broad to allow for federal regulation of interstate commerce and the growth of the economy in this country. but over time the supreme court has made clear the commerce clause limits the federal government, limited authority under the commerce clause. the state of the law is such that the federal government through the commerce clause is only permitted to regulate channels of interstate commerce, instrumentalities of interstate commerce and activities that substantially affect interstate commerce. with respect to the third category the supreme court has made clear in the lopez case and in morrison that noneconomic activities are not covered and

in the nfib case the aca case, the supreme court made clear that inactivity is also not covered and not authorized under the commerce clause. >> right. in most of the items i identified in my question, in fact, all of them, i believe, would fall under the category of interstate commerce, airwaves, waterways, networks, things like that. things that depend on their operation interstate such that they couldn't no one could regulate them and preserve their core function unless that was federal. with the third item, the

interstate commerce, is there much of a limiting principle there? you referred to lopez and morrison and to my knowledge those are the only three cases the supreme court has decided since its ruling which created a case, the modern effects standard. the only three instances as outside the commerce clause authority something that congress had enacted. are these meaningful constraints in your view or congress getting reckless in drafting of things? some have argued that as long as congress doesn't get reckless and sloppy it can do whatever it wants.

do you have any view on that? >> these cases come through the court so i'll be general. the fact congress is limited in its authority under the commerce law is established law, a fundamental principle and those limits that the supreme court has recognized do carve out activity that congress has not permitted -- is not permitted to regulate. noneconomic activity is a category, inactivity is a category. >> now the supreme court through the commerce clause established

rules, the dormant commerce clause. it acknowledges the power of congress the exclusive domain of congress as being regulating interstate commerce. there's no federal cause for the invalidation of a state law under the commerce clause. it's something that's been adopted by the courts. is that an appropriate exercise of the court's judicial power or does that amount to de facto legislation on the part of the courts? well, senator, i wouldn't characterize it. i know that's what the supreme court has permitted, the dormant commerce clause is a principle that supports regulation and authority of the federal government. and so states are not permitted under that doctrine to discriminate against other states.

in a way that interferes with interstate commerce. >> i want to turn back to a line of inquiry you had with senator durbin earlier today when you were talking about your sentencing in these child pornography cases. i want to make sure i understand your answer there. if i understand it, you were making the argument that your concern was that the laws in this area didn't adequately take into account the transfer of these materials by electronic means to be transmitted, received and stored through computers? is that my understanding of that correctly? >> well, senator, my -- the point i was making was that the sentencing commission, back when i was part of it and even since,

tasked with the responsibility to evaluate and make recommendations and look at the data and information about cases has looked at the operation of the child pornography guideline, not so much the statute but the guidelines, which the congress has tasked the sentencing commission with development, and there are aspects of the child pornography guideline that congress in legislation has required. they've required certain enhancements to be included in the guideline. and some of those enhancements, the data is now revealing don't take into account the change in the way that this horrible offense is now committed. >> the fact that it's easier to

commit the offense shouldn't diminish the severity of the punishment, should it, any more than the more widespread availability of certain drugs, the more widespread availability of certain weapons? surely you wouldn't argue for a lower sentence when certain things become easier in other criminal context, so why is this one different? >> well -- the sentencing enhancements that are in the guidelines are designed to help courts differentiate between different levels of culpability. congress will say this is an offense, whatever it is, and the maximum penalty is x. and, in most cases, the range is between zero and something like 20 years that congress gives when it establishes a penalty. the point of the guidelines is to help judges figure out where

in that range, between zero and 20 years a particular defendant should be sentenced. and the guidelines have gradations in them that relate to various aspects of the commission of the crime. sorry. so the commission does data -- does data gathering and research to figure out how crimes are committed and what gradations should matter in terms of the range of culpability, because the problem of not doing that or of getting it wrong is that you are not able to adequately assess and determine the differences among offenders on the scale. >> i understand that. in these cases, as i understand it, all ten of the cases that we've reviewed on record where

you've sentenced someone for a child pornography conviction, in all ten of those cases, you departed from the guidelines and departed downward. it's hard for me to understand departing from those in every case you've got because isn't a departure supposed to be grounded in a finding that it's outside the heartland of cases in that range, cases of that sort? >> yes, senator, and, as i said before, these are horrible cases that involve terrible crimes, and the court is looking at all of the evidence consistent with congress' factors for sentencing. the guidelines are one factor. but the court is told that you look at the guidelines, but you also look at the nature and circumstances of the offense, the history and characteristics of the offender.

