destruction of two institutions. back in january, senator schumer laid a vote down on the floor that ultimately would have reduced the majority of 60, the filibuster limit of 60 to 51. he was doing it as a way to pass a single bill, but we all know what happened when senator reid nuked the executive calendar for circuit court judges. it led to you only being subject to 51 votes, to be confirmed. that nuked the executive calendar. in january, senator schumer was laying the groundwork for the same thing. now, i worry -- that's the destruction of the senate institution, as far as i'm concerned. i think we have to be a consensus-based organization. we don't need to be a 100-member house of representatives. and that vote happened. what disappointed me most about that vote is back when president

trump was calling on us and pressuring us to nuke the filibuster, when we had control of congress, i signed on to a letter with more than 60 members to say that i would never do that. in the face of a republican president whose policies i supported. i did that to send a very clear message, i respect this institution. and i respect the court, which almost certainly would have been -- we would have had pressure from our side of the aisle, to pack the court a little bit more. now, every member who was here back when we signed that letter who was on this committee changed their position and voted to potentially nuke the filibuster, just two months ago. so i hope that you can understand my concern about the political winds and the potential damage that it could do to the senate, and do to the

supreme court. i think that it was federalist papers 78, where hamilton talked about the vulnerability, or i think, the feebleness. now, he was arguing, i think the case for lifetime appointments. but i do think that the supreme court is a fragile institution. and i do believe that if we think it's politicized now, think about how it would be if we destroy the institution of the senate, so that a strict party line partisan vote, we expand the court. that's why court packing is important. and that's why we ask a question that i know you're not going to answer, but i know that justice breyer and justice ginsburg did. and if there's any supreme court justice listening right now, i wish that they would speak up. because i think your institution is in peril and accelerating it to a truly political body is only one successful nuking of

the filibuster vote away in the u.s. senate. this is serious stuff. i was at price waterhouse, i was a partner at price waterhouse during ten ron scandal. i saw about a hundred-year top tier big five consulting firm cease to exist because their reputation suffered. if we pack the court, the only thing that y'all have, that the supreme court has, is its integrity and the esteem that the american people and the trust that they put into it. packing the court could cause the supreme court to lose the trust of the american people. and i think if we want to expand the court, let's do it for the only valid reasons. maybe the justices come to us and the chief justices come to us and say, the workload is too great. that times have changed. and then convince 60 members of this body to consider it.

but when you've got a partisan organization here that's putting a pipeline of people in there that they think think like them and have a judicial philosophy like them, how can any reasonable person think that this is just kind of fixing the mechanics. it's a partisan decision that even some of my colleagues on the other side of the aisle have taken the bait. so much so that they would reverse a commitment that they made with me when they signed that letter to say that they would never nuke filibuster and then nuke it. president biden is on that list, too. back in 1983, gave a rousing speech in a judiciary committee hearing, saying, don't pack the court. he gave a rousing speech on the senate floor, saying, don't nuke the filibuster. but now we're in this posture to where we could destroy two institutions, if we're not careful. so i actually hope that you can, at some point, study the issue

thoroughly and understand the risk to this institution that you're likely to be confirmed to. it's serious. and you could end up being there -- you'll have a liftime appointment. you could actually be there and witness its demise realtime if we're allowing -- if we allow the court to be packed. now. i want to talk a little bit about -- you were part of a case in massachusetts, that some people are casting as a pro-life versus pro-choice issue. now, to be clear, i am catholic and i am pro-life. and i am proud to have signed and ratified pro-life bills in north carolina when i was speaker of the house, that have withstood judicial scrutiny. but i don't really think that case was about pro-life.

