Senator Lee questions SCOTUS nominee Judge Ketanji Brown Jackson

Sen. Mike Lee (R-UT) questioned Judge Ketanji Brown Jackson, President Biden’s nominee to serve on the Supreme Court of the United States today.  His questions focused on her judicial philosophy, her record on criminal sentencing, and her views on unenumerated constitutional rights.  A full transcript of the exchange is below the video:

MSL indicates Sen. Lee is speaking.  JKBJ and italics indicate Judge Jackson is speaking.  Timestamps are in reference to the above-linked video.

[00:00:00] MSL: Thank you Mr. Chairman, thank you Judge Jackson for being here. I want to talk today about some things you heard about yesterday. There was a lot of talk from members of this committee about judicial philosophy. I want to talk a little bit about what that means and why it’s important. We’ll start with what it means, at least to me. 

One of the things that you heard from a lot of members of the committee, whether they couched it in terms of judicial philosophy or not, [00:00:30] relates to the idea that justice should be blind. That justice properly administered within our system is blind, and that therefore individual justices and judges serving in Article III courts should be blind in the sense that they are able to see and understand and interpret the law. Understand what the law is, while understanding that the idea of what the law should be is left to [00:01:00] other branches of government, not to the judiciary.

In this respect, we recognize that blind justice and blind justices, those who are blind to the things they are supposed to be blind to, are those willing to recognize that if there is a policy flaw in the law, and if there’s a policy change that needs to be made, it’s not the role of a court to change it.

That belongs to two different branches of government, primarily to Congress. This of course requires judicial restraint, it [00:01:30] requires judicial humility, and it gets back to what I was describing yesterday when I referred to Justice Barrett drawing on the analogy from the Odyssey, of Odysseus binding himself to the mast of the ship.

Most of us refer to this judicial philosophy as textualism. Textualism is neither liberal nor conservative, it’s neither Republican nor Democratic. It’s just the approach that says what the law says [00:02:00] matters, and the job of the jurist is to look at the text and figure out what the text means to ascertain the original public meaning of the text in question.

While I doubt there are any members of this committee who would disagree with the idea that justice should be blind in this respect, and that policy changes need to be made by the political branches of government, primarily by the legislative branch, and not by the courts. You did hear some statements that I think are at least a little bit at odds [00:02:30] with that concept of justice.

One of my colleagues mentioned that you should interpret the Constitution in a way that works for the people of today. Fair enough. I certainly don’t want to interpret the Constitution in a way that doesn’t work, but again, that’s not the objective. The objective is not to ascertain good policy. The objective is to ascertain what the law requires. 

You were urged to consider the effects of the Court’s actions on people’s lives. There again, [00:03:00] and so far as this relates to policy, it’s not really the job of the courts. You were admonished that you must “be able to see the real people at the other end of the Court’s rulings, like Americans who are one Supreme Court decision away from losing their health insurance or one court decision away from the ability to make their own healthcare choices.”

And the list goes on and on. Now, that type of judicial philosophy would have you step into the role of [00:03:30] policymaker, and decide what the law should be rather than what the law is. You also heard quoted, a couple of times yesterday, quoted or paraphrased or otherwise referenced, Federalist 78. In which Alexander Hamilton refers to the difference between law between will and judgment. Will, as expressed by Hamilton, refers to what the law should be. Judgment pertains to what the law is.[00:04:00]

The judicial branch has the latter power, but not the former. The legislative branch has the former, but not the latter. Judge Jackson, I’d love to get your thoughts on this discussion about what it means, what blind justice is, why that’s important. Let’s start with this formulation of it though.

Does the law determine the outcome of a case or does the outcome of the case determine the law?[00:04:30] 

JKBJ: Thank you, Senator. The law determines the outcome of a case. 

And so anytime you’re looking at a case and you’re looking at the outcomes for ordinary Americans, for day-to-day Americans, if you’re looking beyond the scope of deciding that case, and if you’re looking, even within that case, beyond what the law says, you would be stepping into a province of a different branch. Is that right?

