considered, the 
facts that I have reviewed, and in pretty fine detail the 
course of my reasoning. And I have done this in 570 opinions. I 
think it is important for public confidence, as you say, for 
people who are bound by the law and who are affected by the 
courts to know what the court's views are.
    With respect to the issue of cameras in the courtroom, I 
understand that that is something that is proceeding through 
Congress, and if I was confirmed I would look forward to 
talking with my colleagues to understand the positions that 
people have regarding that issue.
    Senator Blumenthal. I appreciate that response. One of the 
other areas that I think is important to transparency and to 
public trust and confidence in the Court is visibility as to 
its own decisions, which I think is directly contradicted by 
the shadow docket. You have been asked about it before.
    But I just want folks to understand that some of the most 
important decisions that Supreme Court have been decided, or at 
least issues resolved, without oral argument, without briefs, 
without any public explanation. A controversial travel ban has 
gone into effect. The first Federal execution in 17 years was 
permitted. Statewide COVID restrictions were enabled. The 
collection of data in the 2020 United States Census, and 
enforcement of voting restrictions in the 2020 Presidential 
elections, as well as decisions relating to immigration and 
blocking the Biden administration from enforcing a Federal 
moratorium on evictions, imposed because of the COVID-19 
epidemic. Americans have a right to an open, full, fair 
proceeding with a record of the Court's reasons for making 
decisions.
    So I hope that you will urge your colleagues, when you talk 
to them about cameras in the courtroom, also to do less on the 
shadow docket, and I hope that perhaps if they do not, Congress 
will take some action.
    I finally want to ask, so far as this issue of transparency 
is concerned, about codes of ethics. You have followed a code 
of ethics as a district court judge and court of appeals judge. 
Correct?
    Judge Jackson. I have.
    Senator Blumenthal. Does that code of ethics apply to the 
United States Supreme Court?
    Judge Jackson. My understanding is that it does not.
    Senator Blumenthal. Correct. And my hope is that you will 
perhaps urge your colleagues as well to support a code of 
ethics. They have not done so as yet, but I think we have an 
obligation in the Congress to set forth a code of ethics, and I 
hope they will support it. Senator Durbin and others of us have 
supported that kind of measure as well, and I would just ask 
you whether you will raise it with your colleagues, if you are 
confirmed.
    Judge Jackson. Senator, certainly if Congress is taking 
anything up that requires our review I would absolutely 
consider it, and even if not I would consider it, talking to 
them about it.
    Senator Blumenthal. Thank you. You know, the reason I 
raised these points is that I respect the United States Supreme 
Court. I have argued four cases before it. I was a law clerk to 
Justice Blackmun, who, by the way, was from Minnesota, Mr. 
Chairman. In fact, he was known as one of the Minnesota Twins 
when he was appointed because he was thought to be exactly like 
then Chief Justice Warren Burger, who also was from Minnesota, 
in his very, very conservative views.
    And as it happened, Justice Blackmun became one of the most 
progressive members of the Court over the years that he served. 
He had a capacity for growth and for learning and listening, 
which I believe you have, and I think it is one of the most 
important characteristics of anybody who serves on the Court.
    But I do think the Court's crisis of legitimacy is the 
result of divisions within the Court, the polarization and 
politicization that has drawn lines, the process that has 
happened in recent years in confirmation proceedings. And so I 
really think that consensus building, building bridges with 
your colleagues, will be immensely important. I think that is 
one of the reasons that the President chose you, having talked 
to him about it, that you have that kind of persuasive and 
forceful intellect but also the personal charm and warmth and 
depth that will enable you to do it.
    Maybe you can tell this Committee about how you worked on 
the Sentencing Commission, for example, or in your previous 
experiences on that kind of consensus building.
    Judge Jackson. Thank you, Senator. Consensus building was 
one of the things that Justice Breyer was particularly good at 
in terms of his personality. In the time that I clerked for him 
I witnessed the way in which he continually reaches out to 
colleagues, continually seeks common ground, and it is 
something that I would hope to be able to emulate if I were to 
be confirmed.
    When I worked on the Sentencing Commission, the commission 
is a seven-member body, working on sentencing policy, which is, 
at times, a pretty contentious effort because we are talking 
about criminal justice. As commissioners, we are working on 
policy issues related to appropriate sentencings, and by 
statute, the commission is a bipartisan group. And during my 4 
years as a commissioner, I was able to work well with other 
members of the commission to find common ground, to work on 
issues, to come together. And the vast majority--I heard a 
statistic that something like 95 or 97 percent of the votes 
that the commission took were unanimous, and that happened 
because of a lot of effort and intention on the part of all 
involved to see if we could work together. And that would be 
the kind of thing that I would hope to do, if I was confirmed 
to the Supreme Court.
    Senator Blumenthal. You have mentioned in your previous 
testimony the challenges of applying the law to evolving and 
new technology. Obviously, the internet raises exactly those 
questions. Congress passed the Electronic Communications 
Privacy Act in 1986, when the internet was barely recognizable. 
It was nascent, just starting.
    And now our Nation faces a mental health crisis. It is 
partly aggravated by the pandemic, the isolation and anxiety 
that has resulted from it, but also by the internet and by the 
tech platforms that drive toxic content at children as a result 
of these black box algorithms that nobody really understands. 
Literally, no one understands because the tech platforms want 
to keep them secret.
    And we are trying to upgrade the law and update it to give 
parents tools to have greater visibility as to what their 
children are doing and to give parents and children tools to 
protect them against some of the bullying and eating disorder 
content and even suicidal and substance abuse stuff that they 
are driven to see.
    And Senator Blackburn and I have introduced a bipartisan 
measure, the Kids Online Safety Act that will provide a more 
modern solution to a modern problem, to update the law to 
account for the role of social media in our ongoing and 
aggravating mental health crisis in this country.
    Do you agree that it helps the Supreme Court, and judges in 
general, to do their job when Congress updates our statues to 
account for technological change?
    Judge Jackson. Thank you, Senator. The role of the Court is 
to interpret statutes when there are disputes related to the 
statutes, and in circumstances in which statutes have not been 
updated, I do not think it is surprising to note that there are 
disputes, about the meaning of the statute, about how it 
applies.
    And so, to the extent that Congress undertakes to make 
amendments and make the changes, I think it helps courts. Maybe 
there will be fewer disputes or easier disputes to resolve.
    Senator Blumenthal. Easier disputes to resolve in the sense 
that--and I have seen it happen--a judge will say, ``I do not 
know what Congress meant to do in this kind of situation, 
because this law was written at a time when none of this stuff 
now existed.'' I am sure you have faced that situation. I think 
it is true of social media and the dangers to children as a 
result of the toxic content that they often find, and often 
seemingly are addicted to use again and again and again because 
it is part of the business model of those social media and big 
tech platforms.
    Judge Jackson. Yes, I have faced the situation. One of my 
cases, the Alliance of Artists and Recording Companies v. 
General Motors, is a case that I ended up writing a couple of 
opinions about. It involved a statute of Congress related to 
digital recording audio devices and whether or not royalties 
were required for the purchase of those kinds of devices. And 
it was enacted at a time in which recording technology was at a 
different stage than it is now, and disputes arose that came 
before me regarding whether or not to apply the royalty 
requirement in that statute to modern recording devices, and in 
particular, the recording devices that are now in automobiles.
    When you take your CD and you put in your own car and 
record onto the hard drive of your car is that the same thing 
as putting your CD in one of those machines that records from 
CD to CD, and you give the second recording to all of your 
friends? That was what the statute was originally meant to 
cover, and the question was whether recording to your own car's 
hard drive counted.
    And it was a very interesting interpretive exercise, but 
again, it was the kind of thing in which I was focused on 
trying to ascertain what, based on the text of the statute and 
the definitions in the statute, what Congress intended this 
statute to cover.
    Senator Blumenthal. And cars, other devices, appliances at 
home, collect huge amounts of data, do they not, and as 
consumers we feel we own that data. It is ours. But it can be 
bought and sold, exchanged, and mined, in a way that right now 
consumers have no consent over. And it enhances the dominance 
of just a few of those tech companies, just a few of the 
corporations. Corporate power is emboldened and enabled, in 
many respects, but the amount of data they collect.
    It is also enabled by forced arbitration. We have had a 
reference to it already today, with respect to complaints about 
sexual harassment, which fortunately we have addressed. I have 
been proud to work on the Ending Force Arbitration of Sexual 
Assault and Sexual Harassment Act, which President Biden signed 
after we passed it just a few weeks ago.
    I have heard harrowing stories from survivors of sexual 
assault and victims of workplace harassment who were silenced 
and denied justice by forced arbitration. But forced 
arbitration applies, as well, to everybody who has a cell 
phone. You have a forced arbitration agreement. Many workers 
have forced arbitration agreements. Nursing homes have forced 
arbitration agreements.
    The point is that you have dedicated your life to access to 
the courts, the right of a trial, the right to a jury, the 
right to a judge. None of it is possible where there is a 
forced arbitration agreement. That is why I have worked on a 
measure called the FAIR Act that would make any forced pre-
dispute arbitration agreement invalid and unenforceable. If 
both sides want arbitration, that is fine, but access to the 
courts should be available to everyone.
    I know that you are limited as to what you can say about 
measures that are before us and policy issues, but I hope that 
you will consider the trend that the Court has adopted in 
support of forced arbitration and denial of rights like class 
action, and review whether they are appropriate.
    Let me just finish with a couple of quick points. First of 
all, on the Harvard Law School, Harvard Law Review article on 
registration of sex offenders, convicted sex offenders, I must 
say I read this article several times. In my view it is 
analysis, not advocacy. Would you agree?
    Judge Jackson. Absolutely, Senator. As a law school 
student, I was trying to do what law school students do, which 
is analyze a new set of legal provisions. These laws were new, 
and I was trying to assess what criteria courts could use to 
look at them. I was not making an argument about them at all.
    Senator Blumenthal. Exactly. And by the way, one of those 
statutes was in Connecticut. It was challenged on 
constitutional grounds, double jeopardy. It went to the United 
States Supreme Court. I defended it there. It was upheld, 9-0. 
I do not know whether your article was cited, but I would put 
this Law Review article very much in the category of analysis. 
The distinction between prevention and punishment, I would call 
it protection, not punishment or prevention. That is the 
argument that I made to the Supreme Court.
    I ask that this article be put in the record, Mr. Chairman.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Blumenthal. By the way, it took me two or three 
times to get through it. No disrespect to you or the Harvard 
Law Review.
    The issue of child pornography, you mentioned, I think, 
that in your decisions on the sentencing cases involving child 
sexual abuse material, which, by the way, I agree is absolutely 
horrific, abhorrent. It is the reason that Senator Graham and I 
have actually sponsored a measure called the EARN IT Act that 
addresses it. But you said that you imposed a sentence that 
matched the recommendation by either the prosecution or the 
Probation Office in most of the cases where you did that 
sentencing. Is that right? Do have I that----
    Judge Jackson. Yes, Senator. In looking back at the records 
concerning my cases, it looks as though I had 14 cases that 
involved either child pornography, interstate travel to meet up 
with a child for sex, sex crimes related to children. And in 10 
of those 14 cases I imposed a sentence that was consistent with 
or greater than what either the Government or the prosecution 
requested.
    Senator Blumenthal. The Probation Office.
    Judge Jackson. Excuse me, sorry. The Government or the 
Probation Office.
    Senator Blumenthal. And let me just ask you, the Probation 
Office is an independent arm of the court that investigates the 
defendant, looks at the crime, the defense background, his 
family situation, all of the relevant factors involved in 
sentencing, including the sentencing guidelines, and then, 
independently and impartially, makes a recommendation, 
presumably to serve the interest of justice in that particular 
case, based on the individual facts there. Is that roughly a 
correct description?
    Judge Jackson. That is correct, Senator. The Probation 
Office works within the court system. They are independent of 
the parties, and they investigate and make recommendations in 
cases concerning what the Probation Office thinks is an 
appropriate sentence.
    Senator Blumenthal. Thank you. Let me just finish by saying 
much of America is watching these proceedings on a split 
screen. On one hand they are literally seeing the death and 
destruction in Ukraine, Russia's brutal, barbaric assault on 
individual rights, basic freedoms that we often take for 
granted here. And we are exercising those rights right here.
    You are a teaching lesson. This proceeding is a teaching 
lesson about the importance of democracy. The people of Ukraine 
are fighting for it. They are dying in their neighborhoods and 
streets and their homes. They are huddled in basements. Their 
men and women are resisting, valiantly and bravely, against a 
huge military force that Russia has unleashed, and a reign of 
terror from the sky, simply because they believe in the ideals 
of freedom and law that we are seeking to preserve here.
    And so on this side of that split screen I think it is 
important that we do our best to honor the norms and the rules 
that you have sought to uphold throughout your life, and I am 
proud and excited to be here with you and your family as we go 
through this process. And I look forward, as I hope many of us 
do, to a bipartisan majority in support of your candidacy. 
Thank you.
    Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Blumenthal.
    I would like to bring everyone up to date. We have several 
considerations. The remaining Senators for questions, the 
endurance of our witness, Judge Jackson; votes on the floor; 
requests for compassionate release by a number of people in the 
audience.
    Here is where we stand. We are going to have Senator 
Hawley, followed by Senator Hirono, then we are going to take a 
20-minute break, because that is when we think there will be 
some votes on the floor. We can take care of those and get back 
in 20 minutes, then we will return from that break to Senators 
Cotton and Booker, then we will take a 30-minute break or so 
for dinner, then there will be Senator Kennedy, Padilla, and 
Tillis. And we are going to start off tomorrow with our two 
Senators, Ossoff and Blackburn.
    So, we should finish in the 9 to 10 hour this evening, God 
willing.
    So, at this point, I recognize Senator Hawley.
    Senator Hawley. Thank you, Mr. Chairman.
    Judge, nice to see you again. I thank you, again, for being 
here. Congratulations, again, on your nomination.
    I want to start with Senator Blumenthal left off. I want to 
talk with you about some of these cases. I mentioned them 
yesterday, so I know you know which ones I want to talk about. 
The seven cases, child pornography cases, in which you had 
discretion that came before you. You had discretion to sentence 
one way or another in these seven cases. Not in every case, of 
course, do you have discretion; sometimes, the law requires you 
to impose a certain sentence. But in these seven, you had 
discretion and in each of these seven, you chose to depart 
both, from the Federal guidelines and also from the 
Government's, the prosecutor's recommendation.
    Senator Lee asked you a little bit about this. Senator Cruz 
has asked you about it. He had the chart with the seven cases 
on it.
    Before we jump into those, I just want to correct the word 
on one or two things. Senator Coons suggested that in three 
cases, Nickerson, Nguyen, and Fyffe, you actually imposed 
sentences either within the guidelines or at the same level of 
the prosecution.
    But in Nickerson, you didn't have any discretion. That was 
an 11(c)(1)(c) case; the law bound you. And Nguyen wasn't a 
child-porn case and neither was Fyffe.
    Just one other quick thing to clarify. As to this, comments 
about the Probation Office, the Probation Office doesn't issue 
national guidelines, right; I mean, the Probation Office 
doesn't issue sentencing guidelines. They're not public. 
They're not recommended to all judges. The Probation Office 
provides advice to judges, case by case, usually in private, 
usually not available to the public.
    Is that right, Judge?
    Judge Jackson. Not exactly, Senator.
    The Probation Office in criminal cases is assigned by the 
court to work with respect to the evaluation of cases. In every 
case, consistent with Congress' requirements, the Probation 
Office prepares a presentence report, in which they review all 
of the statutory factors concerning sentencing.
    Congress has a statute for sentencing. It requires judges 
to consider the nature and circumstances of the offense, the 
history and characteristics of the defendant, the need for the 
sentence imposed to promote various purposes of punishment. 
There are many purposes listed in the statute.
    And the Probation Office is the arm of the court that does 
factual investigations in every criminal case unless, there are 
certain cases in which you can waive it, but the background is 
the Probation Office's assessment of the facts related to a 
particular sentence and a particular crime. And the Probation 
Office's report when a court sentences, actually, in most 
cases, becomes the findings of fact of the court.
    And so, the Probation Office appears, just like the 
prosecution and the defense. The Probation Office has written a 
report and they have made a recommendation to the court based 
on their independent analysis related to the facts of a 
particular crime and defendant and sentence.
    Senator Hawley. Understood. So, they give the court 
counsel. Understood.
    However, they don't issue guidelines. They are not uniform. 
It is by its very nature, a case-by-case inquiry; as you said, 
the report goes to the judge. As I understand it the 
presentencing report, I'm sorry, the probation reports are not 
public in all of the cases that we are talking about here. I 
would love to see them if they are.
    But it is not as if there is one set of guidelines that are 
Federal sentencing guidelines and then there's the probation 
guidelines. The Probation Office is giving advice to the judge; 
it varies case by case----
    Judge Jackson. Senator----
    Senator Hawley [continuing]. But it is not the same.
    Judge Jackson. Sorry. I thought you were done.
    Senator Hawley. No, that is all right.
    Let me ask you about a specific case. I mean, let's talk 
about, I listed these seven cases in which you had discretion 
and you did not follow the prosecutor's recommendation or the 
sentencing guidelines, but let's just talk about one of them, 
because we talked about some of them as a group.
    Let's talk about United States v. Hawkins. I think that is 
one you probably remember from 2013. The defendant there was 
Wesley Hawkins. He was 18 years old at the time. He uploaded 
five video files of child pornography from his computer to 
YouTube. This is how the police got on to him. He then uploaded 
another 36 depictions of child porn and other lewd photos of 
children to his iCloud account.
    When the police executed a search on his apartment, on the 
premises, they found 17 videos on his laptop and 16 images of 
child pornography; all of them very graphic, some of them 
involving very young children. The 17 videos, in particular, 
this is from the Government's sentencing memorandum in this 
case, just so we understand the facts, here are some of the 
videos that the Government charged and they recovered.
    There was a 24-minute, 6-second video depicting a 12-year-
old male committing a sexual act. I am not going to read 
exactly what it was.
    There was a 1-minute-and-57-second video depicting an 8-
year-old committing a sexual act.
    There was an 11-minute-and-47-second video depicting an 11-
year-old committing a sexual act and being raped by an adult 
male.
    There was a 15-minute-and-19-second video depicting two 11-
year-olds committing sexual acts.
    There was a 7-minute-and-51-second video depicting a 12-
year-old committing a sexual act.
    So, as the Government said in this case, and I am quoting 
now from the transcript of the sentencing hearing, 17 videos is 
a lot and some of the videos, including the ones that are 
described in the statement of the offense, and I have just 
related some of them are very lengthy and include numerous 
images, numerous views, sometimes collages, sometimes multiple 
victims, you see the act in progress. The Government goes on to 
describe some of these as sadomasochistic images.
    So, this is a tough case. This is one of those tough cases 
you were referencing earlier. You talked about it this morning, 
you said these cases are terrible. This is one of them. This is 
terrible stuff. This is not a good guy who is doing this stuff.
    The guidelines recommendation in the case was 97 to 121 
months. So, if I am doing my math right that is up to 10 years. 
And in this case, the guidelines recommendation was essentially 
written by Congress, because in the PROTECT Act of 2003, 
Congress specified what they wanted the range to be in these 
kinds of cases. And Congress also specified that they wanted 
the mandatory minimum.
    So, I know you remember the PROTECT Act, because you have 
talked about it; you have given lectures on it. And it was 
enacted, as I said in 2003. It was 84-0 was the vote, here in 
the Senate.
    And the concern, the reason the PROTECT Act was put into 
place is the Senate was concerned over lenient sentences by 
judges in child porn cases, which is what you described. You 
said about it, there was an increasing perception on Capitol 
Hill and within DOJ that liberal judges were to blame for the 
downward pressure on Federal sentences and the legislation was 
necessary to reign them in. Now, that is you in 2011, 
describing this law.
    So, Congress has set the guidelines here, 84-nothing. I 
noticed the Chairman voted for it, as did a number of other 
Members of this Committee. So, Congress sets the range; 
essentially, it is 97 months up to 10 years.
    Now, the prosecutor in this case, this is in DC, of course, 
you are on the Federal district court, the prosecutor in this 
case is a liberal administration. I think it is fair to say, 
this isn't the State of Texas. I see my colleague from Texas 
next to me here.
    The prosecutor in this case, nevertheless, still asked for 
two full years in prison. You gave the defendant 3 months. The 
guidelines call for 10 years. The prosecutor wanted at least 2. 
You gave him 3 months. And when you did, you made a number of 
arguments and statements on the record and I would like to go 
through some of them because I have read them all.
    And the first argument you made was that the Federal 
guidelines that punished child porn offenders, the ones that 
Congress wrote were, and I am quoting you now, ``are in many 
ways outdated''; that's your quote. And you went on to say 
about why you thought they were outdated.
    I am going to quote you again. You say, and I quote, ``I 
don't feel that it is appropriate to increase the penalty on 
the basis of the number of images or prepubescent victims,'' 
meaning little kids, ``as the guidelines require because these 
circumstances exist in many cases, if not most, and don't 
signal an especially heinous or egregious child pornography 
offense,'' end quote.
    I just want to ask you about that, because I can tell you, 
I am having a hard time wrapping my head around it. We are 
talking about 8-year-olds and 9-year-olds and 11-year-olds and 
12-year-olds. He has got images of these, the Government said, 
that added up to over 600 images. Gobs of video footage of 
these children, but you say, this does not signal a heinous or 
egregious child pornography offense. Help me understand that. 
What word would you use if it is not heinous or egregious? How 
would you describe it?
    Judge Jackson. Thank you, Senator, for letting me address 
the concern that you have put forward based on the record that 
you have reviewed.
    As a judge who is a mom and has been tasked with the 
responsibility of actually reviewing the evidence, the evidence 
that you would not describe in polite company, the evidence 
that you are pointing to, discussing, addressing, in this 
context, is evidence that I have seen in my role as a judge and 
it is heinous. It is egregious.
    What a judge has to do is determine how to sentence 
defendants proportionately consistent with the elements that 
the statutes include with the requirements that Congress has 
set forward. Unwarranted sentencing disparities is something 
that the Sentencing Commission has been focused on for a long 
time in regard to child pornography offenses.
    All of the offenses are horrible. All of the offenses are 
egregious. But the guidelines, as you pointed out, are being 
departed from, even with respect to the Government's 
recommendation. The Government, in this case, and in others, 
has asked for a sentence that is substantially less than the 
guideline penalty.
    And so what I was discussing was that phenomenon that the 
guidelines in this area, are not doing the work of 
differentiating defendants as the Government, itself, indicated 
in this very case. And so, that is what I was talking about.
    But I want to assure you, Senator, that I take these cases 
very seriously. But these cases include the notion, by many 
defendants, that the folks at issue, the defendants themselves, 
are collecting the images on the internet. There are terrible 
things that have happened, but they are not involved, say, the 
defendants, they are not focused on, you know, what is actually 
happening to the children.
    And so, part of my sentencings was about redirecting the 
defendant's attention. It is not just about how much time a 
person spends in prison; it is about understanding the harm of 
this behavior. It is about all of the other kinds of restraints 
that sex offenders are ordered, rightly, to live under at the 
end of the day.
    Sentences in these cases include, not only prison time, but 
restraints on computer use, sometimes for decades; restraints 
on ability to go near children, sometimes for decades. All of 
these things, judges consider in order to affect what Congress 
has required, which is a sentence that is sufficient, but not 
greater than necessary----
    Senator Hawley. Let me just say----
    Judge Jackson [continuing]. To promote the purposes of 
punishment.
    Senator Hawley. Yes. Well, let me just ask you about that 
last point, because you have said this a couple times now, the 
sentences that Congress require.
    Congress wanted the guidelines to be mandatory. Congress 
wrote the guidelines in this case. They wanted them to be 
mandatory.
    They gave the courts factors to consider to choose between 
the sentencing range. Congress wanted you to choose between 97 
and 121 months; that's what Congress wanted.
    The Supreme Court, in Booker, said that the sentencing 
guidelines would be discretionary. So, the Supreme Court gave 
you the discretion.
    But if we are talking about what Congress has wanted, 
Congress wanted them to be mandatory.
    My only point in raising that is just to say that you had 
discretion in these cases and you used your discretion to 
choose the sentences that you did.
    Let me ask you about some of the things that you said. You 
said this morning, and I appreciated it, how you want to direct 
the defendants, you want to get them to own up to what they 
have done in these cases and I thought that was powerful and I 
thought it was right.
    But let me just ask you about what you said to this 
defendant. You said to this defendant, through whom you 
sentenced only to 3 months in prison, that ``your collection,'' 
and I am quoting you, ``your collection at the time you were 
caught was not actually as large as it seems.''
    The Government felt the need to respond to you on the 
record. They said, ``the Government doesn't believe that it is 
appropriate to just disregard the number of images that the 
number of images can with appropriate, and, indeed, in this 
case, the defendant has amassed an extremely large collection 
of child pornography.'' But you disregarded that.
    You also told the defendant, you said this, ``This seems to 
be a case where you were fascinated by sexual images involving 
what were, essentially, your peers.'' And then you went on to 
say, ``the defendant was merely trying to satisfy his 
curiosity.'' ``Curiosity'' is your word. One more thing on this 
same idea. You said, ``you were viewing,'' this is you to the 
defendant, ``you were viewing sex acts between children who 
were not much younger than you.''
    And the whole discussion is about why you are only giving 
him 3 months. Judge, he was 18. These kids are 8. I don't see 
in what sense they are peers.
    I have got a 9-year-old, a 7-year-old, and a 16-month-old 
at home and I live in fear that they will be exposed to, let 
alone exploited, in this kind of material.
    I don't understand you saying to him that they are 
``peers'' and that, therefore, ``were viewing sexual acts 
between children who are not much younger than you,'' and that 
that is somehow a reason to only give him 3 months.
    Help me understand this.
    Judge Jackson. Senator, I don't have the record of that 
entire case in front of me. What I recall, with respect to that 
case, is that unlike the many other child pornography offenders 
that I had seen as a judge and that I was aware of in my work 
on the Sentencing Commission, this particular defendant had 
just graduated from high school and some of, perhaps not all 
when you were looking at the records, but some of the materials 
that he was looking at were older teenagers, were older 
victims.
    And the point, Senator, is that you said before, the 
Probation Office is making recommendations and they do so on a 
case-by-case basis. That is what Congress requires. This is not 
done at the level of----
    Senator Hawley. But you had discretion, Judge. You admit 
that, right? I just want to----
    Judge Jackson. Senator, sentencing is a discretionary act 
of a judge, but it is not a numbers game. It is not--I 
understand that Congress wanted the guidelines to be mandatory.
    The Supreme Court in 2005 determined that they couldn't be 
in an opinion by Justice Scalia, determined that they couldn't 
be. And Congress, since then, has not come back to amend them 
or to change them or to make them mandatory again.
    And so, there is discretion at sentencing and when you look 
at the sentencing statutes, Congress has given the judges not 
only the discretion to make the decision, but require judges to 
do so on an individualized basis, taking into account not only 
the guidelines, but also various factors, including the age of 
the defendant, the circumstances of the defendant, the terrible 
nature of the crime, the harm to the victims; all of these 
factors are taken into account and the Probation Office assists 
the court in determining what sentence is sufficient, but not 
greater than necessary.
    And I appreciate, Senator, that you have looked at these 
from the standpoint of statistics, that you are questioning 
whether or not I take them seriously or I have some reason to 
handle them in, either a different way than my peers or a 
different way than other cases, and I assure you that I do not. 
That if you were to look at the greater body of not only my 
more than 100 sentences, but also the sentences of other judges 
in my district and nationwide, you would see a very similar 
exercise of attempting to do what it is that judges do: 
attempting to take into account all of the relevant factors and 
do justice, individually, in each case.
    Senator Hawley. Well, let's keep talking about this case. 
You also said to this individual, who is an adult, he was tried 
as an adult, he is 18 years old, you also said to him, besides 
saying that you thought his victims were his peers, you also 
said, ``there is no reason to think that you are a pedophile.'' 
And then you went on to say, again, that is another reason why 
you weren't going to give him, you are only going to give him 3 
months, because you had judged that he wasn't a pedophile.
    And then you said, and this is something that I really need 
your help understanding, then you apologize to him. And I just 
have to tell you, I can't quite figure this out. You said to 
him, ``this is a truly difficult situation. I appreciate that 
your family is in the audience. I feel so sorry for them and 
for you and for the anguish this has caused all of you. I feel 
terrible about the collateral consequences of this 
conviction.'' And then you go on to say, ``sex offenders are 
truly shunned in our society.''
    I am just trying to figure out, Judge, is he the victim 
here or are the victims the victims?
    You are saying that you, you are apologizing to him. You 
are saying, you are sorry for the anguish this has caused him.
    There was a victim impact statement in this case. It didn't 
get read into the record, but it was there.
    I described the videos that we have. You say, earlier in 
the case, you talked about how heinous these crimes are and you 
describe them, to your credit, you describe how heinous it is, 
to your credit and, yet, here you are giving him 3 months and 
apologizing to him and saying you feel sorry for the anguish it 
has caused him, and also saying that you think that sex 
offenders are truly shunned in our society.
    So, just talk about that. Help me understand. I mean, is he 
a victim? Is that your view here? Is that why you said this? Is 
that what you meant by that?
    Judge Jackson. Senator, I, again, don't have the entire 
record. I remember in that particular case, I considered it to 
be unusual; in part, for the reasons that I described.
    I remember in that case that defense counsel was arguing 
for probation; in part, because he argued that, here we had a 
very young man, just graduated from high school. He presented 
all of his diplomas and certificates and the things that he had 
done, and argued, consistent with what I was seeing in the 
record, that this particular defendant had gotten into this in 
a way that was, I thought, inconsistent with some of the other 
cases that I had seen.
    Part of what a judge is doing, as required by Congress, is 
thinking about this case, thinking about unwarranted sentencing 
disparities--that is in the statute--other cases, other 
determinations that a judge may have made about this.
    I don't remember, in detail, this particular case, but I do 
recall it being unusual, and so my only point to you is that 
judges are doing the work of assessing in each case a number of 
factors that are set forward by Congress, all against the 
backdrop of heinous, criminal behavior.
    But the guidelines are no longer mandatory. Congress has 
not corrected, as you would say, the Supreme Court's 
determination about that, Justice Scalia's decision, that the 
guidelines are not mandatory. Congress has not said that and 
Congress has given judges factors to consider.
    This, in my view, was an unusual case that had a number of 
factors that the defendant was pointing out, that the 
Government was pointing out, that the Probation Office was 
pointing out, and I sent this 18-year-old to 3 months in 
Federal prison under circumstances that were presented in this 
case, because I wanted him to understand that what he had done 
was harmful, that what he had done was unlawful, that what he 
had done violated the law and needed to be punished, not only 
by prison, but also by all of the other things that the law 
requires of a judge who is sentencing in this area.
    Senator Hawley. But, Judge, with all due respect, and I 
tell you, I will be direct with you: I am questioning your 
discretion and your judgment. That is exactly what I am doing. 
I am not questioning you as a person. I am not questioning your 
excellence as a judge, frankly, but you said that you had 
discretion and that is exactly what I am doing; I am 
questioning how you used your discretion in these cases.
    And, to me, to take a guy who is 18 years old, who has what 
the Government says is an extremely large collection of 
prepubescent pornography, 8-year-olds, 10-year-olds, 11-year-
olds, we are talking about, I mean, gobs of hours of time here 
that he has, and you say to him, what, that, you say that, 
well, you know, it was just a collection. I mean, he was just 
viewing it and it was, you know, essentially, they were his 
peers.
    You say to him that he is not a pedophile. I don't know how 
you know that. I don't know why that's relevant to the 
guidelines, but maybe it is. You say he is not a pedophile.
    You say that you are very sorry for him and what he 
suffered, and then you give him 3 months, when, frankly, a 
liberal prosecutor is asking for 2 full years. I mean, it does 
seem like an extraordinary case to me.
    It would bother me no matter what. It really bothers me 
when, in every case, child porn case you have had, you have had 
discretion, you sentenced below the guidelines and below the 
Government's recommendation.
    And saying that sex offenders are truly shunned in our 
society, as you said to him, it reminds me, it echoes what you 
said as early as law school in that Harvard Law Review article 
Senator Blumenthal was just talking about. There, you say, and 
I am quoting you now, ``In the current climate of fear, hatred, 
and revenge associated with the release of convicted sex 
criminals, courts must be especially attentive to legislative 
enactments''--regarding these sex criminals, I guess, like 
this, the enactment here, the PROTECT Act that Congress 
enacted.
    So, I want to try to understand here, is it your view that 
society is too hard on sex offenders? You say they truly are 
shunned in society. You wrote that many of these laws are 
products of a climate of fear, hatred, and revenge. So, is that 
still your view? I mean, do you think that these laws are too 
tough, that we are too tough on sex offenders? Explain what you 
meant in this case in 2013. And it seems to be the same thing 
you said many years ago.
    Judge Jackson. Senator, it is not the same thing I said 
many years ago. Many years ago, as a law school student, I was 
evaluating a new set of legislation, State laws about 
registration and I was analyzing them, as law students do. It 
wasn't about the sex crime; it was about the characterization 
of the law. Is it a punitive law? Is it a prescriptive law? And 
how would a court go about determining that? That was the frame 
that I used then. It could have been about anything. It was 
about the characterization of legislation.
    Senator Hawley. And just to, and I am sorry, I don't mean 
to interrupt you. I only have 2\1/2\ minutes left. I just want 
to make sure I understand this.
    This is, I am quoting from your conclusion now, this is on 
page 1732-1728 of the Harvard Law Review. This is your 
conclusion: ``In the current climate of fear, hatred, and 
revenge associated with the release of convicted sex criminals, 
courts need to be especially attentive to legislative 
enactments.''
    See, that's a conclusory statement. You are saying that 
there is a climate of fear, hatred, and revenge that are 
informing these laws, and you described some of the laws 
earlier, I think Megan's Law and others. Senator Cruz asked you 
about some of those.
    I am just trying to understand what you meant by that, 
because you are saying something similar in the Hawkins case. 
You are saying that society truly shuns our sex offenders.
    Judge Jackson. Senator, with all due respect, my article is 
now in the record. People can read it and they can see that I 
was evaluating these laws, not to determine their 
constitutionality, not to say that they shouldn't be enacted, 
but to talk about the ways in which courts make determinations 
about the character of the law and all of the consequences that 
follow from them.
    In law school, I had not had any experience in terms of the 
criminal justice system, and I was doing what law students do, 
which is seeking to analyze, in a creative way, new 
legislation.
    With respect to Mr. Hawkins, I was doing what judges do, 
which is look at the statute, 18 U.S.C. 3553(a), exercise 
discretion, as Congress has required us to do, take into 
account all of the various aspects of a particular case, and 
make a determination, consistent with my authority, my 
judgment, and understanding, fully, the egregious nature of the 
crime.
    As you said, even the prosecutors in these cases are not 
recommending guideline sentences. The Probation Office, which 
is an independent authority looking at these cases and the 
facts related to them, are not recommending guideline 
sentences. This is a particular area where the Commission has 
seen an enormous amount of disparity and has, in fact, asked 
Congress to come back and address, to help judges, who are 
looking at these cases, to be able to rely on the guidelines.
    Senator Hawley. Which Congress has declined to do.
    Judge Jackson. Senator, in that case, we have the statute 
that Congress has enacted concerning penalties and we have 
judges who are doing their level best to make sure that people 
are held accountable, as they need to be, in our society in a 
fair and just way.
    Senator Hawley. Mr. Chairman, my time has expired.
    Thank you, Judge.
    I have no further questions at this time.
    Chair Durbin. Just checking with my staff, so the original 
statute was passed in 2003. The Scalia decision in 2005, the 
Booker decision?
    Judge Jackson. So, the original statute that I am talking 
about, I am just thinking, was, I felt like it was in the 
1980s.
    Chair Durbin. We think it may have been----
    Judge Jackson. In 2003, all right.
    Chair Durbin [continuing]. In a decision by----
    Judge Jackson. Justice Scalia, the Booker decision, made 
the guidelines advisory, so that even though judges have to 
calculate them, they are no longer binding. And what it meant 
in the statute is that the guidelines became one factor, among 
many, that judges consider at sentencing.
    Chair Durbin. I am not going to opine on Justice Scalia in 
his conduct and decision as it relates to the overall topic. I 
hope we all agree that we want to do everything in our power, 
reasonably within our power to lessen the incidents of 
pornography and exploitation of children. You have made that 
clear that is your position, too.
    But I just want to tell you, Congress doesn't have clean 
hands in this conversation. We haven't touched this now, for 
15, 16, or 17 years. And this, you aren't the only one who 
faced this kind of a challenge with the cases before you.
    I said this morning, and it bears repeating, in United 
States v. Klotz, Trump appointed Judge Sarah Pitlyk, Hawley's 
choice, Senator Hawley's choice for the Eastern District of 
Missouri, sentenced an individual, convicted of possession of 
child pornography, to only 60 months, well below the 135- to 
168-month sentence recommended by the guidelines.
    Senator Hawley. Mr. Chairman, you have mentioned me now.
    Chair Durbin. Let me finish. I will finish and then, of 
course, I will recognize you.
    Senator Hawley, you have said some very powerful things in 
support of this judge, but, clearly, she faced a situation 
where she decided she would not follow the guidelines and 
sentenced to less than half of what they recommended.
    We have created a situation because of our inattention and 
unwillingness to tackle an extremely controversial area in 
Congress and left it to the judges, and I think we have to 
accept some responsibility for that, Senator.
    Senator Hawley. I just wanted to say, Chairman Durbin, 
since you mentioned Judge Pitlyk in the Klotz case, she 
followed the prosecutor's recommendation in that case.
    My, as I have said over and over, part of my concern with 
Judge Jackson is that she had not followed the prosecutor's 
sentences. She didn't in the Hawkins case we were just talking 
about or the guidelines.
    And I am happy, we can have a policy debate about whether 
or not the guidelines are too lenient. I would argue in this 
era of exploding child pornography, they are not too lenient, 
at all.
    I think you were right the first time when you voted in 
2003 to make it tougher.
    Chair Durbin. I will just say that I don't know if you have 
sponsored a bill to change this. I will be looking for it. But 
I will tell you that there isn't a long line of people waiting 
to co-sponsor this controversial issue.
    If we are going to tackle it, we should, but we should 
concede in the meantime, that we have left judges in the lurch 
in many of these situations. There is no clarity in this 
situation. And I think to hold this judge responsible for the 
overall situation is to ignore our nonfeasance, malfeasance, 
whatever it might be, and lack of responsibility in dealing 
with this.
    Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman.
    Judge Jackson, as you may know, I ask the following two 
preliminary questions of every nominee who appears before any 
of the Committees on which I sit, so I will ask you these two 
questions first:
    Since you became a legal default, have you ever made 
unwanted requests for sexual favors or committed any verbal or 
physical harassment or sexual assault of a sexual nature?
    Judge Jackson. I have not.
    Senator Hirono. Have you ever faced discipline or entered 
into a settlement related to this kind of conduct?
    Judge Jackson. I have not.
    Senator Hirono. Judge Jackson, my colleague from Missouri 
seems to think that it is appropriate for Federal judges to 
sentence individuals below--inappropriate to sentence 
individuals below the sentencing guidelines in these kinds of 
cases, horrific cases and so, I think it is important to offer 
a couple of clarifications for the record.
    Judge Jackson, when the U.S. Sentencing Commission first 
addressed the issue of sentencing in this area in 2012, do you 
remember that only 40 percent of convicted offenders in this 
category were receiving sentences within the guidelines?
    Judge Jackson. Senator, I don't remember, exactly, the 
number, but I do know that there was a great deal of variance 
from the guidelines.
    Senator Hirono. Forty percent.
    Judge Jackson. Uh-huh.
    Senator Hirono. Would you be surprised to learn that the 
Department of Justice, which prosecutes these cases, sent a 
letter to the U.S. Sentencing Commission in 2013 stating that 
the existing sentencing guidelines for child pornography 
offenses do not accurately reflect the current landscape of 
child pornography offense conduct?
    Judge Jackson. I don't remember that particular letter, but 
there was a lot of concern about this guideline from all sides.
    Senator Hirono. And now the Sentencing Commission issued 
another report just last year on this topic. And do you know 
that as of that report, an even lower percentage of convicted 
offenders were receiving sentences within the guidelines?
    Did you know that----
    Judge Jackson. I am not surprised. I----
    Senator Hirono [continuing]. It was 40 percent before and 
now it is even less?
    Judge Jackson. I didn't know, but I am not surprised.
    Senator Hirono. Did you know that, as of last year, it was 
just 30 percent of non-production offenders who were sentenced 
within the guidelines?
    Judge Jackson. I did not know, but I am not surprised.
    Senator Hirono. My Republican colleagues made a big show 
yesterday of promising a fair process and, to me, that means 
ensuring that you are treated no differently than any other 
Federal judges that have got--nominees that have come before 
us.
    See, there was an article recently that highlighted the 
fact that many of President Trump's circuit court nominees who 
were previously district court judges, had also issued below-
guideline sentencing to child pornography cases.
    Judge Ralph Erickson, who was confirmed to the Eighth 
Circuit in 2017, with support from every Republican Member of 
this Committee, who was serving in the Senate at the time, 
there were at least 11 cases where he sentenced people to 
below-guideline sentences.
    Does that surprise you?
    Judge Jackson. It does not, Senator.
    Senator Hirono. I am not sure if you know Judge Erickson, 
but do you have any reason to believe he is soft on child 
pornography, based on these sentences?
    Judge Jackson. I don't have any reason to believe that.
    Senator Hirono. Do you think my Republican colleagues are 
soft on child pornography just because they voted for Judge 
Erickson to become a Federal appellate judge, even after he 
issued these 11 sentences?
    Judge Jackson. Senator, I am not in a position to evaluate 
whether your colleagues are soft on crime because of their 
votes. I have no reason to believe that.
    Senator Hirono. They voted for this person, but I think it 
would probably be quite unfair to characterize him as being 
soft on child pornography.
    I would also like to talk to you about Judge Joseph Bianco, 
who was confirmed to the Second Circuit in 2019 with support 
from every Republican Member of this Committee who was serving 
in the Senate at the time, including Senator Hawley.
    In the case, United States v. Bowen, Judge Bianco sentenced 
a defendant to 60 months in prison when his guidelines range 
was 151 to 188 months. And here is what Judge Bianco said in 
the sentencing transcript for that case, quote, ``and the 
guidelines here are just way disproportionate under the facts 
of this case and I don't view them as particularly helpful in 
this case. I believe the probation department got it right in 
terms of the statutory, mandatory minimum being sufficient, but 
not greater than necessary to achieve the factors of 
sentencing,'' quote.
    I am not sure if you know Judge Bianco, but do you have any 
reason to believe that he is soft on child pornography, based 
on that sentence or those comments?
    Judge Jackson. I do not, Senator.
    Senator Hirono. Do you think my Republican colleagues, 
including Senator Hawley, are soft on child pornography, 
because they voted to confirm Judge Bianco to the Second 
Circuit, even after he issued below-guideline sentences and 
made these comments?
    Judge Jackson. I have no reason to believe that.
    Senator Hirono. Here are some of the other circuit judges 
that all of my Republican colleagues voted to confirm, despite 
the fact that they sentenced child pornography defendants to 
below-guideline sentences: Judge Amul Thapar on the Sixth 
Circuit; Judge Richard Sullivan on the Second Circuit; Judge 
Andrew Brasher on the Eleventh Circuit.
    Again, I am not sure if you have ever met these judges 
before, but do you have any reason to believe they don't take 
child pornography seriously?
    Judge Jackson. I do not.
    Senator Hirono. I would like to note that Senator Cruz 
referred to a chart that listed eight cases and the Government 
recommendations and the sentencing guidelines, and that you did 
not adhere to those sentencing guidelines.
    What was not included in the chart was what the probation 
recommendations were, and if you add those probation 
recommendations, in five of the cases you followed the 
probation recommendations. In one instance you were lower and 
one instance, you were higher than the probation 
recommendations.
    Mr. Chairman, I would like to introduce the complete chart 
for the record.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Hirono. You have been asked to answer a lot of 
questions about your judicial philosophy. Some of my 
colleagues, particularly on the other side, seem dead-set on 
finding out if you are an originalist, a textualist, if you 
believe in a living Constitution, or various other labels.
    I don't find these labels particularly useful. Take 
originalism, proponents claim you just have to dig deeply 
enough into the historical record and you'll somehow find the 
one true meaning of a constitutional provision.
    The fallacy of this approach is illustrated in District of 
Columbia v. Heller. There, Justice Scalia's majority opinion 
and Justice Stevens' dissenting opinion each apply originalism, 
Justice Stevens, more effectively, in my opinion, and reach 
completely different conclusions about the scope of the Second 
Amendment.
    Take textualism. In Bostock, Justice Gorsuch applied 
textualism to find that Title VII of the Civil Rights Act 
protected employees from discrimination, based on sexual 
orientation and gender identity.
    In dissent, Justice Alito mocked Justice Gorsuch's 
application of textualism and he wrote the following, Justice 
Alito, quote, ``the Court attempts to pass off its decision as 
the inevitable product of the textualist school of statutory 
interpretation, championed by our late colleague, Justice 
Scalia, but no one should be fooled. The Court's opinion is 
like a pirate ship; it sails under a textualist flag, but what 
it actually represents is a theory of statutory interpretation 
that Justice Scalia excoriated; the theory that courts should 
update old statutes so that they better reflect the current 
values of society,'' end quote.
    These are two Justices who are usually in agreement. So, so 
much for labels.
    So, instead of trying to affix some label on you, I would 
rather focus on the fact that you are fair and objective in 
your approach, that you are even-handed in your application of 
law to the facts, and that you are independent. During your 
last confirmation hearing, you spoke about judicial 
independence, about what you learned during the three 
clerkships and your then 8 years on the bench.
    You said, and I quote, ``I know very well what my 
obligations are, what my duties are: not to rule with partisan 
advantage in mind, not to tailor or craft my decisions in order 
to gain influence or anything of the sort,'' end quote.
    Well said.
    So, my question is the following: What do you do to ensure 
that you maintain independence, free from partisanship when you 
handle a case?
    Judge Jackson. Thank you, Senator.
    What I do and what I have done in all of my 570-some-odd 
opinions is to apply a methodology that is designed to ensure 
my impartiality and to respect the limits of my judicial role. 
What it means is that I am receiving the cases and at the 
outset, I am setting aside any personal views that I might have 
about the parties, about the issues.
    As I also said in my D.C. Circuit confirmation, it doesn't 
matter to me whether the argument is being made by the 
President of the United States or a death row inmate. What I am 
doing is looking at the argument. I am looking at the facts. I 
am applying the law in as neutral and consistent manner as I 
can, because that is the duty and requirement of the judicial 
oath.
    I am also very conscious of the limits of judicial 
authority, of the restrictions that exist in the law to prevent 
me, as a judge, from becoming a policymaker. This means that I 
carefully scrutinize my jurisdiction. It means that I look at 
the text and focus on the text and the intentions of the 
legislatures that drafted that provision, or the intentions of 
the framers that put forward that constitutional principle. It 
means I am looking at precedent.
    If I was fortunate enough to be confirmed to the Supreme 
Court, I would be upholding the principles of stare decisis as 
I consider the precedents, in making sure that the Court is 
putting forward consistent and predictable rulings, as is 
important, to maintain the rule of law.
    All of these I see as constraints on judicial authority 
that I care deeply about in order to maintain my independence, 
as is necessary, to ensure public confidence in my rulings as a 
judge.
    Senator Hirono. Judge Jackson, I have sat on this Committee 
now for a number of years and as some of my colleagues continue 
to try to pin labels on the nominees that come before us, 
frankly, I find your methodology to be as succinct a definition 
of what would lead a judge to come up with fair and objective 
results. I thank you for that.
    As a lower court judge, you were generally bound by the 
Supreme Court's and the D.C. Circuit's precedents. That 
certainly won't be the case if you are confirmed to the Supreme 
Court. The Supreme Court can overturn its own precedents.
    That is why I found your analysis in Committee on the 
Judiciary v. McGahn instructive. In that case, you had a 
precedent, Committee on the Judiciary v. Miers, that had 
already confronted the issue you faced; however, it was another 
district court decision and you were not bound by it. You, 
nonetheless, followed that precedent.
    Why did you find that opinion so persuasive?
    Judge Jackson. Well, Senator, in the law, there are 
different kinds of precedent, and by that, I mean there is 
vertical precedent, which is what people are most familiar 
with. There are cases that are handed down by higher courts, 
the appellate court, the Supreme Court, and those bind the 
lower courts, so that even if you disagree with them, you have 
to follow them because they are binding precedent.
    But there is also horizontal precedent. It, too, is about 
maintaining consistency and predictability in the rule of law. 
And what that means is that when you are in a district, there 
are many judges and if someone else in your district has 
handled a case that comes out or that involves the same issues, 
it comes out in a certain way, you, as the second judge, have 
to contend with that ruling. You can't ignore the fact that 
there is precedent in your district that handles a case in a 
particular way.
    And with respect to the McGahn case, the precedent wasn't 
just close; it was nearly identical.
    The Miers case involved the former White House Counsel and 
the argument by the Executive that the former White House 
Counsel had absolute immunity in, with respect to a request by 
the legislature that she provide testimony.
    My case involved a former White House Counsel who was 
claiming absolute immunity at the request of the Executive, in 
response to a legislative subpoena.
    In both cases, not only was the absolute immunity issue on 
the table, but in both cases, the same threshold issues about 
whether or not there was jurisdiction in the court because the 
legislature had standing or didn't have standing, which was the 
argument that was being made. The same question about whether 
the court could hear a dispute between the legislature and the 
executive branch. All of those issues had previously been 
considered by my colleague in the district court and he wrote 
an extensive, I am talking about Judge Bates, he wrote an 
extensive opinion analyzing each of the issues, and so at a 
minimum, as the second judge dealing with these exact same 
issues, I had to look at what he did and decide, was it 
persuasive? Did I agree?
    And I did.
    Senator Hirono. Judge Jackson, of course, if there had been 
a vertical precedent, i.e., from the Supreme Court or the 
circuit court that was on point to your McGahn situation, yes, 
you would have had to follow that precedent, but there wasn't, 
and so you followed a reasoning by another district judge. That 
made a lot of sense to me and that certainly makes sense to me.
    You discussed stare decisis and the importance of precedent 
in your opinion, and this is what you wrote, quote, it is 
interesting to note that the doctrine of stare decisis performs 
a limiting function that reflects the foundational principles 
that undergird the Federal Government's tripartite 
constitutional system. This is because deciding a legal issue 
anew, each time that same question is presented, without any 
reference to what has been done before, nudges a court outside 
of its established domain of saying what the law is and into 
the realm of legislating what the law should be.
    I know that you have been asked today the questions about 
the importance of precedent before, but maybe you can just tell 
us one more time why precedent is important in our judicial 
system.
    Judge Jackson. Thank you, Senator.
    Our judicial system is one that is designed to uphold the 
rule of law. Unlike other systems in other societies--some 
other societies, we believe that we have a government of laws 
and not men, and yet, there are men and women who are acting as 
judges in the context of our system.
    What precedent does is ensure that there is consistency 
across the different individuals who are tasked with the solemn 
responsibility of interpreting the law. It ensures that there 
is public confidence that the law is what is guiding judges in 
their decisionmaking and not just their own individual views.
    And so, it is crucial for maintaining public confidence, 
maintaining stability in the law, establishing a system that 
has predictability in it, all of which supports confidence in 
the judiciary, which is the currency of the judicial branch.
    Senator Hirono. Because of the importance of precedents and 
promoting confidence, et cetera, I mean, people need to know 
what the law is and so, precedent is important on that score.
    And if you are confirmed to the Supreme Court, what factors 
would you consider before overturning precedent?
    Judge Jackson. Well, there are many factors that the 
Supreme Court considers and not just whether they think a prior 
precedent is wrong; that is one of the factors. The Court has 
said that a precedent that is egregiously wrong is one that is 
subject to reconsideration, but in order to actually make the 
determination about overturning it, in addition to it being 
wrong, the court considers whether or not there has been 
reliance on that precedent, and if so, how much. The court 
considers whether or not the precedent is workable. Sometimes 
the court will issue a ruling in a case and it turns out that 
it is not actually functioning in the way that the court 
intended, and so that might be a reason to revisit it. The 
court considers whether or not other precedents in the area 
have shifted, such that the foundation for the particular 
precedent is no longer sustainable. And the court considers 
whether there are changes in the fact that relate to that 
precedent or a new understanding of the facts that relate to a 
precedent.
    All of those factors are things that a court takes into 
account that the Supreme Court takes into account when it 
decides whether or not to revisit a precedent.
    Senator Hirono. Therefore, the Court should consider all of 
those factors, I would say reliance factors loom large, as far 
as I am concerned, before overturning a precedent. But, 
basically, if you have five members of the Court deciding to 
overturn a precedent, they can do so, right?
    Judge Jackson. Under our scheme, yes; under the 
Constitution.
    Senator Hirono. And so, we are seeing more and more, 
precedents being asked to be overturned. An analysis by 
national affairs found that since 2017, when Justice Gorsuch 
was appointed to the Court, the Court has shown, and I quote, 
``an increasing readiness to overturn precedent,'' end quote.
    This is true for both, longstanding precedents and those 
that are just a few years old. For example, in 2018, Janus 
decision, the Court overturned a 41-year-old precedent called 
Abood. That decision weakened public sector unions.
    Justice Alito first signaled that he wanted conservative 
anti-union groups to challenge Abood in his 2012 decision in 
Knox v. SEIU. This is called signaling, and Justice Alito 
definitely signaled his desire to revisit the Abood decision.
    So, yes, these groups, they got the message. They brought 
case after case to meet the criteria that Justice Alito laid 
out and although they came close in 2016, Justice Scalia's 
death left the Court stuck in a 4-4 decision in a case called 
Friedrichs v. California Teachers Association.
    Basically, the minute Justice Gorsuch was confirmed, the 
Court finally had a conservative 5-4 majority to overturn Abood 
and the result was Janus. I follow these lines of cases very 
closely, so that is what happened. They waited for Justice 
Gorsuch and, boom, 5-4 against unions.
    In another example, the Court's acknowledged four most 
conservative Justices, Thomas, Alito, Gorsuch, and Kavanaugh, 
dissented in June Medical, voting to overturn a precedent 
banning burdensome and unnecessary restrictions placed on 
abortion providers. This particular precedent was only 4 years 
old. Now, the Court is poised to overturn Roe v. Wade, even 
though women have relied on their constitutional right to have 
an abortion for nearly 50 years.
    Of course, I am not suggesting that Supreme Court 
precedents are sacrosanct, because I am thankful the Court can 
and did revisit precedents like Plessy v. Ferguson that were 
wrong the day they were decided.
    But Justices should not be seen to be amassing their 
individual, political, or ideological agendas at the expense of 
individual rights and precedents that people have relied on. 
One result of the Court's new approach is that people's view of 
the Court is changing for the worse. A recent Pew poll found 
that 44 percent of Americans now disprove of the Supreme Court. 
This is up 15 points from August 2020, shortly before the late 
Justice Ruth Bader Ginsburg died and Amy Coney Barrett was 
appointed to fill her seat.
    I think court watchers acknowledge there is an ideological 
split in this current Supreme Court when we are seeing more 
cases decided on ideological bases, not on the facts and the 
law. I think it leads to the American people questioning 
whether the Court is a fair and objective arbiter of cases in 
controversy.
    You were asked earlier today about your representation of 
Guantanamo detainees. Just to make it clear, as a Federal 
public defender, you were assigned to represent Guantanamo 
detainees; is that right?
    Judge Jackson. That is correct, Senator.
    Senator Hirono. And then while at Morrison & Foerster, you 
also did pro bono work for Guantanamo detainees. Were you 
assigned to do that work, as well?
    Judge Jackson. So, there was one detainee who I had 
represented as a Federal public defender, who was brought into 
my firm's practice, unbeknownst to me, and when I arrived at 
the firm, the attorneys who were working on that case, 
recognized that I had previously been a lawyer who had 
represented this particular detainee and asked if I would help 
with his habeas petition at that stage.
    Senator Hirono. I think you clarified that earlier today. 
And you served as counsel of record on amicus briefs related to 
detention; I think that was brought out today.
    Judge Jackson. Yes.
    Senator Hirono. Were you working on behalf of detainees at 
that point or were you working on behalf of other groups or 
individuals?
    Judge Jackson. I was working on behalf of other groups or 
individuals with respect to----
    Senator Hirono. Were they retired judges?
    Judge Jackson. I--yes, there were three briefs in total, 
two different cases. And one of the briefs that I filed was on 
behalf of 20 retired Federal judges, including one who was a 
partner at my firm at the time, and who wanted to make a 
particular argument to the Court concerning the detention 
process.
    Senator Hirono. And these were judges that were nominated 
by various Presidents; it must have been a diverse group, and 
they asked you to do the brief.
    Judge Jackson. And they did, yes.
    Senator Hirono. So, as part of your work at the law firm, a 
responsibility of your employment, you were assigned to work 
with this diverse group of retired judges and to represent 
conservative or libertarian organizations such as the Cato 
Institute and the Rutherford Institute to advocate their views.
    Judge Jackson. Yes, the other two briefs that I filed were 
at the cert stage and then at the merits stage of a case that 
was eventually mooted, but my clients in those cases were a 
diverse group of organizations, including the Cato Institute, 
the Rutherford Institute, and the Constitution Project.
    Senator Hirono. Members of this Committee know full well 
that lawyers are, we are, we have to follow the Code of 
Professional Conduct, which says that we have to zealously 
represent our clients and that is what you were doing, with 
regard to the detainees.
    And I would just want to note that some of the very 
Senators who are openly questioning you for representing 
defendants or detainees have, in the past, made the argument 
that judicial nominees should not be opposed for the arguments 
they make in the course of representing clients.
    I am going to quote one of my colleagues: ``I have been a 
military lawyer for almost 30 years. I represented people as a 
defense attorney in the military that were charged with some 
pretty horrific acts and I gave them my all. The system of 
justice that we are so proud of in America requires the 
unpopular to have an adequate and an advocate. And every time a 
defense lawyer fights to make the Government do their job, that 
defense lawyer has made us all safer.''
    Do you agree with that?
    Judge Jackson. I do, Senator.
    Senator Hirono. In 2012, prominent conservative lawyers 
signed a letter defending attorneys who have represented 
Guantanamo detainees and part of that letter said, quote, ``The 
American transition of zealous representation of unpopular 
clients is at least as old as John Adams' representation of the 
British soldiers charged in the Boston Massacre. Good defense 
counsel is key to ensuring that military commissions, Federal 
juries, and Federal judges have access to the best arguments 
and most rigorous factual presentation before making crucial 
decisions that affect both national security and paramount 
liberty interests,'' end quote.
    So, the quote that I read isn't the first time that my 
colleagues on the other side of the aisle have tried to say 
that your representation and your work as a public defender, 
somehow, I don't know, disqualifies you or makes you leaning 
one way or the other. So, you have made it very clear that that 
is not what you are about.
    I just have one more question in the remaining time--oh, I 
am sorry. I am over.
    Chair Durbin. Senator, I am sorry. We are on a roll call.
    Senator Hirono. I am on such a roll.
    Chair Durbin. You are on a roll and we are on a roll call.
    Senator Hirono. Yes. Thank you.
    I apologize.
    Senator Cruz. Mr. Chairman, before we break, if I could ask 
one question of the Chairman?
    Chair Durbin. Sure.
    Senator Cruz. Senator Hirono just made reference to the 
recommendations of the Probation Office in five of these cases. 
To the best of my knowledge, those probation recommendations 
are not in the record. I haven't seen them. My staff hasn't 
seen them.
    And that raises two questions: number one, whether the 
White House is providing differential material on this 
nominee's background to Democratic Members than Republican 
Members, because I don't know where Senator Hirono would get 
access to them, other than from the White House.
    But, second, regardless of whether it is differential, 
would the Chairman agree that there is considerable focus on 
these cases and the Committee, both sides, should have access 
to the presentence reports and to see the underlying facts.
    Judge Jackson has said she was following the facts and the 
factors in those cases----
    Chair Durbin. Senator, you know we completed discovery 
before we started this hearing.
    Senator Cruz. Mr. Chairman, how did Senator Hirono----
    Chair Durbin. For you to now----
    Senator Cruz. How did Senator Hirono get the information 
that the Republicans have not been given?
    Chair Durbin. I am not going to entertain this. We have 
been through discovery.
    Senator Cruz. Do you have access to them?
    Chair Durbin. I don't know that I do. I really don't.
    Senator Cruz. Can we ask Senator Hirono how she got access 
to them?
    Chair Durbin. I am sorry to interrupt you, Senator, but I 
want to make an announcement.
    We are going to have a 10-minute break. Members are going 
to head to the floor----
    Senator Cruz. So, you are going to keep differential access 
to this information?
    Chair Durbin. I am not sure what differential access--I'll 
look it up.
    We have a vote on the floor that will take about 10 
minutes. So, 10 to 15 minutes, relax, and then we are going to 
come back and we have two Senators, Cotton and Booker, who will 
be recognized and then take a break for dinner, and then we are 
going to try to still finish tonight with two remaining 
Senators, Senator Ossoff and Tillis, who are going to be first 
thing in the morning.
    So, we stand in recess.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. The Senate Judiciary Committee will resume.
    I want to make one thing clear for the record. Senator 
Blackburn, you're going to be recognized this evening because 
Senator Tillis has asked--he's volunteered to be paired in the 
morning with Senator Ossoff for the morning show.
    Senator Blackburn. Yes. Mr. Chairman, I just felt like we 
should----
    [Voice off microphone.] Microphone.
    Senator Blackburn. It's on. My voice is just soft. I felt 
like we should finish tonight and----
    Chair Durbin. We're trying to.
    Senator Blackburn. I know.
    Chair Durbin. Senator, there are a lot of people involved 
in this. I'm doing my best.
    Senator Blackburn. I fully appreciate that.
    Chair Durbin. And you asked to be on the program tonight, 
and we're going to put you on the program.
    Senator Blackburn. And I appreciate that.
    Chair Durbin. How about that?
    Senator Blackburn. Thank you.
    Chair Durbin. Okay. Good.
    Senator Cotton.
    Senator Cruz. Mr. Chairman, before we start this 
questioning, right before the break, I asked the Chairman 
about--Senator Hirono had referenced five probation reports 
that were not in the record, and I asked the Chairman whether 
the Democrats had access to information about Judge Jackson's 
judicial record that Republicans did not. You did not answer me 
at the time, but as we returned----
    Chair Durbin. I can give you an answer. I can give you an 
answer.
    Senator Cruz. Okay. Well, hold on. Let me finish my 
question. When we returned and when we walked in, each of the 
Republicans was handed this piece of paper, which is the first 
time any of us have ever seen, which is a chart of probation 
recommendations. We were just told that the White House gave it 
to Democrats earlier today. I don't know if that's true or not. 
And what I would ask you is, is there anything else that 
Democrats have access to in this case that they're not sharing 
with Republicans on this Committee? And, Mr. Chairman, how 
would you have reacted if, say, during the Kavanaugh 
confirmation, the White House shared judicial materials with 
Republicans and did not share it with Democrats? I'm pretty 
confident you would've expressed extraordinary displeasure at 
that.
    Chair Durbin. If I recall, there were some discovery issues 
in the Kavanaugh case involving several years of his 
performance in the White House, which your own counsel decided 
we couldn't----
    Senator Cruz. But, sure, that's disclosure to the whole 
Committee.
    Chair Durbin. Yes, right.
    Senator Cruz. And in this case, is there anything else that 
Democrats have access to of Judge Jackson's record that you 
have not shared with Republicans on this Committee, and, in 
particular, the presentence reports?
    Chair Durbin. No, I----
    Senator Cruz. I suspect if they were helpful, you would've 
made them public, so the fact that you haven't raises an 
inference that they're not helpful to the case you're making.
    Chair Durbin. Senator, you always draw your own inferences, 
and I know where most of them head. I will just tell you that 
the information that we received from the White House, I am 
told everyone had access to if they wanted it, and now you have 
it, just a matter of hours after we've received it----
    Senator Cruz. So is there anything else Democrats have that 
Republicans do not from Judge Jackson's record?
    Chair Durbin. Not to my knowledge.
    Senator Kennedy. Mr. Chairman, could I ask you a question 
about this?
    Chair Durbin. Sure.
    Senator Kennedy. I want to be sure I understand. The 
handout that I just saw, the White House gave to some of us 
earlier today but not all of us?
    Chair Durbin. It was available, I'm told. The information 
was available to anyone who requested it. The White House----
    Senator Kennedy. So you had to be clairvoyant----
    Chair Durbin. No.
    Senator Kennedy [continuing]. And know they had it?
    Chair Durbin. No, not clairvoyance. I think it's pretty 
obvious, Senator. If when----
    Senator Cruz. How would you know to request it?
    Chair Durbin. Well, you would know it after Senator Hawley 
launched his attack on the judge. At that point, all of this 
information became relevant to countering----
    Senator Kennedy. So I would be expected to say, geez, after 
Senator Hawley asked questions, I'd better call the White House 
and see if they can help me research this? That's not 
realistic.
    Chair Durbin. No, that's not the point. The point I'm 
getting to is, and you know as a good lawyer what you do during 
discovery. I wasn't aware of the fact that this was available. 
The White House requested it, received it. We asked for a copy, 
and within an hour or two, you received the same copy.
    Senator Kennedy. When did y'all get--let me finish. When 
did y'all get your copy?
    Chair Durbin. Sometime today.
    Senator Kennedy. Sometime today. That covers a lot of 
ground, Richard.
    Chair Durbin. I don't have any personal knowledge of this, 
I'll be honest with you.
    Senator Kennedy. You don't have any personal what?
    Chair Durbin. Knowledge.
    Senator Cruz. Does your staff?
    Senator Kennedy. Does your staff know?
    Chair Durbin. I haven't----
    Senator Cruz. They're standing behind you.
    Chair Durbin. I talked to them earlier and----
    Senator Booker. Mr. Chairman, I'm so sorry. I just don't 
want to make this a partisan issue if it doesn't have to be. My 
staff just says we just got it 10 minutes ago as well, so I'm 
very upset. I join Ted Cruz.
    Chair Durbin. Good.
    [Laughter.]
    Senator Lee. Mr. Chairman?
    Chair Durbin. That's an alliance that's well known.
    Senator Booker. Yes. Yes.
    Senator Lee. Mr. Chairman, I do think it's significant. 
We've had now reference to presentence reports, and we've got 
this material that references recommendations made by the 
Office of Adult Probation and Parole.
    Chair Durbin. We don't--we don't have presentence reports, 
Senator.
    Senator Lee. Well, okay, but we've got critical information 
that is contained within them. The recommendation made by the 
Office of Adult Probation and Parole in these cases is 
something that's drawn from the presentence report. It seems to 
me that if we're going to have a jot-for-jot selective 
incorporation of information in there, we ought to have access 
to the whole report. So I respectfully request that we be given 
access to these reports. They've been made now by a Member of 
the Committee in reliance on information that we haven't had 
access to, and I think we need to be given those. You can't--
you can't----
    Chair Durbin. Senator, I'd like to draw this to a 
conclusion. I can tell you what I know and----
    Senator Lee. Well, so would I.
    Chair Durbin. And here's the point. Most of this 
information was published in The Washington Post 5 days ago, 
all right? This is not confidential information. When the 
Hawley attack on the judge started, we requested more 
information--the White House did--and then shared it with us 
within the day, and you now have the same copy that we have. 
End of story.
    Senator Lee. Is it fair for you to characterize Senator 
Hawley's questions or the questions raised by any of us as an 
attack?
    Chair Durbin. Yes.
    Senator Lee. It's not a personal attack. This is a----
    Chair Durbin. Let me just tell you, a difference of----
    Senator Lee. We've raised a legitimate question regarding 
sentencing regarding the most heinous crimes imaginable.
    Chair Durbin. Oh, come on.
    Senator Lee. So these were legitimate questions, Mr. 
Chairman. Don't call them attacks.
    Chair Durbin. Well, I can just tell you, I've characterized 
them as attacks and other things as well. I think it's pretty 
clear what's going on here, and now you have all the 
information we have. Is that enough?
    Senator Cruz. So, Mr. Chairman, for example, in the 
questioning about the Hawkins case, Judge Jackson said she 
relied on the factors, relied on Probation's recommendation. We 
just found out in what you just handed us that in the Hawkins 
case, the Probation Office recommended 18 months, and Judge 
Jackson only sentenced him to 3 months. You can get more than 
that almost for a speeding ticket.
    Chair Durbin. Senator----
    Senator Cruz. This Committee, given that she raised it as 
the basis for her sentence, it is highly relevant to the 
Committee's analysis to see what the presentence report says. 
Why did the Probation Office recommend 18 months and she only 
sentenced to 3 months?
    Chair Durbin. March 19th, The Washington Post. In the case 
of U.S. v. Hawkins, the sex offender had multiple images of 
child porn over 18. Sentencing guidelines called for a sentence 
up to 10 years. Judge Jackson sentenced the perpetrator to only 
3 months in prison. Printed.
    Senator Cruz. But those facts we knew.
    Chair Durbin. Yes.
    Senator Cruz. It's the Probation recommendation. We don't 
dispute that the guidelines set at 10 years and she sentenced 
him to 3 months.
    Chair Durbin. Sorry. I didn't finish reading it. The 
Government and Probation both recommended sentences well below 
the guidelines. The Government recommended 24 months, Probation 
recommended 18 months, and defense recommended 1 day. I'm 
telling you, it was published in the newspaper. Now----
    Senator Cruz. Well, I can't help what is leaked to the 
newspaper or not. This Committee--you keep referencing 
discovery. This is not litigation. This is a Committee of the 
United States Senate where both sides of the aisle have a right 
to access to the record, and we're carrying out our 
constitutional duty of advice and consent.
    Chair Durbin. I will tell you this. For some reason, your 
side didn't request the information.
    Senator Cruz. But how would we know to request it? So I'm 
hereby requesting all other information you magically have that 
you haven't told us you have and you're not sharing with the 
other side.
    Chair Durbin. So noted. So noted for the record. We'll 
continue with the questioning now. Senator Cotton.
    Senator Cruz. And we're requesting the presentence reports, 
in particular, which are highly relevant to the issues before 
this Committee.
    Chair Durbin. Senator Cotton, please proceed. We don't have 
any presentence reports.
    Senator Cotton. Judge, I'd like to talk about crime. In 
2019, there were about 16,000 murders in America. In 2020, 
there were more than 20,000. That's a 25-percent increase in 1 
year. 2021 data isn't complete, but we know many cities have 
reached record levels of murder, including Philadelphia, 
Atlanta, and Milwaukee. At the same time, the prison population 
has decreased by about 14 percent, in part from pandemic 
policies, but also from fewer prosecutions and weaker 
sentencings. I think it's safe to say that there's a surge in 
crime, especially violent crime and murder across America. You 
have noted that some members of your family have law 
enforcement backgrounds, and I honor them and thank them for 
their service. Does the United States need more police or fewer 
police?
    Judge Jackson. Thank you, Senator. As you just noted, I 
have law enforcement in my background, and I am very familiar 
with the problems that crime causes in the communities where we 
live.
    Senator Cotton. Okay. Judge, I'm sorry. We have a few 
minutes here. You have a lifetime appointment if you're 
confirmed. I asked a simple either/or question. Does the United 
States need more or fewer police?
    Judge Jackson. Senator, the determination about whether 
there should be more or fewer police is a policy decision by 
another branch of Government. It is not something that judges 
have control over, and I will stay in my lane in terms of the 
kinds of things that are properly in the judicial branch.
    Senator Cotton. Okay. If you don't want to address whether 
the United States needs more or fewer police, we'll move onto 
sentencing, which is certainly in your lane. There's been a lot 
of talk about criminal justice and sentencing approaches and 
theories today. In general, is someone more likely or less 
likely to commit a crime if they know that they will be caught, 
convicted, and sentenced?
    Judge Jackson. Senator, what is in my lane is the 
consideration of particular cases of prosecutions----
    Senator Cotton. Judge, you've spoken--you've spoken a lot 
today about criminal sentencing, about the theory of 
sentencing. You've written a lot about it in your record. It is 
a very simple question. Is someone more likely or less likely 
to commit crime if they're more certain that they're going to 
be caught, convicted, and sentenced?
    Judge Jackson. Senator, I am aware from my work on the 
Sentencing Commission and not as a judge that there is research 
into recidivism rates, into rehabilitation, into the factors 
that go into a determination about whether someone is more or 
less likely to commit crime. Part of what Congress has taken 
into account when it determines that one of the purposes of 
punishment is deterrence is the idea that if someone is 
convicted and punished, they will be deterred from committing 
other crimes.
    Senator Cotton. And you've mentioned that, and you've 
written about that in your writings. There's four purposes of 
punishment. One of those is deterrence. Isn't it inherent in 
the concept of deterrence that people are less likely to commit 
crime if they're more likely to get caught, convicted, and 
sentenced? Why can't you just say that's the case?
    Judge Jackson. Senator, it's not that I'm avoiding saying 
that's the case. It's that I----
    Senator Cotton. No, that's--Judge, that's exactly what 
you're doing. I'm asking a very simple question. In general, is 
someone more likely or less likely to commit a crime if they 
know they're going to be caught, convicted, and sentenced----
    Judge Jackson. It's very----
    Senator Cotton [continuing]. As a part of deterrence 
theory?
    Judge Jackson. It's very difficult to answer questions in 
general when you're asking about things like phenomena related 
to crime. It's the theory behind deterrence that by punishing 
someone, they will be less likely to commit the crime in the 
future. That is a theory that undergirds----
    Senator Cotton. Do you think that theory is correct?
    Judge Jackson. Senator, there is research that supports 
that deterrence is something that can occur. Does it occur in 
every case? I can't say that.
    Senator Cotton. Okay. Let's turn to something more concrete 
then. Do you know how long the average inmate convicted for 
murder serves in prison in America?
    Judge Jackson. No, I don't.
    Senator Cotton. The answer is, 17 years on average. Is 17 
years too long or not long enough for a criminal to spend in 
prison for murder?
    Judge Jackson. Senator, these are policy questions. Whether 
they're in the province of the Sentencing Commission in terms 
of recommendations, whether they are in Congress, they're not 
the kinds of things that I can opine about.
    Senator Cotton. So you don't want to opine on whether 17 
years is too long or too short a sentence for murder.
    Judge Jackson. Senator Cotton, the Congress has prescribed 
a number of factors that judges look at when they sentence. It 
may in many cases not be. I don't--I can't answer in the 
abstract in the way that you----
    Senator Cotton. Well, these are very concrete. Let's turn 
to rape. Do you know how long the average inmate convicted of 
rape serves in prison in America?
    Judge Jackson. Well, Senator, rape is not a crime in the 
Federal system that I'm familiar with working with, so I don't 
know.
    Senator Cotton. It's 7.2 months. Do you think 7.2 months is 
too long or too short for someone convicted of rape to be 
sentenced to prison?
    Judge Jackson. Senator, that's a policy question about the 
egregious crime of rape, and Congress has said that the court 
is supposed take into a number--take into account a number of 
factors when it sentences.
    Senator Cotton. Okay.
    Judge Jackson. I can't answer in the abstract.
    Senator Cotton. Well, these are--Judge, these are not 
abstract. These are very concrete, and, remember, these are 
just the length of sentence if you're caught, convicted, and 
sentenced. Let's look at cases in which people are never 
caught. As I said, in 2020, murders increased by the fastest 
rate ever in the United States. Do you know what percentage of 
murders are solved in America?
    Judge Jackson. I do not, Senator.
    Senator Cotton. The answer is, about half, 54 percent in 
2020. Do you think we should catch and imprison more murderers 
or fewer murderers?
    Judge Jackson. Well, Senator, it's very important that 
people be held accountable for their crimes, so that is a 
fundamental tenet of the rule of law.
    Senator Cotton. So is that a, yes, we should catch more 
murderers, specifically the 46 percent of murderers who get 
away with it?
    Judge Jackson. Senator, I'm not--to the extent you're 
asking about enforcement or law enforcement, those----
    Senator Cotton. It's a--Judge, it's a very simple and 
commonsense question. Forty-six percent of all murders go 
unsolved. Should we catch more of those murderers or should we 
catch fewer of them?
    Judge Jackson. Senator, we should hold people accountable 
for their crimes, and so if people are not being held 
accountable, then that is a problem.
    Senator Cotton. Let's turn to assaults. Do you know how 
many assaults were solved in this country in 2020?
    Judge Jackson. No, Senator.
    Senator Cotton. Forty-four percent, so 56 percent of all 
assault victims did not receive justice. Do you think we should 
catch and imprison more criminals who commit assault against 
innocent people or fewer?
    Judge Jackson. Senator, it's very important that people be 
held accountable for their crimes, so if they're not, then it 
would be a problem for the rule of law.
    Senator Cotton. Let's look at sexual assault and rape. Do 
you know how many--what percentage of sexual assaults and rapes 
go unsolved in this country?
    Judge Jackson. I do not, Senator.
    Senator Cotton. Seventy-seven percent. More than three-
quarters of all sexual assaults and rapes go unsolved. Do you 
think we should catch and imprison more rapists and sex 
criminals or fewer?
    Judge Jackson. Senator, one of my two uncles was a 
detective in a sexual crimes and battery unit, so I'm very 
familiar with that type of crime. It's a horrible type of crime 
as are all of these that you are articulating, and it is 
important for people to be held accountable for criminal 
behavior. It's fundamental to the rule of law.
    Senator Cotton. Okay. So in 2020 alone, well over 1 
million--1 million--violent crimes went unsolved in America. Do 
you think we imprison too many violent criminals or not enough?
    Judge Jackson. Senator, it's important for our rule of law 
to ensure that people are held accountable who are breaking the 
law in the ways that you mention and otherwise.
    Senator Cotton. What do you think the families of all those 
victims think? Do you think they think that we should arrest, 
and convict, and sentence all these criminals who get away with 
it?
    Judge Jackson. Senator, I know what the families of law 
enforcement officers think because I'm one of them. I know what 
crime does to our society. I care deeply about public safety. 
And as a judge, it's been my duty when I was at the trial 
level--I'm no longer there--but when I was at the trial level 
to ensure that people are held accountable for their crimes.
    Senator Cotton. Okay. Let's turn to the crime of child 
pornography. I know there's been a lot of talk about it today. 
I don't want to spend much time on it. A lot of people have 
tried to explain the various differences in these cases, and 
the presentencing reports, and the sentences they got, so let 
me just ask you a simple question about it. Should the United 
States strengthen or weaken sentences for child pornographers?
    Judge Jackson. Senator, that's not a simple question, and 
the reason is because what this country does in terms of 
penalties is in Congress' province. You all decide. You all 
decide what the penalties are. You decide what the factors are 
that judges use to sentence. If you determine that any set of 
penalties is insufficient, then it is in your purview to make 
that determination. There are many crimes that Congress has 
determined warrant mandatory minimum penalties, warrant other 
kinds of penalties, and that is in your purview to determine.
    Senator Cotton. I have to say, Judge, I think whether or 
not we should strengthen or weaken sentences for child 
pornographers is a pretty simple question, but I'll move on. I 
think the difference we've heard today gets to this simple fact 
that a bunch of elite lawyers, whether they are judges, or 
Federal prosecutors, or public defenders, or law professors, 
think that sentences for child pornography are too harsh. I 
don't, and I bet a lot of normal Americans don't either. You 
have said repeatedly that sentencing is a discretionary act, 
and I understand that and I agree with it, but you always seem 
to use your discretion in these child pornography cases to 
reduce the sentences. I have to say if I have that discretion, 
I'd probably throw the book at child pornographers. Maybe 
that's just me.
    Now let's turn to drug crime. Last year, more than 100,000 
Americans died from drug overdose. Drug overdose deaths and 
gang crime have both skyrocketed in recent years. At the same 
time, a lot of soft on crime laws and lower sentences have been 
advocated, including, on occasions, Judge, by yourself. In 
general, do you think the United States should weaken or 
strengthen sentences for fentanyl traffickers? Traffickers, not 
users.
    Judge Jackson. Senator, whether or not Congress chooses to 
strengthen or weaken penalties for any crime is a determination 
of this body, which is ordinarily made after study, and review, 
determination. That is in the province of Congress.
    Senator Cotton. Well, Judge, you've said before that 
sentencing is a discretionary act, so that is literally the job 
of the judge in many of these cases to determine whether to 
have a shorter or longer sentence.
    Judge Jackson. Respectfully, Senator, the judge makes that 
determination not based on one data point in general, which is 
what you asked me--in general, should we lower or heighten 
sentences. A judge is making a determination in a particular 
case, looking at all of the factors. It's discretionary for 
sure, but we do so within the bounds of a sentencing range that 
Congress prescribes. And at times in which Congress decides 
that a penalty needs to be heightened, they impose a mandatory 
minimum, then our range is shorter. And when we're looking at 
the crime, we're not looking as a policy matter across all 
fentanyl crimes in determining whether the penalty should be 
increased.
    As a judge, we are asked, in the context of a single 
prosecution regarding a particular person who has committed a 
horrible crime but also, says Congress, is a person who has a 
life, who has a job, who has all of the other factors, that 
Congress has told judges they have to look at, when they decide 
what penalty to impose in that particular case, between the 
range that Congress sets. So it's not a situation in which I 
can, in my role as a judge, tell you as a general matter 
whether a penalty should be increased or decreased.
    Senator Cotton. I have to say I think that not many 
Americans, especially not the 100,000 Americans who's lost 
someone to a drug overdose, think these are tough questions, 
but let's move on. Let's talk about retroactivity. When you 
were on the Sentencing Commission, you repeatedly advocated for 
retroactively reducing drug trafficking sentences. So this is a 
case where a drug kingpin who's dealing fentanyl gets 
sentenced, and then a few years later he gets lucky. He gets in 
front of some new judge who's maybe more sympathetic and thinks 
he got a raw deal, or maybe he just gets in front of the same 
judge a few years removed from seeing the faces of the victims 
of his crime. Do you believe that resentencing years after a 
conviction tends to reduce sentence lengths?
    Judge Jackson. Senator, respectfully, I just wanted to 
remark on your previous question and your statement that these 
are not difficult questions. It's not that they're difficult 
questions. It's that they're not questions for me. I am not the 
Congress. I am not making policy around sentencing. My job is 
to look at a particular case and decide what the penalty should 
be within the range that Congress prescribes.
    Senator Cotton. I understand. You were making policy, 
though, at the Sentencing Commission when you're implementing 
changes to sentencing guidelines. So my question again is, do 
you believe that resentencing years after a conviction tends to 
reduce sentence lengths?
    Judge Jackson. I'm not sure I understand your question. 
Obviously if you resentence, you're giving the judge another 
opportunity to look at the circumstances in light of the 
changed penalties. Sometimes the judge in that new situation 
will keep the same penalty. A resentencing is just an 
opportunity for the judge to reevaluate in light of the changed 
circumstances.
    Senator Cotton. Okay. Almost without exception, 
retroactively weakening sentencing laws and guidelines lets 
hardened criminals out early. I always hear the argument--I 
hear it from some of the Senators on this panel, I heard a 
version of it from you earlier--that each case is going to go 
before a judge, and there won't be an automatic release because 
each judge is going to assess the facts and hear the arguments.
    In 2014, you said that judges would not--would not likely 
reduce the sentences in the vast majority--vast majority of 
cases if sentencing guidelines for drug trafficking were 
reduced. I think you missed that one, Judge. Since 2014, 
retroactive reduction took--when retroactive reduction took 
effect, approximately two-thirds of all convicted drug 
traffickers who asked for early release got it. That's 31,614 
hardened drug traffickers back on the streets. More than 7,500 
of those hardened drug traffickers use weapons in their crimes. 
So that means that only one-third of these drug traffickers who 
sought to have retroactive reduction of their sentence were 
denied. Judge, is one-third a vast majority?
    Judge Jackson. Senator, it's hard for me to answer 
questions about these numbers because I'm trying to understand 
whether this is a retroactive release that was a result of the 
Sentencing Commission's actions or Congress'. Congress made a 
decision about retroactive reductions in drug penalties, so I'm 
just not sure what----
    Senator Cotton. But, Judge, in both cases, we always hear 
the argument, whether it's from Members of Congress, to include 
Senators on this Committee, or the Sentencing Commission, that 
we shouldn't worry, there's going to be an individualized, 
case-by-case determination.
    Judge Jackson. And that is my--that is my experience. When 
there's a--when there is a retroactive change--so what happens 
is that whether it's the guidelines that are changed or the 
laws that are changed, which happens in Congress, there is a 
subsequent determination as to whether or not to apply that 
retroactively, apply that change, so that both the people who 
get convicted of that penalty moving forward and the people who 
have already been convicted, both of them get the benefit of 
the change if the determination is made to make it retroactive.
    Under that circumstance where you're talking about a 
penalty change applied to prior people, each one of those prior 
people goes back before a judge, and a judge, usually the 
sentencing judge in the first instance, will reevaluate whether 
or not to--this is generally. There are some exceptions, but 
generally speaking, the judge will reevaluate whether or not to 
give that person the benefit of the change. This is an 
individual assessment. That's what Congress requires in every 
sentence and ultimately one that benefits all of us under the 
law because judges are being asked to look at these cases and 
not make just generalized determinations.
    Senator Cotton. So the 2014 comment was specifically about 
the Sentencing Commission, but generally, whether it's in front 
of the Commission or the Congress, we always hear this argument 
that judges are going to make these individualized cases, and 
not that many people will be released. I'll point out that of 
the one-third that were not reduced, the vast majority of those 
were not eligible. The percentage of cases in which a sentence 
is not reduced for public safety reasons because someone is 
viewed as too dangerous to release early is 1 percent. It's 1 
percent.
    Judge, do you remember a man named Keith Young?
    Judge Jackson. Yes.
    Senator Cotton. Good. For the benefit of my colleagues, let 
me quickly cover the basics of his case. You sentenced him in 
2018. Keith Young was a career criminal who had previously been 
convicted of trafficking cocaine. In 2017, he was running a 
drug business in his house where his children lived and was 
found with two 1-kilogram bricks of heroin worth hundreds of 
thousands of dollars along with a gun, ammunition, thousands of 
dollars in cash, and equipment to cut and package heroin for 
retail sale. The drug lab also confirmed that there was 
fentanyl in both bricks of heroin. In one of the two bricks, 
there was actually more fentanyl than there was heroin.
    While at the DC jail awaiting trial, Young bragged about 
his arrest and about how he was a kingpin. Those are his words, 
not mine: ``kingpin.'' He was even recorded calling his wife 
and brother to give them instructions on collecting drug money 
from people for him. The prosecutors filed a notice of Young's 
criminal history, which meant he faced a mandatory minimum of 
20 years. You did not seem to like that, Judge. In fact, at his 
sentencing, you said--this a quote--that you shared his 
frustration that you couldn't give him a lighter sentence. I 
was shocked to see this in the transcript. I was also shocked 
that you apologized to this drug kingpin for having to follow 
the law. You literally said that you didn't think 20 years was 
fair. This is the quote, ``And for this, I am sorry, mostly 
because I believe in second chances.'' You apologized to this 
career criminal, a drug kingpin in his own words. He was not 
some low-level, first-time drug offender who made a bad choice. 
That was in 2018, but in 2020, you got a second chance.
    After Young's sentence, Congress passed something called 
the First Step Act which reduced sentences for serious drug 
traffickers with lengthy criminal records. During the pandemic, 
lots of criminals like Keith Young tried to twist the First 
Step Act's compassionate release provision, which was intended 
for terminally ill, elderly inmates get early release, and 
blame it on COVID. You had none of that, and that's good. You 
