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 mention it is

because in the brief you argued that the executive brarn doesn't have that option, that if you had had your way, the executive branch could not do periodic reviews about the danger the detainee presents to the united states. they would have to make a decision of trying them or releasing them. is that not accurate? >> respectfully, senator, it was not my argument. i was filing an amicus brief on behalf of clients, including the rutherford institute, the kato institute and the constitution project -- >> well, when you sign on to a brief, does it not become your target? >> it does not, senator. >> if you are an attorney and you are representing a client in amicus -- >> was that your position when you are in private practice? >> you sign on to this brief

making an argument saying it's not your position. why would you do that if it's not your position? why would you take a client that has a position like that, this is voluntary, nobody is make you do this? >> oh, senator, i would refer you to the same sorts of statements that chief justice roberts made when he came before the committee which is that lawyers represent clients. >> i'm not holding the client's views against you like the people you represented at gitmo. they deserve representation, but this is an amicus brief where you and other people try to persuade the court to change policy. the policy i described is a periodic review. if the court had taken the position argued in the brief that you signed upon, we would have to release these people or try them and some of them the evidence we can't disclose and it's classified, you're putting america in an untenable position. this is not the way you fight a

war. if you tried to do this in world war ii they would run out of town. we would hold enemy combatants as long as there's a threat. there's no magic passage of time that you've got to let them go, so my question is very simple. do you support the idea -- did you support then the idea that indevaney detention of an enemy combatant is unlawful? >> respectfully, senators, when you are an attorney and you have clients who come to you whether they pay or not, you represent their positions before the court. >> i'm sure -- i'm sure everybody at gitmo wants out. now i've got that. this is an amicus brief, and i just don't understand what you're saying quite frankly. i'm not holding it against you because you represented a legal position i disagree with. i mean, that happens all the time. i'm just trying to understand

what made you join this cause, and you say somebody hired you, but did you feel okay in adopting that cause? when you signed on to the brief, were you not advocating that position to the court? >> senator, as a judge now in order to determine the lawfulness or unlawfulness of any particular issue, i need to receive briefs and information making positions on all sides. >> i got what a judge is all b.listen, i'm not asking you to decide the case in front of me right here. i'm asking you to explain a position took as a lawyer regarding the law of washing and i am beyond confused. i know what you said in your

brief. whether i agree with it or not. i just want you to understand that it's important for all of us to know where you were coming from. if that brief had been accepted by the court, it would be impossible for us to fight this war because there's some people going to die in jail in gitmo and never go to trial for a a lot of good reasons, because the evidence against them is so sensitive we can't disclose them to public, that we're not charging them with a crime. what you're doing is you engaged in hostile activities against the united states, that you're an enemy combatant under our law and you'll never be released as long as you're a danger until the war is over and you're no longer a danger. that's the difference between danger and fighting a war. did you ever accuse in one of your maybe petitions the government of acting as a war criminal for holding detainees, that the holding of detainees by our government, that we were

acting as war criminals? >> senator, i don't remember that accusation, but i will say that -- >> do you believe that's true, that america was acting as war criminals in holding these detainees? >> senator, the supreme court held that the executive branch has the authority to detain people who are designated as enemy combatants for the duration of the hostilities and what i was doing in the context of the habeus petitions at this very early stage in the process was making allegations to preserve issues on behalf of my clients. a habeus petition is like a complaint that lawyers make -- >> you know, i've been a lawyer, too, but i don't think it's necessary to call the government a war criminal in pursuing

charges against a trip. i just think that's too far. i don't know why you chose those words. that's just too far, but we are where we are. so let's talk about the nomination process. have you ever had aniant action with a group called demand justice? >> no. >> directly or indirectly? >> no. >> have you ever had any interaction with a group called american prospect? >> no. >> do you know anything about arbella, is that the right time? have you ever heard of a group called arbella? >> i've heard of a group that i think is a rabil la. >> yes, that's right. >> do you know anything about them or had any contact with them? >> no. >> in your nomination did you notice that people from the left were pretty much cheering you

