0 whether or not they still present a threat to the united states or the world at large and i think it's six months, maybe a year. but that goes on at least on an annual basis, and if there is a determination that this person still represents a threat to the united states, they are continued to be confined. that's the way the system works. are you okay with that? >> as a policy matter, senator, i'm not speaking to my views. my understanding is the periodic review system is an executive branch determination of whether or not they are going to continue to hold people. >> does that make sense to you as a way to deal with these detainees? >> senator, i'm not in a position to speak to the policy or discretion of the executive branch regarding how they are going to handle detainees. >> the reason i mention is because in one of the briefs you argued the executive branch doesn't have that option. if you had had your way, the executive branch could not do periodic reviews about the danger the detainee presents to the united states and they would have to make a decision of trying them or releasing them. is that not accurate? >> respectfully, senator, it was not my argument. i was filing an amicus brief on behalf of clients, including the rutherford institute, the cato institute, and the constitution project who -- >> when you sign onto a brief does it not become your argument? >> it does not, senator. if you are an attorney and you are representing a client in amicus practice. >> is that your position when you were in private practice? you sign onto this brief making this argument that you say is not your position. i mean, why would you do that if it's not your position? why would you take a client that has a position like that? this a voluntary. nobody is making you do this. >> senator, i would refer you to the same sort of statements that chief justice roberts made when he came before the committee, which is that lawyers represent clients. >> i get that. i'm not holding the clients' views against you like the people you are representing at gitmo. they deserve representation. but this is an amicus brief where you and other people try to persuade the court to change policy. the policy i described is a periodic review. if the court had taken the position argued in the brief that you signed upon, would have to release these people or try them and some of them the evidence we can't disclose because it is classified you are putting america in an untenable position. it is not the way you fight a war. if you tried to do in the world war ii they are run you out of town. there is no magic passage of time you have to let them go if they are a threat. 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? >> 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. >> i'm sure everybody at gitmo wants out. i got that. this is an amicus brief and i just don't understand what you are saying quite frankly. i'm not holding it against you because you represented a legal position i disagree with. i mean, that happens all the time. i'm just trying to understand what made you join this cause? and you say somebody hired you, but did you feel okay in adopting that cause? when you signed onto the brief were you not advocating that position to the court? >> senator, as a judge now, in order to determine the lawfulness or unlawfulness of any particular issue, i need to receive briefs and information making positions on all sides. >> i got what a judge is all about. listen, i'm not asking you to decide the case in front of me right here but to explain a position you took as a lawyer regarding the law of war. and i am beyond confused. i know what you said in your brief. whether i agree with it or not is not the point. i just want you to understand that it is important for all of us no know where you were coming from. if that brief had been accepted by the court, it would be impossible for us to fight this war because there are some people going to die if jail in gitmo and never go to trial for a lot of good reasons. the evidence against them is so sensitive we can't disclose it to the public. we're not charging them with a crime. what we're doing is saying that you engaged in hostile activities against the united states, that you are an enemy combatant under our law and never be released as long as you are a danger until the war is over or you are no longer a danger. that's the difference between fighting a crime and a war. did you ever accuse in one of your habeas petitions the government of acting as war criminals for holding of the detainees by our government, that we were acting as war criminals? >> senator, i don't remember that accusation but i will say that -- >> do you believe that's true, that america was acting as war criminals in holding these detainees? >> 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. a habeas petition is like a complaint that lawyers make allegations. >> 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 it's too far. i don't know why you chose those words. that's just too far but we are where we are. so let's talk about the nomination process. have you ever had any interactions with a group called demand justice? >> no. >> have you ever had any interaction with a group called american prospect? >> no. >> do you know anything about arbilla, is that a right term? every heard of a group by that name? >> i have heard of a group that i think is arabella or something like that. >> do you know anything about them? have you had any contact with them? >> no. >> okay. your nomination says people from the left were cheering you on. >> a lot of people were cheering me on, senator. >> that's true. did you know there are a lot of people from the left trying to destroy michelle childs? did you notice that? >> senator, a lot of people were supporting various people for this nomination. >> so you are saying