The Confirmation Hearing of Ketanji Brown Jackson
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Democratic support for Judge Ketanji Brown Jackson, who could become the first Black woman to serve as a Supreme Court justice, was never in much doubt. Less certain was the depth of Republican opposition.
To analyze how the arguments have played out so far in her confirmation hearing, we look at four key moments.
Guest: Adam Liptak, a reporter covering the Supreme Court for The New York Times.
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Adam Liptak
Michael Barbaro
Ketanji Brown Jackson
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Verified
Break
Michael Barbaro
00:29
From
The New York Times
, I'm Michael Barbaro
. This is The Daily
.Share
00:39
Today:
Share
00:43
This meeting of
the Senate Judiciary Committee
will come to order.Share
Michael Barbaro
00:46
What we've learned so far from the confirmation hearings of President Biden's first nominee to
the Supreme Court
, Judge Ketanji Brown Jackson
. I spoke with my colleague, Adam Liptak,
about four key moments.Share
01:04
It's Wednesday, March 23.
Share
01:21
And it's more than 230 years. The
Supreme Court
has had 115 justices. 108 have been white men, just two justices have been men of color. Only five women have served on the court and just one a woman of color. Not a single justice has been a Black woman. New Judge Jackson
can be the first.Share
Michael Barbaro
01:42
Adam
, we are talking to you at a little after 6 p. m. on the second day of the confirmation hearings for Judge Ketanji Brown Jackson
. And just to set the stage heading into these hearings, Democratic support for Judge Jackson
has not seemed in doubt. It is sufficiently, we believe, to very narrowly confirm her.Share
02:05
And so the real question is the depth of opposition from Senate Republicans, what arguments they'd make against her, and whether those arguments might endanger her Democratic support. And so that's the prism through which we want to examine a few key moments from these hearings. And I think we should start with Judge Jackson's opening statement, where she really has a chance to frame her story. So let's do that.
Share
Ketanji Brown Jackson
02:37
Chairman
Durbin
, ranking member Grassley
and distinguished members of the Judiciary Committee. Thank you for convening this hearing and for considering my nomination as associate justice of the Supreme Court of the United States
.Share
Adam Liptak
02:55
Well, Michael, nobody doubts, and this includes Republicans, that Judge
Jackson's
story. Her life story is inspirational, and could really only have happened in the last few decades.Share
Ketanji Brown Jackson
03:08
The first of my many blessings is the fact that I was born in this great nation. A little over 50 years ago, in September 1970,
Congress
had enacted two civil rights acts in the decade before.Share
Adam Liptak
03:25
She was born not long after the civil rights movement, achieved tremendous gains and transformed American society.
Share
Ketanji Brown Jackson
03:33
And like so many who had experienced lawful racial segregation firsthand, my parents, Johnny and Ellery Brown, left their hometown of Miami, Florida and moved to
Washington
, D. C. to experience new freedom. And to express both pride in their heritage and hope for the future. They gave me an African name, Ketanji Onyika
, which they were told means "lovely one".Share
Adam Liptak
04:05
And she was able to go, as her parents were not, to an unsegregated public school.
Share
Ketanji Brown Jackson
04:12
My very earliest memories are of watching my father study. He had his stack of law books on the kitchen table, while I sat across from him with my stack of coloring books.
Share
Adam Liptak
04:22
She recounted vivid memories of, for instance, her father, a public school teacher, studying to become a lawyer and the two of them sitting together. The father with a stack of law books and the daughter with a stack of coloring books.
Share
Ketanji Brown Jackson
04:36
My parents also instilled in me and my younger brother, Ketajh, the importance of public service.
Share
Adam Liptak
04:44
She also spoke about the tradition of public service in her family.
