first of two long and intense days of questioning from members of the senate judiciary committee began this morning with democrats using their questions to allow jackson to issue a rebuttal to republican accusations that she has been soft on crime and republicans pressing her on her record as a judge and public defender and bringing up a whole host of conservative hobby horses. things like critical race theory. jackson has tried to stay above the fray in her responses. early on in the hearing, she told democratic senator, dick durbin, quote, i tried to stay in my lane. along with me are claire mccaskill and msnbc political analyst with danielle holly walker, dean and professor at howard school of law and joyce vance, law professor at university of alabama as well as an msnbc legal analyst. we have a few minutes before we

go back to the hearing. claire, i want to start with you. just some of the fireworks that happened earlier today. just in the last hour or so. senator ted cruz arrived prepared with visuals. among them, excerpts from a book for children called anti-racist baby. senator cruz seemed intent on questioning judge jackson about critical race theory. what, may i ask you, do you think the point of that was in oh, say, claire, a midterm election year? >> yeah. it was really awkward. ted cruz knows better. this is a woman that has a really long judicial record. hundreds of opinions. that he could mine for nuggets that would prove his point, but oh, no. oh, no. there's nothing there in her actual judicial record. so he's trying to shoe horn, you know, cultural war buzz words into a record that is just

simply laughable. i think it looks silly when he was doing that. i think she was taken aback. i think anybody with a brain, and it was a good lawyer was taken aback. i thought chris coons did such a good job. talk about fighting buzz words with buzz words. he brought up a wall and hillary's e-mails. this judge had two cases with the wall and hillary's e-mails and decided against both hillary clinton's position and those people who didn't like the wall's position. because she did it just on the facts in front of her and the law as it applied to those facts. what a great rebuttal to all of the bs that somehow this is a partisan judge stalking in crt and other things into a judicial position on the highest court in the land. >> danielle, i wonder if you just say the phrase, critical race theory, enough times,

whether it does the work. the audience that ted cruz was speaking to is probably a different audience that the audience is chris coons is speaking to, although the phrase, hillary's e-mail, is a sparkly object. do you think that phrase works at all? just saying crt over and over again? >> we've really reached the right of political theatre at this point and earn is trying to play to their audience and get in the most points that they can. i found it a deeply offensive line of questioning and i think she rightfully pointed out, what does this have to do with my role as a judge and potentially a justice on the united states supreme court? it did not go to her qualifications. her almost 600 opinions or her judicial philosophy or methodology on how she decides cases, but to hold up books that he claimed are part of the curriculum at georgetown day i

found to be a really deeply offensive line of questioning and clearly, a dog whistle in terms of racial politics. i think it was a low point. also suggesting that those books are not appropriate, which i think is also you know, at a time in our country where we see the promotion of book banning and restrictive teachers can learn is a low for this hearing unfortunately. >> joyce, i wonder, at one point senator cruz mentioned a quote from judge jackson talking about the theories that she relied upon or that the sentencing commission relied upon in formlating its sort of thesis if you will. and critical race theory was mentioned in a sort of longer laundry list and judge jackson tried to articulate the difference between the sentencing commission and her work as a judge. do you think she was effective in her rebuttal?

>> i think she was far more effective than senator cruz was because something he seemed to do, alex, he didn't really have any conviction on any of these questions. they were mostly misleading if not just outright sort of fake questions. he would ask them and as soon as she handled them, he would move on. that was what happened with this question where he tried to equate her work on the bench with the work of the sentencing commission which is charged with formlating policy. that's not what judges do and she had been very clear talking from the moment she hit the senate hearing room this morning about her desire to stay in her lane as a judge. cruz was of course unable to come in with any examples from her cases of times she had strayed from her lane. even with that, the slide he put up was misleading and she had the opportunity to come back and explain that critical race theory was one of any number of frameworks that could be consulted when making sentencing

policy and that the slide cruz showed her had conveniently emitted all of the remainder. i don't think she had much trouble handling them and the ultimate goal here is to avoid losing a single democratic senator's vote, he certainly do her any damage today. >> claire, the drama starring lindsey graham written by lindsey graham, lighting and costumes by lindsey graham. he brought the fireworks, the drama, this afternoon when he took his moment to question judge jackson to unleash a litany of complaints about how conservatives have been mistreated in hearings and otherwise more broadly in society and stormed out of the hearing. what did you make of that performance? was it effective? what's the point of it all? >> i guess i'd have to, you know, figure out who lindsey was

playing to. i guess he was playing to that 25% of the population out there that are big trump supporters and are the base of the republican party right now. it certainly was not the lindsey graham of most judiciary committee confirmation hearings. this is a man who voted for a number of democratic nominees through the years and who typically looked at qualifications and did not engage in histrionics. he had a moment during the kavanagh hearings where he used righteous anger and he believes that turned the tide for justice kavanagh. he may have been right. and i think he's gotten comfortable in that role. so now he's kind of the drama guy. i was disappointed because he is capable of very pointed, effective questioning.

unlike other senators who's done some cross-examination in his day and he typically knows how to make a point and make it well. but this was awkward that he was kind of trying to put on a show, like you said. you know, give me the popcorn and where are the credits. >> danielle, one wonders what the strategy is on behalf of a number of these high profile republicans on the committee. whether this is not just fodder for some broader argument they're making. some broader attempt at a culture war within american society. i guess i just wonder, you know, it seems like they're trying to figure out a way to be righteously indignant over judge jackson's nomination, but there's really not much there in her record. do you read it in the same way? >> absolutely. yesterday, what was interesting is we didn't see negative comments about her qualify

cases. there seems to be no disagreement among the senators on the committee about her qualifications. she is, has excellent qualifications. ranked well qualified by the aba. what's very interesting is seeing someone like senator graham, who has voted for her confirmation. so we have to keep in mind this is her fourth confirmation hearing. senator graham has voted for judge jackson's confirmation in the past, so to see this political theatre and the point scoring, the attempts to point score without really thinking about and talking about specifically her record is to me disappointing, but it also lends this incredibly partisan trend to supreme court confirmation hearings. and so even though we heard a lot of talk yesterday about civility, about complaining about how political and ugly these confirmation hearings have become, we've seen that trend continue today with lot of questions that have nothing to do with judge jackson's

outstanding qualifications and record as a judge and she has an extensive record. which could be actual talked about in many of the moments where political point scoring is being attempted. >> i want to follow up on that, danielle. i kind of wonder how we'll look back at this confirmation hearing. there of course have been these partisan fireworks, but then there are the moments where judge jackson talks about her own experience, her family, the fact that she's received letters from little girls who say they're so excited to see someone like them to see someone like them take a seat on the highest bench on the land. i wonder whether the contours of history are shamed around that as opposed to where a lot of the republican members on this committee would like to see us go. >> i thought one of the most special moments from her exchange with senator cruz went right to your point. which is when she talked about the history of the georgetown day school. and talked about the history of

a group of jewish and black parents wanting to create a school despite the fact that there was still legalized segregation. i agree with you that i think those moments are hopefully that will survive and the historic nature of this hearing and of hopefully her eventual confirmation to the supreme court. those will stick with us and i have to say my students are going to the hearing tomorrow. seeing students in the audience. seeing people around the country celebrate the historic nature of this confirmation hearing, i hope that that is what survey survives and that's what she has done a great job with is taking these deeply offensive lines of questioning then hitting home runs with them by talking about her personal story, achievements, but also the work of being fair and impartial in a system in which we know is not always the case. >> just a reminder for those joining us now. we are in a short break in the

confirmation hearings for judge ketanji brown jackson. she is walking back into the room i believe right now. we still have our panel with us. joyce, really quickly. i want to get your thoughts on how judge jackson responded to questions about roe v. wade, which are concerned may fall in this coming docket on the court. did you, she cites starry desies is, something we heard from justice kavanagh and amy coney barrett. what did you make of her answer in terms of roe being settled law effectively? >> well, she certainly dug in on the role of the court in abiding by starre. which we're all waiting to see if the court will overturn roe versus wade this time, which would be a clear violation. there's a lot of squabbling about when old cases are right

