Transcripts For FOXNEWSW Outnumbered 20220322

0 christianity, judaism, islam, embraces traditional definition of marriage, correct? >> i am aware that there are various religious faiths that define marriage in a traditional way. >> do you see that when the supreme court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably sit in conflict between those who ascribe to the supreme court's edict and those who have a firmly held religious belief that marriage is between a man and a woman? woman? >> well, senator, these issues are being litigated, as you know, throughout the courts as people raise issues. i am limited with what i can say about them. i'm aware there are cases -- >> i'm not asking you to decide a case or predict how you would decide to, i'm just asking isn't it apparent that when the supreme court decides that something that is not even in the constitution is a fundamental right, and no state can pass any law that conflicts with the supreme court's edict, particularly in an area where people have so sincerely held religious beliefs, doesn't that create a conflict between what people may believe as a matter of their religious doctrine or faith in what the federal government says is the law of the land? >> well, son of dirt that is of our right. when there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their's sincerely held religious belief. >> do you agree that a marriage is not mentioned in the constitution? >> it is not mentioned, no. >> and religious freedom is mentioned in the first amendment explicitly, correct? >> it is. >> do you share my concern that when the court takes on the role of identifying in on enumerated right, in other words it is not mentioned in the constitution, and creates a new right, declaring that anything conflicting with that is unconstitutional, that that creates circumstance for those who may hold to traditional beliefs, like something as important as marriage, that they will be vilified as unwilling to assent into this new orthodoxy? >> senator, i understand that concern. because there are cases that are addressing these sorts of issues i'm not in a position to comment about either my personal views or -- >> i'm not asking you to. justice alito in the ober filed case wrote that ice and those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by government employers and schools. so the case was decided under a doctrine known as substantive due process, correct? >> if memory serves yes, sub if there might've been equal protection concerns, -- >> and the supreme court has said it is created by the confluence of the fifth amendment and the 14th amendment to the united states constitution. but historically, it has been applied in ways that seem to sanction explicit policymaking via the courts. for example, the lochner versus new york case, which i know you talked to senator lee about in particular, which was a new deal case that such limitations on how long bakers could work in new york, the supreme court struck that down and set it violated the right of free contract. now lochner, as you know, was overruled 30 something years later. it has also been applied in a number of different circumstances. for example, it's been suggested that dred scott, which treated as property, was a product of substantive due process. justice hugo black has criticized the doctrine of substantive due process. as the arbor terry fiat of the man or men in power more the court declaring a law invalid because it shocked the consciousnesses of at least five members of the court. he went on to say this use of judicial review thus subverts the liberty of government by the people overturning laws enacted by legislators who are answerable to the electorate rather than a majority of the supreme court. finally he said for the purpose of my question he said the adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts, which i believe justice black -- and i am constrained to say will be bad for the courts and for the country. justice jackson, why is it substituted due process and analysis just another form of judicial policymaking, which you suggested policymaking is not in your lane -- and you strive to be apolitical, something i applaud, but why isn't substantive due process just another way for justices to hide their policymaking under the guise further constitution? >> welcome of the justices have interpreted the due process clause of the 14th amendment to include a substantive provision that the right to due process, they have interpreted that to mean not just procedural right relative to government action, but also the protection of certain personal rights related to intimacy and autonomy, and it includes things like the right to rear one's children. i believe the right to travel, the right to marriage, interracial marriage, the right to an abortion, the contraception. >> trading as chattel property? >> i don't quite remember the basis for the dred scott opinion, but i will trust you -- >> the fact is that you could use substantive due process to justify basically any result. whether it is conservative, liberal, libertarian, what ever you like to call. it's just a mode of analysis by the court to allow the court substitute its opinion for the elected representatives of the people. would you agree? >> the court has identified standards for the determination of rights under the 14th amendment substantive due process. >> who gives them the right to do that? if it's not mentioned in the constitution, where does the right of the court to substitute its views for that of the elected representatives of the people, where does that come from? >> the court has interpreted the 14th amendment to include this component, the unenumerated right does substantive due process and the court has said that the kinds of things to qualify are implicit in the concept of ordered liberty, excuse me, are deeply rooted in our nations history. those are standards that identify a narrow set of activities. >> well, the judge in the obergefell case, justice roberts and his dissent say the court invalidated marriage laws of more than half the states in order to transformation of a social institution that is form the basis for human society for millennium. that was the basis for the institution of marriage, the practice for millennium and the recognition that marriage was between a man and a woman. don't get me wrong, i'm not arguing the merits or lack of merits of same-sex marriage, i believe the