you didn't know there was concerted effort to disqualify judge childs from south carolina because she was an unreliable republican in disguise? >> senator, i was -- i am a sitting judge. i was focused on my cases. no, i didn't know that. >> would it bother you if that happened? >> senator, it is troublesome that people are or were doing things related to the nomination. >> people have a right to speak out and pick the person of their choice but all i can say is that if you missed the fact that there was an organized effort -- here president biden has only a certain amount of political capital for keeping his party united. if he needlessly angers progressives on the scotus pick it could create problems for him. revolving door project. let's see. i just got so many quotes it's difficult to imagine someone with a record like judge childs winning votes from criminal justice advocates like senator cory booker and even dick durbin. childs's experience is nothing like the diversity experience the biden administration has championed. let's see. picking her, childs, would demore allize the base, side with corporate america. the fact that lindsey graham is vouching for her should give the white house pause. bernie sanders pac director. you didn't know that all these people were declaring war on judge childs? >> senator, i did not. >> i'm not saying you did. you said you didn't know, i will take you at your word. but i am saying what is your judicial philosophy? >> i have a methodology that i use in my cases in order to insure that i am ruling impartially and that -- >> your judicial philosophy is to rule impartially. >> to rule impartially, no, and to rule consistent with the limitations on my authority as a judge. and so my methodology actually helps me to do that in every case. >> you wouldn't say that you are an activist judge. >> i would not say that. >> okay. so we'll have a 20 minutes more later on. here is what i would say. that every group that wants to pack the court that believes this court is a bunch of right wing nuts who are going to destroy america, that consider the constitution trash, all wanted you picked. and this is all i can say is the fact that so many of these left wing radical groups that would destroy the law as we know it declared war on michelle childs and supported you is problematic for me. thank you. >> thank you, senator graham. let me mention a few points here. congressman jim clyburn was a strong supporter of michelle childs and now i believe he has publicly supporting your nomination and michelle childs has been nominated by president biden to be a circuit judge and she will be considered by this committee as quickly as possible. on the issue of guantanamo, 39 detainees remaining. it's $450 million per year. each of these detainees is being held at the expense of 12 or 13 million dollars per year. if they would be incarcerated in florence, colorado, the federal prison the amount would be dramatically less. since 9/11 -- since 2009 with the beginning of the obama administration the repeat rate of guantanamo detainees is 5%. >> according to the director of national intelligence it's 31%. somebody is wrong here. if you want to talk about what i've said i'll respond to what you said. if we close gitmo and move them to colorado do you support indefinite detention under the world war for these detainees? >> i'm giving the facts and make sure it's clear that 31% you referred to goes back to the year 2003. >> what does it matter what it goes back to? we had them, they got loose and they started killing people. if you are one of the people killed in 2005 does it matter to you when we released them? >> i suggest the president of your own party released them. >> i'm saying they failed miserably and advocates to change the system like she was advocating would destroy our ability to protect this country. we're at war, not fighting a crime. this is not some passage of time event. as long as they are dangerous. i hope they all die in jail if they go back to kill americans. it won't matter if 39 die in prison a better outcome from letting them go. keep them in jail because of the fight. afghan government is made up of former detainees at gitmo. this whole thing by the left about this war ain't working. >> let me also note that larry thompson who served as deputy attorney general under president george w. bush or incur special counsel, who served as assistant attorney general for legal policy in the george w. bush administration, john bellinger and former d.c. circuit judge ken starr will also prominent conservative lawyers signing letters defending attorneys who represented guantanamo bay detainees. i don't believe we should associate that activity as being inconsistent with our constitutional values. we're going to represent -- we're going to at this point recognize senator feinstein and then take a break after she completed her questioning. >> thank you very much. mr. chairman. i just would like to compliment the witness. i think you are doing very well. and as you can see this is a bit of a tough place. so judge, one of the issues that i often discuss with nominees, particularly to the supreme court, is the issue of abortion. i have asked the three most recent supreme court nominees about this issues and i would like to discuss it with you today. in 2017 i asked justice gorsuch about this during his confirmation hearing. i asked him to expand on a comment he had made about his belief that precedent is important because it adds stability to the law. in response, justice gorsuch reiterated his belief that precedent is important because, and i quote, once a case is settled, that adds to the -- he also stated that roe has been reaffirmed many times. i also spoke with judge kavanaugh about this issue in 2018. i asked him whether he believes that roe was settled law and if so, whether it