Return to Transcripts main page

Inside Politics

Senators Question Supreme Court Nominee Ketanji Brown Jackson. Aired 12:30-1p ET

Aired March 22, 2022 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[12:30:00]

SEN. SHELDON WHITEHOUSE (D-RI): If this Court was six justices cannot do the right thing, and I think it's time to circumscribe the jurisdiction of this Court. That's the way to change things finally. So we have people who are in a position to know what was going on behind the scenes describing the six Republican appointees on the Court who got there after all the money that has been raised, the Federalist Society, and all these big fat cat dinners and threatening that they don't do what she considers to be the right thing. They'll be punished by circumscribing the jurisdiction of the Court. That's pretty big talk, but it's backed up by pretty big dollars.

If you go back to before this enterprise got underway, the money that came into the federal society from what's called Donors Trust, which has been described as the dark money ATM of the right, a Koch brothers affiliated operation. Back say in 2002, it got $5,000. No big deal. By 2019, when this operation was in full swing, it got $7 million. We don't know who the real donor was, because that's the job of Donors Trust is to de-identify the donor to launder the identity off the donations, so you can't connect the dots any longer. But $7 million, I think is quite a lot of money.

And unfortunately, the Federalist Society was not alone. Right down the hallway, there's something called the Judicial Crisis Network, its office is on the same hallway as the federal society in the downtown Washington building. Although JCN's website and tax filings, list a mailing address at a different location, and address shared by multiple companies. And right down that hallway, at that Judicial Crisis Network, there's even more money pouring.

And here's how much poured into the last three nominations via the Judicial Crisis Network, $21 million related in time to the Gorsuch nomination, $17 million to the Kavanaugh nomination, $14 million to the Barrett nomination. And of course, we don't know who the actual donor is, it could be the same donor, who knows. And because we don't know who the donor is, we don't know what business they might have had before the court.

And I think it matters when people are seeking to influence the makeup of the court, that the public understand what business they may have before the court. And anonymity hides all of that. And they didn't stop with the Trump nominees. They got up on the air, a dark money group, using dark money to accuse Biden's Supreme Court nominee. At that point, a player to be named later, Judge Jackson had not been selected at this point, of being a tool or stooge of liberal activist dark money.

This is a screenshot from their advertisement paid for by the Judicial Crisis Network. So it's worth understanding for a moment what the Judicial Crisis Network is and where it lies. And it lies in a network of organizations. The prevailing way that political mischief is accomplished these days is with a paired 501(c)(3) and 501(c)(4) organization, the 501(c)(3) three gets the tax deduction, the 501(c)(4) gets to participate in political activity. And sure enough, there's an 85 fund and a Concord fund that are twinned together as a 501(c)(3) and 501(c)(4) organization.

And they filed under Virginia Corporation Law to operate under what they call fictitious names. That's the term of law under which they file, fictitious names. And there is the Judicial Crisis Network, one of the fictitious names of the Concord fund. It has a parallel judicial education project that is a fictitious name of the 85 fund. If you're interested in voter suppression, you can move down to the honest elections project.

ABBY PHILLIP, CNN HOST: You've been watching important action inside of the Senate Judiciary Committee, questions from Senator Sheldon Whitehouse to Supreme Court nominee Ketanji Brown Jackson. We will have more questions after this quick break. Stick with us.

[12:34:41]

WHITEHOUSE: So these are eight organizations --

(COMMERCIAL BREAK)

PHILLIP: We are going to get you right back into the questioning on Capitol Hill. Senator Sheldon Whitehouse is still questioning Ketanji Brown Jackson. Let's listen in.

WHITEHOUSE: -- in the District Court. So you having lived in both of those houses, the Trial Court House and the Appellate Court House. Tell me a little bit about what that change meant to you as you went from being a trial judge to an appellate judge.

KETANJI BROWN JACKSON, SUPREME COURT NOMINEE: Thank you, Senator. It is a really big difference. As you mentioned at the trial court, you are on the ground level, parties have filed the case. You have all of the issues usually at the trial level, because you'll have the complaint if it's a civil case, and there'll be a lot of litigation about the development of the facts in the case that in civil cases, you have a period of discovery in many cases that is really about the development of the record what actually happened in this case, sometimes there's even a trial.

[12:40:39]

And that, too, is a part of the development of the facts in the case, because the jury will be charged with the responsibility of determining what happened who's guilty, for example, if it's a criminal case, or who's liable, if any, if it's a civil case. And sometimes there are even questions presented to the jury that they have to determine the facts. At the pellet level, as you said, there is already a record and the court is looking primarily at the law, the legal principles that guided the decision below, based on the factual record.