rightly said at his resentencing hearing, ``COVID-19 is not 
only present in prisons,'' and you said that Young's past as a 
smoker and his claim of various other health issues did not 
entitle him to early release. If you'd stopped there, I 
would've cited that as a great example of how you follow the 
law and made a well-reasoned decision. Unfortunately, you 
didn't stop there.
    You said in the resentencing that, quote, ``Congress did 
not make their changes under the First Step Act retroactive,'' 
that if they had, then you could've given him a reduced 
sentence. But then you said, ``No matter what the law says,'' 
and this is a quote, Judge, ``the Court feels as though in this 
moment, per Mr. Young's compassionate release motion, the Court 
is being called upon to evaluate the length of his sentence 
under the revised section of law in the First Step Act. And so 
it is almost as if I am sentencing him today, and if I were to 
do so, he would face a sentence that would be well below the 
240 months that Mr. Young received. And so for that reason, I 
will grant Mr. Young's motion.''
    Judge Jackson, before you granted this fentanyl kingpin's 
motion to reduce his sentence, did you contact any of the 
victims from his case?
    Judge Jackson. Senator, thank you for allowing me to 
address Mr. Young's situation.
    Senator Cotton. I asked a simple question. Did you contact 
the victims in his case or not?
    Judge Jackson. Senator, Mr. Young was not released. His 
sentence was reduced, and I did not contact the victims in his 
case----
    Senator Cotton. And that's----
    Judge Jackson [continuing]. Because there were no victims. 
He committed a crime, a drug crime. There were no identifiable 
victims in his case.
    Senator Cotton. Drug crime is not a victimless crime. A 
hundred thousand Americans were killed by overdoses last year.
    Judge Jackson. Understood, Senator, but there was no one to 
contact because there were no identifiable----
    Senator Cotton. You just acknowledged--Judge, you just 
acknowledged that you did not release him. You're right, you 
didn't release him. He filed a motion for compassionate 
release. You denied that rightly, but you reduced his sentence. 
He didn't file a motion to reduce his sentence. He wasn't 
eligible for a reduced sentence under the First Step Act 
because it wasn't retroactive towards him. You took a motion 
for compassionate release to get out of prison and turned it 
into a motion to reduce a sentence, so he's going to be 
released 7-and-a-half years earlier, years from now.
    Last week, Judge, when we talked in our office, you talked 
about--a lot about judicial restraint. Is transforming his 
motion for compassionate release into a motion to reduce the 
sentence for this drug trafficking kingpin an example of 
judicial restraint, Judge?
    Judge Jackson. Yes, Senator, it is, and I will explain how. 
Mr. Young, as you say, was facing originally a sentence of 20 
years in prison, which I imposed. I tried Mr. Young, who went 
to trial primarily because he was facing such a long penalty. I 
looked at the evidence in his case. He was absolutely the 
kingpin that you're talking about, but the way that our laws 
work, the 20-year sentence that he received for the amount of 
heroin that he had was increased based on a sentence that he 
received, I think it was 10 or 15 years before. He had no 
criminal history between the old-old sentence, and forgive me, 
I can't remember exactly what it is, and I'm sure people will 
look it up. But 10, 15 years before, he had some minor 
sentence, then he had this really obviously serious terrible 
sentence, and the Government filed what is called an 851, which 
is an enhancement based on his really, really old prior 
criminal history. I followed the law, which said that he had to 
go to jail for 20 years. It would've been more like 10 years if 
the Government hadn't taken into account his very old criminal 
history, but I said, fine, this is the law. I'm following it. 
You're going to jail for 20 years.
    In the interim, COVID happens. We get lots of compassionate 
release motions, and there's a statute that Congress has 
enacted which allows defendants to seek compassionate release, 
to seek reduction of their sentence--not just release, 
reduction, release, some adjustment to their penalty under the 
law if there are extraordinary and compelling reasons to do so. 
That's the quote from the statute, ``extraordinary and 
compelling reasons.'' It doesn't say anything more narrow than 
that, although you do have to look at the guidelines related to 
compassionate release, all of which I did related to his 
motion, and he argued several things. He argued his smoking, 
his asthma, these were reasons, he said, for compassionate 
release, and I disagreed.
    What I did find extraordinary and compelling is the fact 
that between the 20-year sentence that I gave him originally 
and the compassionate release motion that he filed, Congress 
changed the law. Congress decided that the old penalty, the old 
crime was no longer eligible for the increase, so that a person 
who was convicted at the time of his compassionate release 
motion for doing exactly what Mr. Young had done would not get 
a 20-year sentence. That would not be lawful for a person at 
that moment. And one of the things that Congress says to the 
judges is care about unwarranted sentencing disparity. Care 
about the fact that the person you're sentencing is being 
treated differently than someone else who committed exactly the 
same crime.
    And I understand it wasn't retroactive in the sense that 
everybody, absent a compelling--absent a compassionate release 
motion wouldn't have been eligible for resentencing. But here I 
have a defendant before me, and all of the factors that 
Congress has asked me to take into account, and a compelling 
argument that there were extraordinary and compelling 
circumstances that is a change in the law that would create 
unwarranted sentencing disparity if I didn't take account of 
it.
    Senator Cotton. So----
    Judge Jackson. And so what I determined under those 
circumstances is that I would sentence--re-sentence Mr. Young 
to the penalty that Congress had decided was the appropriate 
penalty for the conduct that he committed as of the time of his 
motion.
    Senator Cotton. Judge, Congress did change the law after 
his sentencing in the First Step Act. That was a terrible 
mistake. Congress specifically did not make that change 
retroactive, and you saw that and you thought it was 
extraordinary and compelling even though Congress specifically 
did not make it retroactive. You chose to rewrite the law 
because you were sympathetic to a fentanyl drug kingpin whom 
you had expressed frustration at having sentenced him to his--
to his 20-year sentence in the first place. You twisted the 
law, and you rewrote it so you could cut the sentence of a drug 
kingpin. That's what you did, Judge.
    Judge Jackson. Respectfully, Senator, I disagree. Congress 
provided judges, through the compassionate release motion 
mechanism, with the opportunity to review sentences. Prior to 
the compassionate release mechanism being enacted, a judge who 
imposed a sentence would have no opportunity to revisit. In Mr. 
Young's case, the question was, with this compassionate release 
motion under a circumstance in which Congress had changed the 
law, was that an extraordinary and compelling circumstance to 
revisit his sentence, and I made a determination that it was.
    Senator Cotton. So suppose then if you're confirmed, we can 
just count on you to always rule in favor of retroactivity, no 
matter what the facts of the case are because it was a 
blatant--blatant--rewrite of the law here so you could reduce 
the sentence of a drug kingpin who you didn't like sentencing 
to 20 years in the first place.
    Judge Jackson. No, Senator, it was not.
    Chair Durbin. Senator Booker.
    Senator Booker. Approaching 11 hours now of a long day, and 
forgive me, I want to go back to one of my early Senators, 
Lindsey Graham. I think he asked you something, and I'd like to 
just put it this way--on a scale from 1 to 10, how deep is your 
faith--but I won't ask that question.
    Judge Jackson. Are you asking me or you won't ask me?
    Senator Booker. I'm just joking.
    Judge Jackson. Okay.
    [Laughter.]
    Senator Booker. I won't ask you that, but I do want to go 
through some of the things that some of my colleagues did on 
topline. And forgive me, I don't want to dwell too much, but 
some of it, I found today, just, to me, really didn't hold 
water. And I want to start with my friend and colleague, Ted 
Cruz, who is my friend. I like--he's a Texan. One of my 
favorite Texans is Brene Brown, who says, ``It's hard to hate 
up close, so pull people in.'' And a lot of times in this 
culture of tribal politics, the reality is we know each other, 
we get to know each other over years, and I've had the 
privilege of working with Ted on a lot of really good policy.
    So I went back to my office and relistened to his 
questioning of you about Critical Race Theory, and he 
referenced your speech which I hadn't read. You Harvard folks 
are so well focused on these things, but I just--I read your 
speech, and I was very surprised. Ted had a very big chart. I 
think he needs to give Senator Whitehouse some advice on 
charts. Senator Whitehouse's were very small. It was almost as 
though they were proportionate to their State sizes.
    [Laughter.]
    Senator Whitehouse. Easy there, New Jersey.
    [Laughter.]
    Senator Booker. Mr. Chairman, I would request that my 
colleagues in the Democratic Party would stop interrupting me.
    [Laughter.]
    Senator Booker. But he talked about your speech, and when I 
read your speech, there's a couple things that jumped out. 
First of all, he acknowledged it was a very powerful speech, 
very moving speech about extraordinary Black women. I have a 
criticism. Your mother was not in it, but I will leave that 
alone.
    [Laughter.]
    Senator Booker. But there's some things he honed in on 
almost as if they seemed to be accusations, which don't hold 
merit to me. We have a saying in New Jersey, ``I felt it was 
all hat and no cattle.'' And so here we--he said that you 
called--the woman who wrote the 1619 Project, that you called 
her provocative. That's not a compliment necessarily if you 
call someone provocative, is it?
    Judge Jackson. No.
    Senator Booker. No. I mean, I think Ted Cruz is very 
provocative, and that doesn't mean I agree with what he's 
saying, his philosophy. It doesn't mean I agree with his 
statements, but he pointed out you also called the author 
acclaimed. She won a Pulitzer Prize, correct?
    Judge Jackson. She did.
    Senator Booker. In journalism, so she is acclaimed.
    Judge Jackson. She is.
    Senator Booker. But nowhere are you heralding her as this 
is reflective of your philosophy. That's true, right?
    Judge Jackson. Correct.
    Senator Booker. Yes, so I don't understand that at all. 
Part of his chart also was a lot of ellipses skipping out 
things, but you mentioned Critical Race Theory when you're 
talking about policies in general. I actually went back to that 
talk, too, and I saw you threw everything in there. You were 
talking about psychology, economics, all different types of 
disciplines as touching upon the law. I think there was 
everything in there, it seemed to be, except for astrology. But 
you understand that that's--that was you just listing a list of 
things that people could say touch the law. They weren't your 
philosophies at all.
    Judge Jackson. Correct, Senator, and that speech was not 
related to what I do as a judge. That was talking about 
sentencing policy and all of the different academic disciplines 
that might relate to it.
    Senator Booker. And then finally, we're entering an age 
that is surprising to me in American society where lots of 
books are being banned and lots of talks about books being 
read. You're on the board of a private school, and you have no 
supervision or authority over what books the children read in a 
private school, correct?
    Judge Jackson. Correct.
    Senator Booker. I really--I really do appreciate that. 
Jumping really quickly to a lot of talk today about these child 
exploitation cases. And Senator Durbin, I think that actually 
Josh Hawley used the word ``attack'' when describing his own--
his own, so I don't understand what that point of sensitivity 
was. But I--individual cases, and we've now heard about two, 
you've presided over as a judge more than 10, 15 cases?
    Judge Jackson. I've presided over 14 cases that involve 
child sex crimes, but I--over my career as a trial judge, I 
presided over more than 100 cases.
    Senator Booker. Right, and cases are heavily fact-specific, 
right?
    Judge Jackson. That is true.
    Senator Booker. Did you remember all the facts of the case 
that Senator Hawley was----
    Judge Jackson. I did not.
    Senator Booker. You did not, right. And the facts matter, 
right?
    Judge Jackson. They do.
    Senator Booker. And as a judge, you're looking at all the 
facts of the case, not just what might be talked about later or 
what people are honing in on. You have to take everything into 
account and make a decision, correct?
    Judge Jackson. Yes, that's what Congress has required 
judges to do.
    Senator Booker. Right. And just to clarify that Congress 
thing because, again, you went to this elite law school. I went 
to a gritty inner city law school, Yale----
    [Laughter.]
    Senator Booker [continuing]. And so you know this better 
than me. But it was actually 1984 that the sentencing laws--the 
sentencing standards were passed down, correct?
    Judge Jackson. I believe so, yes.
    Senator Booker. Yes, it was 1984. And then later in 2002 or 
2003, things were updated, but that--1984 was before the 
internet completely. And I just want to clarify also, the 
Booker decision.
    Judge Jackson. Yes.
    Senator Booker. Could just clarify for the record because 
my mom might be watching. No relation to me whatsoever, 
correct?
    [Laughter.]
    Judge Jackson. So the Booker decision, which earlier I 
mentioned that I thought Justice Scalia wrote.
    Senator Booker. It was not.
    Judge Jackson. In fact, it was Justice Stevens.
    Senator Booker. Yes.
    Judge Jackson. But Justice Scalia concurred, so he had a 
separate opinion, and he had written a previous decision that 
was very similar.
    Senator Booker. Yes.
    Judge Jackson. The Booker decision made the guidelines--the 
sentencing guidelines advisory.
    Senator Booker. Why? Why would the Supreme Court, joined by 
some of the most conservative members, why would they do that?
    Judge Jackson. Well, they determined that, in essence, the 
Booker--that if the guidelines were mandatory, that it would 
violate the right to a jury trial to have jurors decide every 
aspect of your sentencing.
    Senator Booker. Yes, it's just sort of the separation of 
powers, Sixth Amendment.
    Judge Jackson. Yes.
    Senator Booker. This is--this is really important.
    Judge Jackson. Yes.
    Senator Booker. And so that gave judges latitude.
    Judge Jackson. Yes.
    Senator Booker. Now, if you were falling out of the norm, 
and this is where, you know, I've now read conservative 
periodicals looking at this line of attack. That's not a 
negative pejorative--again, my colleague himself used it, but 
this line of attack on you. I've seen conservative papers, 
liberal papers, mainstream papers all say this doesn't hold 
water, and the reason is, and, again, I, unlike Whitehouse and 
Cruz, I don't have a chart. I'm uncharted, but I would like to 
hold this up for you. You are well within the norm nationally 
for going below the sentencing guidelines because of this 
problem where you have this incongruency that judges on both 
sides of the--that have been appointed by people of both sides 
of the aisle have seen. I just want to make that very clear. 
You are--you are well within the norm in the United States of 
America.
    I love--I'm the former mayor, and one of my favorite mayor 
friends used to always say, ``In God we trust, but everybody 
else, bring me data,'' and so the data kind of shows that 
you're not some outlier. And forgive me because this is--you're 
not allowed to do this, but I kind of sat here, and I was a 
little insulted about the accusation that somehow this mother 
of two, confirmed three times by the United States Senate, who 
has victim advocacy groups writing letters for you, who has 
child victims advocacy groups supporting you, who has presided 
over fact-specific cases of the most heinous crimes, that 
somehow the implication that you are somehow out of the norm of 
other Federal judges that we have confirmed where these issues 
have never come up, who, again, I held up this chart, but the 
majority of the--of the decisions, a percentage of sentences 
below guideline range in non-production child pornography cases 
in DC, 80 percent of them are under the guidelines: in 
Missouri, 77 percent; in Iowa 62 percent; in North Carolina, 77 
percent; in Nebraska, 81 percent, and so on, and so on, and so 
forth, down to Utah, alphabetical order, 71 percent.
    And so, this implication that somehow your thoughtfulness 
on these very dense, fact-specific cases is somehow out of the 
norm, to me, does not hold up, doesn't hold water. And then you 
add that to the endorsements that you have gotten from folks 
that deal with victim advocacy groups, it is, to me, just a 
line of attack that does not hold in no way for me. I'm sorry. 
In the totality of your career, what you've accomplished and 
what you've done. I just think it's unfortunate that, unlike 
the sort of fair arbiters of this on both sides of the aisle 
who dismissed it, I appreciate the way you've stood there--sat 
there and addressed all of that stuff.
    And that really brings me to the larger implication. You've 
talked a lot about your uncles. One of them served in 
Baltimore. Is that right? He was a police officer?
    Judge Jackson. My brother was a police officer in 
Baltimore.
    Senator Booker. The gentleman over there?
    Judge Jackson. Yes.
    Senator Booker. Who volunteered to serve in the United 
States military?
    Judge Jackson. Yes.
    Senator Booker. And you have talked about that police work, 
right?
    Judge Jackson. Yes.
    Senator Booker. I live in Newark. I love my city. If you 
cut me, I bleed bricks. The nickname of our city is ``Brick 
City.'' Your brother and I probably understand something. The 
majority of murder victims in the United States of America, do 
you know who the majority of murder victims are?
    Judge Jackson. I don't.
    Senator Booker. They're Black men. I imagine in your 
conversations with your brother and your two uncles, who 
patrolled some of these streets, I imagine you feel a different 
way about the anguish of what many communities of color 
struggle with when it comes to crime. Am I--am I--am I right 
there?
    Judge Jackson. You are right, Senator. It is very 
anguishing, and it is something that I know all too well.
    Senator Booker. And you are a person that has that same 
fear that many mothers have for their daughters who do go out 
in this world. My mom used to say when you have a child, it's 
like your heart is going around outside of your body all of a 
sudden. And I just find it hard to believe, given your law 
enforcement background--you're a mom--that you don't take any 
of this urgency to keep America safe seriously. And then I see 
that, like, folks I know well--I've worked with the FOP. I 
began negotiating with them. I have to say I thought Jim Pasco, 
before I knew him--the whole thing, Brene Brown, ``bring people 
close.'' At first I thought he was an ogre, biggest police 
union. I had some tough negotiations with my police union. He 
and I sat down and we shared our stories, and I think we 
realized we were coming from the same place when we were 
working on police reform.
    FOP endorsed you, and they wrote a powerful letter. I won't 
read it again. The IACP, they represent the largest--that's the 
rank-and-file, the FOP. The IACP represents the bosses, the 
managers. They endorse you. There's another group that maybe my 
colleagues don't know as well as I do. It's called NOBLE. Do 
you know them?
    Judge Jackson. I do.
    Senator Booker. They're the Black law enforcement 
organization nationally, people like your brother----
    Judge Jackson. Yes.
    Senator Booker [continuing]. Who love their communities.
    Judge Jackson. Yes.
    Senator Booker. Who have seen, like I have, too many young 
men lying with bullet holes bleeding into our pavements. These 
are--these are folks who come from communities like your 
brother knows, where you too often see sidewalk shrines to 
murdered youth. I've talked to the women and men of NOBLE so 
many times. Anybody ever accuse them of being soft on crime? 
But they understand the complicated factors of crime in our 
country, and what they have to say to you--about you--I won't 
read it--is just beautiful.
    Law enforcement family, mother of two, law enforcement 
organization after law enforcement organization, victims 
advocacy organizations after victims advocacy organizations, 
Republican-appointed judges, Democratic-appointed judges, 
that's who's in your corner. We're politicians. We have a sworn 
oath right now. I just watched you with dignity and grace field 
what I can only imagine is behind those questions is this doubt 
that is being sown. I just want America to know that when it 
comes to my family safety, when it comes to Newark, New Jersey 
or my State, God, I trust you. I trust you.
    Now, I brought in your mother, and I have to go back there. 
My mom has a saying that is awfully embarrassing when she talks 
about me. She says--she'll introduce me and she'll say, behind 
every successful child is an astonished parent.
    [Laughter.]
    Senator Booker. But there's something about your mother, 
looking at her, is that she doesn't seem all too astonished. 
She seems like, almost just very slyly, she knew that a day 
like this might come. And so I just want to share with you that 
I have done a lot of hiring. Before I was in a legislative 
body, I ran New Jersey's largest city, and I could write a book 
about all the management mistakes I made in my first year and 
how it made me a really good manager. And the first mistake I 
made was I was just looking for the most talented, 
credentialed, skillful, smart people to help me run things, and 
I soon learned it wasn't enough. I made some mistakes in 
hiring, and I began to see that those skills which you have a 
tremendous amount of--it's been said so many times: stacking 
you up against other Supreme Court Justices, you have more 
qualifications, more credentials than many of them.
    But I learned that you should hire--first, there's 
necessary credentials but not sufficient--that you should hire 
for character. That's what made me hire a great team in Newark 
eventually, and we operated so well. And so I believe I've 
gotten to know your character over these weeks, but I want 
America to know a little bit more about your character right 
now. And so I know my values--Booker T. Washington said it--
excuse me. James Baldwin said it, ``Children are never good at 
listening to their elders, but they never fail to imitate 
them.'' If I want to know your character, you haven't let me do 
this yet, but I want to hang out with your parents a little 
bit, and so let's draw them into this conversation. We won't 
swear them under oath, but just could you share with me what 
are their bedrock values that are most a part of your values 
now that you hope and pray are your grandchildren's--unborn 
grandchildren's values? What are those most important values 
you inherited from those two folk over there?
    Judge Jackson. Thank you, Senator. I inherited a number of 
bedrock values, as you say, from my extraordinary parents. As I 
mentioned, my parents grew up in a time in this country in 
which Black children and white children were not allowed to go 
to school together. They persevered. They were the first in 
their families to go to college, to have that chance. They each 
went to Historically Black Universities, and they taught me 
hard work. They taught me perseverance. They taught me that 
anything is possible in this great country.
    And I think it came, as I said in my introduction, from the 
sea change that we had in this country from the 1960s when 
Congress passed two Civil Rights Act and African Americans 
finally had the chance to become a part of the dream, become a 
part of the fabric of this wonderful Nation. My parents moved 
to Washington, DC, because this is where it all started for 
them in terms of having new freedoms, and I was born here on 
that hope and dream. I was born here with an African name that 
my parents gave me to demonstrate their pride, their pride in 
who they were and their pride and hope in what I could be.
    Senator Booker. And it seems to me, as a guy whose parents 
came here, and you and I both were born here months apart. I 
would hear my parents' tough stories at the dinner table about 
facing bigotry. Here in this city, my father told me stories 
about his early jobs, but I never noticed a hint of bitterness. 
That hate he saw never generated hate with him. In fact, he 
just loved people, all people.
    Judge Jackson. That is correct, Senator, and I would say 
that my wonderful parents went on to become extraordinary 
public servants. They had new opportunity. They could've done, 
you know, other things, but each of them decided to give back 
to the community. My mother was in the public school system. 
She was a teacher and then became an administrator, became the 
principal of a magnet school for the arts in Miami, a new 
school that had started up, and became the sort of beloved 
principal of New World School of the Arts. And so many of her 
students continue to see me, meet me, and they know me for my 
mother, which is fantastic.
    Senator Booker. And she had diverse students.
    Judge Jackson. She had extraordinarily diverse----
    Senator Booker. And she loved on all those children.
    Judge Jackson. Every one.
    Senator Booker. Black, white, Asian.
    Judge Jackson. Every one.
    Senator Booker. Well, let me--let me ask you this because 
I'm going to push you a little harder because, again, I have 
some people I really respect on the other side of the aisle, 
and they do--my friends and I talk about religion sometimes. 
Faith is important. I was teasing Lindsey--Senator Graham 
earlier, but I don't want to ask you anything specific about 
your faith except for this, because you brought it up in your 
opening statement. And I have to tell you I don't think Black 
women have any providence over struggle. People from all 
backgrounds in America struggle. But I do know often as 
trailblazing Black women, they have often faced many challenges 
being the first or being a trailblazer of breaking glass 
ceilings.
    But I know on your journey to this moment right now, you 
have faced very tough moments. Probably you've been knocked 
down by life. I always say if America hasn't broken your heart, 
you don't love her enough. You've been heartbroken by 
something, a circumstance. You've been like Zora Neale Hurston 
who says, ``I've been through Sorrow's kitchen, and I licked 
out all the pots.'' You've been like Langston Hughes, that 
poem, Mother to Son: ``Life for me ain't been no crystal 
stair.'' Could you talk to me maybe about one moment or what 
you do when you get knocked down like that? Where do you get 
the grit and the guts to get back up and keep on going?
    Judge Jackson. Well, Senator, I think that, too, is 
something that I learned from my grandparents, who, as I said, 
didn't have it easy; my grandparents, who didn't have a lot of 
formal education but who were the hardest-working people I've 
ever known, and who just got up every day and put one foot 
after the other, and provided for their families, and made sure 
that their children went to college even though they never had 
those opportunities. I reflect on them in the context of this 
historic moment. I stand on the shoulders of people from that 
generation, and I--and I focus at times on my faith when I'm 
going through hard times.
    Those are the kinds of things that I learned from my 
grandmother who used to have those family dinners and bring us 
all together. And I think that's a common experience of 
Americans that when you go through difficult times, you lean 
into family and you turn to faith. And that's part of my 
experience as well.
    Senator Booker. It's, I think, the experience of my 
colleagues and I on both sides of the aisle, leaning on that 
faith and that family. I want to give you--there's one thing 
about your opening statement, and I have to say I haven't 
actually shaken your husband's hand yet, but yesterday I was 
mad at him because when he started tearing up at your remarks 
about him, it triggered--I don't really have it, but it 
triggered a sympathetic cry in me as well. So I'm a little 
upset at him, but I will--I will deal with him individually.
    [Laughter.]
    Senator Booker. But you said something that I found 
provocative, to use that word one more time, and I felt--
afterwards I reflected. I even talked to my staff about it 
because I thought that statement, it didn't seem congruent to 
me, and it was--I don't know if it was a profession of humility 
or overly critical of yourself. But I want to end my last 5 
minutes giving you space to explain yourself to me because, 
much to my mom's chagrin, I am not a parent yet, and I want 
to--I'm looking at somebody that I admire.
    But you said something that struck me because, look, my mom 
was a working mom, and, God, it was tough. My colleagues will 
not believe this, but there was a time I was very melodramatic, 
and I was in a bathtub of--oatmeal bathtub, and my mom was 
getting ready to go on a business trip. And I look at her with 
these sad eyes, and I say, ``Mom, if you leave me, I'll die,'' 
and she looked at me knowing that you don't die from the 
chickenpox. But I still remember her going to the phone, having 
a long conversation, taking off her business suit, and changing 
into her sweatpants. She would tell me later that that was not 
a sign of love. She loved me, but a lot of women who love their 
kids can't stay home because we don't have paid family leave in 
this country.
    So you said in your opening remarks that you haven't been 
as good a parent, I think if I'm paraphrasing it right, as good 
a mom as you'd like to be. And I looked at your two girls, and 
I look at you, and I don't understand that statement. Could 
you--could you maybe explain for me what you meant, and maybe 
take one more beat and explain to me what it means to you to be 
a mom of two young women growing up in America today?
    Judge Jackson. Thank you, Senator. What I said in my 
statement was that I had struggled, like so many working moms, 
to juggle motherhood and career, and it takes a lot of hard 
work to become a judge, to do the work of a judge, which I've 
done now for almost 10 years. You have a lot of cases. You 
don't have all that many resources comparatively speaking, and 
it's a lot of early mornings and late nights. And what that 
means is there will be hearings during your daughters' 
recitals. There'll be emergencies on birthdays that you have 
to--that you have to handle. And I know so many young women in 
this country, especially who have small kids, who have these 
momentous events and have to make a choice.
    You talked about your mom making the choice to make sure 
that she cared for you in that moment, and there are times when 
obviously you have to care for your family members. There are 
other times when there are events that you wish you could be a 
part of, but here's the emergency case that you have to deal 
with. And so I said in my opening that, girls, you know, you've 
had to deal with me juggling motherhood and job 
responsibilities, and I didn't always get the balance right. 
And so I would hope for them, seeing me--hopefully you all will 
confirm me--seeing me moved to the Supreme Court, that they can 
know that you don't have to be perfect in your career 
trajectory, and you can still end up doing what you want to do; 
that you just have to understand that there are lots of 
responsibilities in the world, and that you don't have to be a 
perfect mom. But if you do your best and you love your 
children, that things will--things will turn out okay.
    Senator Booker. Well, I'm sure your mom probably feels she 
wasn't perfect, but things have turned out okay. And I will 
tell you this: I'm sure they've said it, and if they haven't, 
I'm sure they will. The older I get, the more I appreciate my 
parents. I know they're proud of you, but as a guy who does 
have faith, and I sit at home in a room of my ancestors where I 
have generations of my ancestors' pictures up, and they're 
Black folk and white folk. I have a very interesting family 
tree. I sit there to feel my ancestors sometimes and think 
about them.
    I hope right now with these questions and blistering that 
you know that at that desk, there are a whole lot of spirits 
around you with their hands on you. Not only your children and 
your parents are proud, but so are your ancestors.
    Mr. Chairman, thank you.
    Chair Durbin. Thank you very much, Senator Booker. And, 
Judge Jackson, there are a lot of politicians on this 
Committee, 22 of them. There's only one Cory Booker. And when 
he does his cross-examination on the human side, I always wait 
to see can the--can the witness get through this without little 
emotion. There was a little there as there should've been as he 
talked about your family, your parents, and your children. 
Cory, you're one of a kind. We love you.
    We have three more to ask questions tonight: Senator 
Kennedy, Senator Padilla, Senator Blackburn. We're going to 
break for 20 minutes, grab a bite to eat, freshen up, come back 
for the last round.
    Judge Jackson. Thank you.
    Chair Durbin. The Senate stands in recess.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. The Senate Judiciary Committee will resume, 
and the questioning is to Senator John Kennedy of Louisiana.
    Senator Kennedy. Thank you, Mr. Chairman.
    Judge, I have enjoyed listening to you today. I find you to 
be very intelligent and very articulate. I'm still a little 
uncertain about how you think, how you approach cases, deciding 
cases, and we'll talk about that in a moment.
    I'm not going to ask you, nor should I, how you would 
decide a case. And I'm not going to ask you, nor should I, to 
tell me whether you think a particular precedent is a good 
precedent or not. So, but I am going to talk to you about the 
law.
    But, first, you don't support efforts to delegitimize the 
United States Supreme Court, do you?
    Judge Jackson. Senator, I have nothing but esteem for the 
United States Supreme Court, for my hopefully future colleagues 
on the Court, and the work that the Court does.
    Senator Kennedy. Can we agree that the calls to pack the 
Court delegitimize the Court?
    Judge Jackson. Senator, it would not be appropriate for me, 
in my view, to comment on calls to pack the Court, as you say, 
to increase the number, to do any structural changes. Those are 
policy determinations for Congress. What the consequences of 
those are policy considerations for Congress. I'm just looking 
forward to working with the brilliant people who are there at 
whatever size Congress decides, if I am confirmed.
    Senator Kennedy. Well, the calls to pack the Court don't 
legitimize the Court, do they?
    Judge Jackson. Well, Senator, I think that would be for you 
to decide.
    Senator Kennedy. I'm asking your opinion.
    Judge Jackson. Respectfully, Senator, I'm not in a position 
to give my opinion on issues that are policy issues concerning 
the Court and not something that a judge would have to consider 
or should consider, in my view.
    Senator Kennedy. Yes, but you're a citizen.
    Judge Jackson. Oh, I am.
    Senator Kennedy. And as best I can tell, a very good one. I 
don't understand why you won't weigh in on this issue. Tell me 
why you won't weigh in on this issue.
    Judge Jackson. Senator, I feel so strongly about ensuring 
that judges remain out of political debates, and this is 
something that is being debated. It is something that other 
nominees--Justice Barrett was asked about the same sort of 
thing and also declined to give her opinion, and I think that 
was the right way to handle this particular issue.
    Senator Kennedy. So you think Judge Barrett was right to 
dodge the question?
    Judge Jackson. I think that each judge has to make a 
determination when asked about whether they would like to speak 
to issues, and I know that I'm not comfortable, in part because 
I'm so committed to making sure that there is confidence in me 
in terms of public confidence in my ability to stay in my lane, 
my ability to not speak to contentious political issues.
    Senator Kennedy. You have an opinion, though, don't you?
    Judge Jackson. Senator, any opinion that I would have is 
not something that would ever come up in my work as a judge, 
something that I would ever rely on. This is a political issue 
for Congress.
    Senator Kennedy. But do you have an opinion, Judge?
    Judge Jackson. Not a strongly held opinion, actually.
    Senator Kennedy. But you have an opinion?
    Judge Jackson. I haven't really thought about it, but I 
hear the arguments on both sides, and I understand it to be a 
political issue.
    Senator Kennedy. Now, Judge, you're very intelligent, and 
you're very articulate, and I know you're very well informed. 
You're telling me you don't have an opinion about packing the 
United States Supreme Court?
    Judge Jackson. Senator, I have opinions about a lot of 
things. I don't have an opinion that I think it appropriate to 
share. I work very hard to set aside my opinions when I'm 
thinking about cases, which is the work of a judge. And so this 
particular issue is one that is very contentious, as you say--
--
    Senator Kennedy. Mm-hmm.
    Judge Jackson [continuing]. One that's in the province of 
Congress, and one that I think it not appropriate for me to 
comment on.
    Senator Kennedy. I understand that, but I think it would 
tell us a lot about you if you would answer the question. I'm a 
little confused about your answer earlier. It's probably more 
my fault than yours. Do you have an opinion about whether these 
efforts to pack the United States Supreme Court delegitimize 
the Court? Do you have an opinion?
    Judge Jackson. Senator, I have an opinion about the 
efforts. It's not an opinion that I think is appropriate for me 
to share, and so, therefore, I don't have anything further to 
add.
    Senator Kennedy. So you do have an opinion, but you don't 
want to share it. Is that----
    Judge Jackson. I don't think it's appropriate for me, as 
nominee, to comment on a political matter that is in the 
province of Congress.
    Senator Kennedy. Well, in deciding to join the United 
States Supreme Court, if you're affirmed, wouldn't it make a 
difference to you whether you're 1 of 9 or 1 of 28?
    Judge Jackson. Would it make a difference?
    Senator Kennedy. That impacts the judiciary. That involves 
the judiciary.
    Judge Jackson. Senator, it certainly involves the 
judiciary. I would be thrilled to be one of however many 
Congress thought it appropriate to put on the Court.
    Senator Kennedy. Okay. So you'd be okay if it was 28?
    Judge Jackson. If that's Congress' determination, yes. The 
Congress makes political decisions like that.
    Senator Kennedy. Okay. A couple of my colleagues asked you 
about the Supreme Court overturning precedent. Now it doesn't 
happen every other Thursday, but it's not--what's the word I'm 
searching for, Judge? It's not extraordinary that the Supreme 
Court overturns precedent, is it?
    I mean, it happens I wouldn't say a lot, but it's not once 
every 50 years. Am I correct?
    Judge Jackson. You are correct that it's more frequent than 
once every 50 years, for sure----
    Senator Kennedy. Yes.
    Judge Jackson [continuing]. Yes.
    Senator Kennedy. And so it happens?
    Judge Jackson. Yes.
    Senator Kennedy. And you talked earlier briefly about the 
different factors that the Court considers in deciding----
    Judge Jackson. Yes.
    Senator Kennedy. Give me a couple. Give that another lick 
for me. Just give me a couple.
    Judge Jackson. Whether the decision is egregiously wrong. 
Whether there's been reliance on the decision that is being 
revisited. Whether the decision is workable or unworkable, the 
one that they're looking at. Whether the facts are--new facts 
have come to light, or the facts have--the circumstances are 
such that there's now a new understanding of the prior facts. 
And whether the caselaw in the area has shifted.
    Senator Kennedy. And in fact, those are the factors that 
the Supreme Court listed 3 years ago in Janus, were they not?
    Judge Jackson. Those are the factors. I don't have the 
Janus opinion in front of me, but those are the factors that 
the Court uses when it determines----
    Senator Kennedy. Janus overruled--I think Senator Hirono 
talked about it. Janus overruled Abood----
    Judge Jackson. Yes.
    Senator Kennedy [continuing]. Dealing with whether labor 
unions can require non-members to pay dues. Do you remember 
that case?
    Judge Jackson. Yes.
    Senator Kennedy. Is age, the age of the case a factor in 
whether the Supreme Court will overrule a precedent?
    Judge Jackson. I think age relates to the reliance factor. 
I think the longer an opinion has been in effect, the Court has 
considered that to be relevant to its determination of 
reliance.
    Senator Kennedy. But sometimes the Court looks at it not 
just in terms of reliance, they look at it from the other side 
of the age issue. And that is that maybe facts and 
circumstances and science have changed, do they not?
    Judge Jackson. I believe that is part of the changed 
circumstances factor.
    Senator Kennedy. Yes. So the Supreme Court is more likely 
to overturn a case, which would not be that extraordinary, if 
the precedent were 49 years old as opposed to 4.9 years old?
    Judge Jackson. I'm sorry. Can you repeat the question? I'm 
just trying----
    Senator Kennedy. Yes. Well, you said that the older the 
case is, one could make an argument that the reliance interest 
would be great. But you also said, I think--I don't mean to put 
words in your mouth--but the older the case is, the more facts 
and circumstances and science could have changed. So that would 
argue in favor of overruling it because of a change of 
circumstances. Did I get----
    Judge Jackson. It might. It might. These are all different 
circumstances that the Court could consider under this 
multifactor test.
    Senator Kennedy. Okay. Well, all things being equal, let's 
say a decision is 49 years old versus 3 years old, like Janus. 
The older decision is more likely to be overturned, do you 
think, based on your experience?
    Judge Jackson. Oh, I don't--I don't know that I could make 
that prediction. I'm just saying that one of the factors, the 
reliance factor, the age of the opinion and how long people 
have been relying on it----
    Senator Kennedy. Yes, ma'am.
    Judge Jackson [continuing]. Can be relevant to--is one of 
the factors that the Court considers.
    Senator Kennedy. Right. Okay. Let me jump gears here. I 
took some notes. You talked earlier about how you decide cases. 
I'm going to kind of summarize this.
    You said you clear your mind of any bias. You read 
everything. You read the briefs and the record, and then you 
apply them all. That's your methodology. You said you're not an 
activist judge. You said--am I right?
    Judge Jackson. Yes.
    Senator Kennedy. You said judges are not politicians.
    Judge Jackson. That is true.
    Senator Kennedy. And judges should stay in their lane.
    Judge Jackson. Yes, sir.
    Senator Kennedy. Tell me again what you mean by ``stay in 
your lane.''
    Judge Jackson. What I mean is that in our system of 
government under the Constitution, we have a separation of 
powers, and each branch has their own sphere of responsibility. 
To say ``stay in your lane'' is the shorthand that I'm using 
for indicating that judges should not be policymakers, that 
those responsibilities are left to the elected branches, and 
that judges are to interpret the law, not make the law. And I 
use it to refer to the part of my methodology that is mindful 
of the constraints on judicial authority.
    Senator Kennedy. Okay. Well put. So let me ask you, we 
could go to the Constitution--let's say the Bill of Rights, to 
narrow the discussion--and read about our explicit rights. 
Religious freedom, our right not to be unreasonably searched or 
seized, freedom of speech, they're right there. That's why they 
call them explicit.
    But the Court has ruled we have a bunch of unenumerated 
rights. Am I correct?
    Judge Jackson. The Court has determined there are certain 
personal rights related to individual autonomy that are 
implicit in the concept of ordered liberty or deeply rooted in 
our Nation's history or tradition.
    Senator Kennedy. But they're unenumerated?
    Judge Jackson. Yes.
    Senator Kennedy. Okay. Should these unenumerated rights, 
that only Supreme Court Justices can see, should they be 
decided by the people through their elected representatives or 
by the unelected Federal judiciary?
    Judge Jackson. Well, Senator, the Supreme Court has 
interpreted the Fourteenth Amendment to have a substantive 
component, and I'm not in a position to critique the Court in 
terms of its precedents. That is the precedent of the Supreme 
Court.
    Senator Kennedy. Right, right. Let me ask you this. What is 
a--what is a fundamental right?
    Judge Jackson. The Court has interpreted the Fourteenth 
Amendment's Due Process Clause to include a substantive 
component and not just a procedural component, meaning the 
Fourteenth Amendment guarantees due process, and the Court has 
interpreted it to mean that with respect to certain rights, 
individual rights concerning intimacy, certain things like the 
right to contraception, the right to childrearing.
    There was a case at the Supreme Court that talked about 
making decisions for children in terms of visitation with 
respect to conflicts with grandparents. Marriage----
    Senator Kennedy. Right, I'm with you.
    Judge Jackson. These sorts of rights the Court has found 
are implicit in ordered liberty, as I said, or deeply rooted in 
our Nation's history and tradition.
    Senator Kennedy. Okay. The right to assisted suicide, is 
that one of those enumerated or unenumerated rights?
    Judge Jackson. I believe the Court found that it was not.
    Senator Kennedy. Okay. Which body do you think is better 
able to make that decision, the Congress or the Federal 
judiciary?
    Judge Jackson. Well, Senator, the Supreme Court has 
interpreted the Constitution, and the Supreme Court has the 
authority under our constitutional system to interpret the law.
    Senator Kennedy. Right.
    Judge Jackson. And they've made the determination that the 
Constitution includes those unenumerated rights.
    Senator Kennedy. Yes. But here's the thing, Judge. Maybe a 
better example, it's a very hot topic today. The right of a 
transgender woman to compete in women's sports. Do you think 
Congress, the people ought to get to decide that through 
Congress or the judge can just find it as an unenumerated 
right, a penumbra of the Constitution?
    Judge Jackson. Well, Senator, that--the topic that you 
raised is something that is, as you say, a hot topic today----
    Senator Kennedy. Yes.
    Judge Jackson [continuing]. And could certainly be 
litigated. So I'm not in a position to say more about whether 
or not it's actually one of the unenumerated rights in the 
Constitution.
    Senator Kennedy. I don't want to ask you how you'd rule, 
but would you have any problem saying, okay, if that case--that 
is litigated, saying this is a political question. Whoa, stop, 
I'm staying in my lane. Congress needs to decide this case. The 
people need to decide that through their elected 
representatives. Would that be appropriate?
    Judge Jackson. Well, respectfully, Senator, that is a 
decision. In other words, you say I'm not asking you to decide 
it, but in every case, the determination about whether or not 
something is a political question or whether or not the Court 
has or has not jurisdiction is an issue for judges, and so I'm 
not able to speak to it.
    Senator Kennedy. Okay. All right. Well, here's the thing 
about the fundamental rights. That's why I asked you about the 
definition of them. These are unenumerated rights now. I'm not 
talking about right to free speech and freedom of religion.
    The Court has said repeatedly that there is no test for a 
fundamental--unenumerated fundamental right, that the 
determination has not been reduced to a formula. Am I right?
    Judge Jackson. Well, they've given those standards in the 
cases in which they have been evaluated.
    Senator Kennedy. In some cases. Sometimes the Court talks 
about these unenumerated fundamental rights have to be deeply 
rooted in the Nation's history and traditions. Sometimes the 
Court says--they change the language--these unenumerated 
rights, like the right to assisted suicide we talked about, 
it's a potential unenumerated right, the right has to be 
implicit in the concept of ordered liberty.
    But you've read Obergefell, and Obergefell, I think Justice 
Kennedy wrote that opinion. He didn't bite. In fact, he cited 
with approval Justice Harlan's dissent in Poe v. Ullman. And 
Justice Harlan said, look, there's no formula here. Justice 
Harlan always said you have to go case by case.
    Can you understand why some Americans go, wait a minute, 
are Justices--these are unenumerated rights. Are Justices 
interpreting the Constitution, or are they just deciding a 
right when they get five votes, and it's just a moral 
conviction?
    Judge Jackson. Yes, Senator. I do understand.
    Senator Kennedy. Okay. Well, when you talk about judicial 
restraint, where does the restraint start with fundamental 
rights? Let's take the Ninth Amendment, okay? What's it say? I 
know you know because you talked about it earlier.
    Judge Jackson. Well, it says that--it indicates that there 
are rights--that the fact that there are some enumerated rights 
in the Constitution doesn't mean that there aren't others.
    Senator Kennedy. And how are we supposed to determine what 
others there are?
    Judge Jackson. I think the Supreme Court has not found any 
others coming from that particular constitutional provision.
    Senator Kennedy. Could they?
    Judge Jackson. I can't speak to that, Senator.
    Senator Kennedy. I mean, it's possible, right? If they get 
five votes, right?
    Judge Jackson. Well, anytime the Supreme Court has five 
votes, then they have a majority for whatever opinion they 
determine.
    Senator Kennedy. But do you think that would be a prudent 
course of action to start creating fundamental rights through 
the Ninth Amendment, unenumerated now, without consulting 
Congress?
    Judge Jackson. Senator, I can't speak to a hypothetical 
about whether or not it would be a prudent course of action for 
the Supreme Court to hold that there were other rights in the 
Ninth Amendment, that----
    Senator Kennedy. Well, the reason I'm asking, Judge, is 
you've talked a lot today about judicial restraint, and that's 
kind of like being for children and prosperity. We're all for 
children and prosperity and judicial restraint, but the rubber 
meets the road when you get down to, well, what does that mean? 
What does that mean?
    Judge Jackson. What it's meant for me, Senator, is what 
you've seen in my opinions, in the way that I have approached 
issues that have been before me, in my fidelity to the 
restraints that exist in the law in terms of the exercise of 
judicial authority. That adherence to precedent, for example, 
is something that I do. And even in cases, as you heard me 
discuss earlier, in which there are not binding precedents, I 
find that the court needs to take into consideration what has 
previously been determined and not be a policymaker in my 
decisions.
    Senator Kennedy. Okay. Well, here is what's--here is 
what's--bothering me is too strong of a word, sounds 
pejorative--here's what I'm uncertain about, and please don't 
take this the wrong way.
    How do we know--I'm not saying you would do it. But how do 
we know that since I can't seem to flesh out this judicial 
restraint and the limits of it for you, how do we know that if 
you get on the Court, you won't say, well, you know, Congress 
can't get anything done. And there are all these issues that we 
need to address, and so I think the United States Supreme Court 
ought to create all these rights through the Ninth Amendment. 
What would you say to that, if somebody made that allegation?
    Judge Jackson. Well, Senator, I think that I have a record 
as a judge in terms of having been given responsibility, having 
looked at cases, having decided issues, and that my record 
demonstrates how I handle cases. I'm not in a position to 
hypothesize a circumstance in which a case appeared that raised 
a question about the recognition of an unenumerated right and 
whether I would say under those circumstances that I couldn't 
find such a right because that's a hypothetical, because I 
decide cases and controversies that come before me, because I'm 
a nominee and I can't speak to hypothetical scenarios about how 
I might rule in the future with respect to cases.
    Senator Kennedy. Boy, the time goes fast. Let me ask you 
one other question.
    Judge Jackson. Yes.
    Senator Kennedy. This business of having unenumerated 
rights through substantive due process, there's no textual 
basis for that. The Court just started to do it, okay? I'm not 
asking you whether you think it was good or bad because it's 
clear to me you don't want to share your thoughts on that, and 
I get it. I'd feel better if you would, but I get it.
    But don't you think the fact that our Founders included a 
way to amend the Constitution is a testament to the fact that 
they were saying: here are your rights, we're writing them 
down, you can all go to the Bill of Rights and read them, and 
if you want more we put in a way to amend the Constitution.
    Judge Jackson. I do understand that argument, and there are 
people who argue that. The Supreme Court has determined that 
the Due Process Clause----
    Senator Kennedy. Yes, ma'am.
    Judge Jackson [continuing]. Includes a substantive 
component, and I understand the critiques of that view.
    Senator Kennedy. I'm going to try to get in two more. Boy, 
the time flies.
    When does life begin, in your opinion?
    Judge Jackson. Senator, I don't know.
    Senator Kennedy. Ma'am?
    Judge Jackson. I don't know. I don't----
    Senator Kennedy. Do you have a belief?
    Judge Jackson. I have personal religious and otherwise 
beliefs that have nothing to do with the law in terms of when 
life begins.
    Senator Kennedy. Do you have a personal belief, though, 
about when life begins?
    Judge Jackson. I have a religious view.
    Senator Kennedy. A religious belief?
    Judge Jackson. That I set aside when I am ruling on cases.
    Senator Kennedy. Okay. When does--when does equal 
protection of the laws attach to a human being?
    Judge Jackson. Well, Senator, I believe that the Supreme 
Court--actually, I actually don't know the answer to that 
question. I'm sorry, I don't.
    Senator Kennedy. Okay. All right. You're familiar with the 
warrant requirement, I know.
    Judge Jackson. Yes.
    Senator Kennedy. What if Louisiana said we don't want to 
follow the warrant requirement? Would that be legal?
    Judge Jackson. Are you positing a statute of Louisiana that 
we're not following or----
    Senator Kennedy. Sure. Yes, let's call it a statute.
    Judge Jackson. Well, Senator, I'm thinking about all of the 
potential legal arguments that could be made. I can't answer 
the hypothetical about whether or not it would lawful or 
unlawful.
    Senator Kennedy. Can you think of an instance where a State 
could say we're not going to follow the warrant requirement? 
We're going to write our own warrant requirement.
    Judge Jackson. I've never heard of that happening.
    Senator Kennedy. What if Article I Section 5 of the 
Louisiana Constitution is our State's unreasonable searches and 
seizure? Couldn't we say we're not going to follow the Federal 
interpretation? We're going to make it stricter under the State 
constitution. And in----
    Judge Jackson. Well, the State can also----
    Senator Kennedy. And in fact, under the State constitution, 
we're going to say a warrant is required in every instance. 
Don't give me this stuff about plain view and hot pursuit. You 
serve somebody, you better go stop and get a warrant.
    Now I'm not saying Louisiana will do that, you understand, 
and I'm not saying they should or shouldn't. They can do that, 
can't they, under their own State constitution?
    Judge Jackson. They can provide more protection than the 
Federal Government, yes.
    Senator Kennedy. Yes. How can they get away with that under 
the Supremacy Clause? You got to go fast because Durbin is 
about to cut me off.
    Judge Jackson. Yes, I'm sorry. How can they--how can they 
get away with providing more protections to people?
    Senator Kennedy. Yes, yes. Under the Supremacy Clause.
    Judge Jackson. Because it would depend on whether or not it 
conflicted with Federal law. It doesn't conflict, I think, if 
the State provides more protection.
    Senator Kennedy. We call that the adequate and independent 
State ground doctrine, right?
    Judge Jackson. Yes.
    Senator Kennedy. Okay. I'm over, but only by 22 seconds. So 
I'm going to land this plane, and we'll take off again 
tomorrow.
    Judge Jackson. Thank you.
    Chair Durbin. Thanks, Senator Kennedy.
    Senator Padilla.
    Senator Padilla. Thank you, Mr. Chairman.
    Judge Jackson, how are you doing?
    Judge Jackson. Good evening, Senator. I'm good. Thank you.
    Senator Padilla. It's been a long day.
    Judge Jackson. It has. And thank you for spending it with 
me. I understand it's your birthday.
    Senator Padilla. Yes. So I'll cut to the chase on my first 
question. And I've been reading up a lot about you since the 
nomination and studied your record. We've had an opportunity to 
meet in my office, spent some time there, and I've been 
listening pretty closely to today's hearing.
    And my first question may be the highest stakes. What would 
you say to a Member of this Committee who is sitting here like 
you for about 12 hours now on his or her birthday?
    [Laughter.]
    Judge Jackson. I would say ``happy birthday'' and ``thank 
you.''
    Senator Padilla. Great. And we're off to a great start 
here. You know, I actually only ask that question half-jokingly 
because I was moved by your opening statement yesterday as 
well, especially moved by my colleague, Reverend Booker here, a 
little while ago when he uplifted your commentary about the 
struggle you clearly feel and that I share about being a 
working parent.
    And I couldn't help but think to myself how I've had to 
grow, and Angela and I remind each other of this pretty 
regularly, try to give good advice to our children. We're 
trying to raise three gentlemen. We're not trying to raise 
three boys. We're trying to raise three gentlemen, and it's not 
always perfect, but we give them the advice of just try your 
best to be your best, right?
    We're not expecting perfection. And sometimes parents need 
to remind themselves of that, too. We can't expect perfection 
because we got to try our best to be our best.
    It's also dawned on me that we've been here for more than 
12 hours, and there's a very fundamental question that hasn't 
been asked. You've given thoughtful answers throughout the day, 
but fundamentally, what this hearing is today, it's a job 
interview. It's a very public and very thorough job interview, 
as it should be.
    If you're confirmed, you could potentially serve on the 
Supreme Court for decades, helping shape the direction of 
American law and American life in profound and lasting ways. So 
it's appropriate that over the course of this interview, you 
should be asked some in-depth questions about your background, 
about your experiences, and your approach to the law.
    But before I get to some of those questions that I have, 
the first question I have for you is, so why would you want 
this job? And now with the added flavor of why would you want 
this job--you have a great one now--while we're thinking on a 
daily basis how we try to find that right balance that is often 
elusive between work and family and other obligations?
    Judge Jackson. Thank you, Senator.
    I've spoken many times about the fact that I came to love 
the law starting as early as 4 years old, watching my dad study 
when he went back to law school when I was a child. And I 
honestly never thought that there was anything else that one 
could really do because I was so enamored of my father and so 
proud of his decision to follow his dream after I was born.
    And so if you're a lawyer and if you believe in public 
service, which was a core family value for my family, then 
becoming a judge is certainly an option that one pursues, and 
then, of course, being on the Supreme Court is the capstone of 
a life in public service. And I would just be so honored to 
have the opportunity to use my time and talents in this way.
    Senator Padilla. Thank you. Thank you for that.
    And now to some of the more specific questions. Now as I 
mentioned, I've been listening closely throughout the day. Your 
knowledge of the law, your even temperament, your charm, and 
clearly your endurance is impressive. They all shine through. 
But I note that at times this hearing has been a little 
frustrating. Not because of your answers, but I actually point 
to the process itself.
    You know, there's probably a whole, whole lot of questions 
that everybody watching would really love to hear answers to, 
but they're questions that you can't directly answer, questions 
like a woman's right to choose, questions like the Second 
Amendment, questions like expanding the Supreme Court.
    Now to be clear, this is not a criticism of you. Let me 
explain. When you're asked a question that comes close to 
asking your views on a pending case or on an issue that may 
come before you, you've declined to answer as to not prejudge 
the issue. And I'll remind the Committee I believe that's been 
the approach taken by every Supreme Court nominee for the last 
three decades.
    So for the benefit of the people watching at home, can you 
explain why you and other judicial nominees have followed this 
approach? Why is it important?
    Judge Jackson. Yes, thank you, Senator.
    The approach is consistent with the requirement of judicial 
independence, with the duty to have and keep an open mind when 
you are considering cases. Judges, unlike policymakers, are not 
supposed to be forming opinions in--my mother would say ``in 
the ether,'' right? Judges are supposed to be waiting until a 
dispute is presented that they can hear in the context of the 
case, and then with an open mind receiving the arguments that 
are made in the context of that case, applying the law and 
making a decision.
    The concern is that if you are engaged in a public forum 
like this, and you start talking about issues that are being 
litigated in the courts, the concern is that it will erode 
public confidence in your ability to be open-minded, hear and 
consider only the facts and circumstances in the cases that are 
presented. People might think that you are ruling based on 
conversations that you had with Senator Kennedy or discussions 
that I have with you.
    And so judges tend to not speak publicly about issues that 
are being litigated and especially judges who are being 
considered for the Supreme Court because, at the end of the 
day, a lot of these issues will come before that forum, and you 
want people to know that you have an open mind, that you 
haven't prejudged any issue, and that you are waiting and 
staying in your appropriate constitutional lane.
    Senator Padilla. Great. Confidence in the judiciary and the 
justice system are clearly important, and I think I'm going to 
be coming back to that in a minute. But maybe as a segue, I 
want to raise a similar concern about confidence in the 
electoral process and discuss for minute democracy and voting 
rights.
    Now I approach this conversation not as a lawyer, but as a 
former elections official. For 6 years, I served as 
California's chief elections officer, and my objective during 
that time was to, yes, ensure that our elections were safe and 
secure, but also to help facilitate the participation of as 
many eligible Californians as possible, as we are guided by--or 
as we're guided to do by the National Voter Registration Act.
    And frankly, I relished in that responsibility because I 
believe in the right of every eligible voter to be able to 
register to vote, cast their ballot, have their voice heard in 
our democracy. So you can appreciate my outrage when I watched 
the Supreme Court play a role in dismantling one of the 
crowning achievements of our democracy, the Federal Voting 
Rights Act of 1965.
    Over the course of five decades, the Federal Voting Rights 
Act protected voters from unnecessary obstacles and barriers to 
the ballot. In fact, the Voting Rights Act was authorized and 
reauthorized five times with overwhelming bipartisan support. 
The Voting Rights Act helped dramatically increase Black voter 
participation in the South in the post-Jim Crow era, and in 
States like Arizona, Texas, California, and others, Latino 
voters have benefited from the Act's voter protections.
    And across the country, Native voters, Asian-American 
voters, and members of language minority communities have all 
achieved greater access to the polls because of the Act's 
prohibition of discrimination on the basis of race or language 
minority status. But in 2013, the Supreme Court gutted the 
teeth of the Voting Rights Act. In Shelby County v. Holder, the 
Court struck down the preclearance provisions that had required 
States with a known history of voter disenfranchisement to 
prove that any changes to their voting laws wouldn't harm 
voters.
    And last year, the Supreme Court drastically restricted the 
reach of Section 2, which prohibits discrimination in voting on 
the basis of race. Now I find it hard to see the outcome of 
this as anything but counter to the spirit of the movement that 
led to the Voting Rights Act.
    Not on any specific case, but I know earlier in this 
hearing, you have acknowledged that the Supreme Court's 
precedents that the right to vote is fundamental and must be 
protected have been acknowledged. So can you just share for a 
couple of minutes what you believe the role or responsibility 
of the Supreme Court might be in protecting this fundamental 
right to vote and, by extension, our democracy?
    Judge Jackson. Thank you, Senator.
    The right to vote is protected by our Constitution. The 
Constitution makes clear that no one is to be discriminated 
against in terms of their exercise of voting, and the Congress 
has used its constitutional authority to enact many statutes 
that are aimed at voting protection. There are also--there are 
also laws that relate to ensuring that there is not only voting 
access, but ensuring that there isn't fraud in terms of voting.
    These concerns are embodied by various laws and provisions, 
and there are disputes at times over the concerns and the 
balances that are being made across the country relating to the 
exercise of voting. And those disputes come to court and then, 
eventually, to the Supreme Court that interprets the laws that 
pertain to the fundamental right to vote, which, as you say, 
the Supreme Court has acknowledged is a fundamental right.
    Senator Padilla. Thank you. On a different topic, not 
unique to California, but I'm proud that California is home to 
the largest Native-American population in the country. More 
than 1 in 10 Native Americans call California home, and 
California is home to 109 federally recognized Tribes who have 
a nation-to-nation relationship with the United States of 
America.
    As a Senator from California, I believe that respect for 
Tribal sovereignty is paramount. So after your nomination, as 
part of the homework that I was doing, I carefully considered 
your record on Tribal issues. And for the most part, it seems 
that you haven't had to deal with too many cases involving the 
rights of Native peoples or Tribes. The cases you've had so 
far, such as Mackinac v. Jewell, ultimately dealt more with 
questions of administrative procedure rather than fundamental 
issues of Native and Tribal rights.
    If you're confirmed, though, I have no doubt that you'll 
eventually have to weigh in on major questions related to 
Tribal sovereignty, treaty rights, Tribal resource 
preservation, and the Federal Government's trust 
responsibility. Now there's already at least one major case 
related to Indian law on the Supreme Court's docket for the 
next term, and it deals with the constitutionality of the 
Indian Child Welfare Act of 1976.
    Now I'm not going to ask you to comment on that case 
specifically or any case that may come before you, but as a 
general matter, can you just share what your understanding is 
of the Federal Government's legal and moral trust 
responsibility and relationship with Tribal governments?
    Judge Jackson. Yes, Senator.
    It is established in the law, the Supreme Court has 
established that there is a special trust relationship between 
Indian Tribes and the Federal Government. Indian Tribes are, as 
a general matter, considered to be sovereigns, and the 
relationship is a sovereign-to-sovereign relationship, but it's 
one in which the Federal Government has some responsibilities 
related to the Indian nation. And it's a very, very important 
care and trust responsibility that the Federal Government has 
in terms of making sure that the Tribes are recognized and 
cared for in the context of our system.
    Senator Padilla. I look forward to our ongoing conversation 
on that area of the law as well.
    I want to now revisit something that had been a theme 
throughout yesterday's opening statements and a lot of today's 
questions from Members, and that's the general appreciation for 
diversity. We're celebrating history and what a potential 
impact it would be for somebody like you to join the United 
States Supreme Court.
    I know some of my colleagues have touched on this already, 
so I'm going to take it to another level. While judges are 
certainly the face of the judicial branch, their work, as you 
can appreciate, is significantly supported by the work of law 
clerks. Now, typically, these clerks are well-credentialed, 
talented young lawyers who spend a year or two working closely 
with a judge who hires them, who helps them conduct research, 
research the law, and write legal opinions.
    Now clerkships at the district courts, the court of 
appeals, and even especially the Supreme Court are often a 
launching pad for a successful legal career. Many former clerks 
are leaders in the profession. They serve as law firm partners, 
public interest lawyers, public sector attorneys, and yes, 
Federal judges.
    In fact, seven of the nine current Supreme Court Justices 
were Federal clerks once upon a time, and six of the nine 
Justices clerked at the Supreme Court itself. So it's no wonder 
that many law students and recent graduates compete pretty 
intensely for these coveted positions.
    But like the judiciary itself, the ranks of Federal clerks 
are not particularly diverse. According to a February 2021 
bulletin by the National Association of Law Placement, only 21 
percent of Federal clerks from the class of 2019 were people of 
color. And at the Supreme Court, the statistics are similar, 
with the National Law Journal reporting in 2017 indicating that 
since 2005, only 15 percent of clerks were people of color, and 
only one-third were women.
    These are unacceptably low figures for what has become a de 
facto pipeline for Federal judges. With such low clerkship 
selection rates, minorities and women lawyers are denied an 
early credential that can be of significant help later in their 
legal career. I believe creating more avenues for diverse 
candidates to participate in clerkships is critical to 
diversifying the legal profession in the long run.
    Judge Jackson, I'd like you to maybe share with the 
Committee your clerkship experience and maybe how that affected 
the trajectory of your career and if you believe the judiciary 
would be better served by a more diverse pool of law clerks.
    Judge Jackson. Thank you, Senator.
    I think there's very little question that my law clerks 
changed the trajectory--my law clerkships, excuse me, changed 
the trajectory of my career. Through that opportunity, I was 
able to work for three extraordinary jurists. I got to see what 
it was like to be a judge. I got to understand how judges think 
as they evaluate cases, which for a young lawyer is an 
extraordinary training opportunity. And you are correct that it 
is something that is career changing in a lot of ways.
    I have tried in my time on the bench to do a significant 
amount of outreach to young people. I go to law schools 
whenever I'm asked. I speak in a lot of places. You've heard 
some of my speeches get referenced because I'm often asked to 
go, and I try to go every time I am asked because I know how 
important it is for people to see that people like me are in 
the judicial branch and for people to hear about clerkships.
    One of the things that I often get when I go to law schools 
is surprise from some groups and some people about the chance 
to clerk. They weren't even really aware that that was 
something that they can do or should try to do.
    So it's been a part of my practice to go to schools to 
reach out to young people, to tell them about clerking, to try 
to get them to apply to me, if I can, and to show them that 
this is something that's possible. If I could do it, they could 
do it. And I think it's to the benefit of us all to have as 
many different law students seeking clerkships as possible.
    Senator Padilla. I think you can expect some more 
invitations from California law schools, colleges, and maybe 
even some high schools in the near future, and I'm happy to go 
with you.
    Now another theme that's been pretty consistent throughout 
the day has touched on the right to counsel. You've been asked 
questions about your work as a public defender. Some have 
criticized you for providing a defense to certain clients who 
could not afford an attorney.
    Now I want to talk to you about this issue, but I also 
don't want to assume that everybody watching at home is a 
criminal law scholar. And so, as a Senator from California, 
which is home to Hollywood and the entertainment industry, I'll 
make the reference that whether it's a TV show or a movie, most 
people have heard a law enforcement officer on the screen while 
making an arrest recite what we know as the Miranda rights:
    ``You have the right to remain silent. Anything you say can 
and will be used against you in a court of law. You have the 
right to an attorney. If you cannot afford an attorney, one 
will be appointed for you.''
    Now the Miranda rights are not a Hollywood invention. These 
and other rights afforded to all individuals, including those 
accused of a crime, come from the Fourth, Fifth, and Sixth 
Amendments to the Constitution. They come from over half a 
century's worth of Supreme Court precedents.
    Judge Jackson, while many Americans know how critical these 
rights are to our systems of liberty and justice, not everyone 
does. So for those who may not fully understand, can you 
reiterate why the Constitution protects these fundamental 
rights?
    Judge Jackson. Yes, Senator.
    The Constitution protects these rights because the 
Constitution is designed to protect liberty. That's one of the 
values that the Framers were focused on when they set up our 
system of government.
    The Federal Government is limited in its powers in part 
because the Framers wanted to preserve liberty, did not want 
the Federal Government to encroach on individual freedoms, and 
there's no bigger sphere of encroachment than the Federal 
Government or even State governments using their power to 
deprive people of liberty in the context of the criminal 
justice system. So the Constitution says that when the 
Government seeks to deprive someone of liberty because they 
accuse them of a crime, they have to afford certain rights to 
the individual. They have to make sure that the person is 
processed fairly.
    Criminal defense lawyers protect those constitutional 
rights by ensuring that the Government is doing what the 
Constitution says the Government has to do when they seek to 
deprive someone of liberty. It's the criminal defense lawyer 
who makes the objection to prosecutorial overreach in a case or 
who makes sure that all of the rights that the Framers put into 
the Constitution are being observed in actual practice by the 
Government.
    And it's also really important, one of the things that you 
said the Miranda rights say, if you can't afford a lawyer, one 
will be appointed to you. The person who appoints is the court. 
The court is appointing lawyers for criminal defendants because 
the court, the judges, know that in order to be able to do our 
jobs, in order to be able to make sure that criminal processes 
are fair, we have to get arguments not only from the 
prosecution, but also from competent counsel who is making 
arguments for the defense.
    So it's the court that appoints lawyers for people who 
can't afford them to make sure that justice is being done in 
the cases that come to court.
    Senator Padilla. And just as a follow-up, as much as we 
hope the process is always fair, it is something that it's 
always understood. Now you shared earlier today--and when you 
were in my office, you shared your observation from your time 
as a public defender that many defendants going through the 
criminal justice process don't always understand what it is 
exactly that's happening to them.
    Can you explain what the impact of this is on our criminal 
justice system and how your experience--through your 
experience, it affirms the need for a constitutional right to 
counsel through the eyes of a defendant?
    Judge Jackson. Yes, Senator.
    In my experience, one of the things that is important for 
our entire system of government is that people are being held 
accountable if they commit crimes. That's the point of the 
criminal justice system. And what I noticed as a Federal public 
defender is that the process of ensuring that there is 
accountability, there is responsibility, there is 
rehabilitation is impeded if the people who are in the system 
aren't actually understanding the process.
    That one of the purposes of punishment, one of the goals of 
our system is to ensure that consequences are handed down for 
criminal behavior and then, as a result, that people stop 
committing crimes. And so the obligation to make sure that 
people understand what's happening I've seen aids in that goal. 
That the person who is receiving the punishment is more likely 
to be able to reflect on their own contribution to be able to 
realize that they made a mistake, that they committed a crime, 
that here are the consequences, this is a horrible thing, and 
I'm not going to do it again if they understand the process 
that this is justice in our system.
    If they go through and they don't understand, if people 
aren't explaining, if they feel they haven't been heard in the 
process, it's my experience that, instead, they feel bitter, 
they feel victimized and are less likely to be rehabilitated in 
the long run.
    And so, as a judge, I took that observation and tried to 
ensure that not only that criminal defendants understood what 
was happening, but that they understood the harms that they had 
caused, with an eye toward making sure that rehabilitation was 
happening in the long run as a result of my sentences.
    Senator Padilla. Thank you. And I'd share that I think it's 
part of the comprehensive work we need to do to buttress 
confidence in the justice system as a result.
    Now our criminal justice system is imperfect and too often 
unfair, but when we talk about the virtues and the promises of 
our criminal justice system, we include the constitutional 
right to an attorney. Just in closing, Mr. Chair, we include 
the constitutional right to an attorney. We talk about Miranda 
rights and the right to an impartial jury of one's peers. We 
talk about the Fourth, Fifth, and Sixth Amendments.
    And through the lens not of a particular case or defendant, 
but the system as a whole, the work of public defenders is not 
just the work of defending the accused. It's the work of 
upholding the fundamental legal principles that make up our 
Bill of Rights. So anybody who may criticize Judge Jackson for 
providing a constitutionally required defense to any individual 
accused of a crime, I'd suggest that the criticism is not of 
Judge Jackson, but of the Constitution itself.
    And 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.
    Thank you, Mr. Chair.
    Chair Durbin. Thanks, Senator Padilla.
    Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman, and, Judge, 
thank you again for your time.
    I made a note earlier. Senator Blumenthal had mentioned 
that to do this job that you are before us wanting to take on 
it takes book smarts and people smarts, and I think that's a 
very appropriate summation.
    And as we have spent the past few weeks going through your 
records, getting to know you, reading letters that have come in 
about you, hearing from people, I've kind of looked at it and 
said, okay, she has been richly blessed with God-given talents 
and then she has experiences and education, and then coupling 
with that, hopes, desires, and a lot of drive that really make 
you the person that you are.
    And we have heard from your friends about how you are a 
friend and you've been a mentor, and as one of my friends would 
say, and I bet you fill--kind of fill this void--you're the 
answer lady for a lot of issues that friends would bring to 
you.
    You love your family and they, obviously, love you, and I 
wish you could see your dad's face. It is wonderful. He beams 
when you talk about the things that he has taught you. But all 
of that has been repeated time and again in letters for you. 
But it's important that we know this and it's why we continue 
to ask you about your views on issues because all of that goes 
into forming who you are and your worldview and it all is 
applicable to the job that you've done in the past and, 
likewise, the job that you are going to do in the future and it 
does have bearing on different issues.
    And it's been so interesting to me to get text messages 
from friends at home that are watching this. I had one from a 
friend from church and she said, you know, she seems really 
likable but I'm not sure I agree with her on the issues, and 
this is someone who is incredibly pro-life, and she's about my 
age so she's a mom and a grandmom and she is--this is a 
question that is important to her, to look at life. And Senator 
Feinstein talked about that issue with you a little earlier 
today.
    You've also said today that it would be inappropriate for 
you to share your views on political issues or issues that may 
become--might come before the Court like abortion.
    But I want to go to you on something you said when you were 
in private practice. You made your views on pro-life and the 
pro-life movement very clear and, in fact, you attacked pro-
life women, and this was in a brief that you wrote.
    You described them, and I'm quoting, ``hostile noisy crowd 
of in-your-face protesters,'' end quote, and you advocated 
against these women's First Amendment right to express their 
sincerely held views regarding the sanctity of each individual 
life.
    And I'm a pro-life woman. Seventy-nine percent of the 
American women support restrictions of some type on abortion, 
and so I find it incredibly concerning that someone who is 
nominated to a position with life tenure on the Supreme Court 
holds such a hostile view toward a view that is held as a 
mainstream belief that every life is worth protecting.
    So how do you justify that incendiary rhetoric against pro-
life women?
    Judge Jackson. Thank you, Senator.
    The brief that you're referring to was a brief that I filed 
on behalf of clients who were clients of my law firm. This is 
in, I believe 1999 or 2000s, maybe 2000 or 2001.
    I was an associate at a law firm and I had appellate 
experience because I had just finished my Supreme Court law 
clerk position, and in the context of my law firm I was asked 
to work on a brief concerning a buffer zone issue.
    In Massachusetts at the time, there were laws protecting 
women who wanted to enter clinics and there was a First 
Amendment question about the degree to which there had to be 
room around them to enter the clinic and----
    Senator Blackburn. Right. I understand all of that. I'm 
asking about the rhetoric.
    Judge Jackson. Senator, I drafted a brief along with the 
partners in my law firm who reviewed it and we filed it on 
behalf of our client----
    Senator Blackburn. Okay.
    Judge Jackson [continuing]. And to advance our client's 
arguments that they wanted to make in the case.
    Senator Blackburn. Let me ask you this. When you go to 
church and knowing there are pro-life women there, do you look 
at them thinking of them in that way, that they're noisy, 
hostile, in your face? Do you think of them--do you think of 
pro-life women like me that way?
    Judge Jackson. Senator, that was a statement in a brief 
made----
    Senator Blackburn. Okay.
    Judge Jackson [continuing]. An argument for my client. It's 
not the way that I think of or characterize people.
    Senator Blackburn. Okay. All right. Thank you for the 
clarification on that because I think even zealous advocacy 
doesn't allow that type of rhetoric on a free speech issue.
    You know, Roe v. Wade--let's talk a little bit about that. 
It's come up a touch today.
    In my opinion, that was an awful act of judicial activism 
and has cost the lives of over 63 million unborn children, and 
nearly 50 years later this shameful ruling remains binding 
precedent. But the battle is being fought in the courts and, as 
you know and as we discussed when we visited, the Supreme Court 
is reconsidering whether the Constitution protects the right to 
an abortion in Dobbs.
    And if you're confirmed, you will be in a position to apply 
the Court's decision in Dobbs, whatever that decision is going 
to be, and you've talked about following precedent and what the 
Court decides.
    So do you commit to respecting the Court's decision if it 
rules that Roe was wrongly decided and that the issue of 
abortion should be sent back to the States?
    Judge Jackson. Senator, whatever the Supreme Court decides 
in Dobbs will be the precedent of the Supreme Court. It will be 
worthy of respect in the sense that it is the precedent and I 
commit to treating it as I would any other precedent of the 
Supreme----
    Senator Blackburn. There's one other thing. One of the 
central issues in the Dobbs case is about whether the 
Constitution protects the right to an abortion. So let's talk 
about that.
    Can you explain to me, on a constitutional basis, the 
Court's decision in Roe and where is abortion protected in the 
Constitution?
    Judge Jackson. Senator, abortion is a right that the 
Supreme Court has recognized is one of the kinds of rights that 
is unenumerated. It is in that same category of rights that the 
Supreme Court has recognized with----
    Senator Blackburn. But the text of the Constitution does 
not mention abortion.
    Judge Jackson. That is true.
    Senator Blackburn. That is true. That is correct. So you 
agree that the Constitution does not mention the right to an 
abortion and, yet, through one of the most brazen acts of 
judicial activism our Supreme Court created the right through 
Roe v. Wade. This is why Americans--this is why so many women 
that I've talked to are really concerned about who sits on the 
Federal bench. We need a Justice who will adhere to the text of 
the Constitution. You've talked a little bit about that today 
as you talked about historical context, and they don't want 
Justices who are going to invent rights out of whole cloth to 
serve a political interest.
    Let's move on. I want to go to when you were at Harvard, 
your thesis entitled ``The Hand of Oppression: Plea Bargaining 
Processes.'' In that piece you argued that judges have, and I'm 
quoting--I brought this up yesterday--``personal hidden agendas 
that influence how they decide cases.''
    So what personal hidden agendas do you harbor or do you 
think other judges harbor?
    Judge Jackson. Thank you, Senator.
    That line, to the extent it appears in my thesis, was 
written by someone who had not gone to law school and was a 
senior in college who had spent a summer at an internship 
working in--making observations in the context of a criminal 
justice internship. It is not a view that I hold.
    Senator Blackburn. Okay. Then what led you to that belief?
    Judge Jackson. I am thinking back. It has been 30 years.
    Senator Blackburn. Okay.
    Judge Jackson. But the summer before my senior year I 
interned at a public defender's office in New York and I was 
part of a team of--there was lawyers and interns on this team 
and they were handling misdemeanor cases and I----
    Senator Blackburn. So it was from an internship experience?
    Judge Jackson. Yes. Before I became a lawyer.
    Senator Blackburn. All right. Let's go to something else.
    Senator Cruz was discussing with you--and I think this is 
important--is something that parents all across the country are 
worried about and that is the progressive indoctrination of 
their children and the pushing of Critical Race Theory in the 
schools, and you told Senator Cruz that as a board member of 
the Georgetown Day School you didn't have any control over what 
was taught at the school, no control over curriculum, and you 
weren't aware that the school was pushing CRT.
    But I would think that there would have been parents that 
came to you and said, have you seen these books--are you aware 
that this is being taught, being on that school board.
    Judge Jackson. No, Senator.
    Senator Blackburn. No one ever mentioned it?
    Judge Jackson. Georgetown Day School is a private school.
    Senator Blackburn. Right.
    Judge Jackson. It's not a public school.
    Senator Blackburn. I'm fully--I'm fully aware. And you 
mentioned that you said that you meant--you thought he meant 
that Critical Race Theory isn't being taught in public schools, 
yes?
    Judge Jackson. Correct.
    Senator Blackburn. Okay. But we know that's not the case. 
We know that CRT is being pushed in our K through 12 schools.
    And I've got a letter here, Mr. Chairman, that Senator 
Tuberville and I wrote last year to the National Education 
Association on this issue. I'd like to submit that to the 
record because it's relevant to our discussion.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Blackburn. And we had admonished the NEA for 
adopting pro-CRT materials during their annual organizing 
meeting and proposing to spend $127,000 in teachers dues to 
combat opponents of CRT, and there are countless reports of CRT 
being pushed in the public school system and a lot of parents 
that I work with every day, every week, don't have the funds to 
send their child to a private school.
    They're relying on the school systems--the public school 
systems--and it is important to them to have a Supreme Court 
that is going to protect parental rights to teach these 
children as parents see fit to have their children taught.
    And I will tell you, too, with Georgetown Day School I 
found it astounding that it teaches kindergarteners--five-year-
old children, and I've got grandchildren--and they teach them 
that they can choose their gender.
    So is this what you were praising when you applauded the, 
and I'm quoting you, ``transformative power of Georgetown Day 
School's progressive education''?
    Do you agree that our schools should teach children that 
they can choose their gender?
    Judge Jackson. Senator, I'm not remembering exactly what 
quote you're referencing, but Georgetown Day School is----
    Senator Blackburn. It was in a book----
    Judge Jackson. In a----
    Senator Blackburn [continuing]. And you gave the quote.
    Judge Jackson. Georgetown Day School is a private school 
that----
    Senator Blackburn. Yes. I am asking do you agree that 
schools should teach children that they can choose their 
gender?
    Judge Jackson. Senator, I'm not making comments about what 
schools can teach their----
    Senator Blackburn. Let me ask you this then. United States 
v. Virginia--the Supreme Court struck down VMI's male-only 
admission policy.
    Writing for the majority, Justice Ginsburg stated, 
``Supposed inherent differences are no longer accepted as a 
ground for race or national origin classifications. Physical 
differences between men and women, however, are enduring. The 
two sexes are not fungible. A community made up exclusively of 
one sex is different from a community composed of both.''
    Do you agree with Justice Ginsburg that there are physical 
differences between men and women that are enduring?
    Judge Jackson. Senator, respectfully, I am not familiar 
with that particular quote or case----
    Senator Blackburn. Okay.
    Judge Jackson [continuing]. So it's hard for me to comment 
as to whether or not----
    Senator Blackburn. All right. I'd love to get your opinion 
on that and you can submit that.
    Do you interpret Justice Ginsburg's meaning of men and 
women as male and female?
    Judge Jackson. Again, because I don't know the case, I 
don't know how I interpret it. I'd need to read the whole 
thing.
    Senator Blackburn. Okay. Can you provide a definition for 
the word ``woman''?
    Judge Jackson. Can I provide a definition?
    Senator Blackburn. Mm-hmm. Yes.
    Judge Jackson. No. I can't.
    Senator Blackburn. You can't? Okay.
    Judge Jackson. Not in this context. I'm not a biologist.
    Senator Blackburn. So you believe the meaning of the word 
``woman'' is so unclear and controversial that you can't give 
me a definition?
    Judge Jackson. Senator, in my work as a judge, what I do is 
I address disputes. If there's a dispute about a definition, 
people make arguments and I look at the law and I decide. So 
I'm not----
    Senator Blackburn. Well, the fact that you can't give me a 
straight answer about something as fundamental as what a woman 
is underscores the dangers of the kind of progressive education 
that we are hearing about.
    Just last week, an entire generation of young girls watched 
as our taxpayer-funded institutions permitted a biological man 
to compete and beat a biological woman in the NCAA swimming 
championships.
    What message do you think this sends to girls who aspire to 
compete and win in sports at the highest levels?
    Judge Jackson. Senator, I'm not sure what message that 
sends. If you're asking me about the legal issues related to 
it, those are topics that are being hotly discussed, as you 
say, and could come to the Court. So I'm not able to----
    Senator Blackburn. And I think it tells our girls that 
their voices don't matter. I think it tells them that they're 
second-class citizens, and parents want to have a Supreme Court 
Justice who is committed to preserving parental autonomy and 
protecting our Nation's children.
    So I--let's move on. I want to go to the child porn issue 
and I know that we've discussed this today on several different 
times. What's troublesome to me is your consistent pattern of 
sentencing these predators below the sentences recommended by 
the Government and the sentencing guidelines, and Senator Cruz, 
Senator Hawley, have laid out some of these disparities. I know 
Senator Blumenthal mentioned the Kids Online Safety Act that he 
and I are working on.
    You have talked about how horrifying it was to get some of 
that information. As we have held these hearings, that too has 
been horrifying. We've had moms all--from all over the country 
call us and tell us their story of how these pedophiles, these 
child abusers, these pornographers, are using technology and 
that technology has really advanced and, unfortunately, we know 
that online right now it is more dangerous for kids than ever.
    Here's a couple of stats for you. In 2021, NCMEC's cyber 
tip line received nearly 30 million reports of online child 
sexual abuse material, which is a 35 percent increase over 
2020. Those 30 million tips contained 44.8 million videos and 
39.9 million images, and as a mom and a grandmom, this is an 
issue of tremendous concern. I have grandsons that are 12 and 
13 years old, and these are things that concern me--how these 
people work.
    I find the discussion that you made--the distinction you 
made, between pedophiles who produce child pornography and 
those who were only collectors to be one without a difference.
    You said, and I'm quoting you, that ``it was a mistake to 
assume that child pornography offenders are pedophiles.'' Do 
you believe that it matters to the children and their parents 
who suffer abuse what motivation those abusers had?
    Judge Jackson. Thank you, Senator.
    As you said and as I've said, these cases are among the 
most difficult----
    Senator Blackburn. They are.
    Judge Jackson [continuing]. For judges who have to deal 
with the evidence, judges, who, like me, are parents----
    Senator Blackburn. My question, Judge, do you think it 
matters to the kids and their parents the motives of the 
abuser, of the pornographer?
    Judge Jackson. Senator, it does not matter----
    Senator Blackburn. Okay.
    Judge Jackson [continuing]. To the victims in these cases 
what the motivation is. The quote--I'm not exactly sure where 
it came from. I know that what Senator Cruz showed me before 
was questions that I was asking in the context of a hearing 
to----
    Senator Blackburn. Okay. Well, I've got some serious 
concerns about that. I do want to go to your judicial 
philosophy and back to the Ninth Amendment.
    President Biden said he was looking for a judicial nominee 
with a judicial philosophy that is more of one that suggests 
that there are unenumerated rights in the Constitution and all 
the Amendments mean something, including the Ninth Amendment.
    You told Senator Lee that you didn't discuss this statement 
with President Biden. But I want to know whether you agree with 
it.
    Do you share the judicial philosophy that President Biden 
is looking for? And Senator Kennedy tried to walk through some 
of this with you. Do you believe that the Ninth Amendment is a 
source of unenumerated rights?
    Judge Jackson. Senator, the Supreme Court has not found any 
unenumerated rights that derive from the Ninth Amendment and so 
that's not the precedent of the Court, and there aren't any 
rights that have been established under that provision of the 
Constitution.
    Senator Blackburn. Okay. White House Chief of Staff Ron 
Klain has written that the Supreme Court should intervene 
whenever the Nation's conscience and laws need a jolt in a 
progressive direction. Presumably, that is what he and his 
boss, President Biden, expect a Justice to do.
    So do you believe that the role of the Court is to 
intervene whenever we need a jolt in a progressive direction 
and would you do that through the unenumerated rights? Would 
you do it on issues like abortion or any other issue?
    Judge Jackson. Senator, the role of a judge is to decide 
cases and controversies based on the facts and the law, mindful 
of their obligation to rule impartially and to remain in 
consideration of only the law and their constraints under the 
Constitution.
    Senator Blackburn. Okay. A lot of special interest groups 
have come out in support of your nomination. One of those is 
Demand Justice, and they are a progressive dark money group 
that has launched a million-dollar ad buy to push for your 
confirmation.
    Demand Justice is also pushing for radical changes to the 
structure of our country and our Constitution including a 
demand that Democrats pack the Supreme Court. One of Demand 
Justice's board members has urged Senate Democrats to add 10 
more Justices to the Court.
    It's clear that Demand Justice believes that if the issue 
of court packing were to come before you on the Supreme Court 
you would rule in their favor.
    Are they wrong to believe that you would rule in their 
favor?
    Judge Jackson. Senator, it's very unlikely that the issue 
of court packing would come before the Supreme Court. That 
question is in the province of Congress. It's a political 
question.
    Senator Blackburn. Okay. Let's see. I want to follow up on 
this Make the Road New York issue that has come up a couple of 
times today.
    Congress granted DHS sole and unreviewable discretion to 
determine which illegal immigrants should be deported. This 
means DHS's decision was unreviewable by a Federal judge and 
any attempt to challenge DHS's decision should have been 
dismissed by the court.
    And, yet, you did the very opposite. You didn't dismiss it. 
You inexplicably construed the law to permit a judicial 
challenge to DHS's immigration decision despite the plain 
language of the statute.
    The D.C. Circuit, where you sit, reversed you. It noted 
that it could hardly imagine a more definitive expression of 
congressional intent than the one in the law at issue and it 
questioned how you could have come to any other conclusion 
based on the text of the statute.
    So I'd like to know what was ambiguous about the 
immigration law that we enacted and we explicitly stated that 
DHS's decision was unreviewable? What more could we possibly 
have said or have made clear that you were not authorized to 
review DHS's decision?
    Judge Jackson. Thank you, Senator.
    When Congress strips the court of jurisdiction, Congress, 
in many cases, does so explicitly. It says something other than 
sole and unreviewable. It says things like no court shall hear, 
there's no jurisdiction to consider.
    There are ways that Congress clarifies that judges have no 
authority or no jurisdiction to hear a particular case. The 
D.C. Circuit considered jurisdiction with respect to this 
statute in this dispute and determined that the court did have 
jurisdiction and the question was whether there was a cause of 
action to proceed.
    What I determined in looking at the statutes at issue in 
this particular case is that sole and unreviewable meant that 
DHS had the sole power to make a decision about----
    Senator Blackburn. Right. Not to interrupt you. My time is 
going to run out and I want to be respectful of getting you out 
of here tonight.
    But we were clear in what we said on that, and I heard your 
explanation on that earlier today. That's why I wanted to come 
back to it tonight, because this is the kind of judicial 
activism that really concerns Tennesseans, these issues that 
I've been through with you today, the statements that--your 
statements that I gave back to you last night in my opening, 
things that you had said, decisions that you had made. These 
cause concern.
    So we'll take up a little bit more of it tomorrow. Thank 
you for your graciousness.
    Mr. Chairman, thank you for the time.
    Chair Durbin. Thank you very much, Senator Blackburn.
    I want to thank Judge Jackson for this long day and part of 
it under tough circumstances. You were a model of grace under 
pressure.
    At times, things were said about you which turned out to be 
inaccurate. It was said you called President Bush and Secretary 
Rumsfeld war criminals. That didn't happen. It was said you 
also sentenced--you always sentence criminals too lightly. That 
didn't--that's not exactly true. It was said you apologized to 
a defendant in the child pornography case without any sympathy 
for the victims and that wasn't true, either.
    The truth is you've been a judge for nearly 10 years. 
You've sentenced more than 100 defendants, some to decades in 
prison, and even the child pornography cases my colleagues 
continued to raise over and over with you, your sentences were 
in line with the recommendations of the Government or a 
Probation Office in the vast majority of the cases that you 
heard.
    We invited a number of people to come here today and one 
special guest was a lady who cleans our office at night. She 
works the midnight shift, but she wanted to be here today to 
see you and hear you and stand by your side, and she said 
afterwards that it was a great moment for her to be in this 
room today.
    But she asked me or she asked my staff, why are some people 
so mean? Well, I have to tell you, the overwhelming majority on 
both sides of the aisle were not mean. They were constructive 
and positive and really raised the important questions that we 
all care about.
    Some are always going to be a little disappointing. That's 
the nature of human life.
    Tomorrow morning, we're going to gather at 9 a.m. for Jon 
Ossoff and Thom Tillis. I don't know if America is ready.
    [Laughter.]
    Chair Durbin. I know this Committee will be ready.
    And thank you very much, and this meeting of the Senate 
Judiciary Committee will stand in recess.
    [Whereupon, at 10:12 p.m., the hearing was recessed.]
    [Additional material submitted for the record for Day 2 
follows Day 4 of the hearing.]