there are a series of factors. in the cases you are also getting recommendations. and in most of the cases -- i haven't pinned it all down -- but in most of the cases if not all of the cases the government is asking for a sentence below the guidelines because the guideline system is not doing the work in this particular case. >> understood. section 230 of the communications act provides a degree of immunity for tech companies operating in the space of being online interactive service providers. it immunizes them from certain causative action that would apply against them. would it be within congress' authority to condition the receipt and availability of section 230 immunity on those

online interactive service providers operating as a public forum that is not discriminating on the basis of viewpoint or the viewpoint of those posting on them? >> senator, i can't comment on a particular issue about whether or not it is constitutional or not, but the criteria that you identify it would be relevant whether or not the government is seeking to regulate along viewpoint lines. that is something that is generally impermissible. >> thank you, mr. chair. >> thank you, senator lee. senator klobuchar? >> thank you very much, senator.

welcome, judge. your wonderful family. they all seem to be awake through this hearing. i want to get at something senator lee was talking about, not the dormant commerce clause, but i really appreciated early on how you talked about these child pornography cases as a former prosecutor, i could totally see where you were coming from when you talked about looking at these cases as a mom and a judge. a number of judges that were supported by our colleagues on the other side of the aisle have given out similar sentences in child pornography cases? >> no, senator, it would not surprise me because these cases are horrific and there's a lot of disparity because of the way the guidelines are operating in

this particular area. but in every case -- in every case that i handled involving these terrible crimes, i looked at the law and the facts and made sure the victims, the children's perspectives, were represented. and i also imposed prison terms and significant -- significant supervision and other restrictions on these defendants. >> thank you. i just also want to note -- and i know others have brought this up, the letter of support from the fraternal order of police in which they said from our analysis of judge jackson's record and some of her cases she applied the law consistently and fairly on a range of issues. there is little doubt she has a temperament, intellect, family background to have earned this appointment. we are reassured should she be

confirmed she would approach her future cases with an open mind and treat issues related to law enforcement fairly and justly. and that matters a lot to many of us. now i want to go back to something i was talking about yesterday and that is why today's hearing is so monumental including that it is occurring at a time when we as americans have been reminded again due to the courage of ukrainians thousands of miles away that we can never take our democracy or, for that matter, our courts for granted. it is also happening at a time when we are seeing each other for the first time after a two-year pandemic connecting to each other again. and i hope this moment will be a moment where we see a renewed interest in our democracy, that we respect each other's rights and views, and we see we are not a nation of 300 plus million silos. instead, we are a nation

committed to this idea that what unites us as americans is much bigger than what divides us. and so in that context, you come before us with this incredible strength, legal acumen, grace under pressure that you have demonstrated today, and you also come before us, as we've noted, as the first black woman to be nominated following 115 justices who have been confirmed. and i will note of the 115 justices, 110 have been men. and i actually once reminded late night show trevor noah of similar issues in the u.s. senate. in fact, in the history of the u.s. senate of the nearly 2,000 people who have served only 58 have been women. and he responded that if a nightclub had numbers that bad they would shut it down. but today, judge, we're not shutting anything down, not the court, not the senate, and you are opening things up.