senator. >> a lot of people were cheering me on, senator. >> did you know a lot of people from the left from trying to destroy michelle chiles, did you notice that? >> senators, a lot of people were supporting various people for this nomination. >> so you're saying you didn't know there was concerted effort to disqualify judge chiles from south carolina because she was union busting unreliable republican in disguise? >> senator, i'm a focused judge and -- >> it's okay if you didn't know that. >> no, i didn't know. >> would that have bothered you if that happened? >> senator, it is troublesome that people are or were doing

things related -- >> i think the best way to say it people have a right to speak out and pick the person of their choice, but all i can say is that if you missed the fact that there was an organized effort -- well, here's president biden has only a certain amount of political capital for keeping his party united. if he needlessly akers progressives on this scotus picks that could create all sorts of problems for him down the line, jeff hauser, revolving door projects. let's see i've just got so many quotes. it's difficult to imagine someone with a record like judge chiles winning votes from criminal justice advocates like senator cory bjork, even dick durbin. chiles' experience is nothing like the diversity of experience that the biden administration has championed. let's see. picking her, chiles, would

demoralize the bide, side with corporate america. the fact that lindsey graham is vouching for her should give the white house pause. joseph jeravangi, sorry about that, he's bernie sanders pac director. you didn't know all those people were declaring war on judge chiles? >> no, senator, i did not. >> i'll take you at your word. i am saying is what is your judicial philosophy? >> so i have a methodology that i use in my cases in order to ensure that i am ruling impartially -- >> so your judicial philosophy is to rule impartially. >> my judicial philosophy is to rule impartially and to rule consistent with the limitations

on my authority as a judge, and so my methodology actually helps me to do that in every case. >> so you wouldn't say that you're an activist judge? >> i would not say that. >> okay. >> so we'll have 20 minutes more later on, but here's what i would say. that every group that wants to pack the group, that believes this court is a bunch of right wing nuts that are going to destroy america, that consider the constitution trash all wanted you picked, and this is all i can say is the fact that so many of these left wing radical groups that would restroi the law as we know it declared war on michelle chiles and supported you is problematic for me. thank you. . >> thank you, senator graham. let me mention a few points here. congressman jim clyburn was a strong supporter of michelle chiles and now i believe he is publicly supporting your

nomination and michelle chiles has been nominated by president biden to be a circuit judge and she will be considered by this committee as quickly as possible. on the issue of guantanamo, there are currently 39 guantanamo detainees remaining. the annual budget for guantanamo is $540 million per year which means each of these detainees is being held at the extension of $12 or $between million per year. if they were incarcerated in colorado at the super max prison, the federal prison, the amount would be dramatically, dramatically less. since 9/11 nearly 1,000 convicted in the united states on terrorism charges. since 2009 with the beginning of the obama administration the recidivism rate of guantanamo detainees released is 5%. >> mr. chairman, according to director of national intelligence it's 21%. somebody is wrong here. if you're going to talk about what i, i'm going to respond

what you said. if we close gitmo hand move them to colorado, do you support indefinite detention? >> i'm giving you the facts. >> the answer is no. >> i want to make sure that the 31% you referred to goes back to the year -- >> what does it matter when it goes back to. we had them and they got loose and they started killing people. if you're one of the people killed in 2005, does it matter to you when we release them? >> the president of your own party released them -- >> i'm suggesting that the system has failed miserably and advocates to change the system like she was advocating would destroy our ability to protect the country. we're at war. we're not fighting a crime. this is not some passage of time event. as long as they are dangers, i hope they all die in jail if they are going back to kill americans. it won't bother me one bit if 39 die in prison, that's a better outcome than letting them to g and if it costs $2 hundred