                          CONTINUATION OF THE 
                         CONFIRMATION HEARING 
                          ON THE NOMINATION OF 
                       HON. KETANJI BROWN JACKSON 
                   TO BE AN ASSOCIATE JUSTICE OF THE 
                   SUPREME COURT OF THE UNITED STATES  
  
                              ----------                              


                       WEDNESDAY, MARCH 23, 2022

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:06 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Richard J. 
Durbin, Chair of the Committee, presiding.
    Present: Senators Durbin [presiding], Leahy, Feinstein, 
Whitehouse, Klobuchar, Coons, Blumenthal, Hirono, Booker, 
Padilla, Ossoff, Grassley, Graham, Cornyn, Lee, Cruz, Sasse, 
Hawley, Cotton, Kennedy, Tillis, and Blackburn.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. The Senate Judiciary Committee will come to 
order.
    We have two Senators, Senator Ossoff of Georgia and Senator 
Tillis of North Carolina, who will do their 30 minutes of 
questioning to complete the agenda from yesterday, and then 
each Senator will be allowed 20 minutes to ask questions if 
they wish, but the Chair is more than anxious to entertain 
efforts to yield back your time. I'm sure the witness, Judge 
Jackson, would appreciate it as much as all of us in that 
respect. I'm going to make an opening statement, Senator 
Grassley is going to do the same, and then we will proceed with 
the questions by the two Senators.
    First, I would say, Judge Jackson, that I thought that 
President Biden got it right yesterday. He tuned in and watched 
the proceedings and said you showed both grace and dignity. I'd 
use the phrase ``grace under pressure,'' and it's been referred 
to by many people. This is a tough assignment, and many have 
risen to the challenge, but none as well as you did yesterday. 
Thank you for doing it so much.
    I would just say this: much of what we heard from a handful 
of Senators yesterday has to be put in context. The 
overwhelming majority of Senators on both sides, I thought, 
were asking appropriate questions, and positive in their 
approach, and respectful of the nominee before us. But for many 
Senators, yesterday was an opportunity to showcase talking 
points for the November election. For example, ``All Democrats 
are soft on crime. Therefore, this nominee must be soft on 
crime.'' Well, you've made a mess of their stereotype. The 
endorsement of the Fraternal Order of Police, the International 
Association of Chiefs of Police just doesn't fit with their 
stereotype of a Harvard grad, a Black woman who is aspiring to 
the highest court in the land. But you earned it. Law 
enforcement is on your side because you've been on their side 
at critical moments. And your family has dedicated a big part 
of their lives to law enforcement, and you obviously believe it 
at your core. You said that over and over again. So the soft on 
crime charge, which leads all others, falls on its face.
    The second thing is that you are somehow out of the 
mainstream when it comes to child pornography cases, and, of 
course, that gets down to the question of sentencing and your 
choices in sentencing. It is difficult, if not impossible, for 
each of us to put ourselves in your place when you're facing 
all the totality of facts concerning a certain defendant, then 
looking at your requirements under the law, as enacted by 
Congress, in trying to do the right thing to keep America safe 
but to meet justice. You are in the same place as 80 percent of 
Federal judges when it comes to sentencing on child pornography 
cases. Eighty percent.
    And, of course, Congress is not without fault. We have 
failed to pick up the responsibility that was assigned to us 
some 17 years ago when the Supreme Court decided that the basic 
guidelines would not be mandatory on judges. We should've 
stepped in at that point, but it's a tough, hard, controversial 
subject, and we've stayed away from it. And what has happened 
is the judges have tried to make do with a fractured situation 
where they have guidelines that are advisory. They have 
opinions coming to them about sentencing from the Government as 
well as from the Probation Office and others.
    So I would say that the bottom line is this: you have done 
what 80 percent of the judges have done. You are in the 
mainstream of sentencing when it comes to child pornography 
cases. I also think it's ironic that the Senator from Missouri, 
who unleashed this discredited attack, refuses to acknowledge 
that his own choice for a Federal judge in the Eastern District 
of Missouri has done exactly what you did.
    You also have been criticized as having been wrong to be a 
public defender or even to be in a law firm representing a 
Guantanamo detainee. It's interesting that Republican judges, 
very conservative ones, don't see this as a blemish on your 
character. They understand, as we do, that the Sixth Amendment 
creates a responsibility that people have a right to counsel. 
You have exercised that responsibility in your professional 
life.
    This, incidentally, yesterday turned--your nomination 
turned out to be a testing ground for conspiracy theories and 
culture war theories. The more bizarre the charges against you 
and your family, the more I understand the social media 
scoreboard lit up yesterday. I'm sorry that we have to go 
through this. These are not theories that are in the mainstream 
of America, but they've been presented here as such.
    Finally, you are a respected, successful woman of color. 
You've been approved three times by this Committee for 
increasingly significant judicial assignments. Now the 
President of the United States has chosen you to serve on the 
highest court of the land. America is ready for this Supreme 
Court glass ceiling to finally shatter, and you, Judge Ketanji 
Brown Jackson, are the person to do it.
    Senator Grassley.
    Mr. Cornyn. Mr. Chairman?
    Chair Durbin. Yes?
    Mr. Cornyn. Mr. Chairman, I think you've, in the main, 
provided both sides an opportunity to be heard and ask their 
questions. But unfortunately, I notice that after every series 
of questioning on this side of the aisle, you choose to 
editorialize and contradict the points being made by this side 
of the aisle. I don't know whether we will have an equal 
opportunity to editorialize about the advocacy that you and 
your colleagues, the points that you're trying to make.
    I especially was concerned that after my questioning 
yesterday, I left the hearing room, and you chose to come back 
after a break and raise with the judge a point that I had asked 
her about, and which I, frankly, think was misrepresenting my 
position and what the facts are with regard to whether the 
judge has accused President George W. Bush and Donald Rumsfeld 
of war crimes. My language was--I asked her whether she called 
him a war criminal, and she said under oath to you, ``No, I did 
not,'' although the record is plain as can be that she accused 
them of war crimes. Now, I don't understand the difference 
between calling somebody a war criminal and accusing them of 
war crimes. Maybe in some other foreign language that I don't 
frankly understand, maybe that would make sense, but not in 
accordance with a common understanding of the English language.
    So I just don't--I just want to lodge a protest and say 
that I don't think it's appropriate for the Chairman, after 
every time somebody on this side of the aisle asks questions of 
the judge, you come back and you denigrate, and you attack, and 
you criticize the line of questioning. I think the judge is 
doing a pretty good job of defending her own position in 
answering questions. So thank you for giving me a chance to 
express my objection to the way that you've been editorializing 
after each time this side of the aisle asks questions.
    Chair Durbin. Thank you, Senator Cornyn.
    Senator Kennedy. Mr. Chairman.
    Chair Durbin. Excuse me.
    Senator Kennedy. Mr. Chairman.
    Chair Durbin. Excuse me. Thank you, Senator Cornyn. It's 
known as Chairman's time.
    Senator Grassley. Could I--could I make my statement first?
    Chair Durbin. Do you want to make your statement?
    Senator Kennedy. Well, I--may I respond to what Senator 
Cornyn said?
    Chair Durbin. Well, if you want to speak before your 
Ranking Member.
    Senator Kennedy. May I? Thank you.
    Chair Durbin. Entirely your right.
    Senator Kennedy. Mr. Chairman, I agree with Senator Cornyn. 
You and I have talked about this before. I have great respect 
for you, you know that, but I've had the same issue in normal 
hearings, non-Supreme Court hearings where you make editorial 
comments after I question. I appreciate your input, but they're 
not offered in an evenhanded way, and I just don't think it's 
productive. I mean, you just referred by name to Senator 
Hawley. I think he should have a chance to respond. You know, 
this is America. We have the right to express ourselves. You 
know, you're not free if you can't say what you think, and I 
just--I want to join my colleague, Senator Cornyn. I just don't 
think it's appropriate, Mr. Chairman.
    Chair Durbin. It's called Chairman's time. It is a 
tradition in this Committee exercised by Senator Lindsey Graham 
as Chairman and Senator Grassley in previous Supreme Court----
    Senator Kennedy. But they didn't do it the way you do it, 
Mr. Chairman.
    Chair Durbin. I'm going to allow--I'm going to allow you to 
be heard, but I want to be heard----
    Senator Kennedy. Of course.
    Chair Durbin [continuing]. Without interruption.
    Senator Kennedy. Of course.
    Chair Durbin. And so in the Minority, we waded through 
Chairman's time when we had Republican Chairs. There will not 
be a separate set of rules for Democrats in control of this 
Committee. That was used as a response time and again by both 
of those Senators, and it was accepted. If what I said was 
somehow problematic or painful yesterday, I'm sorry, but the 
Democrats are going to use the same mechanisms that the 
Republicans have used in this Committee.
    Senator Kennedy. And I appreciate that, Mr. Chairman, but I 
think if you're going to personalize it as to--as to Senators 
by name, you ought to give them a chance to respond.
    Chair Durbin. Well, they will have a chance.
    Senator Ossoff. Mr. Chairman?
    Chair Durbin. Each and every Senator has 20 minutes today 
to respond if they wish.
    Senator Ossoff. Mr. Chairman?
    Chair Durbin. Who's seeking--Senator Ossoff.
    Senator Ossoff. Could we hear from Ranking Member Grassley, 
and then I'd like the opportunity to ask questions on behalf of 
the State of Georgia. I think the American public is now tuning 
into these proceedings expecting a substantive discussion of 
matters of grave importance to the country with a nominee for 
the Supreme Court before us. I don't think we set an 
appropriate tone by bickering over time and process at the 
outset of our proceedings.
    Every Senator deserves to be heard. I would like to humbly 
request that Ranking Member Grassley make his statement, that I 
and Senator Tillis have our opportunity to question the 
nominee, and that then we can litigate balls and strikes from 
yesterday's hearing. Would that be acceptable to the Committee?
    Chair Durbin. I think in the name of your humility, we 
should do that.
    [Laughter.]
    Senator Ossoff. Thank you, Mr. Chairman.
    Chair Durbin. Senator Grassley.
    Senator Grassley. Yes.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Senator Ossoff, my statement doesn't 
quite fit in with what you ask, but I feel like I have to say 
it anyway because of the conflict that happened late last 
night. But before I do, I want to somewhat tongue-in-cheek, but 
with some seriousness as well, when the Chairman quoted Biden 
as saying that Judge Jackson handled herself with grace and 
dignity, I want to compliment the Democrats on this Committee 
for using grace and dignity unlike it was during the Kavanaugh 
hearings. Thank you all very much for making this--I've heard a 
lot of compliments about how this is the way a hearing ought to 
be held.
    So I want to address that issue that was raised yesterday 
about records. Senator Cruz raised a very legitimate question 
about data related to U.S. Probation Office recommendations. 
The White House and Members of this Committee used that 
information to attempt to discredit information raised by 
Senator Hawley and others about the nominee's sentencing record 
as a district judge. No one on our side of the aisle had access 
to this information. In fact, before this past week, I'm not 
sure anyone but the Probation Office and the court had access 
to this information.
    My understanding is that the Probation Office 
recommendations aren't part of any public record. The specific 
sentencing recommendations aren't always shared with 
prosecutors or defendants. Somehow it appears that the White 
House obtained this information. It was leaked in pieces to 
media outlets in order to cast doubt on legitimate Members' 
questions, and then it was provided to only Democratic Members 
of this Committee without any of the underlying documentation. 
I'd like to add my name to the letters that are requesting at 
least--well, this is Senator Lee's letter of request for at 
least the Probation Office recommendations so that we can be 
sure of the data handed out by Democratic staff last night. I'd 
also like to add my name and have added my name to Senator 
Cruz's follow-up request for access to any other data that 
might be shared with our colleagues on the other side.
    One last thing. To suggest that all that we have to do is 
ask for information doesn't pass muster. You can't ask for 
information you don't know if it exists. I've asked for non-
public records related to the Judge's tenure on the Sentencing 
Commission. Those have not been produced just like 48,000 pages 
of records withheld by the White House.
    How is the United States Senate supposed to review a record 
that we don't have? This process might be timely, but it's 
neither thorough nor fair to the American public, and I hope we 
can rectify that.
    I yield.
    Chair Durbin. Thank you, Senator Grassley.
    Senator Ossoff.
    Senator Ossoff. Thank you, Mr. Chairman, Ranking Member 
Grassley, and, Judge, good morning.
    Judge Jackson. Good morning, Senator.
    Senator Ossoff. Welcome back.
    Judge Jackson. Thank you.
    Senator Ossoff. We had a late night doing our job as 
Senators and you as a nominee, and we're off to a morning 
start. I was considering asking you if you were a coffee or a 
tea drinker, but I thought that might be too personal and 
immaterial to the question of your nomination.
    I want to begin, inspired by the presence of my brother, 
Senator Reverend Warnock, who's joined us this morning, in a 
spirit of national unity, offering thanks for these proceedings 
for our Constitution, for this opportunity to air in public 
before the American people a vital grappling with ideas core to 
our republic: questions of the role of branches of Government, 
questions of the proper role of judges in our society, 
questions that keep the peace and ensure that this remains a 
Nation of laws. As I noted in my opening statement a couple of 
days ago, democracy is the exception and not the norm in 
history or around the world, and this public exercise is a 
vital one, and so I'm thankful for it. I'm thankful that the 
American people have the opportunity to observe it.
    And, I'm thankful for your presence, Judge, for your 
service to the country throughout your life as a district 
judge, as an appellate judge, as a member of the U.S. 
Sentencing Commission, as a nominee for the Court. So thank you 
for being here. Thank you for subjecting yourself and your 
family to an intrusive, at times cruel and unfair, but, on the 
whole, necessary and proper process of scrutiny as you are 
considered for this appointment.
    The American people who are now tuning in for the second 
day of these proceedings are hearing about your approach to the 
law, to your role as a judge and as a potential Supreme Court 
Justice, and they're also getting to know you personally. And 
we've had the opportunity to hear a bit about your family, your 
background. I think it's also appropriate that the American 
public hear a bit more about your brother's story, who, as I 
understand it, served in the Baltimore Police Department, 
served in the U.S. Army. Before we turn to matters of law, will 
you please help introduce yourself and your family to the 
American public as you seek this lifetime appointment? Tell us 
a bit about him and his story.
    Judge Jackson. Thank you, Senator. My brother followed in a 
long tradition in my family of public service. It was a core 
family value. My parents were both public servants, and my 
mother's--two of my mother's brothers were career law 
enforcement. And my brother and I are almost a decade apart in 
age, and he, I think, looked up to my uncles, who were often 
around in their uniforms, keeping their weapons away from the 
kids by putting them up on high shelves. And we looked up to 
them, and we understood through their service what it meant to 
give back to your community.
    My brother went to college, a Historically Black College, 
Howard University here in Washington, DC, after growing up in 
Miami, and decided to follow in--follow in my uncles' 
footsteps. He could've done many things coming out of college 
with a college degree but decided he wanted to be a police 
officer and went to Baltimore, which, as many of you know, 
struggles like many cities with areas that are--have a lot of 
crime. And it was a very--it was a very stressful period for us 
as a family because as proud as we are of his service, as much 
as we know it's important, law enforcement is a dangerous 
profession, and as family members, you worry. When you don't 
get the phone call, when you haven't heard for a couple of 
days, when you hear about things in the news, in the community, 
you worry.
    And so I grew up with family members who put their lives on 
the line. I understand the need for law enforcement, the 
importance of having people who are willing to do that 
important work, the importance of holding people accountable 
for their criminal behavior. I also as a lawyer and a citizen 
believe very strongly in our Constitution and the rights that 
make us free. And what that means to me is an understanding 
that, although we need accountability, although there is crime, 
we also have a society that ensures that people who have been 
accused of criminal behavior are treated fairly. That is what 
our Constitution requires. That is what makes our system so 
exceptional.
    My brother understood that as part of his work, and he also 
served in the military. He also decided, as many people did, to 
defend our country after 9/11 that he would go into the Army. 
And I remember when he made that decision, he had a college 
degree. He could've been officer right away. He could've been a 
type of military officer that didn't have to actually be on the 
battlefield. And I remember saying, are you going to do 
something with, you know, radio signals? Are you going to 
behind the scenes? And he said, no, no, I'm going to be 
infantry, boots on the ground. He said, I believe strongly in 
the protection of our country, and if I'm going to be leading, 
I'm going to be out front. That's the kind of person my brother 
is. It's the kind of service that our family provides.
    And for me, what that meant was an understanding that to 
defend our country and its values, we also needed to make sure 
that when we responded as a country to the terrible attacks on 
9/11, we were upholding our constitutional values, that we 
weren't allowing the terrorists to win by changing who we are. 
And so I joined with many lawyers during that time who were 
helping the courts figure out the limits of Executive 
authority, consistent with what the Framers have told us is 
important: the limitations on government. I worked to protect 
our country, my brother worked on the front lines, and it was 
all because public service is important to us.
    Senator Ossoff. Thank you, Judge Jackson. Let's talk a bit 
about limitations on power. Our Constitution is a document that 
renounces monarchism and, instead, establishes a Republic. You, 
in an opinion that has been widely cited, made the observation 
that, ``Presidents are not kings.'' What does that mean, and 
what are some of the most important bulwarks in our 
constitutional system against the abuse of Executive power, 
against tyranny?
    Judge Jackson. Thank you, Senator. Our constitutional 
scheme, the design of our Government, is erected to prevent 
tyranny. The Framers decided, after experiencing monarchy, 
tyranny, and the like, that they were going to create a 
government that would split the powers of a monarch in several 
different ways. One was federalism. It was vertical. It would 
split the powers between the Federal Government and States. 
Another was to prevent the Federal Government from itself 
becoming too powerful, from having all of the authorities, from 
having legislative, executive, and judicial authority 
concentrated in one place.
    So the Constitution in its design puts the legislative 
authority in Article I and gives it to the Congress, the power 
to make laws. It puts the Executive authority in Article II and 
gives it to the President, the power to execute the laws. And 
it puts the judicial authority, the power to interpret the 
laws, in Article III and gives it to the court. The separation 
of powers is crucial to liberty. It is what our country is 
founded on, and it's important, as consistent with my judicial 
methodology, for each branch to operate within their own 
sphere. That means for me that judges can't make law. Judges 
shouldn't be policymakers. That's a part of our constitutional 
design, and it prevents our Government from being too powerful 
and encroaching on individual liberty.
    Senator Ossoff. Thank you, Judge. I mentioned in my opening 
remarks that the Court has played a vital role, constrained 
within its proper constitutional boundaries, in the national 
process of making America in real life what America is in text. 
And reflecting on your experience as a public defender, a vital 
role in our justice system, let's talk a little bit about the 
Sixth Amendment and the role that the Court played in ensuring 
that the Sixth Amendment is real in practice in the Gideon v. 
Wainwright decision. Can you help all those who are tuned in 
right now to reflect upon that decision, what it means, what it 
says about the role of the Court?
    Judge Jackson. Yes, Senator. Prior to Gideon v. Wainwright, 
people who could not afford lawyers were not entitled to 
lawyers under our system, so a person could be accused by the 
Government of criminal behavior and would have to fend for 
themselves in court. They would have to make their own 
arguments. Someone who is not a lawyer would still be the 
responsible for defending him or herself in front of a judge if 
the Government brought charges.
    Earl Gideon was a criminal defendant from Florida, my home 
State, who had a handwritten petition. He complained that it 
wasn't fair under our constitutional scheme that protects and 
requires people to be tried. He said, I need help. I'm not a 
lawyer. I can't make these arguments. I think it's important 
for the protection of liberty to ensure that people are able to 
have counsel. And that handwritten petition made its way to the 
Supreme Court, and the Justices read it and they determined to 
take his case, and in the end decided that the protections of 
the Sixth Amendment, the right to trial, includes the right to 
appointed counsel so that everybody who is accused of criminal 
behavior now has the right to an attorney, and that's very 
important.
    I mean, one of the things that I see or saw as a trial 
judge is that it was crucial for our justice system to have 
representation from both sides. It was the only way that a 
judge--it is the only way that a judge can really make fair 
determinations. And in cases--you know, we've heard a lot about 
my criminal cases. In every case I'm getting, as a judge, 
arguments from the prosecution. I'm getting arguments from the 
defense counsel. I'm getting arguments or statements from 
Probation in these criminal cases. And the work of a judge is 
to look at the facts and circumstances, hear the arguments of 
the parties, apply the law, and make a fair determination. And 
so having lawyers for criminal defendants aids in that process 
and benefits us all in our criminal justice system.
    Senator Ossoff. I would just take the opportunity to note 
at this time, Judge Jackson, that it so happens that the 
Southern District of Georgia is one of just three Federal 
districts without a Federal defender's office. And I've offered 
legislation to establish one, and I'll be seeking support from 
my Republican colleagues to try to make that bipartisan to 
ensure there is access to counsel for defendants in my State.
    Let's talk a bit about the First Amendment: freedoms of 
speech, publication, assembly. There's a well-known Supreme 
Court case, Brandenburg v. Ohio, which establishes a certain 
test to ensure that the Government is constrained in any effort 
that may be made to punish speech. And the impulse to 
censorship is something that can emerge from time to time 
across the ideological and political spectrum, particularly in 
times of great controversy or in times of national security 
crisis. Can you please walk the Committee and the broader 
public, watching now from all across the country, through that 
decision and how you will approach these vital protections for 
speech, publication, and assembly, should you be confirmed?
    Judge Jackson. Thank you, Senator. Freedom of speech, 
publication, assembly is in the First Amendment of the 
Constitution. It is a core foundational protection against 
censorship. It is important in our constitutional scheme that 
people be allowed to express themselves, that ideas be 
exchanged. That is the groundwork for a vigorous and vital 
democracy. There are many tests, many cases in the Supreme 
Court's jurisprudence that discuss various disputes about 
circumstances in which the Government can restrain or regulate 
speech. And that decision establishes, to a certain extent, 
that if there is speech that is an incitement to violence, 
that's one circumstance in which the Government might be able 
to prevent it. But other than that, short of that, free speech 
is supposed to be allowed to happen. And there are, again, 
various tests and circumstances that the Court has applied in 
deciding whether the Government can regulate the content, 
place, and manner of speech, but the general principle is that 
our democracy is--thrives because the Government is restrained 
and cannot censor its citizens.
    Senator Ossoff. I think in the--in the same spirit of 
thanks with which I opened these questions, I also want to just 
take a moment and recognize the members of the press who are 
here, the reporters and photographers who ensure that these 
proceedings are truly accessible to the public, and ask you to 
describe your approach to press freedom. The question of 
prior--of prior restraint has been litigated, a famous case in 
the context of the Pentagon Papers in the latter years of the 
Vietnam War. I know--I believe for all of us on this Committee, 
we recognize the vital role of press freedom in ensuring the 
free exchange of ideas, access to truth, and debate in our 
democracy. How will you approach cases that implicate press 
freedom?
    Judge Jackson. Thank you, Senator. This is another area in 
which there is well-established caselaw that supports the 
freedom of the press to be able to write and report. There is a 
general obligation of truth in terms of the press but also a 
recognition that sometimes there may be things that get 
published that aren't exactly accurate. And so the Court in New 
York Times v. Sullivan determined a higher standard of 
liability for press: things that are put out in the press have 
to be knowingly false. There's an actual malice test because 
the Court was balancing the concerns about libel, people 
claiming that they have been misrepresented in the press, with 
the need to allow the press to do their job. The overall 
understanding is that press freedom, again, is one of the First 
Amendment freedoms that undergird our democracy.
    Senator Ossoff. Something I just want to take a moment and 
observe, Judge Jackson, is, you know, and this is my first such 
proceeding, so I'm grateful to the Chairman for opening today's 
ceremonies at the end of the dais. But something that I've 
studied and am aware of is that there's been a range over time 
of how willing nominees are to candidly, and openly, and 
forthrightly discuss these core matters of constitutional 
principles in proceedings like this one, and a tendency over 
time to allow less and discuss less a more restrictive 
approach. And I want to thank you because, while you have 
prudently and disciplined--in a disciplined way refrained from 
commenting inappropriately on potential pending caselaw, you 
have been willing to engage in a forthright and expansive 
discussion of these vital principles in a way that I think 
stands out among some recent nominees. That's not a criticism 
of any recent nominees; it's an observation about your 
performance. And I think that having an open, and honest, and 
forthright dialogue about these matters of national 
significance is part of the vital role that these proceedings 
serve.
    I want to turn now to the Fourth Amendment. I want to 
discuss with you the protections against unreasonable search 
and seizure. We discussed how the Constitution was a 
renunciation of monarchism and tyranny. It establishes core 
civil liberties, one of which is the protection against 
unreasonable search and seizure. How will you approach Fourth 
Amendment caselaw, and can you help those tuned in across the 
country, remind them of what, for example, the principle of a 
reasonable expectation of privacy means in the context of 
Supreme Court jurisprudence?
    Judge Jackson. Thank you, Senator. The Fourth Amendment is 
one of the Amendments in the Constitution that protects 
individual liberty by limiting what the Government can do with 
respect to criminal processes. It restrains the Government from 
engaging in unreasonable searches and seizures. And the Supreme 
Court has developed a series of tests and ways of evaluating 
whether any particular act by an officer in a case qualifies as 
an unreasonable search or seizure. Let me just say that this is 
the kind of area of Supreme Court and judicial review that is 
very fact-specific because courts, in order to stay in our 
appropriate role, can't make policy about police behavior writ 
large, can't just sort of look out into the universe and say we 
have a Constitution that says unreasonable searches and 
seizures, so let us tell you all what that means. That's not 
the way that courts operate.
    Under Article III, courts can only hear individual cases 
and controversies and decide them. So every court, including 
the Supreme Court, is looking at unreasonable search and 
seizures in the context of a particular dispute where someone 
has had something searched by an officer in their house, 
they've been seized under a particular set of facts, and they 
claim in the context of a lawsuit or in the context of 
defending themselves that there has been an unreasonable search 
or seizure.
    And so the Court, case by case by case, looks at the facts 
and circumstances and decides. And I would say that this is--
this is the kind of analysis that takes into account a number 
of things, but one of the things, in addition to understanding 
the facts and circumstances, is understanding what is meant in 
the Constitution by ``unreasonable search and seizure.'' There 
is caselaw that the Supreme Court has developed that looks at 
whether or not something is an unreasonable search and seizure, 
in part by analyzing whether there was a reasonable expectation 
of privacy in that item, in that area. Is there a reasonable 
expectation of privacy in your house, for example? If a police 
officer were to come into your house, you would not be able to 
claim Fourth Amendment protection unless, says the Supreme 
Court, there was a reasonable expectation of privacy in your 
house.
    And the Supreme Court has determined whether there is a 
reasonable expectation of privacy, for example, in your house 
by looking at what areas were protected at the time of the 
founding when the words ``unreasonable searches and seizures'' 
were written into the Constitution. Lo and behold, something 
like your house, the Court has determined, there is a 
reasonable expectation of privacy because that's what those 
terms meant back then. And so if a police officer were to come 
without a warrant, the Court has said, in areas where there is 
a reasonable expectation of privacy that would be an unlawful 
search.
    Senator Ossoff. This is an area where the emergence of new 
technologies makes it likely, I believe, that should you be 
confirmed, you will have to consider Fourth Amendment claims in 
light of circumstances that couldn't have been anticipated at 
the time of the drafting of the Constitution. And indeed, 
constitutional interpretation has already evolved over time to 
adapt to the reality of new technologies, from phone booths, a 
classic case in the late 1960s, about whether a closed phone 
booth door demonstrates an expectation of privacy, to more 
recent caselaw involving geolocation data from cell phones. And 
I want to urge you, should you be confirmed, to remain vigilant 
about how the emergence of new technologies, the way that they 
become ubiquitous in our lives, the way that virtual spaces are 
increasingly akin to physical spaces, will require the Court to 
consider very complex questions, and to seek technical advice 
because these are technologically complex questions.
    What is your view on how the Court should seek such 
technical expertise, which may be, with all due respect, beyond 
the training or experience of a Justice or their clerk, and if, 
for example, one such method of seeking advice is through 
amici? What's the importance of understanding the provenance, 
and origin, and funding source of such briefs submitted to the 
Court? This is a two-part question. I want to restate it. The 
first is, again, I want to urge you, should you be confirmed, 
as I'm confident you will, to vigorously defend the 
constitutional rights of American citizens against unreasonable 
search and seizure in the context of new technologies. I'd like 
to hear how you'll approach seeking technical expertise to 
inform that decisionmaking. And then a question about the 
transparency of briefs filed before the Court, something that 
Justice Scalia noted in some campaign finance caselaws, that 
it's important for the public to know who's funding 
electioneering communications in the context of political 
campaigns. I think it's important for the Court to know who's 
briefing them, what the motive and funding source of such 
briefs might be. Could you please, with my remaining time, and 
then I'll yield and we'll have some more time later to discuss 
war powers. Could you please comment on those matters? Those 
would be my final questions for this round.
    Judge Jackson. Thank you, Senator. One of the ways in which 
the Court receives information, other than directly from the 
parties in a case, is through a practice, an established 
practice, of receiving amicus briefs. Amicus is a term for 
``friend of the court'' briefs. These are people who are not 
parties to the case, who don't have that kind of interest in 
the case, but may have expertise, or information, or arguments 
that they wish the Court to hear. And I think that that would 
be the primary mechanism by which, if the Court were to decide 
to hear a case concerning a matter that involves some technical 
expertise, I would think that there might be amicus briefs 
related to the technology, for example.
    I have not looked at the Court's rules. I would certainly 
want to discuss with the Court's other Justices the ways in 
which determinations are made about which amicus briefs are 
received and what disclosures are related to them. But the 
Court does receive amicus briefs in cases in order to inform 
itself so that it can make a decision related to the issues in 
a case.
    Senator Ossoff. Thank you, Judge Jackson. Thank you for 
your courage and your grace, your forthrightness in answering 
my questions. I look forward to the opportunity to ask a few 
more later, and I yield, Mr. Chairman.
    Chair Durbin. Thanks, Senator Ossoff.
    Senator Tillis.
    Senator Tillis. Thank you, Mr. Chairman. Judge Jackson, 
thank you for being here. I hope you got some rest last night, 
and congratulations----
    Judge Jackson. Very little, Senator, but that's all right.
    Senator Tillis. Me, too.
    [Laughter.]
    Senator Tillis. But thank you for being here, and 
congratulations to your family and your husband, who has an 
impressive medical list of accomplishments that he should be 
proud of. I'm sure that you are, too. And thank you to your 
family, the public servants serving in the military, serving in 
law enforcement, educating our children. You're a role model 
family.
    I do want to go back. This morning, I ended up turning to a 
channel that I never watch just to see what was being said 
about the proceedings. I thought it was interesting that they 
were ridiculing some of my colleagues on this side of the aisle 
for bringing up the behavior of past Supreme Court hearings. 
This is really the appropriate venue to do it. I guess we could 
talk about it when we're reviewing intellectual property or 
something else, but, contextually, this is the time to do that. 
And I think we all have to agree that the behavior in the 
Kavanaugh hearing was inappropriate. I hope we never get back 
to it. And I hope we can all agree that many of the behavior or 
the positions that some of my colleagues took on the other side 
of the aisle with Justice Barrett was abhorrent, and we should 
never do it again. That's why I'm so glad that, for the most 
part, we've behaved in an appropriate manner here.
    I'm going to get to some questions, if time allows, that 
relate to some other questions that my colleagues have asked. 
But, Judge Barrett, did I understand correctly that at a young 
age you won a debate competition, or was it an oratory 
competition?
    Judge Jackson. I was in speech and debate. It was one team, 
and I did original oratory as my primary event.
    Senator Tillis. And did you continue your debate 
competition? Did you continue to do that, first question. Did 
you continue to do debate competition?
    Judge Jackson. Continue into college?
    Senator Tillis. Yes. I mean, were you doing that in school, 
in college as you----
    Judge Jackson. I did not do it in college, no. I did it--I 
did it from middle school through high school----
    Senator Tillis. Okay.
    Judge Jackson [continuing]. And stopped when I graduated 
high school.
    Senator Tillis. I did, too, and I recall with that that we 
would get assigned a topic that wouldn't necessarily be one 
that we agreed with, but we had to argue it. Were you ever in a 
situation or did you get to pick a topic and only argue the 
side that you were for?
    Judge Jackson. So I didn't--it sounds like what you're 
referencing is extemporaneous speaking.
    Senator Tillis. Yes.
    Judge Jackson. I think I did that once in one competition. 
I did original oratory----
    Senator Tillis. Okay.
    Judge Jackson [continuing]. Which is where I wrote my own 
speech.
    Senator Tillis. Okay. You've had an opportunity to debate a 
lot as a defense counsel, I would assume, in the court of law 
when you're debating a position. And the reason I asked that 
question is that yesterday when Senator Kennedy was asking you 
about the expanding the Court, or what we call court packing, 
you said, ``I haven't really thought about it, but I hear the 
arguments on both sides--I hear the argument on both sides.'' 
So could you briefly describe to me your perception of the 
arguments on both sides?
    Judge Jackson. My understanding of the arguments is about 
whether or not to expand the Court beyond the nine Justices 
that are on the Court right now, the nine seats that are there, 
and----
    Senator Tillis. If you--if you were to view--I mean, right 
now it's, ``nine is fine,'' ``four are more.'' I mean, that's 
really the two arguments. So do you understand or have you 
heard any of the arguments for or against either side?
    Judge Jackson. I'm not even sure about the four. I've just 
heard people talking about----
    Senator Tillis. Okay.
    Judge Jackson [continuing]. Putting more Justices on the 
Court, expressing concerns that the Court has become 
politicized, that the Court has become unbalanced in terms of 
what people perceive to be views of the majority of the 
Justices, and so I've heard arguments about rebalancing the 
Court on that side. And then there's the argument that many on 
the dais have stated about the inappropriateness of doing so, 
the concern that it might lead to some kind of a war of every 
time there's a new President, adding Justices to the Court.
    Senator Tillis. Actually, yesterday when Senator 
Whitehouse--I think it was Senator Booker who observed Senator 
Whitehouse's presentation, made a comment about how Rhode 
Island--New Jersey being a bit bigger would have a bigger 
graphic to display. I went back. I think that New Jersey is 6 
times the size of Rhode Island by square miles. North Carolina 
is 36 times the size of Rhode Island.
    [Laughter.]
    Senator Whitehouse. We appreciate you pointing that out, 
Senator.
    Senator Tillis. And before my friends from Texas chime in, 
I would--I would let them know that if Alaska were two States, 
they'd be the third-largest State. So I've decided to use the 
Whitehouse format for dark money so that we have a balanced 
understanding of the fact that our proceedings here, the 
aspirations for the Court, there is an ecosystem out there on 
both sides. As a matter of fact, we had a judicial nominee who 
actually participated in this ecosystem. I think you could 
reasonably assume if they participated in that ecosystem, that 
they probably would've been an activist judge.
    [Chart is displayed in hearing room.]
    Senator Tillis. The point that I make here is that we've 
seen this ecosystem mobilized to support you, and I think, 
Judge Jackson, you said you haven't had any encounter with 
Demand Justice. I don't know if you've had any encounter with 
some of these. They're abbreviated or--I'm sorry--either 
acronyms or abbreviated, so I wouldn't expect you to. It would 
be interesting, if we could for the record, determine if you 
have had any interactions.
    Judge Jackson. I have not, Senator. I've never seen most of 
those----
    Senator Tillis. That's good enough. I mean, I wouldn't 
expect you to, to be honest, sitting on the bench. But they are 
out there, and they have a specific plan, and their specific 
plan--as a matter of fact, I was inspired by Senator 
Whitehouse's chart, so I went out to Demand Justice. They have 
a specific plan. Step one, four seats on the Supreme Court. 
``We must add four seats on the Supreme Court to restore 
balance,'' which, by their opinion, is a majority with their 
view and their judicial philosophy. They're thrilled that 
President Biden has promised to appoint a commission. In fact, 
they're so thrilled that they want to make sure that they can 
influence the outside of the commission by endorsing their 
four-seat strategy.
    They want to recruit 25,000 volunteers--this is on their 
website, their strategy--to influence the commission's 
recommendation. And then they want to nuke the filibuster, 51 
votes to make a decision that could ultimately be to pack the 
courts. This is their stated goal. They're proud of it. Senator 
Whitehouse was talking about how the prior President was 
influenced by an organization. I would say that, Senator 
Jackson, and almost everybody that the President vetted 
before--I'm sorry, Judge Jackson--are on this list. So I think 
it's intellectually dishonest to say that the administration, 
that my colleagues on the other side of the aisle are not 
influenced by this organization. We've tracked some of the 
fundraising and support in reelections. They're engaged, and 
they're influenced by it.
    But let me tell you what I'm really worried about with the 
court packing risk that we have today. We're talking about the 
ultimate destruction of two institutions. Back in January, 
Senator Schumer laid a vote down on the floor that ultimately 
would've reduced the majority of 60--the filibuster limit of 60 
to 51. He was doing it as a--as a way to pass a single bill, 
but we all know what happened when Senator Reid nuked the 
Executive Calendar for circuit court judges. It led to you only 
being subject to 51 votes to be confirmed. That nuked the 
Executive Calendar. In January, Senator Schumer was laying the 
groundwork for the same thing.
    Now, I worry--that's the destruction of the Senate 
institution as far as I'm concerned. I think we have to be a 
consensus-based organization. We don't need to be a 100-member 
House of Representatives, and that vote happened. What 
disappointed me most about that vote is back when President 
Trump was calling on us and pressuring us to nuke the 
filibuster when we had control of Congress, I signed onto a 
letter with more than 60 Members to say that I would never do 
that in the face of our--in the face of a Republican President 
whose policies I supported. I did that to send a very clear 
message. I respect this institution, and I respect the Court, 
which almost certainly would have been--we would've had 
pressure from our side of the aisle to pack a Court a little 
bit more.
    Now, every Member who was here back when we signed that 
letter who's on this Committee changed their position and voted 
to potentially nuke the filibuster just 2 months ago. So I hope 
you can understand my concern about the political winds and the 
potential damage that it could do to the Senate and do to the 
Supreme Court. I think it was Federalist Paper 78 where 
Hamilton talked about the vulnerability or, I think, the 
feebleness. Now, he was arguing, I think, the case for lifetime 
appointments, but I do think that the Supreme Court is a 
fragile institution, and I do believe that if we think it's 
politicized now, think about how it would be if we destroyed 
the institution of the Senate so that on a strict party-line 
partisan vote, we expand the Court.
    That's why court packing is important, and that's why we 
ask a question that I know you're not going to answer, but I 
know that Justice Breyer and Justice Ginsburg did. And if 
there's any Supreme Court Justice listening right now, I wish 
that they would speak up because I think your institution is in 
peril. And accelerating it to a truly political body is only 
one successful nuking of the filibuster vote away in the U.S. 
Senate. This is serious stuff.
    I was at Pricewaterhouse. I was a partner at 
Pricewaterhouse back during the Arthur Andersen Enron scandal. 
I saw about a 100-year-old, top-tier, Big 5 consulting firm 
cease to exist because their reputation suffered. If we pack 
the Court, the only thing that you all have, that the Supreme 
Court has, is its integrity and the esteem of the American 
people and the trust they put into it. Packing the Court could 
cause the Supreme Court to lose the trust of the American 
people, and I think if we want to expand the Court, let's do it 
for the only valid reasons. Maybe the Justices come to us and 
the Chief Justice comes to us and say, the workload to is too 
great, the times have changed, and then convince 60 Members of 
this body to consider it.
    But when you've got a partisan organization here that's 
putting a pipeline of people in there that they think like them 
and have a judicial philosophy like them, how can any 
reasonable person think that this is just kind of fixing the 
mechanics? It's a partisan decision that even some of my 
colleagues on the other side of the aisle have taken the bait, 
so much so that they would reverse a commitment that they made 
with me when they signed that letter to say they would never 
nuke the filibuster and then nuke it.
    President Biden's on that list, too. Back in 1983, he gave 
a rousing speech in a Judiciary Committee hearing saying don't 
pack the Court. He gave a rousing speech on the Senate floor 
saying don't nuke the filibuster. But now we're in this posture 
to where we could destroy two institutions if we're not 
careful. So I actually hope that you can at some point study 
the issue thoroughly and understand the risk to this 
institution that you're likely to be confirmed to. It's 
serious, and you could end up being there--you'll have a 
lifetime appointment. You could actually be there and witness 
its demise real time if we're allowing--if we allow the Court 
to be packed.
    Now, I want to talk a little bit about the--I think you 
were--you were a part of a--of a case in Massachusetts that 
some people are casting as a pro-life versus pro-choice issue. 
Now, to be clear, I am Catholic and I am pro-life, and I'm 
proud to have signed and ratified pro-life bills in North 
Carolina when I was Speaker of the House that have withstood 
judicial scrutiny. But I don't really think that case was about 
pro-life. I think it was about free speech, so I want to ask 
you a few questions about it, and maybe you could describe it 
to me if your memory serves you.
    But it seems to me that the argument that you were a part 
of--I think that you joined with a couple of others. It seemed 
as if the argument was because the pro-life protesters were 
``threatening to--threatening and dangerous to women attempting 
to enter the clinic.'' I'm not necessarily saying you put those 
words in the brief, but they were in there, and ``they were a 
hostile, noisy crowd in the face of protesters.'' Now, am I 
correct that a part of the argument was because they were 
noisy, in-your-face protesters, they needed to be a little bit 
further away than people who were pro-choice advocates? Because 
as I understand it, I think the underlying law in Massachusetts 
was ultimately struck down unanimously by the Supreme Court. Is 
that correct?
    Judge Jackson. Thank you, Senator.
    The brief that you----
    Senator Tillis. Oh, by the way, I didn't expect you to 
respond to my riff on packing the Court.
    Judge Jackson. Yes.
    Senator Tillis. Just to net it out, it's a bad, bad, bad 
idea. But back on this one.
    Judge Jackson. I understand. The brief that you are 
referencing was a brief that I worked on right after finishing 
my Supreme Court clerkship, when I joined a big law firm in 
Massachusetts. This is 1998--maybe 2000--at the end of my 
clerkship. And it is a First Amendment free speech set of 
arguments that the lawyers at my firm--I was a part of a team 
representing clients who wanted to make an argument about 
buffer zones, which, at that time, had not yet been litigated 
all the way up to the Supreme Court.
    Senator Tillis. But was it a buffer zone that put pro-life 
and pro-choice people in the same buffer or one that argued 
that pro-life people were in your face and perhaps needed a bit 
better--bigger buffer than the pro-choice? I was just trying to 
discern----
    Judge Jackson. Yes. No, I----
    Senator Tillis [continuing]. The facts of the case.
    Judge Jackson. I'm--I believe that it was viewpoint-
neutral, meaning it wasn't about what the people were saying. 
It was about clearing a path----
    Senator Tillis. Yes.
    Judge Jackson [continuing]. To allow people to enter the 
clinic. The laws at the time were about how far----
    Senator Tillis. Yes.
    Judge Jackson [continuing]. Did people have to be kept 
back, whether they were pro-life or pro-choice, because if they 
were blocking the entrance----
    Senator Tillis. Do you understand why the underlying law 
was ultimately deemed unconstitutional by the Supreme Court?
    Judge Jackson. I didn't follow the jurisprudence. At that 
time, it had not been, and the First Circuit, this was a First 
Circuit brief. I don't remember what happened in the district 
court, but my clients wanted to argue in the First Circuit that 
the laws that allowed for the clearing of the path so that 
people could enter the clinic and have people stand back were 
constitutional and important, and the First Circuit agreed.
    I think, ultimately--I don't know exactly, but I think, 
ultimately, as you say, there was some litigation that went all 
the way to the Supreme Court, and the Court had other 
jurisprudence about the extent to which buffer zones are 
constitutional.
    Senator Tillis. Yes. Well, it looked at--I'm not an 
attorney. I watch Law and Order from time to time, and I'm not 
going to get into a debate. But on its face, it almost looked 
as if there was this notion that there was bad speech and good 
speech, that somehow--look, I'm somebody who's had protesters 
come to my house, get in my face, and be very nasty. Four times 
by land and two times by sea. I live on a lake. Okay with them 
doing it as long as they stay off my lawn. In the last case, 
they didn't.
    But it almost felt like to me that those protesters who 
didn't like me needed to be a little bit further away than the 
protesters that maybe I would allow to be a little bit closer. 
It may not be right, but I'll make sure that I get my facts 
right before this afternoon and the second round.
    I want to go to sentencing. I'm not going to cover any of 
the ground that my colleagues have. I'm sympathetic to some of 
it, not necessarily all of it, because I think the details are 
something that we don't have possession of. I'm sure we're 
going to talk a little bit more about that.
    But I want to talk more about a pattern. I know--and I was 
really impacted by your description of family dinners and your 
uncles coming in in uniforms and putting their guns up on the 
cupboard and having a sense of pride that you had family that 
served in law enforcement.
    There are a couple of cases--I'm very focused on law 
enforcement and backing the blue. I think that law enforcement, 
I talk with a lot of them. Their morale is low. They feel like 
``defund the police'' and some of these other efforts are 
already making a very difficult and dangerous job more 
difficult, more dangerous.
    There have been a few cases where you have recommended 
lower sentences than even, I think, the defense attorneys have. 
But I'm sure that if I were you, and observing you yesterday, 
you would probably point to some mitigating circumstances or 
factors that are not necessarily available to the Committee as 
a basis for doing that.
    I think in one case, the Government recommended a 30-month 
sentence, and the defense recommended 21 months, and you gave 
him 18 months. And this was a third conviction for assaulting 
an officer.
    There was another one that was a lower sentence for they 
were officer assaults, and it just seemed like it went lower. 
But I don't want to get into those because you may have factors 
that you would point to that would justify the decision.
    I've got a question about--and see, that's at an atomic 
level. I mean, you're looking at the facts of the case. You're 
looking at the defendant. And as you've described in some of 
the other cases here, you made a judgment that you thought was 
fair and that was in bounds with your peer group.
    But back at the beginning of the COVID pandemic, I believe 
you made this statement, and I'll give you time to provide 
context if it's out of context. But in the interest of time, 
I'm only going to read the most striking.
    You said, ``The obvious increased risk of harm that the 
COVID-19 pandemic poses to individuals who have been detained 
in the District's''--that's the District of Columbia's--
``correctional facilities reasonably suggests that each and 
every''--and I think that means everyone--``every defendant who 
is currently in the DC Department of Corrections custody and 
who thus cannot take independent measures to control their own 
hygiene and distance themselves from others should be 
released.''
    I checked in April 2020--I think that's when you made the 
statement--that there were 1,200 or 1,600--let's call it 1,200, 
I'll be conservative--people in the Department of Corrections. 
Do I read that statement to say that you felt, given the 
circumstances at the time, they should all be released? Because 
that's broad. That's not looking at their individual cases.
    Judge Jackson. No, Senator, you don't read it correctly.
    Senator Tillis. Okay.
    Judge Jackson. It was not a statement. It was a line in an 
opinion. And the beginning of the COVID-19 pandemic was a 
really obviously horrible----
    Senator Tillis. I was there.
    Judge Jackson [continuing]. And difficult time for all of 
us. And what was happening at the beginning in the prisons, 
which was part of the criminal justice system that, as judges, 
we were involved in----
    Senator Tillis. I tracked it--quickly, let me----
    Judge Jackson. Yes.
    Senator Tillis. I want--because I do not want to go over. I 
don't go over, but----
    Judge Jackson. Can I just----
    Senator Tillis. Well, let me----
    Judge Jackson. Yes.
    Senator Tillis. Let me just give you a little bit more 
context. I've actually written letters to the Department of 
Justice encouraging the release of nonviolent offenders in 
North Carolina at a Federal correctional facility. I've also 
supported early release programs. I voted and supported the 
First Step Act.
    I, as speaker of the house, was the first speaker in 
probably 2 decades that actually did the Justice Reinvestment 
Act early release of nonviolent prisoners. But how can I not 
read this to say that perhaps they should be released, 
irrespective of the crime for which they've been charged?
    Judge Jackson. Senator, if you read two more sentences 
down, that is precisely what I focus on. This is a case, United 
States v. Wiggins, where I was setting up my analysis as to why 
I would not be releasing Mr. Wiggins in this case. He was 
arguing essentially what I said in that statement. He was 
arguing that the circumstances of COVID-19, which, at that 
point, was rampant in the prisons. We had not had a vaccine. 
There were very difficult circumstances for prisoners, who 
could not be separated from each other in the context of our 
jails.
    And as I say at the beginning of that opinion, at that 
point, COVID was ravaging the jail. And the question for courts 
under the statute that Congress has enacted for compassionate 
release was whether COVID-19, a pandemic in the jail, was an 
extraordinary and exceptional circumstance or extraordinary and 
compelling circumstance that should warrant release.
    What I said in that statement that you read was it would 
seem as though something like a deadly pandemic, rampant in the 
jails would justify releasing everyone. But, I go on to say in 
that very opinion, Congress has indicated that we have to take 
each case individually. We have to look at the harm to the 
community that might be caused by the release of individual 
people. We can't just release everybody, I said in that 
opinion.
    And so----
    Senator Tillis. Okay. I wanted to give you--and I'm sorry 
to interrupt you, but I'm on----
    Judge Jackson. That's all right.
    Senator Tillis [continuing]. On 4 minutes. But I feel 
like--I also had my staff provide me this morning in very, very 
small type, recidivism and Federal sentencing outcomes. I've 
said, I'm on record as saying that I want people out. I want to 
have them an opportunity to reenter society, become productive 
members, and I've got a track record for ratifying bills to 
that effect and supporting similar measures since I've been 
here in the Senate. I'm going to continue to work on it.
    But tell me why the numbers that I'm looking here, we have 
a recidivism rate, the most recent one that I have before me--
and I'd be happy to share it. I'll ask to have this submitted 
to the record. But I think an 8-year lookback says that 49 
percent of the people incarcerated are rearrested within 8 
years.
    If you take a look at the types that are most likely to be 
reoffending, it's firearms offenders, robbery offenders. 
Violent offenders reoffended at a higher rate than nonviolent 
offenders.
    And so if I look at this and I look at your philosophy with 
respect--and it's admirable. I said that the content of your 
character would be demonstrated this week in my opening 
statement, and it has been. And one of the things that are 
first among them are your compassion and your belief that 
people can redeem themselves.
    But if you look at some of the cases that our--my 
colleagues have brought up and if you look at--even with the 
context that you provided on the last statement about the 
Department of Corrections statement in Wiggins, can you 
understand how some of us may think that your compassion could 
lead to bad results, based on the numbers that we have here 
with recidivism, that Congress may need to work more on that to 
make sure that we get it right?
    Can you understand how somebody who from our side of the 
aisle could see that maybe there is some pattern to give the 
benefit of the doubt to someone who has been incarcerated in 
some cases with very serious crimes?
    Judge Jackson. Thank you, Senator.
    I don't recall saying anything about compassion in the way 
that you're describing it. But what I----
    Senator Tillis. No, no, no. I'm just saying that if I take 
a look at your responses to some of my colleagues' questions 
and your statements to some of the--to some of the defendants, 
it seems as though you're a very kind person and that there is 
at least a level of empathy that enters into your treatment of 
a defendant that some could view as maybe beyond what some of 
us would be comfortable with, with respect to administering 
justice.
    Judge Jackson. Thank you for letting me clarify.
    The statements that I made about my practices as a trial 
judge, which I'm no longer a trial judge, but were intended to 
explain how trial judges operate and how they impose sentences 
within the framework that Congress has provided. The statute 
that applies to us tells us to look at all of the various 
factors that Congress has set forward, including the nature and 
circumstances of the offense, the history and characteristics 
of the defendant, and it tells us that we should be imposing a 
sentence sufficient, but not greater than necessary, to promote 
the purposes of punishment.
    Congress also tells us that one of the purposes of 
punishment is rehabilitation. My attempts to communicate 
directly with defendants is about public safety because most of 
the people who are incarcerated via the Federal system, and 
even via the State system, will come out, will be a part of our 
communities again. And so it is to our entire benefit, as 
Congress has recognized, to ensure that people who come out 
stop committing crimes.
    And so what I convey or did when I was a trial judge, as I 
sentenced people to very lengthy periods of incarceration, was 
you are getting your day in court. You are able to say what you 
want to say, but you have to sit here and listen to my reading 
into the record the victim's statements in this case. You have 
to go away understanding that I am imposing consequences for 
your decision, your decision to engage in criminal behavior.
    And the reason why I did that, I've said, is because I 
recognized as a defender that there were lots of people in our 
system who, instead of taking responsibility for what they had 
done and then, ultimately, understanding the harm and 
potentially not doing it again, instead of that, those people 
were bitter. They were angry. They were feeling victimized 
because they didn't get a chance to say what they wanted to say 
because nobody explained to them that drug crimes are really 
serious crimes.
    Nobody said to them, ``Do you understand that there are 
children who will never have normal lives because you sold 
crack to their parents, and now they're in a vortex of 
addiction? Do you understand that, Mr. Defendant? ''
    I was the one in my sentencing practices who explained 
those things in an interest of furthering Congress' direction 
that we're supposed to be sentencing people so that they can 
ultimately be rehabilitated to the benefit of society as a 
whole.
    Senator Tillis. I appreciate that, Judge Jackson. I'd just 
still note that virtually half of those people, statistically 
speaking, that you gave that speech to within 8 years were back 
in prison. And in some cases for more serious offenses than the 
first incarceration.
    Thank you, Mr. Chair.
    Chair Durbin. Thank you, Senator, for that line of 
questioning.
    And I've noted that you joined a letter with Senator 
Grassley and myself in March 2020 at the earliest stages of 
this, talking about release under these similar circumstances. 
And, of course, we all said at the same time low-risk inmates 
would be considered, but----
    Senator Tillis. Only low-risk inmates.
    Chair Durbin. Yes.
    Senator Tillis. Yep.
    Chair Durbin. And I wanted to make that note for the 
record.
    We're going to start the second round of questions, 20 
minutes each, and I'll kick it off.
    This is an unusual document, this Constitution of ours, 
which has taken up so much time in the hearing, the 
conversation about it. And it is really at the core of public 
service. I don't know that there's a place that you can take a 
job at the Federal level in any branch of Government without 
taking an oath to defend this document.
    I don't know about other countries and the oaths that might 
be required, but we even within the Constitution spell out the 
oath to be taken by the President of the United States, and 
it's to uphold and defend this document.
    And there is great debate about just what this document 
means in today's context. We understand the wisdom, the 
inherent wisdom of the document in the fact that we're still 
here some 230 years later with the design of a government that 
has endured longer than virtually any other democracy, which, 
of course, speaks to the wisdom of the Founding Fathers and 
their plan for this Nation.
    But we also understand, taking an honest look at it, that 
you barely get into this document, Article I, Section 2, and 
you run into a problem. Because in Article I, Section 2, the 
Article that relates to Congress, they talk about who will be 
counted for apportionment among the States, and there is that 
awful reference to ``three-fifths of all other persons,'' which 
though the document never mentions the word ``slavery'' or 
``slaves,'' what was being spelled out here by the Founding 
Fathers was how are we going to count these slaves?
    And for apportionment purposes, they were to be counted as 
three-fifths of a person, which is a horrible notion by any 
standard. But the wise Founding Fathers included it, trying to 
deal with the reality of their day.
    I hear debates back and forth of originalists, textualists, 
and others, and you've been asked as often as any nominee what 
your thought is. You've talked about staying in your own lane 
judiciary and methodology and the like, but I'd like to explore 
for just a moment, without asking you to get into any 
particular fact pattern, the reality of a couple things.
    First, when the Bill of Rights was written, the First 
Amendment to it made certain to guarantee freedom of press. 
Freedom of the press in 1790 was, of course, referring to a 
piece of paper, a newspaper, and saying that there would be 
freedom to engage in that process in this democracy of America. 
Now that freedom of press is referring to this, and things have 
changed an awful lot.
    We have a circumstance now where people no longer have just 
a handful of television networks or known publications--The 
Washington Post, New York Times, and such--but turn for their 
sources of information to places like Facebook and Twitter and 
beyond. And we have a real serious question about what is a 
publication in America? What does it take to be a publication 
and be press?
    Is my blog that I publish tomorrow ``the press''--
guaranteed with a constitutional right that I have a right to 
publish it as I wish and say what I want to say, with certain 
boundaries? And I guess my question to you as we look at this 
is how do you move from the language of 1789, 1790 to the 
reality of 21st century and make sure it's relevant?
    If more people are relying on Facebook and Twitter, for 
example, for information than they are common sources of 
television and newspapers, how do we rationalize that they can 
say--Facebook and Twitter--to a former President of the United 
States, you can't publish here? You're not going to be allowed 
to do it. And they've done that.
    So how do you reconcile that conflict of the changing 
times, the dramatic changes in technology, what the Founding 
Fathers envisioned, and what we face today?
    Judge Jackson. Thank you, Senator.
    The challenges that you identify are the types of things 
that the Supreme Court is now dealing with. We have a 
foundational document that has text, and it has principles. It 
establishes freedoms and foundational important concepts that 
are intended to govern us and that we are bound by as a 
society.
    There is modern technologies, as you say, that have not--
that the Framers, the Founders could not have imagined the cell 
phone and all the other things that we now rely upon. And as I 
mentioned earlier, the Supreme Court and every court deals with 
individual cases, disputes about issues, and when the Court 
gets an issue that requires constitutional interpretation, it 
looks at the facts and circumstances of the particular case and 
the text and principles of the Constitution in light of the 
times in which they were written and analogizes to present day.
    So the Supreme Court, for example, has considered the cell 
phone issue with respect to the constitutional principle of 
unreasonable searches and seizures, which is a protection from 
Government intrusion that the Framers called an unreasonable 
search. The text ``unreasonable search'' is not--does not have 
an inherent definition. What the Supreme Court has done is 
looked back at the time of the founding to determine what kinds 
of intrusion would have been covered when those words were 
written into the Constitution.
    And to the extent that at the time of the founding those 
words covered things like police officer intruding into your 
home and looking into your papers and affairs, then the Supreme 
Court analogizes that circumstance to the modern-day 
circumstance of a cell phone, which now is in all respects, 
says the Court, like rifling through your papers and affairs.
    So it's a process of understanding what the core 
foundational principles are in the Constitution as captured by 
the text, as originally intended, and then applying those 
principles to modern day.
    Chair Durbin. I'll just give you two illustrations of my 
thinking on this and of my frustration or at least 
understanding of the challenge, let's say. Let's put it that 
way.
    Senator Feinstein and I joined in legislation several years 
ago to talk about confidentiality of sources for news entities 
and whether or not a person could--a reporter could be 
compelled to disclose those sources. The effort really drew 
some of the best and brightest in the news business to come 
testify before the Committee.
    The effort failed and faltered over what is a publication? 
Who is a publisher? Who is in the business of dispensing news? 
Does it involve money has to pass between them for this to be 
an official publication, or can I just put up on my blog what I 
wish and resist any efforts to discover my sources? That was 
one of the serious issues that we faced.
    We also took a look--I took a look at where this is going 
in terms of the future and our entities that we rely on for 
news so often. And I'm going to leave it at that because I 
think you've addressed the general and don't want to get into 
more specifics, nor should you.
    But when people pledge that they are originalists, we're 
sticking with the original words, you better have your mind 
open to the reality that this world is changing and changed, 
and many of those principles are sound today, but the 
challenges of interpreting them with the reality of today's 
technology is a challenge, a very difficult one, which you 
would face in the Court.
    I'm going to try to set an example here. We have 20 
minutes, and I'm going to try to yield back some part of it.
    I see that Senator Cornyn is here, and I'm glad he is 
because I'm going to address an issue which he raised yesterday 
and again this morning. And I wanted to do it while he was 
physically present so that when he gets his turn, he can 
address it, and I'm sure he will.
    Yesterday, Senator Graham said that you had gone too far in 
calling the Government ``a war criminal in pursuing charges 
against a terrorist.'' Later, Senator Cornyn asked Judge 
Jackson, and I quote, ``You referred to the Secretary of 
Defense and the President of the United States as war 
criminals. Why would you do something like that? ''
    As I noted yesterday and repeat this morning, these charges 
don't hold up. A CNN fact check said, quote, ``Both Graham and 
Cornyn left out important context. Specifically, neither 
mentioned that Jackson's allegation of war crimes was about 
torture. Also Jackson didn't explicitly use the phrase `war 
criminal.' ''
    The New York Times noted that the allegation, quote, ``is a 
distortion and lacks context.'' The New York Times went on to 
say, ``Judge Jackson did not specifically call the former 
President and Defense Secretary war criminals. She was one of 
several lawyers in 2005 signing four essentially boilerplate 
habeas corpus petitions on behalf of detainees at Guantanamo 
that claimed the U.S. Government had tortured the men and that 
such acts constitute `war crimes.' '' That's in quotes. ``The 
petitions each name Mr. Bush and Mr. Rumsfeld, along with two 
senior military officers who oversaw the Guantanamo detention 
operation, in their official capacities as respondents.''
    The Washington Post noted, and I quote, ``One key thing to 
note, as law professor Steve Vladeck does, is that Bush and 
Rumsfeld are named in the petitions because they have to be to 
clear procedural hurdles. Indeed, those petitions later name 
Barack Obama after the administration changed. Another is that 
they are named in their official capacities, not because of 
actions they personally took as individuals.''
    They continued, ``But the larger point is that Jackson was 
acting as the detainees' lawyer in her role as public defender, 
and one of the underpinnings of the American justice system 
that is even the most reviled alleged criminals have the right 
to a vigorous defense.''
    Would you like to comment on that statement that I just 
made?
    Judge Jackson. Well, Senator, I would just say that public 
defenders don't choose their clients, and yet they have to 
provide vigorous advocacy. That's the duty of a lawyer. And as 
a judge now, I see the importance of having lawyers who make 
arguments, who make allegations.
    In the context of a habeas petition, especially early in 
the process of the response to the horrible attacks of 9/11, 
lawyers were helping the courts to assess the permissible 
extent of Executive authority by making arguments, and we were 
assigned as public defenders. We had very little information 
because of the confidentiality or classified nature of a lot of 
the record. And as an appellate lawyer, it was my obligation to 
file habeas petitions on behalf of my clients.
    Chair Durbin. Thank you, Judge.
    I'm going to try to set an example by yielding back about 7 
minutes of my time. I invite my colleagues to follow that 
example if they wish.
    Senator Grassley, you're next.
    Senator Grassley. Yes. Before I start, I'd like to make a 
brief point. Yesterday, Senator Durbin referenced Congress' 
efforts to stop child pornography and the exploitation of 
minors. I've worked on this issue for decades.
    In 1983, I supported the Protection of Children Against 
Sexual Exploitation Act. In 2012, I sent a letter to the 
Sentencing Commission while Judge Jackson was vice chair. In 
the letter, I encouraged the Sentencing Commission not to lower 
sentences for child pornography.
    I said that, quote, ``It would be a disservice to the 
American people to have the Commission issue a report that 
advocates for the reduction in sentencing for a class of 
criminals who cause profound and lasting damage to their 
victims.''
    I'd like to have that put in the record.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Grassley. Yesterday, you referred to your record of 
decisions as the best thing to look at when explaining and 
evaluating your nomination. But you also said that you haven't 
had enough cases involving constitutional law to develop a 
judicial philosophy. If you haven't had to develop a philosophy 
for deciding cases yet, what else do you think would be helpful 
for us to look at?
    Judge Jackson. So, respectfully, Senator, I do have a 
philosophy. The philosophy is my methodology. It is a 
philosophy that I have developed from practice. Unlike some 
judges who come to appellate work from academia and who have 
some overarching theory of the law, I approach cases from 
experience, from practice, and consistent with my 
constitutional obligations.
    So my philosophy is one in which I look at cases 
impartially, consistent with my independence as a judicial 
officer. I understand my limited role in the constitutional 
scheme and, therefore, take very seriously all of the 
constraints on the exercise of my authority that exist in our 
system.
    What that means is that at the beginning of every case, I 
am setting aside my personal views. I'm----
    Senator Grassley. That's the three steps you gave us----
    Judge Jackson. Yes, sir.
    Senator Grassley [continuing]. Tuesday?
    Judge Jackson. Yes.
    Senator Grassley. So you don't have to go into that. Let me 
go on.
    Should the Supreme Court overrule a precedent when it is 
clear to the Justices that the precedent was wrongly decided?
    Judge Jackson. Thank you, Senator.
    Stare decisis, which is the principle that the Supreme 
Court uses at the outset--it's the sort of background rule of 
judicial maintenance of precedents in order to have 
predictability, stability in the law--is the kind of principle 
that the Court begins with when it is asked to overrule or 
revisit a precedent.
    And the Court has developed certain factors that it looks 
at before it actually undertakes to reverse a precedent. One of 
those factors is the view that the precedent it's reconsidering 
is wrong, but that's not the only factor.
    The Court also determines, in addition to whether or not 
the prior precedent was egregiously wrong, the Court has said, 
the Court looks at whether there's been reliance on that prior 
precedent, whether the precedent is workable or has proven 
workable over time, whether the cases in the area of the 
precedent have shifted such that the precedent itself is no 
longer on firm foundation, and whether there have been either 
new facts or a new understanding of the facts that give rise to 
a need to revisit the precedent.
    So it's not just a look at whether or not it's wrong, and 
it's important that the Court take into account all of those 
factors because stare decisis, meaning letting the precedent 
stand, is a very important pillar of the rule of law.
    Senator Grassley. When is it appropriate for a judge to 
impose a sentence enhancement under the guidelines?
    Judge Jackson. Thank you, Senator.
    The Federal Sentencing Guidelines are crafted to assist 
courts in making sentencing determinations within the broad 
range that Congress prescribes for cases for crimes. So in the 
typical case, a defendant is convicted of some crime. In the 
Federal system, they're usually very serious crimes, and 
Congress will say, Judge, you can give that person a sentence 
anywhere between 0 and 20 years, for example.
    The sentencing guidelines are designed to set out a series 
of factors that judges should be looking at when they decide 
what they're going to sentence that particular person to. And 
those factors will be things like: if this is a violent crime, 
does the person have a weapon? If this is a violent crime, was 
there any injury?
    And so the judge is looking at these facts, in many cases 
horrible facts, and calculating the guidelines based on what we 
call enhancements. Each one of those different characteristics 
or conditions is an enhancement.
    So you ask when is it important to----
    Senator Grassley. Appropriate.
    Judge Jackson. When it's appropriate. Well, the judge has 
to calculate the guidelines in every case. That's how we start 
the process. But under the statutes, in addition to calculating 
the guidelines with all of those enhancements, the way our 
system now works is you determine what the guideline range of 
punishment is going to be, and then Congress says you look at a 
series of other factors in addition to the guideline range. And 
at the end of the day, the judges in the system now are 
choosing sentences based on both the consideration of the 
guidelines and also the consideration of the statutory factors 
that Congress has put forward.
    Senator Grassley. Have you ever declined to impose an 
enhanced sentence on a defendant because you disagreed with the 
enhancement as a policy matter?
    Judge Jackson. Thank you, Senator.
    Yes. And the reason is because of Supreme Court caselaw 
concerning the way in which the guideline system operates. The 
Supreme Court has determined in a case we discussed yesterday 
that the guidelines are no longer binding on judges, meaning 
the guidelines, you calculate, but you don't have to stay in 
the guideline range anymore. That was the Supreme Court's 
Booker case.
    In--and I can't remember if it's in that case or in 
subsequent caselaw, but the Supreme Court has also made clear 
that when you are calculating the guideline range in the new 
system that we're in right now, judges are free, the Supreme 
Court has said, to decide in particular cases whether as a 
``policy matter'' they disagree with a particular enhancement. 
That is the state of the law. That is what the Supreme Court 
has said judges are permitted to do in cases.
    And so I have in certain cases, given the way in which the 
guidelines are operating, the disparities that are created in 
cases, I have at times identified various enhancements that I 
have disagreed with as a policy matter because the Supreme 
Court has said that that's the authority of a sentencing judge 
in our system.
    Senator Grassley. Are nationwide injunctions 
constitutional?
    Judge Jackson. Well, Senator----
    Senator Grassley. Well, you've issued them.
    Judge Jackson. Thank you for letting me address that 
circumstance.
    The reason why I paused is because what I have issued is 
not technically a nationwide injunction. People call--call it 
that. But in a particular set of cases, administrative agency 
cases, that are brought under the Administrative Procedure Act, 
these are challenges to agency actions, like agency rules that 
they have promulgated, and if the challenge is to the 
procedures that the agency undertook to create the rule, the 
statute that applies, the Administrative Procedure Act, tells 
the court that if you agree with the plaintiff that the agency 
rule is faulty procedurally, the remedy in the statute is to 
invalidate the rule. That's what Congress tells judges to do.
    Now, technically, that's not a nationwide injunction. That 
is invalidating a rule that the agency has enacted. It may have 
nationwide effects because the agency may have implemented its 
rule nationwide. But what the court is doing is not reaching 
out and touching everyone in the country. The court is 
directing the Government that has promulgated that rule that 
the rule is invalid, and that's what the statute tells us we 
have to do in those cases.
    That's different than a nationwide injunction because a 
nationwide injunction would be a situation in which we're not 
dealing with a rule. We're not dealing with the Administrative 
Procedure Act. We're dealing with a particular case in which 
something has happened between the plaintiff and the defendant, 
and the court says based on what happened in this case, I'm 
going to tell everybody in the country that you can't--the 
defendant you can't operate in this way anymore.
    I'm going to find on the basis of this particular case. I'm 
going to join everyone in the country not to do that anymore. 
That's a nationwide injunction, which is not what I've done in 
I think the cases that you're talking about.
    Senator Grassley. How can the judiciary address concerns 
about forum shopping, given the rise of nationwide injunctions?
    Judge Jackson. Well, forum shopping is--is a concern that 
arises when litigants seek to go to different places in the 
country where they think that they may get a better result, and 
it's something that Congress can address because Congress has 
the power to determine various aspects of judicial process.
    Senator Grassley. Explain the political question doctrine, 
and then what standards would you apply to determine whether a 
claim before you implicates a political question.
    Judge Jackson. So the political question doctrine is a 
doctrine that relates to the jurisdiction of the court. As I 
mentioned, the courts are in a particular branch of Government, 
the judicial branch that is limited in its power. The courts 
can't make policy. They can't reach out into the world and 
decide that certain things are good or bad and then address 
them. They have to wait for cases to come and decide them.
    And when a case comes, it has to be presenting a question 
of law for the court to answer it. If a person comes to the 
court and they ask the court to answer something that is 
properly in the province of Congress, if they ask a political 
question, then the court has to say, ``I'm sorry. That's not my 
role.''
    So I had, for example, a case that involved Yemeni citizens 
who--I'm trying to get the facts exactly right. But they had 
relatives. I think they were resident in the United States, and 
they had relatives in Yemen, a war-torn area. This is a few 
years ago. And they came to the court, me, asking if I could 
direct the administration to extract their relatives from 
Yemen, that they wanted me to order the executive branch to 
send in troops and get their relatives out because it was, 
obviously, dangerous for their relatives to be in that country.
    And what I said in that circumstance is essentially I don't 
have jurisdiction to do that because what you're asking me to 
do is a political question. The question of when and where 
troops can be sent and who can be extracted from foreign 
governments belongs with the executive branch, and so you have 
to ask them. And so I said I have no jurisdiction. That's a 
political question doctrine, and it's well established in our 
law.
    Senator Grassley. Yesterday, in response to a question from 
Senator Durbin, you said that a judge--as a judge, you are, 
quote, ``trying in every case to stay in your lane,'' end 
quote. That's the same time you gave us the three steps you go 
through as you work yourself through a case.
    You also described the text of a law as a constraint on 
your authority. But in several cases I'll list--Make the Road 
New York, AFGE v. Trump, Watervale Marine Co., and others--the 
D.C. Circuit reversed your decision or criticized your 
reasoning for failing to follow a clear and unambiguous text. 
Why didn't the clear text of the law constrain your authority 
in these cases?
    Judge Jackson. Thank you, Senator.
    You mentioned three cases. Certainly with respect to the 
second one, the D.C. Circuit didn't say that the text was 
clear, and in fact, that's what happens in cases, that judges 
at the trial level do their best to make interpretations. In 
that case, it involved a channeling provision.
    This is AFGE v. Trump. It involved a provision, a statute 
that was designed to channel the judicial authority into an 
agency. And I interpreted the statute, and I thought the 
arguments that were being made, the claims that were being made 
were not ones that Congress had intended to channel. And I went 
through the analysis, and I explained my reasoning as to why I 
thought I still had jurisdiction. And I went on to address the 
merits, which is the duty of the judge if they determine they 
do have jurisdiction.
    The D.C. Circuit disagreed. They wrote an opinion that 
interpreted the statute differently with respect to those 
claims, but it was a case of first impression as to what those 
claims meant and whether they were supposed to be channeled or 
not. And that happens. District judges do their best, and 
sometimes the court of appeals and the Supreme Court haven't 
spoken to the issue, and the parties disagree.
    In Make the Road, I explained that what I was attempting to 
do in light of Congress' enactments, not only the particular 
immigration provision, but also the Administrative Procedure 
Act, was reconcile the statutes of Congress, which is something 
that the courts also are supposed to do. That there are 
statutory interpretation canons that make clear that courts are 
supposed to understand that Congress intends for its statutes 
to work together, and to the extent that you are interpreting 
and the claim is made that allows you to do that, that's the 
sort of way in which interpretation is done.
    I can go through my actual analysis. I did it yesterday as 
we talked. But there was a good faith disagreement between me 
and the court of appeals, which gets to decide, as to what the 
language meant and whether or not Congress actually intended to 
exclude the APA using that language under those circumstances.
    Senator Grassley. Thank you very much.
    Chair Durbin. Senator Leahy.
    Senator Leahy. Thank you, Chair.
    And welcome back, Judge Jackson. I know yesterday was a 
grueling day of questions and I commend you for your poise, 
your endurance, your thoughtful answers. I felt privileged to 
be here for hours of that and you had even more hours.
    But I want you to know the reaction in my own State of 
Vermont. I've gotten all kinds of emails and calls from friends 
across the political spectrum.
    They've all been praising you and they said they realized 
that a lot of the questions that were lobbed at you had nothing 
at all to do with your qualities as being on the Supreme Court 
but were some Members, unfortunately, aiming for a sound bite 
that they may be able to put it on a political website where it 
now is.
    For example, we heard some overheated claims yesterday that 
your representation of Guantanamo detainees somehow signaled 
your policy preference with how the United States has dealt 
with those detainees.
    Every single Member of this Committee, especially those of 
us who had been assigned as counsel in cases, should know 
better than to conflate a nominee's past representation with 
their policy positions or to argue that a nominee espoused 
their client's viewpoint simply by choosing to represent them.
    So your policy views aside, can you reiterate why it's so 
important for our courts to have the benefit of the best 
possible legal representation on both sides of any case and 
especially in cases where we are in uncharted legal and 
constitutional waters?
    Judge Jackson. Yes. Thank you, Senator.
    So I've been a judge for almost a decade and what I've 
learned is that as part of my duty to render decisions 
consistent with my judicial oath in support of our Constitution 
and the rule of law I need to consider all of the arguments 
related to the dispute that is being brought in my courtroom.
    I need to hear from not only the parties who are 
prosecuting a case--for example, a crime--but also from the 
defense, and some of these crimes are terrible crimes.
    Our Constitution is designed to ensure that the Government 
affords due process to people who are being accused of crimes, 
and one might think even--it's even more important, in a way, 
in a case in which someone is so reviled.
    It's kind of like the First Amendment. It's a protection 
for unpopular views. It's needed when there's a chance that the 
Government will suppress or, you know, do something that's 
untoward.
    And so in the criminal justice system we have many, many 
Amendments that are designed to make sure that unpopular 
people, people who are accused of doing terrible things, are 
still treated fairly by the Government and that's a limitation 
on government power, which is the--which is the framework of 
our Constitution. It is about limiting government overreach.
    And so in the criminal justice system, you can imagine and 
the Framers imagined a world in which the Government would use 
its authority to deprive people of their liberty, to throw 
people in jail, to lock them up and throw away the key, to not 
give people the opportunity to make arguments about their 
freedom.
    That would be a real exercise of government power, 
government overreach. And so the Framers said, what we're going 
to do is we're going to put in our foundational documents a 
protection for people that the Government is accusing of crime.
    And that's not to say that the people are innocent. That's 
not to say that they haven't done terrible things. What it's 
about is ensuring that the Government does what is required in 
order to ensure all of our liberty.
    It protects all of us because there might be someone who is 
innocent and the Government--if the Government is able to just 
do whatever it wants in criminal process we are all at risk.
    Senator Leahy. Well, and I think we've all seen cases where 
that happened. I mentioned to you yesterday that I spent nearly 
a decade as a prosecutor, and especially when I had serious 
cases I wanted the best defense attorney possible on the other 
side.
    I wanted a case that if--usually went up on appeal 
automatically if it carried a heavy penalty, I wanted the 
court--the appellate court--to look at it and say, okay, there 
were not errors of counsel on either side.
    But I also, as a strong proponent of our Constitution, I 
think what you're saying is something I totally agree with. We 
have to have--we have to have individuals' rights protected. It 
doesn't mean the defense counsel is in favor of murder or rape 
or armed robbery. But the rights have to be protected.
    Let me tell you about another area. I've authored and I've 
long championed the bipartisan John Lewis Voting Rights 
Advancement Act. I think it would help curtail the growing wave 
of voter suppression sweeping across our country--again, 
something we don't have to worry about in Vermont but, 
unfortunately, they do in other States.
    I'm passionate about this legislation. I've always believed 
that our democracy is stronger when we expand, not shrink, the 
ranks where our citizens are fully participated. I believe our 
democracy grows stronger with your historic nomination and your 
presence before us today, and I've told you privately how my 
family members feel about that.
    Why is it important for our democracy's institutions, 
courts and all others, to reflect the rich diversity of our 
Nation's citizenry?
    Judge Jackson. Thank you, Senator.
    One of the things we've been talking about is the 
difference between the judicial branch and the other branches 
of Government.
    We have three branches in our Federal system and the 
legislative branch has certain powers and it can do certain 
things to ensure that its prerogatives are achieved, and the 
executive branch has the power of might. The President controls 
the military.
    The judicial branch--its force in our system is the 
protection of the rule of law, which can only be done by, 
essentially, the consent of the governed. It can only be done 
if people in our society believe, decide, and agree that 
they're going to follow what it is that courts decide.
    And so one of the reasons why having a diverse judicial 
branch is important is because it lends and bolsters public 
confidence in our system. We have a diverse society in the 
United States. There are people from all over who come to this 
great Nation and make their lives, and when people see that the 
judicial branch is comprised of a variety of people who are--
have taken the oath to protect the Constitution and who are 
doing their best to interpret the laws consistent with that 
oath, it lends confidence that the rulings that the court is 
handing down are fair and just, that everything has been 
considered, that no one is being excluded because of a 
characteristic like race or gender or anything else, and that's 
important.
    I would also say that it's important from the standpoint of 
role modeling, that I have been so touched by the numbers of 
people who've reached out to me in this period of time to say 
how much it has meant to their daughters, to their sons, to the 
next generation, that I've been appointed--nominated and, 
hopefully, confirmed.
    Senator Leahy. Well, I agree with you. I've, certainly, 
seen that within my own family.
    You know, we do have areas where we agree on things on this 
Committee, Judge. Senators Grassley and Senator Cornyn, myself 
and others, believe in transparency as part of our democracy.
    We've done this with the Freedom of Information Act where 
we've updated it a number of years. Senator Cornyn and I have 
been the key sponsors of legislation and joined by Senator 
Grassley and Senator Durbin and others to improve the Freedom 
of Information Act.
    You've talked about the detailed opinions you've written to 
try to do the same thing. I think it's safe to say you believe 
transparency is central to the duties of a judge.
    Do you intend to carry that attitude when and you will--and 
you will--become a member of the U.S. Supreme Court?
    Judge Jackson. Thank you, Senator.
    The value of public confidence, which I was just 
discussing, I think, is enhanced when the public understands 
the reasons that a judge renders his or her ruling.
    One of my mentors used to say people think the judicial 
branch is so secretive. But, in fact, the judicial branch is 
the only branch that actually has to tell everyone. It actually 
has to write their opinions and explain why it is that they did 
what they did.
    And so I tried--I've tried in the nearly 10 years that I've 
been on the bench to make my rulings transparent, to explain 
all of the inputs that I have considered with respect to the 
case, to lay out the law as I see it in interpreting what 
Congress, for example, has done in--with respect to a 
particular case and what legal provisions that I think are 
relevant to the dispute, and then to explain my analysis--why 
am I granting this motion or denying this claim.
    And my hope is that it will help people to be confident in 
my reasoning, and even if they disagree with it they will 
understand what it is that I think, and I think that's 
important for public confidence in promoting the rule of law.
    Senator Leahy. Well, you know, you had talked about your 
clerking for Justice Breyer and how it opened up doors of 
opportunity. I remember so well our conversation in my office 
and the President Pro Tem's office talking before these 
hearings began.
    You told me what you thought it would mean to your parents 
and your family--your husband, your daughters, your parents--
who have been here throughout this and what it would have meant 
to your grandparents.
    You said you were the lucky first inheritor of Dr. King's 
civil rights legacy. I keep a daily journal. I wrote that down. 
I just--it means a lot.
    So let me do this sort of open-ended question. You've 
patiently answered our questions this week. I told you the 
reaction in Vermont, but disappointment when some of them were, 
obviously, political--I heard that from both Republicans and 
Democrats--because they're thinking it should be your legal 
thoughts in the Supreme Court.
    So I'd like to give you an opportunity to speak directly to 
the American people, including my little State of Vermont. Is 
there anything you want to convey to them about what kind of 
Supreme Court Justice you would be if and when you're 
confirmed?
    It's all yours, your Honor.
    Judge Jackson. Thank you, Senator.
    Well, first, let me just address my comments to you in your 
office, which is something that I've said in speeches because 
it speaks to who I am and what I value.
    My parents grew up in Florida under lawful segregation and 
what that means is that when they were coming through middle 
school and high school they were not allowed to go to school 
with white students.
    This is in the era before and right after the Brown v. The 
Board decision. There was lawful segregation in places in this 
country. And it was after that time that Dr. King made his 
famous comments that people mention, about having a dream where 
people can be judged by the--not by the color of their skin but 
by the content of their character.
    And I then was born in 1970, and the contrast between my 
reality growing up in Florida and my parents' reality growing 
up in Florida, like, night and day, in terms of the 
opportunities that were available to me that weren't available 
to Judge Motley, who is one of my role models in the law.
    And so what my being here, I think, is about, at some 
level, is about the progress that we've made in this country in 
a very short period of time, I would say. Seems like a long 
time, but one generation we've gone from the reality of my 
parents' upbringing to the reality of mine, and I do consider 
myself, having been born in 1970, to be the first generation to 
benefit from the civil rights movement, from the legacy of all 
of the work of so many people that went into changing the laws 
in this country so that people like me could have an 
opportunity to be sitting here before you today.
    What I would hope to bring to the Supreme Court is very 
similar to what 115 other Justices have brought, which is their 
life experiences, their perspectives, and mine include being a 
trial judge, being an appellate judge, being a public defender, 
being a member of the Sentencing Commission, in addition to my 
being a Black woman, a lucky inheritor of the civil rights 
dream.
    And in my capacity as a Justice, I would do what I've done 
for the past decade, which is to rule from a position of 
neutrality, to look carefully at the facts and the 
circumstances of every case without any agendas, without any 
attempt to push the law in one direction or the other, to look 
only at the facts and the circumstances, interpreting the law 
consistent with the Constitution and precedents, and to render 
rulings that I believe and that I hope that people would have 
confidence in.
    Senator Leahy. Thank you.
    And, Chair Durbin, I've had the opportunity to be here when 
the first Justice I got to vote on was John Paul Stevens, 
nominated by President Gerald Ford. Proud to vote for him.
    And it's a long arc, Judge Jackson, but I'm so proud of 
your answers and I appreciate it.
    Yield back.
    Chair Durbin. Thank you, Senator Leahy.
    Let's take a break for about 15 minutes.
    Judge Jackson. Thank you.
    Chair Durbin. Thank you very much, Judge.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. The questioning will resume.
    Senator Graham.
    Senator Graham. Thank you, Mr. Chairman. Good morning, 
Judge.
    Judge Jackson. Sorry. Good morning, Senator.
    Senator Graham. I want to comment on the last exchange and, 
Judge, this is not of your making so it's really not about you.
    But Representative Green, who's a fine man, came up and 
said he thought the exchange between you and Senator Leahy at 
the end about the arc of time and how far we've come as a 
nation was powerful.
    I agree, it was powerful. And I guess here's my point I'm 
trying to make to the American people and to my Democratic 
colleagues, I wish you had that same attitude when an African-
American conservative is appointed to high office in the 
judiciary.
    So what happened with Janice Rogers Brown? In 2003, she was 
an African-American nominee for the D.C. District Court. Fifty-
four years old, a little bit older than you but pretty close. 
She was the daughter and granddaughter of sharecroppers, a 
childhood in Alabama under Jim Crow. She was a single mother, a 
member of the California Supreme Court.
    Instead of celebrating how far we've come, my Democratic 
colleagues filibustered her ascension to the D.C. Circuit Court 
because it was well known on our side that we were very much 
considering her to be the first African-American woman on the 
Supreme Court.
    So rather than this wonderful exchange, which was 
wonderful, Representative Green, where were you and others when 
there was a wholesale assault on her nomination? Nowhere to be 
found.
    The filibuster was used for 2 years to stop her nomination, 
and we eventually did--the Gang of 14, of which I was a part--
so that she could make it through after 2 years of waiting.
    This is what the current President said when he was in the 
Senate--Joe Biden--asking about her, Janice Rogers Brown, being 
on the Supreme Court: ``I can assure you that would be a very, 
very, very difficult fight and she probably would be 
filibustered.''
    That's what he said about an African-American conservative 
nominee by President Bush who had served 5 years on the 
California Supreme Court.
    We're not going to live in America like that any longer. To 
my Democratic colleagues, if you're a person of color, a woman, 
supported by liberals it's pretty easy sailing. But if you're 
Miguel Estrada, Janice Rogers Brown, Amy Coney Barrett, on and 
on and on, your life gets turned upside down.
    You had nothing to do with that. I just make this 
observation that when you come up to me and talk about how 
moving the exchange was, I agree, and I just want to remind you 
there was somebody else of color--a woman of color--that was 
picked for the D.C. Circuit, one of the highest courts in the 
land, that did not meet the same fate and those days should be 
over.
    Do you believe illegal immigrants should be allowed to 
vote, Judge Jackson?
    Judge Jackson. Thank you, Senator.
    Under our laws, you have to be a citizen of the United 
States in order to vote.
    Senator Graham. So the answer would be, no?
    Judge Jackson. It's not consistent with our laws. So the 
answer is, no.
    Senator Graham. Okay. Why do they do that in New York?
    Judge Jackson. Senator, I'm not aware of the circumstances 
that you're----
    Senator Graham. Okay. All right. Well, that's a good 
answer. The answer is, no. Can an unborn child feel pain at 20 
weeks in the birthing process?
    Judge Jackson. Senator, I don't know.
    Senator Graham. Are you aware of the fact that anesthesia 
is provided to the unborn child at that time period if there's 
an operation to save the baby's life because they can, in fact, 
feel pain? Are you aware of that?
    Judge Jackson. I am not aware of that.
    Senator Graham. Well, that may come before you one day. So 
just keep an open mind. That's the only thing I ask you to do.
    You said just a bit ago that you apply the law and the 
facts and call them as you see them. Is that right?
    Judge Jackson. That is correct, Senator.
    Senator Graham. Okay. And you look at the statute as the 
way it's written and you try to apply it in its plain meaning. 
Is that correct?
    Judge Jackson. That is correct, Senator.
    Senator Graham. Have you heard of a case called Make the 
Road v. McAleenan?
    Judge Jackson. Make the Road New York? Yes.
    Senator Graham. Yes. Okay. Make the Road New York--who are 
they?
    Judge Jackson. Make the Road New York is a nonprofit that 
represents various individuals in the sort of immigration law 
field.
    Senator Graham. Right. They're a nonprofit advocacy group 
for immigration issues. Did you know they received large 
donations from the Arabella Network and from George Soros' Open 
Society Foundation Network?
    Judge Jackson. No.
    Senator Graham. Okay. Well, they did.
    Now, in that case, what was the issue?
    Judge Jackson. The issue in that case was a challenge to a 
change in administration policy concerning expedited removal, 
which is a policy that Congress enacted in order to expedite 
certain removals in the immigration system. Ordinarily, before 
expedited removal----
    Senator Graham. Asylum cases do not fall in this category, 
right?
    Judge Jackson. Well----
    Senator Graham. Trust me on that, because the statute says 
it doesn't.
    Judge Jackson. If a person who could otherwise be subject 
to expedited removal makes and has a credible fear of torture 
in their country they can be determined----
    Senator Graham. Mm-hmm. And can they make that claim. 
Right.
    Judge Jackson [continuing]. They can be determined----
    Senator Graham. Right.
    Judge Jackson [continuing]. To qualify for regular removal 
rather than expedited removal.
    Senator Graham. Right. So expedited removal is a creature 
of Congress, folks, and if you've been here 2 years or less the 
statute--the statute--I'm sorry, the statute----
    [Posters are displayed in the hearing room.]Senator Graham. 
The statute would allow the administration in office to have 
expedited removal, avoiding a lot of the hurdles that would 
exist otherwise for people here 2 years or less.
    So in the Obama, even Bush years, they did not look at it 
in terms of applying it to everybody. Some people coming by air 
got expedited removal. Others didn't. The Trump administration 
decided to use the authority given to it by Congress to remove 
all eligible cases 2 years or less under the expedited removal 
statute.
    Is that a fair summary?
    Judge Jackson. Well, Senator, I would say it differently.
    Senator Graham. Well, say it differently.
    Judge Jackson. All right. The statute that you've put up 
indicates that Congress is giving the Department--it says the 
Attorney General, but now it's the Department----
    Senator Graham. Right.
    Judge Jackson [continuing]. The ability to determine what 
category of aliens----
    Senator Graham. If you have 2 years or less.
    Judge Jackson. Yes. But, importantly, the authority was--it 
was not Congress saying 2 years or less. What Congress said is 
you, agency, have the authority to determine what category of 
persons between--who have been here between zero and 24 months 
could be----
    Senator Graham. Which is 2 years. Yes.
    Judge Jackson. No, but what--forgive me, Senator. I'm 
just--what I'm trying to explain is that the authority given to 
the agency was to determine what length of time----
    Senator Graham. They had discretion to make that----
    Judge Jackson [continuing]. What length of time. It was not 
the authority to deport everyone who's been here for 24 months. 
It was the authority to determine what length of time a person 
has to be here in order to be subjected to expedited removal.
    Senator Graham. Here's what the statute said: ``The 
Attorney General,'' which is actually the DHS Secretary, ``may 
apply clauses (i) and (ii) of this subparagraph to any or all 
aliens described in subclause(II) as designated by the Attorney 
General''--well, actually, DHS--``Such designation shall be in 
the sole and unreviewable discretion of the Attorney General 
and may be modified at any time.''
    Now, I've been in this business for quite a while. What the 
Trump administration did was to use the discretion given to it 
by statute in a way different than prior administrations.
    This advocacy group--the Arabella-supported advocacy 
group--tried to strike it down. You ruled for them. Here's what 
the D.C. Circuit Court said about your ruling: ``There could 
hardly be a more definitive expression of congressional intent 
to leave the decision about the scope of expanded removal 
within statuary bounds to the Secretary's independent 
judgment.''
    The forceful phrase ``sole and unreviewable discretion''--
by its exceptional terms--``such designation shall be in the 
sole and unreviewable discretion of the Attorney General and 
may be modified at any time''--to those of us in the law-
writing business, I don't know how you could tell a judge more 
clearly that the administration--the agency in question--has 
discretion to do certain things within the statute.
    So this is an example to me--and you may not agree--where 
the plain language of the statute was completely wiped out by 
you. You reached a conclusion because you disagreed with the 
Trump administration and the D.C. Circuit Court of Appeals 
said, as I've quoted just a minute ago, ``there could hardly be 
a more definitive expression of congressional intent to leave 
the decision about the scope of expedited removal within the 
statuary bounds to the Secretary's independent judgment.''
    That, to me, is Exhibit A of activism.
    Let's go back to the child pornography cases.
    Judge Jackson. Senator, would you allow me to----
    Senator Graham. Yes, please.
    Judge Jackson. Thank you.
    The statute and the circumstances that you reference are 
accurate insofar as that is what the statute says. It's not all 
of it. It doesn't describe the designation process that I was 
trying to articulate and it doesn't address the fact that 
Congress has another statute that is presumptively applied in 
agency cases to tell agencies how to exercise discretion.
    There's also D.C. Circuit caselaw that says that in 
addition to having that procedural statute be presumptive, even 
very clear designations of authority to an agency may still be 
subject to Congress'----
    Senator Graham. Judge----
    Judge Jackson [continuing]. Other directions regarding how 
to exercise the discretion. So----
    Senator Graham. Judge--right. That argument fell on deaf 
ears.
    Judge Jackson. Understood. That's our appellate process.
    Senator Graham. But, wait--I've got other things I want to 
talk about. You've given an explanation. But it didn't work. 
The D.C. Circuit Court said, ``there could hardly be a more 
definitive expression of congressional intent.'' This is good 
as it gets. There's no way to write a statute saying discretion 
lies in an agency. It's sole. It's nonreviewable.
    So you're not convincing me----
    Judge Jackson. With respect, Senator----
    Senator Graham [continuing]. That this was anything other 
than activism and we can talk about it all day long, but I 
agree with the D.C. Court. This, to me, is an example--Exhibit 
A--of a judge ignoring limitations placed in the law by 
Congress to get a result they wanted.
    Child pornography--I have no doubt that you find child 
pornography disgusting as the rest of America. You're a mother. 
You seem to be a very nice person.
    Are you aware of how many images are out there on the 
internet involving children in sexually compromising 
situations?
    Judge Jackson. Senator, I'm not aware of the numbers but 
I've seen the images in my role as a judge.
    Senator Graham. And they are disgusting, right? Well, let 
me tell you the numbers.
    In 2021, the National Center for Missing and Exploited 
Children cyber tip line received 29.3 million reports of 
apparent child sexual exploitation containing 85 million 
images, videos, and other files. That's in 2021. It's up. In 
2019 it was less. So there's an epidemic of this on the 
internet, that if you go out on the internet there are millions 
of pictures of kids being abused.
    When it comes to sentencing child pornography possession 
cases, do you routinely discount the fact that a computer was 
used?
    Judge Jackson. Thank you, Senator, for allowing me to 
address this concern.
    The guidelines related to child pornography were drafted at 
a time in which a computer was not used for the majority, if 
not almost all, of these kinds of horrible crimes. The 
guidelines have enhancements in them----
    Senator Graham. In two areas that you said you disagree. 
What are those two areas?
    Judge Jackson. At the time that the guidelines were 
drafted, it was an aggravating factor--a substantial 
aggravating factor--to use a computer in order to distribute 
and disseminate the images because the ordinary crime was not 
committed by computer. So the baseline----
    Senator Graham. Would you now agree with me that computers 
are sort of the venue of choice for child pornographer people?
    Judge Jackson. Yes, Senator.
    Senator Graham. Okay. So here's my point. If you believe, 
as I do, the computer has created a bigger demand, there are 
more photos out there because of the internet, more websites 
exposing this garbage, wouldn't you want to deter people from 
going down that road?
    Judge Jackson. Senator, this crime is among the most 
difficult, the most----
    Senator Graham. No. Answer my question. Wouldn't you want 
to deter people from going down the road of using the computer 
that allows these people to have access to millions of photos 
because of the technology? I want those people deterred.
    Judge Jackson. Senator----
    Senator Graham. So if you're listening to my voice today 
and you're on a computer looking at child pornography and you 
get caught, I hope your sentence is enhanced because the 
computer and the internet is feeding the beast here, that all 
these images out there are going to be more over time because 
people use computers.
    Now, didn't you also say that the number of images should 
not be considered as a sentence enhancement?
    Judge Jackson. Senator, with respect to the computer, one 
of the most effective deterrents is one that I imposed in every 
case and that judges across the country impose in every case, 
which is substantial, substantial supervision. Any of these 
defendants----
    Senator Graham. You're--wait a minute, Judge. Do you think 
it is a bigger deterrent to take somebody who's on a computer 
looking at sexual images of children in the most disgusting way 
is to supervise their computer habits versus putting them in 
jail?
    Judge Jackson. No, Senator, I didn't say versus.
    Senator Graham. That's exactly what you said. I think the 
best way to deter people from getting on a computer and viewing 
thousands and hundreds and, over time, maybe millions, the 
population of the whole--of children being exploited and abused 
every time somebody clicks on is to put their ass in jail, not 
supervise their computer usage.
    Judge Jackson. Senator, I wasn't talking about versus----
    Senator Graham. You just said you thought it was a 
deterrent to supervise them. I don't think it's a deterrent. I 
think the deterrent is putting them in jail.
    Chair Durbin. Senator, would you let her respond?
    Senator Graham. Does sentencing have a deterrent component?
    Chair Durbin. Senator, would you let her respond?
    Senator Graham. Yes. Does sentencing have a deterrent 
component?
    Judge Jackson. Yes, Senator. Deterrence is one of the 
purposes of punishment and Congress has directed courts to 
consider various means of achieving deterrence. One of them, as 
you've said, is incarceration. Another, as I tried to mention, 
was substantial periods of supervision once the person----
    Senator Graham. So if I could may ask you, in your view, 
it's more of a deterrent to have somebody substantially 
supervised in terms of their computer use who's looking at 
child pornography than it is to put them in jail?
    Judge Jackson. Senator, I'm not saying it's more or less.
    Senator Graham. That's exactly what you're saying.
    Judge Jackson. But what I'd like to point out is that if 
we're going to--let me say it this way. Congress has authorized 
courts to use a number of different means to achieve the 
purposes of punishment and the----
    Senator Graham. And one of them is an enhanced punishment 
by using a computer.
    Judge Jackson. The enhancement with respect to using a 
computer relates to the penalty in terms of incarceration----
    Senator Graham. And you--and you would choose not to apply 
that in these cases. You've said that. I'll read you the quote. 
But you've decided not apply the use of computers in 
enhancement. You've also said you're not going to hold the 
number of images that the person has looked at as a sentencing 
enhancement factor. Is that true?
    Judge Jackson. No, Senator, it's not the number of images 
that the person has looked at because we don't have that 
information.
    Senator Graham. Well----
    Judge Jackson. It is the number of images that they've 
either received or distributed that are----
    Senator Graham. Well, you don't--we don't know if they 
looked at them, but you're not going to hold it against them 
that they received 10,000 images versus 100?
    Judge Jackson. That's not what I've said, Senator.
    Senator Graham. Well, here's what you said. ``I have 
decided to apply my general policy disagreement with respect to 
those enhancements, at least, that is, the computers and the 
number of images.''
    Folks, what she is saying--the reason she's always below 
the recommendation, I think, is because she doesn't use the 
enhancements available to her. She takes them off the table.
    And I think that's a big mistake, Judge. I think that every 
Federal judge out there should make it harder for somebody to 
go on a computer and view this filth, that if you use that 
venue, which is the venue of choice for all these child 
pornography cases, that you use it against them. I think the 
more you download--like drugs, the more you have the more you 
should go to jail.
    You've made a conscious decision to disregard those two 
enhancement sentencing factors and I think that is a wrong way 
to go in terms of deterrent. To me, putting somebody in jail 
for using a computer is more of a deterrent than supervising 
their activity of watching the computer.
    That's just a difference that we have. I know I'm out of 
time and, listen, you've lived an incredible life. But here's 
one thing that won't happen to you as we wrap this up.
    How would you feel that if I'd had a letter from somebody 
accusing you of something, a crime or misconduct, for weeks and 
I give it to Senator Durbin just before this hearing is over 
and not allow you to comment on the accusation? How would you 
feel about that?
    Judge Jackson. Senator, I'm not sure. I don't understand 
the context of the question.
    Senator Graham. Well, let me--did you watch the Kavanaugh 
hearings?
    Judge Jackson. No, sir.
    Senator Graham. Are you familiar with what happened in the 
Kavanaugh hearings?
    Judge Jackson. Generally.
    Chair Durbin. Senator, your time is----
    Senator Graham. Well, please, Mr. Chairman.
    So to be honest--so a minute and 47 seconds--she 
filibustered every question I had and she has a right to give 
an answer. But I'm trying to make a point in 20 minutes.
    You were here for Kavanaugh. If she's confused about what 
happened, some people on the other side had an accusation 
against Judge Kavanaugh that during high school he sexually 
assaulted somebody, and the rest is history. That was known to 
the people on the other side and never revealed during the 
meetings they had with Judge Kavanaugh. It was, literally, 
ambushed. He was ambushed.
    How would you feel if we did that to you?
    Judge Jackson. 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----
    Senator Graham. But my question is, what if, at during our 
15-minutes exchange--it was very pleasant, and you're a very 
nice person. You have a lot to be proud of. I would never do 
that to you.
    If I had some information that's sketchy at best that 
somehow you've done something wrong, I promise you just from 
human decency I would share it with you. I would not disclose 
it at the last minute of the last day of the hearing, and I 
have already given it to a newspaper so the whole country can 
read about it before you ever said a word.
    Chair Durbin. Senator, she's had nothing to do with the 
Kavanaugh hearing.
    Senator Graham. No, but I'm asking her about how she may 
feel----
    Chair Durbin. You won't even let her finish her response.
    Senator Graham [continuing]. About what y'all did.
    Senator Leahy. Can we have order here?
    Chair Durbin. Senator, your time has expired, and I'm going 
to give her an opportunity to finally complete an answer.
    Judge Jackson. So if I could----
    Senator Graham. Just answer the question.
    Judge Jackson. Senator, I don't have any comment on what 
procedures took place in this body regarding Justice Kavanaugh.
    Senator Graham. What did you think about the Kavanaugh 
hearing?
    Chair Durbin. Would you let her finish?
    Judge Jackson. What I'd like to answer is your points about 
my sentencings in child pornography cases.
    The point of the guidelines is to assist judges in 
determining what punishment to provide in cases, and they are 
horrible cases but the idea is that between the range of 
punishment that Congress has prescribed judges are supposed to 
be providing proportional punishment based on what a person has 
done.
    The sentencing scheme doesn't place everybody at the same 
level. The point of judging and the guidelines is to look at 
what has happened in a case, compare defendants to each other 
in terms of what they've done, and give proportional penalties 
based----
    Senator Graham. Mr. Chairman, this is--she has said, Mr. 
Chairman, she does not use sentence enhancements in the area of 
somebody using the computer for everybody.
    Judge Jackson. Can I explain why, sir?
    Chair Durbin. I'm going to give the witness an opportunity 
to respond to you, Senator.
    Senator Graham. Finally. Why?
    Judge Jackson. At the time that the guidelines were created 
for child pornography, this crime was primarily being committed 
by people who were, literally, mailing one, two, five, 10, 100 
photos at a time.
    Senator Graham. How is it being committed now?
    Chair Durbin. Would she--please, let her complete her 
answer?
    Senator Graham. Go ahead. Go ahead.
    Judge Jackson. As a result, the commission determined in 
the guidelines that it was a substantial aggravating factor if 
the facts of the case demonstrated that someone had been 
distributing hundreds of images because what that meant was 
over this long--maybe it was a long period of time--they had 
collected one photo at a time, they had amassed it, they had, 
potentially, mailed one at a time and that showed really 
aggravated terrible conduct.
    I'm not saying as a baseline it's not terrible. It's all 
terrible. But what we're doing is we're differentiating among 
defendants.
    So in a world in which the mail is used for the purpose of 
distribution, it really matters whether the person has 
distributed one or five or a thousand. And so the guideline 
says, you know what, we are going to treat a person who's 
distributed a thousand a lot worse because that shows that this 
person is really engaged in this really horrible behavior.
    In comes the internet. On the internet, with one click you 
can receive, you can distribute, tens of thousands. You can be 
doing this for 15 minutes and all of a sudden you are looking 
at 30, 40, 50 years in prison----
    Senator Graham. Good. Good. Absolutely good. I hope you 
are. Good.
    Judge Jackson. I understand, Senator. But what I'm trying 
to do----
    Chair Durbin. Allow her to finish, please.
    Senator Graham. I hope you go to jail for 50 years if 
you're on the internet trolling for images of children and 
sexual exploitation.
    So you don't think that's a bad thing. I think that's a 
horrible thing.
    Chair Durbin. That's not what the witness said and she 
should be allowed to answer this question once and for all, 
Senator.
    Judge Jackson. Senator, all I'm trying to explain is that 
our sentencing system, the system that Congress has created, 
the system that the Sentencing Commission is the steward of, is 
a rational one.
    It's a system that is designed to help judges do justice in 
these terrible circumstances by eliminating unwarranted 
disparities, by ensuring that the most serious defendants get 
the longest periods of time.
    And when modes of commission of the crime change such that 
in 2 seconds someone can receive or distribute thousands of 
images, that's no longer a--and this is what the commission 
found in their studies--an indicator of a person who, relative 
to other people, has committed this crime in a more aggravated 
way----
    Senator Graham. Well, unlike----
    Judge Jackson [continuing]. And so what we're trying to do 
is be rational in our dealing with some of the most horrible 
kinds of behavior. This is what our justice system is about. 
It's about judges making determinations in meting out penalties 
to people who have done terrible things.
    Senator Graham. It is not rational to take the venue of 
choice of child pornographers--the computer that have 85 
million images on it--and not consider that feeding the beast.
    We're trying to get people to stop this crap. So when you 
troll on the internet and you pull down thousands of images of 
children from the internet, I want you to stop that. I want 
people to go to jail who do that, because you're feeding the 
beast. We have a bill here, the EARN IT Act that would allow 
the victims who are on the internet over and over again to sue 
the media companies that provide these images.
    We have fundamental differences of how you deter crime. I 
think the best way you deter crime when it comes to child 
pornography is you lower the boom on anybody who goes on the 
internet and pulls out these images for their pleasure.
    Judge Jackson. Senator, every person in all of these charts 
and documents I sent to jail because I know how serious this 
crime is. Every person I discussed the harm of these terrible, 
terrible images to the victims who are portrayed in them.
    I talked about what this crime does to the children who are 
being abused in these photos and on the other side of their 
terms of imprisonment I ensured that they were facing lengthy 
periods of supervision and restrictions on their computer use 
so they could not do this sort of thing again. That's what 
Congress has required of judges and that's what I did in every 
case.
    Senator Graham. You always were under the recommendation of 
the prosecutor, many times the parole people, and to be honest 
with you, Judge, a 32-year-old man who sent an image of his own 
10-year-old daughter you substantially reduced the--not only 
the guidelines, but the recommendation.
    And all I can say is that your view of how to deter child 
pornography is not my view. I think you're doing it wrong and 
every judge who does what you're doing is making it easier for 
the children to be exploited.
    If you're on a computer right now looking at a kid in a 
sexually compromising situation and you get caught, I hope 
nobody gives you a break because you used the computer.
    Chair Durbin. The conduct that's been described is 
reprehensible and I think everyone in this room agrees, and the 
fact of the matter is that I'm co-sponsor of your bill, the 
EARN IT Act, and I believe that we should be doing our job 
here.
    But part of our job we have failed in responding to the 
changing circumstances that face this crime. What has it been, 
15 or 16 years? She is currently not an outlier in sentencing. 
Seventy percent of the Federal judges face the same dilemma and 
wonder why Congress has failed to act and when it will act.
    Senator Graham. This is our fault?
    Chair Durbin. Partially it is, Senator. To be honest with 
you, it is. We have to upgrade these guidelines and decide 
whether we're going to stick with the Supreme Court decision 
that they're not mandatory.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I would like to compliment the witness. You've been 
answering, I think, close to 15 hours worth of questions and I 
know how difficult this is and hard it is. But I just want you 
to say and this Senator--know that in this Senator's eyes 
you've handled it very, very well.
    Judge Jackson. Thank you, Senator.
    Senator Feinstein. So thank you, and I'll move on to my 
questions.
    Congress has recognized how important it is for crime 
victims to participate in the legal process and one example is 
the Crime Victims Rights Act, which I authored with Senator Jon 
Kyl in 2004.
    That law provides certain rights for victims at critical 
stages of the legal process--the right to be notified, to be 
present, to be heard, among others--and I understand that in 
your 8 years as a district court judge you would carefully 
consider victim impact statements when imposing criminal 
sentences.
    Could you tell us a little bit about this and how you 
considered crime victims in making your sentencing decisions as 
a judge?
    Judge Jackson. Thank you, Senator.
    As you say, the law provides for victims to have an 
opportunity to address the judge, to address the court, to 
explain the harms that happen as a result of criminal behavior, 
and in the time that I was a trial judge I found it to be a 
very important part of our criminal justice process because my 
sentencings were about handing down consequences for the 
behavior that defendants had engaged in and making sure that 
the defendants who received those consequences understood that 
they were getting those consequences because of the harm that 
they had caused.
    And so what I felt was important for promoting the purposes 
of punishment, which is what Congress has required of judges to 
do, is to ensure that the harms were made clear to the 
defendant in every case.
    So I had, for example, a case involving robbery. There were 
two--it was a single defendant who committed two robberies, one 
in April, and one in September, of the same small pharmacy in 
Dupont Circle, which is not far from here.
    It's a small, independent pharmacy selling pharmaceuticals 
and this person decided that he was going to rob the pharmacy 
of their oxycodone and other kinds of prescription drugs for 
sale.
    That's a sort of standard scenario that we see in the 
Federal system. But what was so particularly egregious in this 
case is that this defendant was so bold in his robberies, he 
came in in April with a gun. He held the employees hostage, 
essentially, forcing them to open the safe with the drugs in it 
at gunpoint, stole the drugs, not masked, not hiding his 
identity--and this is pre-COVID so we're not talking about 
having to have a mask. He was a robber, plain and simple, with 
no fear of people identifying him.
    And then in the period between April and September he would 
come back to the pharmacy. He would loiter outside on the 
street. This is according to the victims. They would see him 
looking in the window. Once or twice, he came inside, looking 
like he was going to buy something and staring them down and 
they knew who he was. And they called the police and they 
weren't able to, you know, apprehend him because he hadn't 
really done anything at that point, and the people who worked 
in the pharmacy were terrified and they were terrified by that 
behavior, the menacing nature of it.
    By the time we get to September, he actually comes in and 
they think maybe this is another time when he's just loitering. 
But no, he pulls out a gun. He hops over the counter. He 
assaults one of the people who were working there and steals 
the drugs again, and that time they were able to call the 
police and enough time for them to come and apprehend him.
    So at his trial--excuse me, he did not try. He didn't go to 
trial.
    Senator Feinstein. You're the judge.
    Judge Jackson. I'm the judge. He pled guilty to this 
behavior, which was well documented. There was no defense that 
it wasn't him.
    But the guidelines in the case and the statutes that 
applied said because he used the gun he was supposed to get 
something like 7 years. And I used the victim statements to, 
first of all, explain to him how he had terrorized the people.
    Their statements said--one woman said, I can't work at the 
pharmacy anymore because I am so fearful that this guy will 
come back. It's changed my whole life.
    It was a whole set of really horrible circumstances that I 
read to him at his sentencing so that he can understand what 
he'd actually done and then I sentenced him above the 
requirement of the law because I thought it was warranted to 
make clear to him that this was a terrible, terrible thing that 
he had done to these people.
    So the victim statements were really important because they 
explained to me and to him the consequences of his behavior but 
beyond just how many drugs he stole or the fact that he used a 
gun. They were the real-life circumstances that resulted from 
his behavior and it was important for him to understand that.
    Senator Feinstein. I've listened to most all of this 
testimony, which, I think, now you've gone on for over 15 
hours, and I just want to say that I think you have a stamina 
and a very good brain, and a real sense of empathy has been 
communicated to me in these 15 hours and I want you to know 
that.
    One of the things that I'm concerned about is that the 
public perception of the Supreme Court has turned increasingly 
negative over the last few years. A recent Pew Research survey 
found that 44 percent of adults have an unfavorable view of the 
Supreme Court. Less than 3 years ago, that number was 30 
percent of adults that held that view.
    And I understand that as a judge on the D.C. bench you have 
frequently accepted invitations to speak at public events in 
the hopes of giving the public more information about the 
judicial process and more confidence in the outcome.
    So here's the question. Why do you think there's been a 
decline in the public's perception of the Court, and if you are 
confirmed how would you strive to improve the public's 
confidence in the Court and its decisions?
    Judge Jackson. Thank you, Senator.
    I think that public confidence in the Court is very 
important. It's crucial to the rule of law that the public 
believe in the judicial process and, therefore, choose to 
accept the rulings of the courts--not just the Supreme Court 
but all of the courts. It's part of the way our process works.
    And I think that I have taken that to mean in terms of my 
role as a judge that outreach to the public to explain what it 
is that we do, to inspire, hopefully, law school students and 
high school students, young lawyers in law firms and elsewhere, 
to think about careers in the judicial branch or think about 
careers in law as one of the ways that I have attempted to try 
to shore up public confidence.
    And if I'm confirmed, I would plan to continue as best as I 
can to do that kind of thing because, as you say, it's very 
important for the public to understand the work of the Court 
and to follow its pronouncements concerning the law.
    Senator Feinstein. Earlier, you--when you and I spoke in my 
office, we discussed some of the people who have mentored you 
throughout your career and one of those was Judge Patti Saris.
    You served as a law clerk for her on the Massachusetts 
District Court, I believe, early in your career and you've 
spoken publicly about the role she has played as a mentor in 
your legal career. You have described her as, quote, ``a 
consensus builder, a good listener, a careful speaker, the 
essence of judicial temperament,'' end quote.
    So would you share with all of the Members here more about 
how Judge Saris' approach to judging and her mentorship have 
shaped you and your career? If you'd give some of the 
specifics----
    Judge Jackson. Yes.
    Senator Feinstein [continuing]. I think everybody would be 
interested.
    Judge Jackson. Thank you, Senator.
    As I reflect on her mentorship and also the mentorship of 
my other two judges, it's very interesting because I think I 
learned maybe different things from each of them. Judge Saris, 
who was my first clerkship--you're correct, she serves on the 
District Court of Massachusetts, which is the trial level 
court--I learned how to look at the facts in a case from Judge 
Saris.
    That's part of what the trial court level does. We, as 
trial judges, develop the record in a case, take testimony, 
have trials, and she is extraordinary at developing a record 
and making sure that all of the relevant facts are adduced from 
the witnesses and considered in the context of her trial and 
record responsibilities.
    And so that, I think, is something that I learned from her 
in terms of the law, and her warmth and care for her law clerks 
meant that she has been a lifelong mentor to me. And, 
ironically, she became the chair of the Sentencing Commission 
after I had been on the Sentencing Commission. So we worked 
together later in my career.
    So I often use that story to tell young people, you know, 
you never know what's going to happen.
    [Laughter.]
    Judge Jackson. Someone who you worked for at some point 
might be your colleague down the line.
    Senator Feinstein. Well, let me just one more. You've 
handled a large number of cases during your career, both as an 
advocate and a judge. As an advocate, you've worked on a very 
wide variety of cases, from work for corporate clients during 
your time in private practice to your work for low income 
clients during your service as a Federal public defender, and 
during your 9 years as a Federal judge you've written nearly 
600 opinions. I think that's really quite a sterling record, 
and I imagine that some of the cases have really stuck with 
you.
    And so I would like you, if you can, to talk a little bit 
about some of the cases, maybe one or two, that you have had 
that have made a deep impression and have really enabled you to 
progress as you have.
    Judge Jackson. Thank you, Senator.
    Well, as you say, I have handled a lot of cases in my time 
nearly a decade on the bench and you learn something in almost 
every case, in some respect, if you're doing your job right and 
you're looking into all of the issues.
    I think there might be--I'd mentioned one from sort of a 
few years into my service as a trial judge. I handled the case, 
Yah Kai v. Napper, and the case involved trademark 
infringement.
    And you would ordinarily think that trademark infringement 
charges are dry and technical, and what I learned from this 
case is that even areas of the law that you might think apply 
only to businesses impact real people at times.
    So this case involved a small community, a cultural 
community, of people who believe in vegan lifestyles. They call 
themselves the African Hebrew Israelites but it's not a 
religious community. It's a cultural community around healthy 
living.
    And they have created a restaurant and a series of 
restaurants here in the Washington, DC, area with menus 
involving really, I'm told, terrific vegan foods and in this 
community there was a member who was the one who created the 
recipes and who was responsible for the restaurant. The whole 