and i think one of the things your nomination presents is an opportunity to address a decline in the public's confidence in our court and increasingly many, if you see public opinion polls, see the court as overpoliticized or out of touch. at the same time we've seen an alarming rise in threats targeting members of our judiciary for just doing their jobs. how do you think we can work to maintain the public's confidence in the court? what do you see your role in that? >> thank you, senator. public confidence in the court is crucial. as has been said here earlier, the court doesn't have anything else. that is the key to our legitimacy in our democratic system, and i am honored to accept the president's

nomination in part because i know it means so much to so many people. it means a lot to me. i am here standing on the shoulders of generations of americans who never had anything close to this kind of opportunity. from my grandparents who had just a grade school education but instilled in my parents the importance of learning. and my parents, who i've mentioned here many times already, who were the first in their families to get to go to college. so this nomination, against that backdrop, is significant to a lot of people. and i hope that it will bring confidence. it will help inspire people to understand that our courts are

like them, that our judges are like them, doing the work, being a part of our government. i think it's very important. >> very good. i think along those lines your wonderful mentor, justice breyer, i quoted him about how he said we can help maintain public acceptance of the court, and these are his words. we can do it best by helping ensure that the constitution remains workable in a broad sense of the term, specifically the court can and should interpret the constitution in a way that works for the people of the day, like, as you know, i think article 2, section 2, doesn't refer to the air force because we didn't have an air force back then. so there are things about the constitution that, of course, as we've gone along have been interpreted to meet the moments of our time. what do you think justice breyer means when he says a

constitution should be interpreted in a way that works for the people of today? and do you think justice can be both pragmatic and objective and respect history? >> i do and i think that the justices have demonstrated that. some of their recent opinions have had to deal with modern technology, technologies that did not exist at the time of the founding. so, for example, the riley case, the carpenter case, these were fourth amendment decisions in which the court was asked to determine whether or not it violated the fourth amendment for the police to search someone's cell phone without a warrant or for the police to use a gps location data to --

without a warrant. obviously those technologies did not exist, but what the court did was it looked back at the time of the founding and determined what the reasonable expectations of privacy were related to the term unreasonable searches and seizures, which appears in the constitution. and having assessed what that meant back then, they could use those principles to decide whether or not a cell phone is like someone's home these days with all of the information and all of the things that are stored there, and the court determined that it was a violation of the fourth amendment. that the police officers needed a warrant, and they did so with reference to what the constitution meant in history. >> very good. you were viewed as a judge and

you talk about this a bit yesterday that writes lengthy opinions, that believes you should spell things out, and believes in being transparent. is that a fair characterization? >> that is, that is. >> okay, good. i'm sure your clerks know that. and i want to talk about something, to me, that's a bit the opposite, and that's something some have turned the shadow docket, and that includes decisions that the court makes on an expedited basis that are usually unsigned and issued without oral argument or full briefing. in the last few years we've seen the court increasingly deciding cases in this way often over the dissent of maybe three or four of the justices. last term the court granted 20 requests for emergency relief, a historically high number. in the october term of 2011 the court granted only six requests in an entire year.

what do you think it's appropriate for the supreme court to grant emergency relief, use this docket, when are the circumstances that warrant this and i think you know these decisions have a profound effect on people's lives. one example, last fall in a one paragraph decision, a majority of the court stopped the enforcement of a texas law that severely restricts a woman's access to abortion. in that case even chief justice be roberts objected to the court's decision to let the law take effect calling the statutory scheme not only unusual but unprecedented. as someone who believes in transparency, could you talk in general about when you think the shadow docket should be used, when emergency relief should be given, and how, if it's overused it could undermine public confidence in the court? >> thank you, senator. well, there's a balance that the

court has to consider. and that it -- insofar as on the one hand it has always had an emergency docket, the need for flexibility, the ability to get answers to the parties at issue is something that's important in our system. on the other hand, the court has also considered the interest in allowing issues to percolate, allowing other courts to rule on things before they come to the court. and i am not privy at the moment to the justices' views and why and how they're using the emergency docket in these cases. if i was fortunate enough to be

