thank you, sir. >> dana: that was super interesting. before we go i want to mention national puppy day. canine companions. former producer here raises these puppies so they can help other people. she have has named this one dana. and isn't that super cute? happy national puppy day. "the faulkner focus" is next. here she is. >> harris: fox news alert. ketanji brown jackson facing another round of intense questioning this hour. senate republicans putting president biden's first u.s. supreme court nominee under a microscope asking her to defend her judicial record and give her own thoughts on critical race theory and the definition of a woman. that last one left unanswered pretty much. andy mccarthy fox news contributor and former assistant u.s. attorney coming up in "focus" on all of that.

russian tanks terrorizeing citizens in mariupol. vladimir putin obviously will do anything to take that city. ukrainian military and people who live there are defiant saying they will not surrender. and they are being killed in higher numbers now. i'm harris faulkner and you are watching "the faulkner focus". an intense barrage of russian air strikes transforming the port of mariupol into an isolated town of dust and debris. ukrainian president zelenskyy says 100,000 people remain in the city and as putin can capture it he can open a direct path for russian led forces in

crimea. president biden beginning his four-day trip to europe this hour. first to the home of nato in brussels. later to poland which has taken the most refugees from the war. he is reportedly expected to announce new sanctions targeting russian lawmakers, about 300 of them. republicans at home say things are not happening fast enough and that won't be enough. >> our posture should be to win, to help the ukrainians actually win. generally speaking the administration has tried to do the right thing but never soon enough and we need to step up the pace, not act at the speed of bureaucracy, and help our ukrainians friends as rapidly as possible.

>> harris: president zelenskyy of ukraine today spoke with japan's parliament laying out the brutality, the reality his people are facing. former u.s. ambassador nikki haley to the united nations is in "focus." mike tobin reporting live from lviv. we'll start with you. >> ukrainian ground forces report that they have made substantial gains through counter offenses particularly to the northwest side of the capital city of kyiv. yesterday they reported that

they had taken the town, which is directly west of the capital city of kyiv. they said they had taken a cluster of villages in that area as well. now sources say ukrainians are making gains in other areas in route to surrounding russian ground forces. >> these are near -- from the west of ukraine, from the north and behind. and there is a big bottle and from official sources with information right now there is a small city and almost all -- already in control of ukrainian soldiers. >> the siege of maier toll --

mariupol is not stopping. buses filled with aid were stopped and drivers and aide workers detained by the russians. another town that is shaping up as humanitarian disaster as a bridge into town has blown up is northeast of kyiv. trucks bringing food, water and medicine use that bridge to get in and out to the people there. the bridge is now gone. people there are more isolated. harris, back to you. >> harris: mike tobin getting us started with the facts on the ground and movement by ukraine's military. that was good news. mike tobin, thank you. while the ukrainian people fight to defend their nation white house national security advisor jake sullivan willing not say if president biden believes ukraine can win the war. watch. >> does the president believe that you ukraine with win a military victory? >> russia will never take ukraine away from the ukrainian

people. >> it should eject russia and regain sovereignty. >> we've said from the outset we are unwavering in our commitment to ukraine sovereignty within the recognized borders of ukraine. we remain committed to that as our proposition for this. >> harris: nike haley former u.s. ambassador to the united nations is in "focus" now. i want to start first with this idea of winning. we heard mitch mcconnell say win should be the objective. yet the white house will barely say the word. the president won't indicate to us whether or not that's the goal. are we stuck in a quagmire of messaging right now? >> good morning, harris. this shouldn't be that hard. winning is hugely important at this point. you aren't just winning for ukraine but for freedom. you are winning for sovereignty and we have to do this. we have to commit and this goes