community had other aspects to it.
    He ended up falling out with the community and the dispute 
involved his actions, essentially, taking over the restaurant 
and reopening it by himself using the same name.
    The restaurant was called Everlasting Life, which was an 
important phrase for this community and he, essentially, 
ejected the other members because he was the lease holder or he 
had signed the lease on behalf of the community, and he kicked 
them out for a day and then he reopened the restaurant using 
the same name.
    And so the question was under the Lanham Act, which is the 
statute for trademark violations. The question is whether there 
is a potential for confusion in that sort of circumstance.
    But ordinarily--I see Senator Coons nodding--ordinarily, 
when you have a trademark infringement you're talking about two 
different businesses who have very similar products and the 
question is, you know, are they similar enough to cause 
confusion because the idea of the law is that people should be 
able to have products that are identified with them and you 
shouldn't be confused.
    And in this case, we had a bench trial about it but it was 
pretty clear--I was the fact finder as the judge--it was pretty 
clear that when you open the same business with the same name 
using the same recipes and food that you have created this kind 
of problem that is a trademark violation.
    But what was so interesting to me about the case, in 
addition to the fact that I got to be the fact finder--it was a 
bench trial--was that we had witnesses come in who testified 
about the circumstances.
    This was a very small community and they all knew each 
other, and the testimony about what it meant to them to have 
one of their members ejected in this way and then have him turn 
on them was very, very moving in the courtroom.
    So even though we were talking about this kind of arcane 
area of the law, it was real circumstances that were happening.
    Senator Feinstein. Well, stop for a minute----
    Judge Jackson. Yes.
    Senator Feinstein [continuing]. Because I think you're a 
very important addition to the Court and what I'm trying to 
fathom out from the hearing is what kind of judge will she be--
how will we look at her in five or 6 years.
    And so what I really want to ascertain is what kind of a 
judge you will be. What will be the principles you hold dear 
and how will you function in this capacity?
    If you could just answer that one question. I've been 
waiting for it----
    Judge Jackson. Yes.
    Senator Feinstein [continuing]. For about 15 hours so I'd 
appreciate it. Thank you.
    Judge Jackson. Well, I would hope to be the kind of judge 
that I have been during this last decade. I have been the kind 
of judge who understands that it's my responsibility to rule 
neutrally, to not have any agenda when I'm looking at a case.
    I've been the kind of judge who understands that facts 
matter, facts like the ones that I was just describing, and 
that it's important for a judge to take into account and be 
able to understand the arguments of all of the different 
parties and participants.
    And I've been the kind of judge who takes my responsibility 
to not be a policymaker, to try to understand and ascertain the 
will of Congress if it's a statute or to hew to my own--I've 
been saying stay in my lane--to not exert my authority beyond 
what the Constitution requires when I'm interpreting and 
applying the law.
    I think I've been the kind of judge who lives up to the 
oath in terms of being fair and impartial, ruling without fear 
or favor, and ruling consistent with Article III.
    Senator Feinstein. Thank you. Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Feinstein.
    Senator Cornyn.
    Senator Cornyn. Good afternoon, Judge. I understand I'm the 
last one maybe before lunch. So if your blood sugar is getting 
a little low, you can think about having a little break.
    But just because the Chairman keeps bringing this topic up, 
let me just ask you one question. When you accuse somebody of a 
crime, are you calling them a criminal?
    Judge Jackson. Oh, Senator, I haven't accused anybody of a 
crime.
    Senator Cornyn. That's not my question. When--in common 
understanding and in plain English, if you accuse someone of a 
crime, are you accusing them of being a criminal?
    Judge Jackson. I--it depends on the context. It depends on 
what else you say about them. It depends on the circumstances.
    Senator Cornyn. It depends on the circumstances?
    Judge Jackson. Yes.
    Senator Cornyn. So you put this in the same category as 
defining what a biological woman is?
    Judge Jackson. No, I'm just----
    Senator Cornyn. You're really not sure.
    Judge Jackson. I didn't say I wasn't sure. I said it depend 
on the circumstances.
    Senator Cornyn. So you are sure?
    Judge Jackson. No. I said it depends on the circumstances 
that--that you're positing as to whether or not you are calling 
someone a criminal.
    Senator Cornyn. I just don't think that's credible, Judge.
    Let me ask you another question. You talk about the public 
confidence in the courts, in our institutions, which I agree 
are very, very important that the public has confidence in our 
judiciary. Would you agree with me that to the extent that 
people perceive that judges--unelected, lifetime-tenured 
judges--are making policy pronouncements or political decisions 
that it undermines public confidence?
    Judge Jackson. I do.
    Senator Cornyn. Thank you.
    Yesterday, we talked a little bit about precedent, and I 
know Senator Feinstein, as she does in these hearings, talked 
about super precedent and, in particular, Roe v. Wade. And I 
want to talk a little bit about that, but first, let me just 
ask you. Do you think there's any good reason for the Supreme 
Court not to overrule a previous decision when they've 
concluded that that decision was wrong?
    Judge Jackson. Thank you, Senator.
    Again, it's hard for me to answer that question in the 
abstract. What I'll say is that the Supreme Court has laid out 
factors beyond just the precedent being wrong as a reason to 
overturn it.
    Senator Cornyn. Well, we talked a little bit about this 
yesterday. The Supreme Court revisited the issue of separate, 
but equal, which was the law, the constitutional interpretation 
of the Supreme Court under Plessy v. Ferguson, and overruled 
that precedent----
    Judge Jackson. Yes.
    Senator Cornyn [continuing]. Because it concluded it was 
wrong, right?
    Judge Jackson. I haven't looked carefully at whether all of 
the different factors that the Supreme Court now uses to 
overturn were discussed in the opinion. But now the Supreme 
Court's precedent is to overturn on the basis of a number of 
different factors and not just whether or not it's wrong.
    Senator Cornyn. So are you suggesting that the Supreme 
Court could not or would not overrule a precedent that it 
determined was wrongly decided?
    Judge Jackson. No. I'm suggesting that the Supreme Court's 
caselaw indicates that it looks at multiple factors----
    Senator Cornyn. No, I understand. You go through the stare 
decisis analysis, right?
    Judge Jackson. Yes. Yes.
    Senator Cornyn. But if it's wrong, that's one of the 
factors that you consider, right?
    Judge Jackson. Yes. But it's not the only one.
    Senator Cornyn. So are you suggesting that there may be 
circumstances under which the Court determines its previous 
decision is wrong, but it will not overrule it?
    Judge Jackson. The fact that there are multiple factors 
indicates that the Court looks at more than whether or not it's 
wrong.
    Senator Cornyn. Okay. So the fact--so you would say, if I'm 
interpreting you correctly, that if the Court concludes its 
previous decision is wrong, it won't necessarily overrule that. 
It applies a multipoint analysis.
    Judge Jackson. Yes. I think that's accurate.
    Senator Cornyn. Okay. Back when Roe v. Wade was decided in 
1973, generally speaking, the Court said that the States may 
not limit access to abortion pre-viability. But post-viability, 
there could be some restriction on the right to abortion. Is 
that generally the----
    Judge Jackson. As a general matter, yes.
    Senator Cornyn. Okay. Thank you. Okay.
    Well, and then I think it's since 1973, the question of 
viability has risen again, what that actually means, because 
now viability was around 28 weeks. That is the fetus could live 
outside the womb. But today, because of advances in medical 
science, the fetus can live outside the womb after about 23 
weeks.
    Is that your understanding?
    Judge Jackson. Senator, I haven't studied this. So I don't 
know the--a number of weeks in the way that you're saying.
    Senator Cornyn. Okay. Well, let's talk a little bit about 
viability, the line that was drawn for pre-viability and post-
viability analysis by the Court. What does viability mean when 
it comes to an unborn child, in your understanding?
    Judge Jackson. Senator, I hesitate to speculate. I don't--I 
know that it is a point in time that the Court has identified 
in terms of when the standards that apply to regulation of the 
right.
    Senator Cornyn. Justice Brennan, at a later point in his 
career on the Supreme Court, admitted that the viability line 
was an arbitrary line. Do you agree with--agree with him?
    Judge Jackson. Senator, I'm not able to comment on 
viability. There is a case pending in the Supreme Court right 
now concerning the issues----
    Senator Cornyn. I'm asking you about previous decisions, 
but I hear you. No one suggests that a 20-week-old fetus can 
live independently outside the mother's womb, do they?
    Judge Jackson. I don't know.
    Senator Cornyn. I mean, you need--the child will need to be 
fed or sheltered and all the other essentials to sustain human 
life. So there's no suggestion that after 20 weeks that a child 
can live independently. Correct?
    Judge Jackson. Senator, I'm not a biologist. I haven't 
studied this. I don't know.
    Senator Cornyn. You don't know whether an unborn child 
could live outside the womb at 20 weeks gestation?
    Judge Jackson. What I know is that the Supreme Court has 
tests and standards that it's applied when it evaluates 
regulation of the right of a woman to terminate their 
pregnancy. They have a--the Court has announced that there is a 
right to terminate up to the point of viability, subject to the 
framework in Roe and Casey, and there is a pending case right 
now that is----
    Senator Cornyn. Right.
    Judge Jackson [continuing]. Addressing these issues.
    Senator Cornyn. The Constitution doesn't mention the word 
``abortion.'' Correct?
    Judge Jackson. That's correct.
    Senator Cornyn. Just like it doesn't mention the word 
``marriage.'' Correct?
    Judge Jackson. That is correct.
    Senator Cornyn. And so, as you and I discussed, perhaps ad 
nauseam yesterday when we were talking about substantive due 
process, this is one of those unenumerated rights that the 
Court has created--court-made doctrine or law--and creating a 
constitutional right even though it's not explicitly mentioned 
in the Constitution itself. Correct?
    Judge Jackson. The Court has interpreted the Due Process 
Clause of the Fourteenth Amendment to include----
    Senator Cornyn. Right. We talked about substantive due 
process yesterday, and that's--that's what this is, right? The 
Supreme Court cases that deal with the right of abortion is a 
result of substantive due process analysis like you and I 
talked about yesterday?
    Judge Jackson. Yes.
    Senator Cornyn. Okay. In the--you'll remember when you were 
confirmed for the court of appeals, in that process there was--
we had a hearing, and then we sent you questions for the 
record, what we call QFRs around here.
    Judge Jackson. Yes.
    Senator Cornyn. And one of those, question number 10, was 
``Does the Constitution protect rights that are not expressly 
enumerated in the Constitution? ''
    As part of your answer, you said--you mentioned Roe v. Wade 
and Planned Parenthood v. Casey, and you said this--and I'll 
quote. ``They articulate a limited right to terminate a 
pregnancy.''
    What is the limitation that you understand that was 
pronounced in Roe v. Wade and Casey when it comes to a right to 
terminate an abortion? What are the limitations under current 
law?
    Judge Jackson. Under current law, as I understand it, there 
are limitations insofar as there can be regulation of that 
right pre-viability, unless the regulation imposes an undue 
burden on the exercise of the right. And there can be 
regulation after viability as long as there is exception for 
the health--the health and I think maybe life of the mother. So 
it's the limitations are about whether and to what extent the 
Government can regulate the right.
    Senator Cornyn. Is it your understanding under the current 
precedent of the Supreme Court that there is a right to 
abortion up to and including the time of delivery of the child?
    Judge Jackson. Senator, I don't know, actually. I mean, the 
Supreme Court in every case is looking at individual 
regulations of the Government related to--related to individual 
rights. And I am not aware of the Court having made a 
pronouncement about whether or not regulation can extend all 
the way up until birth. I'm just not aware of that.
    And it's because the Court is looking at individual cases 
and making its rulings in the context of individual cases and 
not making sort of pronouncements in general.
    Senator Cornyn. So you are suggesting that in some 
individual case, the right to abortion could extend through the 
entire pregnancy up until the time the child is delivered?
    Judge Jackson. No, Senator. I'm suggesting that I'm not 
aware of any case that's handled the issue.
    Senator Cornyn. You told us that you think that you believe 
Roe v. Wade and Casey are precedents, and we talked a little 
bit about some of the questions about whether it's a super 
precedent and the like. Are you familiar with the Supreme 
Court's decision in the Heller case?
    Judge Jackson. I am.
    Senator Cornyn. And that was a decision by the United 
States Supreme Court that recognized the individual right to 
keep and bear arms under the Second Amendment. Correct?
    Judge Jackson. Yes.
    Senator Cornyn. Is that a precedent of the Court?
    Judge Jackson. It is.
    Senator Cornyn. And you would respect that precedent?
    Judge Jackson. Yes, Senator. All precedents of the Supreme 
Court have to be respected.
    Senator Cornyn. Is it as--is it equivalent in terms of its 
precedence to Roe v. Wade, or would you evaluate it 
differently?
    Judge Jackson. I'm not aware of any ranking or grading of 
precedents. All precedents of the Supreme Court are entitled to 
respect on an equal basis.
    Senator Cornyn. I agree with you. That's why it kind of 
blows my mind when people talk about super precedents, as if 
somehow one precedent was different in terms of its 
significance or priority under the Constitution than others.
    In the short period of time I have remaining, let me just 
revisit with you some of the questions we talked about 
yesterday with regard to free exercise of religion. And, of 
course, that's recognized explicitly under the United States 
Constitution, the First Amendment. Correct?
    Judge Jackson. Yes.
    Senator Cornyn. Are you familiar with the cases that had 
been litigated before the Supreme Court of the United States 
involving the Little Sisters of the Poor with regard to the 
Affordable Care Act's mandate on contraception coverage?
    Judge Jackson. Yes.
    Senator Cornyn. Now the Little Sisters of the Poor are a 
benevolent group of nuns. I think there are about 300 of them 
that take care of elderly and infirm individuals. And, of 
course, as a matter of their religious beliefs, as documented 
in the Court's opinions, they don't believe in either 
contraception or abortion. Do you agree with that?
    Judge Jackson. I believe that was described in the case 
that you're talking about.
    Senator Cornyn. I think that's right, too. Yes.
    Judge Jackson. Yes.
    Senator Cornyn. And so when the Affordable Care Act 
mandated that every health insurance policy contained coverage 
for contraception or chemically induced abortions, they 
objected and said that this violated their conscience and their 
free exercise of religion rights under the First Amendment, 
right?
    Judge Jackson. I believe so, yes.
    Senator Cornyn. Well, after the--after the Obama 
administration, during the Trump administration, the Trump 
administration expanded the regulations to allow not only 
churches but also religious organizations like the Little 
Sisters of the Poor a waiver from that contraception and 
abortion-inducing drug mandate. Do you recall that?
    Judge Jackson. Yes.
    Senator Cornyn. Have you--are you familiar with the fact 
that President Biden--excuse me, yes, President Biden has said 
he would restore the previous regulation and--that was 
promulgated under the Obama administration and exclude 
organizations like the Little Sisters of the Poor from that 
waiver potential for abortion drugs or contraception coverage?
    Judge Jackson. I am not aware of that, Senator.
    Senator Cornyn. Well, I guess what all this boils down to, 
you know, Congress passed a bill called the Religious Freedom 
Restoration Act, which tried to make sure that people's 
sincerely held religious beliefs could be accommodated under 
their First Amendment rights, as opposed to Congress mandating 
things that would violate their conscience and violate their 
religious beliefs. Do you agree with me that it's important to 
accommodate the sincerely held religious beliefs of all 
Americans when it comes to legislation that the Congress may 
pass?
    Judge Jackson. Thank you, Senator.
    Religious freedom is a core foundational, constitutional 
right. It's in the First Amendment of the Constitution and 
reflects the Founding Fathers' understanding of this country as 
being one that is based on in large part the idea of pluralism, 
the idea that people can come and have sincerely held religious 
beliefs and practice them without persecution. That's part of 
the foundational--foundation of our--of our Government and the 
Amendment that you're discussing.
    And as a result, that right is protected in many ways. You 
mentioned the Religious Freedom Restoration Act.
    Senator Cornyn. Right.
    Judge Jackson. Congress has enacted a statute that when it 
comes to Federal regulation, if there's a substantial burden 
placed on religion, then the strict scrutiny standard applies.
    Senator Cornyn. I agree. I have one minute. So I have one 
more question.
    Judge Jackson. Yes.
    Senator Cornyn. I agree with what you just said.
    Judge Jackson. Yes.
    Senator Cornyn. So since I have asked this question or made 
this point of some of your predecessors who sat in the same 
chair and expressed my concern about some of the Court's 
establishment law, establishment jurisprudence, I don't want to 
leave you out of that concern.
    When I was Attorney General of Texas, I had a chance to 
argue a case in front of the United States Supreme Court. It's 
called Santa Fe Independent School District v. Doe. This was a 
lawsuit brought by the ACLU, which sought to enjoin or prevent 
a student-led prayer before football games at the Santa Fe 
Independent School District right outside of Houston.
    In the end, five judges said that that violated the 
Establishment Clause of the Constitution, causing Chief Justice 
Rehnquist to write in his dissent that the Constitution 
mandates neutrality toward religion, not hostility, but that 
the Court's decision evidenced hostility toward religious 
expression. Leaving me to conclude that in the public square, 
we can talk about everything from violence to misogyny to sex, 
you name it. But we can't talk about religious--sincerely held 
religious beliefs.
    I would just footnote that for you and plant the seed, for 
what it's worth.
    Thank you very much.
    Judge Jackson. Thank you.
    Chair Durbin. Thank you, Senator Cornyn.
    Welcome to Majority Leader Schumer. Glad you're with us. 
And he would report, if he could, that we have a challenge to 
finish our hearing today at a time when we can go to the floor 
for a series of votes, which will end the day. So we want to 
stick to the schedule as much as we possibly can.
    I will just say that Senator Cornyn's suggestion of lunch 
was aspirational.
    Judge Jackson. Okay.
    [Laughter.]
    Chair Durbin. It was an unenumerated right.
    Senator Cornyn. You're in charge of the agenda, Mr. 
Chairman.
    Chair Durbin. What we had hoped to do was to take three 
more Senators before we have an actual lunch, but it's up to 
you. Is that all right?
    Judge Jackson. Oh, whatever you want to do. I'm open and 
here, happy to answer whomever would like to ask me a question.
    Chair Durbin. Thank you. I appreciate that.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Judge Jackson, you can relax for a bit. I voted for you for 
the D.C. Circuit, and when you appeared as a potential nominee, 
we started doing work looking at your record and your story. We 
met with the President to discuss his process and his goals. 
When your nomination was announced, we obviously brought the 
work on your record more into focus.
    And now I've had the chance over, what, 15, 16 hours to see 
your performance in this hearing, which I think sets the gold 
standard for patience and courtesy. So I'm prepared to not only 
support you, but to let you know that I will be very proud and 
very honored and very excited to support you.
    There are two things that have come up during the course of 
the hearing, Mr. Chairman that I'd like to take my time to have 
a chance to respond to. And the first has been a question--you 
know, I've been through a bunch of these now. I don't think 
I've ever it come up so much, questions about the nominee's 
judicial philosophy.
    I didn't know you needed to have one. I actually thought 
that when you're dealing with the Constitution, your oath of 
office, the constitutional precedents, and the Constitution 
itself kind of gave you your guide path. And when you're 
construing statutes, the law and the conventions of the 
language and your logic gave you that path.
    So the fact that Judge Jackson had said ``I don't have a 
judicial philosophy, I've got a judicial methodology'' doesn't 
bother me a bit. In fact, it kind of bothers me the expectation 
that a nominee to the Supreme Court should have a judicial 
philosophy. Because a judicial philosophy can be a screen for a 
predisposition that judges, frankly, should not have, but that 
folks and powers and interests influential in the process may 
very well want them to have.
    So when I think about judicial philosophy, one of them 
that's come up a lot has been originalism, and one of the 
problems with a judicial philosophy is occasional adherence, 
selective adherence, which, in my mind, makes it less of a 
judicial philosophy and more of a doctrine of convenience to be 
trotted out when it helps the people that you want to help. And 
originalism strikes me as being that kind of a doctrine.
    And the place where I think we have the biggest gap between 
philosophy and practice in all of this has been with respect to 
what I've witnessed with respect to corporate power in our 
democracy in the time that I have been in the Senate. If you go 
back to the founding days, there was no expectation that 
corporations would have any role in American democracy. Nil. 
Doesn't turn up in the constitutional debates. Doesn't turn up 
in the arguments leading up to the approval of the 
Constitution.
    It's only when corporations became big and powerful many 
decades later that they began to intrude in our politics, and 
they corrupted our politics in a terrible way, history shows. 
And that led to the movement by muckrakers, whose probably best 
leader was Teddy Roosevelt, to knock down the grasping 
political power of corporations and rein them in.
    And we had some real victories at that time, but ambitions 
of those of great wealth and power do not go away, and they 
have continually crept forward. It's an age-old story. And 
right now, we have corporate power controlling this Congress in 
a way that is really remarkable.
    We have a complete inability to address the climate havoc 
that fossil fuel emissions are creating because half of 
Congress has been disarmed and disabled by political influence 
of the fossil fuel industry. We can't even have a reasonable 
and sensible discussion on it because the power of that 
industry is so great.
    And we've seen that manifested first with Republican 
Justices on the Supreme Court letting corporations into 
politics. That was an interesting invention. And then, once 
they were in, they let them spend money in politics. And then, 
once they let them spend money in politics, they let them spend 
unlimited money in politics.
    And now we are looking at a Court whose majority is in the 
process of building a right for corporations, the biggest and 
most powerful corporations that we have, to not only get into 
politics, spend money in politics, and spend unlimited money in 
politics, but to spend unlimited money in politics anonymously. 
To hide from the real voters, the ``we the people,'' who they 
actually are when they're intervening in our politics and to 
play this game through phony front groups with ridiculous 
names. Rhode Islanders for Peace and Puppies and Prosperity. 
You know, this is sort of the quality of the name that's 
involved.
    So let's not get too excited about judicial philosophy if 
it's nothing more than a screen for a predisposition that will 
benefit certain players in the arena, and let's certainly not 
take judicial philosophy too seriously when it evaporates in 
the face of the interests that have pushed the philosophy. And 
I think originalism qualifies that way, and I just wanted to 
say that.
    I don't think you have to have a judicial philosophy. I 
think you have to have integrity. I think you have to have a 
judicial temperament. But a philosophy? Where has that come 
from?
    The second thing I want to say has to do with the question 
of court packing and the integrity of the Court. And I have a 
position on this, and I just want to say it so it's all clear 
and nobody is reading things into it that I don't believe, and 
I've had a chance to make my point here.
    And that is that court packing can be done by adding new 
seats to the Court. I haven't proposed that. I think there's 
only one Member in the Senate that has proposed that. It's 
gotten a lot of attention here, but I don't think it's been 
proposed here.
    But you can also pack a court by picking the Justices. And 
in fact, there is a long, unpleasant American tradition of 
agencies being taken over by virtue of picking the members. 
It's called ``agency capture'' or ``regulatory capture.'' It 
goes back a long way.
    There is an abundant literature, both in economics and in 
administrative law, about capture, and there is nothing that 
makes a court immune to capture. That is why, when I talked 
about this in my initial remarks, I said that the folks that 
have tried to capture the Court have treated it no different 
than a 19th century railroad commission because they were 
legendary for having been captured by picking the members who 
would rule for the railroad.
    And there are many others. Go back to MMS and the Gulf oil 
explosion. So that is my concern. My concern is that the 
picking of the Justices has been handed to special interests, 
and we know that's the case because, as I showed yesterday, 
everybody involved admitted it.
    The President of the United States said so. The co-founder 
of the Federalist Society said so. A former Chairman of this 
Committee said so. And the President's legal counsel said so.
    And what happened in that process by which the Justices 
were picked over at the Federalist Society? We don't know. 
There wasn't a poll that was taken of Federalist Society 
members saying, you know, give us your recommendations. I don't 
know that there was any meeting of the board. ``Let's take this 
up. Let's go through a proper agenda.''
    What appears to have happened is that people went into a 
backroom, and there was wheeling and dealing, and millions and 
millions of dark money dollars flowed into the Federalist 
Society during this period, and what came out were names. And 
those went straight to the President and straight to here. But 
the picking appears to have been done in the confines of a 
private organization by anonymous special interests.
    There is no country in the world that does that by way of 
how you pick judges. If we went to some banana republic to try 
to educate them in democracy and that was the way they picked 
their judges, we'd have a lot to say about it. But that is the 
way that recent Justices have been picked. court packing by 
Court picking.
    And deputizing this to the Federalist Society is very 
unusual. Them having no process, no public process for 
implementing that deputization is very unusual. The provenance 
of these mysterious lists that were produced and how people got 
on and off them, that is very unusual, unprecedented in our 
history.
    And it's surrounded by lots and lots of dark money. Four 
hundred million dollars, I think, is a lot of anonymous money 
that has been chronicled being spent to control who gets put on 
the Court. And controlling who gets put on a governmental body 
is how you capture a governmental body, and a captured 
governmental body is a wrong thing, whether it's a railroad 
commission or the United States Supreme Court.
    There is in that method of judicial selection not just the 
prospect of impropriety but, indeed, the likelihood of 
impropriety. If it's pay to play and checks for millions 
anonymously delivered will get you into the room to decide who 
is going to be on the Supreme Court, we got a problem. And 
that's what happened.
    And the thing that makes it even worse, in my view, is that 
as you pursue this and play it out, you see the decisions of 
the Court line up in an astonishingly clear pattern with the 
interests of big Republican dark money donors. That is my 
concern.
    That, I think, is a legitimate concern. If you disagree 
with me, disagree with me. But that is the concern, and I 
wanted to lay it out here because it's not about court packing. 
It's about the integrity of the Court, and it's about the 
unfortunate comparison that can be made now between the 
captured agencies delivered through picking of their membership 
and what looks more and more like a captured Court delivered by 
the picking of its membership in secret with a very, very high 
ticket price to be in the room where the picking took place.
    So, like I said, colleagues can agree. Colleagues can 
disagree. We all have our shots to make our cases. Because this 
has come up tangentially in multiple different ways, I wanted 
to take this moment and lay out what my case is and explain it 
as clearly and simply as I can.
    And I thank the Chairman for allowing me that opportunity, 
and I yield back my remaining 7 minutes.
    And I congratulate, Your Honor, you for the patience that 
you've shown with all of us. It's not over, but it's close.
    Judge Jackson. Thank you, Senator.
    Chair Durbin. Thank you, Senator Whitehouse. And, of 
course, you've joined the hall of fame, yielding back 7 
minutes.
    Senator Lee.
    Senator Lee. Thank you, Mr. Chairman.
    Thank you, Judge.
    I want to talk next a little bit about a case that you were 
involved in, a case called Coal River Mountain Watch v. United 
States Department of the Interior. It was decided, a ruling 
that you issued in 2015 while on the Federal district court. I 
know you've handled a lot of cases.
    Judge Jackson. I have.
    Senator Lee. I can't imagine that by merely triggering the 
case name that would necessarily bring it back. But this case 
involved a challenge to an administrative action within the 
Department of Interior on some issues bearing on coal mining 
within the State of West Virginia.
    There were two parallel challenges brought against that 
administrative action. One in a Federal district court in West 
Virginia, where the land in question was located, and another 
in the U.S. District Court for the District of Columbia, where 
you sat.
    The Government, defending itself against that action 
brought by some environmental groups, asked that you dismiss 
the D.C. case so that the matter could be litigated in West 
Virginia, but you denied that. Can you--based on my description 
of the facts, does that ring any bells, and can you tell me why 
you might have denied it?
    Judge Jackson. Thank you, Senator.
    It actually doesn't. It sounds like, you know, dozens of 
cases that I handled with similar issues and requests. 
Something like a Motion to Dismiss is early in the action.
    Senator Lee. Sure, sure.
    Judge Jackson. And so denying a Motion to Dismiss is pretty 
routine in the District of Columbia.
    Senator Lee. No, I understand, and I'm sure you handled a 
lot of those--a lot of those all the time as a district judge. 
The reason I raise it is just because it relates indirectly to 
some concerns that I've got that are somewhat unique to the 
Western United States.
    We have a lot of cases that involve the U.S. Department of 
the Interior and agency actions taken relative to the public 
land that we have. In every State east of Colorado, the Federal 
Government owns less than 15 percent of the land. In most of 
those, it's much less than 15 percent, in the single digits or 
low single digits.
    In every State Colorado and west of Colorado, the Federal 
Government owns more than 15 percent of the land, and most of 
the time, it's a lot more. In my State, it happens to be about 
two-thirds of the land that's owned by the Federal Government.
    As a result, it complicates our ability to do just about 
everything we do, whether it's recreation, construction, oil 
and gas development. Whether it's just accessing people's farms 
and ranches or even something as simple as trying to fund local 
fire, police, search and rescue operations. All these things 
are affected by the excessive ownership of Federal land by the 
Federal Government and the way it's often managed.
    Sometimes decisions made at the Federal level are 
challenged in parallel actions like these--one in the forum 
State, in the host State to where the action is happening, 
another in DC. And I'm always concerned about forum shopping, 
and I'm sure that's something you watched out for as a judge 
and saw forum shopping from time to time.
    It's also something that touches on an issue that involves 
statutory interpretation. There is something called the 
Antiquities Act passed 110 years ago or so, designed to give 
Presidents of the United States the authority to designate 
Federal--parcels of Federal land as national monuments. The 
text of the statute states that the limits of the parcels in 
question should be, quote, ``confined to the smallest area 
compatible with the proper care and management of the objects 
to be protected.''
    Now given that these Presidential proclamations tend to be 
broad, it's sometimes the objects to be protected are also 
broad. And as a result of that, it's difficult to tell what the 
limits are. Do you have any reaction as to how we could discern 
that, how we could define any meaning out of that?
    It's got to mean something, the text of the statute. You 
try not to leave language simply unaddressed or meaningless in 
a statute. Do you have any thoughts on how a statute like that, 
saying it should be confined to the smallest area compatible 
with the proper care and management of the objects to be 
protected, any thoughts briefly on that?
    Judge Jackson. Well, Senator, if I were presented with a 
case with that statute in that circumstance, I would proceed as 
I always have. You would have to understand the parties' 
arguments about the particulars in the case, what--what does 
the Presidential proclamation say? To what does it relate? 
Whether there are any precedents in this area that define, 
further define or further address what Congress intended with 
respect to the statute at issue.
    Senator Lee. And I would assume that it would also matter 
if the Government's lawyers defending the President's action 
made an argument that would leave the interpretation open-ended 
and meaningless?
    Judge Jackson. Well, as part of your interpretive exercise, 
as you're considering the parties' various arguments, one that 
did not account for all the words in a statute would be one 
that you would----
    Senator Lee. Excellent. Excellent.
    Judge Jackson [continuing]. Might not--might not agree 
with.
    Senator Lee. No, I get it, and this is one of the things 
that I've appreciated about what you've told us in these 
hearings. I really like the way you've described the fact it's 
important to construe the text that you're asked to interpret. 
And in interpreting that, you look at the language, and you're 
endeavoring to figure out the original public meaning. And I 
think that is a very helpful thing.
    All right. Let's move to a different issue a moment ago. 
Now you clerked on the U.S. Supreme Court for Justice Breyer in 
October term 1999. Is that right?
    Judge Jackson. That is right.
    Senator Lee. That was the same--and you clerked for Justice 
Breyer?
    Judge Jackson. I did.
    Senator Lee. And that was the same year that the Supreme 
Court issued its decision in a case called Stenberg v. Carhart. 
This is a case where the Supreme Court of the United States 
struck down a Nebraska law prohibiting partial-birth abortion 
and in the absence of circumstances where the baby posed a 
threat to the life of the mother.
    Now to be clear, the law prohibited a procedure where the 
abortionist causes an unborn baby to be partially delivered by 
the mother, and then the abortionist intentionally kills the 
baby outside the womb by puncturing its skull with scissors and 
then collapsing the skull. This is gruesome, and I don't like 
having to quote this, but it is relevant to the topic we're 
covering here.
    Justice Kennedy described it this way in chilling terms in 
his dissent when he describes the fact that, ``When scissors 
are inserted into the back of the head, the fetus' body, wholly 
outside the woman's body and alive, reacts as though startled 
and then goes limp.''
    Justice Scalia, in his great eloquence, expressed--lamented 
the ruling, but also expressed optimism for the fact that 
future Courts would get it right, saying, quote, ``I'm 
optimistic enough to believe that one day Stenberg v. Carhart 
will be assigned to its rightful place in the history of this 
Court's jurisprudence beside Korematsu and Dred Scott. This 
method of killing a human child, one cannot even accurately say 
an entirely unborn human child, proscribed by this statute is 
so horrible that the most clinical description of it evokes a 
shudder of revulsion.''
    We then saw a few years later the Supreme Court of the 
United States issue a different ruling. The Supreme Court 
issued a different ruling in a case called Gonzales v. Carhart. 
Gonzales v. Carhart upheld a different statute. This one was 
Federal rather than State, but it was a different--a Federal 
statute that also prohibited partial-birth abortion.
    Judge Jackson, can you distinguish these cases for me? What 
was the difference between Gonzales v. Carhart, where the 
partial-birth ban in question was upheld, whereas in Stenberg 
v. Carhart, it was invalidated?
    Judge Jackson. Thank you, Senator.
    I don't have the opinions in front of me. I think--I think 
it had to do with the method of extraction, the fact finding 
related to the procedure. In one case, the district court had 
made some findings, and the Court felt bound by them. In 
another, there was considerations beyond those that were 
previously relied upon. So there were distinctions that the 
Court looked at and considered in the cases, but yes.
    Senator Lee. Let's talk about court packing for a minute.
    Judge Jackson. Yes.
    Senator Lee. One of the reasons court packing concerns me, 
one of the many reasons, is because it's not prohibited. In the 
first instance, it's not prohibited by the Constitution. 
There's nothing in the Constitution that says that Congress may 
not change the size of the Supreme Court. There's no limitation 
on that.
    We have for 152 years stuck with the number 9. It has 
worked. And in the absence of an argument saying that that 
number is too--is too low, the Court is too small, from a work 
force standpoint, we need to expand it, it's difficult to 
imagine why it would be a good idea to change it. Particularly 
because if you increase the size of the Court in one fell swoop 
and you do that for partisan political purposes, allowing one 
President, the current President, to have a disproportionate 
impact on the Court, it could change its rulings, that portion 
of the Court's docket that tends to be more politically 
contentious. It can turn the Court into a political football of 
sorts.
    Given the fact that our Supreme Court Justices serve for 
life, once you do that, it becomes something of a one-way 
ratchet, always expanding, never contracting. Before long, you 
could see an increasingly larger Court, with the Court 
expanding each time a different party secures the coveted 
circumstance of a majority in the House, majority in the 
Senate, and control by the same party of the White House.
    And so this is why it concerns me. I understand why it is 
that the Canons of Judicial Ethics don't allow you to comment 
on matters that might come before you. This is one that could 
not come before you as a Justice. This is a nonjusticiable 
political question. It's committed to the two political 
branches of Government.
    There's not even a constitutional challenge that could lie 
to it. Even though it would undermine the separation of powers 
in the Constitution, as I see it, it's not unconstitutional. So 
it couldn't and it would never come before you.
    Last night, when you were asked a question by my colleague 
Senator Kennedy on this, you acknowledged that you have an 
opinion. Did I understand that right? You have an opinion on 
court packing?
    Judge Jackson. Senator, I have a lot of opinions. I have 
opinions on--I'm a human being, and I have an opinion on a lot 
of things.
    The reason why, in my view, it is not appropriate for me to 
comment is because of my fidelity to the judicial role. I 
understand that it's a political question, and that is 
precisely why I think that I am uncomfortable speaking to it.
    Senator Lee. No, I understand that, and I respect the 
impulse. I respect the overall issue. And I think it's better 
for Article III judges and Justices ordinarily to not wade into 
the political thicket.
    This one I do think is different because, number one, as I 
say, it can never come before you. Number two, it does have an 
impact on what you would be doing. And you also, as an Article 
III judge, someone who's served for nearly 9 years as a Federal 
judge, you've developed experience and intuition and a thorough 
understanding of our Federal court system, and that's why I 
think your perspective on it would be valuable.
    The reason it concerns me so much is that even when court 
packing doesn't succeed legislatively, it can leave an impact. 
The last time this was attempted was in 1937. President 
Franklin D. Roosevelt was upset at the Supreme Court on a 
number of bases.
    He didn't like the then 32-year-old precent of Lochner v. 
New York, where the five conservatives on the Supreme Court 
engaged in an act of judicial activism, reading something into 
the Constitution that wasn't really there. Some people disagree 
with me on this, but it wasn't there, and they imposed that.
    But the bigger reason was he didn't like the Court's 
interpretation of the Commerce Clause. It was that 
interpretation of the Commerce Clause, the one we discussed 
yesterday. You know, prior to 1937, you had the Supreme Court 
agreeing as far as the channels and instrumentalities of 
interstate commerce that we talked about yesterday. You had the 
Court more or less in agreement over time as to the impact of 
the Dormant Commerce Clause.
    But as to the substantial effects test, that didn't exist 
yet. It required something much closer to an interstate 
commercial transaction in order for Congress' Commerce Clause 
authority to kick in.
    There were the so-called ``Four Horsemen of the 
Apocalypse,'' as FDR affectionately called them. Four 
conservatives who were consistently pushing for limits on 
Congress' authority. And then you had other Justices who would 
sometimes join with them. Usually, that included Justice Owens 
Roberts, who had stood with them in maintaining narrower 
authority before Congress under the Commerce Clause.
    All that changed when, on April 12, 1937, 2 weeks to the 
day when the case often associated with the so-called ``switch 
in time that changed nine,'' the West Coast Hotel v. Parrish, 
where they undid the Lochner precedent.
    April 12, 1937, the Supreme Court decided a case, NLRB v. 
Jones & Laughlin Steel, that forever changed and magnified, 
expanded the Commerce Clause in a way that had it been through 
a constitutional amendment, it would be among the most 
significant, impactful constitutional amendments ever adopted. 
And yet it's rarely discussed.
    This, this case resulted from one vote, one person on the 
Supreme Court who changed his vote, Associate Justice Owen 
Roberts. It is widely believed--and I believe it, based on what 
I've researched on it--he was influenced heavily by FDR's 
court-packing plan. He didn't want to be on a Court that was 
packed.
    He didn't want--he convinced himself that he made that 
switch in order to save the Court as it was. And that has 
changed everything. It's led to a much bigger, more expensive, 
more intrusive Federal Government. We can disagree as to the 
policy merits of that, but it did change the Constitution. 
That's why I worry about that.
    So I hope--I understand you don't want to answer, and I 
hope that between now and the end of the day, you'll see fit to 
tell us what your opinion is. I do think it's worth discussing.
    Let's talk for a minute--I've got just moments left. I want 
to go back to your sentencing approach. Now when you approach 
these child pornography cases, what you're describing in many 
circumstances is an overall concern that you've got with the 
sentencing guidelines, and particularly that portion of the 
sentencing guidelines that deals with child pornography cases.
    This showed up in the transcripts of some of your 
sentencing hearings, including the transcript of your 
sentencing hearing in the Hawkins case. Turn to that, page 38, 
lines 17 to 24 of that transcript, and here is something you 
say in that Hawkins case. And I believe this was the 18-year-
old defendant that you sentenced to 3 months in prison, when 
the lower end of the guidelines range would have been 97. I 
think the higher end would have been in the 120s or something 
like that.
    You said, ``And in your case''--this is you speaking to Mr. 
Hawkins--``In your case in particular, I don't feel that it is 
appropriate necessarily to increase the penalty on the basis of 
your use of a computer or the number of images or prepubescent 
victims as the guidelines require because theses circumstances 
exist in many cases, if not most, and don't signal an 
especially heinous or egregious child pornography offense.''
    I've got a couple of questions about that. Were those--you 
start off that paragraph sounding like you're making a 
determination as to him, but then the observations you make in 
that paragraph seem to apply broadly. Is that--is that right? 
So it would----
    Judge Jackson. Senator, I don't have the transcript of Mr. 
Hawkins' case. I recall that I found that case, like all child 
pornography cases, to be difficult, really difficult. And his 
case, I recall, was, in many ways, an outlier in terms of the 
various considerations that Congress required me to take into 
account.
    Senator Lee. But there were prepubescent victims that were 
at stake in that case?
    Judge Jackson. I don't remember how many. I don't remember 
the circumstances of his actual crime. What--what I will say is 
that consistent with Supreme Court caselaw and Congress' 
statute in this area, judges have to take into account a number 
of factors, and the guidelines, which are no longer I won't say 
not mandatory. You have to calculate the guidelines. They're no 
longer binding.
    And the Supreme Court has said that under the statutory 
schemes, judges have discretion to----
    Senator Lee. Okay. But my--I'm almost out of time here.
    Judge Jackson. Yes.
    Senator Lee. I want to make a point.
    Judge Jackson. Yes.
    Senator Lee. Hawkins, as I recall, and as Senator Hawley 
discussed yesterday, he specifically asked for images of 11- to 
17-year-olds. So I don't understand how that can be an instance 
where that shouldn't matter. The fact that he did it with a 
computer hardly atones for what he was doing, hardly offsets 
the fact that he was seeking and obtained prepubescent child 
pornography images.
    Nor does the fact that the images become easier over time 
to transmit and receive and store because of computers. I 
actually think it cuts in precisely the opposite direction that 
you describe. It makes it more severe, not less. I see this as 
an aggravating factor, and that is of great concern to me.
    I see I've exceeded my time. Thank you.
    Chair Durbin. You may respond.
    Judge Jackson. Senator, as in every child pornography case 
that I sentenced, I considered all of the evidence, all of the 
relevant factors. It is not the same exercise to look at a 
transcript, to think about guidelines, to not have in front of 
you the individuals, the victims, the pictures, the 
circumstances that trial judges have to review in these cases 
or any cases.
    I understand, Senator, that there are some questions about 
records, et cetera. Courts have all of the evidence, and courts 
have all of the recommendations of various parties. And courts 
have, under Congress' authority, the responsibility of using 
our judgment to make determinations that are sufficient, but 
not greater than necessary to comply with the purposes or 
promote the purposes of punishment, taking into account things 
like unwarranted sentencing disparities.
    And it may seem--it may seem like an easy exercise. It may 
seem in retrospect, when you look back at a few pieces of data, 
that courts have not done what it is that they are supposed to 
do. But what I can assure you is that I took every one of these 
cases seriously in my duty and responsibility as a judge, and I 
made my determinations in light of the seriousness of the 
offense, the nature and circumstances of the offense, the 
history and characteristics of the defendant, the need for the 
sentence imposed to promote various purposes of punishment, and 
all of the other factors that Congress prescribed.
    Senator Lee. Okay. But you keep reciting that standard, and 
yet you specifically excluded from consideration the fact that 
he had requested and obtained images, prepubescent child 
pornography images.
    Judge Jackson. Senator, I didn't--I didn't exclude it. I 
didn't exclude it. What I did was I looked at the guidelines, 
which is what the Supreme Court requires, and I was making 
policy determinations, as the Supreme Court says that judges 
are to do in these situations.
    Senator Lee. Look at page 38 of your transcript. It looks 
to me like you excluded it, and your action sentencing him to 3 
months for one of the most heinous offenses imaginable. Keep in 
mind because these are transmitted electronically----
    Chair Durbin. Senator, we've----
    Senator Lee [continuing]. They're there for years. They 
revictimize these victims the rest of their lives.
    Chair Durbin. Senator? We're asking everyone to try to 
stick with the 20 minutes, please.
    Next is Senator Klobuchar, but before recognizing her, I'd 
like to ask consent to enter into the record a support letter 
for Judge Jackson from 48 former Federal prosecutors in South 
Florida.
    Without objection.
    [The information appears as a submission for the record.]
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Chairman Durbin. 
Welcome back, Judge Jackson.
    Yesterday, you and I discussed the Court's increasing 
reliance on issuing unsigned orders on its shadow docket. And 
less than an hour ago, the Court once again used the shadow 
docket to throw out Wisconsin's redistricting maps. And because 
this decision just came out, I don't expect you to have 
immediately reviewed it, but I just want to make this point, 
that in her dissent, Justice Sotomayor, joined by Justice 
Kagan, called the Court's move unprecedented. She noted that, 
``In an emergency posture, the Court summarily overturns a 
Wisconsin Supreme Court decision resolving a conflict over the 
State's redistricting, a decision that was rendered after a 5-
month process involving all interested stakeholders, based on 
an obligation that is''--these are her words--``hazy at best, 
even though summary reversals are generally reserved for 
decisions in violation of settled law.''
    And, again, I don't expect you to be familiar with this 
case, but I do want to point out that this underscores the 
point that I made yesterday, that the Court's increasing 
practice of using the shadow docket to decide cases that have 
grave consequences for our democracy, including the right to 
vote that you and many other nominees have said is fundamental, 
is incredibly troubling. You had the other case I mentioned 
yesterday where Justice Roberts dissented, the Texas abortion 
bounty hunter case, that that should not have been done on the 
shadow docket.
    And while I'm not going to ask you about this because you 
couldn't possibly have read it, just your record of writing 
decisions that are thorough and listening to litigants in 
cases, could you just generally talk about the importance of 
having full briefings on the merits as well as public oral 
argument if you believe in transparency?
    Judge Jackson. Thank you, Senator. As a judge, in my work 
over the last decade, I've seen that it is very important, at 
least to me in my time as a judge to date, to hear arguments 
from all sides in a case. The duty of a judge is to make 
determinations, and under our system of adversarial 
proceedings, you make determinations based on arguments, and 
it's important to do so.
    I know that with respect to the emergency docket, I--you 
haven't asked me the question about it because I would say what 
I said before, which is I would benefit from being able to 
speak with the Justices. I understand that there's a need to 
balance getting a full briefing with emergency circumstances, 
and the Court has long had in its procedures the ability to 
rule quickly on various cases.
    Senator Klobuchar. Mm-hmm.
    Judge Jackson. It's also my understanding from my time 
clerking on the Court that the Court does recognize the value 
of allowing things to what we call percolate, meaning lower 
courts get to hear issues. And my understanding is that at 
least in some of the recent cases, the Justices have had oral 
argument related to some emergency matters. But from my 
perspective as a judge and the work that I've been doing, I 
know that it's important to hear from the parties.
    Senator Klobuchar. Mm-hmm. Another hallmark of your work 
has been taking complex issues and making them accessible to 
the public, so much so that I actually referred to one of your 
opinions from a debate stage in Los Angeles saying, ``As a wise 
judge said''--those were my words; I guess I was ahead of my 
time--``the President is not king in America. The law is 
king.'' I paraphrased it. That was a written opinion that you 
wrote that was over 65 pages long, relied extensively on 
Supreme Court and circuit precedent. It was Committee on the 
Judiciary v. McGahn. And could you talk about really two 
things: the importance of having the law written in terms that 
are easy to understand by people, and then, second, your 
opinion was actually a narrow one. It required Mr. McGahn to 
appear to testify but said he remained free to assert any 
legally applicable privilege in response to the questions 
asked. So what you did there was a narrow opinion. What role do 
you think that narrow rulings play in helping to maintain the 
legitimacy of the Court? Why is it important to have plain 
language in orders?
    Judge Jackson. Thank you, Senator. Well, I'll start with 
the second first. I think that, you know, as we've been 
discussing, we have a rule of law in this country which 
requires a certain amount of predictability and stability in 
the law. If there are big shifts in terms of legal principles 
and doctrines and whatnot, it could lead to people not 
understanding that judges are ruling on legal principles. It 
could lead to undermining public confidence thinking that 
judges are injecting their own policy preferences rather than 
following the law in terms of their rulings.
    And so, to further predictability and stability, there are 
many doctrines in judicial practice. There's stare decisis, 
which is the principle that if something has already been 
decided very similarly, you at least--it may be binding on you 
if you're a lower court, but at least you have to contend with 
it because that is the law that was--that existed before you 
got the case, and you don't want to make a big shift. And then 
there's also the principle that, you know, the understanding 
that when you are announcing rulings, you are building on what 
exists before. And so not--so you don't want to make a big 
shift if you don't have to because if you can find a way to 
rule incrementally in a more narrow way, it keeps the law 
stable, is a part of the proposition that I--that I mentioned 
before.
    In McGahn, in particular, it was--it was a case in which 
there was a precedent directly on point from my district. It 
was not binding on me, but the exact same set of circumstances 
and arguments had been presented to another judge in my 
district, I believe it was something like 10 years prior to my 
case, and so we had law that governed the circumstance. And I 
looked at that, determined it was persuasive, and that I should 
continue the principles that had been laid down by--in the 
prior case.
    Also, in accordance with those principles, the prior judge 
and I made the determination that when the President claims 
absolute immunity, the argument was that the person who had 
been subpoenaed by the legislature, a former employee of the 
White House, could say that they had immunity of some sort; in 
other words, could have invoked Executive privilege in response 
to particular questions, but they couldn't say ``I don't have 
to show up at all.'' And so the argument that was being made 
was when the House of Representatives issues a subpoena and 
says show up on this day at this time to answer questions, does 
that person--can that person just ignore and say I have 
immunity, I don't have to follow the law--in other words, 
respond to the subpoena--or do I have to show up and sit there 
and listen to the questions, and if there are things that I 
believe I can't answer because they're privileged, then you 
invoke the privilege.
    And the prior case had said in this narrow way, you have to 
show up. You don't necessarily have to give the information. 
That's determined on question-by-question basis, but you have 
to show up, and that's what I held in that case as well. And 
it's important to be clear in your rulings so that people 
understand that judges are ruling consistent with the law and 
not their own personal views.
    Senator Klobuchar. Right. And speaking of being clear and 
being careful in your rulings, some of my colleagues have, I 
think, given not a necessarily true view of your whole record 
because when it comes to your rulings being upheld, the numbers 
show that out of over 550 cases, your district court cases, you 
were reversed less than 3 percent of the time. And in some of 
the instances, you were reversed only to have your decision 
later upheld. I noticed one case, Territory of Guam v. United 
States, in which you were initially reversed, but then a 
unanimous Supreme Court reversed that decision, then siding 
with you in an opinion written by Justice Thomas who aligned 
with your view. Do you want to quickly talk about that case?
    Judge Jackson. Well, that case is kind of legally 
complicated. It was a--it was a CERCLA case, which is a 
Superfund cleanup kind of case, where the country of Guam, 
which had--which has a dump site on it that was used by both 
the citizens of Guam and the United States before the 1950s 
when the United States was stationed there. Military operations 
happened out of Guam, and there was a lot of dumping into this 
site. And over time, the site got contaminated, and Guam was 
charged with having to clean it up, which is millions and 
millions of dollars.
    And there are statutes, very complicated statutes, about 
the circumstances under which you can seek contribution, under 
which a country like that can ask for the United States to pay 
some of that cost or other countries to pay some of that cost. 
And that was sort of the nature of the dispute, and I did a 
statutory interpretation about whether or not Guam's action 
could proceed.
    The United States filed a motion to dismiss saying that all 
of the technical requirements of the law weren't met and that 
the action had to be dismissed. And I denied the motion to 
dismiss after interpreting the statute, saying that the action 
could continue. The D.C. Circuit reversed my view, had a 
different reading of the statute, saying that the motion to 
dismiss should have been granted, and dismissed the case. And 
then it was appealed to the Supreme Court, and, as you say, the 
Supreme Court reinstated the action saying it could proceed.
    Senator Klobuchar. Very good. Thank you. In 1972, in 
Branzburg v. Hayes, a 5-4 Court did not recognize the 
reporter's privilege in the context of criminal grand jury 
testimony. And I spoke with you earlier at length about Times 
v. Sullivan and First Amendment issues, so this will be my last 
question on this. Since the Court's decision, my State, like 
many other States, enacted strong reporters privilege laws to 
protect journalists from having to divulge unpublished 
materials, confidential sources. How would you approach 
balancing the need to protect journalists and the role they 
play in informing the public against the need for law 
enforcement officers to gather information?
    Judge Jackson. I would apply the precedents of the Supreme 
Court in this area. It would depend on the circumstances. As I 
mentioned, press freedoms is one of the fundamental First 
Amendment rights. The Court has a number of precedents in terms 
of expressive freedom, press freedom, and, in every case, 
there'll be a specific set of circumstances regarding an 
alleged violation of the right. And the Court would need to 
look at the facts and circumstances, the prior precedent in 
order to determine whether that particular regulation could be 
upheld.
    Senator Klobuchar. Okay. Thank you. This is my very last 
question, Chair, before all of us get to eat lunch, including 
you, and that is really the important role of dissenting 
opinions. Justice Ginsburg once said that--she said, ``Dissents 
speak to a future age. It's not simply to say my colleagues are 
wrong and I would do it this way, but the greatest dissents do 
become Court opinions, and gradually over time, their views 
sometimes become the dominant view.'' When Justice Ginsburg's 
rabbi gave a eulogy at her memorial service here in the 
Capitol, and some of us were fortunate enough to be there, he 
said, ``Justice Ginsburg's dissents were not cries of defeat. 
They were blueprints for the future.'' What do you think is the 
purpose of a dissent, and if you want to talk just a little bit 
about that, this idea that they can be blueprints for the 
future.
    Judge Jackson. Thank you, Senator. On the Supreme Court, 
there are nine Justices, and in every case, they're all sitting 
together to hear the issues in a case. And one hopes, and it 
often happens, that the Justices agree as to issues in cases. I 
believe in the vast majority of cases that the Justices here 
are actually not--there is no dissent, that they--that they 
agree to the outcome. But there are cases in which, after 
deliberation, and collaboration, and consideration, the 
Justices may disagree about how the case should be resolved. 
And there's a mechanism for every Justice to decide whether 
they're going to join others either in the majority, whether 
they're going to write a separate opinion that might agree with 
the majority but wants to make a different point, or whether 
they want to dissent. And sometimes more than one Justice might 
dissent or join a dissent. It's a way of expressing one's own 
view that may differ from your colleagues.
    And with respect to the point that you made, there are 
actually many Justices in history who have used the dissent 
mechanism to discuss the law in ways that others find, over 
time, to be more persuasive. And so I'm thinking of--I'm 
thinking of the first Justice Harlan, who dissented famously in 
Plessy v. Ferguson. He dissented alone. All of the other 
Justices agreed with the proposition of separate but equal, and 
he said ``no'' in a dissent. And his dissent, generations 
later, became--according to Justice Thurgood Marshall, became 
the blueprint for Justice Marshall to make arguments that led 
to Brown v. Board. So there is the opportunity for Justices to 
describe their views in ways that become persuasive to others 
in the future.
    Senator Klobuchar. Thank you for all you've given us the 
last few days.
    Judge Jackson. Thank you.
    Senator Klobuchar. We look forward to working with you. 
Thank you.
    Judge Jackson. Thank you.
    Chair Durbin. Thank you, Senator. Thank you, Senator 
Klobuchar, and we're going to break now for a 30-minute lunch. 
I'd say to everyone that when we return, if we stick to 20-
minute rounds and don't yield back time, we'll be finishing in 
something around 4-and-a-half hours, which would take us to 
about 7. So that doesn't include a break, but we'll consider 
that later on. Thank you, Judge, again.
    Judge Jackson. Thank you.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. Welcome back, Judge. As you can see, things 
get off the rails here when they decide they have a floor vote. 
We will do our best to stick with the program and finish this 
in a proper way.
    The next up is Senator Cruz of Texas.
    Senator Cruz. Thank you, Mr. Chairman. Judge, good 
afternoon.
    Judge Jackson. Good afternoon, Senator.
    Senator Cruz. Under Article III of the Constitution, 
Federal courts have jurisdiction over only cases and 
controversies, which means under the Constitution it has to be 
an actual dispute, that Federal courts cannot simply issue 
advisory opinions on a question they may have a view on. And 
one component of Article III jurisdiction is the requirement of 
standing, that in order for a plaintiff to have standing to 
bring a case that that plaintiff, at least generally speaking, 
must have a real and concrete injury. Is that right?
    Judge Jackson. That is correct.
    Senator Cruz. So for example, that means that even if I 
might have a disagreement with some particular policy or some 
particular law, that I cannot bring a case unless I am 
personally aggrieved by that policy or that law. So for 
example, your and my alma mater, Harvard, is currently being 
sued for its explicit, and in my view, egregious policy of 
discriminating against Asian Americans. Even though I think 
that policy is egregious, I, as an individual plaintiff, could 
not bring a lawsuit challenging it because I am not Asian-
American. Is that right?
    Judge Jackson. If you brought a lawsuit, the court would 
have to evaluate whether you had an actual injury in order to 
be able to determine whether it had subject matter jurisdiction 
to hear the suit.
    Senator Cruz. But if I am not in the class being 
discriminated against then I do not have the ability to bring 
the lawsuit. Is that right?
    Judge Jackson. You would have to have an actual injury. 
Certainly people, I think, who are in the class could claim 
that they had an injury for that purpose.
    Senator Cruz. So, now you are on the Board of Overseers of 
Harvard. If you are confirmed, do you intend to recuse from 
this lawsuit?
    Judge Jackson. That is my plan, Senator.
    Senator Cruz. Okay. We discussed yesterday how the standard 
for race discrimination was strict scrutiny. The Court has laid 
out a different standard for gender discrimination. What is the 
constitutional standard that applies to gender discrimination?
    Judge Jackson. Gender discrimination, the Court has held, 
intermediate scrutiny applies, which is that the Government has 
to have an important interest, and the tailoring does not have 
to be as narrow.
    Senator Cruz. Right. So yesterday, under questioning from 
Senator Blackburn, you told her that you could not define what 
a woman is, that you are not a biologist, which I think you are 
the only Supreme Court nominee in history who has been unable 
to answer the question, ``What is a woman? ''
    Let me ask you, as a judge, how would you determine if a 
plaintiff had Article III standing to challenge a gender-based 
rule, regulation, policy without being able to determine what a 
woman was?
    Judge Jackson. So, Senator, I know that I am a woman. I 
know that Senator Blackburn is a woman, and the woman who I 
admire most in the world is in the room today, my mother. It 
sounded as though the question was----
    Senator Cruz. But let me ask, under the modern leftist 
sensibilities, if I decide right now that I am a woman, then 
apparently I am a woman. Does that mean that I would have 
Article III standing to challenge a gender-based restriction?
    Judge Jackson. Senator, to the extent that you are asking 
me about who has the ability to bring lawsuits based on gender, 
those kinds of issues are working their way through the courts 
and I am not able to comment on them.
    Senator Cruz. Okay. If I can change my gender, if I can be 
a woman and then an hour later if I decide I am not a woman 
anymore I guess I would lose Article III standing, tell me, 
does that same principle apply to other protected 
characteristics? For example, I am a 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?
    Judge Jackson. Senator, I am not able to answer your 
question. You are asking me about hypotheticals, and----
    Senator Cruz. Well, I am asking you how you would assess 
standing if I came in and said, ``I have decided I identify as 
an Asian man.''
    Judge Jackson. I would assess standing the way I assess 
other legal issues, which is to listen to the arguments made by 
the parties, consider the relevant precedents, and 
constitutional principles involved, and make a determination.
    Senator Cruz. Okay. Let's go back to your favorite topic of 
this hearing, which is the criminal law cases you had as a 
district judge, and in particular the cases involving child 
pornography. Now your defenders, both on the Democratic side of 
the dais and also in the press, have suggested that the 
criticism that has been raised has been somehow cherry-picked, 
that it is only some specific examples. So I am going to give 
you an opportunity to discuss each and every case you have had, 
because looking at your cases--and I have now examined all of 
the child porn cases you have had as a Federal district judge--
there is a very consistent pattern.
    So let's start--and by the way, I am excluding the cases--
so Senator Durbin and Senator Coons focused on the Nickerson 
case, the Fyffe case, the Nguyen case, and the Hillie case. I 
am excluding those because those are not child porn cases. 
Those are actual sexual assault of a child, which is markedly 
different. And I will concede when you are dealing with sexual 
assault you have been willing to impose stricter penalties.
    So let's focus on actual child pornography cases, and let's 
go through each of them, because if it is right that we are 
cherry-picking then you should be able to explain quite 
powerfully.
    [Posters are displayed in the hearing room.]
    Senator Cruz. Now your justification is that you are 
following the statute, and as you know, 18 U.S.C. 3553 lays out 
the factors that as a district judge you had to consider in 
sentencing. And let's start with the Hess case, United States 
v. Hess. Now in that case a man sent six pictures of a 
prepubescent girl that he claimed was his daughter to an 
undercover law enforcement officer. Officers found over 600 
images of child pornography, including images of sexual acts 
being performed on prepubescent children. The defendant pled 
guilty, and I believe in all of these cases the defendant pled 
guilty, so there was no question about guilt. They came in and 
pled guilty in your courtroom.
    The charge carried a mandatory minimum sentence of 5 years 
and a mandatory maximum sentence of 20 years. The sentencing 
guidelines recommended 151 to 188 months' sentence. The 
Government, as part of the plea deal, agreed to argue for 60 
months but did not agree that that would be the sentence, 
simply that they would advocate it. And you, in turn, sentenced 
Hess to 60 months.
    So under the terms of the statute, why did you choose to 
sentence Hess to the absolute lowest possible sentence you were 
allowed to sentence under law?
    Judge Jackson. Thank you, Senator. I have spoken at length 
throughout this hearing about these cases. I have said what I 
am going to say, which is I have taken every case seriously. 
These are very horrible----
    Senator Cruz. Could tell me what you say about the Hess 
case. I am asking you specifically----
    Judge Jackson [continuing]. Crimes----
    Senator Cruz [continuing]. About the Hess case.
    Judge Jackson. I have taken every case seriously.
    Senator Cruz. So you are not going to answer that?
    Judge Jackson. These are very horrible crimes, as was that 
one, and as a mother, having to look at these pictures, having 
to follow Congress' directive, having to listen to 
recommendations like the Government in that case, which argued 
for 60 months, I imposed the sentence that I believed was the 
sentence that was required by law.
    Senator Cruz. So I believe you, and actually I have read 
your sentencing hearing in each one of these cases for which we 
have transcripts, and there are several of which we do not have 
transcripts. So in each of these cases you read from the same 
script. So in each of these cases you say that the distribution 
of child pornography is an extremely serious Federal crime, and 
you point out that the crime involves people who are taking 
pictures and videos of real children while the children are 
being sexually abused.
    In Hess, you pointed out that he had hundreds--hundreds--of 
images of children in sexually compromised positions, some of 
them engaged in sadomasochistic acts--all of this I am reading 
from you, on the bench--and most importantly, the children in 
these pictures are not knowing and willing participants in the 
degrading conduct that was being depicted. They were being 
forced, forced by someone off-screen, to commit unspeakable 
acts of sexual violence for the pleasure of the people filming 
them, and for the gratification of people everywhere. And what 
concerns me is that many of those people have absolutely no 
shred of empathy for what that conduct does for the children 
who were being abused in this way. And you read this script in 
every one of these cases. So you talk about that these are 
terrible, terrible crimes.
    But you also--and in Hess you said, ``I have to say that 
what I found particularly disturbing about your offense was 
that you apparently concocted a story about having photographed 
your own daughter, who you purportedly were willing to take 
pictures of to trade with other people. I know from your 
comments, and from those who know you, that you are unlikely to 
ever harm a child,'' which I find remarkable that you have got 
a child predator in your court who says, I am unlikely to harm 
a child, and you say, Well, you told me that so clearly you are 
unlikely. But you say, But in the context of the crime, you 
represented that you would. That, in and of itself is 
astonishing.'
    So you talk about it as astonishing. You nonetheless 
sentenced him to the very lowest possible sentence allowed 
under law. And what is striking is in the cases, in half of 
them, in five, you sentenced the defendant to the absolute 
lowest sentence under law.
    Let's look at another case. Let's look at United States v. 
Chazin. Now Chazin is a particularly nasty case. In Chazin, the 
defendant was accused--accessed a dropbox that contained 35 
videos and 13 partially downloaded files of prepubescent, minor 
females engaging in sexually explicit conduct. At least three 
of the instances of prepubescent female children were engaged 
in sexual activity with adult men. The images included the 
sexual abuse of children, including those as young as toddlers, 
and several of these cases that you had involved the sexual 
abuse of toddlers, which is truly horrifying.
    In this instance, Chazin pleaded guilty. The guidelines 
recommended a sentence of 78 to 97 months. The prosecution 
argued that should be what the sentence was, and you sentenced 
Chazin to just 28 months. Why did you sentence someone who had 
child pornography of toddlers being sexually abused to 28 
months, 64 percent below what the prosecutors asked for?
    Judge Jackson. Thank you, Senator. You have picked out, I 
do not know, seven, eight cases. I have sentenced more than 100 
people.
    Senator Cruz. But not to child pornography.
    Judge Jackson. And in every case----
    Senator Cruz. These are child porn cases.
    Judge Jackson [continuing]. In every case, Senator, I look 
at the evidence, I look at the recommendations of not just the 
Government, because my duty as a judge is to consider all of 
the arguments that are made in a case. I look at the evidence. 
I talk to the defendants about the harms that they have engaged 
in. Many of these defendants are people who----
    Senator Cruz. Okay, Judge, with respect, you are not 
answering my question. You are right. You talked to them about 
the harms. Let me read you again from what you said at the 
bench. You said, in this instance, with Mr. Chazin, you said, 
``Among the defendants nationwide who received a below-
guideline sentence on the basis of a downward variance, as 
opposed to a departure, the average sentences ranged from 84 to 
92 months.'' So that is what you lay out as the average.
    Our Democratic colleagues say, ``Well, other Federal judges 
sentenced below the guidelines.'' That is true. A number of 
Federal judges do. Our Democratic colleagues have not pointed 
to a single Federal judge in the country who 100 percent of the 
time sentences child porn defendants to markedly below what the 
prosecution has recommended, unless you have a mandatory 
minimum and no ability to do so.
    In this case you say, ``Comparable defendants are sentenced 
to 84 to 92 months.'' Sentencing guidelines, by statute, 
require you to have similarly situated defendants sentenced to 
similar sentences, but you do not sentence Chazin to 84 to 92 
months. You sentenced him to 28 months. Why?
    Judge Jackson. Senator, I have said what I am going to say 
about these cases. No one case can stand in for a judge's 
entire record----
    Senator Cruz. Okay, but I am discussing every one of these 
cases.
    Judge Jackson [continuing]. And I----
    Senator Cruz. So if you are not going to explain it----
    Chair Durbin. Senator, would you please let her respond?
    Senator Cruz. No. Not if she is not going to answer my 
question.
    Chair Durbin. Well if you are just going to give a speech 
you should not engage in questions.
    Senator Cruz. And you are not taking my time. If you want 
to filibuster, you are welcome to do so, but do it on your own 
time.
    Chair Durbin. I would at least give you an opportunity to 
speak, and you should give her an opportunity to respond.
    Senator Cruz. If she wants to answer the question. I asked 
her why----
    Chair Durbin. Please allow her to answer the question.
    Senator Cruz [continuing]. I asked her why she sentenced 
Chazin to 28 months when comparable defendants, in her own 
words----
    Chair Durbin. And let's hear the answer.
    Senator Cruz [continuing]. Were sentenced to substantially 
higher. And she said she is not going to answer. I mean, I 
would welcome your answer.
    Chair Durbin. I did not hear that.
    Judge Jackson. Senator, I did not say I am not going to 
answer.
    Senator Cruz. Okay. Well, then, please tell us----
    Judge Jackson. I said my answer----
    Senator Cruz [continuing]. In these facts, in this case, 
Chazin, why did you sentence him to just 28 months?
    Judge Jackson. Senator, you are looking at the record. I do 
not have the record here. What I will say is that in every case 
I looked at the recommendations of not only the Government but 
also the Probation Office, the defendant, the record, the 
evidence. I took into account the seriousness of the offense, 
and I ruled.
    Senator Cruz. By the way, you know, one of the striking 
things in Chazin, the prosecutor comes in front of you and 
says--this is the prosecutor's argument at this point. And the 
prosecutor says, ``I understand, from my experience before Your 
Honor, Your Honor's objection, policy objections, to the 2G2.2 
sentencing guidelines.'' And he goes on to say, ``However, in 
this case in particular the four-point specific offense 
characteristic is justified because it contains sadomasochistic 
images of infants and toddlers.''
    I am trying to understand how you see someone that 
possesses images of infants and toddlers being sexually 
violated and you sentence them to 64 percent below what the 
prosecutor is asking for. You do not provide a justification 
other than a generic concern that the guidelines are too high. 
You do not provide a justification, as required by statute.
    So I am asking you to take the opportunity to explain to 
this Committee and the American people why, in 100 percent of 
the cases, you have people with vile crimes, and you have 
language saying they are vile crimes, but then you sentence 
them to very, very low sentences. And why do you consistently, 
100 percent of the time, choose to do that?
    Judge Jackson. Senator, no one case can stand in for a 
judge's entire sentencing record. I have sentenced more than 
100 people. You have eight or nine cases in that chart.
    Senator Cruz. Okay. Judge, you said that before. These are 
the eight or nine child porn cases. I will say, to correct the 
record----
    Chair Durbin. I would just say to the Judge, there is no 
point in responding. He is going to interrupt you.
    Judge Jackson. Thank you.
    Senator Cruz. Look, I appreciate the Chairman trying to 
filibuster, and if you do not like your witness' answers you 
are welcome to provide your own. She is declining to answer the 
question. And Chairman Durbin, if you want to join her on the 
bench, you can. But Chairman Durbin----
    Chair Durbin. My job is to make sure----
    Senator Cruz. Chairman Durbin, I am not interrupting your 
questioning.
    Chair Durbin. I am asking you to give her a chance to 
answer. You refuse to do it.
    Senator Cruz. But she consistently said she is not going to 
answer.
    I want to clarify for the record, by the way, the case I 
was discussing was Cooper and not Chazin. But Chazin is--the 
case that I was reading from, your transcript, was Cooper, but 
Chazin--all right, let's get to Chazin. I pulled the wrong tab.
    Chazin is equally horrifying, and you say in Chazin--this 
is something Senator Graham asked you. So the guidelines lay 
out different enhancements, and you say, repeatedly--and this 
is true in all your cases--you say, you disagree with the 
guidelines. You think they are wrong. And the two guidelines 
you disagree with is, one, there is an enhancement for use of a 
computer, and you say the world has changed and now all of 
these are on a computer, and I understand that. I do not agree 
with you but I understand that. That is an understandable thing 
to say.
    But the second thing you say, over and over again, is there 
is an enhancement for the number of images, and you say 
repeatedly, for example, in Chazin, you say, ``Whatever the 
state of the law and technology at the time of the guidelines 
were first adapted, neither the use of the computer nor the 
number of images are especially aggravating factors today.''
    Now I find that bizarre. And you say it in every case. You 
say the number of images is not an aggravating factor, it 
doesn't matter, and you won't apply the enhancement.
    Do you really believe that a predator that has hundreds or 
thousands of images of hundreds or thousands of children being 
sexually violated has not committed an offense that is more 
serious than someone that has a single picture of a single 
child? A single picture of a single child is horrifying, but 
hundreds of children that have been violated, do you really 
believe that is not a more serious offense?
    Judge Jackson. Senator, I did not have any cases involving 
hundreds of thousands of pictures.
    Senator Cruz. No, no. I said hundreds or thousands. You had 
cases involving hundreds and you had cases involving thousands. 
You are right, you did not have hundreds of thousands.
    Judge Jackson. And I also applied an enhancement, just not 
to the degree of the guidelines.
    Senator Cruz. You are right. It is a five-point enhancement 
of the guidelines. You provide two.
    Judge Jackson. Yes, so not zero----
    Senator Cruz. Okay. You are right, but----
    Judge Jackson [continuing]. Not the suggestion that I did 
not----
    Senator Cruz [continuing]. Are you suggesting the number of 
images does not matter? Because you say it in court, over and 
over again, that the number of images does not reflect that it 
is a more serious crime. Do you really believe that?
    Judge Jackson. Senator, as I said to Senator Graham, the 
court is taking into account a number of circumstances. The 
commission has done a report about the operation of the 
guidelines, which enhancements actually reflect different 
levels of culpability with respect to----
    Senator Cruz. So let me ask you this, Judge. You have said 
the purpose of sentencing is to distinguish, and distinguish 
between crimes that are not as serious from truly egregious 
crimes. Is that right?
    Judge Jackson. No, Senator.
    Senator Cruz. So what is the purpose of sentencing, if it 
is not to distinguish from less serious crimes from truly 
egregious crimes?
    Judge Jackson. It is to assign proportional punishment. It 
is to do justice in cases where you have defendants who are 
convicted of the same conduct but have different differing 
levels of culpability.
    Senator Cruz. Well, I will point out that you have a 
pattern. It does not matter how egregious the case is. Senator 
Hawley talked about the Hawkins case, where you had an 18-year-
old with pictures of boys as young as 8 being sexually 
assaulted and raped, and you sentenced him to just 3 months in 
jail.
    And I will point out the Stewart case, the last one on this 
list, because we are running out of time, the Stewart case, you 
describe that he had over 6,700 images and videos--so that is a 
lot, 6,700. That is a lot of kids being sexually assaulted----
    [Gavel is tapped.]
    Chair Durbin. Your time has expired, Senator.
    Senator Cruz. You have taken over a minute of my time, Mr. 
Chairman.
    Chair Durbin. You have been given extra time. You usually 
ask for it. You are given it.
    Senator Cruz. Okay. I know you want to interrupt. I know 
you do not like this line of questioning.
    Chair Durbin. I just want you to play by the rules.
    Senator Cruz. I know you like to interrupt, but----
    Chair Durbin. I would like you to play by the rules.
    Senator Cruz [continuing]. This is a substantial question--
time of my questioning, and I am going to ask my questions. And 
if you want to testify you are welcome to.
    Chair Durbin. Senator----
    Senator Cruz. Judge----
    Chair Durbin [continuing]. You play to the same rules as 
every other Senator.
    Senator Cruz [continuing]. In the Stewart case, you said, 
from the bench, ``Thus, although this is not necessarily an 
atypical case, your child pornography possession crime was 
egregious in the court's view.'' Okay. So this is a bad one. If 
you are actually sentencing defendants, you said this was 
egregious. What did you sentence Stewart for? The guidelines 
said 97 to 121 months. The prosecutor said 97 months. You said 
it is egregious--6,700 images--you come in with 57 months.
    [Gavel is tapped.]
    Chair Durbin. Time is expired----
    Senator Cruz. Why did you sentence him----
    Chair Durbin [continuing]. The Senator is 2 minutes over 
the allotted time----
    Senator Cruz [continuing]. To just 57 months, in the 
Stewart case? Do you want to address that, because you are 
claiming it is cherry-picking. In fact, you are welcome to 
explain any of these cases, but let's take the Stewart case. 
Why----
    Chair Durbin. Senator Coons.
    Senator Cruz [continuing]. Did you sentence him for half 
the amount?
    Chair Durbin. You are not recognized, Senator.
    Senator Coons.
    Senator Cruz. You do to want her to answer that question?
    Chair Durbin. You would not allow her anyway.
    Senator Cruz. But Mr. Chairman, she may answer the 
question. I have asked her why she sentenced Stewart----
    Chair Durbin. You have gone over the time, Senator, by 2 
minutes and a half.
    Senator Cruz. Because you have interrupted me for 2 
minutes, Mr. Chairman. Will you allow her to answer the 
question, or do you not want the American people to hear why, 
with someone she described as an egregious----
    Chair Durbin. You know, there comes a point, Senator, where 
you get a little bit----
    Senator Cruz. Chairman Durbin, will you allow her to answer 
the question?
    Chair Durbin. You will not allow her to answer the 
question.
    Senator Cruz. I will happily allow her. The question is, 
why----
    Chair Durbin. Senator Coons, you may proceed.
    Senator Coons. Thank you, Mr. Chairman.
    Senator Cruz [continuing]. Did you sentence Stewart, an 
egregious child pornography possessor to half of the amount----
    Chair Durbin. Please, Senator.
    Senator Cruz [continuing]. Requested by the prosecutor.
    Chair Durbin. Please, Senator.
    Senator Cruz. Will you allow her to answer the question, 
Chairman Durbin?
    Chair Durbin. Senator Coons.
    Senator Coons. Thank you.
    Senator Cruz. But why are you not allowing her to answer 
the question. There is not another Senator here----
    Chair Durbin. You are over time by 2 and a half minutes.
    Senator Cruz [continuing]. That you have not allowed her to 
answer the question. I am not asking another question, but 
allow her to answer the question, Chairman Durbin.
    Senator Coons. Thank you, Chairman Durbin.
    Senator Cruz. Why do you not want the American people to 
know what happened in the Stewart case, or any of these cases? 
Chairman Durbin, I have never seen the Chairman refuse to allow 
a witness to answer a question.
    [Gavel is tapped.]
    Senator Cruz. You can bang it as long as you want.
    Chair Durbin. I can just tell you, at some point you have 
to follow the rules.
    Senator Cruz. Okay. Will you let her answer the question? 
You have been interrupting me, and by the way, with Senator 
Graham it went 10 minutes over.
    Chair Durbin. It sure did.
    Senator Cruz. You have taken a big chunk of the time. Will 
you allow her to answer the question?
    Chair Durbin. You have given her full opportunity----
    Senator Cruz. Why are you afraid of her--she is welcome to 
answer it right now. Will you let her?
    Chair Durbin. Senator Coons.
    Senator Cruz. So no, you do not want her to answer the 
question?
    Chair Durbin. Senator Coons.
    Senator Cruz. Will you let her answer the question?
    Senator Coons. Chairman Durbin----
    Senator Cruz. Apparently you are very afraid of the 
American people hearing the answer to that question.
    Senator Coons [continuing]. We, here in the Senate, in this 
Committee today, are in the middle of a policy fight. It is my 
understanding that across this Nation more than 70 percent of 
district court judges who impose sentences in cases such as the 
ones that have been so vigorously debated here depart downwards 
from the sentencing guidelines, from the request of the 
prosecutors. And as you have explained, repeatedly and in 
detail, that is because a sentencing judge is required to weigh 
a whole series of factors.
    How many opinions have you written as a judge, Your Honor?
    Judge Jackson. I have written at least 570 opinions, 
Senator.
    Senator Coons. And I how many cases have you imposed 
sentences as a Federal judge?
    Judge Jackson. More than 100 cases.
    Senator Coons. And across all of those, we just heard very 
forcefully assertions made about you and your character and 
your capabilities, your background, narrowing in on just a few. 
And I would simply put, for those who are watching and trying 
to understand what all of this is about, that in an attempt to 
distract from your broad support, your deep record, your 
outstanding intellectual and legal credentials that we are 
taking what is a policy dispute that should be decided by 
Members of the Senate. If we want to change the sentencing 
guidelines to make them mandatory rather than advisory, if we 
want to change the structure within which a Federal judge 
imposes sentences, we could do that. But to demand that you be 
held accountable for this practice that is nationwide and is 
years old, I view as an unfair misrepresentation of your 
record.
    So if I could, let's go to something that you did, as the 
vice chair of the Sentencing Commission, an important vote that 
you took in 2014, because in my view it shows how fundamentally 
misguided are the attacks that try to characterize you as 
someone who, at all costs, will do what you can to help 
criminal defendants.
    Let me just lay out the context for a moment. In 2010, 
Congress enacting a policy choice, unanimously passed the Fair 
Sentencing Act, a bill that reduced the disparity in sentences 
between crack cocaine and powdered cocaine from 100-to-1 to 18-
to-1, and the Sentencing Commission unanimously concluded this 
law meant those currently in prison on crack offenses could 
seek to shorten their sentences.
    Four years later, the commission further concluded that 
individuals who provided substantial assistance to the 
Government, people who cooperated, who helped out the 
prosecution, could use this law to shorten their sentence 
retroactively, beyond any break they might have gotten for 
their cooperation. But you disagreed.
    In your public remarks at the time you explained that 
although given your prior service as a Federal public defender 
it might seem logical you would support this direction, you 
could not do so because you concluded it was manifestly 
inconsistent with the law and would create unfair disparities 
between those previously sentenced cooperators and those 
sentenced today.
    Essentially, if I understand your view, it was that the 
sentence of a cooperator should not be understood to be based 
on the sentencing ranges modified by the Fair Sentencing Act 
but was best understood as a fixed discount of the mandatory 
minimum that the Fair Sentencing Act had not changed. I know 
this is technical, but I just wanted to make sure I am 
characterizing this correctly before reaching a conclusion.
    Do I understand the context correctly in which you made 
this decision?
    Judge Jackson. Yes, Senator, perfectly. It was debate among 
the commission, one of the very few in which we could not reach 
agreement about the retroactive application of the Fair 
Sentencing Act reduction.
    Senator Coons. And so just to finish the framing, the 
Sentencing Commission, which often decides things unanimously, 
was sharply divided, and here is who was on each side. You 
voted to deny relief to cooperators, to deny them a pathway 
toward reducing their prison sentences, and you were joined by 
two conservatives well known to us, Judge William Pryor and 
now-Judge Dabney Friedrich. And the three of you were outvoted 
by four commissioners, which included Judge Hinojosa, an 
individual nominated by President Reagan and described as a 
hard-nosed, no-nonsense judicial conservative, who was on the 
other side of the argument from you.
    So you have got four commissioners, including an 
outstanding conservative Reagan nominee, and they thought the 
law could be interpreted to give a break on sentencing, and you 
were on the other side of that argument.
    If, as someone as tried to paint you, you simply were 
determined to give every break you could to criminal 
defendants, all you had to do was join the majority and this 
would have passed, but that is not what you did. Help me 
understand why not.
    Judge Jackson. Thank you, Senator. As you say, this is a 
sort of technical kind of in-the-weeds discussion, but the top 
line is that when I looked at the issues and I looked at the 
law it was my opinion that the law did not provide for the 
further reduction that was being considered.
    Senator Coons. So across an incredibly broad range of 
sentences you have had to impose and cases on which you have 
had to opine, I am picking this one, in part because it is not 
getting any attention in this confirmation process. But for 
folks who would like some insight into how you make decisions 
and how you explain those decision, there is a video that is 
publicly available of your April 2014, of the public meeting of 
the Sentencing Commission, where you laid out your position. So 
I encourage folks to just watch that, and they will see a 
jurist who understands that her commitment above all is to 
determine what the law requires and then follow it. In my view, 
that is an individual who belongs on the Supreme Court.
    By the way, your position, that the law required that there 
not be further breaks given in this context, ultimately won the 
day. My colleague from New Jersey made a point of mentioning a 
relevant case, United States v. Booker, yesterday. I have to 
say that in this case it was decided in Koons v. United States, 
with a K, not a C.
    [Laughter.]
    Senator Coons. Look, we all have our judicial record from 
which we work. But the Supreme Court ruled for exactly the same 
reasons you did in this argument that was made public.
    So I just think, Your Honor, this is an example of you 
looking hard at the law, making a tough decision, ultimately 
being vindicated in that decision, but taking a position that 
is not the caricature that has been proffered by some of you.
    Yesterday I ran through a number of the letters and 
statements that debunk some of the attacks that have been 
levied based on a handful of sentencing decisions. There was 
the National Review piece by a conservative former prosecutor 
who calls out the smear on your sentencing practices in cases 
involving child pornography; the statement by the Fraternal 
Order of Police and the International Association of Chiefs of 
Police, endorsing your even-handed and judicious approach to 
the law; the glowing letter from 24 prominent conservative 
attorneys; and the resounding recommendation we heard in person 
from Judge Griffith.
    There has also been received here a letter from a number of 
retired Federal judges, including 2 Republican nominees, 
rejecting this mischaracterization of your sentencing record. 
As I have said, this is a policy dispute that we should be 
deciding, not an appropriate basis on which to mischaracterize 
your record or your character.
    We have letters from the National Coalition of Domestic 
Violence in addition to these law enforcement leaders, from 
survivors, advocates, crime victims. The breadth of your 
support from the very communities my colleagues have suggested 
you are making less safe shows just how off-base these attacks 
are, and in my view is a testament to your qualities and 
qualifications.
    So we all agree, all of us that it is critical to protect 
our children and prevent the kinds of heinous crimes we have 
heard about in some detail earlier today. It is why I am 
introducing a bipartisan reauthorization of the Victims of 
Child Abuse Act, something that we could act on as a Committee 
to do our job, which is set policy and pass laws.
    But I also, frankly, think we need to be mindful that we 
are asking of you to get engaged in that policy dispute in 
front of this Committee, which is not the role of a judge, 
something you well understand.
    Let me turn, if I could, to another reason I think you are 
deeply qualified and that you will bring something important to 
the Supreme Court. Bryan Stevenson, one of America's civil 
rights lawyers, and, by happy coincidence, a Delaware native, 
has spoken about how achieving justice requires being proximate 
to the people most impacted by the criminal justice system, and 
you have done that. As a public defender, you have represented 
individuals in the criminal justice system. As a district court 
judge, you have looked individuals in the eye and told them 
that for their crimes against society they will spend years or 
decades in prison. You have met with, fought for, and advocated 
for victims.
    You have also studied the big picture. As an effective and 
engaged member of the Sentencing Commission you have pored over 
data, reviewed thousands of letters, and thought hard about the 
appropriate national approach to just punishment, in a more 
policy-oriented role.
    You have also thought about the big picture as a judge when 
considering the precedent that your opinions set. I would be 
interest, briefly, in how your experience on the Sentencing 
Commission shaped your approach as a district court judge and 
how the interplay of all these factors might shape or 
contribute to your decisions as a Supreme Court Justice.
    Judge Jackson. Thank you, Senator. One of the things 
district judges, sentencing judges, often say, when asked about 
the task, is that sentencing is the hardest thing that a judge 
has to do, and it is in part for the reasons that you have 
articulated, that it is one thing to understand the law, to 
read it in a book. It is one thing to look at data and numbers 
and make policy based on that. It is quite another to have 
someone in the courtroom, whether as a victim of crime or a 
defendant who has perpetrated a crime, and have to decide how 
to proceed and pronounce a sentence on that individual.
    The work that I did on the Sentencing Commission, which was 
prior to my becoming a district judge, I think enabled me to 
understand unwarranted sentencing disparities, to understand 
some of the policy reasons behind the guidelines, and to make 
the kinds of evaluations that the law now requires, since the 
guidelines are no longer mandatory. And I felt better, in a 
sense, about the task of calculating the guidelines, which is 
what courts have to do at the beginning of a sentence. They can 
be a little complex, and having been on the Sentencing 
Commission I think that helped. And some of these cases do make 
their way to the Supreme Court.
    So I think that I am prepared to handle the cases that 
involve sentencing, that do go to the Court.
    Senator Coons. In preparing for this confirmation I went 
back and read a lecture you gave, but it was later published in 
the Harvard Law Review, about the balance, the challenge of 
sentencing, about that moment. I had the joy, the blessing, of 
clerking for a judge on the Third Circuit. My legal skills and 
talents did not allow me the opportunity to clerk for the 
Supreme Court, as you did, and also the district court, and 
also the circuit court.
    But I clerked for a judge who I first met when she was a 
district court judge and imposing a sentence on someone who was 
a crack dealer, and she did a remarkable job of speaking to the 
victims, speaking to the community, speaking to the prosecutor 
and the defense attorney, and then speaking directly to the 
defendant, in imposing a very long sentence. And as I got to 
know her later I recognized that, you know, as a member of our 
community and as someone who saw the importance of that moment, 
that public moment, of helping the defendant understand what 
they had done so that they might somehow change, but also 
helping the victims understand what had happened, that she took 
that very seriously, incredibly seriously.
    In the Harvard Law Review publication of your remarks you 
said that you were persuaded by the theories of punishment that 
accept all human beings are responsible moral agents, and you 
view punishment as a necessary consequence of the defendant's 
decision to engage in criminal behavior. You also went on to 
say that ``the challenge is balancing the acknowledgement all 
of us are more than just the worst thing we have ever done, but 
there is a need to ensure the defendant is adequately addressed 
and punished.''
    What I think you say in that lecture, what you have shown 
across the arc of your public service, reveals someone who 
understands the appropriate need for punishment in our society 
but who is also striving to follow the balance of 
recommendations, guidelines, statute, and the context and 
facts. And I trust that as Members of this Committee and the 
Senate as a whole and the general public take the time, which 
they should do, to give a fair reading to the whole scope and 
arc and reach of your service that they will see you as someone 
who cares deeply about our Constitution and the rights that 
make us free, as you said in your opening statement.
    Your career in the law, your service on the bench, your 
thoughtful responses to questions put to you, the way you have 
maintained your composure all impress me.
    As I mentioned, I do not think labels such as judicial 
philosophy are always that meaningful or dispositive. I think 
in your case a deep admiration for the Constitution and an 
understanding that the role of a judge is a limited one are 
critical and qualifying.
    You opened yesterday by referencing how your parents were 
educated in racially segregated schools in Florida but how you, 
just one generation later, were raised in integrated schools 
and had far greater opportunities to put your evident, God-
given talents to work in service to our Nation. You cited this 
one-generation change as an example of the greatness of 
America. Of course, the Supreme Court played a central role in 
more correctly interpreting the Constitution and applying it in 
a manner that allowed this reversal of unjust law to occur.
    I think the experiences of your own family and your 
connection to the experiences of trailblazers who came before 
you, on whose shoulders you stand, has meaningfully shaped what 
kind of a Justice you will be. I think you know in your bones 
how important our Constitution and the rule of law is, and I 
think, as someone who served on the Sentencing Commission, a 
public defender in the trial court, and appellate court judge, 
you have the ability to see across the whole scope and reach of 
how the law impacts families, communities, and our Nation.
    Last, and in some ways I think most importantly, I have 
learned that as a person and a judge you have humility. Judge 
Griffith, who came before this Committee to introduce you, and 
scores of others we have heard from, I just referenced, have 
lauded your practice of judicial restraint, and you have said a 
core component of your philosophy is your understanding that 
the judge's role is a limited one. Well, I think restraint is a 
core part of your approach to decisionmaking, partly because 
you are a judge who is humble enough to know that the 
Constitution and the laws passed by Congress say what the law 
is. The judge has a limited role in deciding questions of law 
based on facts presented.
    Penn law professor, Lisa Fairfax, your other introducer, 
your dear friend, explained that since college at Harvard and 
then through law school you have been a mentor and a role 
model. She praised your warmth and intelligence, your devotion 
to friends and family, but she also mentioned your humility. 
She knew you were honored and humbled by the significance of 
this moment, not what it means for you but what it means for 
our Nation.
    I remember thinking about this on Monday, and I had a 
chance to talk to your brother, Ketajh, and he mentioned that 
he knew you were destined for this moment your whole life. I am 
sure he would say you have been exceptional since you were 
student body president at Palmetto High School. I suspect your 
wonderful family upbringing is partly responsible for this 
facet of your character.
    I suspect your faith has played a role in sustaining you, 
as mine does, and so does many others in this room. I have 
often found instruction and comfort in the verse, ``What does 
the Lord require of you but to do justice, love mercy, and walk 
humbly with your God.'' I am not going to ask you to reflect on 
that verse, Your Honor, but I would not be surprised if it is 
one of your favorites that sustains you.
    Let me close by returning to what Judge Griffith said when 
he told us, in his heartfelt introduction of you on Monday, and 
something you have also shown in the hours you have been 
grilled by this body. He had already written a letter to this 
Committee delivering his endorsement. He took the extra step to 
then amplify it in person, and he did so because of confidence 
in you and because he was delivering a message to us, as a 
Committee, that Supreme Court confirmations should be more than 
just exercises in partisan tribalism.
    He said there should be nothing unusual about a judge who 
just happened to be appointed by a Republican President and who 
holds conservative legal views coming forward to support a 
nominee with your impeccable qualifications and character, 
especially a nominee whose legal opinions, whose actions and 
decisions as a judge he was in a position to review for years, 
given that you were a district court judge and he was a circuit 
court judge.
    Look, our confirmation hearings for Justices have sadly 
been devolving over many years, into longer and longer 
exercises of partisan politics, punctuated by just brief 
glimpses and occasional thoughtful examinations of a nominee's 
judicial decisionmaking and views on the Constitution, which 
should properly be our main focus.
    I have to believe this sad state of affairs troubles my 
colleagues of both sides and all who watch this, but as I 
reflect on these hearings I am hopeful that your gracious, 
thoughtful exchanges with some Members will be remembered as 
just one more service you have rendered to our Nation, and I 
hope some watching these hearings will be reminded that even 
though we disagree with the policy preferences or opinions of a 
nominee, we should all recognize when a nominee is 
fundamentally qualified, deeply committed to the Constitution 
and rule of law, and a person of great character.
    Judge Griffith reminded us at the outset of this week, and 
I quote, ``As Justice Scalia taught us for so long, an 
indispensable feature of the republic the Constitution created 
is an independent judiciary of judges who have taken an oath 
not to a President or a party but to the American people and to 
God that they will be impartial.''
    I could not agree more with Judge Griffith. You have 
demonstrated your unwavering commitment to that oath and your 
impartiality and your abundant qualifications. It will be my 
honor to support your confirmation for Associate Justice.
    With that, Mr. Chair, I yield.
    Chair Durbin. Thank you, Senator Coons.
    The Senator from Nebraska, Senator Sasse.
    Senator Sasse. Thanks, Chairman Durbin. Judge, welcome 
back. I would like to associate myself with parts of what Chris 
said there in his closing. I would differ with him about 
whether or not getting to precision on judicial philosophy 
matters, but you know that. You and I have been wrestling about 
it for a couple of weeks. But I would like to affirm Chris' 
point about the beauty of the hymn to America you told, through 
the eyes of your parents, and the changes, the growth in the 
country over the course of the last two generations. The Wall 
Street Journal had an editorial this morning that said pretty 
much the same thing as Chris just said, which is that the hymn 
to America that you gave in your opening on Monday afternoon 
and some of your comments yesterday were inspiring and 
beautiful. So I associate myself with Senator Coons on that.
    I would like to talk a little bit about your time as a 
judge and particularly how you see development and growth and 
change over that time. So take us back 9 years, and maybe 5 
years ago, and then today. How has your approach to being a 
judge changed from Year 1 to Year 5 to today?
    Judge Jackson. Thank you, Senator. I do think there was a 
little bit of growth. I hope there was a little bit of growth. 
Certainly in Year 1 and Year 5 I was still a district judge, 
and both of those years differed dramatically from my work as 
an appellate judge, which is where I am currently stationed.
    In every job in Year 1 you are new. You are trying to 
figure things out. I do not know that I had quite pinned down 
at the very beginning exactly how I would approach cases, but 
by the time I got to Year 5, I think I had a really good sense 
of this judging thing, and was able to demonstrate in my 
opinions, the many, many opinions that I have written, the way 
in which I go about making my decisions.
    I was able to demonstrate, clearly, I think, that the 
particular parties in the case, the issues in the case, what it 
is about, from a standpoint of personal preference, is not an 
issue. I am setting those things aside. I am ruling from a 
position of neutrality and trying to determine, in every case, 
what the law requires. I am looking at only the facts and the 
law in the case. I am evaluating the arguments of the parties, 
and if it is statutory interpretation I am trying to ascertain 
what Congress has intended.
    I am committed. I think my record shows, to the 
understanding that that is the role, and the only appropriate 
role for a judge.
    Senator Sasse. I would like to talk a little bit about the 
troubling pattern we see on law school campuses and across 
higher education more broadly, especially in the last 5 years. 
There is obviously a trend toward shouting down and canceling 
opinions that are outside the left-leaning mainstream, calls 
for firing professors, canceling professors, shouting down and 
sometimes threatening speakers who bring divergent, diverse 
opinions, calls to discipline fellow students. These tactics 
are increasingly commonplace, particularly against conservative 
speakers and professors and students, but also increasingly 
against traditional liberals.
    I am a former college president, and one of the sort of 
oddities that does not fit inside the tribalism of how a lot of 
times media covers things in DC--one of the oddities for me is 
how often I have liberal professors reaching out to me, saying 
that their experience on campus is becoming much less 
interesting, that the divide on American political campuses is 
less and less conservative policy-leaning versus liberal or 
progressive policy-leaning, but more and more liberal versus 
illiberal.
    And I think these campaigns are obviously deeply 
problematic. They shut down debate rather than teaching 
students how to engage ideas that they might not have 
encountered before, which is also a pretty decent definition of 
education. If you already knew everything before you ever 
encountered a new idea, you would not need to write checks or 
take time off of productive life.
    So there is obviously a tendency and response for students 
to self-censor rather than learn from each other, and this robs 
students of the chance to engage with ideas from across the 
political spectrum. But in particular, in law schools, it robs 
students of the opportunity to learn how to consider an 
alternative position and argue a different point of view than 
they might have had.
    So given that you are a debate champion in earlier days as 
well, I would like to ask if you agree that law students should 
be engaging with ideas from across the political spectrum, even 
those they disagree with, rather than trying to shun those 
different ideas.
    Judge Jackson. Thank you, Senator. Let me just say, in part 
because these issues are things that could implicate matters 
that come before the courts, I will just say that as a general 
matter law school, like many schools, is a place where ideas 
and perspectives are considered, and in the law, as I have 
said, it is important for the judge who is making the decision 
to have different arguments.
    And so one of the things that traditionally happens in law 
schools is that you are trained in law to make arguments that 
are at times not even the arguments that you personally agree 
with, because the understanding is that in litigation, in 
disputes that come before the court, the court is going to want 
to hear from different viewpoints. So in that sense, the 
essence of legal instruction is to have different arguments 
being made, because that models, in great part, what happens in 
a courtroom.
    Senator Sasse. I really am not trying to ask any kind of 
gotcha question here----
    Judge Jackson. Yes.
    Senator Sasse [continuing]. But we highly agree, so I do 
not understand the qualification you put at the beginning. 
There is no sort of second-order fork on my question. It is 
better to debate ideas that you disagree with than shout them 
down, isn't it?
    Judge Jackson. It is better in law schools to make sure 
that there are ideas from all perspectives, and in order to 
have that happen they cannot be suppressed.
    Senator Sasse. So you do not want students shouting down 
other students or visiting professors, right? I mean, honestly, 
I did not think there was any chance we would differ on this, 
so I am not----
    Judge Jackson. No. I am not suggesting that we do differ.
    Senator Sasse. Okay. You are against canceling people, I 
assume.
    Judge Jackson. I am not suggesting that we differ. What I 
am saying is that these issues about speech on campus and the 
like are the kinds of things that are issues that are working 
their way, you know, in different formats and different ways 
through the courts. And so I am just being careful in terms of 
my answers.
    Senator Sasse. Okay. I am trying to lead you, because I 
want to, because I think American civic health will be better 
off. You are going to be a hero--you are already a hero--to 
lots and lots of kids, students, maybe some bound for the law, 
but more broadly students across the country. And I think it is 
in America's public interest for them to hear you as an 
advocate for the full, vigorous, strong kid debate of different 
views. And so I suspect you are an advocate for vigorous and 
robust debate. I do not see how you might be constrained 
against saying that because of future cases. But I am going to 
assume we are mostly aligned on this.
    Judge Jackson. I think that is a fair assumption.
    Senator Sasse. Thank you. I do want to make, before we move 
on, just because we have had a number of Members of this 
Committee comment on cameras in the Court, I have made my 
position on this clear a lot of times, but if I can give a tiny 
bit of friend-of-the-court brief in advance, because I think 
when you are on the Court and you all continue to debate this 
issue, I think it should be a decision for the Supreme Court to 
make about whether or not there are cameras in the courtroom, 
not a decision for the Article I branch to make for Article 
III.
    But I think it is incredibly important for us to recognize, 
because I think I different from a lot of my colleagues on this 
who are advocates for cameras in the courtroom. I get their 
position that transparency is a virtue; transparency is a good 
thing. I also believe that pen and pad can facilitate a whole 
heck of a lot of transparency just fine, and it is healthy for 
Americans to recognize the second- and third- and fourth-order 
effects of cameras.
    A huge part of why this institution doesn't work well is 
because we have cameras everywhere. Camera's change human 
behavior. We know this. You do not have the same kinds of 
conversation over the dinner table with your family when you 
are wrestling through issues, and apologizing for something, 
and saying, ``I said this before but maybe I should modify what 
I said. My tone was jerky. My substance did not account for 
your position.''
    There is a whole bunch of things that humans can do if they 
are not immediately mindful of some distant camera audience 
that they might be trying to create a soundbite for. Instagram 
can be useful for some small things but for intellectual 
discourse it is not a friend. And I think that we should 
recognize the jackassery we often see around here is partly 
because of people mugging for short-term camera opportunities, 
and it is definitely a second- and third- and fourth-order 
effect that the Court should think through before it has 
advocates in there who are not only trying to persuade you nine 
Justices but also trying to get on cable that night, or create 
a viral video.
    So for what it is worth, I hope that the Court doesn't 
respond to some well-meaning impulses from the Congress to push 
for cameras in the courtroom but also some bullying. And there 
are ways that you can get to a lot of transparency. Audio 
recordings are increasingly released from the Supreme Court, in 
timelier fashion, over the past few decades. So for what it is 
worth, I am glad that you, on the Court, are making that 
decision, and I hope it is not made for you by the Congress.
    I want to go to back to the ``legitimacy'' of the Supreme 
Court. That term has been used a few times over the last 3 
days. Do you think the Supreme Court is legitimate?
    Judge Jackson. I do, Senator.
    Senator Sasse. And so some of the ways that the Court has 
been derided and called ``illegitimate'' by Members of the 
Senate include, over the course of recent days and weeks, 
quote, ``leans into extreme partisanships,'' ``leans into 
extremism,'' ``twists the law,'' ``threatens basic liberties,'' 
``has been hijacked by Republicans.'' These kinds of attacks 
undermine the public's trust in the Court. We need the public 
to believe in the legitimacy of its government, including all 
three branches.
    So I would ask you, do you agree with these 
characterizations of the Court that have been levied in this 
room over the last few days?
    Judge Jackson. Senator, I have nothing but respect for my 
former judicial colleagues, my current judicial colleagues, and 
hopefully my future judicial colleagues. I do believe that we 
need legitimacy. I have said that is the currency of the Court, 
and I look forward, if I am confirmed, to joining this 
institution.
    Senator Sasse. So do you think there could be any opinion 
that would be handed down this term that could undermine the 
legitimacy of the Court?
    Judge Jackson. Senator, I think the Supreme Court makes its 
determinations, and all of them are precedents, and they are 
entitled to respect.
    Senator Sasse. I would like to come back to our 
conversation from yesterday. You pointed out a number of times 
that as both a district and now a circuit court judge you are 
constrained and bound by the Supreme Court's holdings. You 
mentioned a couple of times that you have not had a chance to 
do much constitutional interpretation for yourself. I largely 
agree with the way you framed most of that for the lower 
courts, but I think you would also agree with me that the job 
of a Supreme Court Justice is different than a district court 
judge, and in certain ways from a circuit judge as well.
    When you serve on the Supreme Court, you will have to 
interpret what the Constitution means, and based on what you 
told us about the constrained role on the lower courts, lower 
court decisions would then not be able to answer how you would 
approach the new job you would have on that highest court. And 
so that is why I thought our conversation on judicial 
philosophy yesterday was somewhat helpful. I am not a lawyer, 
but I think you took a lot of us to law school yesterday in 
ways that were helpful. And in particular, you walked us 
through some different schools of constitutional and statutory 
interpretation in ways that I think were good for the 
Committee, were good for the Court, and were good for the 
public, more broadly.
    So I guess I would ask you if you could take us to law 
school one more time, and walk us through some of the different 
approaches to substantive due process and unenumerated rights. 
What are the different ideas on the Supreme Court and in the 
broader legal community?
    Judge Jackson. Thank you, Senator. I am mostly familiar 
with the Supreme Court's precedents in this area. It has been a 
while now that the Supreme Court has determined that the 
Fourteenth Amendment, which guarantees due process, includes a 
substantive component in addition to procedure. The term ``due 
process,'' one would think is just about the procedures that 
the Government has to afford you before it affects your life, 
liberty, or property, but the Supreme Court has also said that 
that protection extends to certain personal, individual rights 
that relate to dignity and autonomy, and that are deeply rooted 
in our Nation's history and traditions or implicit in the 
concept of ordered liberty.
    And the kinds of things the Court has recognized, pursuant 
to that line of jurisprudence are things like marriage, 
interracial marriage, access to contraception, a woman's right 
to terminate her pregnancy, abortion pursuant to--subject to 
the framework established in Roe and Casey, travel, child-
rearing, the ability to direct your children. Those are some of 
the rights that have been recognized pursuant to the Fourteenth 
Amendment due process laws. I am less familiar with the sort of 
scholarly debate outside of the Supreme Court's rulings.
    Senator Sasse. So will there be new ones in the future?
    Judge Jackson. Senator, I am not able to forecast. In every 
case, the Supreme Court is looking at a particular set of 
circumstances consistent with the Article III requirement that 
the Court look only at cases and controversies. So it would 
depend on what cases came before the Court.
    Senator Sasse. So I think that gets at the challenge here 
that you and I have been going back and forth on over the 
course of a couple of weeks, because I get the modesty points 
about being on the district court, but it seems pretty 
important to understand what the limits might be as a Justice. 
And so I think this morning again you stated that your--I think 
the quote was that your ``judicial philosophy is your 
methodology.'' But I think that a judicial philosophy of some 
kind is necessarily an input into your judicial methodology and 
into every Justice's actual jurisprudence on the Court.
    And that is why I think it is important for us to unpack 
that, because the philosophies that you have outlined for the 
Committee--again, I think yesterday's back-and-forth that you 
and I had on Breyer versus Scalia is important, and you 
wouldn't claim any of those philosophies for yourself. And yet 
I think the philosophies ultimately instruct judges on the 
sources and the tools they consult, on how they discern intent, 
on whether the Constitution is protecting specific limited and 
defined principles or more general values, and whether modern 
values can be used to infuse our understanding of the 
Constitution.
    So again, when you narrated a bit of the debate between 
Justice Breyer, I know you have got lots of intellectual inputs 
in life, but you've credited him as a brilliant jurist and role 
model before, and the Scalia debates, you did not really tell 
us who you thought got the better of the argument. And so I 
think throughout these 2 days you have focused a lot on what 
the Supreme Court has said, and I think that is helpful and 
important. But I have been also trying to get at what you think 
the limits might be on what Justice Jackson would be 
constrained by.
    So I feel like, I believe we still have not heard your 
judicial philosophy, and I wish I had made more progress with 
you on that. But what we do know, on a personal note, is that 
these Committee 3 days have been very long, and I want to thank 
you--I got to have a nice conversation with your parents 
earlier, your whole family--for what you have endured and for 
spending time with us. And obviously I wish best wishes to you 
and your family. Thank you, Judge.
    Judge Jackson. Thank you.
    Chair Durbin. Thank you, Senator Sasse.
    And Senator Blumenthal is next.
    Senator Blumenthal. Thanks, Mr. Chairman.
    Good afternoon----
    Judge Jackson. Good afternoon.
    Senator Blumenthal [continuing]. Judge Jackson.
    I know your birthday. September 14th.
    Judge Jackson. Yes, sir.
    Senator Blumenthal. You have the happy coincidence of a 
birthday with Constance Baker Motley.
    Judge Jackson. Yes, sir.
    Senator Blumenthal. Who just happens to have been born in 
New Haven, Connecticut.
    Judge Jackson. Ah.
    Senator Blumenthal. And we are very proud that she is a 
daughter of New Haven and Connecticut and she is one of my 
heroes, as well.
    As you know about her, she was the first Black woman 
appointed to the Federal bench. She is the first Black woman to 
have argued before the United States Supreme Court; in fact, 
her record before the Court was 10 wins and zero losses. She 
was very predominantly responsible for Brown v. Board of 
Education. Thurgood Marshall got most of the credit, but she 
did a lot of the work. It probably sounds familiar to you.
    So, why don't you tell us, and maybe tell those folks, 
particularly women and girls who are watching or listening, why 
you said at the outset of the hearings here that she was one of 
those whose shoulders you stood upon as you came here today.
    Judge Jackson. Thank you, Senator.
    Well, in addition to the fact that we share a birthday, 
which I discovered when I was in law school and thought, what a 
happy coincidence in terms of someone who I so admired. And, 
secretly, at that point, I was thinking maybe I might want to 
be a judge, so it was a wonderful coincidence.
    I so admired the fact that she was the first. It is not 
necessarily easy to be the first, but it is an opportunity to 
show other people what is possible. When you are the first, it 
means no one has ever done it before like you and there may be 
hundreds, thousands of people who might have wanted that 
opportunity and thought, I can't do that because there is no 
one there like me.
    And so being a trailblazer, whether it is Judge Motley or 
Justice Marshall or Justice O'Connor, being a trailblazer is 
really inspiring, I think. And I was always moved by Judge 
Motley's experience and think it may even be part of why I 
moved in this direction.
    Senator Blumenthal. Well, it is inspiring.
    And I hope that your very inspiring story will make it 
possible for a lot of others to think it not secretly, but say 
it out loud and aspire to it, because it is what this country 
needs. And, fortunately, President Biden has recognized it in 
the nominees that he has put before us, and we have tried to 
work with the great leadership of Senator Durbin to confirm 
people of real merit, the kind of qualifications in intellect 
and character and depth and warmth that you bring to us today.
    I want to talk a little bit about voting rights, because 
part of the reason why those dreams now are realities is that 
more people have the right to vote, at least until recently; in 
fact, there has been a lot of backsliding about turning back 
the clock on voting rights.
    The gentleman sitting behind you, Doug Jones, our former 
colleague, who we very much respect and admire, wrote a tribute 
to Vivian Malone Jones, who has a rich story as a civil rights 
warrior and who succeeded John Lewis as head of the voter 
rights project. And he said in a speech that Doug Jones wrote 
in a tribute to her as she was inducted posthumously into the 
Alabama Women's Hall of Fame, I'm quoting, ``We can best honor 
her by acknowledging that while most doors are unlocked today, 
they are still heavy and so hard to open for so, so many people 
in Alabama and the rest of the Nation. Let us commit ourselves 
to do our part to open these doors as wide as possible so that 
everyone can take the walk that Vivian took.''
    I am going to ask that former Senator Jones' full speech be 
entered in the record, Mr. Chairman.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Blumenthal. Thank you.
    The simple fact of the matter is, Judge Jackson, Congress 
passed the Voting Rights Act in 1965. It was a source of real 
power to so many people who got the right to vote for the first 
time in practical terms, because it struck down more than 1,000 
discriminatory election rules, proposed by State and local 
officials. It opened the ballot box to millions and millions of 
Americans and it became regarded as the crown jewel of the 
Civil Rights Movement.
    And then, just in the last few years, the Supreme Court has 
hacked away at it in an exercise of judicial activism that has 
been historic in magnitude; judges supplanting their views for 
the policy preferences and official acts of legislatures in 
opinions that were written and joined by only conservative 
Justices. These decisions were about as far from judicial 
restraint as there could possibly be--not even close, and they 
rewrote the rules of our most cherished and most bipartisan 
civil rights law; you know the cases, Shelby County, Brnovich 
v. Democratic National Committee. In effect, their opinions, 
including Justice Alito's decision in Brnovich, are completely 
untethered from the clear statutory text and they impose a 
series of so-called guide posts on Section II that create 
unreasonably high hurdles to the exercise of the Voting Rights 
Act.
    I hope that you will bring to the Court that deliberate, 
careful methodology that you described earlier, very 
convincingly. It is part of your judicial philosophy in the 
sense that it is your approach to cases and it has been very 
persuasively and clearly articulated. And I think that if that 
kind of deliberate and careful methodology had prevailed on the 
United States Supreme Court, we would still have the Voting 
Rights Act in full right now, and I hope that we can, once 
again, return to bipartisan support of those rights.
    The most recent exercise of unfortunate decisionmaking in 
the voting rights area came just hours ago when the Supreme 
Court struck down the decision of the Wisconsin State Supreme 
Court in Wisconsin Legislature v. Wisconsin Elections 
Commission. What is striking is not only the result, but the 
fact that it was done as part of the shadow docket.
    We have talked a lot about it here and what the people of 
America should know is there is no oral argument; there is only 
minimal briefing. There are no full opinions of the Court; in 
fact, I am holding up a per curiam opinion that is about 12 
pages in length from the Court, which means you don't know who 
wrote it, and there is a powerful dissent. I recommend that 
everyone read it. Again, use of the shadow docket has become 
increasingly prevalent since 2017 and, in effect, the United 
States Supreme Court is shirking its duty.
    I hope you will bring to the Court the kind of responsible 
and methodical approach to decisionmaking that will lead to an 
avoidance of the shadow docket, as well as a return to the 
Voting Rights Act.
    And if I can just offer one more piece of advice on the 
Court's workload, I have a chart.
    [Poster is displayed in the hearing room.]
    Senator Blumenthal. I know we are not going by the Rules of 
Evidence here, but this chart indicates the signed decisions of 
the United States Supreme Court over a good part of its 
history. And I think the pattern here is pretty clear. The 
Court issues fewer signed opinions, in fact, it has declined 
precipitously since 1972. This little blip at the end here is 
an increase from 53 to 57, but you can see it is only a 
fraction of what the Court used to do in signed opinions. Even 
from a time when I was a law clerk, it has diminished 
profoundly.
    The Supreme Court needs to do its job; it needs to issue 
signed opinions, not the shadow docket. It needs to take cases 
and resolve real, fundamental, important issues.
    And taking your record, 573 opinions over 9 years, I am not 
a math major, but that is about 64 opinions a year. That is a 
lot more than they do, all nine of them.
    So, I hope that you will bring the energy that you have 
demonstrated in this room, the energy and the work ethic to the 
United States Supreme Court, because, clearly, you have both 
and I think the Court is very much in need of it, as it is some 
of the other great qualities, intellect, character, that you 
have demonstrated here.
    Just a couple more points, if I may. You were asked earlier 
about dissents. I want to ask you about one, in particular; the 
dissent of your mentor and your predecessor on the Court, 
Justice Breyer. I am told, I think I have read that there is 
one opinion that he is proudest of.
    Can you tell us what you recall it being, if you know?
    Judge Jackson. Senator, I am not able to answer that 
question.
    Senator Blumenthal. Well, I think he said that the dissent 
that he is proudest of was in Parents Involved in Community 
Schools v. Seattle School District. I think he said it was the 
opinion that he was proudest of and he cited it in a Harvard 
Law School symposium about his notable opinions and he said 
this dissent was most notable.
    I will give you the citation when we are done and ask that 
it be entered into the record, Mr. Chairman.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Senator Blumenthal. It is 77 pages long and it is a 
dissent. It is a dissent in the Parents Involved case, which 
was a five-justice plurality, invalidating public school 
integration plans in Seattle and Louisville. The plans had been 
in place for decades, put in place by two local school boards 
voluntarily trying to address school segregation in public 
schools in both of those cities. And the Justices, conservative 
Justices striking down the school integration plans said, in 
effect, they couldn't move forward with those integration 
plans.
    You may recall it is the opinion where Chief Justice 
Roberts said, very famously, the way to stop discrimination on 
the basis of race is to stop discrimination, to stop 
discriminating on the basis of race.
    Justice Breyer, in dissent, which reminded me of a lot of 
what you said here this week, wrote, quote, ``I do not claim to 
know how best to stop harmful discrimination, how best to 
create a society that includes all Americans, how best to 
overcome our serious problems of increasing de facto 
segregation. But as a judge, I do know that the Constitution 
does not authorize judges to dictate solutions to these 
problems; rather, the Constitution creates a democratic 
political system, through which the people themselves, through 
their legislators, must find--must together find answers. The 
Court should leave them to their work.''
    I think that is the philosophy that you have articulated 
here today. The judicial philosophy of separate branches of 
Government, as you so eloquently described, our constitutional 
scheme, our federalism that really should have led the Court to 
respect the Wisconsin Supreme Court's decision and the 
Wisconsin Governor's decision, and to stay in its lane, as you 
have put it so well.
    The fact is there has been a lot of progress and we see it 
in this hearing room, but there is a lot of work still to be 
done and there is a lot of reason for folks to feel even some 
anger at what we have seen on voting rights and on 
resegregation in some areas.
    So, I am really excited, as I have indicated, and joyful at 
the great landmark and the historic accomplishment that your 
nomination represents and reflects. And I hope, as I have said, 
that not only will you make the Court look like more like 
America, but hopefully think more like America.
    And I want to thank you for your very hard work, all of 
what you, personally, have done, because you, as a person, have 
done it, and history has given you this opportunity.
    Your parents have helped to make it possible. Your family 
story is so powerful, but you have really earned it, and we are 
grateful to you for providing all of us that role model.
    Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Blumenthal.
    Senator Hawley.
    Senator Hawley. Thank you, Mr. Chairman.
    Judge, good to see you again.
    Judge Jackson. Good to see you, Senator.
    Senator Hawley. We don't have a lot of time, so let me just 
get straight into it.
    Senator Cruz was asking you at the end of his time in 
questioning about United States v. Stewart. This is the case 
where Neil Stewart tried to cross State lines to rape another 
person's 9-year-old daughter. He had 6,700 images and videos of 
egregious and brutal child pornography. The Government 
recommended 97 months. The guidelines said 97 to 121 months. 
You came in at 57 months. Senator Cruz asked you why. The 
Chairman wouldn't let you answer. I thought maybe you would 
like to answer now.
    Judge Jackson. Thank you, Senator.
    No one case can stand in for a judge's entire record. I 
have sentenced more than 100 people in a variety of egregious 
circumstances. In every case, and especially cases that involve 
the kinds of acts that you are talking about, the kinds of 
evidence that I had to deal with as a judge, in every case, I 
am balancing the factors that Congress has determined are 
appropriate and required for a judge to make a determination.
    The data points that Senator Cruz pointed to that you may 
have in front of you don't account for all of the information 
that was before me as a judge. And the authority that you all, 
Congress and your prior confirmation, when I was a district 
judge, provided for me to exercise my judgment. And I treated 
those cases, and every case, very seriously and imposed a 
sentence that was sufficient, but not greater than necessary to 
promote the purposes of punishment.
    Senator Hawley. Would it surprise you to learn that Mr. 
Stewart is a recidivist? There were warrants issued, again, for 
his arrest just 3 years after you sentenced him.
    Judge Jackson. Would it surprise me?
    Senator Hawley. Yes, would it surprise you?
    Judge Jackson. You know, Senator, there is data in the 