i think it was about free speech. so i want to ask you a few questions about it. and maybe you could describe it to me, if your memory serves you, but it seems to me that the argument that you were a part of, i think that you, you joined with a couple of others. it seemed as if the argument was because the pro-life protesters were threatening to -- threatening endangered women, attempting to enter the clinic. i'm not necessarily saying that you put those words in the brief, but they were in there, and they were a hostile, noisy crowd in the face of protesters. now, am i correct that a part of the argument was because they were noisy, in-your-face protesters they needed to be a little bit further away than people who were pro-choice advocates? because as i understand it, i think the underlying law in

massachusetts was ultimately struck down unanimously by the supreme court. is that correct? >> thank you, senator. the brief -- >> oh, by the way, i didn't expect you to respond to my rife on packing the court. just to net it out, it's a bad, bad, bad, idea. >> i understand. the brief that you are referencing was a brief that i worked on right after finishing my supreme court clerkship when i joined a big law firm in massachusetts. this is 19 -- maybe 2000, at the end of my clerkship. and it is a first amendment free speech set of arguments that the lawyers at my firm -- i was a part of a team, representing clients who wanted to make an argument about buffer zones, which at that time, had not yet been litigated all the way up to the supreme court.

>> but was it a buffer zone that put pro-life and pro-choice people in the same buffer, or one that argued that pro-life people were in-your-face and perhaps needed a bit better -- bigger buffer than the pro-choice -- >> yes, no -- i -- i'm -- i believe that it was viewpoint neutral, meaning it wasn't about what the people were saying, it was about clearing a path to allow people to enter the clinic. the laws at the time were about how far did people have to be kept back, whether they were pro-life or pro-choice, because if they were blocking the entrance -- >> do you understand why the underlying law was ultimately deemed unconstitutional by the supreme court? >> i didn't follow the

jurisprudence. at that time, it had not been. and the first circuit -- this is a first circuit brief. i don't remember what happened in the district court, but my clients wanted to argue in the first circuit that the laws that allowed for the clearing of the path so that people could enter the clinic, and have people stand back, were constitutional and important, and the first circuit agreed, i think, ultimately -- i don't know exactly, but i think ultimately, as you say, there was some litigation that went all the way to the supreme court and the court had other jurisprudence about the extent to which buffer zones are constitutional. >> yeah, well, it looked at -- i'm not an attorney. i watch "law & order" from time to time, and i'm -- i'm not going to get into a debate. but on its face, it almost looked as if there was this notion that there was bad

speech and good speech. that somehow -- and look, i am somebody who has had protesters come to my house, get in my face, and be very nasty. four times by land and two times by sea. i live on a lake. okay with them doing it as long as they stay off my lawn. in the last case, they didn't. but it almost felt like to me that those protesters who didn't like me needed to be a little bit further away than the protesters that maybe i would allow to be a little bit closer. it may not be right, but i'll make sure that i get my facts right before this afternoon in the second round. it to go to sentencing. i'm not going to cover any of the ground that my colleagues have. i'm sympathetic to some of it. not necessarily all of it, because i think the details are something that we don't have possession of. i'm sure we're going to talk a little bit more about that. but i want to talk more about a

pattern. i know, and i was really impacted by your description of family dinners and your uncles coming in in uniforms and putting their guns up on the cupboard and having a sense of pride that you had family that served in law enforcement. there are a couple of cases, i'm very focused on law enforcement and backing the blue. i think that law enforcement, i talk with a lot of them, their morale is low. they feel like defund the police and some of these other efforts are already making a very difficult and dangerous job more difficult, more dangerous. there have been a few cases where you have recommended lower sentences that even, i think, the defense attorneys have. but i'm sure that, if i were you and observing you yesterday, you would probably point to some

mitigating circumstances or factors that are not necessarily available to the committee as a basis for doing that. i think in one case, the government recommended a 30-month sentence and the defense recommended 21 months, and you gave them 18 months, and this was the third conviction for assaulting an officer. there was another one that was a lower sentence for -- they were officer assaults. and it just seemed like it went lower. but i don't want to get into those, because you may have factors that you would point to that would justify the decision. i've got a question about -- see, that's at an atomic level. i mean, you're looking at the facts of the case, you're looking at the defendant, and as you've described in some of the other cases here, you made a judgment that you thought was fair and that was inbounds with your peer group. but back at the beginning of the