back to the fact the biden administration has slow to react, slow to speak, slow to act, all of those things. when we should be in front of this. we should be stopping things before they happen. we should be preventing war. we should be preventing invasions and we should be making sure the world knows that we will stand for freedom every time it is threatened. >> harris: we better get with it. china is looking at taiwan. here is a follow-up. what is a win? what does that look like? >> well, i think we need to get russia to move back, right? is that going to happen quickly? no. what's really important, i do think it's important that biden is going to europe and speaking with nato and the e.u. and g-7. that will be hugely important. what does he talk about? they should absolutely talk about getting ukraine what they've asked for, those planes. make sure they get the planes from poland. help poland facilitate that. let's get it done. the second thing is get them

the humanitarian help they need. they are fighting hard and make sure they get food, water, aid so they can continue to keep their strength. thirdly, we have to have a strong conversation with our european brothers and sisters about how they become independent from russia when it comes to energy. we have to talk about liquefied natural gas and got take talk about how we can do it quickly and lastly, they have to make sure they talk about one, how they are going to prevent chemical weapons from being used. because you shouldn't assume that's not going to happen. you make sure that happens and secondly how you deal with china. china is helping russia and we need to be part of that. >> harris: there is breaking news that i want to get to on that and that has to do with -- our reporter gillian turner bringing this into the newsroom. nato wants to send ukraine cybersecurity weapons. a quick reaction to that and we'll move on. >> very important.

we should absolutely do it. we shouldn't wait. the second putin already started talking about labs in ukraine, we've seen this movie in syria where they go and say that and then the next thing you know they use chemical weapons. they use it when they can't get past the resistance and it wipes out a group of people. we absolutely have to prevent this and that means they need to be sending that and including our intelligence. we should be sharing intelligence with the ukrainians so we can let them know when this would be used and where it would be used. >> harris: realtime intelligence is what you are talking about. ambassador. you were speaking about the trip to europe. and maybe showing people what it could look like to live without russian energy. we could lead the way in that. i don't know if that's what the president meant but here is what he said about a new world order. >> president biden: we are in an inflection point, i believe, in the world economy, not just the world economy, in the world. it occurs every three or four

generations. now is the time when things are shifting. there will be a new world order out there and we have to lead it and we have to unite the rest of the free world in doing it. >> harris: what is he talking about? >> i don't know what he is talking about but i can tell you we need to lead the world. we need to lead the world to make sure that we are not -- that none of our allies are dependent on enemies and that includes europe. they need to make sure they are not dependent anymore. germany needs to look at restarting the nuclear plants that they just worked on shutting down. we need to look at exporting liquefied natural gas and make sure they are all energy independent. poland and lithuania are getting it from australia. we need to look at our allies and say how do we help you get off it and double down. we need to double down on fracking and double down on everything we need to do as a country to make sure we're energy independent as well.

>> harris: thank you for being in "focus" today. more news coming up. i look forward to having you back. ukrainian president zelenskyy accusing russia of seizing 15 rescue workers, kidnapping rescue workers now who were trying to get desperately-needed food and supplies to mariupol. they were apparently taken hostage about 12 miles outside of that critical port city. this as the united nations says more than 3.6 million people have fled the nation. 10 million more than a quarter of the total population, 40 million there now more than a quarter are displaced roaming around the country trying to figure out how to get out. either they got out or trying to get out. they had to leave their homes. the white house is expected to unveil a plan that would make it easier for ukrainian refugees to enter the united states now. we haven't taken very many of them. we have a fox news contributor

former army special ops intelligence officer in ukraine working with project dynamo rescue operations sending former u.s. service members to help out with evacuating trapped civilians. so glad we could check back with each other. good to see you. tell me what is happening on the ground. >> thanks. from the humanitarian perspective russian shelling on civilians continues. 10 million people are displaced. 3 million refugees have already fled the country and russians continue to use attacks on civilians as their weapon of choice. they aren't gaining the tactical ground they need against ukraine forces. they are trying to demoralize the populous. heavy fighting in hot spots like mariupol have seven russian trips bombarding the city with artillery fire. 100,000 civilians trapped there.

