♪♪ hi there, i'm chris jansing live at msnbc headquarters in new york. it is tuesday, march 22nd, and it is an historic day, because in just moments, it's the start of what's largely considered to be the most pivotal day of confirmation hearings for supreme court nominee ketanji brown jackson. what could be a grueling line of questioning from the senate judiciary committee as democrats press to quickly confirm the first black woman in the court's 233-year history. we will simultaneously keep a close eye on the war now day 27

of russia's invasion of ukraine, a country where president zelenskyy says some cities have now been bombed beyond recognition. so, we'll have any updates on the ground throughout the morning for you. but our focus this morning is on capitol hill. judge jackson will soon face 30-minute rounds of questioning from 22 senators. we do expect potentially some fireworks, previewed by republicans' opening statements yesterday, but they're also facing someone who has successfully navigated three confirmation hearings before. she is an accomplished orator, dating all the way back to her national championship in high school debate, so as we wait for the questioning to begin, any minute now, let me bring in my incredible panel, nbc news senior national political reporter kapur is live on capitol hill. neal katyal is a former acting solicitor general and former law clerk for stephen breyer, also a professor of law at georgetown university. as we wait for them to start, animal, some republicans clearly

signalled yesterday they're ready for a fight, but ketanji brown jackson is not only experienced, she's had intense practice sessions, so intention, i think they're sometimes called murder boards. what are you watching for today? what does judge jackson need to do? >> yeah, chris, i've been involved in murder boards in the past for other nominees, and you know, i think there's -- it's very hard to find a nominee as qualified as judge jackson or, frankly, as savvy in answering questions, and so you've got to feel bad for the republicans. they signalled yesterday that they are vehemently opposed to her. they're just not sure why. they don't actually have a reason. let's hear today what they're going to say. i suspect it will be along two areas of inquiry. one, you represented criminal defendants, including a guantanamo detainee, how dare you. and two, there's a smear of josh hawley saying she's soft on child pornography. those claims have been utterly destroyed by conservative commentators, even fox news yesterday called it a smear, so

i think the republicans are struggling to find something here besides the fact that she's a democratic appointee. >> let's see how far outside the facts they're willing to go. as we wait to see the opening of this by senator durbin, set the scene for us. what's the mood like on the hill, and how are you expecting today's hearing to play out? >> chris, we are getting ready for a long and tense day at the judiciary committee. there are 22 senators on this committee. all of them are beginning to get to question judge jackson for 30 minutes each. this is expected to go on for at least 11 or 12 hours and we're likely to get a second round tomorrow. judge jackson had to sit there patiently and watch these senators say all sorts of things, positive and negative about her, yesterday. today she's going to get a chance to respond and we got a series of clues about what they're going to ask her about. they will ask her about her judicial philosophy and her record. is she an originalist? does she believe in a living constitution? does she describe her approach to judging and the law

differently? they're going to try to pin her down on a variety of hot button cases, gun rights, abortion rights, one senator brought up the 1965 contraception and privacy case. do not expect her to reveal much on this. the trend over the last several decade is that judicial nominees say as little about these cases, simply say they will consider the facts when it comes before them, that it would be inappropriate to prejudge potential cases. then there are political questions that she's going to keep and i would keep my eyes on a trio of republican senators who are known to have presidential ambitions, josh hawley, tom cotton, ted cruz, they telegraphed yesterday they will ask her not only about supreme court expansion, which she will punt, say that's a job for the legislature, for congress, not for judges, and she's correct about the law and what the constitution says on that. they talked about immigration, catch and release, the southern border, issues that she doesn't have a direct bearing on as judge. they talked about crime as well. ted cruz talked about rising crime rates. so, i would expect her to get asked about that and finally, a

number of republicans suggested that they're going to ask her about her supporters. outside liberal groups that are backing her and the views of those groups, it's not clear how far they're going to get here. democrats say this indicates an air of desperation among republicans, maybe an air of inevitability she's going to get confirmed. she does not need a single republican vote on that committee or in the full senate to get confirmed. it's a 50/50 senate. as long as the democrats stay unified, they do not need bipartisan support but they would like it. i would not keep my eyes on those republicans but other republicans outside that panel such as susan collins of maine sounds positive, senator mitt romney as well, even though he voted against her for the d.c. circuit. we'll find out how contentious this is going to be, chris. >> i want to bring in anchor of "the beat." hey, ari. let me pick up on the three republicans who may have