was correctly settled. justice kavanaugh said that roe, quote, is settled as a precedent of the supreme court, end quote. he said that roe, quote, has been reaffirmed many times over the past 45 years and most prominently, most importantly, reaffirmed in planned parent hood versus casey, end quote. and he describes casey as having the value of a precedent on precedent, end quote. i most recently spoke about this issue with justice barrett in 2020. i asked her whether she agreed with justice scalia's view that roe was wrongly decided. she committed to, quote, obey all the rules of -- she said she had no eye gend to try to overrule casey, end quote. so here is the question. do you agree with justice kavanaugh that roe v. wade is settled as a precedent and will you like justice barrett commit to obey all the rules of stare decisis in issues related to abortion, end quote. >> thank you, senator. i do agree with both justice kavanaugh and justice barrett on this issue. roe and casey are the settled law of the supreme court concerning the right to terminate a woman's pregnancy. they have established a framework that the court has reaffirmed and in order to revisit, as justice barrett said, the supreme court looks at various factors because stare decisis is a very important principle. it provides and establishes predictability, stability and reserves as a restraint in the exercise of judicial authority because the court looks at whether or not precedents are relied upon, whether they are workable, in addition to whether or not they are wrong. and other factors as well. so i agree with both of the statements that you've read. >> let me add one to that and then we'll move on. i'm particularly interested in the case of roe v. wade. roe was decided by nearly 50 years ago and reaffirmed over a dozen times since then. so my question is this. does roe v. wade have the status of being a case that is a super precedent? and what other supreme court cases do you believe have that status? >> well, senator, all supreme court cases are precedent, binding and they are principles and their rulings have to be followed. roe and casey, as you say, have been reaffirmed by the court and have been relied upon. reliance is one of the factors that the court considers when it seeks to revisit or when it is asked to revisit a precedent. and in all cases, those precedents of the supreme court would have to be reviewed pursuant to those factors because stare decisis is very important. if you are confirmed you would be one of only two justices who has also served on a federal district court. the other being justice sotomayor. in your eight years as a trial judge on the d.c. district court you wrote nearly 600 opinions and presided over nine jury trials and three bench trials. as you know from your service on the district court it is important for appeals courts and episcopal tli supreme court, to be clear in their decisions. the clarity is necessary as you well know, for trial judges to effectively do their job and properly apply legal precedents that are fair and consistent. as a district judge, you were responsible for applying precedent from the supreme court and the courts of appeal to your case, and now as a judge in the d.c. circuit, you are drafting those precedents. your experience as a trial judge is one of your most significant assets, and i just want to add a personal comment. this is a tough place and you are handling it very well. and i appreciate your directness and think that's important. here is a question. i have two related questions. how did you make sure that you were properly applying the relevant precedents as a district court judge? and if you are confirmed to the supreme court, what would you do to make sure your opinions are clear so they could be applied correctly by district courts? >> thank you, senator. as you noted, in my time as a district court judge, i had the opportunity to apply precedents that were handed down by the court of appeals and the supreme court. the district court is bound by the law as stated by those other tribunals and i was very focused on making sure that i found the right precedents and applied them faithfully. as i mentioned with respect to my methodology, part of the process is receiving information from the parties in a case, and the parties write briefs and in most cases they identify the precedents that they at least believe are applicable and then the court does its own legal research as well to determine whether all of the relevant cases have been identified. and then you look to see whether there is anything that directly controls, and if it does that's your answer. in many cases, the precedent might be a little bit different in certain ways and you are assessing the parties' arguments and determining within your proper role whether what the appellate courts have said provides the law of decision for the case. but what is important, as you've mentioned, is the clarity by which courts of appeals and the supreme court need to operate so that the lower courts can actually follow the precedent. i'm very conscious of that, as you said, as someone who has had to follow precedent and i would think carefully about that and use my communication skills to insure that the precedents are clear so that lower courts can follow them. >> thank you. i would like to discuss quickly a letter this committee received in support of your nomination from the international association of chiefs of police. and as you know, this is the world's largest professional association of law enforcement leaders. and the letter states judge jackson has several family members in law enforcement. and we believe this has given her a deep understanding of and an appreciation for the challenges and complexities confronting the policing profession. during her time as a judge, she has displayed her dedication to