states and the voters can choose what they will. that is their prerogative and i think that's legitimate. about when the court overrules the decisions made by the people, as they did in 32 of the 35 states that decided to recognize only traditional marriage between a man and a woman, that is an active judicial policymaking, is it not? >> senator, the supreme court has consider that to be an application of the substantive due process clause of the 14th amendment. >> and the constitution doesn't mention anything about the substance when it talks about due process? the 14th in the 15th amendment don't talk about substantive due process, talks about due process of law, correct? >> correct. >> oh one of the things that concerns me is here is an example of the court's finding a new fundamental right that is mentioned nowhere in the document of the constitution. it is the product of simply court made law that we are all supposed to salute smartly and follow, because nine people who are unelected, who have lifetime tenure, whose salary cannot be reduced while they serve in office, they decide -- five of them decide this is the way the world should be. what other unenumerated rights do you believe exist? how could we possibly anticipate what those might be? for example, the ninth amendment says the enumeration in the constitution of certain rights shall not be construed to deny or disparage other rights retained by the people, which suggests to me that there are other unidentified rights out there. and somehow someday some court is going to tell us that we've identified and unenumerated right and we are going to reject their right of the american people to determine what the policy out the b.s. regards to that right. because we come of the nine people sitting on the supreme court, have decided that it shall be the law of the land and no legislator can pass any law that conflicts with that. what other unenumerated rights are out there? or can you not say? >> senator, i cannot say. it is a hypothetical that i am not in a position to comment on. the rights that the supreme court has recognized as substantive due process rights are established in its case law. >> your honor, this is not a trick question. >> i understand. i'm just not in the position to speak -- >> can you understand why ordinary folks wonder who did these people think they are? and where does this authority come from? i think the authority comes from we the people. that's the source of legitimacy of government. but when the courts decide to identify and unenumerated right and a gate that conflicts with it can't you see what they might just feel like this is illegitimate? or a sort of policymaking that you have disavowed by saying that you don't want to make policy, you want to stay in your lane. can you understand the concern? >> absolutely, senator, i do understand. >> and -- because i believe the courts legitimacy legitimacy is very important, that's why i agree with justice breyer that notwithstanding what anyone else says, that should be an aspirational goal of the judges, because we are all concerned about the legitimacy of our institutions, and particularly at the institution of our judiciary. how would you as a judge when you are approaching your decisions -- how do you try to avoid being seen as a policymaker by embracing doctrines like substantive due process, which essentially gives judges part bond to do whatever they want. >> well, senator, i've not had that particular situation, but i do have a methodology that is designed to avoid my impartation of policy perspectives. judges are constrained in our system as part of the constitutional design. so in all cases i'm looking neutrally at the arguments of the party, presumably in a case like this there would be arguments made on both sides of the issue. >> your honor, if you will forgive me, one reason i think the supreme court is different is because in your previous capacity as a trial judge, of course you are bound by circuit court precedent. on the circuit court europe bound by the supreme court precedent. but as a member of the united states supreme court you will be bound by nothing. you will be unaccountable to the voters. so -- >> well respectfully, senator, yes technically -- >> so you're not going to be able to find the answer in some while book somewhere. you're going to be presented with a case in the argument is going to be made that this is an unenumerated fundamental right, and the voters, whatever they've sighed is irrelevant. because we, five members of the supreme court, are going to decide what the law of the land should be. anybody who disagrees with us will be labeled a bigot. or be accused of discrimination. even if their beliefs happen to flow from sincerely held religious conviction, like the definition of a marriage between a man and a woman. but you've already told me that you see what this is a concern. >> i see why it's a concern and i would just say that although the supreme court is not bound in the sense of having to apply prior precedent, there is star a decisive's in our system. there are now standards in the star a decisive's world, when the supreme court -- >> thank goodness the supreme court has been willing to revisit its precedent or we will still be living with plessy versus ferguson or dred scott, one of the things senator whitehouse and i agree on our he and others frequently ask nominees do you think brown versus board of education is set in law? leave it or not some nominees will not answer the question. it boggles the mind. i tend to think that nominees for both parties tend to be over couched and told you can't -- if you don't answer the question you have a better chance of being confirmed. but some of these things are obviously settled. and i wish we had a more candid conversation about the source of the power that unelected lifetime tenure judges have the basically rule america when they decide that something is an unenumerated fundamental right. in the one minute and 48 seconds that i have, let me ask you about a specific case. you remember u.s. versus brown? this was a guilty plea where you are asked to assess a punishment. at one point in the proceedings you said i'm going to state for the record, however, that this court has a long-standing policy disagreement with the criminal history guidelines with the respect of the application of the two-point enhancement. do you remember when you said that? >> i don't remember that