covid pandemic, i believe you made this statement and i'll give you time to provide context. if it's out of context, but in the interest of time, i'm only going to read the most striking. you said, the obvious increased risk of harm that the covid-19 pandemic poses to individuals who have been detained and the districts -- that's the district of columbia's correctional facilities reasonably suggest that each and every, and i think that means everyone, every defendant who is currently in the d.c. department of corrections custody and who thus cannot take independent measures to control their own hygiene and distance themselves from others should be released. i checked in april of 2020. i think that's when you made the statement, that there were 12 or 1,600. let's call it 1,200. i'll be conservative. people in the department of

corrections. do i read that statement to think that you believe they should all be released? >> no, senator, you don't read it correctly. it was not a statement. it was a line in an opinion and the beginning of the covid-19 pandemic was really, obviously, a horrible and difficult time for all of us. >> i was there. >> and what was happening at the beginning in the prisons, which was part of the criminal justice system that as judges we were involved in -- >> i tracked it -- let me -- >> can i just -- yeah. >> let me just give you a little bit more context. i've actually written letters to the department of justice, encouraging the release of non-violent offenders in north carolina at a federal correctional facility. i've also supported early

release programs and i voted and supported the first step act. i as speaker of the house was the first speaker and in probably two decades that did the economic reinvestment act of non-violent prisoners. how can i not read this to say that perhaps they should be released, irrespective of the crime for which they've been charged. >> senator, if you read two more sentences down, that is precisely what i focused on. this is a case, united states versus wiggins, where i was setting up my analysis as to why i would not be releasing mr. wiggins in this case. he was arguing that, essentially what i said in that statement. he was arguing that the circumstances of covid-19, which at that point was rampant in the

prisons, we had not had a vaccine, there were very difficult circumstances for prisoners who could not be separated from each other in the context of our jails. and as i say, at the beginning of that opinion, at that point, covid was ravaging the jail. and the question for courts, under the statute that congress has enacted for compassionate release was whether covid-19, a pandemic in the jail, was an extraordinary and exceptional circumstance, or an extraordinary and compelling circumstance, that should warrant release. what i said in that statement that you read is that it would seem as though something like a deadly pandemic, rampant in the jails, would justify releasing everyone. but i go on to say in that very opinion, congress has indicated that we have to take each case

individually. we have to look at the harm to the community that might be caused by the release of individual people. we can't just release everybody, i said in that opinion. >> i hate to interrupt you, i had my state, recidivism and federal sentencing outcomes. i've said, i'm on record as saying, i want people out, i want them to have an opportunity to reenter society and become productive members and i've got a track record to ratifying bills to that effect and supporting similar measures since i've been here in the senate. and i'll continue to work on it, but tell me why the numbers that i'm looking here, we have

recidivism rates, the most recent, but i think an eight-year lookback says that 49% of the people incarcerated are re-arrested within eight years. if you take a look at the types that are most likely to be reoffending, it's firearms offenders, robbery offenders, violent offenders, re-offended at a higher rate than non-violent offenders. and so if i look at this and i look at your philosophy with respect and it's admirable. i want the content of your character would be demonstrated this week in an opening statement and it has been. and one of those first among them is your compassion and your belief that people can regame themselves. but if you look at some of the cases that our -- my colleagues

have brought up, and if you look at, even with the context that you provided on the last statement about the department of corrections statement, can you understand how some of us may think that your compassion could lead to bad results based on the numbers that we have here with recidivism? that congress may need to work more on that to make sure that we get it right? can you understand how somebody who from our side of the aisle could see that maybe there is some pattern to give the benefit of the doubt to someone who has been incarcerated and in some cases with very serious crimes? >> thank you, senator. i don't recall saying anything about compassion in the way that