confirmed, i would look at those issues, but it's an interesting and important set of issues. >> okay. i think just another example of this, by the way, is the day before wisconsin's primary election, april 6, 2020, at the first beginnings of some of the health orders that came out with the beginning of the pandemic the court issued a 5-4 decision halting a district court's order allowing voters extra time to cast their absentee ballots so that they could avoid waiting in line to vote. and back then people literally got covid, election workers and the like, because of this. and, again, i'm not going to belabor this point, but i think some of this these decisions made that don't reflect some of the careful consideration that you have made in many of your

decisions as a judge, but speaking of voting, i'll ask you one question on that front. since the supreme court guided the section preclearance regime of the voting rights act in shelby county the d.c. circuit has not seen many voting rights cases. however, as you know justice ginsburg dissented in that case describing the right to vote as the most fundamental right in our democratic system. do you agree that the right to vote is fundamental? >> senator, the supreme court has said that the right to vote is the basis of our democracy, that it is the right upon which all other rights are essentially founded because in a democracy there is one person, one vote,

and there are constitutional amendments that relate directly to the right to vote. so it is a fundamental right in our democracy. >> yes, i know that's how justice barrett answered that question as well in her recent hearing. i'm going to turn to an area that senator lee and i, we both chaired the subcommittee on antitrust, and so it's near and dear to my heart, so i thought i would spend a little time -- it usually gets rel gated to the second round but i'm putting it up on the docket here. u.s. antitrust law has been described as a comprehensive charter of economic liberty and i agree. and effective antitrust enforcement plays a critical role, as you know, in protecting consumers and workers promoting innovation, ensuring new businesses have an opportunity to compete.

it actually from really early on in our country's history has been a very important part of assuring that capitalism works. and in january for the first time since the dawn of the internet, the senate passed a tech competition bill out of the judiciary committee, a bill senator grassley and i lead many of the members of this committee supported the bill 16-6 vote. it's called the american innovation and choice online act. it's now headed to the senate floor. i'm not going to ask you about that bill obviously, but i want to put this in some context. while tech monopolies have seized from 50% to 90% market share in major parts of their business lines, it is clear to me when you look at the plain language of the sherman act, clayton act, laws that are in place, that these monopolies are not okay. however, court rulings for decades in antitrust have

created some major obstacles to taking on these cases, and it's not just court rulings. it is on us with, as i said, the dawn of the internet, decades having passed. it is on us, the senate and the house, to update our laws this year to give enforcers the resources to do their jobs. something you, if confirmed, would not have a role in, but the role of the courts is also very critical. you have been nominated to replace justice breyer, who came to the court with a strong background in antitrust law. i know you handled a case -- you and i discussed it in my office. i think it got -- i think it got decided -- the merger was abandoned so you didn't have to rule on the merits of it. it was back in 2017. an ftc challenge. but i'll just quote something that justice breyer once said. he told this committee if you're

going to have a free enterprise economy then you must have a strong and effective antitrust law. do you agree with justice breyer's statement, and how would you characterize the goals of our antitrust laws? >> well, thank you, senator. the antitrust laws protect competition and, as you said, therefore, protect consumers and competitors and the economy as a whole. and the sherman act and the clayton act are broad in their statements, in their protections, and there's a lot of precedent in this area. if i were confirmed, i would use my methodology to look at the precedents in these areas to ensure any legislation that i

was considering is interpreted according to the text consistent with congress' intent. and in the area of antitrust that is ensuring there is consumer protections. >> very good. and just -- >> you are watching msnbc's special coverage of the supreme court confirmation hearings for judge ketanji brown jackson. and we will return to the hearing in just a moment. but let's go to hallie jackson for the latest on ukraine. >> reporter: we're coming on the air with new developments about what's happening overseas. starting with the new assessment just in to nbc news from a senior u.s. defense official saying the ukrainians are making a push to take back territory the russians invaded and for the first time the combat power russia has in ukraine dipped below 90% of what they assembled. we're told the troops are getting low on gas. concerns over how the russian

navy will keep its ships running. at the white house sources just in are telling our team that during his upcoming trip to europe president biden could announce the u.s. plans to permanently keep more u.s. troops deployed in nato countries near ukraine, according to four people familiar with those discussions. the president heads to brussels to talk with nato leaders about not just the war but the growing refugee crisis because of it. i want to bring in nbc news correspondent gabe gutierrez in lviv. the city in the western part of the country has been a hub for refugees trying to leave. you just watched a train depart, not for poland or for another neighboring nation, but heading back east. talk to us. >> reporter: yeah, that's right. i'll get to that in just a moment. if you're noticing what's going on in the background, the air raid silence here in lviv just came back on a few seconds ago as you were starting to toss to me. this is becoming a regular occurrence here in lviv. i would say perhaps more so in the last few days or so.