particular statement. >> how is that policy disagreement different from other disagreements where you said you're not going to get out of your lane, you're not going to get into the policy lane? >> yes, senator, the supreme court in the sentencing realm has made the guidelines, the sentencing guidelines advisory. they used to be mandatory. judges used to have to calculate the guidelines for sentencing purposes and then essentially apply a sentence within the guideline range. in a case called united states versus booker the supreme court determined that the guidelines are advisory now so they do not have to be applied in every case, that you have to calculate them, but judges have more freedom to give effect to congress -- the various provisions in the statute related to the sentencing. in booker and in the guinness progeny, the supreme court made it clear that judges -- >> judge i only have a limited amount of time so let me just close on one other question. forgive me for interrupting you, but there is such a thing is that judicial filibuster too. >> sorry house trying to get to the point. >> let me just ask you -- i don't know you well but i've been impressed by our interaction and you've been gracious and charming. why in the world would you call secretary of defense rumsfeld and george w. bush war criminals in a legal filing? it seems so out of character for you? >> senator -- are you talking about the heaviest petitions that i filed? >> i'm talking about when you are representing a member of the taliban and the department of defense identified him as an intelligence officer for the taliban and you referred to the secretary of defense and the sitting president of the united states as war criminals. why would he do something like that? >> well, senator, i don't remember that particular reference. i was representing my clients and making arguments -- i would have to take a look at what you meant. i did not intend to disparage the president door the secretary of defense. >> while being a war criminal has huge ramifications. you can be subject to the jurisdiction of the international criminal court and hauled before that international tribunal and tried for war crimes. it's not a casual comment. i would suggest. thank you. >> senator whitehouse. >> thank you, chairman, judge jackson, good to be with you again. i know that a great many people are extremely proud that you are here today. i don't know that there are a great many who are more proud then ruth bailey appeared with your permission i will take a moment and offered to the record some of his comments about you and then if you give you a chance to reciprocate a word about him. yesterday in my opening remarks i mention "the boston globe" article in which judge sally us said about you, she has absolutely everything you would want in the supreme court justice, she has all of the tickets in terms of her intelligence, or education, her work experience, and her demonstrated temperament. i've seen a lot of the same qualities in her that i signed ruth bader ginsburg. humility, the ability to inspire others, some people have the capacity to inspire by the force of their reason. intellectually she is very smart, very well-informed, and she is very hardworking and focused. she gets the big picture. he didn't stop there, your honor, he went on to w pri, a local station in rhode island and set about you, she's worked hard. she deserves that. i literally don't think that the president could've made a better choice. i think she will make a terrific addition to the supreme court. she listens to what other people have to say, but makes up her own mind. she has a very scholarly approach to the law. she is very winning personality. she's kind of the people that she comes in contact with, and she certain humility that i find very attractive and people. unanimous consent of the statement from w pri be put into the record. >> without objection. >> she went on law 360 and said i sense that she, jo, has the same sort of desire to achieve consensus and end up her peck streak that has characterized some of justice breyer's work. i think that she will be quite balanced. i have not found her to be an ideologue. she understands the job of being a judge or being a justice. she wants very much to do it in the right way. and she will bend her considerable talents to that direction and will not get -- i think the con truly appreciate that and that this is a woman that understands the importance of the position and will give 100% of her talents every day to do that job in the right way in accordance with her oath of office. unanimous consent that that be put into the record without objection? and finally the providence journal, the home state newspaper, j.d. mulvaney in an interview with her, i think it is a terrific appointment. she is a very thoughtful person. and wonderfully well-qualified. i'm happy not only for her, but for the whole country. she listens well, she gets the whole picture, has great respect for the rule of law, i think she has the whole package. unanimous consent that that article be put into the record. any reflections? >> well that was very moving. thank you, senator, for reading his lovely remarks. it's exactly who i know judge sally and to be, always eloquent, always insightful. he is someone that you someone that i've admired my entire professional life. he taught me how to look at issues very carefully, how to write in a lot of ways because the way in which he is so fastidious with his opinions. he's been an extraordinary mentor. >> we are very proud of him. if you know he's on senior status and we were able to recommend the rosary thompson to succeed him. i think rhode islanders are equally proud and she is now gone on senior status and i hope will be considering shortly and equally impressive vibe nominee for her possession. on an unrelated subject, it relates to yesterday's activities, you can relax a moment, your honor, this will not be a question for you. a lot was said in this room about dark money by our republican friends to the point where one of the headlines about yesterday read republicans hammer dark money groups. i'll be the first to concede that there is dark money on both sides. i hope very much that we can get rid of it on both sides shortly. there is a difference i believe between dark money in trust rooting for someone and right wing dark money interests having a role in actually picking the last three supreme court