Share
Ketanji Brown Jackson
04:49
Ketajh started out as a police officer, following two of our uncles. After
the September 11 Attacks
on our country, Ketajh volunteered for the army and eventually -Share
Adam Liptak
05:01
Her brother, two of her uncles, served as law enforcement officers. After
the September 11 Attacks
, her younger brother signed up for the military and served two tours of duty in the Middle East. And she herself Goes to Harvard College
and Harvard Law School
and clerks for three different federal judges, including Justice Stephen Breyer
, whom she hopes to replace.Share
Ketanji Brown Jackson
05:24
I have dedicated my career to ensuring that the words engraved on the front of
the
Supreme Court
building, "equal justice under law", are a reality and not just an ideal.Share
Adam Liptak
05:40
So there's really no question that her life story is emblematic of the progress of American society, and I don't think at least on biographical grounds. There's any reason to think that she didn't charm all the senators.
Share
Dick Durbin
05:56
Thank you, Ms.
Jackson
. Senator Grassley
.Share
Chuck Grassley
05:59
Thank you, Mr. Chairman. Welcome again to our committee.
Share
Michael Barbaro
06:03
Okay, so let's turn to the next big moment in these hearings, which was an exchange where Judge
Jackson
is asked by Republican Senator Chuck Grassley
of Iowa, the ranking Republican on the Senate Judiciary Committee, to really explain her judicial philosophy, which is a key question for Republicans about her. And what they really seemed to be trying to get at is, how do you apply the law?Share
Chuck Grassley
06:27
I ask you whether you believed in the theory that the
Constitution
is a living document, whose meaning evolves over time.Share
Michael Barbaro
06:37
How do you interpret the
Constitution
, and really, just how liberal a judge are you? So walk us through that exchange.Share
Ketanji Brown Jackson
06:45
I'm very acutely aware of the limitations on the exercise of my judicial power.
Share
Adam Liptak
06:52
Well, the answers she gave would be ones you would think the Republicans would like, that she's closely focused on the relevant text, whether it's the
Constitution
or a statute.Share
Ketanji Brown Jackson
07:04
And I do not believe that there is a living
Constitution
in the sense that it's changing, and it's infused with my own policy perspective, or you know, the policy perspective of the day.Share
Adam Liptak
07:20
That she doesn't believe in a living
Constitution
.Share
Michael Barbaro
07:23
Can you explain that phrase "living
Constitution
", and what it would mean to someone like Chuck Grassley
to ask her about it? And what would it mean for her to have said, I don't believe in that concept?Share
Adam Liptak
07:34
So I guess the most extreme version of a living
Constitution
would allow judges to infuse the constitutional text with whatever they believed was the appropriate answer, given contemporary circumstances, to any particular legal question. I think that's a little bit of a caricature.Share
07:54
Probably closer to the reality of what a sympathetic version of a living
Constitution
would mean is that the founders used general phrases in the Constitution
, the freedom of the press, equal protection of the laws and so on, in order to let succeeding generations fill that with meaning relevant to contemporary circumstances. But most conservatives would adopt the Antonin Scalia
version of the Constitution
when he would say it's not living, it's dead, dead, dead.Share
Michael Barbaro
08:29
Right.
Share
Adam Liptak
08:30
And that's all that matters, is how it was understood when it was adopted and ratified.
Share
Ketanji Brown Jackson
08:35
The
Supreme Court
has made clear that when you're interpreting the Constitution
, you're looking at the text at the time of the founding and what the meaning was then as a constraint on my own authority.Share
Adam Liptak
08:52
And her version of her judicial philosophy was much closer to the
Scalia
version. And her explicit rejection of a living Constitution
approach should have heartened Republicans.Share
Ketanji Brown Jackson
09:05
And so I apply that constraint. I look at the text to determine what it meant to those who drafted it.
Share
Michael Barbaro
09:15
Right. This is, in many ways, the language we associate with the Republican-appointed justices on the
Supreme Court
. So it felt a little unexpected out of the mouth of a Democratic nominee from President Biden
.Share
Adam Liptak
09:32
Yeah, I suppose. Although many liberal scholars and judges now use these tools, these interpretive methods, originalism and textualism, to reach liberal results. So on the one hand, it tells the Republican senators what they want to hear.
Share
Michael Barbaro
09:52
Right.