you're describing it. >> no, no, no, i'm just saying that if i take a look at your responses to some of my colleague's questions, and your statements to some of the defendants, it seems as though you're a very kind person and that there's at least a level of empathy that enters into your treatment of a defendant, that some could view as a, as maybe beyond what some of us would be comfortable with, with respect to administering justice. >> thank you for letting me clarify. the statements that i made about my practices as a trial judge, which, i'm no longer a trial judge, were intended to explain how trial judges operate and how

they impose sentences within the framework that congress has provided. the statute that applies to us tells us to look at all of the various factors that congress has set forward, including the nature and circumstances of the offense, the history of the and characteristics of the defendant, and it tells us that we should be imposing a sentence sufficient, but not greater that necessary to promote the purposes of punishment. congress also tells us that one of the purposes of punishment is rehabilitation. my attempts to communicate directly with defendants is about public safety. because most of the people who are incarcerated via the federal system, and even via the state system will come out, will be a part of our communities again, and so it is to our entire

benefit as congress has recognized to ensure that people who come out stop committing crimes. and so what i convey, or did, when i was a trial judge, as i sentenced people to very lengthy periods of incarceration was, you are getting your day in court, you are able to say what you want to say, but you have to sit here and listen to my reading into the record the victims' statements in this case. you have to go away understanding that i am imposing consequences for your decision, your decision to engage in criminal behavior. and the reason why i did that, i have said, is because i recognized as a defender that there were lots of people in our system who instead of taking responsibility for what they had

done, and then ultimately understanding the harm and potentially not doing it again, instead of that, those people were bitter, they were angry, they were feeling victimized, because they didn't get a chance to say what they wanted to say, because nobody explained to them that drug crimes are really serious crimes. nobody said to them, do you understand that there are children who will never have normal lives, because you sold crack to their parents, and now they're in a vortex of addiction. do you understand that, mr. defendant? i was the one in my sentencing practice who is explained those things in an interest of furthering congress' direction that we were supposed to be sentencing people, so that they can ultimately be rehabilitated to the benefit of society as a whole. >> i appreciate that, judge jackson. i just still note that virtually

half of those people, statistically speaking, that you gave that speech to, within eight years, were back in prison. and in some cases, for more serious offenses than the first incarceration. thank you, mr. chairman. >> thanks, senator, for that line of questioning. and i noted that you joined a letter with senator grassley and myself in march of 2020 at the earliest stages of this, talking about release under thesis similar circumstances. and of course, we all said at the same time, low-risk inmates would be considered. >> only low-risk inmates. >> yes. and i wanted to make that note for the record. we're going to start the second round of questions, 20 minutes each. and i'll kick it off. this is an unusual document, this constitution of ours, which has taken up so much time in the hearing. a conversation about it.

and it is really at the core of public service. i don't know that there's a place that you can take a job at the federal level in any branch of government without taking an oath to defend this document. i don't know about other countries and the oaths that might be required, but we even, within the constitution, spell out the oath to be taken by the president of the united states, and it's to uphold and to defend this document. and there's great debate about just what this document means in today's context. we understand the wisdom, the inherent wisdom of the document, and the fact that we're still here, some 230 years later, with the design of a government that has endured longer than virtually any other democracy. which, of course, speaks to the wisdom of the founding fathers and their plan for this nation. but we also understand, taking an honest look at it, that you barely get into this document,

article 1, section 2, and you run into a problem. because in article 1, section 2, that article that relates to congress, they talk about who will be counted for a portionment among the states, and there is that awful reference to three fifths of all other persons, which though the document never mentions the word "slavery" or "slaves," what was being spelled out here by the founding fathers was, how are we going to count these slaves? and for apportionment purposes, they were to be counted as three-fifths as a person, which is a horrible notion by any standard, but the wise founding fathers included it, trying to deal with the reality of their day. i hear debates back and forth of originalists, contextualists and others, and you have been asked about what your thoughts are. you've been asked about staying in your lane, but i would like