million to keep them in jail, put them back in the jail. look at the afghan governor. made up of former detainees at gitmo. the whole thing from the left about this war ain't working. >> let me note that larry thompson who served as deputy attorney general under george w. bush,or orrin kerr, the assistant attorney general for legal policy in the george w. bush administration, john belanger and former d.c. circuit judge independent counsel ken starr were all attorneys signed letters representing gitmo detainees. i don't believe we should see that activity as inconsistent with our constitutional values. that the point we're going to recognize senator feinstein and then take a break after she has completed her questioning. senator feinstein. thank you very much, mr. chairman, and i just would

like to compliment the witness. i think you're doing very well, and as you can see this is a bit of a tough place, so, judge, one of the issues that i often discuss with nominees, particularly to the supreme court is the issue of abortion. i've asked the three most recent supreme court nominees about this issue, and so i would like to discuss it a bit with you today. in 2017 i asked justice gorsuch about this during his confirmation hearing. i asked him to expand on a comment he had made about his belief that precedent is important because it adds stability to the law. in response justice gorsuch reiterated his belief that precedent is important because, and i quote, once a case is settled that adds to the determine nancy of the law, end

quote. he also stated that rowe has been reaffirmed many times. i also spoke with judge kavanaugh about this issue in 2018. i asked him whether he believes that rowe was settled law, and if so whether it was correctly settled? >> justice kavanaugh said that rowe, quote, is settled as a precedent of the supreme court, end quote. he said that rowe, quote, has been reaffirmed many times over the past 45 years, and most prominently, most importantly reaffirmed in planned parenthood v. casey, end quote, and he described casey as having the value of a precedent on precedent, end quote. i most recently spoke about this issue with justice barrett in 2020.

i asked her whether she agreed with justice scalia's view that rowe was wrongly decided. she committed to obey the rules of starry decisis. she said she, quote, no agenda to overrule caseys, end quote. here's the question. do you agree with justice kavanaugh that "roe v. wade" is settled as a precedent and will you like justice barrett commit to all the rules of starry decisive in relation to all the cases? >> thank you, senator. i do agree with both justice kavanaugh and justice barrett on this issue.

rowe and casey are the settled law of the supreme court concerning the right to terminate a woman's pregnancy. they have established a framework that the court has reaffirmed and in order to revisit as justice barrett said the supreme court looks at various factors because starry decisis is a very important principle. it provides and establishes predictability, stability. it also reserves as a restraint in this way on the exercise of judicial authority because the court looks at whether or not precedents are relied upon, whether they are workable in addition to whether or not they are wrong and other factors as

well, so i agree with both of the statements that you read. let me add one to that and then move on. i'm particularly interested in "roe v. wade." rowe was decided nearly 50 years ago and it's been reaffirmed over a dozen times since then so my question is this. does "roe v. wade" have the status of being a case that's a super precedent and what other supreme court cases do you believe that have status? >> well, senator, all supreme court cases are presidential, they are binding, and they are their principles and rules have to be follow. rowe and casey, as you say, have been reaffirmed by the court

have been relied upon, and reliance is one of the factors that the court considers when it seeks to revisit or when it's asked to revisit a precedent, and in all cases the precedent of the supreme court would have to be reviewed pursuant to those factors because stare decisis is very important. >> thank you. if you are confirmed you would be one of only two justices who has also severed on a federal district court, the other being justice sotomayor. in your eight years as a trial judge on d.c. district court you wrote nearly 600 opinions and presided over nine jury trials and three bench trials. as you know from your service on the district court, it's

important for appeals courts and especially the supreme court to be cleared in their decisions. the clarity is necessary, as you well know, for trial judges to effectively do their job and properly apply legal precedents that are fair and consistent. as a district judge you were responsible for applying precedent from the supreme court and courts of appeal in your case and now as a judge in the d.c. circuit you're drafting those precedents. your experience as a trial judge is one of your most significant assets, and i just want to add a personal comment. this is a tough place and you are handling it very well, and i appreciate your directness and think that's important. here's a question. i have two relate questions.