presidential ambitions and this intersection between the law and politics and the fact that they signalled yesterday, among others, that they're going to be talking about some of those cultural hot button issues. they're going to be focusing on crime. what are you looking for from republicans? >> i think that's a great question, and we're watching it here just over my shoulder. we can see the folks coming in. most of the senators already in place. and as you mentioned, senator hawley in particular is laying out an argument that he thinks this judge is somehow soft on crime. there's plenty of pushback to that, and i think the question today is, do they land a punch? do they land a glove on any of those issues or is the judge able to parry? for example, we saw it previewed yesterday, with several cases invoked. we didn't hear the judge's response yet. she may have factual discussions, explanations for the sentencing in those individual cases. a good rule of thumb for these hearings is, we'll hear a lot more from the judge, when she's asked about things in the past than the future or hypotheticals under the so-called ginsburg

rule, many nominees in both appointed by both parties' presidents have been able to say, i'm not going to answer that if it's about the future, for example. a future case, future criminal sentencing. so i think hawley has been big on that. ted cruz was talking about the administrative state, who has rights to decide things. anything from covid rules to medical regulations to safety regulation, a lot of discussion there about, well, wait a minute, shouldn't the people, not that other branch, judges, be the ones making the call? so we're going to look for those kind of questions and see how the judge parries those things as we watch her walk into the room. >> that is ketanji brown jackson being met by some of the folks there. let me ask you, neal, since you've been involved in the preps and the murder board, and i might have to interrupt you, but what do you think it means to have them -- let's listen. >> come to order. good morning, judge jackson.

welcome back to you and your family. >> good morning. mr. chairman. >> this second day is known affectionately by a term of medieval justice known as the trial by ordeal. this will be your opportunity to speak, but each member of the committee has 30 minutes to ask, and i know that they are 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. president lincoln learned gettysburg that 275 words were enough. so, i hope my leagues and friends will stick to the 30-minute guideline. i'll 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 liberal, is it

conservative? lo and behold, i've discovered the answer. it turns out that during the course of your time as a judge, you have actually had 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 fourth time, is delving into everything that you have 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? >> 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 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, 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 have 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, threshold matter in every federal case is 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 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's 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 a -- 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 enough to be confirmed, there's stare decisis, which is a binding kind of principle that the justices look at what they're considering precedents. so all of these things come into play in terms of my judicial philosophy. >> another issue which has come up to my surprise, and i have 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. that question on court packing was posed to amy coney barrett, 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 wouldn't have a separate set of rules for republican nominees and 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? >> 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 to political issues and certainly not a nominee for a position on the supreme court. so, i agree with justice barrett. >> 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 nonproduction 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 policy maker. 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 have had on you personally to know that your daughters, your husband, parents, family and friends were hearing the charges

that your implementation of this law, sentencing, endangered children. could you tell us what was going through your mind at that point? >> 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 this sickening and egregious crime. the statute says, calculate the guidelines, but also look at various aspects of this offense and impose a sentence that is, quote, 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 sentencing.

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 in to me as a judge. i tell them about the adults who were former child sex abuse 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 infant. and the one that was the most

telling to me that i describe at almost every one of these sentences, 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. >> 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 the one case, the hilly 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 are 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 nine or ten, 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? >> 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 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 offense. >> 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 that 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% of nonproduction child pornography offenders received a sentence within the guidelines' range. fewer than 30%. between 2015 and 2020, in the d.c. district court where you served, judges imposed below guideline sentences in nonproduction cases 80% of the time for the reasons you've just explained. judges in missouri, the home state of the senator who's criticized your record, did so 77% of the time. one particular judge whom the senator supported to become a federal judge by appointment of president trump, unfortunately, has 77% record -- i'm sorry. i want to make sure this is accurate.