to be overturned. that's why you heard some of the senators referencing cases like dread scott which was overturned because it held black people can be owned by white people. clearly bad law. that's the sort of argument that republicans will offer if roe versus wade is in fact overturned so the issue becomes an issue of whether additional case, for instance cases that entitle american women to obtain contraception. >> joyce, i hate to cut you off, but we are going back to the confirmation hearings for judge ketanji brown jackson. we know senator ben sass is up next. we'll return to those hearings now and take a listen. >> thank you for answering the questions of the committee today and tomorrow. what you've said in public matches what you've said in private and that's a testament to your character. that also could be helpful to rebuilding public trust. so thank you for the way you've

engages us thus far. judge, you are likely to go on to serve a lifetime appointment on the supreme court, which means that this is very likely the last job interview you ever have. >> and the most public, senator. >> these processes are a lot like proctology exam. that means it's an opportunity for you to explain how you view a supreme court justice's job and the limits and bounds on the job. so i want to go back to a topic we've discussed, which is how you approach cases. you've told this committee and in in private, that you don't have a judicial philosophy yet, but you think of yourself as having a judicial methodology. i'd like to understand that a little bit more and i think it would be helpful for the american people to understand that argument and the distinction more as well. earlier today, you said you quote, do not believe there is a living constitution and you also said that you're constrained to interpret the text and i think

you said sometimes that's enough to resolve the issue. so i think i've heard you pay partial tribute to the judicial philosophy of originalism, but you've not adopted it as philosophy or label that applies to you. so maybe one of the places we could tease that out a little bit more is trying to dig into who's jurisprudence you most add mir. we've heard senator grassley, i'm not an attorney, so farming and ranching people from i come from know that john kennedy is super smart lawyer who kind of pretends to be an aw shucks kind of guy as he picks your pocket. >> do i get equal time, mr. chairman? >> he always gets unequal time. he always gets bonus time. but i think it might be helpful for us to understand who you most identify with in past nominees before this committee

have talked about the mold of particular justices they thought they followed in. so if you had to tell the american people who you're closest to, who's that justice or those justices? >> thank you for the question, senator, and i must admit that i don't really have a justice that i've molded myself after or that i would. what i have is a record. i have 570 plus cases in which i have employed the methodology that i've described and that shows people how i analyze cases. i, in every case, am proceeding neutrally from a neutral posture from, in every case. i describe thoroughly all of the arguments that are made in the case to me as a judge because i

want, in my lengthy opinion, for people to understand the inputs. this, i say, is what i'm considering because i lay out in very detailed way, everything that people have argued in the cases and when i'm doing my interpretation, i am focused on the text of any statute or constitutional provision. i am looking as appropriate to the intentions of the people who wrote the words because i view statutory interpretation, constitutional interpretation, those exercises consistent with my limited authority. i am conscious of not interpreting those texts consistent with what i believe the policy should be or what i think the outcome should be. i am trying in every case that involves that kind of

interpretation to assess what it is that the parties, the parties who wrote the text intended. as a result, because my methodology involves these various pieces and because of the way in which i do things, i'm reluctant to establish or to adopt a particular label because the idea of how you interpret is just one part of the entirety of a judge's responsibility. as i mentioned, you know, i'm looking at the facts in a case. and my experience as a trial judge helps me to assess the facts from all of the different perspectives of the parties because i'm able to do that, i think, having heard from parties in all sorts of cases directly as they present their arguments. that's a part of the judging

responsibility that isn't really captured by something like originalism or living constitution and i believe that the constitution is fixed in its meaning. i believe that it's appropriate to look at the original intent, original public meaning of the words when one is trying to assess. because again, that's a limitation on my authority to import my own policy views. but there are times when the meaning, unreasonable searching and seizures, due process. looking at those words are not enough to tell you what they actually mean. you look at them in the context of history. you look at the structure of the constitution. you look at the circumstances that you're dealing with in comparison to what those words meant at the time that they were

adopted and you look at precedents that are related to this topic. all of those tools judges use and i have used, if you look at my cases. >> but when you said that you look at the intent of the authors of a statute, sometimes courts have to say the people who wrote this statute, whether they meant to or not, have done something the we the judiciary, speaking in the voice of you, is unconstitutional. and deciding that something is unconstitutional requires an ininterpretertive frameworks. we talked in my office about the differences between kagan, sotomayor's judicial philosophies and you told me you needed time to study that issue further. so assuming you've had a chance to think about that more, i guess i'd ask you again, among the three of their judicial

philosophies. >> with respect, senator, i have not actually had time with all of my meetings with senators and the work that i've don to appear before you today. i would say that there are differences as you see from the various opinions that they have issued. i'm not sure which one i would necessarily follow because it depends on the case. i think their differences indicate that they are looking at different provisions. they are using the various tools that judges use and that i have used in my cases. the idea of striking down a statute is unconstitutional is daunting and should be for any judge or justice and would have to be looked at very carefully because of the limited nature of the judicial role and the fact that the policies have been

adopted by the branch of government that has that authority under the constitution. >> so i guess i'm surprised after nine years on the bench that, i mean, you're super smart. nobody disputes that. and having worked for justice breyer and knowing of some of the philosophical arguments he and justice kagan had, it seems surprising that you wouldn't be able to reflect on the nachl of those disagreements because to say it depends on the particular case, that's fine, but they have different philosophical approaches. maybe another way to get at it. i think justice breyer again for whom you clerked and justice scalia used to travel together and have lively debate circuit conversations. can you tell the american people a little bit about what breyer, scalia road show looked like?

what were they arguing about? >> well, my understanding is they were arguing or at least presenting two different viewpoints as to how the constitution should be interpreted. and i would say just as an aside before talking about their positions, that while i have been on the bench for nine plus years, the issue of constitutional interpretation in that sense doesn't come up very often. it comes up to the supreme court for sure. but it doesn't come up very often in the lower courts. what justice scalia and justice breyer, i believe, were debating was the justice scalia's notion of originalism, meaning the words of the constitution should be interpreted as they were written by the founders in the founding era and that they

should not be considered to essentially to establish principles that modern justices could now apply based on their own view of the needs of society. and that justice breyer's position was more toward that latter view. that the idea of the constitution needing to be interpreted in a way that is consistent with modern sensibleties about the principles that the document reflects. and i would just say that it appears now that the supreme court has taken justice scalia's view that the prevailing

ininterpreter frame for interpreting the constitution is now clearly looking back through history. so we see that even in the heller case where the justices, even the justices in dissent, were all analyzing the issues in the second amendment through a historical lens. what was meant at the time of the founding. so that is now the way in which constitutional interpretation is done. >> do you identify with that position? >> i identify with the position in so far as that's how the text is interpreted of the constitution. that i am a strong believer, as i said, in precedent, starre decisis and the way the law interprets the constitution is through this historical frame. >> i'm grateful for your last couple of minutes because i think that it's in the american

civic interest for us to understand these different schools. again, non-lawyer here, but my simple way of summarizing some of what i think i heard you just say is that scalia argues hard that the constitution has a fixed meaning and justices aren't really free to depart from it without a constitutional amendment passed by the political branches so voters can hire and fire the people and have a role in the state level and breyer's position seems to me, and i won't get it precise enough in technical legal terms probably to satisfy him, but that the constitution is speaking to more abstract principles and therefore there's a lot more play in the joints of what a justice's job is and i think the way you summarized their debate was pretty fair and i think it's fair for us to understand what your position is about it because you're obviously, as i've said, incredibly smart and incredibly

likable and winsome and on the stage for a lot of americans to look up to. i'm at the rah rah here here side of the debate at the level of what is a supreme court justice's job. i think that's what a lot of us are still trying to tease out the philosophical distinction, which i think is more than a methodology. i want to thank you for that answer. you've brought up the fourth amendment a number of times in our conversation and i'd like to talk more about constitution and whether its meaning changes. so i'd like to go back to the topic you brought up in my office. you said, i think, that, and correct me if i'm missummarizing your position. you said originalism wouldn't have much to say about the fourth amendment because the founding fathers never perceived of a piece of telecommunications equipment like this. you said that the original meaning won't tell you much about what to do with the new