Sentencing Commission and elsewhere that indicates that there 
are recidivism, serious recidivism issues. And so, among the 
various people that I have sentenced, I am not surprised that 
there are people who reoffend, and it is a terrible thing that 
happens in our system.
    Senator Hawley. Yes, indeed, it is.
    Let me ask you about the Hawkins case. You and I talked 
about this yesterday. You have been able to think about it 
overnight.
    This is a case where you had an 18-year-old who possessed 
and distributed hundreds of images of 8-year-olds and 9-year-
olds and 10-year-olds and you gave him, frankly, a ``slap on 
the wrist'' sentence of 3 months.
    Judge Jackson. Senator, I don't----
    Senator Hawley. Do you regret it?
    Judge Jackson [continuing]. I don't remember whether it was 
distribution or possession.
    Senator Hawley. It was both.
    Judge Jackson. In the law----
    Senator Hawley. Do you regret it?
    Judge Jackson. In the law, there are different crimes that 
people commit in this area----
    Senator Hawley. Judge, you gave him 3 months.
    My question is: Do you regret it or not?
    Judge Jackson. Senator, what I regret is that in a hearing 
about my qualifications to be a Justice on the Supreme Court, 
we have spent a lot of time focusing on this small subset of my 
sentences.
    And I have tried to explain many times----
    Senator Hawley. You regret the focus on your cases?
    I don't understand.
    Judge Jackson. No, no, no. I am talking about the fact that 
you are talking about----
    Senator Hawley. Child pornography cases?
    Judge Jackson [continuing]. Seven very serious cases----
    Senator Hawley. I am glad we agree on that.
    Don't you think you should be----
    Judge Jackson [continuing]. Some of which, involve conduct 
that I sentenced people to 25, 30 years for----
    Senator Hawley. Three months in this case, Judge.
    Do you regret it? You haven't answered my question yet.
    Judge Jackson. Senator----
    Senator Hawley. Do you regret the sentence?
    Judge Jackson. Senator, I would have to look at the 
circumstances.
    What I am telling you----
    Senator Hawley. You know the circumstances; we discussed it 
for half an hour yesterday. There is a 55-page transcript, 
which I am sure you have read.
    You lived it----
    Judge Jackson. I have not--I did not----
    Senator Hawley [continuing]. As you have emphasized to this 
Committee over and over, you have lived it, right?
    You said that you have been through all of this. You have 
looked at all of the images. You are the one who has had to 
endure all of it.
    You gave him a 3-month sentence. I just wonder if you 
regret it or if you stand by it. I mean, do you stand by that 
sentence?
    Judge Jackson. Senator, in every case, I followed what 
Congress authorized me to do in looking to the best of my 
ability at all of the various factors that apply, that 
constrain judges, that give us discretion, but also tell us how 
to sentence. And I ruled in every case, based on all of the 
relevant factors.
    Senator Hawley. So, you don't regret it?
    Judge Jackson. No one case, Senator, can stand in for a 
judge's entire record.
    Senator Hawley. I'm not asking that; I am asking if you 
regret this sentence in this case and it sounds like the answer 
is, no.
    But I want to tell you I regret it. I regret that you only 
gave him 3 months.
    Let me read to you what you said about these kinds of 
cases, in fact, to this defendant. You said: ``Make no mistake, 
Mr. Hawkins, the children you saw in those pictures were not 
willing participants in the conduct that you witnessed. They 
were being forced to commit unspeakable acts of sexual violence 
for the pleasure of the person who was filming and for the 
gratification of sick people everywhere, people who apparently 
have no shred of empathy for what this must be doing to the 
children who are being abused in this way.''
    You go on: ``Some of the children you saw in those pictures 
will never have an adult--a normal adult relationship. Some of 
them will turn to drugs and prostitution and other vices to try 
to deal emotionally with the pain that results from the torture 
that they have experienced. And even those who manage to lead a 
somewhat normal adult life say they live in constant fear of 
being recognized. Some people are even unable to leave their 
houses, because once those pictures are on the internet, they 
are there forever and the victims can't do anything without 
worrying that every person that they meet has seen them in 
their most vulnerable state, at the most horrible time in their 
lives.''
    That is your words, pages 34 and 35 of the transcript. 
Powerful words, Judge. I just don't understand why, after 
saying this and believing this, you could give this guy 3 
months in prison when the Probation Office that we have heard 
so much about, recommended 18 months. Even the Probation Office 
recommended 18 months.
    Do you have anything to add?
    Judge Jackson. No, Senator.
    Senator Hawley. Let me ask you about your policy of not 
giving enhancements when there are prepubescent children, like 
there were in the Hawkins case, who are 8, 9, 10 years old, 
when there are prepubescent children involved. I don't, I am 
just struggling to understand this.
    You said it in Hawkins. You said that you weren't going to 
give him an enhancement. You weren't going to give--make a 
sentence any tougher, despite the fact that we had all of these 
terrible videos that you and I talked about at length 
yesterday.
    This is page 38 of the transcript, just so that we are all 
following along. You said: ``In your case, I don't feel that it 
is appropriate, necessarily, to increase the penalty on the 
basis of your use of a computer''--and we talked about that--
``or the number of images or prepubescent victims, as the 
guidelines require, because these circumstances exist in many 
cases, if not most, and they don't signal an especially heinous 
or egregious child pornography offense.''
    You said the same thing in the Cooper case just last year. 
This was an individual, Cooper, who was 30 years old at the 
time of his sentencing. He pleaded guilty to distributing child 
pornography. He posted between three and four dozen images of 
child exploitation to Tumblr, where it could be accessed 
publicly.
    The Government said, and I will quote from the transcript 
in that case, page 37: ``When his devices were found, including 
the computer, within the computer and on an untitled folder 
were many, many, many videos. The nature of these videos went 
well beyond mere child pornography.''
    The Government says: ``I don't mean to make light of the 
content of any child pornography, but, rather to say that the 
content of those videos is on the more egregious or extreme 
spectrum of the child pornography videos that are encountered 
in these cases.''
    And, yet, when you sentenced him, you said, I am quoting 
now from the transcript in Cooper: ``I am really reluctant to 
get into the nature of the porn.''
    And then later: ``It is very difficult to assess how 
different Mr. Cooper's images are than those of other similarly 
situated child pornography defendants, such that I, without 
going in to look at them, and I'm not an expert,'' you say.
    So, you say: ``While I understand the Government's 
arguments, Mr. Miranda, the Government's arguments in that 
regard, I don't find them persuasive from the standpoint of 
characterizing this as an especially egregious child 
pornography offense.''
    Help me understand this, Judge. Why is it that you, what is 
your policy disagreement with the guidelines treating images, 
videos, pornographic images that have small children, infants, 
7-, 8-, 9-year-olds, why wouldn't you give an enhancement for 
those?
    Help me understand that.
    Judge Jackson. Thank you, Senator.
    I will make two responses. First, that is not my policy 
disagreement. I don't know why you have characterized that in 
that way.
    Senator Hawley. Well, wait a minute. Wait a minute.
    Senator Leahy. Mr. Chairman, can she be allowed to answer 
the question?
    Senator Hawley. You say right here in the cases, I mean 
this is, I want to get--I want to make sure we are talking 
about the same thing here.
    This, in the Hawkins case: ``I don't feel that it is 
appropriate, necessarily, to increase the penalty on the basis 
of your use of a computer or the number of images or 
prepubescent victims.'' And you say the same thing in Cooper.
    Judge Jackson. Senator, two observations.
    One, I am sentencing in every case, I have policy 
disagreements with certain aspects of the operation of the 
guidelines that I lay out in every case, as Congress has 
required, and as the Supreme Court permits in light of my 
experience, not only as a district judge, but also on the 
Sentencing Commission, which did a report about the operation 
of the guidelines.
    Second, you have read extensively from the Government's 
argument in this case. You have not provided information from 
the Probation Office or the defense. And when a judge----
    Senator Hawley. I don't have the Probation Office reports.
    Judge Jackson. No. Excuse me, Senator.
    The Probation Office provides a recommendation. There has 
been information gathered about what a recommendation was given 
in each one of these cases.
    I don't have that information here, but what I am saying is 
that in every case, the judge is not just hearing from the 
Government. The judge is not just evaluating what the 
Government says in these cases.
    In every criminal case, a judge has to take into account 
all sorts of factors, including arguments being made by the 
defendant, by the Government, by the Probation Office.
    So, I understand that in certain cases, the Government may 
have made an argument, but there other people in our criminal 
justice system who make arguments and the court evaluates 
everything, as Congress has directed. And no one case can stand 
in for my entire record of how I deal with criminal cases, or 
did, when I was a district judge.
    I have law enforcement in my family. I am a mother who has 
daughters, who took these cases home with me at night because 
they are so graphic in terms of the kinds of images that you 
are describing. They give you, not only the actual videos, 
which you can ask to see, but they describe in the briefs, in 
detail, what these videos show.
    So, I am fully aware of the seriousness of this offense and 
also my obligation to take into account all of the various 
aspects of the crime, as Congress has required me to do, and I 
made a determination, seriously, in each case.
    Senator Hawley. But what I'm trying to understand is why is 
it that you say, multiple times, that just because there are 
prepubescent victims in Cooper, in Hawkins, that that does not 
signal that this is a heinous or egregious child pornography 
offense and you are not going to apply any sentencing 
enhancements that the Government is asking you for.
    The sentence given is to be less because you say, I am not 
going to apply. The Government asked for enhancements related 
to prepubescent children, related to the nature of these 
images. You say: ``I am not going to apply it.''
    But what you are telling me is, I guess, that you don't 
have a policy objection. I mean, why didn't you apply the 
enhancements as they were asked for?
    Judge Jackson. Senator, I have answered this question many 
times from many Senators who have asked me, so I will stand on 
what I have already said.
    Senator Hawley. So, you have nothing to add about why these 
crimes, why these images, in your view, ``do not signal an 
especially heinous or egregious child pornography offense''; 
that is Hawkins.
    You say in Cooper: ``I understand the Government's 
argument, but I don't find them persuasive, the fact that there 
were prepubescent children, from the standpoint of 
characterizing this as an especially egregious child 
pornography offense.'' That is page 58.
    Let me ask you this, you said to Senator Graham earlier 
today that you were trying to do what was rational and you 
didn't, in the sentencing of these cases, and you didn't think 
it was rational to sentence people who had thousands of images 
by using a computer to the sentencing guidelines, to the 
mandatory range--I'm sorry, it is not mandatory--to the no-
longer mandatory range, the discretionary range.
    Judge Jackson. No, Senator. I said the guidelines system is 
designed to be rational.
    Senator Hawley. Okay. So, let me ask you this, why isn't it 
rational to sentence people who have thousands of images on a 
computer to more time, as opposed to somebody who has one or 
two pictures in the mail?
    In other words, the more images there are, why wouldn't you 
want to sentence that person to more time, rather than less; 
why isn't that rational?
    Judge Jackson. Senator, I have answered this question and I 
will stand on what I already answered.
    Senator Hawley. So, but your answer was what; I mean, 
refresh my memory.
    Judge Jackson. Senator, I have answered this question. I 
have explained how the guidelines work. And I will stand on my 
answer.
    Senator Hawley. But the guidelines are not mandatory. I 
wish they were, but they are not; the Supreme Court made that 
determination.
    I am trying to understand why you think it is rational not 
to sentence criminals, based on the number of images they have. 
You say that this is a policy disagreement that you have with 
the guidelines. This gets to the core of your judicial 
philosophy.
    You served on the Sentencing Commission, where you 
recommended changes to the guidelines, based, in part, on this 
policy disagreement. So, I think it is relevant and, indeed, 
vital, we understand what the policy disagreement is. That is 
what I am trying to get at here.
    Judge Jackson. Senator, I previously explained what the 
policy disagreement is and I will stand on my answer.
    Senator Hawley. So, you are not going to answer my 
question?
    Judge Jackson. No, I have answered your question in my 
answer----
    Senator Hawley. You haven't answered my question.
    Judge Jackson [continuing]. As I have explained.
    Senator Hawley. I am sitting here asking you and you are 
declining to answer.
    Judge Jackson. I have explained how the guidelines work. I 
have explained that the guidelines were developed at a time in 
which the commission of this crime was different than it is 
today. I have explained that Congress has not intervened to 
revise or direct the Commission around how to deal with the 
changes in the commission of this crime.
    And so judges, all over the country, are grappling with how 
to apply this guideline under these circumstances and there is 
an extreme amount of disparity. And in each case, a judge has 
to look at all of the factors, not just the guidelines, not 
just what the Government asks for, but the recommendations of 
the Probation Office, the arguments of the Government and the 
defense, the nature and circumstances of the offense, the 
history and characteristics of the defendant, the need for the 
sentence imposed to promote the purposes of punishment, which 
include things like rehabilitation.
    Also, in every case, Congress has authorized judges to 
impose not only terms of imprisonment, which are a very 
important part of the consequences for these crimes, but a 
range of other preventative kinds of measures which courts 
impose in cases to prevent these defendants from repeating 
these egregious--this type of egregious conduct.
    And I talked to each defendant, as you have quoted, 
explaining to them the harms that their crimes caused and I 
imposed not only a term of imprisonment, but also all of the 
other consequences of the offense to include decades of 
supervision, restrictions on use of a computer, and the like. 
That is my answer. I have answered it many times.
    Do you have other questions for me?
    Senator Hawley. Yes, I do--I do because I want to try to 
understand when you talk about the guidelines being outdated 
and outmoded, I understand that they were written, the initial 
guidelines were written at a time when computers were not 
common; everybody didn't have one and certainly didn't have 
phones in every pocket like we do now, smartphones. So, I 
understand that.
    I also understand that the number of images, sexually 
exploitative images of children on these devices has exploded. 
And so, I am trying to get at what Senator Coons earlier 
characterized as a pretty fundamental policy question, which I 
think is the correct characterization here. I am trying to 
understand your view on why it is that while the images, the 
number of images available on these things has exploded, that 
sentencing shouldn't track that.
    Do you see what I am saying?
    I mean, you have made the argument, if I understand you 
right, and I want you to correct me if I'm wrong, you made the 
argument that, well, look, the guidelines were written at a 
time when this stuff was like, it was an individual picture, it 
was, you know, magazines, whatever.
    Now, almost every offender, I think, this is the argument, 
so you correct me, almost every offender, because of the nature 
of this----
    [Gestures to cell phone.]
    Senator Hawley [continuing]. They have got tens, hundreds, 
sometimes thousands, I mean, probably because the nature of 
this----
    [Gestures to cell phone.]
    Senator Hawley. My question to you is, wouldn't we want to 
deter that? Isn't that a reason to impose tougher sentences? I 
mean----
    Judge Jackson. Senator----
    Senator Hawley. Go ahead.
    Judge Jackson [continuing]. The Congress has every ability 
to do that. What is happening now is that you have a guideline 
that has gradations in it for the number of images that ends up 
being when you look at the scale, something like the difference 
of 10 years. I am making, I don't know exactly what it is, but 
each two-level enhancement is like several years and the 
gradations are like zero to, and, again, I don't have it in 
front of me, but it is like zero to 50 pictures, 50 to 100 
pictures, 100 to 150 pictures, set up at a time in which the 
mail was the primary mode of possession and distribution. And 
so, if somebody had 50 pictures, they, according to Congress 
and the Commission at the time, deserved an extra 10 years in 
prison.
    Now, with that scale, everybody is at the top immediately, 
just because of the nature of the internet. So, you are not 
differentiating using that scale anymore, given the way this 
crime is committed. And so judges are having to decide how are 
we going to deal with the penalties and do our jobs to impose 
sentences that are sufficient, but not greater than necessary, 
under these circumstances.
    Senator Hawley. Yes, thank you, Judge.
    I will just say in closing that I appreciate that answer 
and I understand that as a policy matter. I just think we 
disagree. I think that somebody--the more images that are 
there, the more punishment there should be. And I want to see 
this deterred and I just think we pretty fundamentally 
disagreed.
    I am enjoyed our exchanges. Thank you for your candor and I 
appreciate it. I just disagree with you on the law.
    Thank you, Mr. Chairman.
    Chair Durbin. Senator Hirono.
    Senator Cruz. Mr. Chairman?
    Chair Durbin. It is Senator Hirono's turn.
    Senator Hirono. Thank you, Mr. Chairman.
    Senator Cruz. Mr. Chairman, I am asking to be recognized to 
make a point to the Chair----
    Mr. Leahy. No. Mr. Chairman----
    Senator Hirono. I believe he recognized me.
    May I proceed?
    Senator Cruz. Mr. Chairman?
    Senator Leahy. Mr. Chairman, I waited my turn on here and I 
have been on this Committee for 47 years. I think we ought to 
follow the regular order.
    Senator Cruz. Mr. Chairman, the witness just said that we 
cannot understand those cases without the presentence reports.
    Chair Durbin. I'm sorry, Senator. I don't want to go 
through this again.
    Senator Cruz. I have a letter that I want to enter into the 
record----
    Chair Durbin. There are rules that----
    Senator Cruz [continuing]. That is signed by 10 Senators on 
this Committee.
    Are you not even going to allow a letter from 10 Senators 
on this Committee?
    Chair Durbin. If you want to submit any letter, you can do 
it at the end, not right now.
    Senator Cruz. This letter that is signed by 10 Senators on 
the Committee addressed to you, makes the point that the White 
House gave you probation information for Democrats that was not 
provided to the Minority on this Committee.
    And just now, Judge Jackson told Senator Hawley, you cannot 
understand these cases without reading the probation reports.
    Ten Senators on this Committee are asking the Chairman----
    Senator Leahy. Mr. Chairman?
    Senator Cruz [continuing]. To provide those reports so we 
can do what Judge Jackson just said----
    Senator Leahy. Mr. Chairman, I know the----
    Senator Cruz [continuing]. Which is to assess those 
reports.
    Senator Leahy. Mr. Chairman, I know the junior Senator----
    Senator Cruz. And here is the letter, and I ask unanimous 
consent for it to be admitted into the record.
    Senator Leahy. I know the junior Senator from Texas likes 
to get on television, but most of us who have been here for a 
long time are trying to follow the rules. And he could very 
easily hand you a letter to go in the record.
    He is saying he is doing this to help Senator Hawley. 
Senator Hawley could have put it in and he didn't.
    But let's get back to regular order----
    Senator Cruz. Senator Hawley didn't write the letter.
    Mr. Chairman, I ask unanimous consent that it be admitted 
into the record.
    Chair Durbin. Senator Hirono.
    Senator Hirono. Thank you.
    Senator Cruz. Are you denying consent?
    Senator Hirono. Thank you, Mr. Chairman.
    Aloha, Judge Jackson.
    Judge Jackson. Aloha.
    Senator Hirono. I am going to try to spread some aloha into 
this room.
    [Laughter.]
    Senator Hirono. I am taking a lead from my friend, Senator, 
sitting to my left.
    Well, at least you and I are very color-coordinated today.
    [Laughter.]
    Senator Hirono. So, since 2018, I have been asking every 
nominee that comes before the Committees on which I sit the two 
questions that I asked you at the start of my time; namely, 
whether or not they have a history of sexual assault or 
harassment. This is something I started in 2018 to make sure 
that harassment and abuse, that women, mainly, have put up with 
since, as far as I am concerned, time immemorial, didn't 
continue to get swept under the rug.
    I found these questions to be important for nominees to the 
judiciary. As Chief Justice Roberts stated in his 2017 year-end 
report on the Federal judiciary: ``Events in recent months have 
illuminated the depth of the problem of sexual harassment in 
the workplace and events in the past few weeks have made clear 
that the judicial branch is not immune.''
    Here are just a few examples of abusive practices by 
Federal judges. In December 2017, six former law clerks and 
staffers accused Ninth Circuit Judge Alex Kozinski of 
suggesting them to a range of inappropriate sexual conduct and 
comments. In September 2019, the Tenth Circuit Judicial Council 
entered an order finding that District Court Judge Carlos 
Murguia--I apologize if I mispronounced his last name--had 
harassed multiple employees over a period of years, including 
by subjecting them to sexually suggestive comments, 
inappropriate text messages, and excessive, non-work-related 
conduct. In February 2020, former law clerk to the late Ninth 
Circuit Judge Stephen Reinhardt accused the judge of a months-
long harassment campaign.
    And these are a few of the cases that we know about. There 
are undoubtedly many more we don't know about, both because of 
the power and balance between Federal judges and their clerks 
and employees, who often rely on connections and 
recommendations to advance in their careers and because of the 
lack of legal recourse available to the judicial employees.
    Many may not realize this, but Federal judicial branch 
employees are not protected by the foundational Federal 
statutes, such as Title VII of the Civil Rights Act of 1964 
that prohibit discrimination and retaliation.
    And that is why I introduced, along with Chair Durbin, and 
Senators Whitehouse and Murray, the Judicial Accountability 
Act, which would ensure the more than 30,000 employees of the 
Federal judiciary have strong statutory rights and protections 
against discrimination, sexual harassment, retaliation, and 
other forms of workplace conduct.
    I know you can't comment on legislation, so I won't ask you 
whether you support the Judicial Accountability Act; instead, I 
would like to hear what you do to make sure your chambers is a 
safe, inclusive place to work.
    Judge Jackson. Thank you, Senator.
    I, as you know, have been a judge now for almost a decade 
and I take my responsibilities not only to hear and decide 
cases seriously, but also my responsibility as an employer. 
When I bring law clerks into my chambers, I was a law clerk to 
three wonderful Federal judges who were role models for me, and 
I try to act as a role model to my law clerks. I try to bring 
in people who have the respect of others, people who come with 
strong recommendations, people who I think will get along with 
one another, and certainly people who likely will get along 
with me. And we create a little group, a working group, and I 
think that it has worked out well.
    Senator Hirono. And I would think that you would make sure 
that there are no instances of inappropriate behavior, sexual 
harassment from any of your clerks or employees?
    Judge Jackson. That is absolutely correct.
    Senator Hirono. During our courtesy meeting, I enjoined 
learning more about your background and family. And of the nine 
sitting Justices of the Supreme Court, only three, Justices 
Alito, Breyer, and Kagan, were educated in our public school 
system. And you would, as far as I am concerned, make a welcome 
addition to the Court from that standpoint as a public school 
graduate, myself.
    So, public high schools educate people from all backgrounds 
and most people go to public schools. Most people don't get to 
go to private schools, so your classmates probably came from 
different racial and ethnic backgrounds, income, social 
statuses, academic abilities, athletic abilities, among others.
    How, if at all, has your public school experience shaped 
the person you are and your approach to the law?
    Judge Jackson. Thank you, Senator.
    I was very fortunate to go to public school in Miami, 
Florida. I had a wide range of classmates and it was a 
wonderful opportunity to get to know people who were different 
than me and to learn at the end of the day that they were not 
so different than I am, even if they came from different 
backgrounds.
    And I talked a lot about my debate team. That was one of 
the activities that I engaged in and spent a lot of time with 
my colleagues on the debate team and with my wonderful coach. 
And you learn how to support each other, how to speak across 
difference, how to communicate with different kinds of people, 
and it was a wonderful experience, and as I have mentioned, in 
many ways, different than the generation before, who, in 
Florida, were segregated by law.
    Senator Hirono. So, I take it that not only did you have, I 
would say, a broad experience of encountering people from all 
different walks of life and backgrounds, but there was still a 
commonality that you had?
    Judge Jackson. Very much so.
    Senator Hirono. And that is very much exemplified in your 
approach to your work.
    I also talked with you about the importance of the creative 
part of our lives, because I think lawyers tend to be very 
left-brained and I know that you are a very well-rounded 
person, and so I asked you, what do you do to pay attention to 
the creative side of your life?
    Judge Jackson. Thank you for the question.
    I took up, not too long ago, but took up the fiber arts, as 
they say. My mother is an expert crochet artist; she makes 
beautiful pieces of all kinds. And I always wanted to do that 
and I always wanted to, and she tried to teach me when I was 
younger and it didn't quite turn out.
    But as I have gone along in my career, in wanting to have 
some sort of a creative outlet, and especially in times of high 
stress----
    Senator Hirono. Uh-huh.
    Judge Jackson [continuing]. I started pining for something 
to do to express my creative side, and I bought a book on 
crochet. I talked to my mom. I started making hats and scarves. 
And then I moved to knitting during one of my confirmation 
hearing scenarios, because I needed something to keep my mind 
off of the stress. So, I have a basement full of yarn if you 
would like to come over.
    [Laughter.]
    Senator Hirono. I think that is another way that you are 
connecting to the people who really mean a lot to you.
    The creative outlet is really important to me, because in a 
changing world, I think it is our ability to be creative in our 
approaches and how we think about things that will enable us to 
deal with the rapid changes that happen every day in these 
days.
    I view you as a consensus builder, and so I know that in 
your work with the Sentencing Commission, you really worked 
hard to come up with some 95 percent of the time, the--in this 
very diverse group, there was consensus in your 
recommendations.
    How important do you think a consensus is on what I 
characterized yesterday as a very ideologically split Supreme 
Court?
    Judge Jackson. I think consensus is very important. It was 
one of the things that I most admired about having the 
opportunity to work for Justice Breyer as a law clerk, to 
observe his process for reaching out to colleagues and trying 
to collaborate in his thought process about the outcomes of 
cases, and it is something that I tried to emulate when I was 
on the Sentencing Commission, which as you said, is a very 
diverse body. And I saw, in that context, the importance of 
trying to reach common ground, with respect to your 
determinations.
    Senator Hirono. Mr. Chairman, thank you very much.
    To illustrate the kind of broad support that this nominee 
has, I would like to enter into the record two letters, one 
signed by a thousand public defenders from all across the 
country and another signed by 48 prosecutors from across the 
country.
    Judge Jackson, I have very much enjoyed----
    Chair Durbin. Without objection.
    [The information appears as submissions for the record.]
    Senator Hirono [continuing]. The privilege of talking with 
you----
    Thank you, Mr. Chairman.
    --and it will be my privilege to support your nomination. 
Aloha.
    Judge Jackson. Thank you, Senator.
    Chair Durbin. Thank you very much, Senator.
    Senator Grassley. Mr. Chairman?
    Chair Durbin. The Senator from Iowa.
    Senator Grassley. Yes, I have a letter here signed by 
Members on my side of the aisle that I would like to put in the 
record.
    Chair Durbin. Without objection.
    [The information appears as a submission for the record.]
    Chair Durbin. I would like to comment.
    I had a chance to review this letter for the first time 
just a minute ago. There is apparently a concern on your side, 
Mr. Chairman about whether you have, on your side of the aisle, 
access to all the information that we have on this side of the 
aisle and all of the information that is in the possession of 
the White House.
    During a break earlier today, I met with the Ranking 
Member, Senator Grassley, and his staff and with White House 
staff to discuss it.
    Here is my understanding of what has transpired. Last 
Wednesday evening, the Senator from Missouri selected a handful 
of Judge Jackson's more than 1,000 district court cases to 
claim that Judge Jackson, quote, ``endangers our children,'' 
closed quote.
    On Thursday, the next day, the White House contacted Judge 
Jackson's chambers to request the Probation Office 
recommendation in each of the cases, I am going to underline 
Probation Office, that Probation Office provided a chart 
reflecting these recommendations.
    [Poster is displayed in the hearing room.]
    Chair Durbin. This is the sum total of what was provided. 
They shared with the White House from the chambers, when the 
Senator from Missouri continued to raise questions and request 
the Probation Office's recommendation in these cases, the 
Probation Office provided this chart, reflecting those 
recommendations, which were shared with the White House.
    When the Senator from Missouri continued to raise questions 
about Judge Jackson's sentencing record, my staff asked the 
White House for information about the Probation Office 
recommendations.
    [Poster is displayed in the hearing room.]
    Chair Durbin. These are just numbers for each one of the 
cases; that is all it is.
    The White House and my office didn't have this information 
earlier because we didn't know the Senator from Missouri was 
going to make this claim in the first place.
    Once the Republican side requested the same information, my 
staff shared it within minutes. So now, your side, Senator, has 
exactly what the White House and the Democratic side has: the 
same chart provided by the Probation Office.
    And I might add that some of this had been published in the 
press, in The Washington Post and other places, but it 
consisted, in each case, of the case number, name, the 
Probation Office recommendation for custody, the sentence 
imposed custody, Probation Office recommended supervision and 
release, and the supervision and release imposed. All of that 
information has now been shared equally.
    Some information on the other side, on the Republican side, 
includes frequent reference to transcripts, which we don't have 
on this side, and the reason being, we didn't anticipate this 
objection from the Senator from Missouri and request that 
information.
    Now, the letter also goes a step beyond, which I think is a 
very important decision for this Committee to make, this 
request for presentence reports from each of these cases. Now, 
these presentence reports are typically filed under seal. They 
can contain highly sensitive, personal information. Not just 
about the defendant, but about innocent third parties and 
victims.
    We have spent a lot of time here reflecting on these 
terrible crimes. Everyone has acknowledged how terrible they 
are and how damaging they can be to the victims. We have heard 
story after story and I don't question a single word that was 
spoken, in sympathy for these same victims.
    I would not want it weighing on my conscience that we are 
turning over these presentence reports to this Committee for 
the first time in history and that information out of this, or 
because it was released, would somehow compromise or endanger 
any victim as a result of it.
    This information was not requested before. It has never 
been requested by this Committee. And I think we ought to think 
long and hard about whether or not we even consider going into 
presentence reports. So, I am going to take this matter up with 
our side, and I am sure you will with your side. I have your 
letter requesting it.
    As far as this information, you have exactly what we have; 
no more, no less.
    In terms of presentence reports, this is a critical policy 
question, which ought to be carefully weighed. It goes way 
beyond, I'm sorry, Senator--Judge Jackson, it goes way beyond 
your nomination and I want to make certain that we don't take a 
step here that endangers the lives or well-being of innocent 
people.
    Senator Cruz. Mr. Chairman, since you just responded to the 
letter that I wrote and was submitted on behalf of 10 Senators, 
I will point out that in Judge Jackson's answer to Senator 
Hawley, she said that he and this Committee did not have 
sufficient information to assess her sentencing decisions 
because we heard the arguments of the prosecutors in the 
transcript, but we did not have the recommendation from the 
Probation Office. And what she testified under oath is you 
can't understand why she issued her sentences without having 
those probation reports.
    You are right that there can be sensitive victim 
information in those reports and everyone on this side, I am 
confident, would agree to redacting out any information that 
would violate the privacy of a victim. But Judge Jackson has 
told us it is relevant to understanding those cases, and that 
is why 10 of us have requested we have those reports, and there 
is explicit statutory authority for us to do so that is cited 
in the letter we just submitted.
    Chair Durbin. Senator, I don't know where others Members of 
your caucus stand on the basic question of this nomination. 
They can decide on their own and they will and they should; 
that is their responsibility.
    I think I know where you are headed, and I would just 
suggest that we ought to think long and hard, my friends, about 
Members of the Judiciary Committee endangering the lives of 
innocent people to pursue this line of questioning. We spent 2 
days, 15, 16, 17, 18 hours, and a large part of it on this 
issue.
    I don't believe these presentencing reports are going to 
change anyone's disposition if they are going to vote on this 
issue and I do not want it weighing on my conscience that I 
gave the green light to release this information so that it 
might endanger the lives of innocent victims.
    I am sorry, that is a bridge too far for me. I think the 
issue before us on sentencing, you each had a chance to hear 
plenty of testimony on it and I believe it should be taken up 
with the individual caucuses on both sides if you wish, but 
that, to me, is, it has gone way too far. Way too far. I don't 
want it on my conscience.
    Senator Leahy. Mr. Chairman, if I might?
    Chair Durbin. Senator.
    Senator Leahy. I want to agree with you.
    I prosecuted, literally, thousands of people. I would have 
to go back, it is over 8 years. I can't remember the hundreds 
of sentencings I was at where we had presentence reports; over 
and over again, there were things in there that were sensitive, 
sometimes where you were talking to somebody who would be 
putting their lives on the line to even give a report. Neither 
the defense counsel, nor I, as the prosecutor, ever thought 
those would be made public.
    And we assumed that the judges, and we had judges across 
the political stripes who read them, kept the conference so 
that as a result we knew that the reports were thorough, and 
then the judge has the final statement.
    As a prosecutor, I might have a recommendation, but I never 
questioned a judge who might give a different sentence because 
my responsibility was to prosecute them; theirs was to sentence 
them.
    Chair Durbin. Senator Lee.
    Senator Lee. Yes, might I just weigh in here?
    I totally understand the concern that you are describing, 
relative to the confidential nature of presentence reports. As 
a prosecutor and as a law clerk, I reviewed those with some 
regularity and I understand the sensitivity of them.
    Let me suggest a couple of things. First of all, it is not 
unusual for us, as a Committee, and as Members of the United 
States Senate, to review materials that would be inappropriate 
for public release. I don't think one of us is suggesting that.
    There are means by which we can review things in a 
classified environment and treat them as classified. We have 
done that with significant success in this hearing.
    Second, to the extent that wouldn't provide the level of 
comfort necessary, we would also be happy to review them on a 
redacted basis. These are things that have become relevant in 
our conversations. We want to make sure that we have the facts, 
but not one of us wants to endanger anyone or to render public, 
information that is sensitive in nature. There are abundant 
ways around that.
    Chair Durbin. I would suggest that the information 
contained in these reports is dangerous; dangerous to the 
victims and to the innocent people who are mentioned in these 
reports, and unnecessary at this point.
    It has never been requested by this Committee and it is 
merely a fishing expedition in dangerous territory. In 
classified settings, redacted versions of the reports, this has 
never happened in the history of this Committee.
    And I would say--Senator, I will just tell you, I am not 
going to be party to turning over this information and 
endangering the life of an innocent person for a political 
quest to find more information.
    We have exhausted this topic. We have gone through it over 
and over again and I think this is a bridge too far for the 
Committee. That is my personal feeling.
    I take it that Senator Leahy may agree with me and he would 
be right.
    This nominee has been before this Committee for 18 hours. I 
don't believe that this information is going to change anyone's 
vote. You can decide in your caucus what you want to do to go 
forward. I have told you my position.
    I want to proceed, if I can. I thank the nominee for 
waiting for this colloquy and I would turn it over to Senator 
Cotton.
    Senator Cotton. Judge, I want to return to the question of 
crime and, specifically, sentencing. In any of the cases where 
you've sentenced an offender below the guidelines, has that 
offender gone on to commit another crime after getting released 
from prison?
    Judge Jackson. Thank you, Senator.
    When judges sentence they often impose terms of supervised 
release and there are times in which, when a person is on 
supervised release, they reoffend. There are also times when 
they don't.
    But even after the period of supervised release the court 
doesn't continue to have any way of tracking or knowing what 
happens because if they were to reoffend it wouldn't 
necessarily come back to the same court or the same judge.
    Senator Cotton. So you don't have a factual basis to know 
whether or not anyone you've sentenced below the guidelines has 
reoffended in the future?
    Judge Jackson. Do I have a factual basis? I know that there 
are people who have reoffended while on supervised release. I 
can't remember whether any of them were guideline sentences, 
below guidelines, or above guideline sentences.
    Senator Cotton. Okay. I know you've answered a lot of 
questions the last 2 days about sentences in sex crimes. I just 
want to be exact about this.
    In these cases, have you ever sentenced an offender above 
the guidelines recommendation?
    Judge Jackson. I'd have to take a look at--I know that I 
have sentenced offenders to the guidelines in the category of 
sex crimes in general.
    I know that I've given 30-year sentences for at least one 
offender, almost 30 years--29.5. I've given, I believe, a 12-
year sentence for someone at the agreement of all of the 
parties, which was a sentence that was a part of his plea 
agreement. I'm not remembering the others.
    Senator Cotton. I understand, you've sentenced in a lot of 
cases. I want to return briefly to the Hawkins case. Wesley 
Hawkins, as a reminder, was convicted of child--a child 
pornography offense in 2013.
    The sentencing guidelines for this offense called for a 
sentence of 97 to 121 months, or eight to 10 years. The 
prosecutors asked for 24 months. You sentenced him to 3 months.
    We've heard a lot about this case and your 3-month sentence 
of Wesley Hawkins. But you got another crack at him in 2019, 
Judge.
    In 2019, you sent Wesley Hawkins back under conditions of 
confinement with the Bureau of Prisons for 6 months with 
additional restrictions on his computer usage. That's twice the 
amount of time in custody that you sentenced him to in 2013. 
What did Wesley Hawkins do in 2019, Judge?
    Judge Jackson. Oh, I don't remember, Senator. I have a lot 
of defendants who I've sentenced who are on supervision who 
violate conditions of supervision.
    If, in our system, someone like Mr. Hawkins, especially 
given the crime--the egregious crime that he committed was 
likely on a very long period of supervision and during that 
time he would likely be under computer restrictions for 10, 20 
years or something where he's not allowed to do certain things 
with a computer, and a Probation Officer is monitoring. They 
put software on the computers of individuals who have these 
kinds of conditions imposed and that restricts their ability to 
access certain information on the internet.
    And so it's not uncommon for a Probation Officer to report 
violations of supervised release, not just in this area but 
across all crimes, and then the court has to determine how to 
handle that.
    And you could, in fact, send someone back to jail for 
violating conditions of supervised release that are not 
themselves criminal behavior. It's just, you know, the court 
says in their supervision order I'm imposing a 20-year or 
whatever it is sentence of supervision and during this time 
you're not allowed to access your computer, et cetera, et 
cetera.
    So if he were to do that it wouldn't be additional criminal 
behavior but it would be a violation of my order, and when he 
comes back to the court on violation the court has factors that 
we look at to determine whether or not to treat that, 
essentially, as the kind of violation that would require him to 
go back to jail.
    Senator Cotton. Judge, yesterday we had an extended 
conversation of your sentencing of a man named Keith Hodges, a 
fentanyl kingpin. That sentencing occurred in 2018. You had 
very detailed recall of that sentence.
    To my knowledge, that's the only time anyone's asked you 
about Mr. Hodges' sentence. You've been asked repeatedly over 
the last 2 days about the Hawkins case. It's been in the news, 
as Senator Durbin has cited, for days on end.
    This sentencing happened in--resentencing happened in 2019 
and now you're saying you don't have any recollection of it. 
Let me see if I can refresh your recollection.
    [Poster is displayed in the hearing room.]
    Senator Cotton. This is the order you signed, Judge, on 
April 17th, 2019, in USA v. Hawkins and it says that you concur 
with the recommendation of the Probation Office to return him 
to a residential reentry facility for 180 days and to engage in 
various kinds of computer monitoring and--computer monitoring 
and search. There's your signature over there, Judge.
    Judge Jackson. Yes.
    Senator Cotton. You really don't--you really don't remember 
what----
    Judge Jackson. Senator that is a very, very common thing 
that judges do. I've sentenced over 100 people and supervised 
release, which is the kind of post-incarceration condition that 
judges ordinarily impose, is something that's done on a 
standard form, which is what that is and----
    Senator Cotton. I understand you've done a lot, Judge. But 
none of them have been the centerpiece of your hearing for the 
last 2 days. Do you really--do really expect this Committee to 
believe that you don't remember what happened in this Hawkins 
case when it came back before you? A center----
    Judge Jackson. Yes, Senator. I do expect you to believe. 
That's my testimony.
    Senator Cotton. Well, I don't find it credible, Judge. It's 
been in the news for days. Senator Durbin has cited it being in 
the news for days.
    You've been asked about it probably more than any other 
case you've ever had, and I just don't find it credible that 
you weren't prepared for that matter in 2019.
    You know what I think? I think he got caught with child 
pornography again and he wouldn't have if he had been in prison 
for the eight to 10 years the guidelines called for in 2013 
when you first sentenced him.
    Let's turn, though, to your work for detainees at 
Guantanamo Bay. First off, let me just ask, do you think most 
detainees at Guantanamo Bay were mostly terrorists or mostly, I 
don't know, innocent goat farmers?
    Judge Jackson. Senator, it's impossible for me to answer 
that question. The people at Guantanamo Bay have been accused 
by the Government of engaging in terrorist activities and, 
therefore, classified by the executive branch as enemy 
combatants.
    Senator Cotton. Okay. Do you think it would--America would 
be safer or less safe if we released all the detainees at 
Guantanamo Bay?
    Judge Jackson. Senator, I'm trying to figure out how to 
answer that question. 9/11 was a terrible attack on our country 
and the executive branch, pursuant to authority that the 
Supreme Court said it had, designated people as enemy 
combatants and sent them to Guantanamo Bay.
    The Supreme Court also said that anybody who was so 
detained could seek review of their detention, and as a Federal 
public defender my role and responsibility was to make 
arguments in defense of the Constitution and in service to the 
court that was trying to assess, based on the authority given 
to it by the Supreme Court, whether or not people were 
adequately classified, what the legal circumstances were, how 
these habeas petitions were going to be processed.
    This was a series of--a series of legal challenges in a 
novel environment that Federal public defenders and lawyers 
across the country were engaged in helping the court to 
evaluate so that we can understand what the Constitution 
required in this time of emergency.
    Senator Cotton. Okay. So no opinion on whether America 
would be safer or less safe if we released all the detainees 
from Guantanamo Bay?
    Judge Jackson. Senator, America would be less safe--if we 
don't have terrorists out running around attacking this 
country. Absolutely.
    America would also be more safe in a situation in which all 
of our constitutional rights are protected. This is the way our 
scheme works. This is how the Constitution that we all love 
operates. It's about making sure that the Government is doing 
what it's supposed to do in a time of crisis.
    As Justice Gorsuch said, the Constitution is not suspended 
in times of crisis. The Government still has to follow the 
rules, and so criminal defense lawyers make sure that in times 
of crisis the Government is following the rules.
    Senator Cotton. Okay. Let's turn to the actual cases. How 
many of these terrorists at Guantanamo Bay did you represent?
    Judge Jackson. When I was a defender, four cases were 
assigned to me in our office. I don't know how many cases came 
into the office in total. But----
    Senator Cotton. You personally had four?
    Judge Jackson. I was assigned to them along with another 
defender who worked on the same cases. She was more senior. She 
did a lot of--she did all of the sort of fact gathering related 
to the cases, and as an appellate defender I worked on the 
legal arguments.
    Senator Cotton. Okay. Did you ever represent any of the 
detainees at Guantanamo Bay when you were not a public 
defender?
    Judge Jackson. One of the people who I'd represented while 
I was in--a Federal defender his case got spun off and taken up 
by a law firm. Law firms around the country were also engaged 
in this work at the time.
    Senator Cotton. I'm well aware of what law firms were doing 
at the time.
    Judge Jackson. Yes. And I left the Federal Public 
Defender's Office. I joined a law firm and the--one of the 
people that I had represented was now at that law firm. They 
had him as a client and they----
    Senator Cotton. That's Mr. al-Salam.
    Judge Jackson. Al-Qahtani.
    Senator Cotton. Al-Qahtani was the one.
    Judge Jackson. Was the one who----
    Senator Cotton. Just coincidentally both he and you went to 
Morrison & Foerster?
    Judge Jackson. Yes, Senator.
    Senator Cotton. Okay. What about Mr. al-Salam?
    Judge Jackson. I don't know what happened to Mr. al-Salam.
    Senator Cotton. You were listed as counsel for 2 years 
during your time at Morrison & Foerster.
    Judge Jackson. What happens is when you leave--when you 
leave from any place--firms or government service--you have to 
let the court know or their records--their records reflect 
where you are in the system and not so much the case in terms 
of your address. So----
    Senator Cotton. So and to go back to Mr. al-Qahtani----
    Judge Jackson. Yes.
    Senator Cotton [continuing]. So he just coincidentally--
it's a small world--went to Morrison & Foerster the same time 
you did and then you represented him and you did file multiple 
motions on his behalf.
    Judge Jackson. So I don't know if it was at the same time. 
I'm not sure when----
    Senator Cotton. But you did file multiple motions for him 
in 2008 and 2009?
    Judge Jackson. I only--I don't recall whether it was 
multiple, but he was still at the habeas stage of the process 
and I don't know when he came because the partners who picked 
up the case were in Los Angeles. I was in Washington, DC.
    They contacted me to say, oh, we see on the docket that you 
had previously represented him and now you're with our firm--
will you assist us with looking at these briefs, working on 
these briefs. There were many lawyers who were working on the 
filings that you're talking about.
    Senator Cotton. After you left the Public Defender's 
Office, did you continue in your representation of any other 
client you had had at the Public Defender's Office?
    Judge Jackson. I didn't continue my representation of any 
client. I left the Federal Public Defender's Office and then 
picked up Mr. al-Qahtani through the circumstances that I 
talked about and there were no other clients that I represented 
in that way.
    Senator Cotton. I have to say that sounds like 
continuation. You represented him at the Public Defender's 
Office and then you represented him in private practice as 
well. And you're telling us that's the only person you 
represented at both the Public Defender's Office and in private 
practice?
    Judge Jackson. Yes.
    Senator Cotton. So you didn't continue to provide any kind 
of pro bono work for murderers or rapists or anyone else but 
you did continue to represent this terrorist at Guantanamo Bay?
    Judge Jackson. When I got to the firm and they told me that 
the case was there and they recognized that I was at the firm 
and had previously worked on the case, and by they I mean the 
partners in the firm, they asked me as a member of the Supreme 
Court and Appellate Group of the firm, which is where--was my 
practice if I would help review and work on some of the 
briefing that they were submitting on his behalf, given my 
familiarity with the case.
    Senator Cotton. Were you representing him pro bono at 
Morrison & Foerster?
    Judge Jackson. The firm--the firm takes on pro bono 
representations, which means that the person isn't paying and--
--
    Senator Cotton. Let's turn to your amicus briefs. You had 
two briefs in Guantanamo cases, one for a think tank, one on 
behalf of a group of former judges. I think--as anyone who's 
done amicus work knows, sometimes the clients seek out the 
lawyers, sometimes the lawyers seek out the client. For either 
of those amicus briefs, were you involved in any way in seeking 
or recruiting those clients or suggesting the idea for an 
amicus brief in the first place?
    Judge Jackson. No, Senator.
    Senator Cotton. Were both of those briefs done on a pro 
bono basis?
    Judge Jackson. Yes, because the Supreme Court and Appellate 
Group in the law firm has paid clients and also has pro bono 
clients, and the briefs that I worked on were on--the one brief 
was 20 former Federal judges who wanted to make an argument in 
the Boumediene case that was in the Supreme Court, and one of 
them was a partner at my law firm. She was a former Federal 
judge whose idea it was and she knew the other judges and 
wanted our group to work on the brief.
    The other was not just one think tank, it was the Cato 
Institute, the Rutherford Institute, and the Constitution 
Project, an ideologically diverse group of nonprofits who 
wanted to make arguments in another case that the Supreme Court 
had taken up related to these issues, because all of this was 
novel and a lot of issues were being evaluated by the Supreme 
Court regarding the scope of Executive authority during this 
time of crisis.
    Senator Cotton. Okay. So you've done pro bono work for or 
on behalf of detainees at Guantanamo Bay. Have you ever done 
pro bono work for the victims of terrorism?
    Judge Jackson. Senator, I'm not aware of any such cases in 
my law firm. I was in a group of lawyers that was often 
approached to ask, would you file a brief for some group, and 
I'm not aware that any victims of terrorism asked our firm to 
participate.
    Senator Cotton. Okay. So we talked a lot about the people 
you represented. Let's talk a little bit about the defendants 
in those cases and how you characterized them. I'll remind you 
that those were the President, the Secretary of Defense, and 
active duty Army officers.
    Senator Graham and Senator Cornyn said that you called them 
war criminals. You disputed that and Senator Durbin has 
repeatedly denied it as well. And I'll concede you didn't use 
those exact words, you didn't say war criminals, but you did 
say in multiple court filings that they committed acts that 
constitute war crimes.
    I'm sorry, but I got to confess I don't understand the 
difference between saying someone is a war criminal and saying 
they've committed acts that constitute war crimes. So can you 
explain that difference to me?
    Judge Jackson. Yes, I will. Thank you for the opportunity.
    So when you file a habeas petition under our law, you can't 
file it against the United States because of sovereign 
immunity. The way our law works, you have to file it against 
individual officers in their official capacity. That's the way 
in which you're able to file a habeas petition.
    So whoever is the Executive at the time becomes the named 
party in the brief, and a habeas petition is like a complaint 
in a civil case. It's making allegations to begin the 
litigation about the person's detention. You----
    Senator Cotton. But, Judge, official capacity, personal 
capacity, all that it's just a bunch of procedural 
gobbledygook. These are the people that you said committed acts 
that constitute war crimes.
    Judge Jackson. With respect, Senator----
    Senator Cotton. And what is--I just don't understand the 
difference between calling someone a war criminal and saying 
they committed acts that constitute war crimes.
    Judge Jackson. With respect, Senator, they were not sued in 
their individual capacity. We weren't making allegations about 
those individuals and, in fact, over the course of the case the 
names changed.
    So later on, the habeas petition became against President 
Obama because he then became the Executive for the purpose of 
the habeas petition. So it wasn't----
    Senator Cotton. I'm well aware the names changed. It 
probably changed from Bob Gates--or from Don Rumsfeld to Bob 
Gates as well. But they were not the ones in office. They were 
not the ones who were overseeing the Government when you filed 
these suits and you said they committed acts that constitute 
war crimes.
    I just don't--I don't understand how you expect this 
Committee to believe that there's a difference between saying 
someone's a war criminal and saying they committed war crimes.
    Judge Jackson. Thank you for the opportunity to explain, 
Senator.
    One of the allegations that had been publicly reported with 
respect to the group of people who were in Guantanamo Bay was 
an allegation concerning the use of torture, and when you make 
that allegation you bring it under laws that themselves 
constitute crimes of war. That's the way in which the law 
works.
    So if you were in a--if you're writing a habeas petition 
and you say, upon information and belief, Mr. al-Qahtani was 
tortured, that allegation is made under a law that says that 
there was a war crime that occurred as a result of that torture 
and anyone--and you're making that allegation against the 
United States, but because you can't sue the United States the 
actual petition is named in the name of whoever is leading the 
United States at the time.
    So later in this--the course of this, it moved from 
President Bush, Donald Rumsfeld, to President Obama. It 
didn't--it's not about the individual. It's about the 
allegation that Mr. al-Qahtani, upon information and belief, 
had been tortured in the lead-up to his detention.
    Senator Cotton. I don't know, Judge. Sounds like a debate 
about how many terrorists can dance on the head of a pin to me.
    Chair Durbin. Thank you, Senator Cotton.
    I ask unanimous consent to enter a letter in the record 
from nine former national security officials defending Judge 
Jackson's Guantanamo representation.
    The signatories include former Attorney General Loretta 
Lynch, the Department of Homeland Security Secretary Jeh 
Johnson, and the former Judge Advocate General of the United 
States Navy.
    [The information appears as a submission for the record.]
    Chair Durbin. Senator Booker.
    Senator Booker. Thank you very much.
    Judge, after me, only five to go.
    [Laughter.]
    Senator Booker. But sit back for a second because I don't 
have questions right away. I actually have a number of things I 
just want to say because this has been not a surprise. Given 
the history that we all know, not a surprise, but perhaps a 
little bit of a disappointment, some of the things that have 
been said in this hearing.
    The way you have dealt with some of these things, that's 
why you are a judge and I am a politician, because you have sat 
with grit and grace and have shown us just extraordinary 
demeanor during the times where people were saying things to 
you that are actually out of the norm.
    I had to go up dais to ask some of my more senior 
colleagues about what I feel like is a dangerous precedent. 
People are taking--a thousand cases you've been over? Is that 
right? I'm sorry. I said I wouldn't ask you questions, but just 
give me a----
    Judge Jackson. Something like that.
    Senator Booker. Something like that. And from what I 
understand is that these cases are--often takes--take days, 
weeks, sometimes months, right?
    Judge Jackson. To decide in a case? Yes.
    Senator Booker. To--yes. Yes. There's a trial sometimes. 
And folks are taking any of those cases and just trying to pick 
pieces out.
    And so my colleague, Senator Hawley, has been doing this 
all into the lead-up and saying things, tweeting things, that I 
think that a lot of us--when I was just trying to get some 
advice here as this is what the new standard is going to be, 
that any judge coming before us that has ever chosen outside of 
the sentencing guidelines, below the sentencing guidelines, 
we're creating this environment now where I could make myself 
the hero of people who have been victims of some horrible crime 
and suddenly put whatever judge I want on the defensive by 
trying to drag out little bits when they have no context to the 
case. None of the facts. They're seeking to exploit the 
complexities of a criminal justice system, the reason why we 
have a third branch of Government.
    I feel bad that there was a judge mentioned by name in this 
hearing that's from Senator Hawley's State. What is that judge 
going to think next time they have a complicated sexual abuse 
case that comes before them and they know that they could 
possibly be called out if they go below the sentencing 
guidelines, which I showed you yesterday in my lack of chart--
if you'll remember, I was uncharted--but that you are deciding 
completely in the norm. Seventy-plus percent in many States are 
people who are doing just like you did.
    But I'm a Democratic Senator. I've never quoted from this 
very well-respected conservative periodical. This is the 
National Review, very well respected. They're not necessarily 
something I agree with all the time.
    But here's what the National Review--this is the title: 
``Senator Hawley's disingenuous attack against Judge Jackson's 
record on child pornography.'' I'll just read the first 
paragraph.
    ``I would oppose Judge Ketanji Brown Jackson because of her 
judicial philosophy for the reasons I outlined last week. I 
addressed that in a separate post. For now I want to discuss 
the claim by Senator Josh Hawley that Judge Jackson is 
appallingly soft on child pornography offenders.'' This is the 
kicker here. ``The allegations appear meritless to the point of 
demagoguery.''
    I got letters from leaders of victims rights groups, 
survivors of assault, all saying sort of the same thing with 
the National Review. Feel proud about yourself. You brought 
together right and left in this calling out of people that will 
sit up here and try to pull out from cases and try to put 
themselves in a position where they're the defenders of our 
children to a person who has children, to a person whose family 
goes out in streets and defends children.
    I mean, this is a 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 asked 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.''
    You are--I don't mean this in any way because if anybody 
called me average I would--I would be upset. But you are a 
mainstream judge. Your sentencing--I've looked at the data--
falls in the mainstream on everything from child sexual assault 
to all the other issues that people were trying to bring up.
    Some of these things that are being cast at you, that you 
called George Bush a war criminal, come on. That is painful, 
especially because, as you said, the brief changed. These are 
names that you have to put in, and we're talking about a real 
issue that goes to the core of our values--torture.
    Barack Obama was named once Bush left office. There is an 
absurdity to this that is almost comical if it was not so 
dangerous because the next time a judge comes before us on the 
right or the left that has a body of work like you do, gosh, 
one of the--some performance artist on our side could pull out 
one of the cases where they were below the sentencing 
guidelines.
    Say, for example, it was on something like--as horrific as 
rape that we all agree is horrific and they can suddenly put 
themselves as the--how dare we put someone in who's soft on 
crime. Well, are you soft on crime?
    God bless America. I got this great text. I've become 
really good friends with the folks at the FOP for my 
negotiations and this was my favorite text. You all got to get 
this. I think my brother, Kennedy, might get a kick out of 
this.
    It goes, ``Things that are uncountable: stars in the sky, 
grains of sand on the beach, and the number of times Democrats 
will mention that the FOP endorsed Judge Jackson in this 
hearing.''
    [Laughter.]
    Senator Booker. But let me mention it again. Just in case 
my people say you're rough on crime, folks, really want to try 
to make that stick? You were endorsed by the largest 
organization of rank and file police officers.
    You are endorsed by the bosses, the largest organization of 
chiefs of police, and you were endorsed by NOBLE, who I hope 
people find out more about that organization. You got uncles 
that are officers. You got a brother, not just an officer, who 
went to serve after 9/11. Your family's not soft on terrorism. 
He went out there to capture and kill and defend this country 
from terrorists.
    I actually, sitting back here, am finding this astonishing 
but then I do my homework. I love that my colleague brought up 
Constance Baker Motley. You know, when she was getting to the 
floor of the Senate they were trying to stop her with 
outrageous accusations. You know what the accusation was back 
then? She was a communist. Dragging up stories, trying to throw 
anything that they might stick.
    But this is what you and I know. Any one of us Senators 
could yell as loud as we want that Venus can't return a serve. 
We could yell as loud as we want that Beyonce can't sing. We 
can yell as much as we want that astronaut Mae Jemison didn't 
go all that high.
    But you know what? They got nothing to prove. As it says in 
the Bible, let the work I've done speak for me. Well, you have 
spoken.
    You started speaking as a little girl, watching that man 
right there try to raise a family and study law while your mama 
supported everybody. You spoke in high school when you started 
distinguishing yourself, and you know what you said when they 
told you you couldn't go to Harvard? Watch me.
    I went to law school. I didn't serve on the Law Review. You 
did. I didn't clerk at every level of the Federal court. You 
clerked for a Supreme Court Justice, one widely respected on 
both sides, which really shaped you.
    You left there and you went to private practice, and you 
know what you found--this is what you told me--that you had 
those tough choices that working moms have to make--the demands 
of a private law firm, raising your kids. It just didn't add 
up.
    You went before the Senate three times in a bipartisan 
manner. God bless America. We don't do that much stuff 
bipartisan around here. You went to--became a public defender 
because you wanted to understand all aspects of the law. Who 
does that?
    We live in a society that's very materialistic sometimes, 
very, very consumeristic. You went into--do people become 
public defenders for the money? No.
    Your family and you speak to service, service, service, 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 am--
I'm embarrassed. It happened earlier today. I just look at you 
and I start getting full of emotion.
    I'm jogging this morning and I'm at the end of the block I 
live on and I get tired--because I put my music on loud when 
I'm jogging, trying to block out the noise of the heart attack 
I'm having.
    [Laughter.]
    Senator Booker. And this woman comes up on me, practically 
tackles me--an African-American woman, and the look on her eye, 
she just wanted to touch me because I think--because I'm 
sitting so close to you, and tell me what it meant to her to 
watch you sitting where you're sitting.
    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 backward 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 at a conservative magazine demagogic for what 
they're bringing up that just doesn't hold water. I'm not going 
to let my joy be stolen because I know, you and I, we 
appreciate something that we get that a lot of my colleagues 
don't. I know Tim Scott does.
    When I first came to this place, I was the fourth Black 
person ever popularly elected to the United States Senate and I 
still remember--a lot of mixed people--white folks, Black 
folks--work here, but at night when people are in line to come 
in to clean this place the percentage of minorities shift a 
lot.
    And so I'm walking here first week I'm here, and somebody 
who's been here for decades doing the urgent work of the Senate 
but it's the unglamorous work that goes on no matter who's in 
offices, the guy comes up to me. All he wants to say, I can 
tell, is, I'm so happy you're here.
    But he comes up and he can't get the words out and this 
man, my elder, starts crying, and I just hugged him and he just 
kept telling me, it is so good to see you here. It's so good to 
see you here. Thank you. Thank you. Thank you.
    I love my brother, Tim Scott. We could write a dissertation 
on our disagreements. He gave the best speech on race--I wish I 
could have given as good of a speech--but talking to the 
challenges and indignities that are still faced, and you're 
here.
    I was in the White House with my Democratic colleagues and, 
again, I'm in my joy--I can't help it. And the President's 
asking everybody who should we nominate and whatever. And I 
look at Kamala and we have a knowing glance, which we've had 
for years when she and I used to sit on this end of this 
Committee at times, and then I tried to get out to the 
President what it means--what it means.
    And I want to tell you--when I look at you this is why I 
get emotional--I'm sorry, you're a person that is so much more 
than your race and gender. You're a Christian. You're a mom. 
You're an intellect. You love books.
    But for me, I'm sorry, it's hard for me not to look at you 
and not see my mom, not to see my cousins, one of them who had 
to come here and sit behind you. She had to have your back. I 
see my ancestors and yours.
    Nobody's going to steal the joy of that woman in the street 
or the calls that I'm getting or the texts. Nobody's going to 
steal that joy. You have earned this spot. You are worthy. You 
are a great American.
    Your hero is Constance Baker Motley. Mine, she has sat on 
my desk for my offices that I've held. She's my icon of 
America. Her name is Harriet Tubman.
    There is a love in this country that is extraordinary. You 
admitted it about your parents. They loved this Nation, even 
though there were laws preventing them from getting together. 
When they were loving there were laws in this country that 
would have prevented you from marrying your husband. It wasn't 
that long ago. It was last generation.
    But they didn't stop loving this country even though this 
country didn't love them back. And what were the words of your 
heroes and mine? What did Constance Baker Motley do? Did she--
this country that she saw insult and injuries. When she came 
out of law school law firms wouldn't even hire her because she 
was a woman.
    Did she become bitter? Did she try to create a revolution? 
No, she used the very Constitution of this Nation. She loved it 
so much she wanted America to be America. As Langston Hughes 
wrote, ``Oh, let America be America again, the land that never 
has been yet but yet must be the land where everyone is free. 
Oh yes, I say it plain. America never was America to me. But I 
swear this oath, America will be.''
    That is the story of how you got to this desk, you and I 
and everyone here, generations of folk who came here and said 
America, I'm Irish. You may say no Irish or dogs need apply. 
But I'm going to show this country that I can be free here. I 
can make this country love me as much as I love it.
    Chinese Americans, forced into near slave labor building 
our railroads connecting our country, saw the ugliest of 
America but they were going to build their home here and say, 
America, you may not love me yet but I'm going to make this 
Nation live up to its promise and hope.
    LGBTQ Americans, from Stonewall women to Seneca, hidden 
figures who didn't even get their play until some Hollywood 
movie finally talked about them and how they were critical for 
us defying gravity--all of these people loved America.
    And so you faced insults here that was shocking to me. 
Well, actually, not shocking. But you are here because of that 
kind of love and nobody's taking this away from me.
    So you got five more folks to go through, five more of us, 
and then you can sit back and let us have all the debates, and 
I'm going to tell you, it's going to be a well-charted Senate 
floor because it's not going to stop. They're going to accuse 
you of this and that. Heck, in honor of your--the person who 
shares your birthday you might be called a communist.
    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.
    Harriet Tubman is one of my heroes because the more I read 
about this person, the more--I mean, she was viciously beaten. 
Her whole life she used to fall into spells--cracked skull. She 
faced starvation, chased by dogs. And when she got to freedom, 
what did she do? Did she rest? No, she went back again and 
again and again.
    The star was--the sky was full of stars. But she found one 
that was a harbinger of hope for better days, not just for her 
and those people that were enslaved but a harbinger of hope for 
this country and she never gave up on America. She fought in 
the--led troops in the Civil War. She was involved in the 
suffrage movement.
    And as I came back from my run, after being near assaulted 
by someone on the street, I thought about her and how she 
looked up. She kept looking up. No matter what they did to her, 
she never stopped looking up and that star was a harbinger of 
hope.
    Today, you're my star. You are my harbinger of hope. This 
country is getting better and better and better, and when that 
final vote happens and you ascend onto the highest court in the 
land, I'm going to rejoice. And I'm going to tell you right 
now, the greatest country in the world, the United States of 
America, will be better because of you.
    Thank you.
    Chair Durbin. Thank you, Senator Booker.
    We're going to take a 10-minute break and come back and 
have the last five Senators ask their questions.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. The Committee will resume with Senator 
Kennedy of Louisiana.
    Senator Kennedy. Thank you, Mr. Chairman. Judge, I want to 
continue where we left off yesterday and try to get, if I can, 
get to the essence of this tension between judicial power and 
judicial restraint. You have testified, and stop me if I get 
this wrong, that judges should stay in their lane, and I think 
it's fair to say that one of your definitions of ``staying in 
your lane'' is that judges don't make policy. Am I right so 
far?
    Judge Jackson. Yes, that is correct, Senator.
    Senator Kennedy. Then how do you explain or help me 
understand the following. We have a judicially created doctrine 
with no textual basis either in the Constitution or a statute 
called substantive due process, and through substantive due 
process, our Federal courts--let's just narrow it down--the 
United States Supreme Court has given itself the authority to 
read into the Constitution unenumerated, unmentioned rights, 
not read the Constitution and say, well, there it is, freedom 
of speech, but these are unmentioned, unenumerated. Isn't that 
making policy?
    Judge Jackson. Senator, the Supreme Court interprets 
provisions of the Constitution, and there are provisions of the 
Constitution that require interpretation because they don't, 
just on the text in every circumstance, answer the question 
before the Court. So due process, what does that mean? And the 
Supreme Court has--the words ``due process'' do appear in the 
text of the Constitution, and the question is, what is covered 
by that provision? The Supreme Court--oh, sorry. Go ahead.
    Senator Kennedy. I was just going to say, but when they do 
it, aren't they making policy?
    Judge Jackson. Well, Senator, the role of the judiciary is 
to interpret the law. To the extent that somebody argues to the 
Court that there's been a violation of the Due Process Clause 
of the Constitution, it is within the role of the Court to 
determine what that means and whether the person is correct 
that what happened with respect to their case violated the Due 
Process Clause. And so there's an interpretive function that is 
a part of the judicial function.
    Senator Kennedy. Let me see if I can put a finer point on 
this. It's not the right so much. It's how the right is 
created. That's why I asked you yesterday whether you think 
that enumerated--these unenumerated, unmentioned rights ought 
to be decided by the people through their elective 
representatives versus the Federal judiciary. Let's take two 
rights that I talked about yesterday: the right to assisted 
suicide, the right of a transgender woman to participate in 
women's sports.
    I can see how--I'm not predicting that it will, but I can 
see how the Court, either through the Due Process Clause or the 
Ninth Amendment, could find those rights in the Constitution. 
As we talked about yesterday, the Supreme Court has--it looks 
to me like they've adopted the policy of there is no test for a 
fundamental right. There are several tests, and in Obergefell, 
Justice Kennedy cited with approval Justice Harlan's dissent in 
Poe v. Ullman, which says there's no test. We go case by case.
    And the--but I know there are tests, like--I'll get the 
language here. Somewhere I've got it. I don't want to look it 
up, but implicit in the concept of ordered liberty, and you 
talked about that. Here's a new one that Justice Kennedy talked 
about in Obergefell. He said, ``inherent in the concept of 
individual autonomy.'' Well, I can see how that the Court with 
five votes wanted to say even though the right to assisted 
suicide or the right of a transgender woman to participate in 
women's sports, I can see how somebody--you're smart. You could 
write an opinion and say that's inherent in the concept of 
individual autonomy. And maybe--again, it's not the right. It's 
who's supposed to decide, and that's where the judicial 
restraint comes in. I mean, don't you think that the values of 
ordinary Americans and their ability to decide these issues are 
just as good as those of five members of the Supreme Court?
    Judge Jackson. Thank you, Senator. There are policy 
determinations that are made by vote and, absolutely, in the 
democratic process. People get to decide things. The question 
and the difficulty is when you have a constitutional scheme of 
government and you have a Constitution that does protect 
certain rights, and it does so in a circumstance in which those 
rights, whatever they are, enumerated or not, are--might be 
things that the people have disagreed with. That's the tension, 
that although we have democracy, as we do, and people vote and 
should absolutely, we also have a Constitution that protects 
certain rights against the sort of majority will about those 
things.
    Senator Kennedy. But the rub, of course, is--I agree with 
everything you said, but the rub is, these are unenumerated 
rights.
    Judge Jackson. Yes.
    Senator Kennedy. They're read into the Constitution.
    Judge Jackson. Yes.
    Senator Kennedy. And what troubles me, I'm not saying I 
disagree with all the rights that the Supreme Court has 
created, but I don't think we talk honestly enough about how 
those rights should be adjudicated. For example, I'm not asking 
you to comment on this. I think you already have. But when 
President Biden announced your appointment, or at least shortly 
before, he talked about, I want a judge that's going to read 
new rights into the Constitution through the Ninth Amendment. 
And I'm sure some Americans are saying that's a good thing, but 
you got a lot of Americans going, hey, wait a minute, the 
Supreme Court isn't elected. A couple years ago, Chief of Staff 
Ron Klain wrote an opinion piece, and he said he hopes, and I'm 
going to quote, ``the Supreme--I hope the Supreme Court will 
intervene whenever the Nation's conscience and laws need a jolt 
in a progressive direction.'' That's policymaking. Do you agree 
with that statement?
    Judge Jackson. Do I--do I agree with the statement that 
that's policymaking or--I'm sorry.
    Senator Kennedy. No, did you agree with what the chief 
said.
    Judge Jackson. Senator, that's a political statement made 
by someone in the executive branch.
    Senator Kennedy. I'm not going to push you. I get it.
    [Laughter.]
    Senator Kennedy. It's not a good time to make the chief of 
staff mad, is it?
    [Laughter.]
    Senator Kennedy. Well, I just--I hope you'll keep this in 
mind, Judge, if you're confirmed. I mean, this is what judicial 
restraint is all about, and I think part of the division in our 
country--America is a big, wide, open, diverse, sometimes 
dysfunctional but sometimes imperfect, but basically good 
country, but we have different values. That's a part of our 
diversity, and I think our country works because of our system 
of federalism. The values in Louisiana may be different from 
the values in Maine, and if you don't like what's going on in 
Maine and you don't--you like what's going on in Louisiana, you 
can move. But as our Federal Government has gotten bigger, and 
bigger, and bigger, and bigger, what has developed, at least 
here in Washington, is this managerial elite. And I--when I say 
the ``managerial elite,'' I mean--I mean the entrenched 
politicians. I guess I shouldn't say ``entrenched,'' because 
that's pejorative, but we do have a lot of politicians that 
have been here a long time.
    There are members of the media that are part of the 
managerial elite. There are members of the administrative 
state. They're academics that are part of it. There are a lot 
of corporate phonies that are part of it. And many people in 
this cabal think they are smarter and more virtuous than the 
American people and that they ought to set forth how people 
should live their lives. People should shut up and just do what 
they're told, and if they behave, maybe the managerial elite 
will let them eat meat occasionally. I think that's part of the 
division in our country. And I think, to some extent, the 
Supreme Court--I don't want to say contributes to it, but it 
needs to be mindful of this.
    I'll give you another example, and this case bothers me. I 
want you to explain it. I think Lindsey talked to you about it, 
but I don't know that--I want to hear you explain it. It's Make 
the Road New York v. McAleenan. You remember that one.
    Judge Jackson. I do.
    Senator Kennedy. Yes. Here's the way I read it. Congress, 
we in a rare moment of consensus, gave DHS the ``sole and 
unreviewable''--those are not my words, they're in the 
statute--``the sole and unreviewable right to determine when 
illegal immigrants should be removed on an expedited basis.'' 
The Department of Homeland Security, taking this statute, 
decided to use its sole and unreviewable authority or 
discretion to state that we're going to have expedited removal 
of all illegal immigrants who've been in the U.S. less than 2 
years. And you said no, and not only that, but you issued a 
universal injunction, and I don't understand why. You talked 
about judicial activism, and I don't see how clearer Congress 
could've been. Now, the D.C. Circuit reversed you, but I want 
to hear your reasons for issuing that nationwide injunction.
    Judge Jackson. Thank you, Senator, for allowing me to 
address that decision in that case. The statute at issue gave 
discretion to DHS to determine the amount of time that a person 
needed to have been in the country, between zero and 24 months, 
in order to be subject to expedited removal as opposed to the 
normal removal process in the immigration system.
    Senator Kennedy. Mm-hmm.
    Judge Jackson. The statute said that DHS had sole 
discretion, meaning no--I interpreted, meaning no other agency 
was to have the authority to make that determination. And the 
statute said that DHS' determination in that regard was 
unreviewable, meaning it was final--this is how I'm 
interpreting--meaning that once the decision was made, it was 
over. Nobody else gets to review. The court doesn't get to say, 
no, you're wrong if you pick 12 months, for example, or 16 
months, or 24 months, as they did in this case.
    The statute did not speak to whether Congress intended, 
with that grant of very broad discretion, to exclude another 
statute that Congress has passed that directs agencies when 
Congress gives them discretion. The other statute, the APA, 
directs agencies as to how they go about making decisions that 
Congress has given them the authority to make. The APA is a 
procedural statute. It says to agencies when Congress gives you 
discretion to make a determination, you have to do so in a way 
that's not arbitrary and capricious. You have to use your 
expertise.
    Senator Kennedy. Right.
    Judge Jackson. In certain kinds of decisions, you have to 
use notice and comment in order to get information. It's 
procedural. The claim that was being made in this case, as I 
read it and understood it, was not that the Agency couldn't 
pick 24 months because obviously Congress had said in the 
statute you can pick between zero and 24 months. The claim that 
was being made is that the Agency picked 24 months arbitrarily 
in violation of Congress' direction about how you go about 
exercising----
    Senator Kennedy. The APA was violated?
    Judge Jackson. Yes.
    Senator Kennedy. Okay.
    Judge Jackson. The claim was an APA violation. So no one 
was saying that the statute was violated in the sense that the 
Agency did something that it couldn't have done per the 
statute, picking 24 months. They said the APA was violated 
because--this is the claim that they were making----
    Senator Kennedy. Sure.
    Judge Jackson [continuing]. Because the Agency did no 
analysis, the Agency had no expertise. The Agency did not 
evaluate, okay, if you've been here 6 months, these are the 
kinds of ties that you have if you've been here 18 months, 
right?
    Senator Kennedy. I got it. I got it.
    Judge Jackson. The Agency didn't do anything. Essentially, 
according to the claimants, the Agency heard the President say 
we're going to now do 24 months when everybody else--all of the 
other administrations up to this point----
    Senator Kennedy. I've got it. I'm interrupting you because 
I've only got----
    Judge Jackson. Yes, I'm sorry. All right. So----
    Senator Kennedy. What I hear you saying is--tell me if I'm 
wrong.
    Judge Jackson. Yes.
    Senator Kennedy. They didn't follow the APA in your 
opinion, which you have to do even though Congress passed the 
statute? Is that----
    Judge Jackson. Well, no, because two things. One is the 
APA, under D.C.--longstanding D.C. Circuit caselaw is 
presumptively applicable to every situation in which an agency 
is exercising its discretion. So that's the first thing. It's 
always there as a background rule. So the D.C. Circuit has said 
Congress has to be pretty clear when it decides to exclude the 
APA, when it's saying I'm giving you discretion, but you can do 
this arbitrarily, you can do it however you want. And in other 
places in the immigration statute that sets up expedited 
removal, Congress says we are excluding the APA. We're telling 
you that with respect to this kind of discretion, the APA 
doesn't apply.
    Senator Kennedy. Okay.
    Judge Jackson. So here I had these two statutes, and there 
are canons of statutory interpretation that says that you 
should try to get an effect to all of the will of Congress. You 
should try to read statutes so that they go together in a way 
if you have these directives. And there's also D.C. Circuit 
caselaw----
    Senator Kennedy. Judge, I got to stop you----
    Judge Jackson. All right.
    Senator Kennedy [continuing]. Because I got it.
    Judge Jackson. And let me just say I agree that the D.C. 
Circuit reversed me. They disagreed with my interpretation, and 
that's the way that our system works.
    Senator Kennedy. Let me ask this last question. This is--
this is a question about--based on your experience. Can we 
agree that if--I want to emphasize ``if''--cocaine is cocaine, 
that crack cocaine is equal in its danger to powdered cocaine. 
You with me?
    Judge Jackson. I think so.
    Senator Kennedy. One is not more dangerous than the other. 
If that's true----
    Judge Jackson. Mm-hmm.
    Senator Kennedy [continuing]. Then the sentencing rules 
ought to be the same, okay? I don't----
    Judge Jackson. It's a policy matter for Congress. You could 
make them differently if you wanted to.
    Senator Kennedy. Right. That's what I want to ask you.
    Judge Jackson. Yes.
    Senator Kennedy. Based on your experience----
    Judge Jackson. Yes.
    Senator Kennedy [continuing]. You've been on the bench a 
decade.
    Judge Jackson. Yes.
    Senator Kennedy. Is crack cocaine more dangerous than 
powder, or less, or the same?
    Judge Jackson. Senator, that's a policy determination. 
That's what policymakers do. They look at the evidence related 
to these things, and they decide what's more dangerous, what 
should----
    Senator Kennedy. What have you seen?
    Judge Jackson. I have seen evidence through the Sentencing 
Commission that the two compositions are chemically similar, so 
similar as to be indistinguishable.
    Senator Kennedy. Mm-hmm.
    Judge Jackson. And the Commission, for very many years as a 
policymaking body, indicated its view that they should be 
equivalent and lobbied Congress concerning that, and Congress 
made a determination about--in the policy realm making it 18-
to-1 instead of 100-to-1, which is what it had previously been.
    Senator Kennedy. Okay. Thanks, Mr. Chairman.
    Chair Durbin. Thank you, Senator Kennedy.
    And now Senator Padilla.
    Senator Padilla. Mr. Chairman, before I begin, I know 
you're being very mindful of the clock, so I just want to say I 
have two initial, more substantive questions and then I think 
two very brief questions that are very important. So I'll get 
right to it.
    Judge Jackson, I am so glad that you take so much pride in 
sharing your family's story, as you should. I know I take pride 
in sharing mine. My colleagues have heard it, but I never get 
tired of reminding folks that I am the proud son of immigrants. 
My parents came to the United States from Mexico decades ago, 
and through their hard work and determination, they raised 
three of us. My sister, my brother, and I, we all attended and 
graduated from college, and we've all found successful careers 
in public service.
    Now, it's a story that is shared by hard-working immigrant 
families across the country and over the course of generations, 
families who work diligently each day to create a better life 
and to contribute to the country, whether it's as farmworkers, 
short-order cooks, celebrity chefs, software engineers, or tech 
CEOs, as school custodians, teachers, principals, whether 
they're documented or undocumented. People who migrate to this 
country seeking asylum, seeking refuge, or a shot at the 
American Dream all deserve to be treated with dignity and 
humanity.
    Now, unfortunately, our laws and our courts don't always do 
that. Beyond our often cruel and counterproductive choices that 
we've made over the years when it comes to immigration policy, 
the language that we use to speak about immigrants can often 
have dehumanizing effects. For example, in the Immigration and 
Nationality Act, it's replete with references to ``aliens,'' 
and court opinions written by Federal judges across the country 
can be found referring to undocumented persons as ``illegal 
aliens.'' Now, I know NASA has put a man on the moon and there 
are billionaires increasingly exploring space, but let's be 
clear. No person is an alien, and no human being can be 
illegal.
    So with that context, I read your immigration-related 
decisions on the district court with great interest. Now, 
beyond the substance of your opinions, what stood out to me is 
that you seem to have tried to avoid making the same choice as 
many of your predecessors and many of your colleagues when not 
quoting statutes or precedent. Your opinions appear not to 
refer to immigrants as ``alien'' or ``illegal.'' Instead you 
use terms such as ``undocumented'' and ``non-citizen.'' I 
imagine--I hope that was a conscious choice.
    The language we use and the language our courts use to 
describe people, whether immigrants, the formerly incarcerated, 
individuals who identify as LGBTQ, or other historically 
marginalized people, really matters a great deal. Our language 
matters. It's exactly for that reason that 6 years ago, 
Congress passed a bill to remove derogatory and offensive 
references to Black Americans, Asian Americans, and Native 
Americans from the U.S. Code, and it's why last year, President 
Biden ordered the Customs and Border Protection Agency and ICE 
to stop referring to migrants as ``illegal immigrants.''
    With all that said, Judge Jackson, do you agree that the 
language we use to describe one another and the language used 
by the bench matters?
    Judge Jackson. Thank you, Senator. As I mentioned earlier 
in this hearing, judges are the only branch of Government who 
are required to write our opinions, to explain our decisions, 
and I have long believed in that capacity that our clarity and 
language matters. We're explaining the law to people, and 
people read and understand what the law is, what the rule of 
law is in this country through the opinions of judges. So they 
do matter, language.
    Senator Padilla. Thank you. Now I want to discuss with you 
an issue of law and technology, an issue previously raised by 
Senator Ossoff earlier today, and I'm excited to talk to you 
about this topic. Just as an aside, any day that an MIT 
engineer gets to question of Harvard lawyer, it's a good day, 
so thank you for indulging. But as you know, the Supreme Court 
only hears a tiny fraction of all Federal appeals. That means 
that the cases that get to the Supreme Court are typically 
either new questions of law or very difficult questions of law. 
And I think the intersection of law and technology is one where 
many cases are both new and difficult.
    Over the course of human history, innovation has constantly 
disrupted our culture and our norms, and for the most part with 
good intentions, but societal benefits have not always been the 
result of innovation. Innovations have challenged us to respond 
with new means of safeguarding basic rights, whether in the 
context of privacy, security, competition, employment, just to 
name a few. And I appreciate that the speed of innovation will 
always challenge our ability to keep the law up to date with 
new technologies and their impact.
    I've grappled with this question as a city council member, 
as a State senator, as a secretary of State, and now as a 
United States Senator. But clearly it's also a challenge for 
the courts, which often have to decide cases during that period 
between technological progress and the enactment of new laws 
that seek to account for that progress. Now, new technology 
alone has given rise to a number of fundamental questions of 
law, as you mentioned yesterday and earlier, including how the 
Fourth Amendment applies to new contexts that no Founder could 
have ever contemplated. And likewise, the Court has to grapple 
with questions, like how copyright law applies to computer 
code. And in the coming years, new technologies will present 
new questions, not just in the context of the Fourth Amendment, 
but in areas of communications, energy, transportation, 
healthcare, and many others.
    So if you can take just a minute, Judge, to discuss the 
challenges that courts at every level face in addressing cases 
involving new and emerging technologies and how you as a 
Supreme Court Justice would begin to prepare for these types of 
cases.
    Judge Jackson. Thank you, Senator. The court does get cases 
that involve disputes that touch on technological innovation. 
Whether it is something like a copyright kind of case, or a 
patent kind of case, or the Fourth Amendment search and 
seizure, new technologies do intersect with what the law says 
in the Constitution and in statutes. And at least as far as 
statutes are concerned, it's certainly much easier for judges 
who are doing their duty to interpret the law if Congress makes 
changes that update the statutes to track the modern 
innovations.
    What happens with constitutional interpretation is similar 
to what I described earlier about cases in which the Court 
analogizes back to the time of the founding concerning the 
principles in something like search and seizure, what qualified 
as a search that violated the Constitution when those words 
were written, and then determines whether that same kind of 
violation is at issue with respect to the technology today. And 
the Court has done that with respect to searches regarding cell 
phones, police access to GPS data, tracking technology that is 
put on vehicles because these disputes do come up.
    And so I'll take this opportunity to encourage Congress to 
help us by ensuring that new technologies are addressed in 
statutes that we interpret.
    Senator Padilla. You're absolutely right. Both judges and 
Members of Congress are never done doing more homework and 
learning hopefully. Judge, on Monday, which at this point feels 
like so long ago, I suggested in my opening statement that by 
the end of these hearings, America would know just how 
qualified you are to serve on the Supreme Court. And over the 
course of this hearing, I think the American people have seen 
that and have gotten to know you as a person. They have heard 
your family's journey and everything that your nomination 
represents.
    Now, I also said on Monday that your qualifications bear 
repeating over and over again. And so, Judge, with your help, 
I'd like to remind the Committee and the American people once 
again just some of your incredible credentials. Yes or no: 
After law school, did you serve as a law clerk for a district 
court judge, a court of appeals judge, and a Supreme Court 
Justice?
    Judge Jackson. I did, Senator.
    Senator Padilla. Yes or no: Did you practice law for more 
than 10 years before becoming a judge?
    Judge Jackson. Yes, Senator.
    Senator Padilla. And did that include time in private 
practice and time as a Federal public defender?
    Judge Jackson. It did.
    Senator Padilla. How many years have you served as a 
Federal district court judge?
    Judge Jackson. I served as a Federal district court judge 
for, I believe, 8\1/2\ years.
    Senator Padilla. And circuit since?
    Judge Jackson. Circuit since last June.
    Senator Padilla. And as a district court judge, 
approximately how many opinions did you write? I think we've 
covered this before.
    Judge Jackson. As a district court judge, I believe I wrote 
somewhere in the neighborhood of 560.
    Senator Padilla. With a very low rate of having been 
reversed if I've done my homework correctly. Look, I can go on 
and on, and don't worry, Mr. Chairman, I won't, but, Judge 
Jackson, for 2 days, here's what I've seen. I've seen a number 
of my colleagues trying to engage with you in good faith on 
questions about the law, and you've answered them fully, 
fairly, and thoughtfully in every instance. You've shown 
yourself to have the keen intellect and legal acumen to serve 
on the Supreme Court.
    Now, you've also sat here and politely listened as some of 
my colleagues have attempted to disparage your judgment and 
character based on allegations that even, as Senator Booker 
pointed out, conservative commentators have called ``meritless 
to the point of demagoguery.'' And through that, you've shown 
clearly that you have the temperament to serve on the Supreme 
Court.
    Now, this confirmation hearing has been a reminder and, in 
some ways, a new Exhibit A that people of color, particularly 
those who have the audacity to try to be the first, often have 
to work twice as hard to get half the respect. Judge Jackson, I 
offer that with your talent and exemplary qualifications on 
full display, if my colleagues truly believed in maintaining 
the legitimacy of the Supreme Court, if they really care about 
Americans' faith in the judicial system, they will see that 
even if they may disagree with you on a particular area of the 
law, that you're exactly the type of judge that should serve on 
the Supreme Court. You're exactly the type of judge that should 
receive bipartisan support, not just from this Committee, but 
from the full Senate. And if any Senator doesn't, then I hope 
they'll think long and hard about what it says to the country 
about the politicization of the Supreme Court, that someone as 
eminently qualified as Judge Jackson in all the ways that we've 
been discussing cannot receive bipartisan support.
    Judge, and there's just a couple minutes left, and I'd like 
to ask you just one last question. Last Friday, in my 
preparation for these hearings, I took the opportunity to spend 
some time with a group of students at South San Francisco High 
School. I went there to speak with them about this historic 
Supreme Court nomination and to speak with them about you. We 
had a great conversation about how the Court's decisions affect 
the everyday lives of Americans and about the past and the 
future of the Supreme Court. But as I was speaking with the 
students, I couldn't help but be reminded of my own high school 
experience when one of my teachers discouraged me from applying 
to MIT because they didn't want me to be disappointed. I turned 
that discouragement into motivation.
    Judge Jackson, I know that you, too, have been doubted on 
your way to the seat that you find yourself in today. Even over 
the last 3 days of this hearing, your experience and 
qualifications have been called into question by some, despite 
your clear, lengthy record of talent, achievement, and 
accomplishment. So I want to end my time today by asking you 
this question: on behalf of the young people I visited with 
last Friday in South San Francisco, and for the many others 
across the country who are watching this confirmation hearing 
today, what would you say, Judge Jackson, to all those young 
Americans, the most diverse generation in our Nation's history, 
what do you say to some of them who may doubt that they can one 
day achieve the same great heights that you have?
    Judge Jackson. Thank you, Senator. That was very moving, 
and I appreciate the opportunity to speak to young people. I 
appreciate it very much. I do it a lot for the reasons that you 
have articulated. I hope to inspire people to try to follow 
this path because I love this country, because I love the law, 
because I think it is important that we all invest in our 
future. And 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--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----
    [Laughter.]
    Judge Jackson. Knew all about Harvard, and that was 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.
    Senator Padilla. Thank you, Judge Jackson. You don't have 
to hope. I'll tell you right now, you do inspire. You are an 
inspiration.
    Judge Jackson. Thank you.
    Senator Padilla. And I will associate myself with the 
closing words of my colleague and my brother, Senator Booker, 
that I, too, refuse to let anyone steal my joy. Thank you, 
Madam Chair.
    Chair Durbin. Thank you, Senator Padilla.
    Senator Tillis.
    Senator Tillis. Thank you, Mr. Chair. Judge Jackson, as 
Senator Booker was providing his closing comments, I could only 
think, and they were very powerful, that if you liked his, how 
much you're going to like mine on the subject of intellectual 
property.
    [Laughter.]
    Senator Tillis. But before I do that, I know you've been 
spending a lot of time here. Do you have much experience in 
matters of copyright protection, patent protection?
    Judge Jackson. Senator, I mentioned earlier that I did a 
trademark case.
    Senator Tillis. Yes.
    Judge Jackson. Not that----
    Senator Tillis. By the way, I looked up the menu.
    Judge Jackson. Did you?
    Senator Tillis. It looks like a really good menu.
    Judge Jackson. I think it's a good restaurant. They had a 
lot of evidence to that effect.
    Senator Tillis. I haven't done a lot of food or restaurant 
trademark work, but when I came to Judiciary, fortunately, the 
former Chair and the current Chair indulged us in reinstituting 
the Intellectual Property Subcommittee. And I love that 
Committee because you really have to work hard to be partisan 
in it, and, in fact, it's not partisan. I worked very well 
with, as the Chair, with Senator Coons and done very well with 
Senator Leahy and Senator Hirono, in working together on things 
that I think are really important, because I think one of the 
things that make the--our country great is the founding fathers 
got it right on understanding the value of intellectual 
property and how it could catapult us into the innovation 
powerhouse that we are today. So I may ask you a few questions 
about it, but I'm not going to dig too deeply.
    I do want to go back to maybe getting a suggestion from 
you. I thought--I told you I don't even pretend to be an 
attorney, but I am about 30 years into technology. As a matter 
of fact, I spent 2 years in Boston at Wang Laboratories. And it 
was no coincidence, having been born and raised in Florida that 
I moved 1 September because I couldn't bear another winter. But 
I made--I've been in the technical field. I was working on IP, 
or internet protocol, before anybody knew what internet 
protocol was back in the early 1990s.
    And I do think that we should go away and understand the 
threat. If you've seen the multiple of illicit activities, and 
for the purposes of this discussion, child pornography now, 
imagine what it's going to be like 5 years from now. I was 
talking with someone in the hallway. They're taking a playbook 
from drug kingpins. The creators, and the aggregators, and the 
distributors are using technology, I think, in some cases to 
reach out to people and incent them to go to these websites, to 
infect their computers, to download thousands potentially from 
a single click. I think that we have to examine these criminal 
enterprises and put law enforcement resources into cutting the 
heads off of these people, figuratively speaking. And one of 
the ways you do that is to provide, I think, more ways to go 
about prosecuting more technology, that we need to cut down the 
supply.
    But we still have to deal with the demand, and that's 
another area where these criminal organizations and others are 
taking advantage. And, you know, today, if you think about 
technology 10 years ago, it was a little odd, at least 15 years 
ago, to see a child. I've got two granddaughters. One is 4 
years old. One is 2 years old. They're technologically savvy. 
As matter of fact, I love talking to them on the phone, but 
even my 2-year-old knows how to deal with the filters to make 
me look like I've got the rabbit ears and everything. They're 
technologically savvy. There's a real danger there that these 
horrible people, and I genuinely believe that you think they're 
horrible people, are going--excuse me--they're going to infect 
and destroy a lot of lives.
    And so I don't know is it with the Sentencing Commission, 
and incidentally, this is a toxic subject in Congress because 
if you start talking about better understanding this, most 
people are going to run away from it, but we do it at the 
expense of destroying a lot of victims' lives. So I don't--
unless you have ideas off the top of your head, I'm trying to 
get an idea of how we can make people understand. Maybe we 
could even have a discussion to say that the penalties today 
are the floor to begin the discussion, just to simply eliminate 
people from making this so toxic that we don't better 
understand it and get ahead of it.
    But how can we even start having an intelligent discussion 
and a productive discussion where Congress is clearly going to 
need to act to do what I think everybody in this room wants to 
do, is just erase it from the planet of the Earth, or at least 
make a lot of progress, because, quite honestly, it has 
exponentially grown, and there are exponentially more victims 
today than there were even 10 years ago. Any ideas?
    Judge Jackson. Thank you, Senator. I actually don't. I 
haven't been working on, or looking at, or dealing with 
sentencing policy for a long time now. In my work as a judge, 
we're looking at individual cases, not systems or crime 
organizations and policies related to them.
    Senator Tillis. Yes. Well, I do--I think it's something 
that that we should take seriously after we cool the 
temperatures and have people have legitimate concerns about 
some of the rulings. I think that we have to clear up some of 
the complexity and recognize that Congress is a part of the 
solution.
    Okay. Now, on the weighty subject of intellectual property. 
Are you familiar with copyright preemption under Section 
301(a)?
    Judge Jackson. No, I haven't worked with that.
    Senator Tillis. Okay. I wouldn't have expected you to 
necessarily, but--and I won't get into patent questions. We've 
got a lot of work that I think, ultimately, is going to require 
us getting rid of the shambles of jurisprudence that we have. 
It's a very complicated field. We've got a lot of mixed signals 
and current jurisprudence, and my Committee's working on that. 
So it may be something that ultimately works its way up to you 
all, if you're confirmed. But I'm not going to take a lot of 
time, particularly because the hour is late and I intend to 
yield back some of my time.
    I do want to go back because I felt like this morning when 
I went through some of my comments, I mentioned law 
enforcement. I talked about a couple of your decisions that 
gave me pause, mainly--excuse me--because, you know, law 
enforcement is under attack. Law enforcement needs to be held 
to a high standard. I've been involved in this for nearly 22 
years, making sure that when I was a town councilman that we 
did something audacious and spent a lot of money in getting our 
law enforcement officers in a small town of only 20,000 people 
CALEA certified. That's a national certification to make sure 
that they understand how to deescalate, get engaged in the 
community, and reduce crime, and it worked. But now we've--you 
know, there's some people that think it's fashionable to attack 
the police and to defund the police, and, quite honestly, 
there's increasing data that suggests the communities that are 
loudest about that are becoming the least safe.
    So I want to ask, you mentioned several times, I think, 
yesterday and more today about your methodology. So if--is the 
United States v. Jenkins fresh in your mind or roughly fresh in 
your mind? A criminal pleaded guilty to assaulting a law 
officer. It was his third conviction in assaulting a law 
enforcement officer. The Government recommended 30 months, the 
defense recommend 21 months, and you decided to go with an 18-
month sentence. So I was trying to--does it--do you recall----
    Judge Jackson. I don't recall. I would want to look at the 
records and see the Probation Office's recommendation as well.
    Senator Tillis. Okay, and that, again, is something I 
wouldn't have access to, so I'm just trying to figure out what 
the mitigating circumstances were, and there were other ones. 
Unless you immediately recall it, I'm not going to ask you to 
go into details. The other one was United States v. Weeks. 
Similar situation. That was a 24-month request from the 
Government for the conviction on assaulting an officer, and you 
gave them 12 months. Are you--does that a ring a bell, United 
States v. Weeks?
    Judge Jackson. I think Weeks had a number of different 
appearances, and there were different aspects to his case, but 
I'd have to look at the whole file to recall.
    Senator Tillis. I just feel like the--again, because I know 
that you've rendered some 100 sentences over a period of time, 
I wouldn't expect you--but it is an area that--we'll submit it 
as a question for the record so that maybe you can refresh your 
memory and try to get back on that because it's something that 
I, for one, think that we need to place a priority on.
    We've got so many law enforcement agencies across the 
country now--excuse me--that we're having a hard time 
recruiting people and having a hard time retaining people. A 
lot of people are retiring. And, you know, I know not every 
police officer is an angel. I was talking with somebody in my 
office who was talking about her brother. She had a lot of 
confidence in him. She was here to talk to me about police 
reforms. And I actually believe that the vast majority of 
police officers, like your brother and your family members, are 
good people. And a part of what we have to do is just make sure 
that when we have these assaults, which are increasing, that we 
have just punishment because we need to do that for the 
protection, not only of the law enforcement officers, but the 
communities they serve.
    So, you know, and I'm going to yield back time because I 
know we've got two other people talking. And, you know, I 
thought you've done a great job over the last 2 days. I've 
tried to be here. I had an emergency and had to leave for about 
an hour and a half, but I tried to be here--for a business 
emergency. But I thought that you presented yourself well, and 
there was a lot of pressure, and that demonstrates a certain 
temperament or poise. I can't imagine what's going on inside 
your head, but at least overtly you did very well, and you 
should be proud of that. It's not an easy thing.
    It's very easy up here to feel comfortable, right, because 
there's 22 of us, and it's not like you can really come at us. 
So you have an arm tied behind your back, and I'm sure that 
there were a number of things you'd like to say, but time 
didn't allow. But, you know, I just want to commend you, your 
family, your daughter who has been glowing every time you talk, 
and I appreciate your service. Thank you.
    I yield back, Mr. Chair.
    Judge Jackson. Thank you, Senator.
    Chair Durbin. Thank you, Senator Tillis.
    Senator Ossoff, you started the day for us.
    Senator Ossoff. Judge, good evening. We've come full circle 
to the end of the dais. Likewise, I don't intend to use all of 
my time.
    I do want to echo the sentiments expressed by Senator 
Tillis. 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.
    So I have two substantive questions regarding the First 
Amendment, one question, as I noted, that I wanted to address 
regarding war powers, and then I'll be yielding the remainder 
of my time to the Chair and on to Senator Blackburn to close.
    We discussed earlier this morning, Judge, the constituent 
elements of the First Amendment with respect to speech, 
expression, and assembly. I just briefly want to touch on the 
free exercise of religion.
    My great-grandparents came to this country fleeing 
antisemitism in Eastern Europe. Many Americans' stories, 
including many of the very first American stories, involve 
flight from religious persecution. Just briefly would ask you 
to touch upon the constitutional roots and significance in our 
system of government of the First Amendment protection of the 
free exercise of religion.
    Judge Jackson. Thank you, Senator.
    As you mentioned, free exercise of religion and the 
Establishment Clause, which prevents the Government from 
preferring a religion over another, is foundational. It is the 
principle that many people originally came to this country, 
when it was founded, in order to support. It was people who 
fled from religious persecution and wanted to found a country 
in which everyone could believe what they wanted to believe and 
not have the Government encroach on, impinge on, burden that 
right.
    And so it is a core foundational right. It's in the First 
Amendment, and your family story is very similar to many 
families who moved to this country for that reason.
    Senator Ossoff. Thank you, Judge Jackson.
    We discussed in brief earlier today the Sullivan decision, 
New York Times v. Sullivan, in which the Court established a 
standard by which libel and defamation claims by public figures 
would be judged. And my understanding, correct me if I'm wrong, 
is that the standard is that false statements must be made 
knowingly, that the party making the false statement must know 
that it is false, and must make such knowingly false statements 
with malice. Am I correct that that's the standard in the case?
    Judge Jackson. I believe it's knowingly or with reckless 
disregard for the truth, and that that standard is termed or 
thought of as actual malice, yes.
    Senator Ossoff. Is there any generalized obligation in law 
that you're aware of to accurate reporting or accurate 
publication where there is not malice or where there is not one 
of the components established in the Sullivan case?
    Judge Jackson. If I understand your question, I know that 
the standard related to the Sullivan case does pertain to 
public figures. And so if a public figure is not involved, 
there may--there is a different standard in terms of liability 
for inaccurate or defamatory statements.
    Senator Ossoff. Thank you, Judge.
    And I want to note that the Chairman earlier remarked upon 
the disruptions in the market in publishing and the 
dissemination of information that technology has caused in 
recent years. And I was just reflecting, as the Chairman spoke, 
that at the time of the invention of the printing press, many 
of those who previously had centralized control of the 
production and dissemination of information recognized that it 
was disruptive and threatening and that it disrupted power 
dynamics and it empowered new participants in public discourse 
to participate.
    And I just want to express to you--this is not a question, 
but express to you my view that it is vital that we in Congress 
and the judiciary relentlessly defend the principles of the 
First Amendment and the free expression of ideas, even as new 
technologies emerge, which disrupt these markets and present 
challenging new particular circumstances to the Court.
    A very brief question on the not lighthearted, but 
important subject of war powers. I reviewed some of the 
comments that prior nominees have made when asked about 
questions with respect to the allocation of war powers between 
the legislative and executive branches. And something that I've 
seen in some of those transcripts has been a tendency to say, 
well, these are disputes between the political branches, and 
questions about those authorities should be resolved between 
the political branches.
    I noted in the McGahn opinion that you issued, you noted in 
that case that one of the reasons it was appropriate for the 
judiciary to consider the claim made by the U.S. House in that 
case was that where there is a dispute between the legislative 
and the executive, in that case and perhaps in many cases, the 
judiciary is precisely the appropriate forum for the resolution 
of that dispute.
    And so it seems to me that the Court and you, should you be 
confirmed, may very well have to entertain cases and 
controversies pertaining to disputes between the legislative 
and the executive with respect to war powers because there is, 
in my opinion, unsettled law. There is some ambiguity in 
statute. The Constitution allocates various authorities to the 
two branches.
    So not asking you to posit a thesis on this point but just 
want to ask you how you will approach such cases? I assume 
applying the methodology that you have laid out for us 
consistently throughout these hearings where war powers may 
come before the Court.
    Judge Jackson. Thank you, Senator.
    In every case, I apply the methodology that I have laid out 
in order to ensure that I'm ruling impartially and consistent 
with my judicial authority. In the part of my methodology that 
addresses my judicial authority, one of the things that I do, 
as judges do, is decide whether I have jurisdiction to hear a 
particular issue.
    The McGahn case was not a war powers case. The McGahn case, 
I determined in that opinion, and Judge Bates had determined in 
the prior opinion, raised a question of law. The question 
essentially was whether the subpoena that had been issued by 
the House had to be responded to by the person who received it, 
or whether that person had absolute immunity and did not have 
to respond. That's a question of law that courts answer all the 
time with respect to the enforceability of subpoenas.
    In the war powers realm, there may be questions of law that 
are appropriate for courts to decide, but there may also be 
political questions. And so it would depend. A political 
question, if there was a dispute between the legislature and 
the executive branch over some exercise of authority that was 
not governed by law but was in the discretion of either of 
those branches under the Constitution where they got to make 
determination, something, say, for example, like the exercise 
of Executive authority in war to move troops or do that kind of 
thing, that would not present a question of law that the court 
could decide.
    So it would depend on exactly what the court was being 
asked to do as to whether or not it had jurisdiction. And then, 
under my methodology, that would be the kind of thing that I 
would have to carefully examine in order to determine whether I 
could rule.
    Senator Ossoff. Thank you, Judge.
    Let me close with this comment. As I said, you have 
conducted yourself with extraordinary skill and grace 
throughout these proceedings, and it's in some ways a lonely 
place for you to sit there under the lights, facing questions, 
many of them substantive. Some of them less so. Many of them 
constructive. Some of them mean-spirited and distracting.
    You've handled it all extraordinarily well. It's been a 
very long 2 days. I know you know this, but I just want to make 
sure you do. That throughout this process and right now, there 
are millions and millions of people who are watching and 
cheering you on, right at this very moment. In homes across 
this country, there are millions and millions of people 
inspired by you and your example who are cheering you on.
    And not just that, there are people all over the world--all 
over the world--who are watching these proceedings and seeing 
what is possible in America. After some years when there's been 
some doubt about what this country stands for--that's my 
opinion, not yours. But people all over the world are watching 
this and seeing what is possible in America, what is possible 
in the system of government that we have, what values this 
country stands for, and I thank you profoundly for the service 
you've rendered throughout your life and in this hearing.
    And with 7 minutes remaining, Mr. Chairman? I know you'll 
remain focused right through the end. I have no doubt that 
Senator Blackburn has some provocative questions for you.
    I yield the remainder of my time.
    Judge Jackson. Thank you, Senator.
    Chair Durbin. Thanks very much, Senator Ossoff.
    And Senator Blackburn, you're recognized.
    Senator Blackburn. Thank you, Mr. Chairman.
    And I know that Senator Ossoff is over there watching your 
wonderful family and taking notes because he's a new daddy. And 
if you have time, he'll show you pictures.
    But, indeed, we have all enjoyed hearing about your family 
and your parents and how hard they worked to open doors of 
opportunity for you. And look at how you went through those 
doors and really created such a wonderful life.
    And I mentioned yesterday that I would hear from friends in 
Tennessee, and so many of them talk about they like how you 
have pushed those barriers aside because a lot of them have had 
to do the same thing to kind of make their way into careers, 
and so they've appreciated that very much about you.
    And I'll have to tell Senator Booker, now I like the fact 
that he talked about Fred Astaire and Ginger Rogers. And when 
my daughter was in high school, I actually bought that poster--
and I've probably told Senator Klobuchar this before. But I 
bought that poster of Fred Astaire and Ginger Rogers, and 
they're dancing, and it says, ``I took every step he took, but 
in high heels and backward,'' just to make the point with her 
that she was going to have to work hard.
    And indeed, she accepted that challenge, and I'm really 
proud of her, like I know all parents are proud of their 
children. I do want to get to a couple of things, and we do 
have the vote on the board.
    Yesterday, during our discussion, you had mentioned that 
you were unfamiliar with some of the statements that I had read 
back to you, your previous statements and writings, including 
the statements on child pornography and Critical Race Theory. I 
was a little surprised by that because I know the White House 
has worked really hard to prepare you for the hearing.
    So I wanted to introduce documents just so that we have 
those in the record, Mr. Chairman. The first document is an 
article in which you're quoted as praising the progressive 
curriculum at Georgetown Day School. The quote appeared in the 
Winter 2019-2020 edition of Georgetown Day's magazine.
    You stated, and I quote, ``Since becoming a part of the GDS 
community 7 years ago, I have witnessed the transformative 
power of a rigorous progressive education.''
    Second document is a transcript of a 2012 hearing before 
the Sentencing Commission at a time when you were vice chair of 
the Commission. The topic was ``Child Pornography Offending--
Pathways, Community, Treatment.'' You stated during the 
hearing, and I quote, ``I had mistakenly assumed that child 
pornography offenders are pedophiles.''
    So I went back and pulled that to show that it was a 
statement and not a question.
    So, Mr. Chairman, I ask permission to enter those.
    Chair Durbin. Without objection.
    Senator Blackburn. Thank you, Mr. Chairman.
    We talked about abortion yesterday, and I want to go back 
to that. On abortion, I had another question there.
    Some have argued that bills seeking to protect children who 
survive abortions are unconstitutional. They say that the right 
to an abortion includes the right to an effective abortion. So, 
in other words, does the constitutional right to an abortion 
include the right to let a baby die if that baby 
unintentionally survives an abortion? I'd like to know if you 
agree with that.
    Judge Jackson. Thank you, Senator.
    Issues like the one that you have raised are in the court 
system now. And as a result, as a nominee to the Supreme Court, 
I'm not able to opine about the constitutionality or not of the 
kinds of legislation that you mention.
    Senator Blackburn. Well, I--you know, one of the main 
factors the Supreme Court is considering is deciding whether to 
uphold Roe in all of this, and with precedent is if all of this 
is a settled issue or not. And some of those that are on this 
about whether it is to an abortion or an effective abortion, 
and if that constitutional right includes the right to 
terminate the life of a baby that survives that abortion.
    So that is an issue you will--that will be decided before 
you go to the Court, but I think it's important to have that 
discussion.
    I do want to go back to the issue about the child 
predators, and as you've heard, Senator Blumenthal and I are 
working on legislation. Senator Klobuchar has got some 
legislation that deals with technology. But I want to ask you 
this because of some of the questioning, and it's just a 
``yes'' or a ``no.'' Do you believe child predators are 
misunderstood?
    Judge Jackson. Senator, I don't--I don't have a context for 
that. I believe they are----
    Senator Blackburn. Well, I'm going back to the comment on 
the Sentencing Commission, as you said that not all child 
predators were pedophiles.
    Judge Jackson. Senator, I believe that all child predators 
are dangerous, that the behavior that they engage in is 
horrible.
    Senator Blackburn. Okay.
    Judge Jackson. That it needs to be taken seriously by the 
Court and by Congress in setting the penalties for their 
behavior.
    Senator Blackburn. So is it your position that child 
pornography offenders are not pedophiles?
    Judge Jackson. Senator, I believe that the statement that 
you referenced was a part of a hearing before the Sentencing 
Commission in 2012.
    Senator Blackburn. It was a meeting, yes. That's right.
    Judge Jackson. It was a meeting. And what the Sentencing 
Commission does is it----
    Senator Blackburn. Right.
    Judge Jackson [continuing]. Reviews evidence about various 
things, and I believe I was----
    Senator Blackburn. Right. And as I said yesterday, the 
children that are victimized, they don't understand the 
difference between an offender and a pedophile or a 
pornographer. And I do think it's a distinction without a 
difference.
    Let me ask you about gun rights. Violent crime is rampant. 
We have seen that during the last year it's making people 
really nervous. I pulled some stats. In 2021, 27 major U.S. 
cities experienced a 44 percent increase in homicides since 
2019. Over a dozen cities set new homicide records in 2021.
    And a lot of families no longer feel safe. So they're 
buying guns. They're buying ammo and trying to make certain 
that they can protect themselves. And in times like this, I 
think we're really fortunate that the Founders afforded such 
constitutional protection as the Second Amendment.
    So very quickly, walk me through what current Supreme Court 
precedent says about the Second Amendment.
    Judge Jackson. Thank you, Senator.
    Current Supreme Court precedent----
    Senator Blackburn. Yes.
    Judge Jackson [continuing]. Says that under the Second 
Amendment, there is an individual fundamental right to keep and 
bear arms in the home, and the opinion focuses on those 
circumstances.
    Senator Blackburn. Okay. So you agree it is an individual 
right, and not only reserved to militias. Because there are 
some that keep trying to say it's only reserved to militias.
    But if my memory is correct, you base this on District of 
Columbia v. Heller that it is an individual right?
    Judge Jackson. Yes, ma'am. The----
    Senator Blackburn. Okay.
    Judge Jackson [continuing]. Supreme Court has established 
it's an individual right.
    Senator Blackburn. I wanted to get that on the record 
because I don't think anybody had asked you that this entire 
time.
    Here is another question. I've asked other judicial 
nominees that are coming to us for the district court and the 
appellate court, and I've really not gotten a satisfactory 
answer from anybody. So why is it constitutionally permissible 
for the right to keep and bear arms, which the Supreme Court 
has recognized as a fundamental right--and you agree with 
that--why is it constitutionally permissible for this right to 
be subject to the discretionary issuance of a license by a 
local official?
    Judge Jackson. Thank you, Senator.
    The Supreme Court is looking at that very issue in a case 
before it right now, and as a nominee for the Supreme Court, 
it's important that I not speak to it because the Court is 
deciding this question. It has a pending case, I believe 
arguments have even occurred related to it.
    Senator Blackburn. Okay. So should other unenumerated 
rights be subject to the same type forbearance, having to get a 
local license? Should someone that wants an abortion have to go 
before a government bureaucrat? Because the Second Amendment, 
that right to keep and bear arms, is enumerated in the text of 
the Constitution. So the question would be why should it have 
to have an extra burden?
    Judge Jackson. I understand the question. It's one that the 
Supreme Court is looking at, and consistent with past practice 
and the need to ensure that I'm not speaking to issues that are 
live----
    Senator Blackburn. All right. Then let me move, move on. I 
want to turn to some of the sentencing decisions, and 
particularly your decision to grant criminal defendants 
compassionate release. And you've had an unmistakable pattern 
of releasing criminals with dangerous backgrounds into the 
community, and the COVID-19 pandemic seemed to exacerbate the 
trend.
    To name just a few examples, you used the COVID-19 pandemic 
as justification to release a fentanyl drug dealer, a bank 
robber addicted to heroin, a convict who murdered a U.S. 
Marshal back on the streets. And at a time when violent crimes, 
including homicide, are spiking all across the country, and 
we're facing an opioid epidemic driven in large part by the 
trafficking of fentanyl across our border, how can you stand by 
your decision that these offenders do not pose a danger to the 
community?
    Judge Jackson. Thank you, Senator, for allowing me to 
answer this question.
    The statutes that govern judges and that allow for 
compassionate release are policy determinations that Congress 
has made to permit individuals who are in various circumstances 
and various stages in the system to seek release. People who 
are detained after their final sentencing can seek something 
called compassionate release. People who are detained between 
when they've been convicted and when they're sentenced can----
    Senator Blackburn. Right. I--not to cut you off, but time 
is going to run out, and we do have--you know, this is a 
question that I have been asked so much. Here is a stack. These 
are the ones that you sought for compassionate release.
    There were 1,561 that were detained in DC Department of 
Corrections, and your statement--and this was in the opinion 
that you issued. It was U.S. v. Wiggins. You stated, and I'm 
going to quote you, ``Each and every criminal defendant in the 
DC Department of Corrections custody should be released because 
of the COVID-19 pandemic.''
    And in that same opinion, you lamented the fact that you, 
as a Federal judge, were limited in your ability to order the 
universal release of criminals back onto the streets. And I am 
shocked that that would have been your position because people 
are so--they are just really concerned about crime in the 
streets.
    So do you stand by your position that it would have been 
the right thing to do to release all of those prisoners back 
onto the streets during COVID?
    Judge Jackson. Senator that was not my position. In that 
opinion, United States v. Wiggins, I started off by explaining 
that, given the compassionate release system and the COVID-19 
pandemic, it would seem as though that was an extraordinary and 
compelling circumstance. But two sentences later, I say we 
can't release everyone. There are people who are too dangerous 
to release.
    And so even in Wiggins, I decided that he had to remain 
incarcerated, notwithstanding his compassionate release motion. 
So the point, the sentence that I have there I did say, but I 
said it to lead up to my statement, which was the actual ruling 
in which I said we are not releasing everybody. We are not 
opening the jails.
    Senator Blackburn. And Judge, you know, to lament that you 
were limited in your ability to order the release of all. That 
is what causes--that is a judgment issue, and that is what 
causes the concern with that.
    Let me go to the Critical Race Theory issue because you 
were asked yesterday about a speech you gave in April 2015 when 
you had stated, and I'm going to quote you again, that it 
melds--when you were talking about sentencing. ``It melds 
together myriad types of law, including Critical Race Theory.''
    And you told Senator Cruz, I think it was, that when you 
made that statement, you were talking about decisions regarding 
sentencing policy. You said, and again, I'm going to quote, ``I 
was talking about policy determinations. None of that relates 
to what I do as a judge.'' I take that to mean that you don't 
make policy determinations when you're making sentencing 
decisions as a judge.
    So, today, in response to a question from Senator Grassley, 
you said the exact opposite. You said, and I'm going to quote 
you again, ``I have at times identified various enhancements 
that I have disagreed with as a policy matter because the 
Supreme Court has said that that's the authority of a 
sentencing judge in our system.''
    So given that you admitted you made policy determinations 
in sentencing and you stated that you consider Critical Race 
Theory in sentencing policy, let me ask you again. Do you 
consider Critical Race Theory in your sentencing decisions as a 
judge?
    Judge Jackson. Thank you, Senator.
    Critical race theory, any academic theory is not considered 
in my sentencings. It never comes up in sentencing. It was not 
what I was talking about in the speech in 2015.
    Senator Blackburn. Okay. I appreciate that. I do have one 
intellectual property question I'm going to submit to you for 
writing. You've had a long day.
    Judge Jackson. Thank you.
    Senator Blackburn. And you've been very gracious. And I 
think that these are tough questions, but this is part of our 
doing our due diligence and meeting our responsibility to the 
people that we represent. And they expect this of us.
    And as I mentioned, they've been very engaged in this. As 
some have said, you know, I think I would like her. I don't 
agree with her, or I agree on some things, but not on 
everything. But they want to know what you're going to do when 
you get on the Court because their kids and their grandkids are 
not going to have the opportunities that you have had unless we 
keep this Nation free.
    So it demands your best, and it demands that you go to the 
Constitution first. In your opening statement, I pulled this, 
and this is where I'll end with you. You say, ``I've been a 
judge for nearly a decade now, and I take that responsibility 
and my duty to be independent very seriously. I decide cases 
from a neutral posture. I evaluate the facts, and I interpret 
and apply the law to the facts of the case before me without 
fear or favor, consistent with my judicial oath.''
    I wish you had said ``consistent with the Constitution of 
the United States.''
    Thank you so much, Judge, for being with us.
    Thank you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Blackburn.
    This concludes our rounds of questioning.
    And before we recess, a few observations. First, Judge 
Jackson, you are extraordinary. Your story is a great American 
story and I think we've all benefited by getting to know you a 
little better during the last 2 days.
    You are exceptionally qualified for this position, I won't 
read through your resume. It's been read many times. But I 
think there is no one in the room who, in the 2-day period of 
time, has questioned your qualifications.
    There have been some dissenters. My colleagues promised a 
fair and respectful hearing. Most, including my Republican 
colleague Senator Grassley, followed that admonition. He always 
does. But there were a few obvious glaring exceptions, and I'm 
sorry for that. But your patience, dignity, and grace in the 
face of what was, frankly, some offensive treatment is a real 
testament to your judicial temperament.
    To your mom and dad and the Brown family, and your Chicago 
lawyer brother, I thank you for being with us and being part of 
this historic occasion. Dr. Patrick, I don't know if surgery is 
any easier than this, but I imagine that you----
    Dr. Jackson. Much.
    [Laughter.]
    Chair Durbin [continuing]. Want to get back to it.
    And I just want to say a word to Leila and Talia, if she's 
here or if she can hear us. You've got a great mom. You really 
do. And what she's been through in the last couple days, most 
people would not even consider going through one minute. But 
she is strong. She is caring. She's kind. And you're lucky to 
have her, and we're going to be lucky to have her on the 
Supreme Court.
    So we've got a little bit of work to do. Incidentally, I 
could go through the list of all the invitees that have been 
filing in and out of the room behind you, wanting to be here 
for a moment to share this history with you.
    I will let you in on something that you may know. Tomorrow, 
we're going to announce that you've been rated ``unanimously 
well qualified'' by the American Bar Association. That's the 
highest possible rating.
    We're going to conclude the public portion of this hearing 
and convene in Dirksen 226 for a closed session for discussing 
the background investigation. That should only take a minute or 
so.
    And I have discussed this with the Ranking Member, Senator 
Grassley, and for the information of all Members, the Committee 
will meet in executive session to consider Judge Jackson's 
nomination to the Supreme Court on this Monday, March 28 at 3 
p.m.
    And with that, the Committee stands in recess.
    Thank you.
    Judge Jackson. Thank you.
    [Whereupon, at 7:35 p.m., the hearing was recessed.]
    [Additional material submitted for the record for Day 3 
follows Day 4 of the hearing.]