no stocks of food. people are drinking water from sewers to survive. american led groups like heart rescue.org are pushing humanitarian aid driving through enemy lines which is very difficult. russians are heavily targeting media and other information outlets. activists providing accurate news information on the ground that is showing the true nation of russian war crimes. troops kidnapped a french journalist working at a radio station and tortured him and men -- even near my location in ukraine they attacked a tv station with a long distance rocket and hit the tv tower to knock out local news. they want to cut information. they think that nobody should know the local situation here so it puts people in panic. putin doesn't want people his

own citizens to understand what's going on here. >> harris: you and i have talked about the importance of special ops and people being near the journalists and other civilians. it's critical. you have the ability to help protect them. in fact, the media play a huge role in how some of you are doing that and even this show, "the faulkner focus" don't want to put that light on us but it is an example that you have told us about. can you tell the audience? >> well yeah, i think you are talking about the 82nd airborne fortunate to play a role there. there are a lot of refugees that have gotten out. but now inside here you really have three categories of people. ones who accepted their fate no matter what the cost and staying. the ones waiting in safer areas to see if russia continues its push west in which case they'll leave and the ones who waited too long the leave stuck behind

russian lines in areas and trapped under artillery fire from both sides. they are taking fire from the ukrainians as well and a veteran of the 82nd airborne who served in vietnam and panama and his wife fell into that last category. they waited too long because bob stayed to protect his wife. he is the essence of an american hero. his home is surrounded on both ends of the streets by russian tanks. hiding in his basement for weeks and his neighbor ran out of water and left to try to get supplies and shot by russian troops. despite the risks bob was text messaging us at all hours of the day providing realtime intelligence information on russian tanks, troops, order of battle risking his life to pass us this critical information. the incredible team of dynamo figured out a way to get him out into poland where he remains now. what hasn't been said about this story and what i want you and your viewers to know you all played a role in this.

i was on your show last week and because of that i was contacted through facebook by veterans in the 82nd airborne. ifm owe a veteran of iraq myself and in contact with bob. they immediately put me in touch with me. without you and your viewers we wouldn't have known who bob was and might not be alive today. his home was bombed shortly after he got out. this is why we're here for the bobs of this world. reach out to me directly and we'll try to get others help out there. reach out to groups i'm supporting. we need more ambulances and supplies. we'll take all of it and it will go to the front lines of this war to the people who need it the most. >> harris: that's helpful information. the listing that you just gave and apparently people are watching and heeding that and able to help you help others. thank you for sharing that. i didn't know all of the

details of it until just right this second. but glad to play a part in any way as an american. brett, thank you, stay safe. we'll continue to check back. it is amazing bravery you show talking to us. every time you go up you are a target. be safe, my friend. >> appreciate you, harris. >> harris: skyrocketing inflation and agonizing gas prices under president biden have democrats feeling the heat is on them as the mid-term elections approach. and then there is this. >> i'm not questioning her integrity. i don't think she uses her judgment very well. >> harris: republicans staying civil but not letting the supreme court nominee off the hook. they continue to press judge jackson on her record on everything from critical race theory to sentencing that she has done in the past in child

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>> harris: state of louisiana is sending 300 national guard troops to the new orleans area where a twister delivered a direct hit and stayed on the ground for an unimaginable five minutes. the st. bernard parish president says a little girl on a ventilator was rescued from a house that had been picked up by the funnel win and transported and dropped to the middle of the street. another storm system included tornadoes killed a woman south of dallas as that system moved through texas and oklahoma. thousands of people without utilities today in those states.