to get into just a minute the reality of a couple of things. first, when the bill of rights was written, the first amendment to it made certain to guarantee freedom of press. freedom of the press in 1790 was, of course, referring to a piece of paper. a newspaper. and saying that there would be freedom to engage in that process in this democracy of america. now that freedom of press is referring to this. and things have changed an awful lot. we have a circumstance now where people no longer have just a handful of television networks or known publications, "washington post," "new york times" and such, but turn for their sources of information to places like facebook and twitter and beyond. and we have a real serious question about what is a

publication in america? what does it take to be a publication and be press? is my blog that i publish tomorrow the press, guaranteed with a constitutional right. can i publish it what i want to say with certain boundaries? and i guess my question to you as we look at this is, how do you move from the language of 1789, 1790, to the reality of 21st century, and make sure it's relevant. if more people are relying on facebook and twitterer, for example, for information, then they are common sources of television and newspapers, how do we rationalize that they can say facebook and twitter to a former president of the united states, you can't publish here? and they've done that. and how do you reconcile that

conflict, the changing times, the dramatic change in technology, what the founding fathers envisioned and what we face today? >> thank you, senator. the challenges that you identify are the types of things that the supreme court is now dealing with. we have a foundational document that has text and it has principles. it establishes freedoms and foundational important concepts that are intended to governor us. and that we are bound by, as a society. there's modern technologies, as you say, that have not -- that the framers, the founders could not have imagined the cell

phone, and all the other things that we now rely upon. and as i mentioned earlier, the supreme court and every court deals with individual cases, disputes about issues. and when the court gets an issue that requires constitutional interpretation, it looks at the facts and circumstances of the particular case and the context and principles of the constitution, in light of the times in which they were written, and analogizes to present day. so the supreme court, for example, has considered the cell phone issue, with respect to the constitutional principle of unreasonable searches and seizures, which is a protection

from government intrusion that the framers called an unreasonable search. the text "unreasonable search," is not -- does not have an inherent definition, what the supreme court has done is looked back at the time of the founding to determine what kinds of intrusion would have been covered when those words were written into the constitution. and to the extent that the -- at time of the founding, those words covered things like police officer intruding into your home and looking into your papers and affairs, then the supreme court analogizes that circumstance to the modern-day circumstance of a cell phone, which now is in all respects, says the court, like rifling through your papers and

affairs. so it's a process of understanding what the core foundational principles are in the constitution, as captured by the text, as originally intended. and then applying those principles to modern day. >> i'll just give you two illustrations of my thinking on this and my frustration or at least, my understanding of the challenge, let's say. let's put it that way. senator feinstein and i joined in legislation several years ago to talk about confidentiality of sources for news entities. and whether or not a person could -- a reporter could be compelled to disclose those sources. the effort really drew some of the best and brightest in the news business -- >> we will be right back with more coverage of the supreme court confirmation hearings for judge ketanji brown jackson, but

before that we'll have an update from the latest in the war in ukraine, right after this. from the latt esin the war in ukraine, right after this. riders! let your queries be known. yeah, hi. instead of letting passengers wrap their arms around us, could we put little handles on our jackets? -denied. -can you imagine? i want a new nickname. can you guys start calling me snake? no, bryan. -denied. -how about we all get quotes to see if we can save with america's number one motorcycle insurer? approved. cool! hey, if bryan's not gonna be snake, can i be snake? -all: no.

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welcome back to msnbc's special coverage of the supreme court confirmation hearing for president biden's nominee judge ketanji brown jackson. we will return to that in just a moment. but first i want to bring back jose diaz-balart for the latest on ukraine. thank you, jose. >> thank you so much, chris. it is day 28 of russia's invasion of ukraine. and just moments ago, ukrainian president zelenskyy addressed french lawmakers, where he said french companies must leave the russian market, according to reuters. ukraine's capital, kyiv, faced a barrage of rocket attacks, causing widespread damage to a residential neighborhood. this as putin's chief spokesman refused to rule out the possibility of using nuclear weapons in the conflict. asked about that this morning, president biden said the threat of chemical weapons is real. president biden now on his way