Share
Adam Liptak
09:53
On the other hand, they know, and we know it doesn't actually predict what kind of justice she's going to be.
Share
Michael Barbaro
09:59
So you're saying Republicans might appreciate this language from Judge
Jackson
, but they aren't necessarily buying it. And they're very eager to poke holes in it. And that's exactly what happens next, of course, Adam.
We saw, in several exchanges, Republicans attempting to portray Judge Jackson
as left-leaning as, in some cases, radical. And the first of these exchanges came under questioning from Senator Lindsey Graham
of South Carolina. So walk us through that.Share
Lindsey Graham
10:32
Thank you, judge. Again, congratulations.
Share
Adam Liptak
10:37
Senator
Lindsey Graham
asked her about her representation of detainees at Guantanamo Bay
, Cuba
-Share
Lindsey Graham
10:44
So now let's talk about
Gitmo
.Share
Adam Liptak
10:47
Where after
the September 11 Attacks
, the United States
sent people they considered terrorists or enemy combatants and where they've been held, some of them now for two decades.Share
Michael Barbaro
11:01
Explain why Judge
Jackson
ever came to represent people at Guantanamo Bay
. What was happening in her career?Share
Adam Liptak
11:10
She was a federal public defender. She was an appellate lawyer, an assistant federal public defender. And there came a time when
the
Supreme Court
said that detainees could file petitions for habeas corpus, petitions seeking to be released, and she filed a series of those. And Senator Graham
said, on the one hand, everyone deserves a lawyer.Share
Lindsey Graham
11:35
And do you think it's important to the system that everybody be represented?
Share
Ketanji Brown Jackson
11:40
Absolutely. It's core constitutional value.
Share
Lindsey Graham
11:44
You'll get no complaints from me. That was my job in the Air Force. I was a area defense counsel represented -
Share
Adam Liptak
11:50
But on the other hand, he seemed to take offense to some of what he characterized as the arguments she made.
Share
Michael Barbaro
11:59
And what were the arguments he found offensive?
Share
Lindsey Graham
12:01
So my question is very simple. Do you support the idea, did you support, then, the idea that indefinite detention of an enemy combatant is unlawful?
Share
Ketanji Brown Jackson
12:14
Respectfully Senator, when you are an attorney, and you have clients who come to you, whether they pay or not, you represent their positions before the court.
Share
Lindsey Graham
12:29
Did you ever accuse in one of your habeas petitions the government of acting as war criminals for holding the detainees?
Share
Ketanji Brown Jackson
12:38
I'm -
Share
Lindsey Graham
12:40
That the holding of the detainees by our government, that we were acting as war criminals.
Share
Adam Liptak
12:46
He said that she had accused the government of being a war criminal. And that's a very loose interpretation of the language of the legal filings that she had submitted.
Share
Ketanji Brown Jackson
12:56
Senator, I don't remember that accusation, but I will say that -
Share
Lindsey Graham
13:01
Do you believe that's true that America was acting as war criminals and holding these detainees?
Share
Ketanji Brown Jackson
13:09
Senator. The
Supreme Court
held that the executive branch has the authority to detain people who are designated as enemy combatants for the duration of the hostilities. And what I was doing in the context of the habeas petitions at this very early stage in the process was making allegations to preserve issues on behalf of my clients.Share
Adam Liptak
13:40
Apparently she said that torturing detainees, and there's significant, there is significant evidence that there was such torture, amounts to a war crime. She didn't associate that concept with anyone in particular.
Share
Michael Barbaro
13:56
Right. So she never called anyone war criminals.
Share
Adam Liptak
13:59
That's right.
Share
Ketanji Brown Jackson
13:60
Lawyers make allegations -
Share
Lindsey Graham
14:02
I've been a lawyer too, but I don't think it's necessary to call the government a war criminal in pursuing charges against a terrorist. I just think that's too far. I don't know why he chose those words. That's just too far. But we are where we are.