justices. now how do we know that they had a role in doing that? we know because everyone involved said so. it was a pretty straightforward thing. president trump said were going to have great judges, conservative, all picked by the federalist society pair that's pretty plain. senator orrin hatch, former chairman, was said some of accused president trump of outsourcing his judicial selection process to the federalist society. i say damn right. the cofounder of the federalist society said that the administration is relying on the federalist society to come up with qualified nominees. then don began, who ran the operation for trump in the white house, set i've been a member of the federal society since law school, stella. so frankly it seems like that role has been sourced. so there's pretty clear and broad agreement that that selection process took place out of the public eye and it appears to have been informed heavily by dark money interests. they were not alone in saying this. here's laura ingraham on fox news concerned about abortion cases coming up before the court. we have six republican appointees on the court. after all of the money that's been raised, the federalist society, all of these big fat cat dinner, if this six justices cannot do the right thing at think it is time to circumscribe the jurisdiction of this court be 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 six republican appointees on the court who got there after all of the money that has been raised, the federalist society, and all these big fat cat dinners, and threatening that if they don't do what she considers to be the right thing, they will 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 federalist society from what's called donor trust, which has been described as the dark money atm of the right, a koch brothers operation. back in 2,000 duke out $5,000. no big deal. by 2019, when this operation was in full sprint, if got $7 million. we don't know who the real donor was but that's the job of donors trust, to deidentify the donor. to launder the identity of the donation so that you can't connect the dots any longer. but $7 million i think is quite a lot of money. unfortunately the federalist society was not alone. write down the hallway is something called the judicial crisis network. the offices on the same hallway of the federalist society downtown. although jcm website and tax filing mailing address -- and address shared by multiple countries. and write down that hallway at the judicial crisis network there is even more money pouring. here is how much poured into the last three nomination via the judicial crisis network. $21 million in time for the neil gorsuch nomination, $17 million to the brett kavanaugh nomination, $14 million to the amy coney barrett nomination. of course we don't know who the actual donor is, 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've had with the court. 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. anonymity hides all of that. they didn't stop with the trumpet nominee. they got up on the air, a dark money group using dark money to accuse joe biden's supreme court nominee, at that point a player to be named later, judge jackson had not been selected at that point, of being a tool, liberal activist, dark money. this is a screenshot of 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. it lies in the network of organizations, the prevailing way is with the parrot 5o1c3 and 501(c)(4) organization. the 5o1c3 gets to the tax seduction, the 5o1c forgets to participate in political activity. sure enough there's an 85 fund and a conquered from that twinned together as a 5o1c3 and a 501(c)(4) organization. they filed under virginia corporation law to operate under what they called fictitious names. that is the term of launder which they filed. fictitious names. there is to traditional crisis network, one of those fictitious names of the concord fund. there is 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 election the project action, another fictitious name. it's 5o1c3 to income of the honest elections project. they've even got new ones that are less active. afraid to learn action and frayed to learn. these are eight organizations that are essentially one organization. as lawyers we think from time to time about piercing the corporate veil, that's the corporate veil that you could pierce with the banana. it runs back and forth with three groups called crc advisors, crc strategies, and crc public relations that they can send money to these organizations as part of a planning element. he might say that crc advisors, crc strategies, and crc public relations as a trio is the command center and this is the operational torso of the creature. so i show this all because it shows considerable effort when somebody goes through that much trouble to create that many organizations to hide how much money they've spent to control the nomination process to the court. it's no small amount of money in the original "washington post" research they picked it up $250 million, further research said the money was actually $400 million. we have a recent report that we haven't backtracked at the number is even higher than that. i -- $400 million funding conservative activists behind-the-scenes campaign to remake the nation's courts. that operation is a very different thing than a group rooting for somebody. i want to make sure that difference is clear since our friends at the republican side made dark money such a big focus of their attention already. there is a drastic difference between rooting for somebody and controlling the turnstile that decides who will get on court they controls the fundings and actually want to get on the court, we are working now with the judiciary himself to try to clean up the mess of that same anonymous money appearing before the court grew phony front groups that file amicus briefs and little flotilla's. or if it's an important enough case, and entire armada of dark money funded front groups. so that bears not at all on this nominee, but because this is a very public form and we heard all about so-called hammering of dark money groups, i wanted to make sure it that it was clear to everyone how this game is played and what the differences. back to our business, judge jackson, you have served as a trial cut court judge. you have served as an appellate court judge paired with any luck you are on your way to serve as a supreme court justice. now one