fox news alert. day three of ketanji brown jackson's confirmation hearing for the u.s. supreme court court. judge jackson is defending her record. her history on soft on crime sentencing and her work on defending gitmo detainees. this exchange is getting a lot of attention. >> can you provide a definition for the word woman? >> i can't. >> you can't? >> not in this context i'm not a biologist. >> 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. >> harris: there are a lot of issues that are going on right

now. david spunt is live at the justice department and david, what i think they were going there is senator blackburn of tennessee these initiatives that could reach the court having to do with professional sports, ncaa. lia thomas is beating the women who is transgender and whether there should be a play, separate but equal place for transgender athletes. that could be where it is going. >> that's right. of course, not only will it come before the supreme court, any time when judge jackson, if she is nominated to be on the u.s. supreme court, right now they're in a 15-minute break. questions began two hours ago today and it opened up immediately with a fight between republicans and democrats over procedure. republicans were accusing

democratic judiciary chairman editorializing and defending jackson after each republican questioner. listen. >> i want to join my colleague, senator cornyn. i don't think it's appropriate, mr. chairman. >> it is chairman's time. it is exercised by senator lindsey graham and senator grassley. >> they didn't do it the way you do it. >> i will allow you to be heard and i want to be heard without interruption. >> the favor of the temperature of the hearing early today. to the business of judge's responses questioning in 9:00 a.m. yesterday harris that ended after 10:00 p.m. last night. republicans are accusing the judge of being soft on crime, specifically with child porn offenders. she once sat on the u.s. sentencing commission. yesterday senator ted cruz highlighted a handful of cases, noted her sentencing decisions were far less than the guidelines. senator josh hawley did the same thing asking about a

specific case of a high school graduate jackson gave three months behind bars. >> the government said he had 600 images, gobs of video footage of these children but you say it does not signal a heinous or egregious child pornography offense. help me understand that. >> it is heinous, it is egregious. >> she said the senators don't get the full picture of the evidence and she is propped up by the national fraternal order of police who endorsed her. >> harris: fox news contributor and former assistant u.s. attorney andy mccarthy is out with a new op-ed. ketanji brown jackson reveals a lot questions she won't answer. let's start there. what did you see and hear that

left you, well, wondering why you didn't get answers? >> well, i don't wonder why i didn't get answers, i just think that we learned more by what she chooses not to answer. i'm not surprised because i think if she honestly answered that her judicial philosophy is that she believes that we have a living constitution, that judges can change on the fly, that would not be a popular answer. that might put some of the votes at least in the senate at risk. so she is going out of her way not to answer the major questions. the major inquiry in any supreme court confirmation hearing, any judicial confirmation hearing is how the judge will approach the law. that's the one she won't answer. and i think it's very interesting that every time they mention philosophy, she changes it to methodology and goes on to say she has developed with methodology where she looks at what the

parties are arguing and looks at the facts of the case and looks how to apply the law to the facts. the point is what we need to know is how you determine what the law is that you are going to apply to the facts? that's what she won't tell us. >> harris: that's really interesting the nuance with those words because they're absolutely not interchangeable philosophy and methodology. i do want to get to this woman issue. the one thing that struck me when she struggled with well, i'm not a biologist so on and so forth is she not keeping up with the headlines and where people are? you see a falldown in that across the board among some democrats when it came to the parents and school and the issues there. what are your thoughts on how prepared ketanji brown jackson should be for transgender and women issues? >> well, you know, she would have had a very good reason not

to answer that question, harris, if she had simply come out and said this is a very hot button issue, there could be litigation and title vii and ix litigation. to not give the definition of a woman you think they might have discussed how she would answer that question when it came up. i'm sure it rubs people the wrong way. i didn't spend seven years at harvard, i grew up in the bronx so i think i know what a woman is. maybe if you spend seven years in harvard you come out different. >> harris: we have senator graham coming up now and we have seen a couple of times where -- we'll take that live. we've seen a couple times where we dipped into the hearing and taken some of the flash points live because how republicans push her is not being looked at in terms of their act men as questioners. the words racist come in, a lot

of things on the way that they ask the questions now are making news on some networks. >> i think, harris, i must say i've been pleasantly surprised by how much information we are getting in the hearing. i pointed out that there are areas that judge jackson won't answer but for the most part she has been pretty open about the questions -- about the answers. i think the republican senators while pressing her on hard areas, they've done it in a very civil way. it has been to my mind a very high-minded exchange. i think when she gives answers that seem like they are fumbles they present it as if she has gotten really tough questions. but for the most part it has been very civil and interesting. >> harris: and different as republicans have said and heard you say it, too, in terms of