how did you make sure that you were properly applying the relevant precedents as a district court judge, and if you're confirmed to the supreme court, what would you do to make sure your opinions are clear so they could be applied correctly by district courts. thank you, senator, us a noted in my time as a district court judge i had the opportunity to apply precedents that were handed down by the court appeals and the supreme court. the district court is bound by the law as stated by those other tribunals, and i was very focused on making sure that i

found the right precedents and applied them faithfully. as i mentioned with respect to my methodology, part of process is receiving information from the parties in the case. the parties write briefing, and in most cases they identify the precedents that they at least believe they are applicable and then the court does its own legal research as well to determine whether all of the relevant cases have been identified and then you look to see whether there's anything that directly controls, and if it does that's your answer. in many cases the precedents might be a little bit different in certain ways and you are

assessing the party's arguments in determination within your proper role whether what the appellate courts have said provides the law of decision for the case, but what's important as you've mentioned is the clarity by which courts of appeals in the supreme court need to operate so that the lower courts can actually follow the precedents, and i'm very conscious of that, as you said, someone who has had to follow precedent and i would think carefully about that and use -- use my communication skills to ensure that the precedents are clear so that lower courts can follow them. >> thank you. i would like to discuss quickly a letter this committee received

in support of your nomination from the international association of the chiefs of police, and as you know this is the world's largest professional association of law enforcement leaders, and the letter states judge jackson has several family members in law enforcement, and we believe this has given her a deep understanding of and an appreciation for the challenges and complexities confronting the policing profession. during her time as a judge, she has displayed her dedication to ensuring that our communities are safe and that the interests of justice are served, and so, mr. charges i would like to put this letter in the record, if i may. >> without objection. >> thank you. i understand that your brother served with the baltimore police department for several years so here's the question. how, if at all, has having

several members in law enforcement impacted your understanding of the law or your approach to your judicial service? >> thank you, senator. some of my earliest memories in addition to my father at the kitchen table with his law books were of my uncles, two of my uncles were year law enforcement. one was a detective, uniformed detective and one of them was a city of miami police department overs parks troll overs for a long time before he became the chief, and i remember very well we would go to my grandmother's house on sundays and she would make a big dinner for our families and-mile-per-hour uncles would sometimes come off

of their shifts and i see in my mind their uniforms coming in, and they would always -- they would be carrying their weapons and they would take them off and put them way up high on the china cabinet so the kids couldn't get to them, and i remember feeling very proud of them and the service that they provided, and i think it's probably what led my brother who is ten years younger than i am to decide after he graduated from college he would want to also be in law enforcement, so i'm very familiar with law enforcement, the important service that they provide, the perils of being out on the street, protecting and serving and having a family that cares but and worries about your safety and so this is not something that is -- that is

unfamiliar, and i'm very gratified by the support of the group that you mentioned and other law enforcement groups as i go through this process. >> i joined this committee in january of 1993, and a few months later we considered the nomination of ruth bader ginsburg to the supreme court. justice ginsburg's confirmation made her only the second woman to serve of on the supreme court after justice sandra day o'connor so we've come a very long way since then, though still not far enough. women now make up about 35% of active judges on the federal district bench and 37% of active judges on the federal appeals courts. judge jackson, if confirmed, you would become the sixth woman to ever serve on the supreme court.

you would join justices sotomayor, kagan and barrett on the bench. this would be the nearest we have ever come to gender equity on the supreme court. there would be four women on a court with nine justices. so i have my own thoughts about what depend are balance is important on our nation's courts, but i would really like you to tell us all what are your thoughts on what it means for our country to have women serve in meaningful members, meaningful numbers on the federal bench? and in particular what it would mean to have four women serving on the supreme court for the first time in history. >> thank you, senator. i think it's extremely meaningful. one of the things that having