technology. my guess is that originalists and scalia in particular, would disagree. so what do you do if the text of the fourth amendment doesn't answer a question? where do you go next? >> well, senator, just to clarify what i intended to say and i may well have misspoken, there is an originalist take, i think, on the question of what happens with a cell phone. as the supreme court held in the riley case, there was a way in which you assess principles of the constitution, the text of the constitution and apply it to modern technology. and you have to because there's no question that cell phones didn't exist at the time of the founding. so if the originalist principle is we look only at the constitution as it relates to things that existed at the time

of the founding, there would be no answer to what to do about a cell phone. and so what the supreme court has said and done is to determine that the principle of the fourth amendment with respect to searches is to determine whether there is a reasonable expectation of privacy. they also have looked at property interests with respect to whether or not there's an invasion of privacy, then determined from history what that reasonable expectation of privacy related to back at the time of the founding and analogized to current circumstances related to things like cell phones. it's a method of interpretation that allows you to instead of the alternative, which would be

don't worry about the history, just look at the words in the constitution and say what do i think is reasonable or unreasonable with respect to police officers searching cell phones. that's not the way the supreme court handles it. they try to determine what was unreasonable historically and then given those principles, historically, it would be unreasonable for police officers to enter someone's home, to rifle through their papers and documents. they then analogize to current circumstances and the fact that a cell phone is like your personal file cabinet and they say okay, given what we understood the framers to have intended about the need for a warrant or the need for protection against unreasonable searches, we are going to apply that to modern circumstances. it's still an originalist way of

analyzing the current dispute. >> so are there non-originalist ways to wrestle through that same question? and what would they be? >> one could imagine that rather than referencing history at all, that the court would look at the constitution. it says no unreasonable searches and seizures, and would just ask in, you know, in light of modern sensibleties, in light of what we would think would be reasonable today or what the court itself would think would be reasonable today. we'd apply that modern understanding to the cell phone situation. and the danger i think justice scalia would say is that that's a kind of framing that permits judges to make a determination based on their own views rather

than shoeing themselves as senator lee said before that justice barrett pointed out, huing themselves to the text of the constitution. >> and does breyer have a different view? >> you know, i haven't, just trying to think. my understanding of the living constitutional principle is that it's closer to looking at the needs of modern society. but i'm not well versed in it. in part because the supreme court has now so clearly taken the historical perspective, the originalist perspective in its interpretations. >> you brought up cell phone example with me, but i know you have others. what are some other areas of life where the original meaning seems to be two and a half centuries removed? what are places that the constitution seems to not speak to?

. >> well, senator, i'm reluctant to spell out different circumstances. what i will say is when you look at the language in the constitution, there are some provisions that are completely clear on their face without any question of what was intended. the age of, the required age of senators. the required minimum age of the president. these kinds of provisions. all you need is the text and there you are. but there are provisions of the constitution that are broader than that and therefore some interpreting frame is necessary. every question the supreme court gets that involves new technology, for example, that relates to constitutional

provisions will require some kind of analogy, i think, but you know, i can't speak to, to anything more than that. >> you have described justice breyer's constitutional approach as pragmatic. what does that mean? >> i understand it to be his approach to be about ensuring that the rules that follow from the supreme court's determinations are ones that make sense and are workable. >> he said recently explaining his approach to interpreting a statute. you're not going to go outside the words, but it often doesn't give you the answer and you look

at the history and its purposes and the consequences, too, and you'll try to evaluate them from that. the point of view of what a reasonable legislature writing the statute have thought that these words were there to achieve. do you align yourself with that position? >> in the broad sense that what it is that the court is tasked with when statutory interpretation is being undertaken, is to achieve the purposes of the legislature. the text is the primary and in most cases, sole indication of what the legislature intended as opposed to the court saying i see this statute, but i'm, you know, uncomfortable with how it's going to turn out or what it's going to need and so i'm

going to import my own policy perspective. instead, the court is constrained to say regardless of what i think the right policy objective should be in this, with respect to this law, my purpose, my requirement is to determine what congress intended. >> with respect to legislative intent, when a congress of 535 often distracted people and 435 in the other pass something by a two to oneish vote and it's a part of a large piece of legislation, how do you determine what the intent is when it's 535 people doing something that has many, many different purposes for why somebody might vote yes? >> well, you look at the text. i mean, the way in which statutes are interpreted is

based on what the legislature says. there are times in which there are statutes in which congress includes a purpose statement, for example, in the actual text of the statute. you look at the text of the provision. if that isn't clear, you look at the structure of the statute. there are cannons of interpretation that courts use to evaluate and interpret statutes. things like the word that appears in the section that you are interpreting should be defined the same way it is in another section. the same word being used congress probably intended to, for it to have the same meaning. so there are tools in the law that exist to help courts to interpret the text, but again, the goal is to interpret the text as a means of understanding

and reflecting what congress intended. and of course, in statutory interpretation, if congress decides that the court has gotten it wrong, then as has happened many times, congress comes back and clarifies and tells the court, no, this is what the statute means. >> i want to go back to an exchange you had with senator cornyn. substantive due process is a doctrine that often allows courts to create new fundamental rights. what's the test for determining a new fundamental right? >> the supreme court has said in the glutzburg case that the fundamental rights that are recognized or that are included in substantive due process are those that are deeply rooted in the nation's history and

tradition. in a case prior to that, the court defined it as the rights that are implicit in the ordered concept of liberty or the ordered concept of liberty. so there are standards for the courts to use to identify these types of rights. >> so did the supreme court use this test in roe or casey? >> in roe and casey, i don't know that the court used that formulation. i know that after casey, the court has determined not so much that the right to terminate a woman's pregnancy is fundamental. the right exists and it's subject to the framework in casey that allows for regulation

so long as there's not an undue burden on the exercise of the right pre viability. >> i think some of what we're wrestling with here and i think what senator cornyn was driving at, is how particular the concept of deeply rooted goes and how that really is abound on what the judiciary can do. i want to thank you. we're nearly at time. i want to thank you for engaging in the back and forth. i want to think more about what you've said and look forward to further discussion tomorrow. it still appears there's a very basic difference between a judicial philosophy and judicial methodology and how you apply that and making a determination about constitutional or non. i know that you haven't claimed a judicial philosophy at all, be u a judicial philosophy of originalism here, but i think the fact that you've at least nodded to it in the committee

hearing today is in and of itself is pretty great testimony to how much of scalia and bork's work has moved the legal field. i'll look forward to listening tonight and talking with you again tomorrow. >> thank you. >> thank you, senator. senator blumenthal. >> thanks, mr. chairman. thank you, judge, for your patience and perseverance. i want to begin just by thanking also for an extraordinary moment in our history. i think we all as americans feel excitement and pride in really making history here and the old saying that a picture is worth a thousand words as i look at your parents and your husband and your daughters, what i see is america. and the best of america. so i think we should all feel that excitement and pride in

this moment and the extraordinary journey that has brought you here. you will make the court look more like america but also think more like america. in the obstacles and the challenges you've overcome to be here. we don't know all of them. but you will provide a very important perspective, indeed a unique perspective that the court needs more than ever at this moment in history. there are a lot of people who are book smart. there are not as many people who are person smart and you are both. that kind of emotional intelligence is what our courts need. not just our supreme court. so i want to really begin by asking you as a role model for others to talk a little bit to the young women and girls of

america. particularly black young women and girls. about those challenges and obstacles that you've had to overcome to be here and what's helped you do it. >> thank you, senator. i am humbled and honored to have the opportunity to serve in this capacity and to be the first and only black woman to serve on the united states supreme court. i stand on the shoulders of generations past who never had anything close to this opportunity, who were the first and the only in a lot of different fields. my parents, as i said, were the

first in their families to have the chance to go to college. i've been the first and the only in certain aspects of my life so i would say that i agree with you that this is a moment that all americans should be proud. >> now you've never been a prosecutor. a lot of us on this panel have been prosecutors. i was four and a half years and attorney general of my state for 20 years. but i would say one of the most meaningful cases in my career was as a defense counsel. i was asked by the naacp legal defense fund to represent a black man on death row in your home state of florida.