they go on for several minutes and then they come back off. again this is something that's a way of life in western ukraine which has been seen as relatively safe haven for those refugees, so many of them that have come through this part of the country. earlier today i was at the lviv train station. there is still a large number of refugees coming through here, although dramatically less than what we were seeing several weeks ago. lviv's mayor says the flow through here in lviv is down to about 10,000 a day down from 60,000. set up in the places south and east of this country today, so we were expecting more trains to come back from the southeastern part of ukraine, places like mariupol that we're now seeing a greater number of refugees. what surprised me as well there was another train heading east, heading back to those ravaged areas. today we spoke with people who were taking supplies back to

those affected regions and also to several family members who were going back to pick up loved ones or help take care of some of those sick loved ones. take a look at one woman who was heading back east to take care of her sick father. >> reporter: going back home? why? >> reporter: are you scared to go back? >> reporter: still large areas of concern especially in and around kyiv where curfew is in effect and where ukrainian troops are now trying to take back control of some of the suburbs in kyiv, mariupol, of

course, huge concern. as i toss it back to you. again, i want to mention the air raid sirens here in lviv, a safe part of the country relatively so far but certainly this is another reminder of a country at war. >> gabe, we'll let you get to where you need to to be safe. gabe gutierrez live in lviv. thank you. we'll continue our coverage of the confirmation hearing for ketanji brown jackson right after a quick break. it was time for a nunormal with nucala. nucala is a once monthly add-on treatment for severe eosinophilic asthma that can mean less oral steroids. not for sudden breathing problems. allergic reactions can occur. get help right away for swelling of face, mouth, tongue, or trouble breathing. infections that can cause shingles have occurred. don't stop steroids unless told by your doctor. tell your doctor if you have a parasitic infection. may cause headache, injection site reactions, back pain, and fatigue. ask your asthma specialist about a nunormal with nucala. (vo) right now, the big switch is happening across the country. small businesses are fed up with big bills and 5g maps that are mostly gaps—

they're switching to t-mobile for business and getting more 5g bars in more places. save over $1,000 when you switch to our ultimate business plan... ...for the lowest price ever. plus, choose from the latest 5g smartphones— like a free samsung galaxy s22. so switch to the network that helps your business do more for less—join the big switch to t-mobile for business today.

this is elodia. she's a recording artist. 1 of 10 million people thatt hel comcast has connectedre to affordable internet in the last 10 years.

and this is emmanuel, a future recording artist, and one of the millions of students we're connecting throughout the next 10. through projectup, comcast is committing $1 billion so millions more students, past... and present, can continue to get the tools they need to build a future of unlimited possibilities.

the confirmation hearing of ketanji brown jackson continuing, the ninth questioner, amy klobuchar with ted cruz to follow. let's listen back in. >> about the court's decision to uphold roe v. wade. he said what has happened should serve as a model for future justices and a warning for all who tried to turn this court into yet another political branch. what role do you think that stare decisis plays in protecting the independence of the judiciary and avoiding the perception that the court is

acting as another, quote, political branch? >> i think it plays a very important role as a doctrine that keeps shifts from happening in the court, that, as i previously mentioned, it's very important to have stability in the law for rule of law purposes so that people can order themselves and predict their lives given what the supreme court has already said, and if there were massive shifts every time a new justice came on or every time new circumstances arose, there would be a concern that public confidence would be eroded. and so stare decisis is a very important doctrine that the

