Thread by @jentaub

🧵 It's on. Day #2 of the nomination hearing.

Today the members of the Senate Judiciary Committee will have 30 minutes each to question Judge Ketanji Brown Jackson.

#KBJ

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Chair Durbin welcomes KBJ and warns her that today is a "trial by ordeal." Addressing his colleagues, he said, "Speeches don't have to be eternal to be immortal."

She smiled

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Durbin begins by referencing critics who ask about her judicial philosophy. No one is questioning her credentials or ability. "Would you like to comment for those looking for a label" on your judicial philosophy.

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"I have developed a methodology that I use in order ensure that I am ruling impartially and that I am hearing to the limits on my judicial authority. I am acutely aware that as a judge in our system that I have limited power and I am trying in every case to stay in my lane."

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She follows these steps
1. Clears mind of any preconceived notions, set aside any personal views

2. Receives all appropriate inputs for case including party's arguments, hearings, amici, & factual record

3. If jurisdiction interpret & apply the law to the facts of the case

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For that 3rd step, adherence to text is a constraint. Determine what words of statute or constitution mean at origination. Doesn't import her own policy preferences. Looks at precedent, also a constraint. Bound as lower court judge. And at Supreme Court there is stare decisis

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When Durbin asked her view on court expansion, KBJ said, "My North Star is the consideration of the proper role of a judge in our Constitutional scheme." She does not think judges (or nominees) should be speaking to political issues.

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Durbin now brings up the accusations that she is soft on crime regarding child pornography. She is emotional but calm. Speaks "as a mother and a judge that has had to deal with these cases, nothing could be further from the truth."

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"There is a statute . . . that tells judges what they have to do in this and any other case when they sentence." The statute doesn't say just look at the guidelines and stop.

She's right. Of course. Here's that statute.

law.cornell.edu/uscode/text/18…

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Judge Jackson says it's important for the children's voices. She tells the defendants who deny there are victims, she tells them about the victims' statements.

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"When I look in the eyes of a defendant who is weeping [because I am imposing a sentence]. . There is someone . . .who cannot leave her house because she thinks that everyone she meets will have seen her pictures on the internet . . at the most vulnerable time of her life."

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Durbin said all of the cases resulted in incarceration. He is reading what she said at the sentencing to one of the defendants. She imposed a 29 1/2 year sentence.

She does not look at this with leniency.

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She explains guidelines based on sentence based on how many print photographs a defendant received. But with computers volume is higher and easier to obtain, so it's more difficult to differentiate between the seriousness of the abuser. So courts adjusted. Not just her.

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Durbin said in non-production cases 80% of the time judges where she is located (DC District) imposed below guidelines sentences.

And where Hawley is in Missouri it's just a 77%.

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Now Durbin is asking about her work representing detainees at Guantanamo Bay (when she was a federal public defender). Quoted Justice Roberts that lawyers are not identified with the views (or actions) of their clients.

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KBJ said her brother joined the military after the 9/11 attack. She says she honors people who have military service. And lawyers saw that our nation's values were under attack. The people her were being accused under our Constitutional scheme were entitled to representation

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"That's what's makes our system the best in the world."

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"Federal public defenders do not get to pick their clients." She said, "you are standing up for the Constitutional value of representation. So I represented as an appellate defender some of those detainees."

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She added "There were a lot of question the Supreme Court was asking . . to understand the limits of executive authority."

Lawyers were trying to help the Court figure that out. "I worked on the habeas petitions of some of those detainees."

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She had "no facts" at the time because they were classified, and she was making legal arguments about the circumstances.

That's what appellate lawyers do, make legal arguments in defense of the Constitution and in service of the court.

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Durbin talking about the war on drugs and imposition of sentencing disparity between crack and powdered cocaine 100 to 1. "We failed from the outset." Price of crack went up and users went up. Filling federal prisons for possession.

On committee he got it down to 18 to 1.

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The law was signed by Pres. Obama. Then it was up to the sentencing commission which she was on to come up with guidelines. She got them to a consensus.

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It's Grassley now. He said that when he got home last night the first thing he heard was his wife telling him that Judge Jackson did good on her opening statement. (But he added that she said nothing about his statement. People laughed).

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He asked her whether she thought the first amendment protected liberals and conservative protesters equally she said yes. He asked whether the right to bear arms is fundamental. She said SCOTUS ruled that it was.

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He followed by asking her how she comes to a determination as to what is a fundamental right. She responds with a thoughtful explanation of what the Court has said about rights related to personal individual autonomy. Described this a the Court's tradition.

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Grassley asks her how would she feel about cameras in the courtroom.

Jackson said she'd want to discuss with the other Justices their views before she took a position on it.

He said that's a fair answer.

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WHAT! NICE. Senator @ChuckGrassley is praising the False Claims Act. He said courts keep weakening it. I have a law journal article in progress on the FCA. . .
He said, "if the issue of False Claims comes up, I hope you think of Chuck Grassley and Leahy."