And importantly, at the appellate level, there are standards of review that the Court of Appeals applies when it decides how to review whether or not to reverse or affirm the judgment of the lower court. And I've been very mindful, especially as a trial judge of the standards of review.

WHITEHOUSE: When I was prepping lawyers for oral argument before appellate courts, I would often say, please, don't quarrel with the facts unless you have a knockdown case because if you want to get the appellate court to re-litigate the facts, you're up against the harshest standard of view available, the clearly erroneous test. And clear error is no small thing. Outside of that narrow finding by an appellate court, that somehow the district court got it wrong filtered through that clear error standard. Are there other circumstances in which it's proper for appellate courts to do their own independent fact finding, outside of the record of the case that they're reviewing?

JACKSON: I am not aware of any. There might, there may be, but in my experience, the fact finding is done at the trial level, the Court of Appeals only looks at facts under standards, like clear error. And so therefore, the record is usually set and established by the time you get to the Court of Appeals.

WHITEHOUSE: Yes. And I think that it's actually one of the constraints on the judiciary, that they don't get to go and do free range, fact finding. They have to be tethered to the record of the actual case before them. It's related to the case or controversy requirement.

JACKSON: That is correct, Senator.

WHITEHOUSE: And in that regard, civil juries are, I think, something that Americans have prided themselves on for a long time. You go back to the colonial days. And the civil jury was one of the immediate imports from England, every colony set up civil juries, when the crown tried to interfere with the civil juries in the colonies, it became castles, belli for the revolution, it was in the Declaration of Independence of what the king had done wrong that offended the colonists and caused the revolution.

And the documents around the founding, and around the creation of the Constitution, all reflect passionate belief in the importance of the jury, including the civil jury, which as you may know from your experience in the trial court is getting to be a rarer and rarer creature. And in fact, there are trial judges to have written about how do we start -- how do we keep the civil jury alive? And I'd like to hear your thoughts about whether there's more to the civil jury than just a fact finding appendage of the trial judge, whether it was seen by the founders and whether it belongs in our constitutional structure, as a part of the responsible self-governance that was established by our Constitution.

[12:45:01]

JACKSON: Yes Senator. It is part of our ordered Liberty. It is a mechanism by which citizens can participate in governance. They can be called upon by the court to sit in judgment of other people in the community. And it was something that was a part of the Democratic vision of the founders from the very beginning.

WHITEHOUSE: Blackstone was one of the legal experts who the early lawyers of the United States relied on, I suppose, there were lawyers who had nothing but Blackstone's commentaries on the Bible on their shelf. And Blackstone described the jury as having a role to make sure that the power and clout of big and powerful interests could be protected against that it was a refuge from the power of what you called the more powerful and wealthy citizens.

There were long experience in government of corruption, whether it was getting to a chief executive and getting them to do things your way for improper reasons or whether it was controlling a legislature, a legislative body. But the jury is fundamentally different. Because they don't stick around, they're there for one case, in one case only, then they disappear. You can't fix them so that they decide your way over time.

And if in that one case, you try to fix them, you've likely committed a criminal offense. Tampering with the jury is pretty significant thing is it not?

JACKSON: It is.

WHITEHOUSE: If anybody tampered with a jury of yours, how would you respond?

JACKSON: Oh, very seriously.

WHITEHOUSE: So the jury lives in a protected environment from a lot of the political power and the danger of corruption that the elected branches often suffer? And do you have thoughts about the importance of the civil jury in that regard, as the bastion where people can go, where they'll get a square deal from regular citizens, and can stand toe to toe with the lawyers for however big or mighty and opponent they may have with almost no danger, let's put it that way, little danger, less in danger of the fixed being put in?

JACKSON: Well, certainly the jury system is designed in that manner, that citizens are brought in from the community. When we pick juries, we ask as judges, do any of you in this pool have any connection to anyone? You know, I've --

WHITEHOUSE: So you screen them for conflicts of interest?

JACKSON: You screen them heavily. That's part of the what we call the voir dire, this sort of --

WHITEHOUSE: Yes. We don't do that with people who come to Congress. JACKSON: Well, in the court system --

WHITEHOUSE: They come with their conflicts of interest, often right on their lapels, sometimes hidden in their back pockets, but juries not so, correct?