to brussels, to meet with nato allies, where he may now announce a permanent increase in the number of troops stationed in eastern europe. earlier this morning, u.s. state department spokesman ned price said the u.s. embassy in moscow has been granted access to american basketball star, brittney griner, who has been detained in russia since february. price said that greiner was in good condition. joining me now from lviv, ukraine, is nbc news correspondent, gabe gutierrez. gabe, what are the conditions on the ground there? >> reporter: hi, there, jose. good morning. well, while the fighting continues in other parts of ukraine, here in lviv, the cultural capital of the country, there is a massive humanitarian effort underway. we're actually in an art gallery that has been turned into a huge distribution center. as you can see, there are supplies all throughout here. volunteers tell me that they have sent 11,000 shipments across the country. not just to refugees, but to the

military alike, jose. and we just spoke with the head of a medical operations here. one of the surprising things that we found is that they say that they need one thing in particular. something that there is a dire shortage of here in ukraine, jose, and it is this right here. a tourniquet. they're having incredible problems getting these to people on the front lines. they tell me that military unites are asking for 300 of them and they're only able to give five at a time. so this is a center in lviv, again, that has been set up as a distribution center. and they're working, you know, 12, 14, 16 hours a day to get supplies in here and also to get them to refugees. we spoke with one woman from the eastern part of the country. her husband is still there, fighting. she is here with her daughter. and is coming here to pick up a stroller and supplies. still a desperate situation here, jose, as again the fighting intensifies in places in and around kyiv, mariupol,

and kharkiv. here in lviv, take a look at this. so many donations necessary here. not just for the refugees heading out of the country, but for those that are still here. >> gabe gutierrez in lviv. thank you. that's the latest on ukraine, let's go back to chris jansing for the latest on the confirmation hearing on judge ketanji brown jackson for the supreme court. chris? >> thank you so much, jose. and dick durbin gave back seven minutes of his time. we are now in the section where all 22 members get 20 minutes of questioning. ketanji brown jackson answering questions from chuck grassley. let's listen. >> -- understand my limited role in the constitutional scheme, and therefore take very seriously all of the constraints on the exercise of my authority that exist in our system. what that means is that at the beginning of every case, i am setting aside my personal views, i'm -- >> -- the three steps you gave us -- >> yes, sir.

>> so you don't have to go into that. let me go on, then. should the supreme court overrule a precedent when it is clear to the justices that the precedent was wrongly decided? >> thank you, senator. stare decisis, which is the principle that the supreme court uses at the outset, it's the sort of background rule of judicial maintenance of precedence, in order to have predictability, stability in the law, is the kind of principle that the court begins with. when it is asked to overrule or revisit a precedent. and the court has developed certain factors that it looks at, before it actually

undertakes to reverse a precedent. one of those factors is the view that the precedent it's reconsidering is wrong, but that's not the only factor. the court also determines, in addition to whether or not the prior precedent was egregiously wrong, the court has said, the court looks at whether there's been reliance on that prior precedent. whether the precedent is workable or has proven workable over time. whether the cases in the area of the precedent have shifted such that the precedent itself is no longer on firm foundation. and whether there have been either new facts or a new understanding of the facts, that give rise to a need to revisit the precedent.

so it's not just a look at whether or not it's wrong, zpst important that the court take into account all of those factors, because stare decisis, meaning, letting the precedent stand, is a very important pillar of the rule of law. >> when is it appropriate for a judge to impose a sentence enhancement under the guidelines? >> thank you, senator. the federal sentencing guidelines are crafted to assist courts in making sentencing determinations within the broad range that congress prescribes for cases. for crimes. so in the typical case, a defendant is convicted of some crime, in the federal system,

they're usually very serious crimes. and congress will say, judge, you can give that person a sentence anywhere between 0 and 20 years, for example. the sentencing guidelines are designed to set out a series of factors that judges should be looking at, when they decide what they're going to sentence that particular person to. and those factors will be things like, if this is a violent crime, does the person have a weapon? if this is a violence crime, was there any injury? and so the judge is looking at these facts, in many cases, horrible facts, and calculating the guidelines based on what we call enhancements. each one of those different