insuring that our communities are safe and that the interests of justice are served. and so mr. chairman i would like to put this letter in the record, if i may. >> without objection. >> thank you. i understand that your brother served with the baltimore police department for several years. so here is the question. how, if at all, is having several family members in law enforcement impacted your understanding of the law or your approach to your judicial service? >> thank you, senator. some of my earliest memories, in addition to my father at the kitchen table with his law books, were of my uncles. two of my uncles were career law enforcement and one was a detective, unformed detective. one was a city of miami police department officer, patrol officer for a long time before he became a chief. and i remember very well we would go to my grandmother's house on sundays and she would make a big dinner for our family and my uncles would sometimes come off of their shifts. so i see in my mind their uniforms coming in and they would always be carrying their weapons and take them off and put them way up high on the china cabinet so the kids couldn't get to them. i remember feeling very proud of them and the service that they provided. and i think it's probably what led my brother, who is 10 years younger than i am to decide after he graduated from college he would want to also be in law enforcement. so i am very familiar with law enforcement, the important service that they provide. the perils of being out on the street protecting and serving and having a family that cares about you and worries about your safety. and so this is not something that is unfamiliar and i am very gratified by the support of the group that you mentioned and other law enforcement groups as i go through this process. >> i joined this committee in january of 1993. and a few months later we considered the nomination of ruth bader ginsberg to the supreme court. her confirmation made her only the second woman to ever serve on the supreme court after justice sandra day o'connor. so we have come a very long way since then. though still not far enough. women now make up about 35% of active judges on the federal district bench and 37% of active judges on the federal appeals court. judge jackson, if confirmed you would become the sixth woman to ever serve on the supreme court. you would join justices sotomayor, kagan and barrett on the bench. this would be the nearest we have ever come to gender equity on the supreme court. there would be four women on a court with nine justices. so i have my own thoughts about why gender balance is important on our nation's courts. but i would really like you to tell us all what are your thoughts on what it means for our country to have women serve in meaningful members -- meaningful numbers on the federal bench? and in particular, what it would mean to have four women serving on the supreme court for the first time in history? >> thank you, senator. i think it's extremely meaningful. one of the things that having diverse members of the court does is it provides for the opportunity for role models. since i was nominated to this position, i have received so many notes and letters and photos from little girls around the country who tell me that they are so excited for this opportunity and that they have thought about the law in new ways because i am a woman, because i'm a black woman. all of those things people have said have been really meaningful to them. and we want, i think, as a country for everyone to believe that they can do things like sit on the supreme court and so having meaningful numbers of women and people of color i think matters. i also think that it supports public confidence in the judiciary when different people, because we have such a diverse society. >> i just want the say thank you very much. this is often a hard place and how you go through those hard times i really think is the most important thing. and it's pretty clear to me that you go through hard times by holding your head up high and doing well. so i thank you very much. >> thank you, senator. >> thank you, senator feinstein. we'll take a break. let's see, let's take 15 minutes starting now and then we'll return to more questions. we'll have a lunch break later this afternoon in the earlier part of the afternoon. >> you have been listening to the senate hearing for the supreme court hearing. they'll take a 15-minute break and back before they resume the hearing and then a lunch later on this afternoon. standing by is senator marsha blackburn and questioning the judge in just a few moments. you haven't had a chance. i'm sandra smith. welcome to the coverage of the senate hearings ongoing this morning and on into the afternoon. there will be two days of questions. senator, ahead of this you have penned an op-ed on fox news.ko*fm. biden's supreme court nominee america deserves answers from ketanji brown jackson. you have seen some of the questions and answers so far. what have you made of them? >> one of the things that we know, sandra, by going through her writings and her speeches is that she has taken positions that are right in line with the progressive wing of the democratic party. now, that is something that is of concern to me. concern to me because we know that tennesseans want to see a constitutionalist jurist. they want somebody who is going to be fair. they feel like lady liberty is blind, lady justice is blind. they want equal access to opportunity, to the courts, and equal justice for all. so when they hear some of this and they read some of this, they do have concerns. they have concerns about parental rights. one of the top issues that is before so many people. whether you are in virginia, whether you are in san francisco, you want children to be taught facts in school. you don't want them indoctrinated. they are