[00:04:53] JKBJ: I believe so. The law and the facts of the case determine the outcome of cases.[00:05:00]

[00:05:02] MSL: I think that’s an accurate statement. It’s important to emphasize this. This is also something that Hamilton describes in Federalist 78, where he goes on to say, anytime you start to see the courts start to exercise will instead of judgment, the result is supplanting the will of the people as expressed through their elected representatives, through the courts.

And that tends to undermine the whole system. You see, there’s a reason, of course, why we give life tenure to Article III judges [00:05:30] and justices, and that is because we want to make sure that they have the power, the authority, the discretion, and the confidence to issue a decision that they might not be comfortable with.

In fact, a judge who always agrees with and is always comfortable with his or her own opinions, is, as Justice Scalia used to say, not a very good judge. So we wanted them, you, all, to have confidence in being able to make the right decision. Even knowing that you [00:06:00] and the public at large might be uncomfortable with the result it produces. 

Congress makes laws that you won’t always agree with. Congress is accountable to the people at regular intervals. You can fire every member of the House of Representatives every two years. You can fire one-third of us in the Senate every two years. We insulate judges and Supreme Court Justices from that same accountability precisely for this reason.

It’s [00:06:30] because political accountability is so important. This is born out in the judicial oath, one of the oaths that you’ll take if confirmed to this position as an associate justice. In which you’ll swear or affirm that you’ll administer justice without respect to persons, and that you’ll do it faithfully and impartially.

I read this to mean that you do it without consideration of external circumstances, external considerations, policy considerations, or otherwise. [00:07:00] Now, this relates to some interaction that you and I had when you came before this committee for your confirmation to the U.S. Court of Appeals for the D.C. Circuit, where you now sit. In connection with that hearing, I submitted some questions to the record, in which I asked you whether, to what extent, the Constitution protects rights that are not enumerated in the Constitution itself, and if so, to specify what those rights were. You responded by setting a number of cases, [00:07:30] including Griswold v. Connecticut, Roe v. Wade, Loving v. Virginia and a handful of others. You also suggested that the Ninth Amendment was something, was a source, for such rights on enumerated rights.

The Ninth Amendment of course states, “that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Judge Jackson, what specific rights has the Supreme Court identified as [00:08:00] flowing from the Ninth Amendment? And by that, I mean, specifically from the Ninth Amendment, rather than, in sort of an also ran list, of other features of the Constitution that might backup a particular ruling. What rights has the Constitution identified as flowing specifically from the Ninth Amendment?

[00:08:19] JKBJ: Thank you, Senator. The Supreme Court, as I understand it, has not identified any particular rights flowing directly from the Ninth Amendment, although, as you said, the text of the amendment [00:08:30] suggests that there are some rights that are not enumerated.

[00:08:35] MSL: Right. Right. Its very existence and its very language suggests that, which opens up other questions as to how those are to be resolved. It’s led to considerable debate among scholars and jurists alike as to whether, to what extent, in what way, this is enforceable, those rights are enforceable by the courts.

But, how would we go about deciding that? How would [00:09:00] jurists go about deciding this question appropriately? In other words, would it be more appropriate to say, we will ascertain the existence of rights protected by the Ninth Amendment based on contemporaneous understanding, at the time of the ratification of the Ninth Amendment? Or would it be more open ended to protect rights that we think are important today?[00:09:30]

[00:09:32] JKBJ: Thank you, Senator. The Supreme Court now, very clearly, has determined that in order to interpret provisions of the Constitution, we look to the time of the founding, and we ascertain, based on what the original public meaning of the words the Constitution were at the time. Sometimes that yields a [00:10:00] particular answer. Other times you may have to look to practices historically from that time. But that would be the way in which you would go about interpreting the Ninth Amendment.

[00:10:11] MSL: Could it also be that it leaves this to be decided at the discretion of the Supreme Court itself? In other words, not based on any historical precedent, but based on what the Supreme Court justices themselves deem appropriate at the moment? [00:10:30]

[00:10:30] JKBJ: I don’t think so. 