of the things that is very different about trial court judges and appellate court judges is what their role is with respect to fact-finding. it's my belief from my time spent as a practicing lawyer that the role of fact-finding belongs at the trial court level, that's where you can look the witnesses in the eye, that's where the evidence can be amassed, that's where the trial judge has the responsibility of sifting through it. if there is a jury that the jury is the ultimate fact finder. if you're in a nonjury trial the judge is the ultimate fact finder. then the case goes up on appeal and it comes up with a record, a record of fact in the case. in my view that record of fact comes up to the appellate court is actually a constraint on the power of the appellate court to go wandering off. the court is obliged to consider the appeal based on the factual record that was adduced in the district court. so you having lived in both those houses, the trial court house and the appellate court house, tell me a little bit about what the change meant to you as you went from being a trial judge to an appellate judge. >> thank you, senator. it is a really big difference. as you mentioned the trial court, you are on the ground level. parties have filed the case you'll have the complaint there will be a lot of a lot of litigation about the development of the fact of the case. 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 is even a trial and that too is part of the character of the case because they will be charged with the responsibility of determining what happened, who is guilty if it's a criminal case or who is liable if it's a civil case. sometimes there is even questions presented to the jury that they have to determine the facts. at the appellate level there is already a record on the court is looking primarily at the law, the legal principles that guided the decision below based on the factual record. importantly at the appellate level there are standards of review that the court of appeals applies when it decides how to reveal whether or not to reverse or affirm the judgment of the lower court. at night been very mindful, especially as a trial judge, of the standards of review. >> what i was prepping lawyers for oral argument before appellate courts i would often say please don't quarrel with the facts in this you have a knocked down case. if you want to get the appellate court to relitigate the facts you're up against the harshest standard of review available. clear error is no small thing. outside of the narrow finding it somehow the district court got it wrong, filtered through that clear error standard are there other circumstances in which it is proper for for appellate courts to do their own independent fact-finding outside of the record of the case that they are reviewing? >> i'm not aware of any. 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 clear error. at that point the record is usually set and established by the time that you get to the court of appeals. >> and i think it's actually one of the constraints on the judiciary that they don't get to go into free range fact-finding. they have to be tethered to the record of the actual case before them that's related to the case or controversy requirement. >> that is correct, senator. >> 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 civil juries from the colonies it was in the declaration of independence on what the king had done wrong that offended the colonists and cause a 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 and the trial court, is getting to be a rarer and rarer creature. in fact there are trial judges who have written about how do we keep the civil jury alive? i'd like to hear your thoughts about whether there is more to the civil jury than just a fact-finding appendage of the trial judge. whether it was seen by the founders, whether it belongs in our constitutional structure as a part of the responsible self-governance that was established by our constitution. >> yes, senator, it is part of our ordered liberty. it is a mechanism by which citizens can participate in governance. they can recall be called upon by the court to an judgment of other people in the community. it was something that was a part of the democratic vision of the founders from the very beginning. >> blackstone was one of the legal experts, one of the early lawyers that the united states relied on. there were letters that had nothing but black stone commentaries on their shelves. 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 what he called the more powerful and well being. there is a long experience of government there was controlling but the jury is fundamentally different because they don't stick around, they are there for one case and what case only so then you can't fix them so they decide your way over time. it's in that one case that you try to fix them you have likely committed a criminal offense. tampering. if anyone tampered with a jury of yours how would you respond? >> very seriously. >> the jury lives in a protected environment from a lot of the political power in danger of corruption that the elected branches often suffer. do you have thoughts about the importance of the civil jury in that regard is the bastion where people can go where they will get a square deal from regular citizens and just stand toe-to-toe with the lawyers however big or mighty an opponent they might have with almost no danger? let's put it that way, little bit of danger. the fix being put in. >> 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 to have any connection to anyone? >> it to you screen them for conflicts of interest? >> heavily. that's what we call -- >> we don't do that with people who come to congress. >> -- >> they come with their conflicts of interest right on their lapels, sometimes hidden in their back pockets. but jerry's not so, correct? >> in fact i would be a reason to expel if someone from a jury. we even ask if any of you as judges -- do any of you know me? if you do you'll have to let me know and be removed. because the idea, as you have indicated, is to get people from the community who have no connection to the case and can hear the evidence that is presented in the courtroom and by the lawyers and make a decision that is unconnected to any sort of personal interest that might have. >> protecting the jury against the dangers of bias or corruption, giving the parties to the clean and fair