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

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. >> 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 vemabl resembles your own? >> 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. >> what aspect of your record as a judge do you believe have been the most important for the good of the country? >> 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 ten years that judges do to rule impartially and to stay within the boundaries of our proper judicial role. >> let's go to immigration. congress gave the attorney general, quote/unquote sole and unreviewable discretion to decide whether expedited removal would apply to, quote, 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 have been in the country for less than two years. in that year ago, 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 believe a federal court could review something congress called unreviewable. >> 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 were 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 was found anywhere in the country, and who had been here up to two years. importantly, the challenge was not about the actual determination. the challenge was about the procedures that the agency undertook to make that determination. so the statute said, as you rightly pointed out, that the agency has sole and unreviewable discretion to decide, and in interpreting that welcome 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 exercised 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, there was no ability to review substantively their determination. and i should say, importantly, that the statute that congress enacted gave the agency the discretion to make this determination between zero and 24 months. there is a limit in the statute. it says congress, excuse me, department of homeland security, you get to decide where between zero and 24 months a person who has 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 pregnant that indicated that even when congress gives a great deal of discretion to an agency, preefrld requirements may still apply. it means that an agency can't act capriciously when it undertakes discretion. it has to do certain things in order to make the determination that congress has given it. i looked at those statutes --

oh, i'm sorry -- >> no, no. >> i looked at those statutes and i considered the cannons of construction that say that statutes should be read harmoniously. that as a court, you're supposed tosup that congress has directed, sometimes in more than one statute, what is supposed to happen. 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, which it had not excluded it, which it had done expressly in other parts 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 agz to actor arbitrarily in picking a number, congress could have done that. congress says, you could do it up to 24 months, it could have randomly picked a number, but it was giving it to the agency i thought, precisely because it wanted the agency to use its expertise, do its research, and 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. >> thank you, senator grassley. senator leahy? >> thank you, chair durham. 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 and before i begin my questions, i was going to respond to something that the junior senator from texas said yesterday. he suggested that democrats exacted a political agenda by opposing the nomination of judge gorsuch to the supreme court. i kind of chuckled at that, because along with others i and others have repeatedly had substantiative concerns with justice gorsuch's nomination pip explained my results on the record. there's no political agenda. i contrast that with republican's treatment of then judge merrick garland. we're still waiting today for republicans to explain on the record what kind of substantiative 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 an 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 is this, for our criminal justice system to function properly, you have

to have skilled, dedicated lawyers on both sides, obvious both the prosecutor and the defense attorney. it's equally important for justice to have that if we're going to have justice done. it's really concerning -- 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 that you have to have both the skilled prosecutor and a skilled defender. i believe -- in fact, i don't think of it as a liability, i think it's going to be a major asset you and i think it should be welcomed, on the supreme court in fact, if you're confirmed to the court, you'll 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, maintain helped you maintain an impartial and balanced perspective in criminal and other cases and i would assume you would agree with that. >> yes, senator. i think 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 it didn't change, i think, in any way, the outcomes of the cases when i was a trial judge, but i understand 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 standpoints, 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 if the justice system has wlongd them, and while doing their time, rather than reflecting on the fact that this is the consequence they have to face for actually committing a crime, instead of doing the work to rehabilitate themselves, they're 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 intolerant, 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. >> and 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 -- you're a member of

the bar or 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? >> absolutely, senator. >> and it's also a pretty important part for indigent defendants, is that not correct? >> 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. >> it also guarantees that our constitution will be followed. you know, i think it's important

you went around with senator doug jones, who's highly respected in the senate, both sides of the aisle, but you got to meet other senators. i was delighted you came to to spend time in my office and you noted in your public remarks that the white house, when you were nominated, that your parents were 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, watching them the last couple of days, they're proudly watching you here, as other members of your family. your younger brother became a police officer, detective in baltimore before serving the army. two tours of duty in the middle

east. two uncles who have served as police officers. so i'm not really surprised that you understand law enforcement and the national fraternal order of police as expressed strong support for your nomination in fact, their letter dated february 25th, 2022, they say, you have considered the facts and implied the law consistently and fairly on a range of issues, and they went on to say, there's little doubt that you have the temperament, intellect, legal experience, and family battleground. and they added, we are assured that should she be confirmed, she would approach her future cases with an open mind, treat issues related to law enforcement fairly and justly. chair durbin, i would ask that the letter from the fraternal order of police be included in

the record. >> without objection. >> 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? >> i would 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 say, my brother patrolled the streets of baltimore. and i had two uncles that 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. i'm sorry. i was just going to say, the third thing i would say 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, understood 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 in defense of the constitution and in service to the court. and it is a service. >> i know in our conversation, i had 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. it's been controversial and we've had two presidents, one republican, one democrat, who said they wish that it could be closed, but the fact is, individuals were detained there. the whole world was watching