how democrats treated amy coney barrett when she was the nominee. andy mccarthy, always good to see you. inflation is surging. gas prices, electricity, food prices hitting american's wallets. federal reserve chairman jerome powell says it could take years before we get back to some form of normality. >> inflation outlook has deteriorated significantly even before russia's invasion of ukraine. the rise in inflation has been much greater and more persistent than forecasters expected we'll be looking to actual progress on these issues at not assuming near term supply side relief. i believe these policy actions and those to come will help bring inflation down near 2% over the next three years. >> harris: that was almost a wagging of the finger to president biden. you heard the part about this started before putin's war. that's what everybody except biden and the white house has

been saying. they claim inflation is the biggest concern of the nation's voters at the moment barring some enormous entirely unforeseen event inflation will remain the voters' biggest single concern in november. the national average for a gasoline gallon is north of $4 and in los angeles that average is more than $6. i'm out here now doing the broadcast from here working on a special project for fox and i'm seeing $6.99 is the baseline. in fact, yesterday on the cusp of beverly hills and west l.a. where you have a predominant worker-based employee-based type of people who are in the city most of the day in beverly hills working at restaurants and doing that they have to pay these high prices, $7 a gallon nearly and if you want somebody else to pump it for you it is $8.04 for diesel. in "focus" now house minority

leader kevin mccarthy of california. you have definite thoughts how this is affecting americans and how it may get worse. >> it continues to get worse because of the democratic policy. you had the fed chair admit it is not about putin. this started when the democrats had one-party rule in washington first thing they did was spent $2 trillion. they paid people. had government pay people not to work. raising the price of what it costs for small businesses to survive. then you watched their action about crime and others building within the street. you watched what they did when we were energy independent. they attacked. the strength of the country is not just your military, it is whether you have an economy that's strong. going after energy actually made us weaker in the process around the world but added to inflation. the thing people don't quite understand oil doesn't just go into your car. ist goes into your clothing, the purchase of your phone and goes into the print on a box. it raises the prices on

everyone. you are right about the price of gasoline. i just paid $6.59 a gallon to fill up our car. it is every single day the price goes up while these democrats are in power. >> harris: part of the reason i took the picture on the edges of beverly hills. people think of those as affluent areas because they are. this is one of the single gas stations for people who work in that area and leader mccarthy, we know that most of them don't take public transportation the way we do on the east coast. you know this. so that means they're hopping in their own cars to get to areas sometimes more than an hour away to travel into beverly hills. they will gas up at some point and pay that high price. it hits everyone. a quick question, though. i was reading here that there is a gas tax of 75 cents. who can pay that? >> yeah, well the democrats continue. it is not just joe biden, it is

all the democrats. gavin newsom when he took over as governor lowered the production of oil in california by 20%. 89,000 barrels a day. but he has taken in 50,000 barrels a day from russia. the number one importer of oil is ecuador to california now. we could actually be energy independent because our sole or wind but more importantly what we can produce. he has gone after this with executive orders and others. he did the same thing joe biden has done. 100% correct. beverly hills is an affluent area but those who work there drive miles. california is expensive to live. it hurts everyone in california. we don't have mass transit. we aren't like an older city created and has all the population in one place. in the west you have to drive and who it hurts the most are those with lower incomes but because the price is so high it hits all incomes. there was a recent study just because joe biden is your president with inflation and gas it will now cost you $6,000

more dollars. nobody can afford that. that's what is hurting and why we have to have a change. >> harris: you have extrapolated out what we've been telling people the monthly pain will be. when you look at that total price you would have to have a pretty healthy tax cut to even begin to give people some relief. you know democrats don't like to talk about that. let me get to this. critics are accusing the biden administration of mixed messaging, imagine that, on the potential of russian cyberattacks on the united states. first up this from the f.b.i. director christopher wray. we'll watch this together. >> with the ongoing conflict raging in ukraine we're particularly focused on the destructive cyber threat posed by the russian intelligence services. >> most cyberattacks don't just happen in an instant. there is activity that leads up to it. there is scanning and researching of victims, scanning for vulnerabilities in systems. the whole range of preparatory work which is what we've been