here it is. in the united states versus clyde, trump appointed judge sara pitly, the senator's choice for the eastern district of missouri, sentenced an individual to 60 months, well below the 135 to 168-month sentence recommended by the guidelines. she appears to have run into the same issue or 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? >> 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 would 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. >> judge jackson, we have 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. and then judge roberts said during his confirmation hearing, it's 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, chief justice said, who represented the british soldiers charged in the boston massacre. this sentiment 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 has had on you personally in terms of your rulings on the bench. >> 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 defenders 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 repg. 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 executives' 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. >> 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 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. the -- 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 inincarcerated at that time. i came to this committee in an effort to i think chat, negotiated a revision of that measure from 101-1 to 18-1 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? >> yes, senator. as you mentioned, the sentencing commission is a very diverse

group of people who have 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 in 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's changes, and the need to avoid

unwarranted sentencing disparities, which is exactly the charge that this body has given to the commission. and we work 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. >> thank you, judge jackson. senator grassley. >> thank you, mr. chairman. welcome again to our committee. i got home last night about 8:00. the first thing i heard was my wife's opinion that you did very good in your opening statement. >> thank you. >> she didn't have anything to say about my statement. 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 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? >> yes, senator. >> okay. do you believe the individual right to keep and bear arms is a fundamental right? >> senator, the supreme court has established that the individual right to keep and bear arms is a fundamental right. >> could you tell me how you

might go about deciding what a fundamental right is under the constitution? >> 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 14th 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, 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. >> okay. on another subject, kind of personal to me over a long period of time, and about half of this committee, but it's a controversial issue 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 or 45 of our states allow? >> 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. >> 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, sometime at the district court, sometime at the circuit court and even once or twice at the supreme court, these courts tend to do damage to a bill called the false claims act. this bill has brought $70 billion of fraudulently taken money back into the federal treasury since it's been passed. and courts have weakened it and senator leighy and i find ourselves having to pass laws

saying, you got it wrong. there's a very controversial bill before the united states senate on that very subject. it's fought fraud in the department of defense, healthcare industry, the pharmaceutical industry, $70 billion 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. >> you may want to rethink that, chuck. >> well, and lehy. 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 whistle-blowers 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, once suggested that --

>> we'll keep listening to the questioning by chuck grassley and we have more coverage of the hearing of ketanji brown jackson coming up but i want to bring in katie tur for the latest on ukraine. >> here's what we know right now. this morning, ukraine notched a small strategic win. ukrainian troops pushed russian forces out of a suburb of kyiv. that territorial gain allows ukrainian forces to block the russians from surrounding the area west of the capital. and in mariupol, a city under siege and devastated by russian bombs, ukrainian ground troops are still keeping russian tanks and ground forces out. meanwhile, ukrainian president zelenskyy is still working his version of the bully pulpit. he spoke with pope francis by phone and addressed italy's parliament with a pointed plea. >> translator: those who are

supporting this war, all of them are using italy as a place for holidays, so please don't be a holiday resort for murderers. >> president zelenskyy says 117 children have now been killed since the start of russia's invasion. joining me now is nbc's gabe gutierrez in lviv in western ukraine. gabe, russia seems to be struggling -- gabe, you got us? there you are. hey, gabe. >> reporter: hey, yes. i want to talk to you about what's happening right now, katie. these buses are pulling out of this train station, literally within the past few seconds, and i want to tell you a little bit about them. they are filled with refugees from the southeastern part of ukraine. they took a 17-hour train ride to arrive here. they just got here to lviv, and right now, this bus is about to head out to warsaw, poland.

katie, as you know, there have been more than 3 million refugees that have left ukraine. now the number up over 3.5 million but today, president zelenskyy is calling for fresh talks with his counterparts in russia, and he says that his country is being bombed beyond recognition. of course, the attention is still focused on the residents of mariupol. some of the people in these buses are from that region. a humanitarian corridor was open and so we've been speaking with residents from southeastern ukraine throughout the morning. in fact, surprisingly, katie, some have even boarded a train back to that region after spending some time here in lviv, because they wanted to bring back supplies and also a few of them told us that they felt that they had no other choice, that this was their country. >> so many refugees, more than 3 million, about half of them children. gabe gutierrez from lviv, gabe, thank you very much. and let's now go back to chris

jansing with the latest on what is happening in that supreme court confirmation hearing. thank you so much, katie, and we will go back to the hearing in just a moment but first i'm joined by symone sanders, former chief spokesperson for kamala harris. dalia is slate editor and host of the amicus podcast. simone, let me start with your interpretation of what we're seeing so far, relatively quiet. so far chuck grassley is the first republican, started out by saying my wife thought she did a good job, essentially, yesterday, but what are you looking for, and what's your take on how the judge is doing so far? >> so, first, i think judge jackson has done well so far. these hearings are about -- she's, one, introducing herself to the american people. herself personally but also herself professionally, so she started the hearing off this morning with questions from senator durbin, chairman of the committee, in talking about her methodology, if you will, or how she approaches being a judge. i also think senator durbin took