MSL: And why is that?

JKBJ: Because the way in which the Supreme Court interprets the Constitution is with reference to the meaning of the text at the time That it is one of the constraints, as I mentioned, in terms of my own way of handling, interpreting the law. One of the constraints is that you’re bound by the text and [00:11:00] what it meant to those who drafted it.

[00:11:04] MSL:At the time, gotcha. Yeah. Now, on February 1st of this year, President Biden said that he was looking for a Supreme Court nominee, this was, I recall, right after Justice Breyer announced that he would be stepping down, and before he had announced whom he might nominate, that he was looking for a nominee “with a judicial philosophy that is more one that suggests that there are unenumerated rights to the Constitution, and all new members mean something, including the Ninth Amendment.” So do you share the judicial philosophy that President Biden described in that statement?

[00:11:45] JKBJ: Senator, I have not reviewed that statement, but I have not discussed anything about enumerated rights, unenumerated rights with the President.

MSL: So did President Biden ask you either about your judicial philosophy more broadly, separate and apart from the Ninth Amendment, or ask you about your approach to the Ninth Amendment?

JKBJ: He did not.

[00:12:12] MSL: In a primary election debate that he had as a presidential candidate in Nevada in 2007, Joe Biden stated “I would not appoint anyone who did not understand that Section V of the Fourteenth Amendment and the Liberty Clause of the Fourteenth Amendment provided a right to privacy. That’s the question I’d ask them. If that is answered correctly, that that is the case, that it answers the question which means they would support Roe v. Wade.” I assume his reference to the Liberty Clause is referring to the Due Process Clause of the Fourteenth Amendment. In context, that appears to be what he is saying. Did President Biden ask you whether you agreed with his analysis of the Fourteenth Amendment as it relates to the right to privacy?

[00:13:05] JKBJ: He did not.

[00:13:12] MSL: Tell me this. When we look at any provision of the Constitution,  one of the many reasons it is helpful to look at the original understanding, in addition to the fundamental reason that you described, it can help us understand what motivated it, and it can help us understand the actions of those who voted within Congress to propose text to be amended to the Constitution, and those who voted to ratify it. We have got a number of amendments, including the amendment that he referred to in that last quote I read, that had an understanding that included certain thou shalt nots for government. The Equal Protection Clause, I think, is a provision of the Fourteenth Amendment that, people understood, among anything else it might do, restricts the government’s ability to treat people differently on the basis of race. Consistent with the equal protection clause of the Fourteenth Amendment, when is it permissible for the government to treat a person differently on the basis of race?

[00:14:29] JKBJ: Thank you, Senator. The Supreme Court has interpreted the equal protection clause, as you say, to generally prohibit classifications on the basis of race, and it says that those classifications are to be rigorously scrutinized, strict scrutiny, which is a standard that applies, that looks at the purposes of the government, and the means by which the government seeks to achieve any end related to such classification. The government would have to have a compelling interest in making that classification, and the means that it selects would have to be narrowly tailored to achieve that interest.

[00:15:21] MSL: And so those compelling interests cannot be for light or transient reasons. They can’t just be something like, we feel like it, in other words.

[00:15:30] JKBJ: Correct. 

[00:15:31] MSL: And the reason for this is because, number one, it is bad for anyone to treat another person differently on the basis of race. It is especially bad when the government does it, because there is not exactly equal bargaining power, when you’re dealing with the relationship an individual has with government. By definition, it’s a particularly unfair form of discrimination when it is the government doing it. Governments have enforcement officers, they have armies, they have the means of enforcing their will and their laws, and that is one of the reasons why it’s so important. What about under statute, consistent with Title VII of the Civil Rights Act of 1964, when is it permissible for an employer to treat an employee, or a prospective employee, differently on the basis of his or her race?

JKBJ: By statute, under Title VII, it is generally impermissible. 

[00:16:30] MSL: And permissible only in very narrow circumstances.