he had been convicted of murder and rape. had been on death row for a number of years. i took the case because i was asked to do it and eventually, somewhat to my surprise, found in fact he had never done the crime of which he had been convicted. eventually, we won his freedom because the prosecutor in the case concealed evidence, which was a violation of his constitutional rights and he was a free man as a result. your husband, as a surgeon, saves lives. lawyers don't do it often, but i know from personal experience the importance of having a good

representative and advocate, counsel. because in that case, he had been denied it when he originally went to trial and only after years in both state and federal courts was the truth vindicated. so i want you to talk a little bit about why it is important for to be represented by zealous, really aggressive and energetic advocates who tell the truth to the court, put on the evidence, and present the best possible case for a defendant accused of a crime. >> thank you, senator. the idea is one that is rooted in our constitution. the framers were concerned about government overreach in a lot of different areas.

the provisions of our constitution are protecting individual liberty from government overreach. this is why we have provisions about limited government and there are many provisions in the constitution that are limiting government action when it comes to the deprivation of liberty because the framers understood how important liberty is to our society so there's the fourth amendment. the fifth. the sixth, the eight amendment. these provisions are crucial and it is zealous defense counsel that ensures that the government is protecting these rights, that these rights are protected and that people are getting due process in the criminal justice system and that's to all of our benefit.

that helps everyone in america. when we ensure that liberty cannot be denied without due process. it's defense counsel as i said who are making arguments and they're not condoning the criminal behavior. they're making arguments on behalf of clients in defense of the constitution in these constitutional values and as a judge, i now see how important it is for me to be able to make my decisions after hearing from both sides. that's crucial. we have an adversarial system which means that judges are presented with arguments from both the prosecution and the defense and only when i'm able to hear from both sides can i make a just, fair determination

and fairness is the hallmark of our constitutional scheme and it's what makes us the best criminal justice system in the world. >> and it's not only the reality of fairness, but also the perception of fairness, the public's understanding of how courts work that is essential to the credibility the courts have, correct? >> that is correct. >> and so i feel very strongly, i know that a number of us on the committee agree, that more transparency, visibility is important for the public to see what goes on in the courtroom. i know you feel transparency is a good thing. you've been asked about cameras in the courtroom. i'm a supporter of senator grassley's sunshine in the courtroom act as well as senator durbin's cameras in the courtroom act. i am hopeful that the court,

united states supreme court, actually will back these proposals because their support would be very important. tell me how you feel about the basic principle of transparency and more visibility. >> well, senator, one of the reasons, as i said, that i write such long opinions is because i want everybody to know exactly the arguments i have considered, the facts that i have reviewed, and, in pretty fine detail, the course of my reasoning, and i've done this in 570 opinions. i think it's important for public confidence, as you say, for people who are bound by the law and who are affected by the courts to know what the court's views are.

with respect to the issue of cameras in the courtroom, i understand that that is something that is proceeding through congress, and if i was confirmed, i would look forward to talking with my colleagues to understand the positions that people have regarding that issue. >> i appreciate that response. one of the areas that i think is important to transparency and to public trust and confidence in the court is visibility as to its own decisions, which i think is directly contradicted by the shadow docket. you've been asked about it before, but i just want folks to understand that some of the most important decisions the supreme court have been decided or at least issues resolved without oral argument, without briefs,

without any public explanation. a controversial travel ban has gone into effect. the first federal execution in 17 years was permitted. statewide covid restrictions were enabled. the collection of data in the 2020 united states census and enforcement of voting restrictions in the 2020 presidential elections as well as decisions relating to immigration and blocking the biden administration from enforcing a federal moratorium on evictions, imposed because of the covid-19 epidemic, americans have a right to an open, full, fair proceeding with a record of the court's reasons for making decisions. so, i hope that you will urge your colleagues, when you talk to them about cameras in the courtroom, also, to do less on

the shadow docket and i hope that perhaps if they don't, congress will take some action. i finally want to ask, so far as this issue of transparency is concerned, about codes of ethics. you have followed a code of ethics as a district court judge and court of appeals judge, correct? >> i have. >> does that code of ethics apply to the united states supreme court? >> my understanding is that it does not. >> correct. and my hope is that you will perhaps urge your colleagues as well to support a code of ethics. they haven't done so as yet, but i think we have an obligation in the congress to set fort a code of ethics and i hope they'll support it. senator durbin and others of us have supported that kind of measure as well.

and i would just ask you whether you'll raise it with your colleagues if you're confirmed. >> senator, certainly if congress is taking anything up that requires our review, i would absolutely -- i would absolutely consider it and even if not, i would consider it. >> thank you. >> talking to them about it. >> thank you. the reason i raise these points is that i respect the united states supreme court. i've argued four cases before i was a law clerk to justice blackman who, by the way, was from minnesota, mr. chairman. in fact, he was known as one of the minnesota twins when he was appointed because he was thought to be exactly like then chief justice warren berger who also

was from minnesota in his very, very conservative views, and as it happened, justice blackman became one of the most progressive members of the court over the years that he served. he had a capacity for growth and for learning and listening, which i believe you have, and i think it is one of the most important characteristics of anybody who serves on the court. but i do think the court's crisis of legitimacy is the result of divisions within the court, the polarization and politicization that has drawn lines. the process that has happened in recent years in confirmation proceedings, so i really think that consensus building,

building bridges with your colleagues, will be immensely important. i think that's one of the reasons that the president chose you, having talked to him about it, that you have that kind of persuasive and forceful intellect but also the personal charm and warmth and depth that will enable you to do it. maybe you can tell this committee about how you worked on the sentencing commission, for example, or in your previous experiences on that kind of consensus building. >> thank you, senator. consensus building was one of the things that justice breyer was particularly good at in terms of his personality in the time that i clerked for him, i witnessed the way in which he continually reaches out to colleagues, continually seeks

common ground, and it's something that i would hope to be able to emulate if i were to be confirmed. when i worked on the sentencing commission, the commission is a seven-member body working on sentencing policy, which is, at times, a pretty contentious effort, because we're talking about criminal justice. as commissioners, we are working on policy issues related to appropriate sentencings, and by statute, the commission is a bipartisan group. and during my four years as a commissioner, i was able to work well with other members of the commission to find common ground, to work on issues, to

come together in the vast majority. i heard a statistic that something like 95% or 97% of the votes that the commission took were unanimous. and that happened because of a lot of effort and intention on the part of all involved to see if we could work together. and that would be the kind of thing that i would hope to do if i was confirmed to the supreme court. >> you've mentioned in your previous testimony the challenges of applying the law to evolving and new technology. obviously, the internet raises exactly those questions. congress passed the electronics communications privacy act in 1986 when the internet was barely recognizable. it was nascent, just starting, and now, our nation faces a

mental health crisis. it is partly aggravated by the pandemic, the isolation and anxiety that's resulted from it, but also by the internet and by the tech platforms that drive toxic content at children. as a result of these blackbox algorithms that nobody really understands, literally, no one understands because the tech platforms want to keep them secret, and we are trying to upgrade the law and update it to give parents tools to have greater visibility as to what their children are doing and to give parents and children tools to protect them against some of the bullying and eating disorder content and even suicidal and substance abuse stuff that they are driven to see.

and senator blackburn and i have introduced a bipartisanmeasure, the kids online safety act that will provide a modern solution to a modern problem to update the law to account for the role of social media in or ongoing and aggravating mental health crisis in this country. do you agree that it helps the supreme court and judges in general to do their job when congress updates our statutes to account for technological change? >> thank you, senator. the role of the court is to interpret statutes when there are disputes related to the statutes, and in circumstances in which statutes have not been

updated, i don't think it's surprising to note that there are disputes about the meaning of the statute, about how it applies, and so to the extent that congress undertakes to make amendments and make the changes, i think it helps courts, maybe there will be fewer disputes, or easier disputes to resolve. >> easier disputes to resolve in the sense that -- and i've seen it happen -- a judge will say, i don't know what congress meant to do in this kind of situation, because this law was written at a time when none of this stuff now existed. i'm sure you've faced that situation. i think it's true of social media and the dangers to children as a result of the toxic content that they often

find and often seemingly are addicted to use again and again and again because it's part of the business model of those social media and big tech platforms. >> yes, i have -- i have faced the situation. one of my cases, the alliance of artists and recording companies vs. general motors is a case that i ended up writing a couple of opinions about and involved a statute of congress related to digital recording audio devices and whether or not royalties were required for the purchase of those kinds of devices, and it was enacted at a time in which recording technology was at a different stage than it is now. and disputes arose that came before me regarding whether or not to apply the royalty