THIS IS GOLDEN.

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"Understanding that you may get a case before you on the False Claims Act . . .Do qui tam suits violate the appointments clause?" @ChuckGrassley

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Hey all. Ask me anything about qui tam . . . Here's the first page of my draft article

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Not surprisingly, she cannot respond specifically as this may come before her.

I am LOVING Chuck Grassley here.

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Not surprisingly, she cannot respond specifically as this may come before her.

I am LOVING Chuck Grassley here.

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KBJ says use of international law is very limited.

Okay folks . . I'm a few minutes behind, and now need to drive to campus and teach. Will get back to this after class at 12:30.

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Okay. I'm back . . . missed a few hours. But have to listen to a job talk for an hour. So see you later.

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Back, but the hearing is in recess at the moment.

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To catch up on what I missed when I stop tweeting between 10:00 and now, I am going to read @ElieNYC and others threads.

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This is a good thread from @chrisgeidner. I've picked it up where I left off . . .when Senator Graham began asking questions

https://twitter.com/chrisgeidner/status/1506280596921794567?s=20&t=_76fYvInUVGiSybtZk0tEw

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And this from @ElieNYC

https://twitter.com/ElieNYC/status/1506304133753720844?s=20&t=Du7K3Up2yIz5tEMkqjYUEg

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Gaveling back in at 1:39 p.m.
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Durbin addresses pre-break accusation by Senator Cornyn. He accused her of calling President Bush and Secretary Rumsfeld war criminals. FALSE. Instead she made filings invoking the Alien Tort Statute (which creates cause of action for war crimes) on behalf of Gitmo clients

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We have Mike Lee saying things

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Lee is using his time to criticize his colleagues. He said it's not the job of the courts to consider how decisions will affect people's lives.

He seems nice.

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When asked, Jackson agreed that "The law determines the outcome of a case."

"The law and the facts of the case determine the outcome of cases."

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Lee is asking about what rights directly flow from the 9th Amendment.

Jackson said SCOTUS has not identifying any though the text does suggest some do.

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Lee follows up with a question of how jurists should go about deciding this.

Here's the 9th Amendment text:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

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She said SCOTUS has decided to interpret you "look to the time of the founding" and may also need to look to "practices at the time."

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Lee asked whether justices should just come up with their own views of the meaning.

No. KBJ said one of the constraints in her own way of handling and interpreting the law is you "are bound by the text and what it meant to those who drafted it."

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Lee is now asking about Biden's comment made way back in 2007. "I would not appoint anyone who did not understand that section 5 of the 14th amendment and the liberty clause of the 14th amendment provided a right to privacy. . . that means they would support Roe v. Wade"

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When asked by Lee whether Biden asked her about that, she said, "he did not."

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They are now discussing the Commerce Clause.

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Lee says the channels and instrumentalities of interstate commerce could not be regulated solely at state level to preserve core function

Says 3 cases since 1947 SCOTUS said outside commerce clause authority
Lopez
Morrison
NFIB v. Sebelius

Are these meaningful constraints?

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Jackson said the fact that Congress is limited in its authority under the Commerce Clause is established law and limits SCOTUS has recognized do carve out categories of activity that Congress and fed govt are not permitted to regulate –– non-economic activity and inactivity.

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Lee is now on to the "so-called Dormant Commerce Clause." He says there's no federal cause of action to invalidate state law, but it's been adopted by courts. Asks if that is "de facto legislation"

Jackson said that's what SCOTUS has permitted

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Lee is asking about the child pornography sentencing. He is misleading

KBJ: "These are horrible cases that involve terrible crimes . . The guidelines are one factor, but the court is told that you look at" the factors in the statute. Here they are:

law.cornell.edu/uscode/text/18…
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Questioning now about Section 230 of the Communications Decency Act and regulation along viewpoint lines. . .

"Generally impermissible."

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Now @SenAmyKlobuchar said she appreciated how Jackson spoke about child pornography cases and how difficult it is as a mom and a judge and asked Jackson if it would surprise her that judges supported by Senators on the other side of the aisle have given out similar sentences

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Judge Jackson said she would not be surprised as she had also imposed touch prison sentences and supervisory release conditions.

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Klobuchar asked how to restore the public's trust in the court.

"Public confidence in the court is crucial. . .that is the key to our legitimacy in our democratic system."

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Klobuchar agrees with Justice Breyer's view that the Constitution should be interpreted in a way to work for the people day.

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Jackson agrees and says Court demonstrated that in dealing with modern technology. In Riley and Carpenter, decisions where SCOTUS had to decide whether a warrant is required under 4th Amendment for searching a cellphone or use of GPS location data.

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She said the Court looked back to the meaning of "unreasonable search and seizure" at time of drafting and then apply those principles to the current world. Cellphone is similar in that it has personal information that would be in a home back then.