shot. >> yes, senator. >> so with any luck you'll be on the supreme court for a long -- and i hope you'll 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 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 someone to complain about it and strike it out of the contract, it's a take it or leave it adhesion proposition. they build into that that you've given up your right to a jury. your seventh amendment right to a civil jury is not actually in the bill of rights. i cannot think of another right of the court pays less attention to, or throws more readily under the bus if you read the mandatory arbitration cases there is barely a mention of the seventh amendment. it seems to me that it flies in the face of the purpose of the jury to allow the citizens of the greatest power and wealth for today's corporate citizens, to actually be able to take on the ability on the road through contracts that the customer has no chance to negotiate, the employee has no chance to negotiate, to actually take away that are right that is at the heart of our founding, without a squeak of objection or notice by the court. i think it has created a dramatic shift in power towards big corporations. 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 in history and value of the civil jury and its importance not just as your fact-finding adjunct, but as an important part of our constitutional structure as americans. i wish you well, i will see you again tomorrow, and thanks much for your patience with all of us here today. >> thank you, senator whitehouse bellamy say a positive word to follow up this committee and the last few week, this passed legislation assignment signed into law by president biden which in cases of sexual harassment provide that individuals who are complaining of the option of a jury trial, despite efforts to steer them into mandatory arbitration as the decision of the complainant. i think that is a step in the right direction and will be passed out of this committee on a bipartisan basis. i like to ask everyone to consider returning promptly at 1:30 for the much anticipated senator lee. >> we are live on capitol hill with our senators on the judiciary committee made their probe for lunch on whether judge ketanji brown jackson found her second day of her confirmation hearing. this is "outnumbered." hello, everyone, i'm kayleigh mcenany along with my hosts, emily compagno. also joining us or julie banderas, jonathan turley. we just heard from senator horn, senator whitehouse been the most interesting effective portion i think i heard was from senator cornyn when he was talking about substantive due process buried roe v. wade was founded on any unenumerated right to privacy that was grounded in the 14th amendment in the any sticky question dora because we haven't gotten a lot about her judicial policy and key hot button issues. but he said or what other unenumerated rights are out there? she said she could not say. she was not in a position to say. then he said you understand why do you have any idea why an ordinary people have questions about where this power come from. he wishes they could have a more candid conversation on unenumerated rights. it's very important. >> yeah. and also keep in mind that president biden said that he intended to appoint someone who would have a robust view of unenumerated rights, a view that is more closely aligned with 11 constitutional model of interpretation. but judge jackson clearly came off the prep sessions with these murder boards with what is the standard approach of other nominees, and that is to keep her questions as narrow in this short as possible and she didn't deviate from that. what is most interesting is that instead -- whenever she was asked about her judicial philosophy she would answer with her methodology. it's like asking someone what type of clothing style you prefer and the person responding, well first i put on my socks, then i put on my pants, then i put on my shirts, then my jacket, then i'm fully clothed. it doesn't really tell you what style they like, it tells you how they put on clothes. that's been sort of the theme. she keeps coming back to saying how she approaches this methodology of judging. they had something that we all anticipated, but it's some particularly interesting with regard to judge jackson because she declined to answer questions about her judicial philosophy when she came up as an appellate nominee not long ago. >> yes she did. we know these nominees gave very tailored answers. indeed you are coached in that fashion. i want to pull up something from senator lindsey graham earlier today. he pointed out the contrast we are getting with justice barrett and now it's judge jackson. that's luck. >> well how would you feel if a senator appears says that dogma, your faith, live loudly within you and that's a concern. how would you feel if someone appear on our side so i know you attend church too much for me, or your faith is a bit different to me, that would suggest that it would affect your decisions. would you find that offensive? >> senator -- >> i would if i were you. i found it offensive when they said it about judge barrett. the reason i ask these questions as i have no doubt that your faith is important to you and i have zero doubt that you can adjudicate people's cases fairly if you are an atheist. if i had made out i would say soap you're the only reason i mention it, judge, you are reluctant to talk about it because it's uncomfortable. just imagine what would happen if people on late-night television called ua effing not speaking in tongues because you practice the catholic faith in a way they can relate to or found uncomfortable. >> is not wrong, kayleigh, and that was the tip of the iceberg of him calling out the media on the people's hypocrisy on covering these nominees. remember at a time when we had msnbc's nicole wallace who called jackson an overwhelmingly qualified pat, yet she said amico might barrett was a real white right wing lunatic. sandra holly dared questions -- but remember when elliot mitchell called it a death threat, that he had no problem and he attacked amy coney barrett's record on health care. abcs "good morning america" produced an entire piece on what our lifelong buds have to say about the future just as friend, but they ridiculed barrett's faith that likened it to the handmaid's tale. cnn personalities have called these current hearings a great day for history to be made. but barrett was the