this. i know i heard from people that 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 also that both in our own country and outside of 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. what principles drove you to get involved with cases in such a different time in guantanamo

bay? >> thank you, senator. i want to clarify, when i first started working on these cases, i was an assistant 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 decisions, in one case, and 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 recommendation, consistent with our constitutional scheme, to have help to file their habeas petitions. this was very early in the days of the kinds of legal actions. there was a lot unknown about what these petitions could look like, about what arguments could be made and considered by the court, and 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 -- i was assigned by the federal public defender, i was an assistant 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 are just preserving legal arguments for your clients. that is consistent with what lawyers do. and then you mentioned private practice, soy 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 tlorpts of people who needed representation, and so probono 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 arrived at my firm and the

partners realized the same person was someone that according to the docket, i had previously represented and they asked if i would remove 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 -- >> our special coverage for the supreme court nomination of judge ketanji brown jackson will continue. n jackson will continue -dad, what's with your toenail? -oh, that...? i'm not sure... -it's a nail fungus infection. -...that's gross! -it's nothing, really... -it's contagious. you can even spread it to other people. -mom, come here! -don't worry about it. it'll go away on its own! -no, it won't go away on its own. it's an infection. you need a prescription. nail fungus is a contagious infection. at the first signs, show it to your doctor... ... and ask if jublia is right for you. jublia is a prescription medicine used to treat toenail fungus. its most common side effects include ingrown toenail,

application site redness... ... itching, swelling, burning or stinging, blisters and pain. jublia is recognized by the apma. most commercially insured patients may pay as little as $0 copay. go to jubliarx.com now to get started. this is the planning effect. nina's got a lot of ideas for the future... a lot of ideas. so when she wants a plan based on what matters most, she turns to fidelity. at fidelity, anyone can create a free plan. a plan that can change as your priorities do. and nina's free plan? it leaves her free to focus on what's important right now. that's the planning effect. from fidelity. it■s hard eating healthy.

unless you happen to be a dog. how not to be a hero: because that's the last thing they need you to be. you don't have to save the day. you just have to navigate the world so that a foster child isn't doing it solo. you just have to stand up for a kid

who isn't fluent in bureaucracy, or maybe not in their own emotions. so show up, however you can, for the foster kids who need it most— at helpfosterchildren.com entresto is the number one heart failure brand prescribed by cardiologists and has helped over one million people. it was proven superior at helping people stay alive and out of the hospital. don't take entresto if pregnant; it can cause harm or death to an unborn baby. don't take entresto with an ace inhibitor or aliskiren,

or if you've had angioedema with an ace or arb. the most serious side effects are angioedema, low blood pressure, kidney problems, or high blood potassium. ask your doctor about entresto. and we will return to our live coverage of the supreme court confirmation hearing of judge ketanji brown jackson in a moment, but first, i want to bring in my colleague, katy tur for the latest on ukraine. hey, katy. >> thank you, chris. it is day 27 of russia's war in ukraine, and here is what we know right now. ukraine's president volodymyr zelenskyy has just been invited to address nato this thursday. he will be speaking directly to an in-person gathering of nato-allied leaders, including president biden, who will travel to europe this week. the circumstances are dire for zelenskyy. in russian-occupied kherson, officials say 300,000 people are

running out of food and medical supplies. the officials say the russian army is blocking life-saving supplies from entering that city. meanwhile, in the western city of lviv, local time 4:34, air sirens have already gone off multiple times today. nbc news jacob soboroff is there in a bunker right now. so jacob, what's happening? >> reporter: hey, katy. so we actually just got the all-clear for the third air raid siren of today here in lviv. we're actually in the basement of a hotel, which doubles as an air raid siren. and the first one went off early this morning. this has opinion a common occurrence here. even in the west of the country, which has remained relatively peaceful. you'll remember we had that one attack on the airport maintenance facility late last week, but yesterday, there were five air raid sirens. so far today, there have been three local time here, it's 3:45 in the afternoon. we get these -- i don't know if you can see it, but we get these

alerts on our phone through an app that was developed by a private company in cooperation with the government. so everybody streams down here into the basement every time that there is one of these alerts and that's the situation we're in right now. this has been a crazy, as an understatement time here. you have americans here volunteer welcome volunteering to fight against the wishes of the government, volunteering as combat medics. i want to show you a little tape of someone we talked to earlier here in lviv about what he is doing in the war effort. watch this. >> i bought a plane ticket, no plan, didn't know anybody, i just literally packed a med bag, packed a duffel bag through of mental supplies and showed up at the poerd. >> why is this guy from southern illinois deciding to put himself in harm's way between this nation and russia? >> these civilians didn't ask for this. everybody has the right to live. >> reporter: there has been an incredible amount of risk here, katy. a risk for the americans who are coming to volunteer against the wishes of the government, a risk for of course the people of ukraine all throughout this country and it continues here