supreme court has established and it's one that furthers the rule of law in this country. >> thank you very much. that's a good way to end, judge jackson. and i do see senator cruz waiting in the wings, so by coincidence, it looks like he has things he's putting up of charts. by coincidence i was going to put on the record, and since he's here it makes a lot of sense, from the judge that you clerked for, senator cruz, judge ludig who has retired and i know were you close to him, he submitted a letter on your behalf, judge jackson, and said in this letter, and he's an appointee of george h.w. bush, similar to judge griffith who introduced you yesterday, and i've been very impressed the support you've had from retired judges, obviously not appropriate for current judges, but retired judges, appointed by

both democratic and republican presidents as well as the bipartisan votes you have gotten through the u.s. senate for your other positions. but in this letter the former judge says that you are eminently qualified to serve on the supreme court of the united states and then he actually says republicans and democrats alike should give their studied advice and then their consent to the president's nomination. and he adds republicans in particular should vote to confirm judge jackson. so i thought that might be a good segue, senator cruz, to your questions. so i ask, chairman, that the learn of support from former judge ludig who employed senator cruz as a trusted law clerk be admitted to the record. >> without objection.

>> thank you very much, judge jackson. >> thank you. >> senator klobuchar finds a minnesota connection to almost everything. very proud of the fact. justice blackmon was born in nashville, illinois. >> okay. he was a lawyer at the mayo clinic, as we know, and spent a lot of time -- >> i'm going to lose this battle. >> a lawyer in minnesota when he was chosen to the supreme court, but thank you for pointing that out. >> and now to the great state of texas, senator cruz. >> thank you, mr. chairman. judge jackson, welcome. >> thank you. >> congratulations. >> thank you. >> you and i have known each other a long time. >> we have. >> we went to law school together. we were on the law review together. we were a year apart. >> happily so, i hope, senator. >> we were not particularly close but we were always friendly and cordial. >> we were. >> and you and i had a very positive and productive meeting in my office where we discussed a number of things including you were there with former senator

doug jones. and we discussed how he and i and a number of other senators for years participated in reading aloud on the senate floor dr. martin luther king jr.'s letter from a birmingham jail, one of the truly great advocacies for civil rights our nation has seen. and you and i talked together about our shared admiration for dr. king. when senator grassley questioned you earlier he asked you about dr. king's speech on the steps of the lincoln memorial where he said most critically i have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. do you agree with what dr. king said in that speech there? >> i do, senator. >> as we were discussing it, you

referenced in my office a speech that you gave in january of 2020 at the university of michigan school of law. and after our discussion i pulled a copy of your speech and read the speech in its entirety, and there were elements of the speech that i thought were really powerful. and let me say your opening remarks yesterday were powerful and inspirational as well, and i thank you and your family, the journey you have taken to becoming a federal judge, a federal court of appeals judge, i think demonstrates the incredible promise and the incredible opportunity this nation offers all of us. as i read your speech at the university of michigan law school, however, there was a portion that surprised me. and in particular in that speech you referenced the work of, quote, acclaimed investigative journalist nicole hannah jones. this is a quote from the speech,

and her thesis america was born -- provocative thesis that the american that was born in 1776 was not the perfect union that it purported to be. and, indeed, ms. hannah jones in her 1690 projects describes the central thesis of the 1619 project which "the new york times" laid out as a revisionist look of history, revising american history, and ms. hannah jones described her central thesis as, quote, one of the primary reasons the colonists decided to declare independence was because they wanted to protect the institution of slavery. now that claim is a highly contested historical claim. do you agree with ms. hannah jones that one of the primary reasons the colonists decided to declare independence is because they wanted to protect the institution of slavery? >> thank you, senator.

when i gave that speech at the university of michigan, i was asked to speak on martin luther king day. and every year they have a martin luther king day speaker. and i gave a speech about black women in the civil rights movement. most of the speech, if not all of the speech, was focused on african american women, their contributions to the civil rights movement, unsung contributions in many cases, and then some of the more recent african american women who have made claims, who have done things in our society. one slide was of ms. -- a journalist, who you say, made that statement, and i called it provocative. it is not something that i've studied. it doesn't come up in my work.