characteristics or conditions is an enhancement. so you ask, when is it important to -- >> appropriate -- >> when it's appropriate. well, the judge has to calculate the guidelines in every case. that's how we start the process. but understand the statutes, in addition to calculating the guidelines, with all of those enhancements, the way our system now works is you determine what the guideline range of punishment is going to be, and then, congress says, you look at a series of other factors in addition to the guideline range. and at the end of the day, the judges in the system now are choosing sentences based on both the consideration of the guidelines and also the consideration of the statutory factors that congress has put forward. >> have you ever declined to impose an enhanced sentence on a

defendant because you disagreed with the enhancement as a policy matter? >> thank you, senator. yes. and the reason is because of supreme court case law concerning the way in which the guideline system operates. the supreme court has determined, in a case we discussed yesterday, that the guidelines are no longer binding on judges. meaning the guidelines that you calculate, but you don't have to stay in the guideline range anymore. that was the supreme court's booker case. and i can't remember in that case or in subsequent case law, but the supreme court has also made clear that when you are calculating the guideline range in the new system that we're in right now, judges are free, the

supreme court has said, to decide in particular cases whether as a quote/unquote policy matter, day disagree with a particular enhancement. that is the state of the law. that is what the supreme court has said judges a permitted to do. so i have in certain cases, given the ways in which the guidelines are operating, the disparities that are created in cases, i have at times identified various enhancements that i have disagreed with as a policy matter, because the supreme court has said that that's the authority of a sentencing judge in our system >> are nationwide injunctions constitutional? >> thank you for letting me

address that circumstance. the reason why i paused, because what i have issued is not technically a nationwide injunction. people call it that, but in a particular set of cases, administrative agency cases, that are brought under the administrative procedure act, these are challenges to agency actions, like agency rules that they have promulgated. and if the challenge is to the procedures that the agency that if you agree with the plaintiff that the agency rule is faulty, procedurally, the remedy in the statute is to invalidate the rule. that's what congress tells

judges to do. technically, that's not a nationwide injunction. that is inzralting a rule that the agencies may have enacted. it may have nationwide effects, because the agency may have implemented its rule nationwide. but what the court is doing is not reaching out and touching everyone in the country. the court is directing the government that has promulgated that rule, that the rule is invalid. and that's what the statute tells us we have to do in those cases. that's different than a nationwide injunction, because a nationwide injunction would be a situation, in which we're not dealing with the rule or the administrative procedure act, we're dealing with a particular case in which something has happened between the plaintiff

and the defendant and the court says based on what happened in this case, i'm going to tell everyone in the country, the defendant, that you can't operate in this way anymore. i'm what happened in this case, i'm going to tell everyone that you can't anymore. i'm going to find on this particular base. i'm going to enjoin everyone not to do that anymore. that is not a nationwide injunction. which is in the cases you're talking about. >> how did the judiciary address concerns about forum shopping, given the rise of nationwide injunctions? >> well, form shopping is a concern that arises when

litigants seek to go to different places in the country, where they think that they may get a better result. and it's something that congress can address because congress has the power to determine various aspects of judicial process. >> explain the political question doctrine. and then what standards would you apply to determine whether a claim before you, implicates a political question. >> so the political question doctrine is a doctrine that relates to the jurisdiction of the court. as i mentioned, the courts are in a particular branch of government, the judicial branch, that is limited in its

power. the courts can't make policy. they can't reach out into the world and decide that certain things are good or bad and then address them. they have to wait for cases to come. and decide them. and when a case comes, it has to be presenting a question of law for the court to answer it. if a person comes to the court and they ask the court to answer something that is properly in the province of congress, if they ask a political question then the court has to say, i'm sorry. that's not my role. so i had, for example, a case that involved yemeni citizens, who i'm trying to get the facts