today. >> jacob, stay safe, my friend. thank you very much. and let's go back now to chris jansing with the latest on the supreme court confirmation hearing. >> katy tur, thanks so much, and thanks to jacob, as well. congress still asking questions to judge ketanji brown. let's listen in. >> you have had such different experiences, how does that shape your approach when deciding a case? >> 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 get to the point of understanding the importance of impartiality, staying in my lane as a judge, because the prior

experiences that were different roles in the system. because i saw the different roles, i think i had a good appreciation of what it means to be a judge and the limitations on my own authority. the sentencing commission was a policy-making branch of the judicial branch that the commission and commissioners developed sentencing policy. congress del indicated that authority, so they're doing the policy work, gathering data, making recommendations. that is totally different than the work i do as a job. advocacy, on behalf of your clients, making critical arguments, the best arguments that you can come up with a

service to the court, but 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. >> and the president referred to it 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 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 the senator grassley and on the freedom of information issues.

and usually in the senate, at least, if you work across the ideological spectrum you get better results. how would you describe your skeps on building cases relating to intellectual property, that are less likely to break along traditional ideological lines? >> thank you, senator. one of the things that i was able to do when i worked on the sentencing commission was work with people that had very different perspectives than i did about the jils system and come to consensus. it's very important, as you've

said, to try to find common ground, skbris breyer was such a wonderful model for that kind of ability as a supreme court justice. something i learned from him and something that i tried to model on my work in the commission, that i tried to model in my work as an appellate judge, and i would model or do if i were confirmed to the supreme court. >> thank you senator leahy. now to 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, in the people who introduced you to the committee, that 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? >> senator, i am protestant.

>> mm-hmm. okay. >> nondenominational. >> okay. >> could you fairly judge a catholic? >> senator, i have a record of -- >> i think the answer would be "yes." i believe you can. i'm just asking this question, how important is your faith to you? senator, personally, my faith is very important, but as you know, there's no religious test in the constitution under article vi -- >> there will be none with me. >> and -- it's very important to set aside one's personal views about things in the role of a judge. >> i couldn't agree with you more. and i believe you can. so on a scale of one to ten, 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 to church regularly? >> 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. >> 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 skme they would suggest that it would affect your decision? would you find that offensive? >> senator, i'm -- i'm -- >> i were if i were you. >> i found it offensive when they said it about judge barrett. the reason i ask these

questions, 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. 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 f'ing 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 that 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 rodgers

brown. >> yes, i do know her. >> how do you know her? >> 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. >> right. and you were a district court judge, is that right? >> i was, but i don't know whether she had retired at the time. >> i think they were. are they enemy same building? >> they are in the same building. >> so you really don't know her. >> i know of her, yes. >> what do you know of her, what's her reputation? >> i know that she's a very well-respected judge on my circuit. >> okay. in terms of family, she was 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? >> yes, senator. >> 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 two years when she was appointed to the d.c. circuit? >> i didn't know that. >> did you know that joe biden actively filibustered janice rodgers brown? >> i did not know that. >> 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 you, too? >> yes. >> okay. now that you know that, how do you feel about it? >> senator, i can't speak to something that i just learned two second ago in your conversation with me.

>> okay, fair enough. fair enough. you're in the black law school society, right? >> the black law students' association. yes. >> you're a member at harvard. >> yes. >> and some time, the mr. jeffries thing? do you remember that whole dustup? he got -- >> only in preparation for this, and i think i was in college at the time. it was my senior year of college. >> so you weren't actually in the group when he was invited to speak? >> 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. >> right. do you remember going to a speech given by mr. jeffries? i think he's the uncle of akeem jeffries? >> i did not go to a speech

given by mr. jeffries? >> are you now familiar with the press reports about what mr. jeffrey's views are? >> just in preparation with this. >> and do you associate yourself with those views? >> i do not. >> he's been called by many very anti-semitic. he called jewss skunks who stink up the space sflp and it would be wrong for me to hold his views against you. >> yes, it would. >> 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, who beat the crap out of the 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 of 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 f'ing nut. and we're tired of it. zpst 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 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's in the same type situation you're in, being in a group, doesn't agree with everything they do or what people may see at a meeting he didn't go to, all of a sudden they own it. and this stuff needs to stop. our people deserve better respect and i hope when this is over, people will say you were 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? >> 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. >> yes. and do you think it's important to the system that everybody be represented? >> absolutely. it's a core constitutional