Share
Adam Liptak
14:17
So this was Senator
Graham,
who is himself a former military lawyer, maybe engaging in a little legal argument that doesn't hew entirely closely to the facts.Share
Michael Barbaro
14:30
So what
Graham
is really up to here, just to summarize this, is, he's trying to portray Judge Jackson
is overzealous in her defense of these detainees, who he sees as a threat to the US. And he's trying to portray her as antagonistic to the US government at a time of war. And her reply is, look, as a lawyer. My job is to defend my client, no matter who that client is, because everybody is entitled to a legal defense in the American justice system.Share
Adam Liptak
15:03
Yeah, that's a fair characterization of it. I don't know that it got all that much traction from his Republican colleagues. But it was one of several lines of attack in which Judge
Jackson
was portrayed by Republicans as siding with the wrong people.Share
Michael Barbaro
15:33
We'll be right back.
Share
Break
Michael Barbaro
17:12
Adam, the next moment we want to talk about feels very related to the exchange that we just discussed. Senator
Graham
had attempted to portray Judge Jackson
as sympathetic to terrorists, and not long after -Share
Ted Cruz
17:25
Judge
Jackson
, welcome.Share
Ketanji Brown Jackson
17:27
Thank you.
Share
Ted Cruz
17:27
Congratulations.
Share
Ketanji Brown Jackson
17:29
Thank you.
Share
Michael Barbaro
17:29
A fellow Republican Senator,
Ted Cruz
of Texas, attempts to portray Judge Jackson
as overly sympathetic to people who possess child sexual imagery, imagery of child sexual abuse. So, talk us through that exchange.Share
Ted Cruz
17:48
Let's take a look at your actual sentencing.
Share
Adam Liptak
17:52
So Senator
Cruz
makes the case -Share
Ted Cruz
17:55
You've had 10 different cases involving child pornography.
Share
Adam Liptak
17:59
In which he said that Judge
Jackson,
in sentencing people convicted of these terrible crimes, went to light on them.Share
Ted Cruz
18:09
The
United States
versus Chazen, the prosecutor asked for 78 to 97 months. You imposed 28 months. 28 months is a 64% reduction.Share
Adam Liptak
18:24
And he had charts and graphs -
Share
Ted Cruz
18:27
In
The United States
versus Hawkins, the prosecutor asked for 24 months, you imposed three months. That was 88% reduction.Share
Adam Liptak
18:37
And examples and percentages.
Share
Ted Cruz
18:40
Every single case, 100% of them when prosecutors came before you with child pornography cases, you sentence the defenders to substantially below not just the guidelines, which are way higher, but what the prosecutor asked for, on average of these cases, 47.2% less. Now you said -
Share
Michael Barbaro
19:01
And how does she respond to that,
Adam
?Share
Adam Liptak
19:04
She's not impressed by his chart.
Share
Ketanji Brown Jackson
19:07
A couple of observations. One is that your chart does not include all of the factors that
Congress
has told judges to consider, including the probation officer's recommendation in these cases.Share
Adam Liptak
19:23
She says it doesn't include all the factors that judges should consider.
Share
Ketanji Brown Jackson
19:27
Not only the sentencing guidelines, not only the recommendations.
Share
Adam Liptak
19:33
Federal sentencing law is very complicated, and you can slice it and dice in a number of different ways. But sentencing experts seem to agree, more or less, on the following: that the sentencing guidelines, which are advisory and discretionary, are, by all accounts, very harsh in this area. So much so that prosecutors often asks for substantially lighter sentences than the guidelines call for.
Share
Ketanji Brown Jackson
20:03
And
Congress
has said that a judge is not playing a numbers game. The judge is looking at all of these different factors in making a determination in every case based on a number of different considerations. And in every case, I did my duty to hold the defendant accountable in light of the evidence and the information that was presented to me.Share
Adam Liptak
20:34
And the evidence seems to be that she is completely in line with what other judges in D. C., where she served as a trial judge and across the nation are doing. But I don't want to suggest that her answer here is only technical.
Share
Ketanji Brown Jackson
20:50
For every defendant who comes before me and who suggests, as they often do, that they're just a looker, that these crimes don't really matter, they've collected these things on the internet, and it's fine. I tell them about the victim statements that have come in to me as a judge.