                          CONTINUATION OF THE 
                          CONFIRMATION HEARING 
                          ON THE NOMINATION OF 
                       HON. KETANJI BROWN JACKSON 
                   TO BE AN ASSOCIATE JUSTICE OF THE 
                   SUPREME COURT OF THE UNITED STATES 

                              ----------                              


                        THURSDAY, MARCH 24, 2022

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:03 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Richard J. 
Durbin, Chair of the Committee, presiding.
    Present: Senators Durbin [presiding], Whitehouse, 
Klobuchar, Coons, Blumenthal, Hirono, Booker, Padilla, Ossoff, 
Grassley, Cornyn, Lee, Cruz, Sasse, Hawley, Tillis, and 
Blackburn.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. Good morning. A special welcome to the guests 
who are testifying before us today. Traditionally, the Supreme 
Court hearings end with a day of testimony from outside 
witnesses, and this approach will be no different.
    The last 3 days have been long and exhausting for Senators, 
and I'm certain they were much more so for Judge Jackson. I 
believe that she carried herself with grace, humility, and 
dignity, was thoughtful and forthright in her responses. I 
can't tell you how many people have spoken to me since the end 
of last--yesterday's hearing and talked about how she managed 
to maintain that grace and dignity throughout all of the 
questioning.
    I look forward to hearing from today's witnesses, starting 
with the American Bar Association's Standing Committee on the 
Federal Judiciary. With us today from the ABA are three 
witnesses: the Honorable Ann Claire Williams, who is the chair 
of the Standing Committee, as well as Mr. Joseph Drayton, and 
Mrs. Jean--Ms. Jean Veta. I'm glad all three are here, and I 
would be remiss if I didn't say a special word about my dear 
friend, Judge Williams, an Illinoisian, the first judge of 
color to sit on the Seventh Circuit, and a special attachment 
she has to Notre Dame University, which I learned. She was 
nominated by President Reagan in 1985 to serve on the Northern 
District of Illinois, and then in 1999 nominated by President 
Clinton--talk about bipartisanship with my strong support--to 
serve on the Seventh Circuit.
    After stepping down from the bench in 2017, she joined the 
Chicago office of Jones Day where her work focuses on efforts 
to advance the rule of law in African nations. She is truly, 
truly a respected leader in the Chicago legal community, and 
I'm looking forward to her testimony.
    These panelists from the ABA are here to talk about their 
rating of Judge Jackson, a unanimous rating of ``well 
qualified.'' The Standing Committee confines its evaluations to 
qualities of integrity, professional competence, and judicial 
temperament, and they unanimously found Judge Jackson in all of 
these areas to be deserving of their highest rating. This comes 
as no surprise. It's exactly what we saw in the last few days 
from Judge Jackson, and I'm looking forward to hearing more 
about the Standing Committee's evaluation.
    Let me say a few words about this nomination hearing. 
First, I want to salute this man sitting to my right and to 
your left. I am fortunate to have a Republican leader on their 
side who is such a gentleman and has such a high degree of 
integrity. He and I were just reminiscing about the history of 
the Senate and the nomination process. Throughout, we have 
maintained an honest relationship, no surprises, no stabbing in 
the back, so that we know which way we're going. I'm a lucky 
man to have him as my Ranking Member. Thank you, Senator 
Grassley.
    Senator Grassley. Thank you.
    Senator Tillis. Mr. Chair?
    Chair Durbin. Who's seeking----
    Senator Tillis. Over here. Mr. Chair?
    Chair Durbin. Over there. Senator Tillis, I'm sorry.
    Senator Tillis. I also would like to point out that 62 
years ago this week, Chuck Grassley started his political 
career in the Iowa State Legislature. And I believe we--I 
shared a picture with him this week, and I believe that picture 
was him debating Iowa statehood. I'm not sure.
    [Laughter.]
    Senator Tillis. And I also reminded him that he gave birth 
to his political career a year after my mother gave my birth.
    Chair Durbin. Yes.
    [Laughter.]
    Chair Durbin. Well, I will tell you that I'm also fearful 
of what I just said because one year I did something like this, 
and he took a quote from me and put it in his campaign 
brochure.
    [Laughter.]
    Chair Durbin. I received telephone calls from Iowa 
Democrats saying, what are you doing. So----
    [Voice off microphone.] Don't do it again.
    Chair Durbin. I'm also--I want to thank the Members on the 
Republican side. The majority of them handled themselves 
professionally in the best traditions of the United States 
Senate. Senator Sasse of Nebraska is not here, but I want to 
thank him particularly for a comment he made, which has been 
quoted widely, in which he used the term ``jackassery,'' which 
I had never heard before. And I thank him for that observation 
because I think there was great truth in what he said.
    I wish I could say that across the board. On our side of 
the aisle, I'm proud of all our Members, particularly proud of 
one Member who spoke at right--at the right moment. My wife is 
my go-to critic of what's happening in my political life and on 
this Committee, and she said when Cory Booker spoke yesterday, 
it cleared the air finally and refocused us on what we were 
doing and why we were here. And I have to tell you, his 
statement will go down in the annals of this Committee and the 
United States Senate for the impact that they had at the 
moment.
    I wish I could say that for all of the things that have 
happened over the last 72 hours, but I can't. Some of the 
attacks on this judge were unfair, unrelenting, and beneath the 
dignity of the United States Senate. You can disagree with a 
Senator's vote, you can disagree with a judge's ruling, but to 
draw conclusions that really reflect on them personally and 
their values and take it to the extreme is unfair, whether the 
nominee is a Democrat or a Republican. I was so saddened by 
that, and it happened over and over and over again, and I hope 
that that is not the lasting impression that the people have of 
the work of this Committee.
    My lasting impression is of a judge who sat there through 
it all, head held high with dignity and determination and 
strength. A lesser person might've picked up and told her 
family, we're leaving, this is beyond the pale. She didn't, and 
it says an awful lot to me about her character and why the 
President was correct in choosing her to be the next Supreme 
Court Justice.
    Before we turn to questions, I want to turn to Senator 
Grassley for opening remarks.
    Senator Grassley. I have no opening remarks.
    Chair Durbin. Well, that's new.
    [Laughter.]
    Senator Grassley. Yes, it is.
    Chair Durbin. Now let me turn to the ABA panel. Before you 
make your opening statements, I'll swear you in, if you'd 
please stand and raise your right hand.
    [Witnesses are sworn in.]
    Chair Durbin. Let the record reflect that the witnesses 
have all answered in the affirmative.
    Judge Williams, please commence.
    Judge Williams. Good morning, Chair Durbin.
    Chair Durbin. You need to turn on your microphone.
    Judge Williams. All right. Thank you.