exactly right. but they had relatives. i think they were residents in the united states. and they had relatives in yemen. a war-torn area this is a few years ago. and they came to the court, me, asking, if i could direct the administration to extract their relatives from yemen. that they wanted me to order the executive branch to send in troops and get their relatives out, because it was obviously dangerous for their relatives to be in that country. and what i said essentially is i don't have jurisdiction to do what you're asking he to do. what you're asking me to do is a political question. the question of where and when troops can be sent and who can

be extracted from foreign governments, begins with the executive branch. so you have to begin with them. so i said, i have no jurisdiction. that's the political question doctrine. and it's well established in our law. >> yesterday in response to a question from senator durbin, you said, as a judge, you are in every case trying to stay in your lane and end quote. that's the time you give us the three steps you go through as you work your way through a case. you also described the text of law as a constraint on your authority. but in several cases, i'll list, the road, new york, afl- ci versus trump, watervale

marine companies. they criticized your reasoning for failing to follow a clear and unambiguous text. why didn't the clear letter of the law constrain your authority in these cases? >> thank you, senator. you mentioned three cases certainly with respect to the second one, the d.c. circilate, didn't say that the text was clear. and in fact, what happened in cases that judges in the trial level do their best to make interpretations. in that case, it involved a channeling provision. this is ashley versus trump. it involved a provision of statute that was designed to

channel the judicial authority into an agency, and i interpreted the statute. and i thought that the arguments that were being made, the claims that were being made, were not ones that had intended to channel. and i went through the analysis. and i explained my reasoning, as to why i thought i still had jurisdiction. and i went on to address the merits. which is the duty of the judge, if they determine they do have jurisdiction. the d.c. circuit disagreed. they wrote an opinion that interpreted the statute differently, with respect to those claims. but it was a case of first impression as to what those claims meant, and whether they were supposed to be channeled or not. and that happens. district judges do their best. and sometimes the court of appeals and the supreme court haven't spoken to the issue. and the parties disagree. and make the road, i explained

that what i was attempting to do in light of congress's enactments, not only the particular immigration provision, but also the administrative procedure act, was reconciled. the statutes of congress, which is something that the courts also are supposed to do. that there are statutory interpretation canyons that make clear that courts are supposed to understand that congress intends for its statutes to work together and to the extent that you are interpreting, and the claim is made that allows you to do that. that's the sort of way in which interpretation is done. i can go through my actual analysis. i did it yesterday, as we talked. but there was a good faith disagreement between me and the court of appeals, which gets to decide as to what the language

meant, and whether or not congress actually intended to exclude the apa, using that language, under those circumstances. >> thank you very much. >> senator leahy? >> thank you, chair. and welcome back, judge jackson. i know yesterday was a grueling day of questions. and i commend you for your poise, your endurance, your thoughtful answers. i felt privileged to be here for hours of that. and you had even more hours. but i want you to know the reaction in my own state of vermont. i've gotten all kinds of e- mails and calls from friends across the political spectrum, and they all have been praising you. and they said that they realized a lot of the questions that were lobbed at you, had nothing at all to do with your

qualities as being on the supreme court, but were some members unfortunately aiming for. what a sound byte that he may be able to put on political website where it now is. for example, we heard some overheated claims yesterday at your representation of guantanamo detainee, somehow signaled your policy preferences, with how the united states has dealt with those detainees. every single member of this committee, especially those of us who have been assigned as counsel in cases to know better with past representations for policy. but to argue the client's viewpoint, simply by choosing to represent them. so your policy views aside. can you reiterate white y it's so important for our court to

have the best possible legal representization on both side of any case. and especially in any cases where we are in uncharted legal and constitutional waters? >> yes. thank you, senator. so i've been a judge for almost a decade. and what i've learned is that as part of my duty to render decisions, consistent with my judicial oath, in support of my constitution and the rule of law, i need to consider all of the arguments related to the dispute that is being wrought in my courtroom. i need to hear from, not only the parties who are prosecuting