full trump program in their minds. cbs news praising jackson stellar academic and legal credentials and her compelling life story, but they literally had the network had to warn about barrett's strong antiabortion rights abuse and how confirmation what "move the court to the right for generations." hysteria, hyperbole, and other disrespect for the current conservative nominee beer that's the opposite of what we are seeing for this nominee. >> both of these women are women of faith who clearly love their family. i remember amy coney barrett's family coming out with her. i remember one commentator talking about her as a white colonizer and accused her of having her kids for props. i was so sickening. >> she was deprived of a civil hearing like the one we are watching a television. they've not only brought up her religion, they brought up her personal life. they dragged her through the mud. this the way confirmation hearing is supposed to go. not only that, but they also dragged her doubt -- and i'm talking about the media, so she was deprived of these things thanks to media experts, but the media deprived -- they painted her out to be someone who is harming sick people appear that she was going to not uphold the affordable care act. they were showing images, if you remember, on mainstream television of sick people saying that if she's confirmed she's in fact going to prevent you from receiving health care. she in fact did end up holding aca. it was predicted that she wed, but it was a narrative in which she was described as someone who is going to present tell mike prevent the sick from getting health care pay that was one example of all of the sick way she was portrayed in the limelight by the media. >> kathy i was actually with you, we were working at the presidential national committee when brett kavanaugh incident happened. >> an absolute disgrace to the process bit i give republicans a lot of credit to the way they are handling this but voters deserve full transparency in the folder process of this confirmation hearing. i hope they will get that as does unfold sandra right onto the senators of reminding the american people and their friends on the other side of the aisle how they should really work. >> jonathan we haven't about 30 seconds. to make the point that these hearings should be respectful but not inviolate. >> that's right. i mean there is room for some

Related Keywords

Boston , Massachusetts , United States , Whitehouse , District Of Columbia , Togo , Washington , America , Amy Coney Barrett , Nicole Wallace , Ruth Bailey , Brett Kavanaugh , Roe V Wade , Lindsey Graham , George W Bush , Laura Ingraham , Jonathan Turley , Sandra Holly , Bader Ginsburg , Statesversus Booker , Marriage , Faiths , Definition , Islam , Judaism , Christianity , Supreme Court , Way , Pronouncement , Take It Or Leave , Conflict , Edict , State Marriage Laws , Who , Invalidity , Senator , Courts , Issues , Belief , Woman , A Man Anda Woman , Obergefell Case , People , Cases , Isn T , Something , Law Of The Land , Follow Up Delma Constitution , Conflicts , Right , Estate , Beliefs , Doctrine , Doesn T , Area , Matter , Unenumerated Fundamental Right , Government , Faith , Son , Dirt , Limitations , Regulation , Freedom , Amendment , Explicitly , Circuit Court , Concern , Role , Identifying , Enumerated Right , Words , Anything , Circumstance , Sorts , Orthodoxy , Position , Views , Ober , Justice Alito , Thoughts , Public , Homes , Recesses , Ice , Substantive Due Process , Government Employers , Bigots , Schools , Protection , Yes , Concerns , Memory , Has , 14th Amendment , Confluence , Fifth Amendment , 14 , Policymaking , Example , Ways , Lochner , Case , Deal , Senator Lee About In Particular , Bakers , New York , Dred Scott , Contract , Circumstances , Number , 30 , Justice Black , Justice , Property , Product , Power , Oman , Men , Arbor Terry Fiat , Liberty , Consciousnesses , Members , Judicial Review , Use , Five , Question , Legislators , Purpose , Laws , Electorate , Majority , Shift , Adoption , Standard , Loose , Flexible , Holding Laws Unconstitutional , Country , Ketanji Brown Jackson , Due Process , Policy Lane , Analysis , Form , The Last Three Supreme Court , Isnt Substantive Due Process , Guise , Provision , Due Process Clause , Action , Relative , Things , One , Children , Autonomy , Intimacy , Travel , Abortion , Interracial Marriage , Contraception , Trading , Fact , Conservative , Basis , Opinion , Result , Mode , Liberal , Libertarian , Substitute , Rights , Representatives , Standards , Determination , 14th Amendment Substantive Due Process , Unenumerated , Component , Concept , Kinds , Nations , Judge , Set , Activities , Justice Roberts , Institution , Human Society , Marriage Laws , Transformation , Order , Dissent , Recognition , Practice , Dont Get Me Wrong , Voters , Merits , Same Sex Marriage , Prerogative , Black , Decisions , 35 , 32 , Application , Substantive Due Process Clause , 15th Amendment Don T , Constitution Doesn T , Substance , 15 , Talks , Due Process Of Law , Courts Findinga New , Correct , Document , Nowhere , Nine , World , Office , Salary , Unelected , Lifetime Tenure , Ninth Amendment , Renumeration , Constitution , Koch Brothers Operation , Policy , Regards , Jobs , Legislator , Case Law , Honor , Trick Question , Authority , Folks , Legitimacy , We The People , Source , Gate , Sort , Anyone , Justice Breyer , Absolutely , Judges , Institutions , Goal , Judiciary , Doctrines , Policymaker , Methodology , Bond , Situation , Part , System , Policy Perspectives , Impartation , Sides , Arguments , Party , Design , Trial Judge , Reason , Capacity , Issue , Member , Course , Precedent , Nothing , Circuit Court Europe , Some , Somewhere , Answer , Book , Whatever , Argument , Anybody , Conviction , Bigot , Discrimination , Sense , , Star , The Stara Decisives World , Thank Goodness The Supreme Court , Plessy Versus Ferguson , Nominees , Others , Brown Versus Board Of Education , Mind , Parties , Chance , Lifetime Tenure Judges , Conversation , 48 , Point , Proceedings , Punishment , Plea , Versus Brown , Record , Respect , Policy Disagreement , Guidelines , Enhancement , Two , Statement , Disagreements , Sentencing Realm , Sentencing Guidelines Advisory , United States Versus Booker The Supreme Court , Sentence , Sentencing Purposes , Guideline Range , Advisory , Congress , Effect , Statute , Sentencing , Provisions , Booker , Guinness Progeny , Thing , Amount , Filibuster , House , Defense , Secretary , Interaction , Rumsfeld , Georgew Bush War Criminals , Petitions , Character , Filing , War Criminals , Intelligence Officer , President Of The United States , Taliban , Department Of Defense , Making Arguments , Look , Clients , Reference , President , Jurisdiction , Subject , International Criminal Court , Ramifications , War Criminal , Door , Chairman , Comment , War Crimes , Good , Tribunal , Many , Word , Comments , Permission , Opening , Article , Supreme Court Justice , Everything , Boston Globe , Lot , Education , Humility , Ability , Intelligence , Work Experience , Terms , Temperament , Tickets , Qualities , Ruth Bader Ginsburg , Force , The Big Picture , Station , Pri , Rhode Island , Approach , Choice , Addition , Consent , Kind , Personality , Contact , Objection , Law 360 , Consensus , Desire , She , Mojo , 360 , Job , Streak , Work , Ideologue , Direction , Talents , Importance , The Con , Accordance , Oath Of Office , Providence Journal , 100 , Person , Interview , Mulvaney , Appointment , The Home State Newspaper , Jd , Picture , Package , Rule Of Law , Remarks , Reading , Reflections , Someone , Life , Opinions , Mentor , Senior Status , Islanders , Rosary Thompson , Vibe Nominee , Possession , Dark Money , Room , Friends , Headlines , Money , Republicans , Groups , First , Difference , Dark Money Interests , Trust , Wing , Everyone , Trump , Three , Federalist Society , Orrin Hatch , Pair , Selection Process , Administration , Cofounder , Accused , Operation , Agreement , Society , Law School , Place , White House , Stella , The Public Eye , Fox News , Wall , Appointees , Justices , Dinner , Fat Cat , Six , Scenes , Republican , Dinners , Big Fat Cat , Donor Trust , Enterprise , Big Talk , Back , Atm , Duke , 5000 , 2000 , 000 , Donor , Identity , Donation , Donors Trust , Deidentify , Million , 2019 , 7 Million , Hallway , Judicial Crisis Network , Dots , Offices , Tax Filing , Countries , Website , Mailing Address , Federalist Society Downtown , Cjcm , Nomination , Crisis , Brett Kavanaugh Nomination , Neil Gorsuch Nomination , 21 Million , 14 Million , 1 Million , 4 Million , 17 Million , Business , Makeup , Trumpet Nominee , On The Air , Anonymity , Dark Money Group , Joe Biden , Nominee , Pointa Player To Be Named Later , Screenshot , Tool , Advertisement , Liberal Activist , Organizations , Network , Understanding , Organization , Fund , Activity , Tax Seduction , Parrot 5o1c3 , 5o1c , 5 , 4 , 501 , 85 , Names , Term , Virginia Corporation Law , Unconquered , Launder , Twinned , Project , Name , Crisis Network , Concord Fund , Fictitious , Election , Elections , Voter Suppression , Income , Lawyers , Veil , Ones , Eight , Crc , Crc Strategies , Public Relations , Banana , Crc Advisors , Advisors , Command Center , Planning Element , Trio , Somebody , Creature , Torso , Trouble , Effort , Original , Washington Post , Research , Report , Jonathan We Haven T , 400 Million , 250 Million , 00 Million , 50 Million , Activists , Nation , Campaign , Group , Attention , Republican Side Made Dark Money , Focus , Turnstile , Fundings , File , Mess , Amicus Briefs , Armada , Bears , Little Flotilla S , It , Differences , Game , Hammering Of Dark Money Groups , Trial Cut Court Judge , Appellate Court Judge , Trial Court Judges , Luck , Appellate Court Judges , Fact Finding , Practicing Lawyer , Jury , Evidence , Responsibility , Eye , Witnesses , Sifting , Trial Court Level , Fact Finder , Trial , Appeal , Appellate Court , View , Constraint , District Court , Houses , Trial Court House , Appellate Judge , Change , Appellate Court House , Trial Court , Ground Level , Development , Complaint , Litigation , Discovery , Facts , Level , Decision , Principles , Appeals , Review , Judgment , Lower Court , Oral Argument , Standards Of Review , Quarrel , Harshest Standard Of Review , Finding , Terror , Fact Finding Outside , Experience , Trial Level , Constraints , Controversy , Requirement , Injuries , Americans , Imports , Crown , Colony Set Up Civil Juries , England , Colonists , Colonies , Revolution , King , Declaration Of Independence , Founding , Creation , Documents , Trial Judges , Rarer , Fact Finding Appendage , Founders , Structure , Self Governance , Citizens , Court , Governance , Mechanism , Community , Vision , Experts , Blackstone , Letters , Shelves , Clout , Black Stone , Interests , Refuge , Offense , Tampering , Danger , Corruption , Branches , Environment , Regard , Bastion , Toe , Opponent , Jury System , Manner , The Fix Being Put , Connection , Pool , Interest , Lapels , Back Pockets , Jerry , Idea , Courtroom , Dangers , Bias , Shot , Long , Corporations , Contracts , Fine Print , Phone Tree , Dont Read , Seventh Amendment , Adhesion Proposition , Another , Bill , Bus , Arbitration , Mention , Face , Wealth , Employee , Customer , Road , Heart , Squeak , Notice , Questions , History , Employees , Customers , Value , Clarity , Patience , Thanks , Fact Finding Adjunct , All Of Us , Committee , Legislation Assignment Signed Into Law By , Individuals , Jury Trial , Complainant , Efforts , Option , Sexual Harassment , Lee , Step , 1 , Senators , Probe , Judiciary Committee , Lunch , Capitol Hill , Confirmation Hearing , Julie Banderas , Hosts , Senator Horn , Emily Compagno , Hello , Kayleigh Mcenany , Senator Cornyn , Roev Wade , Portion , Privacy , We Haven T , Hot Button , Model , 11 , Interpretation , Murder Boards , Prep Sessions , Philosophy , Interesting , Type , Style , Clothing , It Doesn T , Jacket , Clothes , Pants , Socks , Shirts , Theme , Judging , Answers , Contrast , Jackson , Fashion , Catholic Faith , Church , Bit , Side , Dogma , Offensive , Doubt , Soap , Atheist , Zero , Tongues , Late Night Television , Ua Effing , Media , Hypocrisy , Iceberg , Tip , Pat , Damico , Msnbc , Health Care , Good Morning America , Buds , Piece , Friend , Problem , Death Threat , Hearings , Cbs News , Academic , Personalities , Minds , Program , Handmaids Tale , Cnn , Confirmation , Credentials , Generations , Life Story , Commentator , Both , Beer , Family , Opposite , Women , Hyperbole , Hysteria , Disrespect , Women Of Faith , Television , Hearing , Props , Colonizer , Kids , Religion , Media Experts , Mud , Images , Affordable Care Act , Sick , Health Care Pay , Narrative , End Up Holding Aca , Incident , Disgrace , Limelight , Folder Process , Transparency , Credit , Aisle , Friends On The Other Side ,