diverse members of the court does is it provides for the opportunity for role models. since i was nominated to this position i have received so many notes and letters and photos from little girls around the country who tell me that they are so excited for this opportunity and that they have thought about the law in new ways because i am a woman, i am a black woman, all of those things people have said have been really meaningful to them, and we want i think as a country for everyone to believe that they can do things like sit on the supreme court so having

meaningful numbers of women and people of color matters. i think it also supports public confidence in the judiciary when you have different people because we have such a diverse society. >> i want to say thank you very much. this is such a hard place and how you go through the hard times i real think is the most important thing and it's pretty clear to me that you go through hard times by holding your head up high and doing well so i thank you very much. thank you, senator. >> thank you, senator feinstein. >> we're going to take a break. let's take 15 minutes starting now, and then we'll return to more questions. we'll have a lunch break later

this afternoon in the earlier part of the afternoon. this afternoon in the earlier part of the afternoon. >> a short break in the confirmation hearing of supreme court nominee ketanji brown jackson. up next we'll go to the latest updates on the fighting in ukraine. you're watching msnbc. fightingn ukraine. you're watching msnbc. i could've put off telling my doctor my leg was red and swollen just doing the crossword... but i didn't wait. they told their doctors. and found out their symptoms... leg pain, swelling and redness - were deep vein thrombosis. a blood clot which could travel to the lungs and lead to a pulmonary embolism. which could cause chest pain or discomfort, or difficulty breathing - and be deadly. if you have one or more of these symptoms, contact your doctor. this is no time to wait.

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special coverage of the supreme court confirmation hearings for judge ketanji brown jackson. i've got a great panel standing by but i want to bring into my colleague katy tur for the latest on ukraine. >> reporter: this is video of doctors cleaning up what is left of a bombed-out psychiatric hospital in mikolayiv.

26 people have died. president biden is warning vladimir putin could resort to chemical weapons now, that quote, his back is up against the wall and the u.n. now says more than 3.5 million people have left ukraine. this right here is a line of ukranians waiting in warsaw to apply for polish i.d. numbers that will allow them to work and get free health care and education. kelly cobiella joins us now from warsaw. many ukranians were hoping this would be a short trip across the border and they would be able to go home. now the refugees coming over are realizing like everybody else that they could be relocating for who knows how long. >> reporter: yeah, that's exactly right, and that's why you saw the long lines at national stadium where they are trying to get their i.d. cards so as you can say can work and

get their kids into education. we spoke to people today, spoke to one woman who said she had been waiting in the line since 8:00 in the morning. she said that some of the people in line were coming at night to secure their place so that they could be sure to get to the front of the line and get their paperwork signed. you know, already thousands of people have gotten their kids into schools here. starting to settle in for the long haul. 85,000 kids have registered for schools across poe lan. that's had a huge influx of children for any country to take let alone the country of just 38 million. and in addition to that katy, with etalking to i'd workers on the ground and they are saying we're preparing for more people, preparing for another surge of refugees should something happen in the west or should some of these humanitarian corridors open up a little bit more so that people could flee, and they said, you know, just in terms of

understanding how overwhelmed countries like poland are, she said you can build more tents. you can create more reception centers. you can turn more stadiums into shelters. what you can't do is create teachers, doctors, paramedics, nurses, all of these support staff, translators, to take care of these people overnight. that's where they are really feeling the strain. >> poland has gotten so many refugees, more than 3.5 million, and as you said more could be coming over. it's a crisis that's going to be need to be shouldered by more than just a few countries around the countries of ukraine. thanks for joining us. now let's go back to chris jansing who has been monitoring the supreme court confirmation hearing. >> i'm joined by ari melber and abc's ali vitali and ck off sler

with the rainbow push location and former president for the national bar association and we have an msnbc legal analyst and former state prosecutor in new york. ari, let me start with the questioning that got heated with lindsey graham over judge jackson's work as guantanamo detainees, despite we know this access to a lawyer is a pretty fundamental right but do we have the accusation and back and forth that he had with senator durbin. are we ready to play that? okay. let's take a listen. >> since 9/11 nearly 1,000 convicted in the united states on terrorism charges, since 2009 with the beginning of the obama administration the recidivism rate of guantanamo detainees released is 5%. >> mr. chairman, according to the director of national intelligence is 31%. somebody is wrong here. if you're going talk about what i said i'm going to respond to