requirement in that statute to modern recording devices, and in particular the recording devices that are now in automobiles, when you take your cd and put it in your own car and record on to the hard drive of your car, is that the same thing as putting your cd in one of those machines that records from cd to cd and you give the second recording to all of your friends. that was what the statute was originally meant to cover, and the question was whether recording to your own car's hard drive counted, and it was a very interesting interpretive exercise, but again, it was the kind of thing in which i was focused on trying to ascertain what, based on the text of the statute and the definitions in the statute, what congress

intended this statute to cover. >> and cars, other devices, appliances at home collect huge amounts of data, don't they, and as consumers, we feel we own that data. it's ours. but it can be bought and sold, exchanged and mined in a way that right now consumers have no consent over. and it enhances the dominance of just a few of those tech companies, just a few of the corporations, corporate power is emboldened and enabled in many respects by the amount of data they collect. it's also enabled by forced arbitration. we've had a reference to it already today with respect to complaints about sexual harassment, which fortunately we have addressed. i've been proud to work on the

ending forced arbitration of sexual assault and sexual harassment act, which president biden signed after we passed it just a few weeks ago. i've heard harrowing stories from survivors of sexual assault and victims of workplace harassment who were silenced and denied justice by forced arbitration, but forced arbitration applies as well to everybody who has a cell phone. you have a forced arbitration agreement. many workers have forced arbitration agreements. nursing homes have forced arbitration agreements. the point is that you have dedicated your life to access to the courts, the right of a trial, the right to a jury, the right to a judge. none of it is possible where there is a forced arbitration agreement. that's why i've worked on a

measure called the f.a.i.r. act that would make any forced predispute arbitration agreement invalid and unenforceable if both sides want arbitration, that's fine, but access to the courts should be available to everyone. i know that you are limited as to what you can say about measures that are before us and policy issues, but i hope that you will consider the trend that the court has adopted in support of forced arbitration and denial of rights like class action and review whether they are appropriate. let me just finish with a couple of quick points. first of all, on the harvard law school, harvard law review article, on registration of sex offenders, convicted sex

offenders, i must say, i read this article several times. in my view, it is analysis, not advocacy. would you agree? >> absolutely, senator. as a law school student, i was trying to do what law school students do, which is analyze a new set of legal provisions. these laws were new, and i was trying to assess what criteria courts could use to look at them. i was not making an argument about them at all. >> exactly. and by the way, one of those statutes was in connecticut. it was challenged on constitutional grounds, double jeopardy. it went to the united states supreme court. i defended it there. it was upheld, 9-0.

i don't know whether your article was cited, but i would put this law review article very much in the category of analysis. the distinction between prevention and punishment. i would call it protection, not punishment, or prevention. that's the argument that i made to the supreme court. i ask that this article be put in the record, mr. chairman. >> without objection. >> by the way, it took me two or three times to get through it, so no disrespect to you or the harvard law review. the issue of child pornography. you recommend -- you mentioned, i think, that in your decisions on these sentencing cases, involving child sexual abuse material, which, by the way, i

agree is absolutely horrific, abhorrent. it's the reason that senator graham and i have actually sponsored a measure called the earn it act that addresses it, but you said that you imposed a sentence that matched the recommendation by either the prosecution or the probation office in most of the cases where you did that sentencing. is that right? do i have that -- >> yes, senator. in looking back at the records concerning my cases, it looks as though i had 14 cases that involved either child pornography, internet -- interstate travel to meet up with a child for sex, the sex crimes related to children, and in 10 of those 14 cases, i

imposed a sentence that was consistent with or greater than what either the government or the prosecution requested. >> the probation officer. >> excuse me. sorry. the government or the probation office. >> and let me just ask you. the probation office is an independent arm of the court that investigates the defendant, looks at the crime, the defense background, his family situation, all of the relevant factors involved in sentencing, including the sentencing guidelines, and then independently and impartially makes a recommendation, presumably to serve the interests of justice in that particular case based on the individual facts there. is that roughly a correct description? >> that is correct. the probation office works

within the court system. they are independent of the parties, and they investigate and make recommendations in cases concerning what the probation office thinks is an appropriate sentence. >> thank you. let me just finish by saying, much of america's watching these proceedings on a split screen. on one hand, they are literally seeing the death and destruction in ukraine, russia's brutal, barbaric assault on individual rights, basic freedoms that we often take for granted here, and we are exercising those rights right here. you are a teaching lesson, this proceeding is a teaching lesson about the importance of

democracy. the people of ukraine are fighting for it. they are dying in their neighborhoods and streets and their homes. they are huddled in basements. their men and women are resisting valiantly and braving -- bravely against a huge military force that russia has unleashed and a reign of terror from the skies simply because they believe in the ideals of freedom and law. that we are seeking to preserve here, and so on this side of that split screen, i think it's important that we do our best to honor the norms and the rules that you have sought to uphold throughout your life, and i'm proud and excited to be here with you and your family as we go through this process, and i

look forward, as i hope many of us do, to a bipartisan majority in support of your candidacy. thank you. thanks thanks, mr. chairman. >> thank you, senator blumenthal. i'd like to bring everybody up to date. we have several considerations, remaining senators for questions. the endurance of our witness, judge jackson, votes on the floor, requests for compassionate release by a number of people in the audience. here is where we stand. we are going to have senator hawley followed by senator hirono. then we're going to take a 20-minute break because that's when we think there will be some votes on the floor, and we can take care of those and get back in 20 minutes. then we will return from that break to senators cotton and booker. then we'll take a 30-minute break or so for dinner. then it will be senator kennedy, padilla, and tillis, and we're going to start off tomorrow with our two senators, ossoff and

blackburn, so we should finish in the 9:00 to 10:00 hour this evening, god willing. so at this point, i recognize senator hawley. >> thank you, mr. chairman. judge, nice to see you again. thank you again for being here. congratulations again on your nomination. i want to start where senator blumenthal left off. i want to talk with you about some of these cases i mentioned them yesterday, so i know you know which ones i want to talk about. these seven cases, child pornography cases in which you would discretion, they came before you, you had discretion to sentence one way or another in these seven cases, not every case, of course, do you have discretion. sometimes the law requires you to impose a certain sentence but in these seven, you had discretion and these are the seven you chose to depart both from the federal guidelines and also from the government's, the prosecutor's recommendation. senator lee asked you a little bit about this. senator cruz has asked you about it. he had a chart with the seven cases on it. before we jump into those, i want to correct the record on

one r two things. senator coons suggested that in three cases, nickerson, nguyen and fife, you actually imposed sentences within the guidelines or at the same level of the prosecution but in nickerson, you didn't have any discretion. that was an 11 c 1 c case and nguyen wasn't a child porn case and neither was fife. just one other quick thing to clarify. as to this comments about the probation office, the probation office doesn't issue national guidelines, right? i mean, the probation office doesn't issue sentencing guidelines. they're not public. they're not recommended to all judges. the probation office provides advice to judges, case-by-case, usually in private, usually not available to the public, is that right, judge? >> not exactly, senator. the probation office in criminal cases is assigned by the court to work with respect to the evaluation of cases.

and every case consistent with congress's requirements, the probation office prepares a presentence report in which they review all of the statutory factors concerning sentencing. congress has a statute for sentencing. it requires judges to consider the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to promote various purposes of punishment. there are many purposes listed in the statute. and the probation office is the arm of the court that does factual investigations in every criminal case, unless -- there are certain cases in which you can waive it, but the background is the probation office's assessment of the facts related

to a particular sentence, and -- a particular crime, and the probation offices report when a court sentences actually, in most cases, becomes the findings of fact of the court, and so the probation office appears just like the prosecution and the defense, the probation office has written a report, and they make a recommendation to the court based on their independent analysis related to the facts of a particular crime and defendant and sentence. >> understood. so, they give the court counsel. understood. however, they don't issue guidelines. they're not uniform. it is by its very nature a case-by-case inquiry, as you said. the report goes to the judge. as i understand it, the presentencing report -- i'm sorry, the probation reports are not public in all of the cases we're talking about here. i'd love to see them if they are.