concerned about judge jackson and 2015 she gave a lecture talking about critical race theory as one of the components to consider. when you are making decisions on the bench, 2020 she gave two speeches referencing this. she serves on a school board and has lauded progressive education. now, for some of the women that i talk to, that's a red flag. they want answers on that. so as i said yesterday in my opening, we will discuss this with her. they are also very concerned about the issue of crime. therefore, they are very concerned about how she has gone light on criminals in her sentencing. she -- people are very concerned about how, when it comes to child predators and pornography, she has given them sentences below the minimum. on average going about five years below. >> you heard you make that case and heard in your opening statement. "the new york times" has taken you on this morning in a piece echoing conservative grievances miscasting her views saying you took quotes out of context as she levied a an attack against judge ketanji brown jackson. we'll hear your questions to her in a short time from now and we'll certainly see and all of us will be able to see how she answers them. in your piece, though, you give her a lot of credit for what you say are her impressive credentials and also stand by your vow along with your republican colleagues to demand a thorough, thoughtful and fair process because, of course, we can rewind to brett kavanaugh's confirmation hearings. a few moments of that. >> i welcome everyone to this confirmation hearing on the nomination of -- >> mr. chairman. >> brett kavanaugh to serve as associate justice. >> mr. chairman, would would like to be recognized. we have not been given an opportunity to have a meaningful hearing on. >> chairman, if we cannot be recognized i move to adjourn. [cheering] >> i move to adjourn. >> there are several moments where lindsey graham decided to point out the night and day difference to how ketanji brown jackson is being treated in that room by republicans comparing not just to the kavanaugh days and barrett as well using the example of religion and how barrett was pressed beyond where some might have thought that she should be in using that as an example in that room a short time ago, senator. >> yes. and, you know, we will give her a very thorough vetting. the questions are tough. she does need to answer. you mentioned "the new york times" article. you will notice, sandra, they weren't able to refute anything that i had said. they wanted to argue about context here or there but i gave judge jackson her word. likewise we have made certain that faith, knowing that is important to judge jackson, as it was to judge barrett, we have respected that and what you are seeing carried forward is how a hearing ought to be carried forward for a supreme court justice. these judicial appointments are unlike any other federal office. they have a lifetime appointment. so this is the one time that the american people are going to be able to hear from and see what this judge's background is before they ascend to the federal court. so it is our job to come through that, which is what we've done, to come up with the items of concern through statements, writings and decisions. and then to question her on why she chose to travel a certain route. >> we appreciate you stepping out of that room to join us. thank you very much. we will see your questions to ketanji brown jackson a short time from now. andy mccarthy and jonathan turlly kind enough to stand by with us as we have been watching this together. jonathan, to you first. your reaction to what you have seen and heard so far. >> well, she has done very well. she is obviously very engaging and personalable, likable and also very smart and that has all come through. it has come through she is doing what other nominees have done. they are encouraged to hit grounders, not to swing for the fences. the risk is too great and she has been very taylored in her answers. some interesting moments. in many ways because of this political stuff on both sides you have to look for subtle differences. i thought it was interesting she was asked whether there is a fundamental right of free speech for protestors at abortion clinics and she said yes and immediately asked is there a fundamental right for individual gun ownership? her answer was not just yes but the supreme court has recognized a fundamental right. a subtle difference but one that i think senators may be following up on as to whether she believes it's a fundamental right. it will collide with the ginsburg rule and how far the nominee will go in explaining her judicial philosophy and her views. >> andy mccarthy your take so far. >> i agree with jonathan. i've also been surprised that she has been more willing to elaborate on things than i expected. i thought she would -- i don't want to say dodge the questions but i thought she would seek refuge in the ginsburg rule and try to be kurt when it came to things that might come before the court. a very interesting exchange with senator graham about whether the nation is still at war and what that portends for our authority under the laws of war to detain enemy combatants. it seems to me that a lot of us have been saying for many years now that the authorization for military force that we've been operating under since 2001 needs overhauling and needs to be looked at. at the same time that goes on we also have president biden saying that he has basically ended the war, at least in afghanistan. at a certain point in time it will have to be grappled with whether by congress or the court whether we are at war and whether we therefore have authority under the laws of war to continue to detain the enemy combatants. senator graham seems to suggest because he thinks if you release them it would be very dangerous for americans, that