what you said. if we close gitmo and move them to colorado do you support indefinite detation under the law for these detainees? >> i would just say i'm giving the facts. >> the sanes no. >> i want to make sure that it's clear that the 31% you referred to goes back to the year 2009. >> what does it matter when it goes back to. we had them and they got loose and they started killing team? >> well, i could. >> if you're one of the people killed in 2005, does it matter to you when you released them? >> i would suggest the president of your own party released them. >> i'm suggest that the system failed and the advocates to change the system that she was advocating would reindustry our ability to fight the country. this is not a passage of time event. as long as they are dangerous, i hope they all die bit. it won't bother me one bit in 39 die in prison. that's a better outcome that lets them go and if it costs

$500 million keep then in jail keep them in jail. looking a the friggin' afghan government, that's made up formest detainees at get movement the whole thing by the left about this war ain't working. >> ari, then he got up and walked away. graham though pointing towards the judge suggesting arguments made in the amicus brief would destroy our ability to protect this country. what's your reaction to that? >> well, it was by far the sharpest and hottest moment we've seen in this hearing. i will say that i don't know it landed a glove on judge jackson. he ended up with two senators sort of debating each other. as for senator graham i'll say two things. one, he's partly correct in that later rules did okay some of the very holding patterns, the detention that that brief had argued against, so in that sense he has a legal point. he's basically trying to say,

hey, judge, didn't you once advocate for something that lost? of course, any lawyer will tell you and everyone has watched "law & order," if you practice law long enough, you'll be on both sides of cases, i don't know if that's any disqualifying. where he's partly wrong is over the statistics. the reason that matters briefly in case folks are saying what this is all about, recidivism and the idea that people return to commit offenses it be a crime or in this case return to the battlefield as lindsey graham put it the is a big deal and the dwles are about whether the detention systems were working or letting too many people out. again, as for what we're real watching here, to move a vote on the nomination, didn't feel like that. it felt more like a chance for senator graham to show that he has age passed view which he's welcome to has, that he has some cases on his side, that's true, and as for the statistics, again, she didn't take a position on that one way or the other. she was very careful and i thought very clear in her answers to basically say, yes, i was involved in writing these brempts can i tell you what the

law is and i'm not going to get into policy. we heard that sort of rebuttal from her respectfully over and over again against graham and some of the other questions. >> ally, this is a senator who has voted for her previously for the d.c. circuit obviously. >> yeah. >> but it doesn't sound like he might be a yes in this case. in this case any reaction inside that room? >> yeah. look, if you're reading tea leaves there it does not seem that lindsey graham is very open to a yes vote on calksion. i was in the room during the exchange you and ari are talking about and the mood palbly shifted. people looking off and down in their laps their heads immediately snapped up. even senator cory bjork looked over his shoulder slowly with a seemingly incredulous look on his face over to the senior senator from south carolina as he embarked on that line of questioning, not necessarily about get movement though certainly that did have a reaction in the room, but first about ketanji brown jackson and

her faith. he at one point asked her to rate how faithful she is on a scale 16 to 10. i even heard a few people in the room draw a breath quickly, gasp at that moment seeming think thinking that that was an outof bounds line kwemping the room felt at that point pretty awkward. aside from that moment there was a palpable strategy here of trying to disband with the potential fireworks moments early. i'm talking about senator durbin starting with a line of questioning that allowed jackson to speak to the idea of judicial activism. that's something that multiple republicans brought up repeatedly and she repeatedly said she felt it was a judge's job to stay in their lane, really trying to neutralize this idea that republicans have repeatedly talked about that she would be an activism or a risch stamp for a democratic administration just because a democrat nominated her. i also thought that there was clearly a strategy to bring up