but it's not as if there's one set of guidelines that are federal sentencing guidelines and then there's the probation guidelines. the probation office is giving advice to the judge, it varies case by case. >> senator -- oh. >> it's not the same. >> sorry. i thought you were done. >> that's all right. let me ask you about a specific case. let's talk about -- i listened to these seven cases in which you had discretion, and you did not follow the prosecutor's recommendation or the sentencing guidelines but let's just talk about one of them because we've talked about some of them as a group. let's talk about united states vs. hawkins, that's probably one you remember from 2013. the defendant there was wesley hawkins. he was 18 years old at the time. he uploaded five video files of child pornography from his computer to youtube. this is how the police got on to him. he then uploaded another 36 depictions of child porn and other lewd photos of children to his icloud account. when the police executed a search on his apartment on the premises, they found 17 videos on his laptop and 16 images of

child pornography, all of them very graphic, some of them involving very young children. the 17 videos in particular, this is from the gofrpt sentencing memorandum in this case. here are some of the videos that the government charged that they recovered. there was a 24-minute 6-second video depicting a 12-year-old male committing a sexual act. i'm not going to read exactly what it was. there was a 1:57 video depicting an 8-year-old committing a sexual act. there was an 11:47 video depicting an 11-year-old committing a sexual act and being raped by an adult male. there was a 15:19 video depicting two 11-year-olds committing sexual acts. there was a 7:51 video depicting

a 12-year-old committing a sexual act. so, as the government said in this case, and i'm quoting now from the transcript at the sentencing hearing, 17 videos is a lot. and some of the videos, including the ones that were described in the statement of the offense, and i have just related some of them, are very lengthy and include numerous images, numerous views, sometimes collages, sometimes multiple victims. you see the act in progress. the government goes on to describe some of these as sadomasochistic images. this is a tough case. this is one of those tough cases were referencing earlier. you talked about it this morning. you said these cases are terrible. this is one of them. this is terrible stuff. this is not a good guy who's doing this stuff. guideline recommendation was 97 to 121 months so if i'm doing my math right, that's up to ten years. and in this case, the guidelines recommendation was essentially written by congress, because in the protect act of 2003,

congress specified what they wanted to be the range to be in these kind of cases, and congress also specified what they wanted the mandatory minimums to be. i know you remember the protect act because you've talked about it. you've given lectures on it, and it was enacted in 2003. it was 84-0 was the vote here in the senate. the concern -- the reason the protect act was put into place was the senate was concerned over lenient sentence business judges in child porn cases. you said there was an increasing perception on capitol hill and within doj that liberal judges were to blame for the downward pressure on federal sentences and that legislation was necessary to rein them in. that's you in 2011, describing this law. so congress has set the guidelines here, 84-0 in the senate. i noticed the chairman voted for it, as did a number of other members of this committee, so the congress sets the range, essentially, it's 97 month up to 10 years. the prosecutor in this case,

this is in d.c., of course, you're on the federal district court, prosecutor in this case, a liberal administration, i think, it's fair to say, this isn't the state of texas. i see my colleague from texas next to me here. prosecutor in this case nevertheless still asked for two full years in prison. you gave the defendant three months. guidelines called for ten years. prosecutor wanted at least two. you gave him three months. and when you did, you made a number of arguments and statements on the record and i would like to go through some of them because i've read them all and the first argument you made was that the federal guidelines that published child porn offenders were, and i'm quoting, are in many ways outdated. that's your quote. and you went on to say about why you thought they were outdated. you say, and i quote, i don't feel that it's appropriate to increase the penalty on the basis of the number of images or prepew but sent victims because

these circumstances exist in many cases if not most and don't signal an especially heinous or egregious child pornography offense, end quote. i just want to ask you about that because i just have to tell you i'm having a hard time wrapping my head around it. we're talking about 8-year-olds and 9-year-olds and 11-year-olds and 12-year-olds. he's got images of these, the government said, added up to over 600 images. gobs of video footage of these children, but you say this does not signal a heinous or egregious child pornography offense. help me understand that. what word would you use if it's not heinous or egregious? how would you describe it? >> thank you, senator, for letting me address the concern that you have put forward based on the record that you have reviewed. as a judge who is a mom and has

been tasked with the responsibility of actually reviewing the evidence, the evidence that you would not describe in polite company, the evidence that you are pointing to, discussing, addressing in this context is evidence that i have seen in my role as a judge. and it is heinous. it is egregious. what a judge has to do is determine how to sentence defendants proportionately consistent with the elements that the statutes include with

the requirements that congress has set forward. unwarranted sentencing disparities is something that the sentencing commission has been focused on for a long time in regard to child pornography offenses. all of the offenses are horrible. all of the offenses are egregious. but the guidelines, as you pointed out, are being departed from even with respect to the government's recommendation. the government in this case and in others has asked for a sentence that is substantially less than the guideline penalty, so what i was discussing was that phenomenon. that the guidelines in this area are not doing the work of differentiating defendants as the government itself indicated in this very case.

and so, that's what i was talking about, but i want to assure you, senator, that i take these cases very seriously, that these cases include the notion by many defendants that the folks at issue, the defendants themselves, are collecting these images on the internet, they're terrible things that have happened but they are not involved, say, the defendants. they're not focused on, you know, what is actually happening to the children. and so part of my sentencing was about redirecting the defendant's attention. it's not just about how much time a person spends in prison. it's about understanding the harm of this behavior. it's about all of the other

kinds of restraints that sex offenders are ordered, rightly, to live under at the end of the day. the sentences in these cases include not only prison time but restraints on computer use, sometimes for decades, restraints on ability to go near children, sometimes for decades. all of these things, judges consider in order to effect what congress has required, which is a sentence that is sufficient but not greater than necessary. >> let me just ask you. >> to promote the purposes of punishment. >> you said this a couple of times now. the sentences that congress require. congress wanted the guidelines to be mandatory. congress wrote the guidelines in this case. they wanted them to be mandatory. they gave the courts factors to consider to choose between the sentencing range. congress wanted you to choose

between 97 and 121 months. that's what congress wanted. the supreme court, in booker, said that the sentencing guidelines would be discretionary so the supreme court gave you the discretion, but if we're talking about what congress has wanted, congress wanted them to be mandatory. my only point in raising that is just to say that you had discretion in these cases and you used your discretion to choose the sentences that you did. let me ask you about some of the things, though, that you said, because you said this, this morning, and i appreciated how you wanted to get the defendants to own up to what they've done in these cases and i thought it was powerful and i thought it was right. but let me ask you about what you said to this defendant. you said to this defendant, whom you sentenced to only three months in prison, that your collection, i'm quoting you, your collection at the time that you were caught was not actually as large as it seems. the government felt the need to respond to you on the record. they said, the government doesn't believe it's appropriate to just disregard the number of

inls, that the number of images can be appropriate and that even this case, the defendant has amassed an extremely large collection of child pornography. but you disregarded that. you also told the defendant, you said this. this seems to be a case where you were fascinated by sexual images involving what were essentially your peers, and then you went to say, the defendant was merely trying to satisfy his curiosity. curiosity is your word. one more thing on this. same idea. you said, you were viewing -- this is you to the defendant. you were viewing sex acts between children who were not much younger than you, and this whole discussion is about why you're only giving him three months. judge, he was 18. these kids are 8. i don't see in what sense they're peers. i've got a 9-year-old, a 7-year-old, and a 16-month-old at home. and i live in fear that they will be exposed to, let alone exploited in this kind of

material. i don't understand you saying to him that they're peers and that therefore, you were viewing sex acts between children who were not much younger than you and that that's -- that's somehow a reason to only give him three months. help me understand this. >> senator, i don't have the record of that entire case in front of me. what i recall with respect to that case is that unlike the many other child pornography offenders that i had seen as a judge and that i was aware of in my work on the sentencing commission, this particular defendant had just graduated from high school. and some of, perhaps not all, when you were looking at the records, but some of the materials that he was looking at were older teenagers. were older victims.