JACKSON: Not so. And in fact, that would be a reason to exclude someone from the jury. And we even asked, you know, do any of you as judges, we say, do any of you know me? And if you do, you'll have to let me know. And it'd be removed. Because the idea, as you've indicated, is to get people from the community who have no connection to the case, and can hear the evidence that's presented in the courtroom and the arguments of the lawyers and make a decision that is unconnected to any sort of personal interest they might have.

WHITEHOUSE: Protecting the jury against the dangers of bias or corruption, giving the parties before it a clean and fair shot.

JACKSON: Yes, Senator.

WHITEHOUSE: So, with any luck, you will be on the Supreme Court before long, and I hope you will remember all of this. Because it seems to me that the Court has been on something of a campaign to deprecate and diminish the civil jury, including by allowing big corporations to build into their standard contracts buried way down in the fine print that folks often don't read. And even if they do read it, they'll never get through the phone tree to find somebody to complain about it, try to strike it out of the contract, it's a take it or leave it adhesion proposition.

[12:50:12]

And they build into that, that you've given up your right to a jury. Your Seventh Amendment right to a civil jury, it's right actually in the Bill of Rights. And I cannot think of another right that the Court pays less attention to or throws more readily under the bus. If you read the mandatory arbitration cases, there's rarely a mention of the Seventh Amendment.

And it seems to me that flies in the face of the purpose of the jury to allow the citizens of the greatest power and wealth or today corporate citizens, to actually be able to take on the ability on their own through contracts that the customer has no chance to negotiate. The employee has no chance to negotiate, actually take away that right that was at the heart of our founding, without a squeak of objection, or even notice by the Court.

And I think it's created a dramatic shift in power towards big corporations. And I think it has harmed innumerable employees, and customers. So I'm extremely happy that you have been able to answer these questions with such clarity about the role and the history and the value of the civil jury. And it's important, not just as your fact finding adjunct, but as an important part of our constitutional structure, part of our structured liberty as Americans. I wish you well. I'll see you again tomorrow. And thanks so much for your patience with all of us here today. SEN. DICK DURBIN (D-IL), CHAIRMAN, JUDICIARY COMMITTEE: Thanks, Senator Whitehouse. And let me just say a positive word to follow up this Committee. In the last few weeks, this passed legislation signed into law by President Biden, which in cases of sexual harassment, provide that individuals who are complaining have the option of a jury trial, despite efforts to steer them into mandatory arbitration. It is the decision of the complainant, the thing you, that they will seek, I think that is a step in the right direction and we passed out of this Committee on a bipartisan basis.

And so I'd like to ask everyone to consider returning promptly at 1:30 for the much anticipated Senator Lee of Utah.

PHILLIP: And you were just listening to some tough questioning so far for Judge Ketanji Brown Jackson on day one of her confirmation hearing, day two of her confirmation hearing, the first day of questioning, some questions from Democrats and Republicans, two big lines of questioning today from the Republicans, though. We're dealing with Judge Jack's -- Brown Jackson's representation of detainees at Guantanamo Bay, and also a line of attack that was telegraphed for some days now about how she sentenced defendants convicted of child sexual abuse.

We have with us in this room, senior legal analyst Laura Coates. And I do want to deal with the Guantanamo issue because unlike the, you know, child porn issue, which we will get to later, the Guantanamo issue is -- it's on her resume, she defended those detainees who were there as a public defender. But there were some questions here, not just about her decision to do that, but also about some claims made in filings in which according to the Republicans, they suggested that she called or accused the United States government of war crimes. How did you think she handled that entire line of questioning on an issue, this is about terrorism, it evokes 9/11, that is why Republicans are going there?

LAURA COATES, CNN LEGAL ANALYST: And of course, the phrase war criminal very particularly Evergreen today and this week, when the President I think it also accused Vladimir Putin of being a war criminal in the way that's done. Now, first of all, she's quite clear about 9/11. I thought she was very eloquent in her response to suggest that one of the things we all gathered from 9/11 as Americans that we were not going like the act of terror change the way we operated, the idea of our Constitution. It was not suspended in an emergency.

She spoke about the idea of zealous advocacy needed even at that time and executive orders as well. That was a very important point to deflate the argument that she was somehow signing up in a way where she was a zealous proponent of those who had committed terror. Instead, she was actually representing somebody as a lawyer. On the other notion of it, she says she hasn't recalled the actual statement where she analogized members of the government to war criminals, she has to actually answer that particular statement if she's made it.

But if it related to the use of torture tactics towards one of her clients she has made very clear as every lawyer must to make arguments, as she has said, that defend the Constitution and are in service of the court to better inform the judge who will decide the issue about the rights owed that particular defendant.