[00:16:34] JKBJ: I believe so, and the statute itself has some restrictions in terms of to whom it applies, the employers.

[00:16:42] MSL: Some exclusions in terms of religious employers for example, not being able to discriminate on the basis of race, but it exempts religious employers within certain spheres in order to be able to protect that religious employer’s discretion to operate within its faith, and the rules of its faith. And by doing that, it makes that much clearer, by making that distinction, it makes that much clearer, that discrimination on the basis of race and employment is not something that the law smiles upon, nor should it. Let us talk about the Commerce Clause for a minute, if that is all right. Now at the time of the founding, the founding fathers didn’t foresee and almost certainly could not have foreseen the invention of radios, televisions, airplanes, the internet, telephone networks, and yet all of those things are governed by federal law, and not by state law. Why is this constitutional?

[00:17:58] JKBJ: Well Senator, the Commerce Clause was initially interpreted by the Supreme Court to be very broad, to allow for federal regulation of interstate commerce and the growth of the economy in this country. Over time, the Supreme Court has made clear that the Commerce Clause limits the federal government, there is limited authority under the Commerce Clause. The state of the law now is such that the federal government, through the Commerce Clause, is only permitted to regulate channels of interstate commerce, instrumentalities of interstate commerce, and activities that substantially affect interstate commerce, and with respect to the third category, the Supreme Court has made clear, in the Lopez case and in Morrison, that non-economic activities are not covered by Commerce Clause authority. In the NFIB case and the ACA case, the Supreme Court made clear that inactivity is also not covered and not authorized under the Commerce Clause.

[00:19:17] MSL:And most of the items that I identified in my question, in fact, all of them, I believe would fall into the category of channels and instrumentalities of interstate commerce we are dealing [00:19:30] with interstate airways, airwaves, waterways, networks, things like that. Things that depend for their existence, for their effectiveness on their operation interstate such that they could not, no one could effectively regulate them and preserve their core function, unless that was federal. Those fit into the category of the channels and instrumentalities with the third item that you described the substantial [00:20:00] effects, interstate commerce. Is there much of a limiting principle there? You referred to Lopez and Morrison, and NFIB versus Sebelius. To my knowledge, those are the only three cases the Supreme Court has decided since its ruling in 1937 on NLRB versus Jones and Loughlin Steel, which essentially created the modern substantial effects case.

The modern substantial effects standard was the only three instances in which the Supreme court identified [00:20:30] as outside the Commerce Clause authority, something that Congress had enacted. Are these meaningful constraints in your view, or are they examples of Congress just getting reckless and sloppy in the way it drafted things?

Some have argued for instance that as long as Congress does not get reckless and sloppy, it can do whatever it wants under those. Do you have any view on that?

[00:21:08] JKBJ: Well these cases come through the courts, so I’ll be general. [00:21:00]The fact that Congress is limited in its authority under the commerce clause is established law. It is a fundamental principle of our constitutional order and those limits that the Supreme Court has recognized do carve out categories of activity that Congress is not permitted, the federal government is not permitted to regulate. [00:21:30] Non-economic activity is a category. Inactivity is a category.

MSL:The Supreme Court has also, through the Commerce Clause, established rules for things that the states may not do, this is referred to as the so-called Dormant Commerce Clause. The Dormant Commerce Clause acknowledges the power of Congress, the exclusive [00:22:00] domain of Congress is regulating interstate commerce. But there’s no federal cause of action to allow for the invalidation of a state law under the commerce clause.

It’s been something that’s been adopted by the courts. Is that an appropriate exercise of the court’s judicial power or does it amount to de facto legislation on the part of the courts?

[00:22:21] JKBJ: Well Senator, I would not characterize it. I know that’s what the Supreme Court has permitted the Dormant Commerce Clause. [00:22:30] It is a principle that supports the interstate nature and regulation and authority of the federal government.

And so states are not permitted under that doctrine to discriminate against other states, to preference their own commerce in a way that interferes with interstate commerce.