Share
Adam Liptak
21:13
She became quite impassioned earlier in the hearing in describing the terrible harm that these images do, that people subjected to them have lifelong trauma.
Share
Ketanji Brown Jackson
21:27
When I look in the eyes of a defendant who is weeping because I'm giving him a significant sentence, what I say to him is, do you know that there is someone who has written to me, and who has told me that she has developed agoraphobia? She cannot leave her house because she thinks that everyone she meets will have seen her, will have seen her pictures on the internet. They're out there forever at the most vulnerable time of her life.
Share
22:04
And so she's paralyzed. I tell that story to every child porn defendant as a part of my sentencing so that they understand what they have done.
Share
Adam Liptak
22:20
So her larger point was to reject completely and emphatically the idea that she is soft on this kind of crime.
Share
Michael Barbaro
22:33
And why did this series of exchanges on this subject matter?
Share
Adam Liptak
22:38
Well, I guess if you had to think about, you know, who are the people that the American public are least likely to be sympathetic to. You might start with terrorists and then go on to people complicit in child sexual abuse.
Share
Michael Barbaro
22:51
Right.
Share
Adam Liptak
22:51
So it's if nothing else, political hardball, but it also gave us an opportunity to look at Judge
Jackson
under pressure. And she was throughout, composed and forceful.Share
Michael Barbaro
23:06
Adam
, our colleagues have reported that Republicans have really struggled with whether or how to engage the question of race in these hearings, either by talking about it or talking around it, given that Judge Jackson
is the first Black woman to be nominated to the Supreme Court
and that they're trying to block her. So how do you think ultimately the Republicans chose to handle that subject?Share
Adam Liptak
23:35
Well, they talked about race in one context -
Share
Ted Cruz
23:39
Critical race theory, as you know, originated at your and my alma mater, the
Harvard Law School
.Share
Adam Liptak
23:44
Which is critical race theory.
Share
Ted Cruz
23:47
In your understanding, what does critical race theory mean? What is it?
Share
Adam Liptak
23:51
Which was a legal movement that
Ted Cruz
discussed with Judge Jackson
. They had been at Harvard Law School
at the same time and in law schools, critical race theory did play a role in some amount of legal thinking.Share
Ketanji Brown Jackson
24:06
Senator, my understanding is that critical race theory is it is an academic theory that is about the ways in which race interacts with various institutions. It doesn't come up in my work as a judge. It's never something that I've studied or relied on. And it wouldn't be something that I would rely on if I was on
the
Supreme Court
.Share
Adam Liptak
24:33
Judge
Jackson
said that she never studied it and certainly never used it in her jurisprudence. And she says it doesn't come up in the work that I do as a judge.Share
Ted Cruz
24:42
So let me ask you a different question. Is critical race theory taught in schools? Is it taught kindergarten through 12?
Share
Ketanji Brown Jackson
24:50
Senator, I don't know. I don't think so. I believe -
Share
Adam Liptak
24:53
And then noting that Judge
Jackson
sits on the board of a private school in Washington
-Share
Ted Cruz
24:59
I will confess. I find that statement a little hard to reconcile with the public record because if you look at the Georgetown Day School's curriculum, it is filled and overflowing with critical race theory.
Share
Adam Liptak
25:13
He started showing her a number of books he said we're in the curriculum at the school, including one called "Anti-Racist Baby".
Share
Ted Cruz
25:23
There are portions of this book that that that I find really quite remarkable. One portion of the book says babies are taught to be racist or anti-racist. There is no neutrality. Do you agree with this book that is being taught with kids that the babies are racist?
Share
Ketanji Brown Jackson
25:46
Senator.
Share
25:54
I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than that their victim -
Share
Michael Barbaro
26:10
What exactly is
Cruz
up to here? What is this about?Share
Adam Liptak
26:16
Well, basically, what I think is going on with several of these lines of questioning from Republicans is that you need a reason to vote against the first Black woman to serve on the
Supreme Court.