i was mentioning it because it was, at least at that time, something that was talked about and well known to the students that i was speaking to at the law school. >> so are you aware that since the 1619 project came out that it has been roundly refuted by very respected historians including gordon wood of brown university, including james mcpherson of princeton university. mcpherson called it a, quote, very unbalanced one-sided account which lacks content and perspective and, indeed, telephones so thoroughly refuted that "the new york times" quietly altered the digital version to remove references to 1619 as the year of america's true founding and the moment america began? were you aware of that? >> i was not. >> so let me ask you related to

the 1619 project, which i believe is deeply inaccurate and misleading, 1619 project is closely intertwined with the movement that is called critical race theory. critical race theory, as you know, originated at your and my alma mater at the harvard law school. in your understanding, what does critical race theory mean? what is it? >> senator, my understanding is that critical race theory is -- it is an academic theory that is about the ways in which race interacts with various institutions. it doesn't come up in my work as a judge. it's never something that i've studied or relied on, and it wouldn't be something that i would rely on if i was on the supreme court. >> so critical race theory, as you know, has its origins in the critical legal studies movement

which also came from harvard law school from a number of critical legal studies professors, who are marxist and find their origin in marxism but frames society as a fundamental battle between socioeconomic classes, critical race theory frames all of society as a fundamental and intractable battle between the races. it views every conflict as a racial conflict. do you think that's an accurate way of healing society in the way we live in? >> senator, i don't think so, but i've never studied critical race theory and never used it. it doesn't come up in the work that i do as a judge. >> so with respect, i find that a curious statement because you

gave a speech in april of 2015 at the university of chicago in which you described the job you do as a judge, and up said sentencing is just plain interesting because it melding cripplial law and constitutiona race theory. so you described in a speech to a law school what you were doing as critical race theory. so i guess i would ask what did you mean by that when you gave that speech? >> with respect, senator, the quote that you are mentioning there was about sentencing policy. it was not about sentencing. i was talking about the policy determinations of bodies like the sentencing commission when they look at a laundry list of various academic subjects as they consider what the policy should be. >> but you were vice chair of the sentencing commission. so let me ask again, what did you mean by -- because that was an official responsibility of

yours -- >> what i meant -- >> what did you mean by critical race theory? >> what i meant was there was a number of -- that slide does not show the entire laundry list of different academic disciplines that i said relate to sentencing policy. but none of that relates to what i do as a judge. >> so let me ask you a different question. is critical race theory taught in schools? is it taught kindergarten through 12th? >> senator, i don't know. i don't think so. i believe it's an academic theory that's at the law school level. >> okay. as you may recall, during the confirmation hearings of justice amy coney barrett there was a great deal of attention paid to the fact that justice barrett served as a board member on the board of trustees of a religious private school and the press focused very intensely on the views of that school. in your questionnaire to this

committee you disclosed you are similarly on i aboard, specifically the board of trustees for the georgetown day school. and you've been a board member since 2019 and you're currently still a board member. is that correct? >> that is correct. >> in regard to the georgetown day school you've publicly said, "since becoming a member of the gds community seven years ago patrick and i have witnessed the transformative power of a rigorous progressive education that is dedicated to fostering critical thinking, interdependence and social justice." when you refer to social justice in the school's mission on social justice, what did you mean by that? >> thank you, senator, for allowing me to address this issue. georgetown day school has a special history that i think is important to understand when you

consider my service on that board. the school was founded in 1945 in washington, d.c. at a time in which by law there was racial segregation in this community. black students were not allowed in the public schools to go to school with white students. georgetown day school is a private school that was created when three white families, jewish families, got together with three black families and said that despite the fact that the law requires us to separate, despite the fact that the law is set up to make sure that black children are not treated the same as everyone else, we are going to form a private school so that our children can go to school together.