  STATEMENT OF HON. ANN CLAIRE WILLIAMS, JUDGE, RETIRED, AND 
  AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL 
                   JUDICIARY, WASHINGTON, DC

    Judge Williams. Good morning, Chair Durbin and Ranking 
Member Grassley. You were at both of my confirmation hearings, 
and yes, so a thumbs up to you, Senator Grassley, and other 
Members. It's an honor and privilege to appear before this 
Committee. Thank you for the invitation, Chair Durbin.
    I'm a retired Federal judge, as you said, and chair of the 
American Bar Association's Standing Committee on the Federal 
Judiciary. Today I'm joined by our two principal evaluators, 
Jean Veta, D.C. Circuit representative, and Joe Drayton, the 
Federal Circuit representative. Our vice chair, David Brown, 
deeply regrets that he is unable to attend, particularly since 
he was the principal evaluator of Judge Jackson's D.C. Circuit 
nomination.
    For almost 70 years, the Standing Committee has been asked 
to present to this Committee our peer-reviewed, independent, 
nonpartisan, comprehensive ratings on the professional 
qualifications of lifetime-appointed Federal judges. The 
Standing Committee is made up of outstanding lawyers from every 
circuit with varied backgrounds, professional experiences, and 
practicing in law firms with 6 to 2,000 lawyers. We don't give 
suggestions on who should be nominated, don't recommend or 
endorse any nominee. We don't base our ratings on or express 
any view of the nominee's philosophy, political affiliation, or 
ideology. Nonpartisan peer-review evaluations are the hallmark 
of the Standing Committee.
    We began our work on February 25th, the day Judge Jackson 
was nominated. On 8--March 18th, the Standing Committee voted 
unanimously that Judge Jackson earned our highest rating, 
``well qualified,'' for an appointment to the Supreme Court. 
Why? Quite frankly, ``well qualified'' was a rating we were 
compelled to reach after our exhaustive, comprehensive peer 
review. To get that ``well qualified'' rating, a Supreme Court 
nominee must be a preeminent member of the legal profession, 
have outstanding legal ability, have exceptional breadth of 
experience, and meet the very highest standards of integrity, 
professional competence, and judicial temperament.
    Everyone we talked to, interviewed, or had substantive 
contact with uniformly gave the highest praise: ``brilliant,'' 
``beyond reproach,'' ``first rate,'' ``patient,'' 
``insightful,'' ``impeccable,'' ``A-plus.'' We contacted more 
than 2,800 judges and lawyers, including Federal judges, from 
50 States, 13 circuits, 94 districts, as well as State supreme 
court justices, law school deans, and bar associations. We 
focused our confidential interviews on those who had first-hand 
knowledge of her legal abilities. We spoke to Federal 
prosecutors, defense counsel, civil lawyers who appeared before 
Judge Jackson, her judicial colleagues, and judges, and lawyers 
that were very familiar with her career before she became a 
judge.
    We created three reading groups to examine over 240 of her 
published opinions and other writings because the principal way 
Supreme Court Justices communicate is by writing opinions. 
Opinions that touch the lives of people throughout this Nation 
for years to come. Two academic reading groups from the 
University of Illinois and Stanford, co-chaired by each 
school's dean, working independently, 37 academic experts, and 
18 member practitioner reading groups reviewed the same 
writings, the majority former law clerks to Supreme Court 
Justices, Justices appointed by both political parties. Most 
have regularly argued before the Supreme Court. Their words: 
``strikingly talented,'' ``even handed,'' ``exceptional,'' 
``thorough,'' ``respectful.''
    Finally, we went beyond what Judge Jackson does in the 
courthouse. We looked at the other contributions she's made on 
the Governing Council of the American Law Institute, the United 
States Sentencing Commission, a bipartisan commission, Chief 
Justice Roberts' appointment to the Judicial Conference of 
Defender Services Committee. Representatives from every 
organization said again and again: ``humble,'' ``brilliant,'' 
``consensus builder.''
    The question we kept asking ourselves, how does one human 
being do so much so extraordinarily well, reflecting the 
combined views of more than 250 judges, attorneys, and 
academics? The Standing Committee concluded that Judge Jackson 
is well qualified to serve as an Associate Justice on the 
Supreme Court.
    I now turn to Jean Veta for more specifics on the findings 
from judges and lawyers, and then Joseph Drayton with comments 
on the reading groups and the breadth of Judge Jackson's 
experiences.
    [The prepared statement of Judge Williams on behalf of the 
American Bar Association appears as a submission for the 
record.]
    Chair Durbin. Thank you. Ms. Veta?

 STATEMENT OF D. JEAN VETA, AMERICAN BAR ASSOCIATION, STANDING 
               COMMITTEE ON THE FEDERAL JUDICIARY

    Ms. Veta. Thank you, Mr. Chairman, Ranking Member Grassley, 
and Members of the Committee. My name is Jean Veta, and I am 
the co-lead evaluator of our committee's evaluation of Judge 
Jackson.
    In assessing the professional qualifications of Federal 
judicial nominees, our committee considers three factors: 
integrity, professional competence, and judicial temperament. I 
will address each of these factors in turn and explain why 
Judge Jackson readily meets our ``well qualified'' rating.
    In evaluating integrity, our committee considers the 
nominee's character and general reputation in the legal 
community as well as the nominee's industry and diligence. We 
surveyed countless lawyers and judges at every level of the 
Federal judiciary, and all regard Judge Jackson as possessing 
the utmost integrity. Reviewers describe her integrity as: 
``beyond reproach,'' ``impeccable,'' and ``of the highest 
caliber.'' As one reviewer put it, ``You write the word 
`integrity,' and then you put her initials next to it.'' 
Another reviewer said, ``Judge Jackson has a well-deserved 
reputation for the highest level of ethics and integrity.'' 
Based on these and many other laudatory comments, the Standing 
Committee concluded that Judge Jackson plainly possesses the 
highest integrity, deserving of a ``well qualified'' rating.
    In evaluating a nominee's professional competence, our 
standards provide that a nominee for the Supreme Court must 
possess exceptional professional qualifications, including an 
especially high degree of legal scholarship, strong analytical 
and writing abilities, and overall excellence. Judge Jackson 
ably meets this heightened standard. As summarized by one 
judge, ``Studying her opinions is like a master class in 
judicial writing.'' An appellate jurist stated that she, quote, 
``She does a fantastic job of making impenetrable issues 
understandable.'' And a litigant who lost a case before Judge 
Jackson stated, ``I've appeared before Judge Jackson many 
times, both in the district court and in the D.C. Circuit. In 
my opinion, Judge Jackson is one of the very best judges or, 
for that matter, Justices, I have ever argued a case in front 
of. She is brilliant. Her intellect is simply formidable. And 
equally important, she possesses all of the other important 
attributes of a great jurist. She is practical and intuitive 
and curious and courteous, and always impeccably well 
prepared.''
    Given the uniform strength of these and many other 
comments, the Standing Committee readily concluded that Judge 
Jackson demonstrates the exceptional professional competence 
expected of a Supreme Court Justice, and thus merits a ``well 
qualified'' rating.
    Finally, in evaluating judicial temperament, the Standing 
Committee considers a nominee's compassion, decisiveness, open-
mindedness, freedom from bias, and commitment to equal justice 
under the law. As part of our evaluation, we considered whether 
Judge Jackson demonstrated any bias that favored criminal 
defendants. Notably, no judge, defense counsel, or prosecutor 
expressed any concern in this regard, and they uniformly 
rejected any accusations of bias.
    For example, when asked about the allegation that Judge 
Jackson is soft on crime, one high-ranking attorney in the U.S. 
Attorney's Office responded, ``I vehemently disagree.'' Another 
prosecutor, who has appeared multiple times before Judge 
Jackson, responded by saying such an allegation, quote, 
``absolutely was not borne out based on my experience with 
her.'' Instead, prosecutors like the other lawyers we 
interviewed praised Judge Jackson as a judge who considers all 
arguments before coming to a decision. One prosecutor stated 
that Judge Jackson was generally regarded by his office as ``a 
good draw'' because, as he put it, ``She is a smart judge 
without any biases, which is all we're asking for.''
    For these reasons, the Standing Committee found that Judge 
Jackson clearly meets the ``well qualified'' rating for 
judicial temperament expected of Supreme Court Justices.
    In sum, because Judge Jackson easily satisfies the highest 
standards of integrity, professional competence, and judicial 
temperament, it is the ABA Standing Committee's unanimous 
conclusion that Judge Jackson is well qualified to serve as an 
Associate Justice of the Supreme Court of the United States. 
Thank you.
    Chair Durbin. Thank you, Ms. Veta.
    Mr. Drayton, you're with the law firm of Cooley, LLP, and 
lead evaluator. Would you please report to the Committee what 
you found?

      STATEMENT OF JOSEPH M. DRAYTON, AMERICAN BAR ASSOCI-
       ATION, STANDING COMMITTEE ON THE FEDERAL JUDICIARY

    Mr. Drayton. Thank you, Chair Durbin, Ranking Member 
Grassley, esteemed Senators. To supplement our discussion, I 
will share a perspective related to Judge Jackson's writings 
and her contributions to shaping the law. Various groups of 
highly credentialed judges, lawyers, administrators, and legal 
scholars confirm that Judge Jackson has the ability, as 
required by our standard for a Supreme Court nominee, to 
communicate clearly and persuasively in a manner to harmonize 
bodies of law and to give guidance to lower courts and the 
legal community, and she has done so across a significant range 
of complex issues.
    Judge Jackson, for example, has served on the American Law 
Institute and their Leadership Council, an organization 
impacting American jurisprudence for close to 100 years. It 
publishes Restatements of the Law, Model Code, among other 
things. Her fellow ALI leaders remarked, and I quote: 
``incredible work ethic,'' ``very well prepared.'' Another 
quote: ``I would describe her competence in this way: 
thoughtful intelligence, thoughtful superior competence.'' With 
regard to Judge Jackson's service as vice chair of the United 
States Sentencing Commission, a bipartisan, independent agency 
created by Congress to, among other things, reduce sentencing 
disparities, her fellow commissioners praised her 
contributions, and their collective views are summed up by 
three quotes. The first quote: ``She was gracious, respectful, 
and wonderful to work with. She remained calm and positive, 
even when debating emotional issues of sentencing policy. She 
was also very trustworthy, absolutely no indicia of bias.'' 
Second quote: ``She works hard and is committed to the rule of 
law.'' Third representative quote: ``Judge Jackson was a strong 
consensus builder during her time as a commissioner who worked 
across party lines.''
    Judge Jackson also served on the United States Judicial 
Conference Committee on the Defender Services, which oversees 
the Federal Defenders Program and the Administration of 
Criminal Justice Act. Quotes reflective of her committee 
members: ``Judge Jackson listens carefully, and when she spoke 
and weighed in, she was persuasive and often would sway the 
whole room. She is highly respected.'' Second quote: ``An 
independent thinker who brings a different viewpoint to the 
Court.'' Third quote: ``Brilliant and conversant in many areas 
of law.''
    I next turned to an observation of our scholarly reading 
groups, our teams of law professors and legal experts from 
Stanford and the University of Illinois College of Law, as well 
as practitioners that include former Supreme Court clerks, law 
partners, attorneys who worked at the Solicitor General's 
Office, and veteran evaluators of Supreme Court nominees, all 
of whom were impressed.
    One reviewer who argues routinely before the High Court 
described Judge Jackson's writing in a manner representative of 
the collective thoughts of all three reading groups, and I 
quote, ``Her opinions consistently reveal a deep commitment to 
legal process. She identifies and states the relevant legal 
standard and meticulously applies them to particular records. 
The hallmark of her opinions is thoroughness. No matter how 
routine the case, Judge Jackson's opinions precisely and 
exhaustively describe the applicable standards and doctrinal 
context, recite in detail the contentions of the parties, and 
painstakingly explains her applications of those legal 
standards. Her opinions are also structured. She at all times 
orients the readers to the guidepost for her decision and her 
reasons for reaching them. Her opinions show no favoritism or 
bias,'' close quote. This type of comment is representative and 
consistent across all reviewers and provides keen insight into 
Judge Jackson's approach to adjudicating legal issues.
    In conclusion, Judge Jackson's leadership in the legal 
profession, reputation among such leaders, acclamatory remarks 
from each of these groups consisting of well over 60 of the top 
legal minds in our country, further supports that Judge Jackson 
is a preeminent member of the legal profession, with 
outstanding legal ability and exceptional breadth of 
experience, and merits the highest rating of the American Bar 
Association's Standing Committee on the Federal Judiciary, the 
rating of ``well qualified,'' to serve on the U.S. Supreme 
Court.
    Chair Durbin. Thank you, Mr. Drayton. I want to also 
acknowledge, as Judge Williams has, the contributions of the 
two universities, Stanford and University of Illinois, in this 
process. I want to make a note for the record that virtually 
everyone involved in it was doing it on a volunteer basis to 
serve the needs of the profession.
    And I also would like to establish one other point. I 
believe, Judge Williams, you said some 2,800 people were 
contacted, interviewed in this process, represented virtually 
everyone who came into contact with her professional career who 
was available to question. So it strikes me that this is the 
kind of scrutiny, which is rare but is--was done in a 
professional and complete way.
    So here's the question I have to ask. When you were looking 
for certain things, over the last several days here in this 
Committee, we have had a handful of Senators argue that Judge 
Jackson is out of the mainstream when it comes to sentencing, 
particularly when it came to sentencing in cases involving 
child pornography, for example. And this was stressed over and 
over and over and over again. So in the course of your 
interviews of 2,800 people who came in contact with her, would 
such an assertion have arisen during the course of your 
questioning? Were there people who would've been able to 
observe whether they felt, at a professional level, there was 
any truth at all to that charge?
    Judge Williams. Well, first, Senator Durbin, you said 2,800 
that we spoke with or interviewed. We cast a very wide net, so 
we contacted 2,800. But we actually spoke with 250 judges and 
lawyers who had firsthand knowledge. We don't rely on someone 
just saying she has a good reputation. We find out what the 
basis of that is. Have they appeared before her? Have they 
worked with--alongside of her? Have they been on a committee 
with her? And with respect to those issues, I'll turn to Judge 
Drayton. Sorry, Joe, I'm promoting you now. I'll turn to Joe 
Drayton who actually spoke to various prosecutors about this 
issue because it never came up in any of the interviews we 
conducted.
    Mr. Drayton. Yes. Chair Durbin, we did speak to various 
prosecutors and defense counsel who appeared before Judge 
Jackson, the majority of them in 9 child porn cases and child 
sexual offense cases, and none of them felt that she 
demonstrated bias in any way, and I can share a few remarks 
from some of the people that I personally spoke to. And one 
prosecutor said, ``I did not observe any bias, and the judge 
was fair to all sides in connection with sentencing in all 
aspects.'' Another prosecutor remarked, ``Judge Jackson 
displayed the highest level of competence and integrity 
throughout the proceedings. Her rulings on the state of the law 
were reasoned and steeped in authority.'' And we asked pointed 
questions as it related to bias, whether it be to defendants, 
whether it be to the Government, and we found no bias.
    Chair Durbin. So one of the Senators on the other side 
actually tweeted that they felt that her sentencing in these 
child pornography cases, in sexual abuse cases, ``endangered 
children.'' Those were his exact words: ``endangered 
children.'' What I'm asking you is, would that have come out--I 
mean, during the course of your interviews with all of 250 
judges and professionals who had contact with her, would such a 
thing have emerged from your questioning?
    Mr. Drayton. To the extent that a prosecutor or defense 
counsel who appeared before her in those types of cases felt 
that way, it would've come out in our interviews. We have a 
confidential interview process that allows us to really have 
transparent communications with the folks that appear before 
nominees, and we did not find any evidence of that.
    Chair Durbin. No evidence of it.
    Mr. Drayton. No evidence.
    Judge Williams. And I might add, Senator Durbin, we went 
beyond the Senate Judiciary questionnaire, so not just the 
individuals who are listed there that the nominee selects, but 
beyond that, to test her--her ability, to test her integrity, 
to test her ability to be a fair and impartial jurist, and it 
never came up in any group.
    Chair Durbin. And also the assertion was made over and over 
and over again that Judge Jackson was soft on crime when it 
came to prosecution versus defense, that her background as a 
public defender, the fact that she would consider representing 
a detainee who's being detained at Guantanamo Bay, raised the 
question of whether or not she was soft on crime. I assume that 
means releases people who would be a danger to the community in 
an unfair manner. Did you find any evidence from all the people 
that you interviewed of that assertion?
    Judge Williams. None whatsoever, and Jean Veta actually did 
most of the work in that area.
    Ms. Veta. And, Mr. Chairman--Mr. Chairman, in response to 
the question you raised, we heard consistently from not only 
defense counsel, but prosecutors, how unbiased Judge Jackson 
is. We heard phrases like, ``doing things by the books.'' And, 
for example, one prosecutor described a sentencing hearing 
involving a very high-profile, sensitive national security 
matter, and what she said was, ``It was classic Judge 
Jackson.'' She said, ``I had my sentencing manual, Judge 
Jackson had her sentencing manual, the defense counsel had his 
sentencing manual, and we went page by page,'' and it was a 
very complicated legal issue that they were trying to work 
their way through. And what this prosecutor said was that Judge 
Jackson put both parties through their paces.
    And what really impressed this prosecutor was that after 
oral argument, Judge Jackson took a recess, went back to 
chambers, and when she resumed the bench, came out with a 
sentence that was more in favor of the Government. And what 
more impressed the prosecutor was that the judge's ruling 
included arguments and--that had been made both by the defense 
and the prosecutors during oral arguments. So it's not as if 
she came into the hearing with her mind made up. She listened 
to what counsel on both sides said and then came up with a 
sentence that the prosecution was quite happy with.
    Chair Durbin. So from what I gather, and I'm going to turn 
to Senator Grassley, the facts as well as the observations of 
250 professionals belie two of the major criticisms that 
emerged over the last several days before this Committee in 
terms of the sentencing standards that were being used by Judge 
Jackson in cases--very sensitive cases--involving exploitation 
of children, as well as her general approach against the 
prosecution and defense in criminal cases, led those who were 
her contemporaries and her peers, and worked with her on a 
professional basis, to conclude that she met the highest of the 
legal standards that one could ask.
    I think that is what obviously led to your conclusion, the 
American Bar Association, that she's unanimously well qualified 
to serve on the Supreme Court.
    Ms. Veta. Your characterization is correct.
    Judge Williams. Absolutely, Senator.
    Chair Durbin. Thank you very much. Senator Grassley.
    Senator Grassley. I think you'll find my tone a little bit 
different than it has been sometimes that I've questioned ABA 
about--I've been critical of your involvement in this process, 
so I hope you understand. Well, maybe some of you folks haven't 
been around long enough to know my history of criticizing the 
ABA from time to time. So my first question is, does it remain 
the ABA's policy to keep confidential the names of the people 
it's interviewed as well as its material dealing with 
deliberations and analysis of nominees? Is this information 
available to the Judiciary Committee?
    Judge Williams. Senator Grassley, that is our policy. Those 
interviews--the names are kept confidential. The deliberations 
are kept confidential. And the heart of it and the reason, 
Senator Grassley, is because we want candid, honest statements 
from those that we interview. If people knew their names would 
be associated with their comments, no one would answer our 
calls. No one would answer our calls. And if our deliberations 
were shared openly, again, even if we didn't name a name, one 
might be able to identify who made particular statements. The 
whole key of the ABA investigation, we're the peer review----
    Senator Grassley. I think that satisfied it with what you 
said.
    Judge Williams. All right.
    Senator Grassley. Can you then tell me how--just give me 
some justification, without having that information, that the 
interviews are not stacked for or against a particular nominee. 
Please give a short answer.
    Judge Williams. All right. The evaluators take what I think 
is almost like a sacred oath to conduct nonpartisan 
questioning, to get to the bottom line, to make sure 
individuals are able to be free to answer the questions that we 
pose. And, Jean, you might want to comment more on that.
    Senator Grassley. I think--I think you've answered that 
okay. What I need to just hear from you, accepting the 
legitimacy of everything you've told me to this point, would 
there be anything wrong with people interviewing it or for 
Members of this Committee seeing that material in a 
confidential environment?
    Judge Williams. There would be a problem with that, 
Senator.
    Senator Grassley. Because if two people know about anything 
in Washington, DC, it's no secret.
    Judge Williams. Well, you are absolutely right about that.
    Ms. Veta. Only one of us is from Washington on this panel.
    [Laughter.]
    Senator Grassley. Okay. You gave Judge Jackson a ``well 
qualified'' rating but most recently gave Justice Amy Coney 
Barrett, a minority ``well qualified'' rating. Besides the 
reading groups, what objective measurements of writing or 
analytical skill do you use?
    Judge Williams. Well, first, Senator Grassley, if I could 
make one point, Judge Barrett actually received a ``well 
qualified'' rating. When the majority votes ``well qualified'' 
or ``qualified,'' if it's a majority vote, the rating of the 
nominee is qualified as ``qualified.''
    Ms. Veta. Is ``well qualified.''
    Judge Williams. ``Well qualified.'' We use the very same 
standard for each nominee, and we followed the process with 
Justice Barrett. I wasn't on the committee at the time. 
Certainly our report is a matter of public record, but the 
bottom line is she received a ``well qualified'' recommendation 
from this Committee--rating from this Committee.
    Senator Grassley. Give me just a rough idea of the 
objective measurements you--writing or analytical skills.
    Judge Williams. Well, her analytical skills were excellent, 
as I recall from our report. As I said, you can refer to that 
report, and as I said, our rating was ``well qualified.''
    Senator Grassley. Why did you choose to limit your review 
of her record to her, quote, unquote, ``over 240 published 
opinions'' on the district court?
    Judge Williams. You mean Judge Jackson, the reason we 
limited--we focused on published opinions. We focused on other 
writings, and we had the reading groups focus on those, and we 
did not delve into the other orders. Many of those were very 
short. Many of those didn't really give a sufficient--many of 
the orders were short. I guess that's the easiest way to say 
it. And so the published opinions, which people view, we felt 
were more important to review. We also consult--consulted with 
our academic committees and our practitioners group, and they 
felt that those writings that were published would be most 
appropriate. Joe, did you have anything?
    Ms. Veta. Well, and, Senator Grassley, on that point, as 
you know, published opinions among--within the legal community 
are those that are relied on for precedential value more so 
than unpublished opinions. So it was really those opinions she 
was putting out there for the legal community.
    Senator Grassley. I might have one question I'll submit to 
you for answer in writing.
    Chair Durbin. Thank you, Senator Grassley.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman, and welcome to the 
members of the panel. I don't know any of you and I don't know 
your backgrounds very well, so I don't know if any of you have 
ever been involved in a sentencing proceeding.
    Judge Williams. I have----
    Senator Whitehouse. Ms. Williams, have you?
    Judge Williams. Yes, I have many times because I served on 
a district court for 13 years.
    Senator Whitehouse. As a district court judge?
    Judge Williams. Yes.
    Senator Whitehouse. So when a Federal sentencing proceeding 
is going on, the judge involved--you in the case of your own 
courtroom--gets recommendations as to what sentence should be 
imposed from several different sources during the sentencing 
proceeding. Is that correct?
    Judge Williams. That's correct.
    Senator Whitehouse. One of those sources is the U.S. 
Attorney's Office.
    Judge Williams. Yes.
    Senator Whitehouse. They're the prosecutors.
    Judge Williams. Yes.
    Senator Whitehouse. And do they customarily ask for higher 
sentences? Well, let me go back. The others who offer 
recommendations to the court are the defense counsel?
    Judge Williams. Yes.
    Senator Whitehouse. Defense counsel will offer a 
recommendation on behalf of the defendant, correct?
    Judge Williams. Yes.
    Senator Whitehouse. And the court is also served by the 
probation department in all of this, and the probation 
department also makes recommendations----
    Judge Williams. Yes.
    Senator Whitehouse [continuing]. Regarding the application 
of the----
    Judge Williams. Yes, in a presentence report, Senator.
    Senator Whitehouse. Correct. Of those three, is it 
customarily the prosecutor's office that makes the highest 
sentencing recommendation? Not every time, but is that the sort 
of ordinary course of events in a sentencing?
    Judge Williams. I can't agree with that statement, Senator. 
You're asking me about cases generally.
    Senator Whitehouse. Yes.
    Judge Williams. And that was not my experience.
    Senator Whitehouse. Let me ask----
    Judge Williams. It was a mix. Sometimes the Probation 
Officer would make a recommendation higher than the 
prosecution. Sometimes the prosecution's recommendation--well, 
certainly the defense didn't object if it was lower than what 
the defense recommended.
    Senator Whitehouse. You rarely saw a defense recommendation 
higher than the prosecution.
    Judge Williams. Exactly. That's exactly what I'm saying.
    [Laughter.]
    Judge Williams. But all of those were taken into account. 
And then the sentencing guidelines, Senator, are very--an 
instrument that judges use because the sentencing guidelines 
ident--a defendant is identified by their criminal history, so 
if you have no convictions, you start out as a 1. You look at 
the crime itself, and there are various factors that add the 
numbers up. And then you look at the criminal history number 
and you look at the offense number, and it gives you a 
guideline range.
    Senator Whitehouse. Yep.
    Judge Williams. And that's what judges take into account 
along with what the prosecutor says, the defense counsel says, 
and the Probation Officer says.
    Senator Whitehouse. Is the recommendation of the United 
States Attorney's Office the appropriate benchmark by which to 
measure the judge's sentence?
    Judge Williams. Not in my opinion. I think all of those 
factors that we identified are critical in the judge making a 
decision.
    Senator Whitehouse. Yes. Thank you very much.
    Chair Durbin. Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. Thank you all for 
your testimony today, and I know a lot of hard work went into 
the--what you've produced here. I want to just ask a question 
generally about the American Bar Association. I've been a 
member of the American Bar Association in the past. Frankly, on 
occasion I've been troubled by some of the public advocacy of 
the American Bar Association on behalf of legal profession 
that, frankly, did not represent my views. And I want--I'm just 
looking here at the--for example, at the website of the 
American Bar Association and under a heading that says, 
``What's New in Washington,'' for example, the ABA president 
wrote a letter to the Secretary of Homeland Security urging 
temporary protected status for people who are refugees from 
Ukraine, for example. That's obviously a matter of great public 
interest.
    But some of the areas that the--that the ABA president has 
also opined on--for example, opposing certain provisions of 
Florida legislation, the Florida Senate Bill 1843 and House 
Bill 1557, which concerns parental rights in education--
obviously that's another matter of tremendous public interest 
and discussion in the press and elsewhere. And then finally, 
I'll mention, because there's a whole long list and--but I'm 
trying to give you some specifics that hopefully make my--frame 
my question.
    There is a--there's also a position where the ABA is asking 
for migrants who come across the Southwestern border and claim 
asylum to provide them lawyers. And as you know, there's been 2 
million, roughly, people--border encounters in this last year 
alone. Obviously whether or not taxpayers should be required to 
provide lawyers for people who are not citizens of the United 
States and who are claiming asylum is a controversial matter.
    So I'd like to know, how should people understand ABA's 
role when it comes to speaking to these matters? Are you a 
public advocacy association, and if so, people should be able 
to understand that maybe some of the opinions you render in 
terms of judicial qualifications should be understood in a 
larger context. But I'd appreciate if you'd take a stab at 
answering my maybe not great, well-formed question, but I think 
you get the drift.
    Judge Williams. Oh, I definitely get the drift. And, 
Senator, I think it's really important for me to make clear, 
the only action that the ABA takes with respect to the Standing 
Committee is appointing the members of the committee. We stand 
alone. The only function that we have is peer-reviewed 
evaluation. So we do not stand for the American Bar Association 
in the sense that you made, all the different positions you 
outlined, and that's purposeful. It's purposeful that we do our 
work in rating nominees and don't have anything to do with the 
policies of the American Bar Association. Both Jean and Joe 
have served on the committee longer and might want to comment 
on that as well.
    Senator Cornyn. Certainly.
    Ms. Veta. Yes, Senator. As Judge Williams said, we are 
separate and apart from the ABA. So I understand the questions 
you're raising about ABA policies and would invite you to ask 
those of the president of the ABA because, as Judge Williams 
said, our committee has nothing to do with those policies.
    Senator Cornyn. Well, you're here representing the ABA, 
correct?
    Ms. Veta. No, sir, we're here representing----
    Senator Cornyn. Oh, you're not?
    Ms. Veta. The Standing Committee of the Federal Judiciary 
of the American Bar Association.
    Senator Cornyn. Right, but that's part of the ABA, right?
    Ms. Veta. As Judge Williams said, we are appointed by the 
president of the American Bar Association, but that's the only 
substantive interaction we have with the ABA.
    Senator Cornyn. Well, I know in times past, the ABA has 
appeared to be a, frankly, a partisan during some of the 
judicial confirmation proceedings that I participated in the 
past, and that's a cause for concern. I'm not suggesting that's 
happening here today, and I take your testimony at face value. 
I know you've done a lot of hard work, and I appreciate that. 
That's important. Your voice is important. But it's--I think 
one of the things that Senator Grassley perhaps alluded to in 
the past--in past--some Supreme Court nomination proceedings, 
it's appeared that the American Bar Association has taken 
sides, so to speak, in controversial nominations.
    And I'm not suggesting that that's the case today, but I'm 
just saying that causes concern about whether we should take 
the testimony of the Standing Committee at face value or 
whether you're a combatant in the political battles that rage 
here in Washington sometimes over judicial nominations.
    Judge Williams. Senator, just let me say, there's been no 
communication of our committee with the ABA about any of our 
work. It is designed so that we can do it separately.
    Senator Cornyn. Yes.
    Mr. Drayton. And, Senator, I will follow up just to say 
that we're trained to be independent. We basically take an oath 
amongst our committee members to be independent, and we--we 
focus on the three criteria: integrity, judicial competence, 
and judicial temperament. And so in that regard, we focus on 
the record of the nominee, we focus on the writings of the 
nominee, and we focus on the feedback we get from the lawyers 
and judges that practice with the nominee, against the nominee, 
and administer justice alongside the nominee.
    Senator Cornyn. Well, Mr. Drayton, I know part of the 
questioning of the judge had to do with, for example, 
sentencing that Senator Durbin and others brought up. Did the 
ABA itself review Judge Jackson's sentencing memoranda as part 
of your investigation?
    Mr. Drayton. We reviewed the publicly available records for 
a sampling of her sentencing, including the child pornography 
cases and the sex offense cases, and we looked at the 
recommendations of the prosecutors. We looked at the 
recommendations of the defense. We looked at whether she--and 
she did, in fact, in some cases look at sentencing statistics 
of other judges. And so we looked at the record and how she 
came out, and it didn't appear as though she favored the 
prosecutor nor the defense in such cases.
    Senator Cornyn. Well, you made an important qualification. 
You said ``publicly available.'' In other words, and I've heard 
the Chairman talk about his concerns about public distribution 
of some of the sentencing memoranda. And so you did not review 
all of Judge Jackson's sentencing memoranda, only a portion. Is 
that correct?
    Judge Williams. So perhaps I could clarify. The presentence 
report is highly confidential. Only the judge----
    Senator Cornyn. So you did--you did not review that.
    Judge Williams. No, because it's highly confidential 
because of the rights of the individual defendant. We could not 
review the presentence report. Second, there were not 
transcripts of all the hearings. You know, if we had a 
transcript of the hearing, we could review that, but there are 
memos filed. Those are public. What the position the 
prosecution takes, the position the defense takes, that is 
available in a public record, and the dockets are there. So we 
did as much as we could.
    Senator Cornyn. I understand, Judge. I just want--the only 
point I was trying to make is you did not have access to 
everything in her record, but you did have access to public--
what was public. Is that correct?
    Judge Williams. Yes, and we thought that that was 
sufficient.
    Mr. Drayton. A substantial amount of the record.
    Senator Cornyn. Well, I--you had me until you said you 
thought that was sufficient. How do you know if you didn't get 
access to the rest of the record?
    Mr. Drayton. Well, in many cases, we spoke to the 
prosecutors and defense attorneys.
    Senator Cornyn. Right.
    Mr. Drayton. And they gave us their thoughts and opinions, 
and they walked away and said she calls balls and strikes, 
she's fair, we would be happy to go before her again in cases. 
We also queried into her reputation because, as you know, folks 
talk and they mingle, and they're out in the evenings at bars, 
and her reputation is stellar. And so we did query. We pressed 
hard. We asked questions of these prosecutors and defense 
attorneys.
    Senator Cornyn. That's especially true of my experience of 
the legal profession, Mr. Drayton.
    [Laughter.]
    Senator Cornyn. But, again, these--these people that you 
talked to are anonymous to us. They've been unnamed for the 
reasons that Judge Williams described.
    Mr. Drayton. Correct.
    Senator Cornyn. Okay. Thank you very much.
    Chair Durbin. Thank you, Senator.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chair. Thank 
you to all of you for your good work. You know, we have heard a 
lot from some of our colleagues on the other side of the aisle, 
not all of them, and I think there was a mix of questioning 
that somehow she would have--the judge would have an agenda--a 
personal agenda of her own that she would bring to the Court. 
And after hours of listening to her answer questions, I think 
it is pretty clear to me and to anyone that watched the hearing 
that that just isn't true.
    You did a careful review of her background and her record, 
and I assume you were able to watch some of the hearing. I 
don't think you were, like, sequestered during the hearing. Is 
there anything in her record or in the answers she gave before 
the Committee that makes you believe that she will be anything 
but an impartial, even-handed justice?
    Judge Williams. There was--well, number one, Senator, we 
were not glued to the hearings. We were preparing for our 
testimony.
    Senator Klobuchar. Okay. Very good.
    Judge Williams. Okay. So I can't attest to or speak to 
everything, but certainly there is nothing that's come to our 
attention to change our ``well qualified'' rating.
    Senator Klobuchar. Mm-hmm. Very good. You know, as someone 
who myself, I will call it, was in the arena as a prosecutor in 
my case, hundreds of thousands of cases over my years and 
supervising hundreds of lawyers, it's always easy for anyone to 
step back and pick apart any case. I think Senator Blumenthal 
knows that. I think Senator Whitehouse knows that. You can say 
someone is too tough, which I've heard, or you can say they're 
too weak, which I've also heard. But I think your review and 
actually talking to the people who work with her and appeared 
before her is really quite important. And I know this is the 
same kind of review you have done for other Justices regardless 
of the political party of the President. Is that right?
    Mr. Drayton. Correct.
    Judge Williams. Correct.
    Senator Klobuchar. One of the things that I brought up with 
her yesterday, and whatever--that discussion you wouldn't have 
had to see, was that of her over 500 opinions, I think nearly 
600 opinions, she only had a 3-percent reversal rate. And in 
one case that she and I discussed involving Guam, she actually 
wrote an opinion, the D.C. Circuit reversed her, but then the 
U.S. Supreme Court reversed the D.C. Circuit and sided with her 
unanimously, and Clarence Thomas wrote the opinion. I just 
think it's an interesting twist on if people have an agenda and 
also about a judge that is calling things as they are. And just 
in general, when it comes to reversal rates, is that something 
you look at? Would you be alarmed if she had a very high 
reversal rate as opposed to what we see here?
    Judge Williams. Well, we certainly look at reversal rates, 
and I think Mr. Drayton can comment on the reaction of our 
reading groups who looked at specifically those cases as well 
and what their conclusions were.
    Mr. Drayton. Well, first, Senator, the conclusions were 
that in cases in which she was reversed, she was analyzed 
unquestioned legal questions, unsettled legal questions, and 
thus, they were questions of first impression. They--when they 
looked at her analysis in those cases, they found her analysis 
to be reasonable.
    Senator Klobuchar. Mm-hmm.
    Mr. Drayton. And so they felt that she handled difficult 
questions of jurisdiction and statutory interpretation, and so 
they felt that her record was excellent given the fact that 
only less than 2 percent of her cases were reversed.
    Senator Klobuchar. Mm-hmm. Very good. All right. Well, I 
want to just thank you for your good work. I read some of the 
comments, which I'm sure are in the record, of some of the 
people that you interviewed, but I guess I'd end with that. 
``She's one of the brightest legal minds in the country.'' ``We 
have a lot of smart people, but she is brilliant.'' ``Studying 
her opinions''--this was my favorite--``is like a master class 
in judicial writing.'' And then finally, I think, which is very 
important after our hearing yesterday: ``Judge Jackson has the 
perfect temperament for a judge.'' And with that, I will close. 
Thank you.
    Chair Durbin. Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman. I don't think 
anybody has ever said about us that we have the perfect 
temperament for a Senator.
    [Laughter.]
    Judge Williams. No comment.
    Senator Klobuchar. That's why I closed that way, Senator 
Blumenthal.
    Judge Williams. Yes. No comment, Senator Blumenthal.
    [Laughter.]
    Senator Blumenthal. Thank you, Your Honor. I want to, first 
of all, thank you for the hours and hours and hours, and the 
energy that you have put into this work and that the ABA does 
on its recommendation. I know how thoughtfully and carefully 
you review somebody's record, but also to kind of sift through 
the different opinions that you encounter. Having been in the 
arena, as Senator Klobuchar says, you know, it's an arena. It's 
an adversarial process. People go at each other in the 
courtroom and in litigation, and that can leave scars and 
animosities that sometimes are elicited when you do this kind 
of report. So what I find amazing here is that nobody has a bad 
thing to say about Judge Jackson. Nobody says, you know, she 
was mean to me or she was disrespectful. Is that impression 
correct?
    Mr. Drayton. That impression is definitely correct. And to 
put a little color on it, when we talk about prosecutors, 
Senator, and we talk about defense counsel, you know, many 
defense counsel are former prosecutors. When we talk about 
liberals and conservatives, there are defense counsel that are 
liberals and conservatives, and so when we speak to these 
attorneys, they have different perspectives. And it is 
surprising that unanimously the Bar appreciates Judge Jackson, 
sees that she has high competency, integrity, and temperament.
    Ms. Veta. And, Senator, again, we talked to lawyers and 
judges throughout the country, and what was remarkable was how 
consistent they were in their comments about how everyone gets 
a fair shake.
    Senator Blumenthal. I think that's really what comes 
through, that everybody gets a fair shake, that she listens so 
intently and carefully to everybody who comes into her 
courtroom. And that seems to be the hallmark of her 
professional career that she listens well to people and 
assesses fairly the grievances and intentions that they may 
make.
    Let me ask you about this thing called judicial philosophy. 
I don't think if I were to ask most judges, they would know how 
to answer the question of what's your judicial philosophy. You 
don't ask people to evaluate her judicial philosophy, do you? I 
mean, that seems kind of so amorphous an issue, you wouldn't be 
able to evaluate it. Is that correct?
    Ms. Veta. That's correct, and for two reasons. Number one, 
in terms of what is a judicial philosophy, and then number two, 
how would we measure it? Instead, we focus on criteria that 
people do understand, and that is, does the nominee have the 
requisite integrity, professional competence, and judicial 
temperament.
    Senator Blumenthal. And just a couple of last questions. If 
you were given more time to do this assessment, it strikes me 
you've done it very, very thoroughly and carefully. You feel 
you've been given enough time, and you've had access to enough 
information and records. There's no question in your mind that 
there's something missing here that you would've wanted to see.
    Ms. Veta. There is no question in my mind that there's a 
subject that we missed. I feel very comfortable with the review 
we did. It was comprehensive. It was nonpartisan. It reached 
out to people and asked probing questions on the particular 
topics that we knew there had been allegations about, and none 
of them panned out. And instead, we got a consistent response 
that she met the criteria that more than satisfies our rating 
of ``well qualified.''
    Judge Williams. I agree completely, Senator. And just to 
give you an idea, when the President mentioned that there--when 
Justice Breyer stepped down, our committee immediately went 
into action. We already had all the email addresses of all the 
judges, Federal judges, throughout the country. We were ready 
to just hit the button as soon as we knew who the nominee was. 
And so in my--there was nothing more we could've done, and 
we're absolutely convinced we've covered it. We cast a wide net 
for that very purpose. And we have circuit representatives that 
know the judges, and lawyers, and bar associations, and law 
deans in their area. So the circuit representatives are 
comfortable, and those in their circuits are comfortable with 
them, and we're very confident we covered the landscape.
    Mr. Drayton. I agree as well, Senator.
    Senator Blumenthal. I really appreciate your candor and the 
completeness of the work you've done. Thank you very much.
    Chair Durbin. Senator Ossoff.
    Senator Ossoff. Thank you, Mr. Chairman, Ranking Member 
Grassley.
    Thank you all for your testimony today and for your work.
    I take very seriously my constitutional obligations and 
responsibilities with respect to advice and consent on behalf 
of my constituents in Georgia and want to just engage you and 
interrogate the work that you've done and the conclusions that 
you've drawn.
    First of all, you are here under oath. Correct?
    Judge Williams. We are.
    Mr. Drayton. Yes.
    Judge Williams. Yes.
    Senator Ossoff. And you conducted a robust review of the 
nominee's professional record. Correct?
    Judge Williams. Yes.
    Mr. Drayton. Correct.
    Senator Ossoff. You interviewed colleagues. You interviewed 
counsel who had argued cases before her. Correct?
    Judge Williams. Yes.
    Mr. Drayton. Correct.
    Senator Ossoff. You convened reading groups who undertook a 
comprehensive review of her published decisions. Is that 
correct?
    Ms. Veta. We did.
    Judge Williams. Yes.
    Senator Ossoff. Please, Judge Williams, what were your 
conclusions with respect to the nominee's reputation for 
integrity?
    Judge Williams. Outstanding, excellent, superior, superb. 
Those were the comments of virtually everyone we interviewed.
    Senator Ossoff. And Judge, that is substantial praise. I 
want to just clarify, you're not here in an advocacy role or a 
partisan role. Correct?
    Judge Williams. No. No, we're not. We are doing peer 
review, which means we get all the information. That's our job, 
to get the information and then to relay that information to 
the Senate Judiciary Committee as it applies to the standards 
that we use to measure a nominee.
    Senator Ossoff. As the organization has undertaken such 
reviews of past nominees nominated by Presidents of both 
parties. Correct?
    Judge Williams. Correct.
    Senator Ossoff. Ms. Veta, if I might, what were your 
conclusions regarding Judge Jackson's professional competence 
based on this review?
    Ms. Veta. My conclusions are that she has the highest 
degree of professional competence and is admired by both the 
bench and bar with her--as a result of her keen intellect, her 
strong analytical skills, and the clarity and sophistication in 
her writing.
    Senator Ossoff. Thank you.
    Mr. Drayton, you also undertook, as part of this review and 
analysis based on these interviews, based on the review of the 
nominee's record, an assessment of her overall professional 
competence and qualifications. Correct?
    Mr. Drayton. Correct.
    Senator Ossoff. And what were your conclusions?
    Mr. Drayton. She's of the highest stature when it comes to 
professional competence.
    Senator Ossoff. Thank you, Mr. Drayton.
    What were the conclusions of the reading groups, Judge 
Williams, that were convened to assess her decisional history?
    Judge Williams. I will let Mr. Drayton----
    Senator Ossoff. Thank you. Mr. Drayton, please?
    Judge Williams. Focus on that, but they--it was of the 
highest caliber.
    Mr. Drayton. Correct. The reading groups found that her 
writing was impressive. She was meticulous. She considered all 
arguments. She made a roadmap of her arguments that the 
layperson could understand.
    They looked at her reversals, and they found that she was 
reasonable. They found that she took sound legal positions in 
novel areas of law. They also looked at how she also had her 
record supported by the Supreme Court in one of her reversals.
    And so the reading group, who are top legal minds in the 
United States, felt that she was a phenomenal writer, and they 
thought that she was well qualified, in their opinion, based on 
her writings, to be a part of the United States Supreme Court.
    Senator Ossoff. Thank you, Mr. Drayton.
    And my final question, if I might just move down the bench, 
beginning with you, Ms. Veta, please? Did your organization 
encounter in the course of this review any derogatory 
information, any testimony that raised any serious questions 
about the nominee's integrity, qualifications, or impartiality?
    Ms. Veta. We did not.
    Judge Williams. Absolutely nothing.
    Mr. Drayton. Not a thing.
    Senator Ossoff. Thank you. Thank you, Mr. Chairman.
    Chair Durbin. Thanks, Senator Ossoff.
    I'm going to recognize Senator Whitehouse for the few 
remaining moments of his time, and we're just going to try to 
establish whether Senator Blackburn is available after him, if 
she could reach out to us and let us know. She may be 
contacting us virtually.
    Senator Whitehouse.
    Senator Whitehouse. Thank you. I believe I had a few 
minutes left, and if no other Senator is seeking recognition, 
I'd like to ask Judge Williams.
    Judge Williams, are you familiar with the phrase ``asked 
and answered''?
    Judge Williams. I am.
    Senator Whitehouse. Could you tell me under what 
circumstances the phrase ``asked and answered'' would come up 
in your courtroom?
    Judge Williams. When a witness is asked a question and then 
continues to be asked the same question, there would be an 
objection by opposing counsel.
    Senator Whitehouse. And what is the ruling?
    Judge Williams. And that objection would be sustained.
    Senator Whitehouse. So the role of the judge in that is to 
do what?
    Judge Williams. The role of the judge is to monitor the 
trial; to monitor the--to make sure the evidence that's coming 
in is properly admitted; to make sure when I say administer it, 
something like that, asked and answered, if we allowed counsel 
to just continue to ask the same questions over and over again, 
we'd never conclude the trial.
    So judges manage trials, and that's part a critical role of 
a judge.
    Senator Whitehouse. Thanks, Your Honor.
    Chair Durbin. Thanks, Senator Whitehouse.
    And I want to thank the panel. Senator Blackburn has 
informed us she is not going to be participating in this panel, 
and so we want to thank you for your service to the ABA, your 
testimony, your dedication in helping the American people 
better understand the qualifications and integrity of judicial 
nominees, including Judge Jackson.
    Thanks for joining us this morning.
    Senator Cornyn. Mr. Chairman? I can just--if I can just say 
in response to Senator Whitehouse, we could only dream that our 
proceedings here in the legislative branch were as efficient 
and orderly and relied upon non-hearsay information like you 
did in your courtroom, Judge.
    So thank you very much.
    Judge Williams. Well, maybe, Senator, you need a judge here 
in the chamber.
    [Laughter.]
    Chair Durbin. We have one.
    Senator Cornyn. We have recovering judges here.
    Chair Durbin. A retired Supreme Court Justice. Thank you 
very much for joining us.
    Judge Williams. Thank you.
    Mr. Drayton. Thank you.
    Chair Durbin. We're going to turn to our final panel, 10 
outside witnesses, and we have to do a little bit of logistical 
work to be prepared for them.
    Now these 10 witnesses are 5 called by the Majority, 5 by 
the Minority. And when they arrive, we're going to call on them 
alphabetically, alternating between Majority and Minority.
    I'm going to go through the list of witnesses. It appears 
that I'm going to--well, first, I'll start with the Majority 
witnesses.
    Representative Joyce Beatty, Ohio's Third Congressional 
District, serves as chair of the Congressional Black Caucus. 
Great to see you, Congresswoman.
    Risa Goluboff--forgive me if I didn't pronounce it quite 
right--dean at University of Virginia School of Law.
    Wade Henderson, president, CEO of the Leadership Conference 
on Civil and Human Rights.
    Richard Rosenthal, a childhood friend of Judge Jackson.
    Captain Frederick Thomas, national president of the 
National Organization of Black Law Enforcement Executives, also 
known as NOBLE.
    Minority witnesses include Attorney General Steve Marshall 
of Alabama. I hope he's here.
    Professor Jennifer Mascott of George Mason University's 
Antonin Scalia Law School.
    Eleanor McCullen, petitioner in the case of McCullen v. 
Coakley.
    Keisha Russell, a counsel at First Liberty.
    And Alessandra Serano from Operation Underground Railroad.
    Before you all get comfortable, I want to swear you in. So 
if--I ask each of you, if able, please rise or raise your right 
hand.
    [Witnesses are sworn in.]
    Chair Durbin. Let the record reflect that all of the 
witnesses have answered in the affirmative.
    And so we're going to alternate between the Majority and 
Minority and try to do this alphabetically, and the staff 
starts with Congresswoman Beatty.

 STATEMENT OF HON. JOYCE BEATTY, A REPRESENTATIVE IN CONGRESS 
 FROM THE STATE OF OHIO, AND CHAIR, CONGRESSIONAL BLACK CAUCUS

    Representative Beatty. Good morning, Chairman Durbin----
    Chair Durbin. Be sure to punch the button so we can hear 
you loud and clear.
    Thank you.
    Representative Beatty. Good morning, Chairman Durbin, 
Ranking Member Grassley, and Members of the Committee.
    I am Congresswoman Joyce Beatty, chair of the Congressional 
Black Caucus, Representative for Ohio's Third District, and a 
proud HBCU graduate. It is an honor to appear before you to 
express my strong and unwavering support for the nomination of 
Judge Ketanji Brown Jackson to the Supreme Court of the United 
States.
    As the Nation has learned during these hearings, Judge 
Jackson is an exceptionally qualified jurist of unimpeachable 
character. As chair of the Congressional Black Caucus, I speak 
on behalf of 59 Members of Congress, including 28 Black women 
and 31 Black men, together representing 17 million Black 
Americans and 82 million Americans.
    For over two centuries since our country's founding, the 
Court consisted exclusively of white men. Of the 115 Justices, 
108 have been white men. Judge Jackson would be only the sixth 
woman and the first Black woman to serve on our Nation's 
highest court.
    If confirmed, she would shatter a glass ceiling that many 
Americans, including those who fought and died for voting 
rights, a more perfect Union, and a just America, believe that 
they would never live to see it broken.
    As a Black woman myself, I urge this body to remember that 
Judge Jackson's confirmation vote must not be isolated to her 
gender or to her race. Instead, I urge you to closely examine 
her credentials and her sterling judicial record. To me, they 
read like a storybook for a perfectly prepared jurist to sit on 
the Nation's highest court. She is grounded in family values, 
love of God and country, and academic excellence.
    In my recent conversation with her, it became immediately 
clear why President Biden chose her. Her life experience, 
education, and reverence for the rule of law clearly 
demonstrate that she has been preparing for this moment her 
entire life.
    Senators this week quoted Dr. King, and as I am reminded to 
paraphrase, King said, give us the ballot so we could put 
judges on the bench who will do justice and love mercy. Judge 
Jackson will do exactly that.
    Sadly, but not surprisingly, Judge Jackson has been the 
subject of unfair attacks. These bad faith efforts exist, 
despite a resume that arguably surpasses those of previous 
nominees. I remind this body and America just last year Judge 
Jackson was confirmed by this body on a bipartisan vote to 
serve on the D.C. Circuit Court and that she clerked for 
Justice Breyer, whose very seat she is being considered for.
    Judge Jackson's confirmation will send a message to Black 
women and little girls like my granddaughter Leah, whose mother 
is the first Black woman to serve on the Tenth District Court 
of Appeals. And Leah's first known President was a Black man, 
and now she sees a Black female Vice President. So if a 
guidance counselor tells her ``your goals are too high,'' she 
will remember how Judge Jackson soared against adversity as one 
of our Nation's brightest legal minds.
    I want to be crystal clear. Judge Jackson will be a judge 
that will serve all of America and all of America can be proud 
of.
    Watching Judge Jackson sit at this very table displaying 
poise, grace, courage, and brilliance, no matter what was 
thrown at her, reminds me of the heroes whose shoulders she 
stands on. From Ida B. Wells to Rosa Parks to Constance Baker 
Motley, the first Black woman to argue at the Supreme Court and 
the first Black woman appointed to the Federal judiciary, these 
heroic Americans and Judge Jackson remind me of this phrase, 
Senators, never limit yourself because of others' limited 
imagination. Never limit others because of your own limited 
imagination.
    Last, the Congressional Black Caucus, often called the 
conscience of the Congress, is calling on all Senators to dig 
deep into their hearts and minds to unequivocally stamp out any 
unconscious or conscious bias or discrimination as this process 
moves forward. CBC stands with Judge Jackson to ensure that she 
will be treated with the dignity and respect she deserves.
    Let's change America and confirm her with a bipartisan 
vote. Thank you.
    [The prepared statement of Representative Beatty appears as 
a submission for the record.]
    Chair Durbin. Thank you, Congresswoman. Appreciate your 
being here this morning.
    Now we have the Attorney General of the State of Alabama, 
General Steve Marshall.

 STATEMENT OF HON. STEVE MARSHALL, ATTORNEY GENERAL, STATE OF 
                  ALABAMA, MONTGOMERY, ALABAMA

    General Marshall. Mr. Chairman, Ranking Member Grassley, 
distinguished Members of the Committee, thank you for the 
invitation to testify today.
    I'm Steve Marshall, and I serve as the Attorney General for 
the State of Alabama. I'm here today as a representative of a 
community of experienced and dedicated prosecutors who are 
gravely concerned about the direction our country is heading as 
it relates to law and order.
    This Committee is likely well acquainted with the wave of 
lawlessness that has swept across our Nation over the past few 
years, leading to a surge in crime, including a horrific spike 
in homicides unseen since the 1990s. This week presents an 
important opportunity to discuss the role that the judiciary 
plays in the criminal justice system and the effect judges' 
decisions have on public safety.
    Upon the President's announcement of Judge Jackson's 
nomination, one supporter, an executive director of an 
influential progressive group that supports defunding the 
police, pronounced, ``We're in a moment where there's been an 
active movement to reform our broken criminal justice system. 
This appointment signals the administration's commitment to 
pursuing criminal justice reform at the highest level.''
    Though I strongly disagree with the assessment that our 
criminal justice system is broken, I share his observation that 
this appointment may well be intended by this administration to 
initiate a transformation of our criminal justice system. Or, 
as Judge Jackson has described it, ``a fundament redesign of 
our system.'' And as we know from history, the United States 
Supreme Court can absolutely transform criminal justice for 
better or for worse.
    The Senate must now do its due diligence to ensure that the 
ideology of the anti-incarceration and anti-police movement, 
views that the Biden administration seemingly has increasingly 
embraced, is never permitted to make its way onto our Supreme 
Court. As detailed in my written testimony, criminal justice 
advocacy groups have repeatedly highlighted Judge Jackson as a 
jurist focused on serving the most vulnerable and giving a 
voice to the voiceless, referring also to the socioeconomic and 
racial status of the defender population as evidence of a 
biased and broken system while overlooking the inconvenient 
reality that the race and socioeconomic status of a crime 
victim is often identical to his or her offenders.
    A 2018 report by the Bureau of Justice Statistics found 
that the offender was of the same race or ethnicity as the 
victim in 70 percent of violent offenses involving Black 
victims and 62 percent of violent offenses involving white 
victims. That same report showed that the largest percentage of 
violent crime victims were from households with annual incomes 
of less than $25,000 annually.
    Another study on crime victims found that the overall risk 
of violent victimization is housed among persons who are 
younger, male, Black, living in the poorest households, and 
living in urban areas. These voices matter, too.
    And Judge Jackson's now-infamous Law Review article gives 
me no assurance that she would give voice to the voiceless 
victims of sex crimes. In that note, she questioned and 
assessed the sex offender community notification requirements, 
a common sense public safety measure that this body passed with 
bipartisan support and that the public overwhelmingly approves. 
Remarkably, the word ``victim'' did not appear once in her 
analysis.
    Promoting the false creed that the American criminal 
justice system is unfair, a reference Judge Jackson herself 
used in the opening line of a 2020 opinion, undermines justice 
itself. It denigrates the rule of law. It impedes the ability 
of law enforcement to protect and serve. It impairs the duty of 
prosecutors to keep violent criminals behind bars.
    All of this subverts the safety of the public and is most 
detrimental to the very voices Judge Jackson claims to speak 
for. I've heard nothing this week to alleviate my fear that 
Judge Jackson believes that a fundamental redesign is needed in 
our criminal justice system and that she would be so inclined 
to use her position on the Court to this end.
    For this reason, I respectfully oppose her nomination.
    Thank you again for the opportunity to testify today. I 
would ask that my written testimony be accepted for the record.
    [The prepared statement of General Marshall appears as a 
submission for the record.]
    Chair Durbin. Without objection.
    Thank you, General Marshall.
    Dean Goluboff?

 STATEMENT OF RISA GOLUBOFF, DEAN, ARNOLD H. LEON PROFESSOR OF 
    LAW, AND PROFESSOR OF HISTORY, UNIVERSITY OF VIRGINIA, 
                   CHARLOTTESVILLE, VIRGINIA

    Professor Goluboff. Thank you, Senators, for the 
opportunity to comment on the nomination of Judge Ketanji Brown 
Jackson, whom I have known personally and professionally since 
1998 and whose career I have followed closely since that time.
    I have taught constitutional law and legal history for 20 
years at the University of Virginia, and I've served as the 
Dean of the School of Law since 2016.
    Today, I am speaking in my personal capacity, not my 
official capacity as Dean, and my testimony is not based on the 
views or positions of the University of Virginia. It is based, 
rather, on my personal views as a scholar, placing Judge 
Jackson in both a broad historical perspective and the context 
of contemporary thought on the judicial role.
    My conclusion is that the Supreme Court and the Nation will 
benefit enormously from the keen intelligence, impeccable 
integrity, broad experience, and intellectual open-mindedness 
of a Justice Jackson.
    Before I turn to the main portion of my testimony, let me 
add my historian's brief reflection on the historic nature of 
this appointment. It was some 56 years ago that the Senate 
confirmed Constance Baker Motley--Judge Jackson's role model--
to be the first Black woman judge on any Federal court. That 
Judge Jackson shares Judge Motley's birthday is, as has been 
said, a happy coincidence. That she shares her status as a 
trailblazer is far more than that. It is causal. She and we 
would not be here today without Judge Motley and others like 
her who paved the way.
    I have three main points. First, Judge Jackson is eminently 
qualified to serve on the Supreme Court of the United States. 
To illustrate with just a few numbers, she holds two degrees 
with Latin honors from Harvard University. She has served as a 
law clerk to three Federal judges nominated by Presidents of 
two parties. She has been confirmed by bipartisan votes of the 
Senate three times to Federal office. Altogether, she has 
accumulated 26 years of legal experience, 7 in private practice 
and 19 in public service, including 2 years as a Federal public 
defender, 6 with the bipartisan Sentencing Commission, and 9 
years as a judge on 2 Federal courts.
    You know all this. But this abbreviated description both 
makes clear that Judge Jackson will bring enormous distinction 
to the Supreme Court and highlights how her varied experience 
will enrich both her own opinions as a Justice and the 
collective deliberations of the Court.
    That Judge Jackson has represented clients from well-
resourced corporations to the indigent and unpopular is 
testament not only to her robust embrace of every lawyer's 
obligation to the serve the public, but also to her commitment 
to the rule of law in an adversarial system in which every 
party is entitled and criminal defendants are constitutionally 
entitled to zealous advocacy. Her insights from the district 
court will especially enhance the Supreme Court's understanding 
of how trial courts implement their decisions.
    This brings me to my second point about the salutary 
judicial approach Judge Jackson has developed out of this 
varied experience. As a trial judge, she has shown deep respect 
for precedent. She has written about the importance of stare 
decisis, which informs her view of the judge's role in our 
constitutional scheme as simultaneously crucial and modest.
    Accordingly, her opinions are based on precedent and 
committed to the rule of law. They are fact-based and 
pragmatic, open-minded and analytical. Among the more than 500 
cases that Judge Jackson has decided--whether the matters at 
hand concerned environmental regulation or immigration law, 
criminal charges, employment discrimination, or business 
disputes--she has found in favor of both plaintiffs and 
defendants, for individuals, nonprofits, businesses, and the 
Government.
    One simply cannot presume what Judge Jackson's ruling will 
be based on the parties' political affiliations, positions in 
the world, or other characteristics. Rather, what remains 
constant across these hundreds of opinions is Judge Jackson's 
commitment to applying precedents to the facts before her, 
maintaining procedural consistency, reasoning with common sense 
and humanity, and doing justice for the parties, consistent 
with the rule of law. These traits place Judge Jackson in the 
heartland and the mainstream of the American judicial 
tradition.
    My final point is personal, as well as scholarly, about the 
connection between Judge Jackson and Justice Stephen Breyer for 
whom she and I both clerked. Judge Jackson is very much her own 
judge, and her judicial approach stems from her own experience 
in the mainstream currents of judicial thoughts in the 21st 
century. That said, two similarities bear highlighting.
    First, Justice Breyer and Judge Jackson share their deeply 
held patriotism, which they both absorbed from family members 
who dedicated their professional lives to public service. Judge 
Jackson believes as deeply as Justice Breyer in service to 
American values and in the value of the American Constitution. 
Moreover, Judge Jackson, like Justice Breyer, has always been 
as interested in hearing the views of others as in sharing her 
own. She worked with lawyers from across the political spectrum 
and found consensus with her colleagues on the Sentencing 
Commission and the D.C. Circuit.
    After Justice Breyer announced his retirement, I reflected, 
as I think many of his clerks did, that the lessons he taught 
me are ones I rely on every day. The appetite for dialogue, 
optimism, open-minded and open-heartedness, and joy. I hoped 
then that they would remain with the Court and the Nation long 
after his retirement.
    If you confirm Judge Jackson, as I urge you to do, those 
virtues, both personal and judicial, will indeed remain with 
the Court, much to the benefit of us all.
    Thank you.
    [The prepared statement of Professor Goluboff appears as a 
submission for the record.]
    Chair Durbin. Thanks, Dean Goluboff.
    The next person to testify is Professor Mascott, Jennifer 
Mascott of George Mason University, Antonin Scalia Law School.
    Professor?

 STATEMENT OF JENNIFER MASCOTT, ASSISTANT PROFESSOR OF LAW AND 
 CO-EXECUTIVE DIRECTOR, C. BOYDEN GRAY CENTER, ANTONIN SCALIA 
    LAW SCHOOL, GEORGE MASON UNIVERSITY, ARLINGTON, VIRGINIA

    Professor Mascott. Chairman Durbin, Ranking Member 
Grassley, and Members of the Committee, thank you for the 
opportunity to testify today. It's an honor to appear before 
this Committee to discuss this nomination.
    As the hearings have so far demonstrated, Judge Jackson has 
a wealth of experience and is very well respected. I'm grateful 
for the opportunity to participate in this body's serious and 
substantial consideration of a nomination to serve on the 
Nation's highest court. My testimony will focus on the 
constitutional doctrines applicable to the role of the Court 
within our constitutional system and on judicial philosophy.
    As its Preamble states, the Constitution was ordained by 
the people to establish justice and form a more perfect Union, 
and the nomination process under consideration today in many 
ways demonstrates the success of that effort.
    The Constitution's text and structure include two critical 
framework protections for liberty--federalism, the division of 
power between States and the Federal Government with 
significant freedom retained by the people and their critical 
institutions like the family and religious bodies, and the 
horizontal separation of Federal power across three distinct 
branches.
    The Federalist structure is perhaps the primary protection 
of the two, in that it lays the foundational threshold 
groundwork for the enumerated, limited nature of the powers 
that any branch of the Federal Government may exercise. The 
Constitution does not empower the Federal Government to enact 
just any law, in any form. Rather, Article I sets forth limited 
enumerated powers, vesting only those legislative powers herein 
granted in that Article to the policymaking body of the U.S. 
Congress.
    The constitutional structure also intentionally makes 
Federal action difficult and cumbersome, serving as a brake on 
the Federal Government's ability to regulate people even within 
its enumerated areas of authority. One's interpretation of the 
proper role of these structural safeguards is a critical 
component of one's understanding of the role of each of the 
three Federal branches and is critical to shaping judicial 
philosophy.
    The component of Federal power, of course, front and center 
today is the vesting of judicial power that authority under 
Article III extends only to the power to resolve cases arising 
under the Constitution, Federal laws and treaties under them, 
and certain categories of controversies. As the discussion 
during this hearing demonstrates, that power constrains a judge 
to application of the text and rule of law, not shifting policy 
preferences, cultural norms, or extensions emanating from 
governing text.
    The Article III limited authorization to resolve concrete 
cases and disputes ensures that the Article III judge is not 
charged with general responsibility to decide questions of 
national policy or the power to offer advisory opinions on 
legal questions. And particularly when deciding cases arising 
under Federal laws and the Constitution, the Article III judge 
must faithfully interpret and apply the text, and the limited 
power to decide cases and controversies also suggests caution 
in the imposition of remedies. An Article III nominee's 
judicial philosophy should reflect deep awareness of these 
limitations.
    As a number of Supreme Court nominees before this body have 
previously testified, the interpretive philosophies most 
consistent with the constitutional role of a judge are 
originalism and textualism. Those methodologies, generally 
understood, essentially seek to identify the ordinary meaning 
of the relevant legal text at the time that it became governing 
law.
    Originalism is applied through the identification of 
original public meaning at the time of ratification, is 
consistent with constitutional provisions such as the Article 
VII providing that the Constitution would become governing law 
as of its ratification by the conventions of nine States.
    Judges must take a constitutionally required oath to be 
bound by this Constitution and the laws of the United States 
made in pursuance thereof. And it's the text of those laws that 
have supreme effect.
    Finally, the Constitution provides for a finely grained 
amendment process, with substantially challenging procedural 
hurdles. This process cannot be overcome by jurists' developing 
sense of cultural norms apart from constitutional text.
    Original public meaning's commitment to identifying the 
meaning of constitutional or amendment text at the time it's 
given effect is consistent with these principles, and the 
statutory interpretive methodology of textualism similar--
similarly maintains consistency with these constraints.
    Just as Article VII procedures give authority to the 
constitutional text, Article I, Section 7 procedures indicate 
that statutes have governing effect once they are enacted by 
Congress and the President. Therefore, the text of those 
enacted laws, the publicly understood text as of the time of 
its enactment, governs the proper interpretation of these laws.
    In testimony and statements, Judge Jackson, like prior 
nominees representing a range of views and jurisprudential 
approaches, has articulated general support for originalism and 
textualism. But commitment to these methodologies hinges on 
their application in practice. When asked about judicial 
philosophy, Judge Jackson has declined to identify express 
commitment to a particular philosophy, instead focusing on a 
multistep interpretive method highlighting the steps she'd take 
in deciding cases, such as looking at briefs, the factual 
record, congressional intent, purpose, and precedents.
    It is challenging to definitively discern or predict a 
jurist's future methodological approach on the Supreme Court on 
the basis of service on a Federal district court, but hesitance 
to commit to a particular judicial philosophy could leave 
flexibility for incorporation of various interpretive 
approaches during Supreme Court service. And Judge Jackson's 
explanation of her interpretive methodology during the hearing 
suggests perhaps more reliance on legislative history and 
extra-textual sources and purpose than that used by textually 
committed jurists like the late Justice Scalia, Justice Thomas, 
and more recent nominees like Justices Barrett, Kavanaugh, and 
Gorsuch.
    In addition, some of Judge Jackson's prior body of work 
suggests that she also may have a different view than a 
traditionally applied method of originalism. In the recent 
decision involving a conflict between the Congress and the 
executive branch, Judge Jackson inferred an implied cause of 
action from the Constitution, a determination that was later 
reversed by the D.C. Circuit, finding that inference of an 
applied cause of action outside the judicial role.
    This body is appropriately weighing constitutional 
principles, the role of the Senate and the Federal judiciary, 
and interpretive philosophy in its consideration of nominees. 
The interpretation of law, consistent with originalism and 
textualism as traditionally applied, is important to maintain 
limits on governmental power and to preserve liberty.
    Thank you very much for the opportunity.
    [The prepared statement of Professor Mascott appears as a 
submission for the record.]
    Chair Durbin. Thank you, Professor Mascott.
    Next is Wade Henderson, president and CEO of the Leadership 
Conference on Civil and Human Rights. Welcome back.

  STATEMENT OF WADE HENDERSON, PRESIDENT AND CHIEF EXECUTIVE 
 OFFICER, THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS, 
                         WASHINGTON, DC

    Mr. Henderson. Thank you.
    Chairman Durbin, Ranking Member Grassley, and Members of 
the Committee, I'm Wade Henderson, interim president and CEO of 
the Leadership Conference on Civil and Human Rights, a national 
coalition of more than 230 organizations dedicated to building 
an America as good as its ideals.
    Thank you for inviting me to share our coalition's strong 
support for the confirmation of Judge Ketanji Brown Jackson as 
an Associate Justice of the U.S. Supreme Court.
    By any standard, she is an exceptionally qualified nominee. 
When confirmed, Judge Jackson will make history as the first 
Black woman to serve on the Supreme Court, and it will happen 
55 years after civil rights lawyer Thurgood Marshall was 
confirmed as the Nation's first Black Supreme Court Justice. We 
have waited far too long for this day, but we are nonetheless 
overjoyed that it has finally arrived.
    Judge Jackson's presence on the Court will matter 
tremendously. We know that a more racially diverse Court 
includes the perspectives of communities who have been 
traditionally excluded from seats of power and that judges from 
different demographic and legal backgrounds infuse more 
viewpoints into their deliberations. Importantly, a diverse 
Court helps communities trust that judicial decisions are not 
biased in favor of a select few.
    As you've heard this week, Judge Jackson will also be the 
first former public defender on the Court and the first Justice 
with any significant criminal defense experience since Justice 
Marshall. This is vital.
    Public defenders play a critical role in our criminal legal 
system, protecting the constitutionals rights of people who 
cannot afford lawyers, but they remain vastly underrepresented 
on the Federal bench. Institutions that we entrust to safeguard 
our democracy, including the Supreme Court, must work for 
everyone. It is imperative for the Federal judiciary to be made 
up of fair-minded judges and Justices who are committed to 
civil and human rights of all and who reflect diverse 
experiences.
    Our communities depend on the Federal courts to administer 
justice and, importantly, to recognize injustice from the 
perspective of many. Judge Jackson, who has a commitment to 
defending the constitutional rights of all, is exactly who we 
need on the Supreme Court.
    As a district court and circuit court judge, Judge Jackson 
has demonstrated her even-handed approach to the law. Her 
record is immense. And while we may not always agree with her 
decisions, her commitment to follow the law and the measured 
ways in which she has approached the law has been remarkable.
    Judge Jackson's impressive record on and off the bench 
demonstrates that she is a fair-minded arbiter of justice, and 
it is why the civil and human rights community has so strongly 
endorsed her. Last week, the Leadership Conference sent a 
letter to Senators signed by nearly 200 national organizations 
calling for her confirmation. We know that her distinguished 
legal career, her collegiality to all she encounters, her 
remarkable judicial temperament, and her demonstrated 
commitment to equal justice make her the perfect choice.
    Fifty-seven years ago tomorrow, Dr. King and thousands of 
foot soldiers arrived in Montgomery, Alabama, after marching 
from Selma in their quest for voting rights. Decades later, 
this historic moment represents yet another step on our 
Nation's long march toward a more inclusive democracy.
    As Dr. King said that day, the arc of the moral universe is 
long, but it bends toward justice. Today, we must all recognize 
that Judge Jackson's confirmation to the Supreme Court will 
bend that arc a little more. All of us who are impacted by 
decisions of the Court can be confident that Justice Jackson 
will continue to do her part to keep the sacred promise of our 
courts and our country.
    Thank you, and I'm happy to answer any questions.
    [The prepared statement of Mr. Henderson appears as a 
submission for the record.]
    Chair Durbin. Thank you, Mr. Henderson.
    And the order is a little different here, I'm told. The 
next witness is Mrs. Eleanor McCullen. Mrs. McCullen?

   STATEMENT OF ELEANOR McCULLEN, MASSACHUSETTS RESIDENT AND 
                       SIDEWALK COUNSELOR

    Mrs. McCullen. Thank you.
    Mister Chairman, Ranking Member Grassley, and Members of 
this wonderful Committee, my name is Eleanor McCullen, and I am 
honored to be with you today as you consider the nomination of 
Judge Jackson to the Supreme Court.
    I also would like to say I am grateful for all of your 
service to our country.
    I have dedicated my life in service to empowering women as 
a sidewalk counselor. I was also the lead plaintiff in an 
important free speech case, McCullen v. Coakley.
    Today, I would like to touch on two topics that are very 
near and dear to my heart. The first, the importance of 
empowering and supporting pregnant women who feel alone and 
without options. Two, the importance of confirming judges 
committed to preserving one of Americans' most cherished 
freedoms, the freedom of speech.
    For over 20 years, I have served as a sidewalk counselor, 
and I offer hope, help, and love to the Boston women and their 
families. So many women I've met believe that their only choice 
is to end the life of their baby. It is in that moment of 
isolation and fear that I have the privilege of offering a 
different choice, one that empowers and encourages the woman to 
know she is fully capable of becoming a mom and pursuing a job, 
and going to school, and having a successful and happy life.
    When I see a woman approaching, coming down Commonwealth 
Avenue, I always say ``Good morning. I'm Eleanor. How can I 
help you? '' It's a powerful moment when a woman looks at me, 
and our eyes connect, and she stops to talk. It's in that 
moment I promise her she will never walk her journey alone.
    Of course, women often share with me their fears and their 
concerns about their pregnancy. I honor their thoughts and 
concerns, and I say, ``I understand. That is a challenge. But I 
also know you can do it with support, and I will support you 
with all my kinds of support. I will stand with you throughout 
the 9 months and beyond. I will hold your hand.''
    I'm able to provide the mothers whatever resources they 
might need in that moment, including medical care, financial 
support. Of course, they come to our house. Of course, baby 
clothes and bassinettes. I've had many, many, many, many baby 
showers.
    Of course, if some of my mothers want to go to school, 
we're able to help them financially to go back to school. And I 
just stick with the mothers and their families for as long as 
they need my help.
    For me, it's a joy to be able to offer women love and 
kindness, no matter what time of night or day they might call 
and need me. And being able to watch the children grow up, 
children who wouldn't be here had the mother not stopped to 
talk to me, this is an incredible privilege.
    In the midst of this joy, however, I know firsthand the 
pain of being unable to serve women when the Government tries 
to violate our right to free speech. In 2007, Massachusetts 
enacted a ``buffer zone.'' It was a law prohibiting pro-life 
speakers from coming within 35 feet of the entrance of an 
abortion facility.
    As you might imagine, this prevented us from being 
compassionate and serving women and their babies because the 
law prevented us from having quiet, intimate conversations with 
them. I quickly realized that if I wanted to continue 
supporting women and babies as a sidewalk counselor, I had to 
challenge the law.
    Even though I never thought I'd be part of a lawsuit, I 
knew I couldn't compromise or allow Massachusetts to rob 
Americans of our constitutional freedoms. So I stood for women. 
I stood for the babies and for every American's right to free 
speech, regardless of their views on life and abortion.
    I was deeply saddened to find out that Judge Jackson, while 
in private practice, advocated in favor of Massachusetts' 
previous ``buffer zone'' law in her amicus brief on behalf of 
abortion clinics. She and her colleagues maligned pro-life 
counselors, characterizing us in ugly and false ways.
    Her misrepresentations certainly don't describe me or any 
of the sidewalk counselors that I have worked with over the 
years. Indeed, the entire reason I challenged the buffer zone 
law was because I did not want to shout from a distance or come 
across as a woman with no compassion. Thankfully, in 2014, all 
nine Justices of the Supreme Court ruled that Massachusetts' 
buffer zone did violate the First Amendment.
    When a woman is alone, sidewalk counselors walk with her in 
that moment. When a child is just minutes from losing his or 
her life, sidewalk counselors serve as their voice. The unborn 
have no voice.
    As Americans, we will disagree on many important issues, 
but that's the beauty of why our Constitution protects free 
speech and allows each of us to speak truth with love. My hope 
is that this precious freedom, which preserves our Nation from 
tyranny and violence, will remain respected and upheld. I would 
ask Judge Jackson that if she is confirmed to the Supreme 
Court, that she will choose to uphold all Americans' First 
Amendment freedoms.
    And I would like to end with a story. It just happened this 
week. I was home, and the telephone rang. And the woman said, 
``Eleanor? '' I said, ``Yes.'' She said, ``Oh, I'm so glad to 
talk with you.'' She said, ``I was just looking through my baby 
book of my little 3-month-old little girl,'' and underneath the 
picture of the baby was my card.
    My card that I give out--hope, help, and love--and she had 
pasted that in the album. Underneath the baby picture, there 
was my card and my number, and she called me.
    And she said, ``I have to tell you,'' she said, ``Rose is 
now 18. She's graduated from high school. She's on her way to 
college, and I want to thank you for being there that day in 
January, and you talked to me. And I have to tell you Rose is 
the joy of our life.''
    So, in conclusion, you might ask why I am so passionate 
about supporting mothers and free speech? Well, it's called 
love. And love, you can't argue with that.
    And thank you so much for listening.
    [The prepared statement of Mrs. McCullen appears as a 
submission for the record.]
    Chair Durbin. Thank you, Mrs. McCullen, for being here 
today. We really appreciate it.
    Mrs. McCullen. You're welcome.
    Chair Durbin. Our next witness is Mr. Richard Rosenthal.

   STATEMENT OF RICHARD B. ROSENTHAL, SOLO APPELLATE LAWYER, 
         MIAMI, FLORIDA, AND SAN FRANCISCO, CALIFORNIA

    Mr. Rosenthal. Mr. Chairman, Ranking Member, Members of the 
Judiciary Committee, thank you for the distinct honor of 
appearing before you today.
    Just a few weeks from now, I will marry my beloved fiancee, 
Ana. And today, I get to testify in support of the nomination 
of my lifelong friend, Judge Ketanji Brown Jackson, to be on 
the Supreme Court. So I feel especially blessed these days. And 
get well soon, Dad. I love you.
    Senators, I have known Ketanji Brown Jackson for nearly 38 
years. We first met in 1984, as students in our public junior 
high school in Miami, Florida. I was 12 years old back then, 
and Ketanji was 14. We were friends back then right away, and 
now, 38 years later, we still remain dear friends.
    From the very first day I met Ketanji, I knew she was 
special. In my entire life, I have never met anyone like her. 
In junior high, and then again at our large public high school, 
Ketanji was seemingly everywhere and everything--the president 
of the student body, the upbeat voice delivering the morning 
announcements over the school's public address system, the 
graduating senior voted ``Most Likely to Succeed.'' And in our 
speech and debate program, she was literally the national 
champion in her event.
    Through it all, she was the one student who stood out as 
universally loved and admired by everyone--her fellow students, 
teachers, and administrators alike. Ketanji's incandescent 
brilliance was obvious to all of us from day one. But even more 
importantly, she has always been one of the kindest, warmest, 
most humble, and down-to-earth people I have ever met.
    All this, while still possessing boundless charisma, drive, 
maturity, and grace. For all of these remarkable 
characteristics to somehow reside in the same one person, well, 
I suppose you can understand why everyone who knows Ketanji 
believed she was destined for greatness.
    I could go on and on describing Ketanji's amazing 
qualities, but instead, let me relate two stories from our high 
school days.
    First, Ketanji wasn't just a supernova national champion 
from our debate squad, though, of course, she was. She was also 
the unofficial leader of our tight-knit debate family, acting 
basically as a student-coach and mentor for all the younger 
students.
    Outside in the grassy area between the school's hallways, 
we would sit cross-legged on the ground, all of us in rapt 
attention while Ketanji would stand and explain to us the keys 
to success, in particular the need for preparation, poise, 
discipline, and, above all, hard-work.
    She was a born leader. No matter how high she would climb, 
she always threw ladders down to the rest of us, and encouraged 
us and helped us on our upward climb, to the best of our 
abilities.
    In 1998, for just a few weeks, Ketanji's path and my path 
overlapped again, as we both served as law clerks for judges on 
the same court, the U.S. Court of Appeals for the First 
Circuit. She was finishing up her 1-year appellate clerkship 
and I was just beginning mine.
    For those few weeks, I confess that I felt a surge of 
excitement and satisfaction because I had actually accomplished 
something that Ketanji had accomplished. But for her part, 
Ketanji has never been about comparing herself to anybody 
else's accomplishments. She simply sets her own goals and then 
works tirelessly to achieve them.
    In the nearly 40 years that I've known Ketanji, I can't 
remember ever hearing her say an unkind word to anybody, or 
even an unkind word about anybody. That's just not her nature. 
And it's not how her amazing parents, Mr. Brown and Mrs. Brown, 
raised her.
    That leads me to my second story about high school. It was 
the fall of 1987. I was a sophomore, and Ketanji was a senior. 
In our Latin American history class, I sat in the seat next to 
hers. But on this particular day, her chair was empty. But just 
then, the school principal came on the PA system and announced 
that a handful of our senior class had just been accepted to 
Harvard College that day, a huge achievement for our large, and 
often underfunded, public high school.
    As fate would have it, at that very moment that the 
principal announced Ketanji's name, Ketanji happened to open 
the door and walk in the classroom. The entire classroom 
immediately leapt to its feet, exploded in applause, and ran 
over to Ketanji to embrace her. It was one of the most genuine, 
heart-warming moments I have ever seen.
    Every student was so happy for Ketanji and so proud of her 
accomplishment. Nobody was jealous, nobody was resentful, and 
nobody was at all surprised. Because she was Ketanji.
    And now, some four decades later, the President of the 
United States has nominated Ketanji to be a Supreme Court 
Justice. It seems fitting. After all, this is what great 
Americans are supposed to do. They're supposed to achieve great 
things. And Ketanji Brown Jackson is a great American.
    Personally, I feel blessed to have been born in a country 
that can produce such an extraordinary person. My grandparents, 
a blessed memory, were Jews who escaped persecution in Nazi 
Germany. And they, along with my dear parents, always 
reiterated to me and my siblings what an amazing country this 
is because in America, anybody can succeed, no matter who they 
are, what they look like, or where they come from.
    My grandparents and my parents were right. In America, a 
great person like the Honorable Ketanji Brown Jackson can, 
indeed, succeed and can ascend to positions of great trust and 
great responsibility.
    Members of the Senate, by confirming this extraordinary 
woman to a seat on the Supreme Court, you will honor everything 
that is good and right about America. For the good of our 
country, and for the good in our country, I hope that you will.
    Thank you.
    [The prepared statement of Mr. Rosenthal appears as a 
submission for the record.]
    Chair Durbin. Thank you, Mr. Rosenthal.
    Ms. Keisha Russell?

             STATEMENT OF KEISHA RUSSELL, COUNSEL,
             FIRST LIBERTY INSTITUTE, PLANO, TEXAS

    Ms. Russell. Good morning, and thank you for the 
opportunity to testify.
    I am a constitutional lawyer at First Liberty Institute. 
First Liberty is a national legal organization with a mission 
to defend and restore religious liberty for all Americans. In 
addition to being a lawyer, I am also the daughter of Jamaican-
born parents, and I am a former elementary school teacher in 
Atlanta public schools.
    I'm here to explain how Critical Race Theory may impact a 
judge's judicial philosophy, including the fulfillment of her 
oath to uphold the Constitution, as well as to remain impartial 
and uphold the integrity and independence of the judiciary.
    Critical Race Theory, or CRT, is a subset of critical 
theory that began with Immanuel Kant in the 1790s. Critical 
theory rejected the principles of the Enlightenment and the Age 
of Reason on which the American republic was founded. Critical 
Theory teaches that all human relationships are relationships 
of power between the oppressors and the oppressed. The 
oppressor/oppressed lens of critical theory helped establish 
totalitarian ideologies such as Marxism and Nazism.
    CRT's key assertion is that racism is not the result of 
individual, conscious prejudices, actions, or thoughts, but 
rather that racism is a systemic and structural force. CRT 
teaches that racism is embedded in America's legal system, 
institutions, and capitalist economy, and it demands 
``whiteness'' as the societal norm.
    I will address three of CRT's erroneous assumptions and the 
possible impact on judicial philosophy.
    Number one, believing that America was founded on racist 
ideals is wrong and incompatible with a judge's oath to uphold 
the Constitution. CRT proponents claim that America was 
founded, and the Constitution was drafted, to promote racism 
and slavery.
    Historians have debunked this claim as false. The truth is 
that America's Founders were divided on the issue of slavery, 
and many of the Founders were abolitionists. America's core 
ideals of freedom and equality, expressed in the Declaration of 
Independence and the Constitution, sparked the movements that 
led to the eventual elimination of both slavery and Jim Crow.
    CRT is sometimes erroneously analogized to the civil rights 
movement, and some CRT proponents even assert that Dr. King was 
a critical race theorist, but he was not. Now King would argue 
that Bull Connor, the head of the Birmingham, Alabama, police, 
and the Southern racists were violating the principles of the 
American founding. But Critical Race Theory would argue the 
opposite, that Connor was the fulfillment of the American 
founding because America was founded to perpetuate this white 
supremacy.
    Ultimately, we cannot expect someone who subscribes to a 
critical race theorist to defend and protect the Constitution 
because CRT asserts that the Constitution is not worth 
defending. Such a view completely contradicts the oath every 
judge takes.
    Number two, a judge who embraces Critical Race Theory's 
perspective that America must address racism by encouraging 
racism cannot be an impartial judge. Contrary to CRT's 
assertion that racism is socially created, racism is the result 
of individual feelings of superiority and prejudice. There is 
no doubt that bad laws will further a racist society, but such 
racism must first be alive in the individual before it can 
become alive in society.
    Ultimately, when unaddressed prejudice gets married to 
power, there is going to be an unintended pregnancy, which will 
give birth to the evil of racism.
    Since personal prejudices advance a racist society, we 
cannot address racism by encouraging racist behaviors. Mr. 
Kendi, one of CRT's advocates, brazenly declares that that only 
remedy to prevent discrimination is future discrimination. In 
essence, CRT proposes that the oppressed group must be granted 
advantages in society to the detriment of the oppressor group 
in order to address past injustices.
    Adherence to CRT removes the principle of equality before 
the law that is necessary for just judicial decisionmaking. 
Consider, for example, how a CRT philosophy could influence a 
judge's view in criminal sentencing. If a judge believes that 
the only way to correct racism is to provide advantages to 
Blacks and disadvantages to whites, this would create dire 
injustices in that judge's practices. A judge who embraces 
CRT's views may engage in favoritism and partiality, contrary 
to the judicial canons.
    Number three, a judge must uphold the integrity and 
independence of the judiciary, and she cannot do so if she 
considers systemic racism in her decisionmaking. While racism 
is alive in the hearts of many people in our country, it does 
not determine the outcome of any minority's educational, 
professional, or economic accomplishments.
    My own testimony is a reflection of this truth, as I am a 
first-generation American and the daughter of Jamaican-born 
parents. And despite the fact that my parents came to this 
country to build a life for themselves from the ground up, my 
parents still raised many successful children.
    And CRT does not acknowledge that regardless of the 
struggles that people face in life, we are all individually 
responsible for the lives we live and the success we attain. 
Instead, CRT makes race the predominant relevant factor.
    Every lawyer and judge promises to defend and protect the 
U.S. Constitution, but she cannot uphold this oath if she 
believes that the Constitution and the principles of America's 
founding are inherently racist and inherently flawed. Neither 
can a judge remain impartial and administer justice 
independently if she holds a philosophy that correcting racism 
requires affording privileged classes less justice than 
oppressed classes.
    Ultimately, a judge should consider America's history as a 
lesson and a blueprint for why and how we must constantly seek 
to uphold and protect America's founding promises.
    For these reasons, First Liberty opposes the nomination, 
and I thank you for the opportunity to testify today.
    [The prepared statement of Ms. Russell appears as a 
submission for the record.]
    Chair Durbin. Thank you, Ms. Russell.
    And next is Captain Frederick Thomas.