[12:55:17]

So in that respect, if that was an argument made an effort to demonstrate the constitutional infringement, it's well within her power as a criminal defense attorney to do so. And this idea that suddenly because you were advocating on behalf of the Constitution, you were somehow less qualified to be a judge, really misunderstand what the role of a Supreme Court justice would be to look at that constitution.

PHILLIP: I thought it was also notable that she said, you know, these are cases in which the evidence is classified, and many of these were boilerplate complaints. I want to also bring in CNN legal analyst Joan Biskupic. Joan, a lot hear from both Democrats and Republicans, what did you make of how Ketanji Brown Jackson handled these rush hours?

JOAN BISKUPIC, CNN LEGAL ANALYST: Sure, sure, Abby. Just to two things quickly for you. The first having to do with her, I thought she very persuasively wove together the personal and the legal. When they hit her with the hardest thing they feel they have toward her, the quote, soft on crime, she opened by talking about her relatives who are in law enforcement, and a brother who had to walk the streets of Baltimore, you know, very, very sort of emotionally referring to her own personal commitment to effective law enforcement.

And she wanted to present herself as a sister, a mother, a lawyer, and a judge. So I thought that she handled those questions effectively. And the other thing on the broader picture, Abby, is that, you know, all these senators have had projects that they brought up, you know, the dark money, past grievances of nominations. But I did think that we started to see some core issues about the constitutional role of the Supreme Court.

When Senator Cornyn started asking questions about limiting judicial roles in terms of, you know, privacy rights, gay marriage, those kinds of things that he talked about. And I think those are the -- that's where the rubber meets the road at this current Supreme Court that is actually taking things back to another era. Abby?

PHILLIP: Yes, that is the meat and potatoes of it all.

BISKUPIC: Right.

PHILLIP: Let's go now to Supreme Court reporter Ariane de Vogue. Ariane, you are in the room. What did you see there today?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Well, I thought it was interesting, because she finally had a chance to respond. You know, she was able to push back at some of the criticism we've seen. And she was pretty eloquent this morning when she was asked by Durbin about the fact that Missouri Republican Josh Hawley has said basically that she as a judge has been too lenient when she has been sentencing child porn offenders.

And Durbin asked her point blank, how did that make you feel when you heard that? And she said, as a mother, and as a judge, nothing could be farther from the truth. And that started off with that personal notation of her being a mother. And then she basically, once she got talked about the victims, she's talked about the law and said the reason that she acted the way she did is because the guidelines are outdated. And that's why she's in the mainstream there.

PHILLIP: Yes, one of the most powerful moments of the questioning this morning. I want to go now to CNN's Manu Raju, who's joining us from Capitol Hill. Manu, Lindsey Graham, also questioning her this morning, just some of the fireworks I think we'll see also for the rest of the afternoon.

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Yes, and look, he's an important player here, because he was just one of three Republicans who voted to confirm or just last year to the D.C. Circuit. And we expect this to be a near party line vote, ultimately when it comes to the Senate and the Senate floor. But he is signaling very strongly that he is likely to oppose her this time, in large part because of that exchange that he just had with her about her representation of those Guantanamo Bay detainees as a public defender.

Even though she said those were not her views, that those are views of her clients. He came out and he did not buy what she said here and told me, Abby, that he sees, quote, red flags with this nomination. So expect this nomination probably still be confirmed, but in a very close vote.

PHILLIP: Manu, thank you.

I'm going to bring it back into this room on that last point. Lindsey Graham is important for a lot of reasons. He also voted for her the last time around, calling into the question whether he will this time around now.

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: Sure. And it seems sort of unlikely listening to him. But I think when we step back of all of this, as we saw this morning, yes, the questions will be tough this afternoon. But this is someone who's very familiar with that room. This is someone who's been confirmed several times before and nothing happened this morning that I heard or saw that will change her trajectory here. She's a very good witness, because she's been through it before. It's one of the reasons she was picked.

LAUREN FOX, CNN CONGRESSIONAL CORRESPONDENT: And of course, they're not just Republicans in this room who Democrats are trying to get to. Yes, there's also Lisa Murkowski. There's also Susan Collins. All eyes are going to be on those moderates who haven't had the opportunity to question her in the Judiciary Committee even if this is a party line vote in that Committee.

[13:00:04]

ZELENY: I still put Senator Mitt Romney on the list. We'll see.

PHILLIP: The goal in these Committees is always do no harm. Thank you all for being in the room. Our coverage continues right now. Thanks for joining Inside Politics. Ana Cabrera picks up now.