the idea of equality, justice is at the core of the georgetown day school mission, and it's a private school such that every parent who joins the community does so willingly with an understanding that they are joining a community that is designed to make sure that every child is valued, every child is treated as having inherent worth and none are discriminated against because of race. >> so judge jackson, all of us will agree that no one should be discriminated against because of race. when you just testified a minute ago that you didn't flow if critical race theory was caught in k through 12, i will confess i find that statement a little hard to reconcile with the public record because if you look at the georgetown day school's curriculum it is filled and overflowing with critical race theory.

that among the books that are either assigned or recommended they include "critical race theory: an introduction." they include "the end of policing," an advocacy for abolishing police. they include "how to be an anti-racist" by ibram kendi. they include literally stacks and stacks of books. and i'll tell you two of the ones that were most stunning. they include a book called "anti-racist baby" by ibram kendi. and there are portions of had this book that i find really quite remarkable. one portion of the book says babies are taught to be racist or anti-racist, there is no neutrality. another portion of the book,

they recommend babies confess when being racist. now, this is a book that is taught at georgetown grade school to students in pre-k to second grade, to 4 through 7 years old. do you agree with this book that is being taught with kids that babies are racist? >> senator, i do not believe that any child should be made to feel as though they are racist or though they are not val jude or though they are less than, that they are victims, they are oppressors. i don't believe in any of that. but what i will say is when you asked me whether or not this was taught in schools, critical race

theory, my understanding is critical race theory as an academic theory is taught in law schools and to the extent that you were asking the question i understood you to be addressing public schools. georgetown day school, just like the religious school that justice barrett was on the board of, is a private school. >> okay. so you agree critical race theory is taught at georgetown day school? >> i don't know. because the board is not -- the board does not control the curriculum. the board does not focus on that. that's not what we do as board members. so i'm actually not sure. >> well, and i'll note that the board is chaired by professor fairfax, your college roommate who introduced you yesterday. the two of you serve on the board together. another book that is on the summer reading for third through fifth grade is a book called "stamp for kids" again by ibram kendi. i read the entirety of the book and i will say it is an astonishing book. on page 33 it asks the question,

"can we send white people back to europe?" that's on 33. that's what's being given to 8 and 9 years old. it also on page 115 says, "the idea that we should pretend not to see racism is connected to the idea that we should pretend not to see color. it's called color blindness." skipping ahaerngsd here's what's wrong with this, it's ridiculous, skin color is something we all absolutely see. skpg ahead, "so to pretend not to see color is pretty convenient if you don't actually want to stamp out racism in the first place." now, what this book argues for is the exact opposite of what dr. king spoke about on the floor of the lincoln memorial. and are you comfortable with these ideas being taught to children as young as 4 in respect to the first book as young as 8 and 9 in respect to

the second book? >> senator, i have not reviewed any of those books, any of those ideas. they don't come up in my work as a judge, which i'm respectfully here to address. in my work as a judge, which is evidenced from my near decade on the bench -- >> okay. then let's go back to your work as a judge. as was noted in the first slide, you discussed sentencing as being related to critical race theory. and earlier there's been some back and forth as democratic senators have tried to address your sentencing patterns as it concerns child pornography. p and i'll confess, judge jackson, as -- look, as i listen to your testimony, i believe you are someone who is compassionate. i believe you care for children. obviously your children and other children. but i also see a record of activism and advocacy as it concerns sexual predators that

stems back decades and that is concerning. you wrote your note on the harvard law review on sex crimes. your note is your major academic work on the law review and yours is entitled "prevention versus punishment: towards a principled distinction in the restraint of released sex offenders." and in it you argue, and i quote, "a recent spate of legislation purports to regulate released sex offenders by requiring them to register with local law enforcement officials, notify community members of their presence, undergo dna testing and submit to civil commitment for an indefinite term. at many courts and commentators herald these laws as valid regulatory measures, others reject them as punitive enactments that violate the rights of individuals who have already been sanctioned for their crimes. under existing doctrine the constitutionality of sex