  STATEMENT OF FREDERICK L. THOMAS, CAPTAIN, EAST BATON ROUGE 
 PARISH SHERIFF'S OFFICE, BATON ROUGE, LOUISIANA, AND NATIONAL 
   PRESIDENT, NATIONAL ORGANIZATION OF BLACK LAW ENFORCEMENT 
                           EXECUTIVES

    Captain Thomas. Good morning Committee Chairman Senator 
Richard J. Durbin and Ranking Member Senator Charles E. 
Grassley, and Members of the U.S. Senate Committee on the 
Judiciary, I bring you greetings on behalf of the executive 
board, members, and constituents of the National Organization 
of Black Law Enforcement Executives, NOBLE.
    My name is Frederick L. Thomas, and I am the national 
president of NOBLE and current Captain for the East Baton Rouge 
Parish Sheriff's Office in Baton Rouge, Louisiana.
    I have served more than 30 years in the law enforcement 
profession and 26 years in the Louisiana Army National Guard. I 
am a U.S. military combat veteran, who served in support of 
Operation Iraqi Freedom.
    The organization I represent is NOBLE, and the mission is 
to ensure equity in the administration of justice in the 
provision of public service to all communities and to serve as 
the conscience of law enforcement by being committed to justice 
by action. NOBLE has approximately 50 chapters and represents 
over 3,400 members worldwide that consist of chief executive 
officers and command-level law enforcement officials from 
Federal, State, county, municipal law enforcement agencies, and 
criminal justice practitioners.
    It is an honor for NOBLE to provide written testimony on 
the nomination of Ketanji Brown Jackson to be an Associate 
Justice of the Supreme Court of the United States. We endorse 
President Joe Biden's nomination of Federal Appeals Court Judge 
Ketanji Brown Jackson to serve on the U.S. Supreme Court.
    A graduate of Harvard Law School, Judge Jackson brings a 
long and impressive resume, including her background in public 
service, experience as a Federal public defender, and a Federal 
judge on the U.S. Court of Appeals for the District of 
Columbia. Throughout her career, Judge Jackson has demonstrated 
deep knowledge and respect for law, balanced judgment, and 
unwavering commitment to justice. She is eminently qualified to 
serve on the highest court in the land.
    NOBLE joins the International Association of Chiefs of 
Police, Fraternal Order of Police, the more than 60 top law 
enforcement leaders, and former Republican and Democratic 
Attorneys General in endorsing Judge Jackson. She has a unique 
perspective on the needs of law enforcement through the 
association of her family members in the profession.
    Judge Jackson has two uncles who were career law 
enforcement officers. One was a detective for Miami-Dade 
County, and the other rose through the ranks to become chief of 
police for the Miami Police Department. In addition, her 
brother served as an undercover officer in a drug sting unit in 
Baltimore after graduating from college.
    It is our opinion that her direct familiarity with the 
complexities, challenges, and opportunities within law 
enforcement provides a perspective on criminal justice issues 
that can be an asset to the Supreme Court. In evaluating her 
judicial track record, it is the opinion of NOBLE and other law 
enforcement organizations that Judge Brown Jackson has 
consistently adjudicated based on the facts and applied the law 
fairly.
    Ketanji Brown Jackson has been previously vetted twice by 
the Judiciary Committee and twice confirmed by the full Senate 
as a judge, garnering bipartisan support as recently as 2021. 
She was also confirmed in 2010 as the vice chair of the U.S. 
Sentencing Commission. It is NOBLE's hope that Ketanji Brown 
Jackson will receive the bipartisan support for this most 
prestigious nomination to the Nation's highest court.
    In closing, this is a watershed moment in our Nation's 
history. Judge Ketanji Brown Jackson is a stellar nominee with 
an extraordinary background. She is clearly qualified and 
possesses the knowledge, legal acumen, and experience to serve 
on the United States Supreme Court.
    NOBLE is honored to endorse a nominee of this stature who, 
if confirmed, will participate in deciding pivotal legal cases 
impacting the lives of all people across this mosaic of our 
country. We encourage this esteemed body to send her nomination 
to the Senate floor.
    I thank you, Chairman Durbin, for the invitation to appear 
today, and the Committee Members for your kind attention.
    Thank you.
    [The prepared statement of Captain Thomas appears as a 
submission for the record.]
    Chair Durbin. Thank you, President Thomas.
    Our last witness is Ms. Serano, who I believe is going to 
join us by virtual WebEx. Let's hope that it's connected.
    Ms. Serano?

  STATEMENT OF ALESSANDRA PARISI SERANO, CHIEF LEGAL OFFICER, 
   INTERNATIONAL OPERATIONS, OPERATION UNDERGROUND RAILROAD, 
                      ANAHEIM, CALIFORNIA

    Ms. Serano. Good morning, Chairman Durbin, Ranking Member 
Grassley, and Members of the Committee.
    Nelson Mandela once said, ``There can be no keener 
revelation of a society's soul than the way it treats its 
children.''
    The people who sexually exploit and abuse children must be 
held accountable, not only to society but to their victims. 
Incarceration and sex offender registration are ways to hold 
these criminals accountable and responsible for their 
despicable acts.
    Child pornography, or child sexual abuse material or CSAM, 
is a horrific crime that plagues victims long after the initial 
sexual abuse.
    My name is Alessandra Parisi Serano. I work for Operation 
Underground Railroad, a nonprofit organization that partners 
with governments here and around the world to help victims of 
human trafficking and child exploitation get the necessary 
aftercare and support they so desperately need.
    Operation Underground Railroad also helps train foreign law 
enforcement and other entities who may have contact with 
potential victims on how to identify, investigate, and 
prosecute traffickers and exploiters of children. I recently 
joined this organization in December 2021.
    For the preceding 18-plus years, I served as a Federal 
prosecutor for the U.S. Department of Justice. During my DOJ 
career, I personally handled hundreds of child exploitation and 
human trafficking cases involving thousands of victims.
    I saw firsthand not only what these victims endured from 
the initial abuse but also the continued abuse and exploitation 
for years to come, oftentimes for the remainder of their lives.
    The Supreme Court in the Paroline case recognized this fact 
when it allowed victims depicted in CSAM material to obtain 
mandatory restitution from voyeurs, distributors, and 
transporters of CSAM long after the initial sexual abuse has 
occurred.
    While the initial sexual abuse causes great harm from which 
victims may never overcome, CSAM retraumatizes victims for 
years after their abuse. Every time a person views CSAM that 
child is reexploited, retraumatized, and reabused.
    When an offender is caught viewing, downloading, or 
distributing these horrific images, mandatory notice goes to 
these victims that yet another offender viewed CSAM. Upon 
receiving these notices, victims are forced to relive the 
crime.
    Persons who download, view, and distribute CSAM cause 
increase in the production of CSAM images. No one wants to see 
reruns of TV or movies. We've all experienced this during COVID 
when the release of new movies and TV shows stopped, and that 
includes voyeurs and distributors of CSAM.
    With this appetite for new material comes the increased 
demand for the abuse of younger kids and more violent, 
sadistic, and masochistic images, according to recent 
statistics. I personally prosecuted cases with images of abuse 
and exploitation of children as young as premature infants.
    This trend by certain judges to routinely decrease 
sentences far below the advisory sentencing guidelines and 
prosecutors' recommendations for CSAM consumers minimizes the 
gravity of the offence.
    While the amount of material being produced and number of 
people consuming this material has increased exponentially over 
recent years, the sentences have decreased. This makes no 
sense.
    I live in Southern California where destructive wildfires 
are a yearly issue. The fires leave hundreds of victims in its 
wake. When the fires spread and get bigger, do we put fewer 
firefighters on the front line? Use less water or resources? 
Fewer containment measures?
    No, of course not. That scenario is akin to reducing--
routinely reducing sentences for CSAM consumers when the supply 
is undisputedly increasing. I say, again, it makes no sense.
    I hope all of the Members of this Committee agree that 
there is no cause more noble than protecting our children. 
Whether some crimes warrant longer prison sentences is a debate 
left for another day.
    However, purveyors of CSAM, especially those with prior 
conduct involving sexual abuse or exploitation, deserve to be 
taken out of society for a substantial period of time and to be 
identified by the public through sex offender registries.
    It has been my experience that offender--offenders are only 
remorseful because they get caught and not because of what 
their deviant and destructive conduct has done to countless 
victims, many of whom are unidentified.
    Last, the notion that CSAM crimes only involves pictures is 
appalling to most prosecutors and victim advocates. CSAM 
depicts real children who deserve justice. These victims are 
survivors, deserve our respect and dignity for what they 
endured. They do not deserve to be treated with less 
consideration than offenders who take sexual pleasure in 
viewing CSAM of what is the darkest days of their lives. Our 
society is better than that, at least I hope it is. Our most 
precious resource, our children, deserve it.
    On behalf of victims of CSAM and other sexual exploitation, 
I thank you for the Committee's time and attention to this 
important matter.
    Thank you.
    [The prepared statement of Ms. Serano appears as a 
submission for the record.]
    Chair Durbin. Thank you, Ms. Serano.
    We're now going to have rounds of questions. They are 5 
minutes--5 minutes--and I hope the Members will hold to that 
standard.
    I'll begin, and let me start with Captain Thomas. Thanks.
    Thanks for coming here. Thanks for more than 30 years of 
service in law enforcement. Thanks for more than 26 years of 
military service, including combat duty.
    It's an honor to have you as a panelist here, as it is with 
all of our panelists. But, certainly, I wanted to commend you 
for those things.
    Captain Thomas. Thank you, sir.
    Chair Durbin. You're probably aware of the fact that Judge 
Jackson has received the unqualified endorsement not only of 
your organization, NOBLE, but also of the Fraternal Order of 
Police and the International Association of Chiefs of Police, 
in addition to other law enforcement officials. Are you aware 
of that?
    Captain Thomas. Yes, sir.
    Chair Durbin. So there have been charges made yesterday, 
day before, even this morning, that she is somehow part of a, 
quote, ``anti-incarceration anti-police movement,'' that 
somehow she is affiliated with the defund the police movement.
    Would you or your organization have endorsed her if that 
were true?
    Captain Thomas. Sir, that would never happen if we knew 
that--if she would have made a statement like that. We never 
saw that in our research. That never came out, and I don't 
really think it's true, sir.
    Chair Durbin. I don't either.
    And I would assume the same thing is the case for the 
Fraternal Order of Police, the largest organization 
representing rank and file policemen in America, and the 
International Association of Chiefs of Police, respected at 
their own level for the leadership they bring to law 
enforcement.
    So that is a charge which, I think, is belied by the fact 
that this endorsement has taken place.
    Captain Thomas. Yes, sir.
    Chair Durbin. Wade Henderson, you were in the audience. 
Welcome back.
    You were in the audience and heard the earlier testimony 
from the American Bar Association. Two or three, maybe four, 
Members have really dwelled on this whole question of 
sentencing in child pornography cases and child abuse cases, 
and I asked the three representatives of the American Bar 
Association if they had made inquiry among the professionals--
prosecutors, defense lawyers, judges--who have witnessed Judge 
Jackson's role in criminal justice, particularly in this 
particular area of the law, and they testified that they had 
consulted with 250 professionals to reach their conclusion of 
giving her a unanimously well-qualified rating.
    And I asked them during the course of this, since we spent 
so much time here with three or four Members dwelling on that 
issue, whether they found any evidence to back up the charges 
that were being leveled at this Committee level and their 
answer was no, no evidence, not at all, you would think that 
one person out of 250 would have found the same conclusions as 
three or four of my colleagues did in the last several days.
    What is your conclusion from that?
    Mr. Henderson. Mr. Chairman, your questions to the American 
Bar Association representatives, in my view, were dispositive 
of this issue of whether Judge Jackson, in some way, was 
outside of the legal mainstream of other jurists or somehow 
tolerated the abuse of children implicitly by the questions 
that were posed.
    I thought their responses this morning were completely 
dispositive. I began, when I saw the testimony yesterday, 
thinking that, unfortunately, this hearing has devolved, in 
some ways, to a partisan attack on an otherwise extraordinarily 
well-qualified nominee.
    By any standard, Judge Jackson's record both on and off the 
bench, her academic achievements, are unparalleled with almost 
anyone who has been appointed to the Supreme Court.
    A failure to find her voluble on the basis of qualification 
has somehow led to a series of questions focused on seven 
decisions that she rendered in sentencing that, in my view, 
bordered on the demagogic.
    I think when one takes a look at the repeated effort to 
pose questions about her record somehow being outside of the 
mainstream, indeed, reinforced that view.
    Ultimately, I think the issue, as Senator Whitehouse 
mentioned, was both asked and answered, and that the judge had 
clearly demonstrated that she was well within the mainstream of 
judicial thinking.
    Finally, I felt that the criticism of some directed at her 
for her decisionmaking was misplaced. To the extent that her 
decisions, at least to those who questioned her, was somehow at 
variance with what the law was, they could have said that. No 
one did. But they could also recognize that it is up to 
Congress to establish the standards that judges apply in their 
decisionmaking responsibility.
    To the extent that there were questions posed about her, 
better to look inward at the role that Congress played in 
establishing the role that judges fulfilled in this moment.
    Chair Durbin. Thank you, Mr. Henderson.
    Senator Grassley.
    Senator Grassley. Ms. Mascott, we heard several times from 
Judge Jackson that her judicial philosophy is in her 500 cases, 
or whatever number that we have, from her district court work. 
How--and then, so that was her answer to the questions about 
what's her judicial philosophy.
    How important is a Justice's judicial philosophy in 
determining how they will rule on the Bench?
    Professor Mascott. Sure, Senator.
    Well, I think, as these hearings and numerous Supreme Court 
nomination proceedings previously have indicated, is judicial 
philosophy is, obviously, paramount because in contrast to the 
political branches--this body and the Presidency--judges have a 
limited role to decide cases and controversies.
    And as Mr. Henderson is saying, Congress has a large role 
in establishing what the role and the jurisdiction of courts 
are going to be and the procedures they're going to put into 
place.
    And so a judge's approach and philosophy in interpreting 
both the Constitution and statutory text is critical.
    And in the past, I think nominees that have gone on to 
serve on the Supreme Court and be committed and consistent and 
exclusive in their adoption of originalism and textualism have, 
clearly, discussed those methodologies, those philosophies--
expressed commitment to them before this body and articulated 
their grounding in the Constitution.
    Senator Grassley. I'm going to ask Ms. Serano, you're a 
former Assistant U.S. Attorney?
    Ms. Serano. Yes.
    Senator Grassley. You're familiar with these crimes where 
children are victims?
    Ms. Serano. Yes, sir.
    Senator Grassley. Could you describe the sentencing 
enhancement around child pornography cases for use of computer, 
the number of images, prepubescent victims, but not so much on 
the mechanics of it but explain why we have these enhancements?
    Ms. Serano. It's my understanding that the enhancements 
were created to recognize the aggravation that the use of a 
computer or somebody with more images versus less images or 
someone with images of very, very young children, they would 
deserve a higher sentence than somebody who has not had those 
characteristics with their offense.
    Senator Grassley. Could you explain why possession of child 
pornograph--pornography is not a victimless crime?
    Ms. Serano. Yes, sir.
    So as I said in my testimony, these pictures or videos are 
real children. They're somebody's kid. They have parents. They 
have grand--they may have siblings. These are real children.
    And every time somebody views it, downloads it, possesses 
it, transports it, revictimizes them. Can you imagine your most 
embarrassing moments on the internet forever? And this is not 
just embarrassing. This is brutal, sometimes often very 
violent, horrible conduct that victims know that somebody is 
out there looking at it.
    Senator Grassley. Mr. Marshall, based upon your experience, 
which communities would be hurt most by anti-police movement 
and is there anything in Judge Jackson's record specifically 
that concern you about her jurisprudence?
    General Marshall. Appreciate the question.
    As I raised in my opening statement, what gets lost when we 
describe the victims of crime is particularly where those 
victims are located, and those that advocate in anti-police and 
anti-incarceration statements are advocating directly against 
those that they claim to be able to speak for.
    You know, when I hear that Justice Jackson would be a voice 
for the vulnerable, very rarely do I hear that being described 
to those victims of violent crime who truly are the innocent 
and most vulnerable of the system as a whole.
    My broader objection as it relates to what I've seen of the 
record is when there is a judicial opinion drafted by the 
nominee in which she cites The New York Times for a quote that 
``our criminal justice system is unfair and unjust,'' to me, 
that raises very specific questions about whether the nominee 
fully embraces whether or not our system is broken or whether 
or not she believes that the system works, because to the 
extent that there continues to be the mindset that our system 
is unjust, not only does it undermine the rule of law but the 
ability of law enforcement to do their job and the public's 
confidence in the system in which we all hold dear.
    Senator Grassley. Ms. Russell, mindful of the fact that 
Judge Jackson told us more than once that Critical Race Theory 
never entered into her opinions or maybe even matter of 
discussion, if a judge or justice is making decisions based 
upon that theory and those principles, how might we see that 
reflected in their opinions?
    Ms. Russell. Well, thank you for that question.
    I think that, based on my expertise in religious liberty 
and constitutional law, I think you always have to start with 
the original meaning of the Constitution and understand that 
regardless of the changing of the culture and what the social 
structure might call for, the standard never changes and that 
ensures that there's an anchor and there's constantly a 
foundation to go back to.
    And so if you look at the Constitution through the lens of 
CRT then you're going to assume that it's inherently flawed and 
incorrect, and you're less likely to view it as being something 
or a source that you need to go back to or a source that should 
be relied upon and, certainly, not in the original meaning, 
because the original meaning is going to be inherently 
discriminatory if you look at it through that lens.
    And so if you see it reflected in an opinion, say, in a 
religious liberty case, you might be inclined to, say, change 
that original meaning in order to reflect the current culture's 
new understanding of what religious liberty should mean.
    Senator Grassley. Thank you, Mr. Chair.
    Chair Durbin. Thank you, Senator Grassley.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman.
    Ms. Russell, Ken Klukowski worked for First Liberty before 
he went to the Department of Justice to become senior counsel 
to Assistant Attorney General Jeffrey Clark and participate 
there in the drafting of a proposed letter in an effort to 
overturn the Presidential election in Georgia.
    Did you personally or did your organization have any role 
in helping to prepare or facilitate the preparation of that 
letter proposed by Jeffrey Clark?
    Ms. Russell. No.
    Senator Whitehouse. Thank you.
    Mr. Marshall, you were the chairman of the Republican 
Attorney Generals Association and the Rule of Law Defense Fund 
in the run-up to the January 6th assault on the Capitol, and 
Rule of Law Defense Fund sent robocalls urging recipients to 
march to the Capitol on January 6th.
    Were you personally present in Washington, DC, on January 
6th?
    Your microphone should probably come on.
    General Marshall. I was not.
    Senator Whitehouse. Did RAGA or RLDF have staff present 
here on January----
    General Marshall. I can't speak to that.
    But, Senator, what I can tell you is that we have denounced 
lawlessness, not only as it related to what took place on 
January 6th but also the lawlessness that continues to go on 
across our country with violent crime.
    And what I would hope is that part of this hearing that 
this body is likewise questioning our nominee about her 
philosophy on criminal justice as it relates to decisions she 
would make on the Court.
    Senator Whitehouse. Did you personally know of or approve 
the text of the robocall that went out from RLDF?
    General Marshall. No.
    Senator Whitehouse. Did you--do you know how that robocall 
was funded? Was that out of general revenues of RLDF or was a 
specific solicitation made to fund it?
    General Marshall. No knowledge.
    Senator Whitehouse. No knowledge? Did you personally 
solicit funding for that robocall?
    General Marshall. Senator, I've made multiple comments here 
already. The question before this body is the nomination of 
Judge Jackson.
    Senator Whitehouse. I get to ask the questions and my 
question to you is did you personally----
    General Marshall. Yes, sir. And what I'm telling you is 
that we have denounced what took place that day as we do 
continue to denounce the violence that took place across this 
country.
    Senator Whitehouse [continuing]. Solicit money for the RLDF 
robocall that day? Pretty simple question. Yes or no, did you 
personally solicit money to support the robocall that brought 
people to the Capitol and who then assaulted the Capitol?
    General Marshall. No.
    Senator Whitehouse. Very well.
    Did you have any contact with Members of Congress in any 
effort to keep the electoral process open through objections to 
give those coming to assault the Capitol time to breach the 
Capitol and disrupt the elections process?
    General Marshall. No.
    Senator Whitehouse. Have you offered any testimony to the 
January 6th Commission?
    General Marshall. I have not been asked.
    Senator Whitehouse. You've not been asked.
    As you sit here, you enjoy the protection of the Capitol 
police officers who are here and who defended our Capitol 
against the assault on January 6th by the crowd that your 
organization helped recruit.
    Do you have anything to say to them, particularly to those 
who were injured in the line of duty on that day?
    General Marshall. Senator, I object to the premise of your 
question that somehow or another the organization I was 
connected with had anything to do with the violence that took 
place. We've denounced that violence before and as I've done 
with you here today.
    Senator Whitehouse. Is Joseph R. Biden of Delaware the duly 
elected and lawfully serving President of the United States of 
America?
    General Marshall. He is the President of this country.
    Senator Whitehouse. Is he the duly elected and lawfully 
serving President of the United States?
    General Marshall. He is the President of our country.
    Senator Whitehouse. Are you answering that omitting the 
language duly elected and lawfully serving purposefully?
    General Marshall. I'm answering the question. He is the 
President of the United States.
    Senator Whitehouse. And you have no view as to whether he 
was duly elected or is lawfully serving?
    General Marshall. I'm telling you he is the President of 
the United States.
    Senator Whitehouse. No further questions.
    Chair Durbin. Senator Cornyn.
    Senator Cornyn. To me, one of the most important aspects of 
the confirmation hearings is the opportunity to revisit first 
principles about our Government, separation of powers, freedom 
of speech.
    Mrs. McCullen, thank you for your eloquent testimony about 
the importance of free speech.
    But I want to--Professor Mascott, I want to start with you 
and take you back to the Declaration of Independence where it 
says that government derives its just powers from consent of 
the governed.
    And while we heard a lot from the nominee about staying in 
her lane, not making policy and the like, I, personally, 
believe that many judges have a blind spot when it comes to 
things like substantive due process or articulating new and 
unenumerated rights and eliminating any discussion or debate or 
even vote on some of those rights that they discover because 
the judiciary says this is the way it is and we don't care what 
anybody else thinks.
    Could you just describe for us the danger of eliminating 
from consent of the governed some of these important decisions 
under the guise of judicial lawmaking like substantive due 
process?
    Professor Mascott. Yes, Senator. Thank you for the 
question, and I think it's great to go back to considering the 
consent of the governed, obviously, because the right of the 
people and liberty is foundational to our constitutional 
system, and as my written testimony goes through in more depth 
and I mentioned today, I mean, I think there are multiple 
structural limitations in the constitutional system--some that 
we often overlook--that lead to quite a modest role for judges.
    So, first, you know, there's the role of federalism of the 
States, the people, our important institutions like religious 
bodies, the family, continuing to have a great say--we the 
people--that limits, really, the power under the text of the 
Constitution that the Federal Government in any branch is 
supposed to exercise.
    Senator Cornyn. The Federal Government is one of limited 
powers, correct?
    Professor Mascott. That's correct, Senator, listed in 
Article I of the U.S. Constitution.
    And so that structural constraint is the first threshold 
thing to be considering when thinking about the Federal role, 
and the--where the source of the legal and constitutional 
authority for law to begin with.
    And then even within that system, as this body has 
discussed many times, there's the separation of powers among 
three branches and, of course, with the--with Congress being 
closest in elections to the American people and the President 
being elected, the role of the judiciary is quite modest.
    Senator Cornyn. Forgive me. Since our time is limited----
    Professor Mascott. Sure.
    Senator Cornyn [continuing]. Let me ask another question.
    And when judges get outside their lane--when they make 
policy, when they make political value judgments--does it 
violate those principles that you articulated about our form of 
government and the limitations on the judicial power?
    Professor Mascott. Yes, Senator, which is why it's 
important to have a muscular reliance on the text and structure 
of the Constitution and statutes.
    Senator Cornyn. Ms. Russell, we--I know your practice 
involves protection and defense of religious liberty. That's 
another provision of the First Amendment that Mrs. McCullen 
addressed that--beyond free speech, the freedom of religion in 
our country.
    And when the Supreme Court Justices identify new 
unenumerated rights and hold that no State, no local 
government, can enact any policy in conflict with that new 
right that they identify, does that potentially endanger the 
religious liberty of Americans?
    Ms. Russell. Well, yes, it definitely could. If you are not 
taking into account sort of the--as I said, the foundational 
importance of religious liberty and you instead usurp that with 
the new right that you've created, that was likely not 
considered when the initial provisions of the Constitution were 
drafted.
    Senator Cornyn. And in the Obergefell case, I think Justice 
Alito and, perhaps, Justice Thomas and others expressed their 
concerns that when judges make law and create a national 
standard and take these issues out of the debate that they 
ordinarily would be subject to in the political system and the 
legislative branch, that, basically, people who don't agree 
with it, let's say, because of sincerely held religious belief, 
could be identified as bigots. Do you share that concern?
    Ms. Russell. Well, yes, because, certainly, if you create a 
new right based on the current prevailing culture and their 
thoughts about whatever it might be, generally speaking, you're 
going to end up in a situation where everyone who has a 
traditional view of those subjects are going to be seen as the 
enemy and they will be demonized in the culture.
    Senator Cornyn. And it's the ultimate cancel culture?
    Ms. Russell. Ultimately, yes.
    Senator Cornyn. Thank you.
    Chair Durbin. Thank you, Senator Cornyn.
    Senator Klobuchar.
    Senator Klobuchar. Well, thank you very much, Chair Durbin, 
and thank you to all of you.
    Representative Beatty, thank you so much for your 
leadership and for being here today. You talked about, in your 
testimony, about how there have been 115 Justices and only--she 
will be the first--Judge Jackson, if confirmed, will be the 
first Black woman and she will also be the first public 
defender. So those are two firsts.
    Sitting in the room where it happened, offering a different 
perspective, could you give us your perspective, two things--
one, on what that means as someone that knows what it's like to 
go into an institution that didn't have different 
perspectives--that would be the House of Representatives--and 
two, just your view as a Black woman about the hearing 
yesterday?
    Representative Beatty. Let me start with your last 
question. And, first of all, Senator, thank you for that.
    As I witnessed yesterday and, certainly, want to say to 
Congressional Black Caucus Member Senator Cory Booker, thank 
you yesterday. It was emotional. It was heartfelt. But it also 
spoke not only to Black America but to America of how valuable 
this will be because what we will see when she is confirmed is 
what America looks like. We are no longer looking at where we 
were 56, 65 years ago, but yet we're still fighting for the 
same thing.
    So I say to little girls and especially little Black girls 
it will be important for them to see that they could do what 
her best friend said of her when they were 12 and 14 years old.
    I think it builds hope for America, and we know that all 
too often as elected officials and wanting to get more people 
who are representative of this wonderful America that we live 
in and that includes making the change and having the courage 
as Senators to confirm a Black woman, not because she's Black--
and this is what I want you to hear loud and clearly--but 
because she is qualified, more qualified than most we have seen 
in this room.
    And that's not just based on my opinion or my thought, but 
it is based on facts. It is based on when you look through the 
600 some opinions, when you look through the 12,000 pages that 
were sent here on what she did on the United States Sentencing 
Commission, the 70,000 some pages that came from the Obama 
Library, when you look at what all the fact finding checkers 
have said about her record, I say look to each of us and this 
is why it is important to me.
    There is not a perfect person in this room. Yesterday, a 
Minority Senator said he did not agree with everything that his 
colleagues were saying. So I think you can look at anything or 
any person and find something that you want to find fault with.
    But in this case, there are so many things that she has 
just been impeccable, on her reverence for the rule of law, for 
her impeccable decisionmaking. She is not perfect but she is 
amazing, and that's what I want America to know.
    And I just want to end with this because I am also chair of 
the Congressional Black Caucus, and I want you to know while we 
are very diverse our power is our unity and we embrace and 
endorse her 100 percent.
    Thank you.
    Senator Klobuchar. Thank you very much. Thank you.
    Mr. Henderson, you've been a leader on voting rights. 
Yesterday, Judge Jackson talked about how the right to vote is 
a fundamental right in our democracy, as other nominees have 
said in the past.
    How can the Court, in your view, particularly after what 
happened yesterday with the shadow docket case in Wisconsin, 
work to reestablish public confidence in voting rights cases? 
Very quickly.
    Mr. Henderson. Thank you for the question. Thank you also 
for your leadership in trying to protect democracy in your role 
as Chair of the Rules Committee.
    I think the Court has a very important role to play to 
preserve the right of all Americans to the vote. We now see 
democracy under attack in unprecedented ways. It, certainly, 
began with the January 6th insurrection but it continues now at 
the State level in some States that are rolling back 
protections that guarantee the right to vote.
    I am hopeful that the Court will reexamine the role it has 
taken with regard to the Voting Rights Act, which it has 
stripped of its essential powers at the Supreme Court level, 
and I think a case has been made that there is a need for a new 
structured Voting Rights Act and we hope, of course, that the 
Senate will, ultimately, come to accept that requirement.
    Senator Klobuchar. Well, thank you.
    Mr. Chairman, I'm not going to ask another question. But I 
did want to say to you, Mr. Rosenthal, as someone who's kept my 
friends since middle school and high school, I especially 
enjoyed your testimony and it reminded me of when I asked one 
of Sonia Sotomayor's friends in a similar panel who was a 
friend from middle school or high school, what she was like at 
that point--maybe it was elementary school--and he said 
judicious.
    [Laughter.]
    Senator Klobuchar. So I enjoyed it very much. Thank you to 
all the witnesses.
    Chair Durbin. Thank you, Senator Klobuchar.
    We've been told by the Republican staff that the order 
based on the early bird rule on their side is Senators Lee, 
Tillis, Blackburn, and Cruz.
    It appears, Senator Tillis, you're next up.
    Senator Tillis. Thank you, Mr. Chair. Thank you all for 
being here. I listened to your testimony and watched it in my 
office.
    Mr. Rosenthal, you're getting married in a couple of weeks?
    Mr. Rosenthal. Yes, Senator.
    Senator Tillis. And I also wish that your father returns to 
good health.
    Mr. Rosenthal. Thank you.
    Senator Tillis. Captain Thomas, thank you for your law 
enforcement service and your service in Iraqi Freedom.
    Mrs. McCullen, I think this is the first time I've asked 
somebody questions who were actually a plaintiff in a Supreme 
Court case. It's an honor. Your testimony was unbelievable. 
Before I leave today, I hope I can get one of your cards.
    Mrs. McCullen. Oh, sure.
    Senator Tillis. I think it reads ``Hope, health and love.''
    Mrs. McCullen. ``Hope, health and love.''
    Senator Tillis. So you were at this abortion clinic as a 
counselor?
    Mrs. McCullen. Yes.
    Senator Tillis. Sidewalk counselor. Yesterday, I tried to 
make the distinction because I think some people were 
approaching that case as a pro-life or pro-choice case and I 
was trying to make the point it was about freedom of speech. 
You agree with that. I think you said that in your testimony.
    Mrs. McCullen. Sure.
    Senator Tillis. Now, in the amicus brief that was created I 
think there were quotes in there. So these weren't words 
necessarily of those who created the amicus brief but they were 
quotes from, I guess, the plaintiffs in the original case--that 
you were mean, in your face, aggressive, and I think that the 
other quotes said that they even felt like they may be shot by 
you.
    Now, I know that was a couple of years ago. But that seems 
to be not characteristics of your behavior. Would you agree 
with that?
    Mrs. McCullen. Oh, absolutely. Yes.
    Senator Tillis. Can you--you were out there.
    Mrs. McCullen. Yes.
    Senator Tillis. You were not the only one. Were there are 
others out there as life counselors or----
    Mrs. McCullen. Sure.
    Senator Tillis. Yes. Were any of them mean, in-your-face, 
people that looked likely to shoot somebody?
    Mrs. McCullen. No. Absolutely not.
    Senator Tillis. Okay. So tell me a little bit about the--
I'm sorry I got to go quick----
    Mrs. McCullen. That's okay.
    Senator Tillis [continuing]. Because I'd like to hear you 
talk--I'd like for you to repeat your opening statement. But 
tell me about the--I was trying to get with Judge Jackson 
yesterday who, incidentally, Congresswoman, I think is 
eminently qualified and I'd find it hard to believe that 
anybody on my side of the aisle would disagree with that. So 
this has more to do with the application of philosophy and 
worldviews that could potentially influence.
    But I think you should make no mistake that I agree with 
the ABA that she is highly qualified and I'm glad to see she 
got that rating.
    But the--I'm trying to get an idea of what it was like on 
the ground. They were telling you--now, one of the reasons you 
mentioned in your testimony that you may have to raise your 
voice is you were so far away from these young expectant 
mothers who may not have ever known that there was a choice of 
life that would fulfill them like the mother who sent you the 
picture of her 3-month-old baby----
    Mrs. McCullen. Yes.
    Senator Tillis [continuing]. Who's now in her teens. So I 
could understand if you're several feet away you may have to 
raise your voice just to get their attention. Maybe that's what 
they meant by shouting and in your face.
    But with the Supreme Court striking--ultimately, striking 
down the underlying Massachusetts law that was used as a basis 
for the complaint, were there people that were inside the 
envelope or maybe--I was trying to determine whether there were 
people that were escorting them in, which are, basically, 
expressing their free speech rights to choice.
    Were they there or was it just that--I mean, so were there 
people inside the buffer who were able to escort them in and 
your argument was that you want to be there to give--hold their 
hand, I think you said, never walk the journey alone.
    Is that an accurate portrayal of the facts on the ground, 
that you felt like you were not given fair access?
    Mrs. McCullen. Fair. Fair. That's true.
    Senator Tillis. Okay.
    Mrs. McCullen. Because--yes, you have it there, Senator. 
And, yes, they are inside the buffer zone and they're all--
they're talking to the mother-to-be and----
    Senator Tillis. That's what I thought.
    Mrs. McCullen. But we're not. Yes.
    Senator Tillis. That's why I just wanted to get it right. 
And I think it's wonderful that you're here because you're 
either an Oscar-winning actor or actress or the fact of the 
matter is that was a wholly unfair assertion----
    Mrs. McCullen. Yes.
    Senator Tillis [continuing]. Of who you were.
    Just a quick question. I actually had one for Ms. Russell 
and Ms. Mascott. I'm not going to have time for both.
    So, Ms. Mascott, you talked about, in your opening 
testimony, application and practice. I was thinking about a 
case that Senator Cornyn brought up that had to do with the 
congressional direction, the plain word of the statute said 
that the removal--are you familiar with this?
    Professor Mascott. Are you talking about Make the Road New 
York?
    Senator Tillis. Yes.
    Professor Mascott. Okay.
    Senator Tillis. And it was my understanding that Judge 
Jackson used it as a basis for the nationwide injunction that 
it did not comply with the APA. But that seems to be a tactic 
every once in a while, even though the plain letter of the text 
seemed like--and I think it's the reason why it was ultimately 
struck down by the D.C. Circuit.
    But do you know of any other examples where Ms. Jackson may 
have applied a similar logic to a case?
    Professor Mascott. Well, in that particular case that 
you're speaking of I think it was--it was failing to rely on a 
provision that clearly limited the role of the courts and gave 
the discretion to make the decision to the acting Department of 
Homeland Security Secretary.
    I think in other opinions what seems to be the case is that 
Judge Jackson is using a blend of sources, perhaps relying on 
legislative history or looking at intent or purpose more than 
other Justices in the past who have expressed exclusive 
commitment to textualism, or maybe in applying canons of 
construction perhaps moving beyond text sometimes in a way that 
might be different from other Justices in the past, like 
Justice Scalia and Thomas.
    So, of course, it's hard to predict, based on district 
court rulings, how a judge will rule but there are these other 
instances like the one you mentioned or in the McGahn case 
where the D.C. Circuit disagreed that suggests maybe----
    Senator Tillis. Sorry. In the interest of time, because I 
know we have a vote. I'd be very interested--thank you for 
that. But I'd be very interested, as a follow-up, if you have 
time over the next week, to just provide me a few specific 
examples, if you can. You don't have to go to a great level of 
detail but I would appreciate it.
    Mr. Chair, thank you.
    Mrs. McCullen, do you have one of those cards? I'm going to 
get it on the way out. Thank you.
    Senator Blumenthal [presiding]. Thanks, Senator Tillis.
    This isn't a coup. Senator Durbin has gone to vote and, as 
is customary, one of the Members of the Committee takes his 
place and I'm in the Chair now, Richard Blumenthal of 
Connecticut, and very pleased to have my round of questioning 
while I am taking the Chair for Senator Durbin.
    Let me ask Dean Goluboff, you have an extraordinary career 
yourself as a trailblazer, the first female dean at University 
of Virginia. You had a distinguished clerkship with Justice 
Breyer and before that our good friend, Guido Calabresi, one of 
the most distinguished judges and scholars in the United States 
at Yale Law School where you went as well.
    A number of us on this panel have talked about the 
legitimacy crisis that the Supreme Court faces--maybe the 
result of self-inflicted wounds, maybe the result of the times 
in which we live. But Justice Breyer's very thoughtful, 
deliberate, methodical approach, as was outlined by Judge 
Jackson as well, seems to be one of the hallmarks of his 
ability to bring the Court together to overcome divides and 
disagreements, which, in my view, is very important at this 
point in the Court's history.
    Would you agree?
    Professor Goluboff. I would.
    Senator Blumenthal. And maybe you could elaborate as to why 
that is important for this Court at this moment in its history.
    Professor Goluboff. I think the Court's authority, as 
Professor Mascott has been talking about, in the separation of 
powers really comes from its deliberative nature. It doesn't 
have the power of the sword. It doesn't have the power of the 
purse.
    What it has is its reality and perception of being a 
neutral arbiter, and I think Justice Breyer played a critical 
role in enhancing and facilitating deliberation across all of 
the Justices of the Court and I think everything that we know 
about Judge Jackson suggests she will do exactly the same 
thing.
    Senator Blumenthal. So the lack of trust and credibility is 
a threat to the Court because it doesn't have armies or police 
forces or, as you say, the power of the purse. What it has is 
the trust and respect of the American people?
    Professor Goluboff. Yes. That's something Justice Breyer 
talks about frequently in his writing and in his speaking is 
the fact that without the trust of the American people the 
Court simply can't do its job.
    The rule of law--the Justices are committed to the rule of 
law and the rule of law exists because the American people 
follow the rule of law and only do so when they have faith in 
the Court.
    Senator Blumenthal. Let me ask--and I think that point is 
very well said--Congresswoman Beatty and Mr. Henderson, we are 
celebrating here a remarkable achievement. I've said it should 
have happened long ago. It's a leap into the present in the 
historic nomination by President Biden of the first Black woman 
to the United States Supreme Court.
    But as much as we celebrate, as I pointed out yesterday, 
the decisions of the Court in Shelby County and Brnovich that, 
essentially, have set us back and especially in this area of 
voting rights--John Lewis was a great friend and hero to you 
and to me on integration--backsliding as well.
    Maybe I can ask you to reflect on--both of you, because you 
have such deep and broad experience and expertise in this 
area--about the ways that the Supreme Court has reversed some 
of the progress that was made in our own lifetime.
    Congresswoman Beatty, why don't you go first?
    Representative Beatty. Well, first of all, let me just say 
thank you for that question, and I am sure that Congressman 
John Lewis is looking down on us in a hopeful manner, 
especially as it relates to civil rights and voting rights.
    I think what we have to look at first, as was said by both 
of the professors, that the power is not in the policy or the 
Congress. So I think what this does with this confirmation 
would be it will be a hope for the people out there to help us 
as Members of Congress and also as Senators that we have to 
first do our job.
    And I think we have an obligation to help those Justices by 
sending them policy, sending them voting rights legislation 
that they can then do within the rule of the law what the 
people are looking for.
    So I think that it starts here, and I think that question 
is so wonderful as I am sitting here as a Member in the 
Majority, with Members in the Majority and the Minority, that 
the work starts with the House and the Senate.
    And so if that question would allow me to say that I am 
willing, because voting rights is the fundamental of everything 
that we talk about right now, whether it is the freedom of 
speech, whether it is working with our police, whether it is 
being the voice for those who are voiceless, let's start by 
saying we're going to give not only this Justice but all of the 
Justices something that they can look at and rule on because 
we've sent them something that we're united.
    And I would ask, since I'm here today and with that 
question, that I ask my colleagues that we start with voting 
rights legislation, that we look at where we are with 
nullification. If we look at where we are in that case--if we 
look at history, the voting rights are in with this and you 
know this well.
    The Voting Rights Act has been reauthorized in a bipartisan 
way five times. Four Republican Presidents reauthorized the 
Voting Rights Act. Wouldn't this be a wonderful time in this 
America to build a better America if this Senate and this 
Congress could come together and send our Justices something 
that they could rule on that would be reflective of our 
democracy?
    Senator Blumenthal. Thank you.
    Mr. Henderson?
    Mr. Henderson. Senator Blumenthal, thank you so much for 
the question. Let me say at the outset that I support 
completely the response of Congresswoman Beatty and believe her 
answer was full and complete.
    But let me also say that the right to vote is foundational 
of all other rights, as Congresswoman Beatty alluded to, and so 
all the issues that we've discussed this morning, from free 
speech to the rights of individual victims in cases of police 
accountability or others, are all tied to the right to vote.
    The Supreme Court decision beginning with the Shelby County 
decision in 2013, with the Brnovich decision of a couple of 
years ago, and recent interpretations of what the Court has 
done by district court judges raise serious questions about the 
fidelity of the Court to the role that Congress has been 
designated to address discrimination under Section 5 of the 
Fourteenth Amendment.
    The fact that the Court seems to have gone out of its way 
to find ways of eviscerating the protection of the Voting 
Rights Act has taken us back, literally, to the period that 
existed prior to 1965 when the Voting Rights Act was adopted.
    Some people consider that criticism to be hyperbolic. But 
the truth is the facts make clear that what is happening now to 
voters, particularly voters of color, younger voters, seniors, 
individuals with disabilities, are in fact violations of that 
fundamental right to vote.
    When we deny access to the ballot therein lies the problem. 
And so we have petitioned Congress, specifically the Senate, to 
enact new provisions that would help to protect the right to 
vote.
    We are disappointed that earlier this year that effort was 
not undertaken by the--with the complete bipartisan support of 
the Senate. But we hope that in the future that will happen.
    I remind you that 16 Members--Republican Members--of the 
Senate who voted for the Voting Rights Act in 2006 and the 
reauthorization have so far been silent on this question of 
whether to move forward on the Act. We hope they have a second 
opportunity today.
    Thank you.
    Senator Blumenthal. Thank you. Thanks. Thanks, Mr. 
Henderson.
    I'm going to call on Senator Blackburn.
    Senator Blackburn. And thank you, Mr. Chairman. I 
appreciate this very much and the opportunity to have you all 
before us. This has been really quite a week here in the Senate 
Judiciary Committee.
    Mrs. McCullen, I would like to come to you first. I am so 
happy that you are with us today and I appreciated your 
comments.
    Mrs. McCullen. Thank you.
    Senator Blackburn. I'm a mother and a grandmother, and I 
like how you talked about walking with women as they transition 
from their pregnancies to that motherhood, and realizing the 
need to continue to support women after they have those babies 
and to support them as they go through this entire process.
    Likewise, I know that you do some good work to support 
post-abortive women----
    Mrs. McCullen. Yes, I do.
    Senator Blackburn [continuing]. Who just have--they grieve, 
and acquaintances that I know that have been through that 
process there is a grief that is just many times hard to bear.
    Mrs. McCullen. It's true.
    Senator Blackburn. So appreciate your work, and I know you 
have a card that you give to women.
    Mrs. McCullen. I do.
    Senator Blackburn. Talk to me a just a little bit about 
that, very quickly.
    Mrs. McCullen. Sure. Well, I have an extra one here, too. 
And when I'm walking and a young mother comes up to me, as I 
said earlier, I say, good morning, I'm Eleanor, how can I help 
you, and I give them the card at the same time.
    The card has ``Hope, help and love'' and my telephone 
number. I'm not afraid to give that out. It has my website. And 
then on the back, ``A person's a person no matter how small.''
    Senator Blackburn. I love that.
    Mrs. McCullen. Yes. So I just give that out. It just shows 
that I'm not--I'm trying not to be a stranger.
    Senator Blackburn. Yes.
    Mrs. McCullen. In just a few moments, Senator, I'm building 
up trust, and at least they have a name and a number and I'm 
not just out there for no reason. I have a purpose.
    Senator Blackburn. I appreciate that. Let me ask you this. 
How did it make you feel in Judge Jackson's brief----
    Mrs. McCullen. Yes.
    Senator Blackburn [continuing]. When referred to pro-life 
women as hostile noisy crowd of in-your-face protesters?
    Mrs. McCullen. Well, as I said, it made me very sad, 
extremely sad, and that's not the case at all. In fact, if 
someone is doing those things--harassing or yelling--the 
sidewalk is not a place for anger. It's not a place for 
judgment. Anyone that comes to be a sidewalk counselor should 
be compassionate, not judgmental, and helpful and kind.
    So we have workshops. I run the workshops. If a new person 
wants to be----
    Senator Blackburn. Okay. Let me--let me move on just for a 
minute.
    Mrs. McCullen. Sure. Yes.
    Senator Blackburn. But thank you for that work.
    Ms. Mascott, may I come to you, please?
    Professor Mascott. Yes, ma'am.
    Senator Blackburn. I closed out last night with Judge 
Jackson reading back to her some of her opening statement. Now, 
everyone up here, as I've listened to you all--the ABA, their 
witnesses that were with us earlier--you talk about preserving 
our form of government. You talk about preserving equal access, 
equal justice.
    And there was a comment in Judge Jackson's opening that I 
read back to her because she left out something very important. 
I'm going to read this to you and I'd like your comment.
    ``I've been a judge for nearly a decade now and I take that 
responsibility and my duty to be independent very seriously. I 
decide cases from a neutral posture. I evaluate the facts and I 
interpret and apply the law to the facts of the case before me 
without fear or favor, consistent with my judicial oath.''
    And I told her there was a word missing from that that I 
thought deserved more attention and that was it should have 
been there that it should be consistent with the Constitution 
because that should be where a Justice goes first. Is that not 
correct?
    Professor Mascott. That is correct, Senator, and I think, 
largely, because the Constitution, of course, gives the Federal 
Government only limited enumerated powers, and so to be able to 
have a context for interpreting relevant statutory text one 
first needs to think about whether Congress--the Federal 
Government is authorized to take the action in the first place 
and where the text then falls within the constitutional 
structure and the judge's role in interpreting it.
    Senator Blackburn. And, you know, we had a very difficult 
time. Never got her to nail down her judicial authority--her 
judicial philosophy. That concerned us.
    There's another thing I want to ask you about. This is 
where she talked about CRT in sentencing. This was from a 2015 
speech, and I felt like this was really inappropriate.
    ``I also try to convince my students that sentencing is 
just plain interesting on an intellectual level, in part 
because it melds together myriad types of law--criminal law, of 
course, but also administrative law, constitutional law, 
Critical Race Theory.''
    Is Critical Race Theory a type of law, Ms. Mascott?
    Professor Mascott. Well, Senator Blackburn, I teach a 
number of courses at Scalia Law School and none involve 
Critical Race Theory. So I would not be the best expert on 
that.
    As far as sentencing, though, I think, again, in that areas 
and all, it's important to focus on the text of law and, of 
course, Congress at the Federal level would have the largest 
role in terms of establishing the range of appropriate 
sentences for a crime.
    And so folks applying that, of course, always will be 
looking to the text of the laws put in place by Congress. 
Congress has, over the years, given a lot of discretion but 
could narrow it if it decided that judges were not applying the 
role properly.
    Senator Blackburn. Thank you. Thank you.
    Mr. Chairman, before I--I want to ask you, some of us have 
wanted those presentencing memos. Are we going to be able to 
have access to those memos? I know we sent a letter to you. 
Where do we stand with that?
    Chair Durbin [presiding]. Well, we've consulted with 
prosecutors and with victims' rights organizations and they 
share my concern. This is very confidential, sensitive 
information which is usually only seen by a judge, and to run 
the risk of bringing it to this Committee and jeopardizing, or 
worse, innocent----
    Senator Blackburn. Is there no way we can----
    Chair Durbin. I'd like to finish.
    Senator Blackburn. Okay.
    Chair Durbin [continuing]. Jeopardizing, or worse, innocent 
third parties--our children--who have been victimized.
    I'm sorry, Senator. I'm not going to be party to that. I 
would not want that on my conscience that we did this for some 
political exercise here, which I think is totally unnecessary, 
and someone was harmed as a result of it.
    I'm going to resist it every step of the way.
    Senator Blackburn. No one wants to harm children. What we 
want to do----
    Chair Durbin. Then leave the reports concealed. Leave the 
reports concealed.
    Senator Blackburn. And there's--well, what is in the 
reports that we cannot go into a classified setting and see 
these?
    Chair Durbin. I want to tell you something. If you are a 
parent of some child who has been exploited and you recognize 
this judge's name as perhaps have presided at the trial, and 
realize that now the report, the report that has been kept in 
confidence all these years, is now going to be handed over to 
the United States Senate Judiciary Committee, what would you 
think as a mother if it were your daughter or your child?
    I would think this is an act that is reckless, and to do 
this in the name of some political, well, we're going to pursue 
this one more step and request information that has never been 
requested before by the Senate Judiciary Committee, 
unacceptable. On my watch, I won't be party to it. I do not 
want this on my conscience and I hope you don't either.
    Senator Blackburn. I want to make certain that we protect 
children and that we continue to do our best effort to protect 
children. I also want to make certain that we're going to have 
judges on the Federal bench and Justices that are going to 
protect those rights of children.
    Chair Durbin. Well, you have----
    Senator Blackburn. The fact that you all have seen these--
--
    Chair Durbin. No. No, you're wrong, Senator.
    Senator Blackburn [continuing]. We haven't, the fact that 
even Judge Jackson referred----
    Chair Durbin. Senator, you're wrong. I can't see them. I 
don't want to see them.
    Senator Blackburn. Okay.
    Chair Durbin. And I want to make that clear.
    Senator Blackburn. Okay.
    Chair Durbin. So it has not been given to the White House 
nor has it been given to any Member of the Judiciary Committee 
that I know, and I am not going to be party to any effort for 
political----
    Senator Blackburn. Mr. Chairman, nobody----
    Senator Coons. Mr. Chairman?
    Senator Blackburn. There is no one that wants to do 
anything that is going to harm children.
    Chair Durbin. Good. Then join me. Join me.
    Senator Blackburn. We want to make certain that we do our 
due diligence, and I know you have gotten frustrated with us 
with asking tough questions but that is our job to do that.
    Chair Durbin. You may a tough question as long as it is 
fair and that's all we ask.
    Senator Coons. Mr. Chairman, if I might.
    Senator Blackburn. Every question we have asked has been 
fair.
    Chair Durbin. Senator Coons.
    Senator Coons. Mr. Chairman, if--could you just clarify, 
for those who may not be familiar with the procedure and 
practice of prosecution and sentencing? These PSRs they were 
not, in any case, written by Judge Jackson. Is that correct?
    Chair Durbin. That is correct.
    Senator Coons. And they are not about Judge Jackson in any 
way.
    Chair Durbin. That is correct.
    Senator Coons. They are uniformly or nearly uniformly 
sealed by court action.
    Chair Durbin. Yes.
    Senator Coons. And involve detailed and thorough interviews 
of the whole ecosystem around a crime--the victim, the 
perpetrator, families--and are described to those interviewed 
as something that will be confidential and sealed.
    Chair Durbin. Confidential.
    Senator Coons. Thank you.
    Chair Durbin. And let me just say that I cannot imagine 
that we think we have to explore this area at the risk of 
innocent third parties and children. I will not be party to it.
    Senator Booker. Mr. Chairman?
    Chair Durbin. I'm just not going to do it.
    Senator Booker.
    Senator Booker. Again, this is new to me and, I'm sorry, I 
never did criminal law but I've now asked a lot of prosecutors 
trying to be fair about this--and some of them served on this 
Committee--to understand, and the kind of confidential 
information I thought, well, maybe you could redact it and 
people were saying to me, no, you cannot even redact it. There 
is so much compromising confidential information that none of 
us would want out there.
    And the Senator, who I have a lot of respect for and have 
actually thought her--a lot of her questions during this were 
thoughtful and probing and helped me, frankly--but she's new on 
the Committee.
    But I know this--I've also asked this question--this is a 
body, this Judiciary Committee, that has for Republican and 
Democratic Presidents done, am I fair to say, thousands of 
judges have been put onto Federal benches and this is a new 
territory.
    We have never asked for this kind of confidential 
information from a third branch of Government. It's just never 
been done. And when you cross a precedent like this--now, I've 
seen this having been 8 years in the Senate--what you're going 
to create now, first of all, this information should never be 
released to politicians, in my opinion. There's no--there's 
nothing additive to it.
    But what you do when you cross that line is now you're 
going to create a new precedent. So some performative Democrat, 
when there's a Republican judge coming before us, is going to 
demand the same information and use it or exploit it for 
political purposes.
    I don't think we want to cross that line in this body where 
we've never--this has never come up in hundreds--in the 200 
years. Well, I don't know how long this information has been 
collected in this manner.
    It just seems like a really large step that I don't think, 
as you said yesterday, is going to change the conclusions that 
have already been drawn by people on either side of the aisle.
    If somebody just wants to come forward and say, I'm on the 
fence on how I'm going to vote--this is the determinative 
thing--I just don't hear that, and the danger weighing these--
the danger is really in terms of changing the way this 
Committee operates, impeding upon issues of privacy. I think 
it's--the danger way outweighs any probative value.
    Chair Durbin. I can't imagine for a moment a parent who has 
been somehow related to a child exploited in this circumstance 
who lives in fear every day of what's going to be made public, 
what's going to show up on the internet, would view this as 
just a routine request for information.
    It is so much more than that. And, as I said, on my watch--
someone could take this Chair and this gavel over and make a 
different decision. I'm not going to be party to it. I will not 
be party to exposing this information to the possibility of 
disclosure and the harm that can come from it.
    Senator Coons.
    Senator Coons. Thank you, Chairman. Dean Goluboff, thank 
you for your testimony today. Like Judge Jackson, you also 
clerked for Justice Breyer, and you're a well-respected dean of 
a prominent law school. I just wanted to ask a few quick 
questions of you and a number of other witnesses, if I might.
    Judge Jackson's jurisprudence has been questioned or 
challenged, in particular with reference to her opinion in Make 
the Road New York. Is it your view that she, either in that 
case or in other cases you may have considered or reviewed, has 
overstepped the role of the Court and has engaged in a 
jurisprudence that gets outside her lane as a judge?
    Professor Goluboff. Thank you for the question, Senator. It 
is absolutely my view that she does not get outside her lane. 
She, I think, comes down in cases on both sides, depending on 
what she sees in the facts and how she applies precedents. I 
think she has been assiduous and conscientious, both in that 
case and in others, to think about precisely the kinds of 
questions that Professor Mascott mentions: what is the role of 
the Court, how much deference to offer to the other branches, 
how to ensure procedural consistency. She is, I think, quite 
consistent and very committed to the text and to precedent.
    Senator Coons. And given your experience with Justice 
Breyer, what do you think anyone who's clerked for the Justice 
might have learned about an even-handed and impartial manner 
and consensus building on the Court?
    Professor Goluboff. Well, I certainly learned, and I think 
anyone who clerked for him also learned, that exactly what you 
described is crucial to being a good Justice, to taking every 
case on its own terms, to asking what the Constitution says 
about that particular case at hand, which includes the original 
public meaning, which Judge Jackson has said, but does not end 
with the original public meaning. Originalism is really a 
capacious term, and even among originalists, there are a lot of 
disagreements about how cases should come out. Justice Scalia 
and Justice Thomas disagreed quite considerably about how much 
to consider precedent or not in their own decisions.
    And the interpretive part of constitutional interpretation 
is really the first part. You look to original public meaning. 
That's what Judge Jackson has said she would do. And then the 
second part is you apply it, and you have to consider the facts 
of the case and precedent when you do that. And I think Justice 
Breyer taught all of us that the best way to do that is in 
conversation with Justices across the Court, and taking the 
deliberative process very seriously, which he did, creating 
real relationships across Justices so you can have real 
conversations and learn from each other as you wrestle with 
these really hard questions.
    I don't think we would spend quite so much time thinking 
about the judge's approach or qualifications as if the 
interpretive process were just automatic and mechanical. It 
requires judgment, it requires discernment, and that's what 
Justice Breyer taught us.
    Senator Coons. To follow up on a previous exchange, do you 
have any doubt that Joseph Robinette Biden, Jr., is the duly 
elected President of the United States?
    Professor Goluboff. I do not.
    Senator Coons. Thank you.
    Captain, if I might--Captain Thomas--I was a county 
executive of a county that had the second-largest police force 
in my admittedly small State. We had a very active chapter of 
NOBLE. I have a long working relationship with some NOBLE 
leadership, and I'm thrilled that you are here as the head of 
NOBLE, our Nation's largest law enforcement organization of 
Black law enforcement officers, which has also endorsed Judge 
Jackson's nomination. How do you view her record, her 
commitment to public safety, her engagement with the law 
enforcement community?
    Captain Thomas. Thank you, Senator. With all the 
information that we have received, different notes from 
different organizations, I feel very confident in her 
nomination for this seat. I'd like to make a statement. Her 
temperament, her fairness, her respect for the law, and her 
honor of the Constitution make Judge Ketanji Brown Jackson 
exactly what we should expect from someone who has ruled on 
matters that would affect our country and judicial system for 
generations.
    Senator Coons. Thank you.
    Captain Thomas. Thank you, sir.
    Senator Coons. Thank you very much, Captain, and thank you 
for the clarity and forcefulness of the endorsement. 
Congresswoman, I might just ask you a closing question. I've 
been struck at Judge Jackson's personal story and the central 
role that the doors of opportunity opened by HBCUs to her 
parents has played in that impressive arc of her story. I'd 
just be interested in your sharing with us the role that HBCUs 
play in our education system, in our Nation, and in providing 
that remarkable pathway forward.
    Representative Beatty. Thank you for that question. And as 
an HBCU graduate, as well as all five of my siblings, I can 
speak to that directly. I had an opportunity to probably attend 
any university that I wanted to, first generation going to 
college, but thank goodness for my parents who said to me that 
I would be more balanced and more grounded as a young girl 
coming from public school system in an inner-city school, that 
they thought it was important for me to do that and then later 
go wherever I wanted to. I think it gives you that extra sense 
of confidence. I think it also made me value the diversity. I 
had people from the continent of Africa teaching me. It was the 
first time in my history that I had seen so many professors and 
scholars who looked like me.
    So it made me soar when I walked into other rooms, I think 
like Judge Jackson when I heard her tell her story of how she 
felt that first week or month at Harvard. But it was, I 
believe, her success, and confidence, and wind beneath her 
wing, her parents; her parents and that grounding of HBCU 
universities, and that's what they do for so many of us.
    Senator Coons. Thank you.
    Representative Beatty. So I think it plays a valuable role.
    Senator Coons. Thank you, Congresswoman. Thank you, Chair.
    Chair Durbin. Thank you, Senator Coons.
    Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman.
    Just a moment ago, Senator Coons was having an exchange 
where he described Judge Jackson's jurisprudence as assiduously 
fair and evenhanded. Professor Mascott, in Make the Road New 
York v. McAleenan, Judge Jackson found a cause of action to 
challenge the Department of Homeland Security's determination 
of the scope of which aliens are subject to expedited removal. 
In doing so, she disregarded the plain language of the statute 
that explicitly said the Secretary had, quote, ``sole and 
unreviewable discretion'' to set the designation at any time. 
That decision resulted in a nationwide injunction preventing 
the Department of Homeland Security from removing illegal 
aliens from this country. That decision was reversed by the 
D.C. Circuit unanimously. In your judgment, was her decision in 
Make the Road New York v. McAleenan assiduously fair and 
evenhanded?
    Professor Mascott. Well, Senator, I cannot sit and judge 
motivation of what was driving a particular interpretation.
    Senator Cruz. No, the opinion.
    Professor Mascott. In terms of the interpretation of the 
statutory text and structure, the opinion overlooked the clear 
discretion that was given to the Acting Secretary of Homeland 
Security in expedited removal context----
    Senator Cruz. The plain and explicit text of the statute, 
right?
    Professor Mascott. The plain and explicit text of the 
statute and actually text of the statute that had been applied 
several times previously when acting heads of Department of 
Homeland Security had, using just policy notice, made changes 
in expedited removal.
    Senator Cruz. Thank you. Let me shift. Ms. Serano, thank 
you for the work you do with children who are victims of sexual 
exploitation. The work you do is very, very powerful. As you 
know, significant concern has been raised by myself and others 
about Judge Jackson's pattern in sentencing criminal defendants 
guilty of either possession or distribution of child 
pornography. In the Harvard Law Review, she wrote a note 
advocating a new way of examining restrictions on sexual 
offenders and arguing for a standard that, if applied, would 
likely result in striking down the sexually violent predator 
civil commitment laws in States across the country, and could 
arguably also strike down the sex offender registry laws across 
the country. Ms. Serano, what would be the effect if the view 
she articulated in the Harvard Law Review was adopted by the 
Supreme Court and if those laws, in turn, were struck down?
    Ms. Serano. I'm not familiar with Judge Jackson's writing 
in the Harvard Law Review, but I can tell you that the sex 
offender registry plays a critical part in allowing the 
community to identify where people who have demonstrated, by 
their conviction, a sexual interest in children or other 
exploitative behavior, such as rape or that sort of thing. As 
far as civil commitment, there are certainly State laws. I'm 
not familiar with all of them, but there is a process in which 
the due process is done whether someone should be civilly 
committed because they cannot function in society due to their 
sexual deviance.
    Senator Cruz. So, Ms. Serano, we've gone over it in some 
detail. The Democrat talking point is that criticism about this 
issue is based on cherry-picking. Yesterday, I gave Judge 
Jackson a chance to explain all of the child porn cases she's 
ever sentenced in, and that's a universe of 10 cases. Of them, 
five of them--Downs, Cooper, Hess, Cain, and Buttry--five of 
them, she sentenced the statutory mandatory minimum, the 
absolute lowest sentence that was allowable under law. She has 
a pattern, when there are prosecutorial recommendations of 
sentencing, on average, 48 percent less than the prosecutors 
have asked with regard to those in possession of child porn. 
And she repeatedly articulates, for example, in the Cooper 
case, but she does this in every case, she articulates that she 
thinks the sentencing enhancement for the number of images of 
child porn makes no sense and is invalid. And rather than 
having a 5-level sentencing enhancement, she reduces it to a 2-
level enhancement.
    Ms. Serano, does that make any sense to you that there--
that there is no difference whatsoever between a defendant who 
is in possession of a single image versus another defendant who 
is in possession of hundreds, or, in one of the cases in front 
of Judge Jackson, someone that had 6,700 images of children, 
some very, very young children--infants, toddlers? Does it make 
any sense that she would systematically say those are identical 
and that she's not going to apply that the enhancement in the 
guidelines?
    Ms. Serano. Thank you, Senator. I am not familiar with 
Judge Jackson's sentencing. I apologize. I was doing my day job 
yesterday, so I wasn't able to watch the hearings as much as I 
would've liked to. But I can share with you that the increases 
for the number of images, I think, accurately reflects the type 
of offender that you're dealing with. Somebody with, you 
mentioned, 6,700, that's actually on the low side. When I was 
doing--prosecuting cases, we're talking about people with 
terabytes or millions of images. And so somebody with that type 
of collection should conceivably be sentenced more harshly than 
somebody would with, say, 20 images or 50 images.
    Senator Cruz. Thank you.
    Ms. Serano. Thank you.
    Chair Durbin. Thank you, Senator Cruz.
    Senator Booker.
    Senator Booker. Thank you very much, Mr. Chairman. I 
actually really love this. I've been through three Supreme 
Court Justice hearings, and when you have 10 people come 
forward from all different backgrounds in America and people 
supporting a candidate and not supporting a candidate, it is 
always uplifting to me. And I have a lot of respect and honor 
for everybody on this panel. You all are great Americans who 
are dedicated to this country's highest ideals as you see them.
    And to give you example of why I'm so serious, I had, in a 
previous panel of a Supreme Court Justice I was dead set 
against, my constitutional law professor come in and be dead 
set for them. And I love this professor, still do, and I love 
him not just because he was a great professor, but also because 
he passed me.
    [Laughter.]
    Senator Booker. But--but I just want you to know, you may 
feel partisan tension in this room, but there is a lot of 
respect for the 10 of you who took time out of your schedule. 
Many of you traveled a very long way, and so I want to say 
thank you.
    Mr. President--Captain, my questions are for you, but if 
you don't mind, I'm going to take a quick minute to address the 
Congresswoman. I just want to say a couple things to her 
publicly that are really important. First of all, the 
Congressional Black Caucus, it has been one of the greatest 
privileges of my life to be a member. Too few Senators have 
ever been a member of that body. And I want to say publicly, 
because this is true, I tried for years to get on this 
Committee, and the Congressional Black Caucus advocated for me 
for years, went to Chuck Schumer and said, you need to get 
Senator Booker, not just because you haven't had an African 
American on there for a long time, but you guys saw faith in me 
that I could represent well here, and I just want to thank you 
for that.
    The second thing is just very personally to you. I had one 
the most difficult summers of my life last summer. You know 
this. My brother had a terrible stroke, and when you see people 
up here on this panel, you don't know what they all have been 
through. I did not know that the chairwoman of the 
Congressional Black Caucus had a horrific stroke at the age of 
50 that left her seriously debilitated, to the point where you 
could not walk. And your story at my time of family crisis to 
me--talk about tears. You were the one of the best people I 
spoke to by telling me your story, and I see you now sitting 
there, just is tremendous to me who you are and I--my depth of 
love and respect for you, especially showing up for me at a 
time I really needed it.
    Representative Beatty. Thank you.
    Senator Booker. Really quickly, sir. I love NOBLE. They 
were on my transition team to be mayor of the City of Newark. I 
learned from your organization, your recommendations to me 
about a city that was really struggling with crime. And I'm 
happy to see Honorable Marshall and others who have to live 
this life of knowing, confronting some of the ugliest parts of 
our country, which is what happens in communities that are 
struggling with high rates of crime. I want to say for the 
record because this often doesn't get said, Chris Murphy's book 
put this data point in there that there is as much gun violence 
in inner-city communities as there are in other low-income 
communities that might be rural and might not have the same 
ethnic diversity. So I don't want to pick on any communities 
here that are struggling with crime. Red States have high crime 
rates. Blue States have high crime rats. This is not a partisan 
issue. This is a human urgency.
    I have--I have shown up before ambulances at sites were 
young people have been shot. I've seen the horror and have been 
traumatized. And I have so much respect for police officers 
because of what they go through every single day on the brink, 
often in the gap between safety and not safety. I have seen my 
officers--I remember a shooting where my officers ran in, no 
situational awareness, upstairs to see woman who had committed 
suicide and had shot her baby.
    Captain Thomas. Mm-hmm.
    Senator Booker. And then they go back to work the next day. 
And so I just want to ask you, then I'm done, this one question 
because I know what's at stake. And here is a Supreme Court 
Justice to the highest court in the land, and there have been 
people casting aspersions that she may not be the Justice that 
would keep us safe. As a--as a person in this room, I doubt 
there's anybody more in this room right now that lives in that 
gap between safety and horrific violence. Why are you so 
confident, despite all the aspersions have been cast, that this 
person will be a phenomenal Justice for the safety and security 
of families in America?
    Captain Thomas. The safety comes along with the law 
enforcement that have presence throughout the United States 
now. The Supreme Court Justice is just going to make it more--
if it's something that gets before the Supreme Court dealing 
with law enforcement, they can make a difference, but we got to 
start at the local level with the law enforcement. So that's 
why my organization, NOBLE, is so important. We're out there 
discussing things with high crime, gun violence, but we have a 
significant program, the law in your community, and it starts 
by conversations to stop a confrontation.
    So everybody get involved. Get the chapter--we've got 50 
chapters throughout the Nation. We all try to get on the same 
page. The crime, it's going to continue, but we can make it 
better. We're trying to build trust back in the communities 
with law enforcement. That's our main purpose. Judge Ketanji 
Jackson, she knows about some of these neighborhoods. She grew 
up in Miami. Miami has a high crime rate. She said she saw it 
firsthand growing up. She saw it firsthand.
    So those decisions, when it comes to law enforcement, will 
be important because we all got to live here in America, but we 
can start making a difference today by that nomination and not 
just past the nomination. We talk about the Voting Rights. We 
talk about everything in this--I'm saying, I've been watching 
this confirmation hearing, man, since Monday. I was, like, man, 
I don't believe this because I never been through this. I 
thought this was a big history class, you know, and civics 
class. I remember civics.
    But she's going to make--she can make a difference, not 
only her, but she's got eight other associates on that Supreme 
Court team with her. They all got to sit down and talk and make 
this better together. One person's not going to solve this 
problem. One person's not going to make a difference, but she's 
got eight other Justices on the Supreme Court, and everything 
is going fine, people. America is doing a great job. I don't 
get caught up into the politics, the Democrats, Republicans. 
I'm just being honest; I don't--but I know it's needed, and I 
know we got to get things done, so everybody's got to work 
together. Everybody's got to work together. But we do need 
NOBLE out there in the communities nationwide, so if you need 
one in your city, contact NOBLE.
    [Laughter.]
    Senator Booker. Amen. Everybody has to work together. 
Chairman, thank you.
    Chair Durbin. Thank you, Senator Booker and Captain Thomas.
    The next up is Senator Hawley.
    Senator Hawley. Thank you, Mr. Chairman. Thanks to all the 
witnesses for being here.
    Ms. Serano, if I could just start with you, I want to say a 
particular thank you to you for the work--the incredible work 
that you do when it comes to human trafficking, child 
trafficking in particular. I know that you were 18 years as a 
Federal prosecutor handling child pornography and child 
exploitation offenses. Those are--those are terrible crimes to 
have to prosecute, and I want to thank you for doing that, and 
thank you now for the work that you do with Operation 
Underground Railroad. I mean, it's just incredible.
    I wonder if you could speak to us a little bit from your 
experience, as a prosecutor and now as someone who is working 
to combat this epidemic of human trafficking, child sex 
trafficking in this country. It's a global epidemic actually, 
but it's one, unfortunately, in this country, too. Can you talk 
to us a little bit about what you have seen in your experience 
about the connection between human trafficking and child 
pornography?
    Ms. Serano. So human trafficking is a--is a broad term that 
covers a bunch of different types of crimes, whether it's 
forced labor, et cetera, but within that, there's the sexual--
sex trafficking. And oftentimes, when you're dealing with sex 
trafficking of minors, part of the process is to break down the 
victim or potentially advertise the victim to sex buyers, 
traffickers, or folks create child pornography, which are 
sexually explicit pictures of children under the age of 18. 
Likewise, the flip side is if someone as a young child has been 
sexually abused as a child, perhaps they were victims of CSAM--
child sexual exploitation material--they may not have gotten 
the resources or aftercare, for example, that my organization 
provides, to get them the help that they need, and 
unfortunately, they've become very vulnerable to become 
trafficked. So it's kind of like a chicken and the egg problem 
where sometimes one will influence or increase the other.
    Senator Hawley. So let me--let me ask you this. In terms of 
the children who are exploited in these images, is it fair to 
say that--that many of these children were sex trafficked, that 
they are trafficking victims themselves?
    Ms. Serano. Of the ones that we can identify, sometimes 
yes. The children that are depicted in the child pornography or 
CSAM images, some of them are trafficked, yes.
    Senator Hawley. And what about the demand side of this, 
because, unfortunately, the reason that there is human 
trafficking of any kind, including sex trafficking in children, 
is because there's a demand for it. And does--in your 
experience, does child pornography help drive the demand for 
human trafficking and sex trafficking of children?
    Ms. Serano. It can, yes. An argument that I would routinely 
make before district judges in my district would be, you know, 
sometimes you have individuals who are looking at images online 
of child pornography, and then oftentimes that will not satiate 
their need for this material, and they'll go out and actually 
commit an offense. It's no different than you walk by--and this 
is a very simplistic analogy. You know, you could walk by a 
bakery and smell the sugary, you know, chocolate cake, but 
sometimes it gets to you so much, you go in and buy a slice. 
Again, it's simplistic. I'm not trying to make light of it, but 
that's a very simple analogy to explain it.
    Senator Hawley. Yes, thank you. Thank you for that, and, 
again, thank you for the incredible work that you do. Mr. 
Marshall--General Marshall, thank you for being here. You're a 
prosecutor. You have been--even before this role, which is a 
prosecutorial one, you were a district attorney. Let me just 
ask you, when you recommended sentences to judges, which you 
would do in your role as a prosecutor, did you base your 
recommendation on what you thought was necessary to keep the 
public safe?
    General Marshall. Senator, absolutely, and also the 
egregious nature of the facts that we were dealing with.
    Senator Hawley. So if you made a recommendation to a judge 
and that judge went 90 percent or more below your 
recommendation that you thought was necessary to keep the 
public safe, would you be worried about the effect that that 
might have in terms of endangering members of the community?
    General Marshall. Greatly concerned, not only as it related 
to the particular case but also the message it sends to the 
community about how we would hold individuals personally 
accountable for crimes they commit.
    Senator Hawley. So, in other words, if you have a judge who 
consistently sentences, let's say, in an area, let's say child 
pornography, below what the Government is asking for, what the 
guidelines are asking for, you're saying that the message that 
that sends is that you're not very tough on this, you're not 
willing to hold these people accountable. Is that--have I got 
that right?
    General Marshall. Absolutely.
    Senator Hawley. So let me ask you this. You said also, you 
know, you sentence based on the gravity of the crime. When it 
comes to things like child exploitation and images that exploit 
children, would you say that the more--if you have an offender 
who has thousands of images, that that's probably worse than an 
offender who has one or two, and that you might want to 
sentence that offender with hundreds and thousands more than 
the person who has one or two? Is that a fair thing to say?
    General Marshall. It's fair, and, in fact, it's been my 
practice. You know, somebody that has tried and convicted those 
who traffic in child pornography, I've had a chance to be able 
to see those images because one things that I also do is 
advocate for that child that is in that image that has been 
harmed as a result of what's taken place. And so not only do we 
want to be able to deter that conduct, but also we want to be 
able to be that voice for the voiceless in this case, and it's 
those children whose images are being trafficked.
    Senator Hawley. Because they often--I mean, the kids who 
have been trafficked, their images have been used. They often 
don't have anybody to speak for them, right? I mean, you come 
into court, the judge has got to do justice. In a way, the 
judge has got to do justice by them, on behalf of them because 
there's nobody to speak for them, and it's not like--they don't 
get to prosecute the case, right? A lot of times, we didn't 
even know who these kids are. We can't find them. We can't help 
them. So it's really up to the court to do something on their 
behalf. Is that fair to say?
    General Marshall. The court is the ultimate voice.
    Senator Hawley. Yes. I wish that Judge Jackson shared your 
perspective, General. Thank you.
    Chair Durbin. Thank you Senator. I want to apologize to 
Senator Hirono. I recognized Senator Booker, and she was next 
in line. I hope she will forgive me.
    Senator Hirono. I forgive you.
    Chair Durbin. Thank you.
    [Laughter.]
    Chair Durbin. Now I recognize----
    Senator Booker. Well, if you're asking for forgiveness, I 
was supposed to read something in the--in to the record, just 
to ask Senator Hirono. The NAACP Legal Defense Fund asked that 
we enter their report into the record. May I do that?
    Senator Hirono. Go ahead.
    Senator Booker. I would like to ask for that to be entered 
into the record.
    Chair Durbin. Without objection.
    Senator Booker. Thank you very much.
    [The information appears as a submission for the record.]
    Senator Hirono. Thank you very much, Mr. Chairman.
    Captain Thomas, NOBLE's support for Judge Jackson is a 
powerful counter to the false charge that Judge Jackson is soft 
on crime. I thank all of you for being here.
    Congresswoman Beatty, we all know that Judge Jackson is 
eminently qualified. Her character, her integrity, her 
humanity, her kindness, her fairness, her leadership, these 
were qualities that were apparent from a really young age. And 
I thank Mr. Rosenthal for telling us about what she was as a 
young girl. It's an incredible story, and I really enjoyed 
listening to you. Congresswoman Beatty, as you listened to 
Judge Jackson yesterday, especially when she talked about her 
experience at Harvard and the need for perseverance, I was 
going to ask you whether you could relate to that, but clearly 
you could and so could I. Do you think the message of 
perseverance is a powerful message, especially to Black women 
and girls in this country?
    Representative Beatty. First of all, let me just say not 
only thank you for the question, but thank you for your service 
and what you represent. I think it is an extremely powerful and 
needed message that we send out to little girls, all little 
girls, but specifically those who are of color. And I think 
what you saw yesterday builds for our children, grandchildren, 
and those yet unborn, because even today, we are fighting for 
things that we were fighting for in 1963, 1964, 1965, and 1968. 
So today could not only be landmark as we do this; it could 
propel us for the future that every little girl will then 
believe that she can soar.
    Senator Hirono. And believe me, as an immigrant for a kid, 
I can relate. It was a very touching moment yesterday.
    Representative Beatty. Let me just quickly say this because 
we talked about the rule of law. I think you also have to look 
at judicial temperament, and what you saw yesterday, beyond her 
talking about her early childhood, was her response to the 
tough questions, maybe, I think, some unfair questions. You saw 
judicial temperament.
    Senator Hirono. Exactly. Thank you. Dean Goluboff, we know 
that many of the Supreme Court decisions are unanimous or 
pretty close to that, but then we're seeing more and more 5-4 
or 6-3 decisions. And as I said, we have a very, in my view, an 
ideologically divided Court. And you were asked earlier what 
the impact of these kinds of split decisions, especially in 
areas of voting rights, LGBTQ+ rights, abortion rights, 
workers' rights, union rights. These are the most consequential 
kind of cases where we can expect more split decisions. Judge 
Jackson was asked repeatedly about her judicial philosophy, and 
she does have one. It has to do with her methodology. I wanted 
to ask you, do you think all of our Justices should view 
themselves as originalists?
    Professor Goluboff. I think every Justice has to read the 
Constitution as they think they should. I think they have to be 
committed to the Constitution and committed to the judicial 
role in the constitutional scheme. But I do not personally 
think that everyone has to have the same approach to the 
Constitution.
    Senator Hirono. I agree with you because, as an example of 
an originalist, if we were to follow Justice Scalia's view of 
originalism, we would not have same-sex marriage in our country 
because the Obergefell case would have been decided very 
differently under Justice Scalia's view of originalism, and, in 
fact, Justices Thomas and Alito, also originalists, and in 
their view. They've already signaled that they would like to 
revisit Obergefell. I think the LGBTQ+ community is very, very 
concerned about that.
    For Mr. Henderson--excuse me--thank you very much also for 
being here. You represent an organization deeply committed to 
protecting the rights and civil liberties of all Americans. 
What would you tell Americans who want to know if a future 
Justice Jackson will stand up for them and protect their 
rights?
    Mr. Henderson. Thank you for the question, Senator. Let me 
say, I begin first with Senate--Judge Jackson's preparation for 
the role that she hopefully is about to assume. And you've 
heard both in the days that she testified and again today how 
exemplary her credentials are, how she has prepared herself in 
a way that was really destined for this moment. She has the 
embodiment of fairness and judicial temperament. She brings a 
level of excellence and preparation, unparalleled in the 
appointment of Supreme Court Justices.
    There is a deep sense of commitment to fairness that she 
exudes, both in her writings as a judge but also in her daily 
interactions both on and off the court. There is a fundamental 
sense of inherent fairness that she certainly embodies, and I 
think all Americans and persons who are not American citizens 
but are in this country, are guaranteed that she will approach 
the Constitution with fairness and will approach the individual 
circumstances of the cases before her. I think that's all we 
could possibly ask a Justice to do.
    Senator Hirono. Thank you. Thank you, Mr. Chairman.
    Chair Durbin. Senator Padilla.
    Senator Padilla. Thank you, Mr. Chair. You know, over the 
last 3 days, we've heard over and over again, as we should, 
about the incredible qualifications that Judge Ketanji Brown 
Jackson has to serve on the Supreme Court, and I know I've 
touted them each and every day of this hearing myself. 
Hopefully you've seen me do it if you've been watching the 
hearings, and I'm going to do it again here in a minute.
    But before I do I'm going to explain why I'm doing it, why 
I keep doing it. It's because I do believe every American 
should know Ketanji Brown Jackson the judge, Ketanji Brown 
Jackson the person, and the fact that she represents the very 
best of our country; that's she's not just qualified, but 
extraordinarily qualified to serve on the Supreme Court of the 
United States. And because of her qualifications, and with her 
experiences--professional and life experiences--that she 
brings, she will make the Supreme Court better, and she will 
make our country better.
    So it is my sincere desire that for anybody watching these 
proceedings from the audience, here in this room, or from home, 
or online, if you take nothing else away from these last 4 
days, it's Judge Jackson's qualifications: a public school 
education followed by degrees from Harvard College and Harvard 
Law School, clerkships at the Federal district court, at the 
Federal court of appeals, and the United States Supreme Court; 
2 years as a Federal public defender; 2 years as a staff member 
of the United States Sentencing Commission and 4 years as its 
vice chair; three separate confirmations by the United States 
Senate, each time on a bipartisan basis, including two lifetime 
judicial appointments; nearly a decade of judicial experience, 
which is more than the combined total of four of the currently 
sitting Justices at the time that they were nominated; and, of 
course, the life experience as a Black woman, as a working mom, 
and so much more.
    But it's not just her resume background that makes Judge 
Jackson so qualified to serve on the Supreme Court. I've seen, 
we've all seen over the last 3 days how she answered every 
question and met every unfounded, unfair, and insulting 
accusation with a level of grace, dignity, and patience that 
very, very few of us would be able to demonstrate under similar 
circumstances. And she demonstrated that she's sharp and 
thoughtful in her responses to legal questions, and clearly has 
an understanding of and a commitment to the rule of law and the 
principle of equal justice. Now, based on her background, her 
experiences, and her qualifications, in my view, Judge Jackson 
merits strong bipartisan support from this Committee and from 
the Senate as a whole.
    My question is this, and I address it to Congresswoman 
Beatty and to Mr. Henderson. For those who are concerned about 
the politicization of the Supreme Court toward one end of the 
spectrum or the other, what would it say to the country if even 
someone with Judge Jackson's background, experiences, and 
qualifications cannot earn bipartisan support from the Senate?
    Representative Beatty. Thank you so much, Senator. I think 
it would be a sad day in America. As my friend and colleague, 
Wayne Henderson, said earlier, when we look at this 
confirmation, and we look at voting rights, and when we look at 
all the things that you are debating today, it is the 
fundamental grounding of our society and our communities. So I 
think today, how can you say, on both sides of the aisle as 
Senator Tillis looked at me and said he and his colleagues 
agree that she is exceptionally qualified. Then we have heard 
about the cases that have been brought before us that have been 
questioned by some of my colleagues on the other side--10 
cases, but it was five--but they were still within the rule of 
the law that she was given to deal with. So if you look at all 
the charts that we've seen with all the boxes to be checked, 
more than any other Justice that some of the same people here 
have voted for and confirmed when questions about cases in the 
same vein have appeared, she still is above all of them.
    So the answer to that question is, how can we not? And as a 
Black woman who lived through civil rights and everything else, 
let's send the right message. Thank you.
    Senator Padilla. Thank you. Mr. Henderson?
    Mr. Henderson. Senator Padilla, your question is so 
powerful, particularly after you restated, as you did so 
eloquently, all of the factors that have brought Judge Jackson 
to this moment. Her background is absolutely extraordinary, and 
her demonstration and mastery of the law is second to none. If 
someone, an American citizen, who has overcome the challenges 
in one's life that she has overcome, demonstrated her ability 
beyond any reasonable doubt, and is unable to get the 
bipartisan support of Members of this Committee, indeed it is a 
sad day for this country.
    The signal that it sends to American--the American people 
is that, at the end of the day, preparation may not be the 
standard by which you are measured, and, instead, something 
else intangible perhaps in this process comes through. That's 
not what we want for America. That's not what we in the Civil 
Rights Movement have struggled for our professional lives to 
help bring to this country. It would be a sad day.
    My hope is that the partisan considerations that may have 
affected some in the questioning of Judge Jackson will be set 
aside and that Members of this Committee, out of their love for 
the country, and its people, and the future of the Court, will 
do what's right and will make Judge Jackson a unanimously 
confirmed appointment. Now, I'm dreaming. That's not going to 
happen, but certainly I think sending a signal to the country 
that, indeed, we recognize the qualifications that she brings 
to the table and we lift them up in the name of the American 
people is something that I hope we can all do. Thank you.
    Chair Durbin. Thank you, Senator Padilla, and thank you to 
the panel. And I welcome all of you to this room, and thank you 
for your contribution to this historic occasion.
    I said at the outset, and I want to repeat now, my 
gratitude to my Ranking Republican Member, Senator Grassley, a 
true gentleman and friend who believes, as I do, that this is 
one of the most important assignments in a Senate career to be 
on the Judiciary Committee at this moment in history. I believe 
that the admonition of the Leader on the Republican side, 
Senator McConnell, that our hearing be fair and respectful of 
the nominee was largely upheld by the Members of the Committee, 
and I hope that we can continue in that vein.
    But before we close today, I want to mention those who have 
helped enable this hearing to run so smoothly. Gratitude starts 
with the officers of the United States Capitol Police. These 
officers keep Members and staff safe every single day, but this 
week we've asked them to take on a greater task: keep us safe, 
keep our building secure, and ensure that the guests in 
attendance play by the rules. I can't thank them enough for all 
the hours they put in toward that mission.
    I also want to thank the staff and the Architect of the 
Capitol, Senate Sergeant-at-Arms, the Senate recording press 
galleries, and others who worked so hard to set up this room 
and give access to the public and press and to keep this 
hearing running.
    Finally, a special thanks to the Committee staff, 
designated and otherwise, who have worked tirelessly on behalf 
of Members and staff on both sides of the aisle. I'll have more 
thanks to offer in the weeks ahead, but, again, my deepest 
gratitude to all who made this hearing a success.
    Please note the record will remain open until 5 p.m. next 
Thursday for the submission of letters, statements for the 
record, and similar materials.
    And with that, the Senate Judiciary Committee stands 
adjourned.
    [Whereupon, at 12:47 p.m., the hearing was adjourned.]
    [Additional material submitted for the record for Day 1, 
Day 2, Day 3, and Day 4 follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record

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