the an attempt of being soft on childhood crime. something that josh rp josh hawley brought up, probably will bring up about. she spoke about it pretty clearly through the lens of victims as a mother those are cases hard to prosecute so an attempt to neutralize the fireworks before they start even as senator lindsey graham had that tense moment in the hearing. >> c.k., chairman durbin is back in the room but i want to get obviously the overall picture. gitmo one instance of republicans pushing this soft on crime acquisition which has been repeatedly disproved, but i think the way that ari put it she has been careful and clear and would i add to that steering clear of the politics and sticking to the law your thoughts so far on her preparation and her ability to navigate this. >> well, i think her preparation has been impeccable. she's done a great job under

five staying in her lane. those are her words. if i had to draw a theme of her confirmation of the hearings so far she's very careful to stay in her lane. she doesn't want to go into the province of policy or what congress should be doing and pitches the ball back at them when they try to drag her in and stays in her lane, the rule of law, constitutional temperament and what judges should be. that's very wise, a great strategy. she sees not intimidated. lindsey graham's rants, sometimes shrill quiz were designed to give him talking points for something else and less about this confirmation hearing although i do think he has a right to question her on any opinions that she's taken, whether it's in an amicus brief or whether she's representing clients, but as a trial lawyer you're a zealous advocate on behalf of your clupt and that's something that should be

applauded. you shouldn't be condemned for being a zealous advocate for those who don't have the money or resources to hire lawyers. she's in the hot seat for sure. >> made a very short defense of the importance of that. let me ask you to look ahead. we obviously heard some passion, if that's what we're going to call it from senator graham, but there are other senators are who we know and they signaled earlier yesterday that they are going to be tough on her, people like josh hawley, tom cotton. what are you looking for as this hearing goes forward and we've probably got, i don't know, another eight or nine hours. >> it's hard to imagine that there's enough material left for eight or nine hours. i anticipate that they are going to come back to this issue of crime and the years that she spent in public service as a public defender, and i expect her to remain steady as she has, to remain steely and determined

and crystal clear as she has been today to absolutely dispute that there's really any connection between being a defender of the indigent or anybody else and being soft on crime and to really remind what she has throughout the day, and this is really what i loved so much about her testimony. she said repeatedly that her devotion is to the constitution and to service and that she built her career around those values. at one point she described her commitment to public service as a family value, and that's how she talked about her work in the guantanamo cases. it's how she talked about being a public defender, and i expect that those going to be her answer and the correct answer to much of what she's going to be asked about tomorrow. >> and to the whole point offer being soft on crime i thought it was particularly fascinating her answer when she talked about why now as a judge when a defendant comes before her she's very careful explain the process. let me play to you what she said

after that. >> crime and the effects on the community and the need for law enforcement, those are not abstract concepts or political slogans to me. as 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 insure that people who are accused of crimes are treated fairly. >> and with that, we're going to go back inside the room. senator durbin has gavelled back in. rrs let's listen. >> thank you, mr. chairman. judge, i want you to do me a favor.

will you nerd out with me a little bit. >> i will try, senator. >> we'll start with starry decis and i never figured out why lawyers speak in latin rather than english when describing these concepts by which judges apply precedent. but would you agree with me that even under at appropriate starry decis analysis that dread scott and pursy verses ferguson were overturned by the supreme court? >> i have not engaged in the actual analysis but i think it's well established now that the cases that over ruled, dread scott and plesy were correctly decided. >> i mean, there is a means by which the courts can correct their mistakes, correct?