value. >> you get no complaint from me. that was my job in the air force. i was an defense counsel. i represented everybody that came into the door whether i liked them or not and did my best. is that what you do? >> yes, sir. >> everybody is represented is represented in america whether you like them or not and anybody that takes up your cause, you are doing your job and you make your country story, 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 keep terrorists off the battlefield. they deserve a system that understands the difference between being at war and in crime. do you consider 9/11 you said a terrible tragic event. would you consider it an act of war? >> yes, senator. >> okay. i would, too. i think it was an act of war to 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, it i want you to understand and the nation to understand what's been happening at gitmo. what's the recidivism rate at gitmo? >> senator, i'm not aware. >> it's 31%. how does that strike you? is that high, low, about right? >> i don't know how it strikes me overall. >> it strikes me as terrible. >> yes, that's what i was going to say. >> okay. good, we found common ground. of the 229 detainees released from gitmo, 729 released, 229 have gone back to the fight. here's some of the notables. former gitmo detainee sacir 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 defense minister and he was in gitmo. of the five men we released from gitmo as part of a prisoner swap for sergeant bergdahl where they are the. mohammed faisal was appointed deputy minister of defense, noor was appointed acting minister of borders and travel affairs, waziki was appointed acting intelligence director. act the minister of cair, omar appointed the southeastern province of kohst. those are five people we in our control new helping the taliban run the country. would you say our system in terms of releasing people needs to be re-looked at? >> senator, what i would say is

that that's not a job for the courts in this way. >> as an american does that bother you? >> well, obviously, senator, any repeated criminal behavior or repeated attacks, acts of war bother me as an american. >> it bothers me. while i will not hold it against you the fact that you represented gitmo appointees i think it's time to look at this system new, folks, when 31% of the poem israel going back to kill americans and running the taliban governor. we've gone wrong somewhere. are we still at war? >> so, the amf, the authorization for military force is still in effect. congress has authorized the use of force against people in -- in

this way. >> but do you personally believe that al qaeda, isis-type groups are still at war with us. >> i think -- yes. i think -- >> we're still in a state of war with certain elements of radical islam to this very day? >> i believe that's documented, yes. >> okay. now, what's the process to determine whether one is an enemy combatant under our law? >> 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. >> okay. so is an executive branch function to determine whether or not this person qualifies as an enemy combatant? >> well, i believe that they

make -- >> under current law? >> 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. >> so the law is the executive branch determines if you're an enemy combatant, and under our law you can appeal that decision through habeas, is that correct? >> i believe that's correct. >> is it your view that we can hole enemy combatants as long as they are a threat to the united states? >> i believe that's what the supreme court has determined. >> okay. did you argue that that should not be the case before in an amicus brief? >> i'm trying to think. i had two amicus briefs that i

worked on or three technically or two different cases. >> we'll have enough. >> yes. >> go back in your chief. i believe you argued that an executive branch should not have the ability to hold an enemy combatant, that you need to try them through some process and release them. >> senators, as you were talking my clients, the kato institute, the rutherford institute and the constitution project made that argument and asked me to draft their brief. >> yes. do you agree with that argue? >> senator, my responsibility was to make my clients' argument and as a nominee to the supreme court that's -- the supreme court did not address that issue. they in fact -- the case became moot. >> did you organize an effort to get 20 judges to file a brief to the supreme court on this issue?

>> not on that issue. >> on another issue. >> yes, senator. >> did you actively go out and recruit 20 judges to help you file a brief on another issue regarding law of order detention? >> not technically. >> what do you mean by that? >> what i mean is that i was at my law firm in the supreme court and appellate group. one of the partners at morrison and forester was a former federal judge who wanted to make this argument and who said we -- i have former federal judgments 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. >> it was her idea to get former judges to write this, not yours?

>> yes. >> and you just helped in the implementation that have idea? >> so, senator, as a member of the supreme court and appellate group in a law firm, that is the practice. >> right. >> it wasn't your idea. it was somebody else's? >> yes. >> okay. >> now, there are people still held at gitmo today. do you understand that? >> yes. >> okay. what system is in place regarding their future? >> i am not aware of the system right now. i'm not sure exactly what you mean. >> let me tell what you it is. >> yes. >> there's 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 six months, maybe a year, but that goes on at least on an annual basis, and if these a determination that this person still represents a threat to the united states rp they are continued to be confined. that's the way the system works. are you okay with that? >> as a policy matter, senator? i'm not speaking to my views, that's -- my understanding is that the periodic review system is an executive branch determination of whether or not they are going to continue to hold people >> does that make sense to you as a way to deal with these detainees? >> i'm not in a position to speak to the policy or the discretion of the executive branch regarding how they are going to handle detainees. >> the reason i