that's enough to keep them detained. but it is not. somebody has to decide that there is an active war going on. that's a complex question. i was surprised she was willing to engage on it. >> an interesting moment and a moment where lindsey graham grew so frustrated he walked out of the room. this is the exchange with senator dick durbin over guantanamo bay and a clearly frustrated lindsey graham walking out. watch. >> as long as they're dangerous i hope they all die in jail if they kill americans. it won't bother me a bit in 39 die in prison. if it caused 500 million to keep them in jail. keep them in jail because they go back to the fight. look at the afghan government made up of form he detainees at gitmo. the whole thing about by the left about this war ain't working. >> jonathan, your response. >> it's an awkward position for a nominee to be n. you almost feel like you are using them as a point of argument. arguing with each other with you in the middle. she came inconsequential to a debate between two senators. she did best when dealing with her representation at gitmo. she really had some interesting and i think authentic comments that she gave. i think what will be interesting as we go forward in these questions are going to be follow ups. part of the issue is what can and cannot be asked. she declined, as did justice barrett, to answer a question about court packing. but she had no problem saying she would answer a question on mandating cameras in a courtroom if she was better informed and no problem in talking about the use of international law being relatively limited in application. the question is well, why are some of those questions barred, like court packing? the person she will be replacing had no problem publicly denouncing court packing and so did justice ginsburg. does that mean they should not have done that? if so, what's the ethical rooum that they violated by saying that court packing might destroy the court? >> bottom line for the american people watching this and taking it in for the three days we will. opening statements yesterday, two days of questions and answers from the senators. what are we learning about her judicial philosophy and what she will be like as she serves on the court? >> well, i think she is trying to suggest, sandra, that she has more of a methodology i would say than a philosophy. she doesn't want to be pinned down as having a -- coming from a particular school of constitutional interpretation. so she is a couple of times now described this method that she goes to which is almost, as she describes it, like a filter to focus on the facts of the case and law that may apply and probably get away with the answer. it is practiced and brought it up enough times you with think that is her go to when she gets asked about philosophy. she will be on the supreme court. she is not going to have to always follow precedent. now she will be making precedent. >> fair enough. >> they are not as bound as the lower courts are like the court she is now on to follow the supreme court's precedent. >> live inside the room senator dick durbin chatting away as we expect the recess or temporary break they took 15 minutes they said. it broke at 32 after the hour. we expect it the resume shortly. let's check in with shannon bream our chief legal correspondent. shannon, you have been observing every moment of this. >> the chairman, dick durbin immediately started out by going after the complaints or accusations against judge jackson. he asked her about those accusations that she is soft on crime and probed about the decisions she made in sentencing people with child pornography. the long-term impacts of people who are victims of child pornography and shares that with defendants when she is explaining to them why she has chosen the sentences she has. i think, though, she left a lot of open area there that somebody like senator josh hawley tough on her about the sentences and about those cases will have plenty of follow-ups for what they talked about there. they talked about gitmo. she did talk about as andy was talking about her methods on how she looks at things as a judge and views her role. this is part of what see said. i'm aware as a judge in our system i have limited power and i am trying in every case to stay in my lane. she said a lot of things the progressive far left won't love and sticking to the original text of what the people wrote what they meant. it doesn't sound like somebody who will take a super far left as the constitution as malleable. she has been as a judge. so it is good for her to be able to answer these accusations and these characterizations of her record directly to explain it but i think while she has done a very good job and everybody thought she would be great at this part of the process there are openings there that her critics are going to leverage as she gets around to the folks in the questioning today. >> interesting as we continue to point out her resume impressive as boekt sides of the aisle have frequently acknowledged. a harvard law graduate. clerked for breyer. served on the u.s. district court for the district of columbia and nominated to the u.s. court of appeals for the d.c. circuit and senate confirmed her last year. as we await this hearing to continue andy mccarthy is still with us. sort of preview what you expect as the afternoon comes on here and there is a whole other day of questioning of ketanji brown jackson. >> well, i think they are going to dive deeper into things that she has actually said. she has a long paper trail having been as shannon said not just a district judge for eight years but we heard during senator graham's questioning she has filed a number of briefs, amicus briefs with various courts. she has a paper trail. i expect they will pick over it. a couple of times today when she was confronted with things that