his time to preempt some of the types of critical questions that folks are going to see from some of the republicans on the committee, and i think lastly, senator grassley has said that he wanted to, you know, participate in a high-level process, that they didn't want to get down, essentially, in the mud and play dirty and the questions that he is asking are questions that are of particular concern to him. he's made a joke before we came out of the -- into the ukraine package, talking about, you know, when you hear about this on the supreme court, think of me and think of senator leahy. so i think today is going very well and she's absolutely holding her own. >> one of the things is that senator durbin did, dalia, was he gave her an opportunity, a prebuttal to what we knew was coming because we heard it from republicans yesterday, including this idea that has been disabused by many fact checkers that she is soft on crime. and she kind of threw it right back to congress, saying, look, my guidelines say that i give sufficient but not greater than necessary punishment. i'm wondering what you took away

from some of her prebuttal so far. >> yeah, i had a deep sense that this is somebody who is performing what it is to have been a trial court judge for eight years. she said yesterday in her opening, you read any of my 570 judicial opinions, this is a person who really, really knows how to be a sentencing judge. and it almost felt as though this were putting -- this was a moment of putting josh hawley, senator hawley, and his claims on trial. and i think she just really did quite a remarkable job of saying, a, these claims that i'm particularly soft on, child porn, non-production cases, is not true. but also, i think she did a really, really strong job of sort of showing us her methodology, how she approached every single one of these cases

on the bench. it's going to be really interesting to see if senator hawley wants to double down on this, having had it debunked both by all news organizations, by former judges, by fox news, and now by judge jackson. i don't know if he really wants to press on this. >> yeah, i don't know. so far, it hasn't had any impact on him, but still to come. let's go back now. senators still questioning ketanji brown jackson. let's listen in. >> 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. zblart, i don't know that there are ethical rules that are different. what i will 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 that 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 prospective or, you know, the policy prospective of the day. instead, the supreme court has made clear that when you're interrupting 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. >> on the same subject, i want to point out a difference between you and a couple of

people who have said on the supreme court, justice breyer said that a structural alteration of the supreme court motivated by 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, quote/unquote, a bad idea. court packing is creating new seats for political purposes for a president to appoint more justices. do you agree with justice breyer and justice ginsburg that court packing is a bad idea? before you respond, i would 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 would be inappropriate for you to do, the other people sitting there have said that it's bad

idea. >> well, respectfully, senator, other nominees to the supreme court have responded as i will, 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. >> okay. >> then i would interrupt your answer -- and you don't have to respond to this, but i think you're saying that 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. you agree that the supreme court has been bought by dark money groups? >> 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. >> thank you for that answer. i'm going to go to international law. during an aba panel on international law last year, justice breyer said that as a federal judge, quote, you can't do your job properly, end quote, without considering international law and, quote again, in some cases, and it's a growing number of, end of quote, and i assume a growing number of

opportunities to use international law. in 2018 op-ed, justice breyer said that, quote, the best way to preserve american values may well be to take account of what happens abroad, end of quote. under what circumstances is it appropriate to consider international law when interrupting our constitution? >> thank you, senator. i have nothing but the highest esteem and respect for my former boss, who i've spent the better part of the past decade 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 interrupt international law in order to be able to address it. but there are very, very few cases in which international law plays any role. and certainly not in interpreting the constitution. >> i think you probably have answered my next two questions, but if you say you have nothing to add, i will still want to ask the questions. do you think it's appropriate to look to international law when interrupting enumerated and unenumerated constitutional rights? >> no, senator. >> what specific -- again, i think you've answered this, but i want to ask it anyway. which specific constitutional clauses or rights has the

supreme court held that can be interrupted by looking to international law? >> i'm not aware of any that are properly illuminated by reference to international law. >> 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 that you take to go through a case and apply the law. and you say that your methodology is limited power and stay within your lane. i would like to ask you, well, you've served on the district court for several years and spent eight 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 would like to have you elaborate if you say "yes" to that. >> 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