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Want to know some more about the Carpenter and Riley decisions?

Here you go

lawfareblog.com/summary-suprem…

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Klobuchar asks about the "shadow docket." Are you listening @steve_vladeck?

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Jackson says "I'm am not privy at the moment" as to why the Justices are using the emergency docket at the moment. "It's an interesting and important set of issues."

Klobuchar had asked in light of Jackson's committed to transparency.

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Next topic from Klobuchar is the gutting by SCOTUS in Shelby County case of Section 5 of Voting Act.

Asks "do you believe the right to vote is fundamental?"

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"Supreme Court has said that the right to vote is the basis of our democracy. .It is the right upon which all other rights are essentially founded. In a democracy there is one person one vote and there are constitutional amendments that relate directly to the right to vote"

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Antitrust . . .

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New topic is freedom of the press. Klobuchar is going to ask about NYTimes v. Sullivan.

Also long discussion about stare decisis.

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LOVE @SenAmyKlobuchar bringing the Minnesota nice: "I do see Senator Cruz waiting in the wings" and "I do see that he's putting" up charts.

Klobuchar said that the Judge who Cruz clerked for submitted a letter on Jackson's behalf urging her confirmation.

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Cruz and Jackson attended HLS together and were on the Harvard Law Review at the same time (though Cruz was a year ahead).

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Cruz is discussing a speech Jackson gave at University of Michigan calling the ideas presented by @nhannahjones which would later become part of the 1619 project "provocative."

Asks "do you agree with Nikole Hannah Jones?"

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Cruz is misleading here. He is claiming that it was universally refuted. It was not. Cruz claimed the NYT had taken down some part of it. He said, "were you aware of that."

Jackson, "I was not."

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Cruz asks what's her understanding of Critical Race Theory. Jackson says it "is an academic theory that is about the ways in which race interacts with various institutions. It doesn't come up in my work as a judge. It is never something that I have ever studied or relied on."
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Jackson added that "it wouldn't be something that I would rely on if I was on the Supreme Court."

Cruz says that CRT has it's origin in the Critical Legal Studies Movement the Crits (like CRT from HLS too).

He FALSELY claims that Crits are "explicitly Marxist."

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Cruz claims that CLS frames society as a fundamental battle between socioeconomic classes.

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Cruz claims that CRT views "every conflict as a racial conflict."

HE IS WRONG.

He asks is that an accurate way of viewing society.

She says she doesn't think but she has never studied it and it doesn't come up in her work as a judge.

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Cruz claims that she is not being truthful as she said the words "critical race theory" in a speech at the University of Chicago. He displays his poster with a quote from her.

She said it's about sentencing policy, not actual sentencing.

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Jackson said the slide does not show the entire laundry list of academic disciplines that affect sentencing policy, but nothing I do as a judge.

He asks whether CRT is taught in elementary school. She said she didn't know but though it was taught at law school level.

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Cruz is now asking about her being a member of the board of the Georgetown Day School.

What did you mean by "social justice" in a statement praising the school.

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School was founded in 1945 where there was racial segregation by law. Public schools were segregated. Three Jewish families and three black families formed school so they could integrate their children's education. School is designed so that every child is valued

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Cruz claims that Georgetown Day School is "filled and overflowing with critical race theory."

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He seems upset by a book called "how to be an antitracist" and "antiracist baby."

So is Cruz pro-racist?

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"I do not believe that any child should be made to feel as though they are racist or though they are not value or that they are less than or that they are victims or that they are oppressors."

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Jackson said he asked about whether CRT was taught in elementary schools, thought he meant public schools. As far as she understands it is an academic theory is taught in law schools.She added that Georgetown Day School is a private school. Board does not control curriculum.

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Jackson said she has not reviewed books he's talking about, and she's here to talk about her work as a judge.

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HEY ALL. Don't feel bad that Ted Cruz is a complete [EXPLETIVE]. He will never be POTUS or on SCOTUS.

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Confession. I attended HLS when Cruz was there. But I did not notice his existence at all. He was a 1L when I was a 3L. . . That said we ALL noticed Barack Obama (who was a 3L when I was a 1L).

He will be forgettable soon.

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I cannot believe Cruz is spending all this time asking Jackson about a paper she wrote nearly 30 years ago.

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Cruz is quiet. For a time. Life is beautiful again.

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Durbin briefly repeated the data on how her sentences are in line with other judges in those cases. We have Senator Coons up now.

He also identifies three cases in which she sentenced the defendants to exactly what the prosecution asked for.

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Coons references outpouring of support for her nomination. He mentioned a letter from 24 conservative lawyers who either held R administrative positions or well-known for their conservative legal views. They praised her character and intellect and urged her confirmation.

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Okay. Taking a break to teach again. . . .Won't be done until nearly 6, then need to drive home.

Ciao for now.

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