[00:22:57] MSL: I wanna turn back for a moment to a line [00:23:00] of inquiry you had with Senator Durbin earlier today, when you were talking about your sentencing in these child pornography cases. I wanna make sure that I understand your answer there.

If I understand it, you were making the argument that your concern was that the laws in this area did not adequately take into account the transfer of these materials [00:23:30] by electronic means to be transmitted, received and stored through computers. Is that my understanding of that correctly?

[00:23:39] JKBJ: Well Senator, the point that I was making was that the sentencing commission back when I was part of it and even since, tasked with the responsibility to evaluate and make recommendations and look at the data and information about cases, has [00:24:00] looked at the operation of the child pornography guideline.

Not so much the statute, but the guidelines, which the Congress has tasked the Sentencing Commission with developing. And there are aspects of the child pornography guideline that Congress in legislation has required. It required certain enhancements to be included in the guideline. And some of those enhancements, the [00:24:30] data is now revealing. Don’t take into account the change in the way that this horrible offense is now committed.

[00:24:46] MSL: But the fact that it’s easier to commit the offense shouldn’t diminish the severity of the punishment, should it? I mean, any more than the more widespread availability of certain drugs, the more widespread availability of certain weapons might. I mean you surely wouldn’t [00:25:00] argue for a lower sentence when certain things become easier in other criminal contexts. So why is this one different?

[00:25:07] JKBJ: The sentencing enhancements that are in the guidelines are designed to help courts differentiate between different levels of culpability. Congress will say, this is an offense, whatever it is, and the maximum penalty [00:25:30] is X. In most cases, the range is between zero and something like 20 years that Congress gives when it establishes a penalty.

The point of the guidelines is to help judges figure out where in that range between zero and 20 years, a particular defendant should be sentenced. And the guidelines have gradations in them, [00:26:00] that relates to various aspects of the commission of the crime. So, the commission does data gathering and research to figure out how crimes are committed and what gradations should it matter in terms of the range of culpability. Because the problem of not doing that or of getting it wrong is that you were not able [00:26:30] to adequately assess and determine the differences among offenders on the scale.

[00:26:39] MSL: Right, I understand that. And so, but in, in these cases, as I understand it all ten of the cases that we’ve reviewed on record, where you’ve sent someone for a child pornography conviction in all 10 of those cases, you departed from the guidelines,and departed downward.

It’s hard for me to [00:27:00] understand departing from those in every case you’ve got, because isn’t a departure supposed to be grounded in a finding that it’s outside the heartland of cases in that range cases of that sort?

[00:27:15] JKBJ: Yes, Senator. And as I said before, these are horrible cases that involve terrible crimes, and the court is looking at all of the evidence consistent with Congress’ factors [00:27:30]for sentencing. The guidelines are one factor, but the court is told that you look at the guidelines, but you also look at the nature and circumstances of the offense, the history and, and characteristics of the offender.

There are a series of factors in the cases you are also getting recommendations. And in most of the cases, I haven’t pinned it all down, but in most of the cases, if not all of the cases, the government [00:28:00] is asking for a sentence below the guidelines, because this guideline system is not doing the work in this particular case.

[00:28:08] MSL: Understood. Section 230 of the Telecommunication Decency Act provides a degree of immunity for tech companies operating in the space of being online interactive service providers. It immunizes them from certain causes of action that would otherwise apply [00:28:30] against them.

Would it be within Congress’s authority to condition the receipt and availability of Section 230 immunity? On those online interactive service providers operating as a public forum that is not discriminating on the basis of viewpoint or, the viewpoint of those posting on them. Would that be within our [00:29:00] authority?

[00:29:01] JKBJ: Senator, I can’t comment on a particular issue about whether or not it is constitutional or not. But the criteria that you identify, it would be relevant. I think as to whether or not the government is seeking to regulate along viewpoint lines under the First Amendment. That is something that is,[00:29:30] generally impermissible.

[00:29:32] MSL: Thank you, Mr. Chairman.