seeing. >> harris: those remarks coming after the f.b.i. has been seeing hackers associated with russian internet addresses. scan the networks of five u.s. energy companies. president biden is urging businesses to shore up defenses. >> we have not seen any evidence of wide scale or very targeted efforts at u.s. firms. the fact that we have not seen it yet should be a reason for vigilance and for action, not complacency. this threat is real and that was what the president tried to underscore. >> harris: congressman mccarthy, your response. >> this is what makes me so mad about this administration. don't tell us there is a threat. we know there is a threat. tell putin he doesn't have the right to do it. remember when president biden said at a press conference in the white house that if putin just look a little of ukraine it wouldn't be that bad?

gave him the wrong message. when president biden said these are 16 companies putin cannot go after. what he should say to putin is don't go after any american company. if you do there will be consequences. >> harris: we have to get back to the hearing. breaking news, congressman mccarthy we'll bring back. senator lindsey graham. >> i wish you had that same attitude when an african-american conservative is appointed to a high office in the judiciary. so what happened with january is rogers brown? in 2003 she was an african-american nominee for the d.c. district court. 54 years old. older than you. but pretty close. she was a 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's 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 two years to stop her nomination. and we eventually did the gang of 14, of which i was a part, so she could make it through. after two 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 five years on the california supreme court. we're not going to live in an american like that any longer. to my democratic colleagues, if you are a person of color, a woman, supported by liberals it's pretty easy sailing. if you are 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. 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? >> thank you, senator. under our laws, you have to be a citizen of the united states in order to vote. >> so the answer would be no? >> it's not consistent with our laws so the answer is no. >> why did they do that in new york? >> senator, i'm not aware of the circumstances. >> that's a good answer. the answer is no. can an unborn child feel pain at 20 weeks in the birthing process? >> senator, i don't know. >> are you aware of the fact that anesthesia is provided to the unborn child at that time period if there is an operation to save the baby's life because they can, in fact, feel pain. are you aware of that? >> i'm not aware of that. >> that may come before you one

day. 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 facts and call them as you see them, is that right? >> that's correct. >> you look at the statute as the way it's written and you try to apply it in a plain way. >> that's correct. >> have you heard of a case called make the road versus makalen. >> yes. >> make the road in new york. who are they? >> make the road new york is a nonprofit that represents various individuals in the sort of immigration law field. >> they are a nonprofit advocacy group for immigration issues. did you know they received

large donations from the arabella network and george soro's network? >> 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. for expedited removal. >> asylum cases don't fall into this category, right? trust me on that. the statute says it doesn't. >> 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 -- they can be determined to qualify for regular removal rather than expedited removal. >> expedited removal is a creature of congress, folks, and if you've been here two years or less, the statute -- the statute -- 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 two 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 two years or less under the expedited removal statute. is that a fair summary? >> well, senator, i would say it differently. >> say it differently. >> all right. the statute that you have put up indicates that congress is giving the department, it says the attorney general but now it's the department, the ability to determine what category of aliens -- >> two years or less. >> yes, but importantly the authority was -- it was not congress saying two 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. >> which is two years. >> but what, what i'm trying to explain is that the authority given to the agency was to determine what length of time. the length of time. it was not the authority to deport everyone who has been here for 24 months. it was the authority to determine what length of time a person had to be here in order to be subjected to expedited removal. >> here is what the statute says. attorney general, which is actually the dhs secretary, may apply 1 and 2 of this sub paragraph to any and all aliens described as designated by the

attorney general, 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 tried to strike it down. you ruled for them. here is 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 statutory bounds to the secretary's independent judgment. the forceful phrase sole and