and the point, senator, is that you said before, the probation office is making recommendations and they do so on a case-by-case basis. that is what congress requires. this is not donet the level of once -- >> but you had discretion, judge, you admit that? i >> sentencing is a discretionary act of a judge, but it's not a numbers game. it's not -- i understand that congress wanted the guidelines to be mandatory. the supreme court in 2005 determined that they couldn't be in an opinion by justice scalia, determined that they couldn't be, and congress, since then, has not come back to amend them or to change them or to make them mandatory again, and so there is discretion at sentencing, and when you look at the sentencing statutes,

congress has given the judges not only the discretion to make the decision but required judges to do so on an individualized basis, taking into account not only the guidelines but also various factors, including the age of the defendant, the circumstances of the defendant, the terrible nature of the crime, the harm to the victims, all of these factors are taken into account and the probation office assists the court in determining what sentence is sufficient but not greater than necessary. and i appreciate, senator, that you have looked at these from the standpoint of statistics, that you are questioning whether or not i take them seriously or i have some reason to handle them in either a different way

than my peers or a different way than other cases, and i assure you that i do not. that if you were to look at the greater body of not only my more than 100 sentences but also the sentences of other judges in my district and nationwide, you would see a very similar exercise of attempting to do what it is that judges do. attempting to take into account all of the relevant factors and do justice individually in each case. >> well, let's keep talking about this case. you also said to this individual, who is an adult, tried as an adult, 18 years old, you also said to him, besides saying that you thought his victims were his peers, you also said there's no reason to think that you are a pedophile. and then you went on to say, again, that's another reason why you weren't going to give him --

you're only going to give him three months, because you had adjudged that he wasn't a pedophile, and then you said, and this is something i really need your help understanding, then you apologized to him. and i just have to tell you, i can't quite figure this out. you said to him, this is a truly difficult situation. i appreciate that your family's in the audience. i feel so sorry for them and for you and for the anguish this has caused all of you. i feel terrible about the collateral consequences of this conviction. and then you go on to say, sex offenders are truly shunned in our society. i'm just trying to figure out, judge, is he the victim here? or are the victims the victims? you're saying that you are -- you're apologizing to him. you're saying you're sorry for the anguish this has caused him. there was a victim impact statement in this case. it didn't get read into the record, but it was there. i've described the videos that

we have. you say earlier in the case, you talk about how heinous these crimes are, and you describe them to your credit, you describe how heinous it is, to your credit, and yet here you are giving him three months and apologizing to him and saying you feel sorry for the anguish it's caused him and also saying you think that sex offenders are truly shunned in our society. so, just -- just talk about that. help me understand. i mean, is he a victim? is that your view here? is that why you said this? is that what you meant by it? >> senator, i, again, don't have the entire record. i remember in that particular case, i considered it to be unusual, in part for the reasons that i described. i remember in that case that defense counsel was arguing for probation, in part because he argued that here we had a very young man, just graduated from

high school, he presented all of his diplomas and certificates and things that he had done and argd, consistent with what i was seeing in the record, that this particular defendant had gotten into this in a way that was, i thought, inconsistent with some of the other cases that i had seen. part of what a judge is doing, as required by congress, is thinking about this case, thinking about unwarranted sentencing disparities. that's in the statute. other cases, other determinations that a judge may have made about this. i don't remember in detail this particular case, but i do recall it being unusual. and so my only point to you is that judges are doing the work

of assessing, in each case, a number of factors that are set forward by congress. all against the backdrop of heinous criminal behavior. but the guidelines are longer mandatory. congress has not corrected, as you would say, the supreme court's determination about that. justice scalia's decision that the guidelines are not mandatory, congress has not said that, and congress has given judges factors to consider. this, in my view, was an unusual case that had a number of factors that the defendant was pointing out, that the government was pointing out, that the probation office was pointing out, and i sentenced this 18-year-old to 3 months in

federal prison under circumstances that were presented in this case because i wanted him to understand that what he had done was harmful, that what he had done was unlawful, that what he had done violated the law and needed to be punished, not only by prison but also by all of the other things that the law requires of a judge who is sentencing in this area. >> but judge, with all due respect, and i tell you, i'll be direct with you. i am questioning your discretion and your judgment. that's exactly what i'm doing. i'm not questioning you as a person. i'm not questioning your excellence as a judge, frankly, but you said it. you had discretion, and that's exactly what i'm doing. i'm questioning how you used your discretion in these cases, and to me, to take a guy who's 18 years old, who has what the government says is an extremely large collection of prepubescent

pornography, 8-year-olds, 10-year-olds, gobs of hours of time here that he has, and you say to him, what, that -- you say that, well, you know, it was just a collection. i mean, he was just viewing it. and it was, you know, essentially they were his peers. you say to him that he's not a pedophile. i don't know how you know that. i don't know why that's relevant to the guidelines but maybe it is. you say he's not a pedophile. you say that you are very sorry for him and what he suffered and then you give him three months when, frankly, a liberal prosecutor is asking for two full years. i mean, it does seem like an extraordinary case to me. it would bother me no matter what. it really bothers me when in every child porn case you've had, you've had discretion, you've sentenced below the guidelines and below the government's recommendation and saying that sex offenders are truly shunned in our society, as you said to him, it reminds me,

echos what you said as early as law school in that harvard law review article that senator blumenthal was talking about. you say, and i'm quoting, in the current climate of fear, hatred and revenge associated with the release of convicted sex criminals, courts must be especially attentive to legislative enactments. regarding these sex criminals. i guess like this -- the enactment here, the protect act that congress enacted. so i want to -- i want to try to understand here, is it your view that society is too hard on sex offenders? you say they truly are shunned in society. you wrote that many of these laws are products of a climate of fear, hatred, and revenge. so, just -- is that -- is that still your view? i mean, do you think that these -- that these laws are too tough, that we're too tough on sex offenders? explain what you meant in this case in 2013 and it seems to be the same thing you said many years ago. >> senator, it's not the same thing i said many years ago.

many years ago, as a law school student, i was evaluating a new set of legislation, state laws, about registration, and i was analyzing them as law students do. wasn't about the sex crime. it was about the characterization of the law. is it a punitive law? is it a prescriptive law? and how would a court go about determining that? that was the frame that i used then. it could have been about anything. it was about the characterization of legislation. >> but judge, just to -- i'm sorry. i don't mean to interrupt you. i've only got two and a half minutes left but just to understand this. i'm quoting from your conclusion now. this is on page 1728 of the harvard law review. this is your conclusion. in the current climate of fear,

hatred, and revenge associated with the release of convicted sex criminals, courts need to be especially attentive to legislative enactments. so that's a conclusory statement. you're saying there is a climate of fear, hatred and revenge that are informing the laws and you described some of the laws earlier, megan's law and others. senator cruz asked you about those. i'm trying to understand what you meant by that. you're saying something similar in the hawkins case, society truly shuns our sex offenders. >> senator, with all due respect, my article is now in the record. people can read it and they can see that i was evaluating these laws not to determine their constitutionality, not to say that they shouldn't be enacted, but to talk about the ways in which courts make determinations about the character of the law and all of the consequences that follow from them. in law school, i had not had any

experience in terms of the criminal justice system. and i was doing what law students do, which is seeking to analyze in a creative way new legislation. with respect to mr. hawkins, i was doing what judges do. which is, look at the statute, 18 usc 3553 a, exercise discretion as congress has required us to do, take into account all of the various aspects of a particular case, and make a determination consistent with my authority, my judgment, and an understanding, fully, the egregiousness nature of the crime. as you said, even the prosecutors in these cases are

not recommending guideline sentences. the probation office, which is an independent authority, looking at these cases and the facts related to them are not recommending guideline sentences. this is a particular area where the commission has seen an enormous amount of disparity and has, in fact, asked congress to come back and address, to help judges who are looking at these cases to be able to rely on the guidelines. >> which congress has declined to do. >> senator, in that case, we have the statute that congress has enacted concerning penalties, and we have judges who are doing their level best to make sure that people are held accountable as they need to be in our society in a fair and just way.