And you need to have something to say when you cast that vote.Share
26:37
And so it seems to be an effort to try to find something that will sell to at least your constituents that she likes terrorists, that she's soft on people involved in child sexual abuse, that she endorses racist baby books in private schools. And whatever force these critiques have, their real purpose seems to be to provide a rationale for a vote against Judge
Jackson
.Share
Michael Barbaro
27:13
Right. Because as you said,
Adam
, her judicial philosophy would not alone seem sufficient for many of these Republicans to vote "no", but you're saying in these narrow lines of attack, they're finding their reason to vote against her.Share
Adam Liptak
27:29
Yeah, that's right. She's a conventional judge. She's a mainstream judge. Her description of how she goes about doing her judicial job ought to be attractive to Republicans. Her description of a judicial philosophy ought to be attractive to Republicans. So if that's all they had to work with, it would be very hard to justify a vote against her. So you need a different, better and apparently more colorful reason.
Share
Michael Barbaro
27:58
So,
Adam,
as we wrap up here, where have these last two days of confirmation hearings left Judge Jackson's nomination?Share
Adam Liptak
28:09
There's every reason to think that she's going to be confirmed. There's little reason to think that she is going to attract many, if any, Republican votes. When she was confirmed last year to the federal appeals court in
Washington
, she got the votes of Senators Graham,
Collins
and Murkowski
.Share
28:32
The
Graham
vote on the evidence of Tuesday's hearing seems to be off the table. But it doesn't matter If she gets no Republican support because if the 50 Democrats hang together, and there's every reason to think they will, aided by the tie breaking vote of Vice President Harris
, she'll get on the Supreme Court
.Share
Ketanji Brown Jackson
28:53
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
.Share
Adam Liptak
29:09
The significance of that was not lost on Judge
Jackson
-Share
Ketanji Brown Jackson
29:13
I stand on the shoulders of generations past, who never had anything close to this opportunity.
Share
Adam Liptak
29:24
Who talked candidly about the history that had gone into her ability to even have a shot at the job, and the fact that if confirmed, she will serve as a role model for many people, but among them young Black girls who may not have envisioned this as a possibility.
Share
Ketanji Brown Jackson
29:47
Thank you for this historic chance to join the highest court to work with brilliant colleagues to inspire future generations and to ensure liberty and justice for all.
Share
Michael Barbaro
30:10
Well, Adam, as always, thank you very much.
Share
Adam Liptak
30:19
Thank you, Michael.
Share
Michael Barbaro
30:28
The confirmation hearings for Judge
Jackson
will resume this morning. A full Senate
vote on her nomination is expected by mid-April.Share
30:50
We'll be right back.
Share
Break
Michael Barbaro
31:37
Here's what else you need to know today.
Share
31:40
Ukrainian forces claimed an important victory on Tuesday, saying they had retaken a key town from Russian troops called
Makariv
, about 40 miles west of Kyiv
. Meanwhile, in Russia
, President Putin
intensified his crackdown on dissent against the war. Courts under Putin's control sentenced his leading political opponent, Alexei Navalny,
to an additional nine years in prison on the charge of fraud on top of the 2 and a half year sentence. Navalny is already serving. In letters from jail. Navalny has been urging Russians to protest the war in Ukraine.
Share
32:25
And Chinese authorities say they have found no survivors from the crash of a
Boeing-made
passenger plane flown by China Eastern Airlines
that was carrying 132 people across southern China. On Monday, the plane plummeted more than 20,000 feet in, about a minute, briefly regained altitude then plunged again to the ground. So far, the cause of the crash is unknown.Share
33:01
Today's episode was produced by Rachel Quester, Diana Nguyen and Mooj Zadie. It was edited by John Ketchum and M. J Davis Lin. Contains original music from Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.
Share
33:30
That's it for
The Daily
. I'm Michael Barbaro
. See you tomorrow.Share
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Michael Barbaro
Ketanji Brown Jackson
Adam Liptak
Dick Durbin
Chuck Grassley
Lindsey Graham
Ted Cruz