unreviewable exception is exceptional terms. such designation shall be in the sole and unreviewable discretion of the attorney general and may be modified at any time. so 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 have quoted just a minute ago, there could hardly be a more definitive expression of congressional intent to leave the decision about the scope of removal within the

statutory bounds to the secretaries independent judgment. that to me is exhibit a of activism. let's go back to the child pornography cases. >> senator, would you allow me to -- >> yes, please. >> thank you. the statute and the circumstances that you reference are accurate insofar is that is what the statute says. it is not all of it. it doesn't describe the designation process 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 is also d.c. circuit case law 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's other directions regarding how to exercise the discretion. >> that argument fell on deaf ears. >> understood. that's our appellate process. >> you have an given an explanation but it didn't work. the d.c. circuit court said there could hardly be a -- this is as good as it gets. there is no way to write a statute saying discretion lies in an agency. the sole none reviewable. so you are not convincing me 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 are 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 and sexually compromising situations? >> senator, i am not aware of the numbers but i have seen the images in my role as a judge. >> let me tell you the numbers. in 2021 the center for missing and exploited children received 29.3 million reports containing 85 million images videos and other files. that's in 2021. it's up. in 2019 it was less. so there is 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? >> 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. >> in two areas that you said you disagree. what are those two areas? >> 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. >> would you now agree with me that computers are sort of the venue of choice for child pornography people? >> yes. >> 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? >> senator, this crime is among the most difficult, most >> would you want to deter people from going down the road abusing the computer that allows these people to have access to millions of photos because of the technology? i want those people deterred. if you are listening to my voice today and you are on a computer looking at child pornography and 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 overtime because people use computers. didn't you also say that the number of images should not be considered as a sentence enhancement? >> 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 -- >> you think it is a bigger deterrent to take somebody who is 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? >> i didn't say versus. >> that's 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 as a whole of children being exploited and abused every time somebody clicks on is to put their ass in jail, not supervise their computer usage. >> i wasn't talking about versus. >> you just said you thought it was a deterrent to supervise them. i don't think it is a deterrent. i think a deterrent is putting them in jail. >> would you let her respond? >> does sentencing have a deterrent component. >> yes, it's one of the purposes of punishment and congress has directed courts to consider various means of achieving deterrents. one of them, as you said, is incarceration. another, as i tried to mention,

was substantial periods of supervision once the person -- >> if your view it's more of a deterrent to have somebody substantially supervised in terms of their computer use who is looking at child pornography than it is to put them in jail? >> i'm not saying it's more or less. >> that's exactly what you are saying. >> what i would like to point out is that if we are 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. >> one of them is enhanced punishment by using a computer. >> the enhancement with respect to using a computer relates to the penalty in terms of incarceration. >> and you would choose not to apply that in these cases. you have said that.

you have decided not to apply this use of computer as an enhancement. you have also said you won't hold the number of images that the person has looked at as a sentencing enhancement factor, is that true? >> no, it's not the number of images the person has looked at. we don't have that information. it is the number of images that they have either received or distributed >> we don't know if we looked at them but you won't hold it against them that they received 10,000 images versus 100? >> that's not what i've said zbloo. here is what you have said. i have decided to apply my general policy disagreement with respect to those enhancements. at least that is to computers and the number of images. what she is saying, the reason she is 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 do this filth. 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 have made a conscious decision to disregard those two enhancements. sentencing factors and i think that's 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 have lived an incredible life but one thing that won't happen to you as we wrap this up. how would you feel if i 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 accusations, how would you feel about that? >> senator, i'm not sure. i don't understand the context of the question. >> did you watch the kavanaugh hearings? >> no, sir. >> are you familiar with what happened there? >> generally. >> your time is up. >> please, mr. chairman. so to be honest submitted in 47 -- she filibustered every question i have and she has a right to give an answer. you were here here for brett kavanaugh, she's confused about what happened, some people in the other side had an accusation against judge kavanaugh that during high school he sexually assaulted somebody. the rest is history. that was known to the people on