by overruling previous decisions? >> if the various considerations that the supreme court -- uses to make that determination isn't satisfied. >> you have ever heard a federal judge talk about super precedent some. >> i have not. >> i've never seen it either in any opinion. i've heard it here in the judiciary committee on a number of occasions when somebody has a favorite case or outcome that they don't want to see the supreme court revisit. let me ask a minute. obviously, your nomination by president biden is historic and i congratulate you again. i congratulated you previously. i think it's been lodge over due. when clarence thomas, the second african-american who was

nominated to and confirmed by the supreme court was nominated, to court, did you celebrate that as a historic event? >> i'm trying to remember where i was at the time. i believe i did, yes. >> when we're talking about staying in your lane, and i appreciate your responses to a number of the questions, even though i'd love to get yourancer to the question. but where you deferred answering saying you want to stay in your lane and not be seen as a policy maker. would you agree with me that one of the most important questions under our constitutional form of government and the separation of powers is who decides? in other words some questions are appropriately decided by judges, who are elected -- unelected, serve for life, insulate aed from politics.

and other decisions are appropriately within the -- left up to the legislative branch because they -- we are accountable to the people who can vote for us. they can vote against us. if they don't like the policies that we enact in legislation. would you agree? who decides is an important question in terms of determining the appropriate role for judiciary and legislature. >> as a general matter, i agree it rarely comes directly like that. as an issue. it's usually not a jump ball between the legislature and -- some >> as a general proposition, you won't disagree with me? >> what i'd say is that the courts are properly tasked with

resolving legal questions. >> cases or controversies. >> exactly. in every case. >> congress is not similarly constrained. we can pass broad policies, comp are ehencive legislation. but the difference is -- one of the differences is the voters can unelect us if they don't like what we're doing. >> that is true. >> i want to ask you. did you study under lawrence tribe when you were at harvard some >> i did mot. >> well, as you know, justice breyer, your mentor, wrote a book called "active liberty." and lawrence tribe, who was a formerly a law professor at harvard, wrote a review and the title is politicians in robes. are you familiar with that article? >> kblb not.

>> well, in the article, professor tribe accuses justice breyer of engaging in what he calls a noble lie. and he said -- he talks about the morality of resorting to false hoods to conseal, usually from the masses but sometimes from one'sself, the truths whose revelation would wreak havoc or do more harm than good. professor tribe goes on in criticizing justice breyer's book. he says in his stubborn avoul, that the court, even with its current far-right super majority remains an apolitical body, he pech wait as lie that is anything but noble. you talked about staying in your lane, not being seen as political.

do you agree with justice breyer that -- or with professor tribe? >> senator, i believe that judges are not policy makers. that we have a constitutional duty to decide only cases and controversies presented before us and within that framework. judges exercise their authority to interpret the law and not make the law. >> so, you would agree with me that judges should not be politicians? >> yes. >> let me talk to you a little bit about some of the decisions that have been made by the supreme court over many years, starting perhaps with dread scott. that adopts the substntative due

process argument to determine the constitutionality of various laws. perhaps the most recent decision by the supreme court that was a dramatic departure from previous laws in the states and in the nation was the obervel case that dealt with same-sex marriage. it was noted here we are daelgs at the time. 234 years after the constitutional had been ratified, 135 years since the 14th amendment had been ratified. that the supreme court articulated a new fundamental right, which is a right to same-sex marriage. you're familiar with that case, aren't you?

>> i am. >> it was noted 11 states, including the district of columbia had passed laws sanctioning same-sex marriage but also at the same time, there were 35 states who put it on the ballot and 32 of those states decided to maintain the traditional definition of marriage between a man and a woman. do you agree with me that marriage is not simply a governmental institution, it's also a religious institution? >> well, senator, marriages are often performed in religious institutions. >> well, when the supreme court -- you agree ewith me that many of the major religions i can think of -- and christianity, judaism, islam,

embrace a traditional definition of marriage, correct? >> i am aware there are various religious faiths that define marriage in a traditional way. >> do you see that when the supreme court makes a dramatic pronouncement about the invalidity about state marriage laws, it will inevitably set in conflict between those who ascribe to the supreme court's edict and those who have a firmly held religious belief that marriage is between a man and a woman? >> well, senator, these issues are being litigated, as you know, throughout the courts i as people raise issues and so, i'm