>> mr. chairman, my time's expired. i have -- thank you, judge. i have no further questions. at this time. >> just checking with my staff. so, the original statute was passed in 2003. the scalia decision, 2005. the booker decision? >> so, the original statute that i am talking about, i'm just thinking was -- i felt like it was in the '80s. >> we think -- >> in 2003, i'm -- all right. and then -- >> the decision by -- >> justice scalia, the booker decision made the guidelines advisory, so that even though judges have to calculate them, they are no longer binding and what it meant in the statute is that the guidelines became one factor among many that judges consider at sentencing. >> i'm not going to opine on justice scalia and his conduct

in decision as it relates to the overall topic. i hope we all agree that we want to do everything in our power, reasonably, within our power, to lessen the incidence of pornography and exploitation of children. you have made that clear that is your position too. but i just want to tell you, congress has -- doesn't have clean hands in this conversation. we haven't touched this now for 15, 16, or 17 years, and this -- you aren't the only one who faced this kind of a challenge with cases before you. i said this morning, and it bears repeating, in the united states vs. klotz, trump-appointed judge sara, hawley's choice, senator hawley's choice for the eastern district of missouri, sentenced an individual convicted of possession of child pornography to only 60 months, well below the 135 to 168-month sentence recommended by the guidelines. >> mr. chairman, you've mentioned this. >> let me finish. i'll finish and then of course

i'll recognize you. senator hawley, you've said some very powerful things in support of this judge, but clearly, she faced a situation where she decided she would not follow the guidelines and took a sentence of less than half of what they recommended. we have created a situation because of our inattention and unwillingness to tackle an extremely controversial area in congress, and left it to the judges. and i think we have to accept some responsibility for that, senator. >> i just wanted to say, chairman durbin, since you mentioned the judge in the klotz case, she followed the prosecutor's recommendation in that case. my -- as i've said over and over, part of my concern with judge jackson is that she has not followed the prosecutors' sentence. she didn't in the hawkins case we were just talking about or the guidelines, and i'm happy -- we can have a policy debate about whether or not the guidelines are too lenient. i would argue in this era of exploding child pornography, they're not too lenient at all. i think you were right the first

time when you voted in 2003 to make them tougher. >> i will just say that i don't know if you sponsored a bill to change this. i'll be looking for it. but i will tell you that there isn't a long line of people waiting to cosponsor this controversial issue. if we're going to tackle it, we should, but we should cone seed in the meantime we've left judges in the lurch in many of these situations. i think to hold this judge responsible for the overall situation is to ignore our nonfeasance, m malfeasance, whatever it might be. senator hirono. >> thank you, mr. chairman. judge jackson, as you may know, i asked the following two preliminaries questions of every nominee who appears before any of the committees on which i sit, so i will ask you these two questions first. since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical

harassment or assault of a sexual nature? >> i have not. >> have you ever faced discipline or entered into a settlement related to this kind of contact? >> i have not. >> judge jackson, my colleague from missouri seems to think that it's appropriate for federal judges to sentence individuals below -- inappropriate to sentence individuals below the sentencing guidelines in these kinds of cases, horrific cases, and so i think it's important to offer a couple of clarifications for the record. judge jackson, when the u.s. sentencing commission first addressed the issue of sentencing in the -- in this area in 2012, do you remember that only 40% of convicted offenders in this category were receiving sentences within the guidelines? >> senator, i don't remember exactly the number, but i do know that there was a great deal

of variance from the guidelines. >> 40%. would you be surprised to learn that the department of justice, which prosecutes these cases, sent a letter to the u.s. sentencing commission in 2013 stating that the existing exist sentencing guidelines for child pornography offenses do not accurately reflect the current landscape of child pornography offense conduct? >> i don't remember that particular letter. but there was a lot of concern about this guideline from all sides. >> and now the sentencing commission issued another report just last year on this topic. do you know that as of that report, an even lower percentage of offenders were receiving sentencing within the guidelines? >> i'm not surprised. i didn't know, but i'm not

surprised. >> did you know that as of last year, it was just 30% of non-production offenders who were sentenced within the guidelines. >> i did not know, but i'm not surprised. >> my republican colleagues made a big show yesterday of promising a fair process. to me, that means ensuring you're treated no differently than any other federal judges, nominees, that have come before us. there was an article recently that highlighted the fact that many of president trump's circuit court nominees who were previously district court judges had lower sentences below the guidelines. judge ericson, confirmed with support of every republican member of this committee, at

least 11 cases, he sentenced people to below guidelines sentences. does that surprise you? >> it does not, senator. >> i'm not sure if you know judge ericson, but do you have any reason to believe he's soft of child pornography based on these sentences? >> i don't have any reason to believe that. >> do you think my republican colleagues are soft on child pornography because they voted for judge ericson to become a federal appellate judge, even after he issued these 11 sentences? >> senator, i'm not in a position to evaluate whether your colleagues are soft on crime because of their votes. i have no reason to believe that. >> they voted for this person, but i think it would probably be quite unfair to characterize him

as being soft on child pornography. i would also like to talk to you about judge joseph bianco, confirmed in 2014 with the support of every member of this committee, including senator hawley. he sentenced a defendant to 16 months in prison when his guideline range was 151 to 188 months. here's what judge bianco said in the sentencing transcript for that case. in the guidelines here, they're disproportionate under the facts of this case. and i don't view them as particularly helpful in this case. i believe the probation department got it right in terms of the statutory mandatory minimum being sufficient, but not greater than necessary to achieve the factors of sentencing. i'm not sure if you know judge

bianco. but do you have any reason to believe that he's soft on child pornography, based on that sentence or those comments? >> i do not, senator. >> do you think my republican colleagues, including senator hawley, are soft on child pornography because they voted to confirm judge bianco to the second circuit, even though he issued this sentence and made these comments? >> i have no reason to believe that. >> here's some of the other circuit judges that all of my republican colleagues voted to confirm. despite the fact that they sentenced child pornography -- judge brasher of the 11th circuit, again, i'm not sure if

you've ever met these judges before. but do you have any reason to believe they don't take child pornographers seriously? >> i do not. >> i would like to note that senator cruz referred to a chart that listed eight cases and the government recommendations and the sentencing guidelines and that you did not adhere to those sentencing guidelines. what was not included in the chart was what the probation recommendations were. if you add those recommendations, in five of the cases, you followed them, in one instance, you were lower, in one instance, you were higher than the probation recommendations. mr. chairman, i'd like to introduce this chart to the record. >> without objection.

>> some of my colleagues on the other side seem dead set on finding out if you are an originalist, a textualist, if you believe in a living constitution, or various other labels. i don't find these labels particularly useful. take originalism. proponents claim you just have to dig deeply enough into the historical record, and you'll somehow find the one, true meaning of a constitutional provision. the fallacy of this approach is illustrated in district of columbia versus hiller. there, justice scalia and justice stevenson's opinions each applied originalism. justice stevenson's more clearly. take textualism.

judge gorsuch found that employees were protected from discrimination. in dissent, justice alito mocked the application of textualism, and he wrote the following. the court attempts to pass off its decision as the inevitable product of the textualist school of interpretation. championed by justice scalia. but no one should be fooled. the court's opinion is like a pirate ship. it sails under a textualist flag, but what it actually represents is a theory of interpretation that justice scalia excoriated. the theory that the court should

update decisions so they better reflect the values of society. i'd rather focus on the fact that you are fair and objective in your approach, you're even-handed in your application of law to the facts and that you are independent. you spoke about judicious independence, about what you learned during your three clerkships and your then eight years on the bench. you said, i know very well what my obligations are. what my duties are. not to rule with partisan advantage in mind, not to tailor or craft my decisions in order to gain influence or anything of the sort. end quote. well said. so my question is the following -- what do you do to ensure that you maintain independence, free of partisanship, when you handle a case?

>> thank you, senator. what i do and what i've done in all of my 570-some-odd opinions is to apply a methodology that is designed to ensure my impartiality and respect the limits of my judicial role. that means i'm receiving the cases and at the outset, i am setting aside any personal views that i might have about the parties, about the issues, as i also said in my d.c. circuit confirmation, it doesn't matter to me whether the argument is being made by the president of the united states or a death row inmate. what i'm doing is looking at the

argument, i'm looking at the facts, i'm applying the law in as neutral and consistent a manner as i can. because that is the duty and requirement of the judicial oath. i'm also very conscious of the limits of judicial authority, of the restrictions that exist in the law to prevent me as a judge from becoming a policymaker. this means that i carefully scrutinize my jurisdiction. it means that i look at the text and focus on the text and the intentions of the legislatures that drafted that provision. or the intention of the framers that put forward that constitutional principle. it mea