she had represented to courts in briefs and she didn't seem to be completely on top of what she had said. so they are clearly going through the paper trail and i think she is probably going to have to study it even -- i'm sure she is killing herself getting ready for this but have to go carefully over the things she said in the past. >> getting ready for this, shannon, she responded to the hawley child porn comment saying nothing could be further from the truth. she was quick to address those questions. you have to think that she heavily prepared for that heading into this knowing it was out there. >> absolutely. there are those murder boards we talk about, the mock trial interview things you go through where she is pressed by people to answer tough and uncomfortable questions. she those the topic is out there, soft on crime and thoroughly prepped backwards and forwards on that and issues like abortion like senator feinstein and precedent asked from chuck grassley who chaired it in the past and chaired these types of hearings in the past about free speech for conservatives and liberals about gun rights, the right to own and possess a gun in the country. all of the issues she is prepared for. some of the more personal stuff she faced from senator graham who was trying to give her defense in saying listen the mistreatment of justices kavanaugh and barrett we don't want to see it repeated. he was asking her about her faith and about her family and about other nominees to the process that he thought have not been treated fairly. it is clear the republicans want the make a point they will handle it differently and felt the recent nominees were treated poorly and having to relive stuff she wasn't a part of. he said we aren't going to do that regardless of your personal faith or family situation. we'll treat you with respect. they are smarting from those hearings. >> she is about to take her seat and it will resume shortly. final thought? >> i think she is going to be very prepared for the questions about child pornography and she has good answers on the seven cases that senator hawley has raised. >> the senate confirmation hearing is about to resume. now to senator cornyn for his line of questioning. >> we'll start with stare decisis and i've never figured out why lawyers speak in lat-in rather than in english when describing these concepts by which judges apply precedent. would you agree with me that even under an appropriate stare decisis analysis, that dred scott and pleasey versus ferguson were appropriately overruled by the supreme court? >> i have not engaged in the actual analysis but i think it is well established now that the cases that overruled dred scott and plessey were correctly decided. >> yeah, there is a means by which the courts can correct their mistakes, correct, by overruling previous decisions? >> if the various considerations that the supreme court uses to make that determination is satisfied. >> have you ever heard a federal judge talk about super duper precedent or super precedent? >> i have not. >> i have never seen it, either, in any opinion. i've heard it here in the judiciary committee on a number of occasions when somebody has a favorite case or outcome that they don't want to see the supreme court revisit. let me ask a minute. obviously your nomination by president biden is historic. and i congratulate you again. i congratulated you previously and i think it has been long overdue. when clarence thomas, the second african-american who was nominated to and confirmed by the supreme court was nominated to the court, did you celebrate that as a historic event? >> i'm trying to remember where i was at the time. i believe i did, yes. >> when we're talking about staying in your lane -- and i appreciate your responses to a number of the questions, even though i would love to get your answer to the question, where you have deferred answering saying you want to stay in your lane and not be seen as a policymaker. would you agree with me that one of the most important questions under our constitutional form of government and the separation of powers is who decides? in other words, some questions are appropriately decided by judges, who are elected -- unelected and serve for life, insulated from politics. and other decisions are appropriately within the -- left up to the legislative branch because we are accountable to the people who can vote for us, they can vote against us. if they don't like the policies that we enact in legislation. would you agree who decides is an important question in terms of determining the appropriate role for both the judiciary and the legislature? >> as a general matter, i agree. it rarely comes directly like that as an issue. it is usually not a jump ball between the legislature and executive branch. >> you don't get a lot of easy questions. but as a general proposition you won't disagree with me? >> what i would say is the courts are properly tasked with resolving legal questions. >> controversies. congress is not similarly constrained. we can pass broad policies, come prehenceive legislation, changing policy. the difference is -- one of the differences is the voters can unelect us if they don't like what we're doing. >> that is true. >> i want to ask you did you study under lawrence tribe when you were at harvard? >> i did not. >> well, as you know, justice breyer, your mentor, wrote a book called active liberty. and lawrence tribe, who was a former law professor at harvard wrote a review of that book in the "new york times" review of books and the title of it is politicians in robes. are you familiar with that article? >> i am not. >> well, in the article, professor tribe accuses justice breyer of engaging in what he called a noble lie. and he said -- he talks about the morality of resorting to falsehoods and delusions to conceal usually from the masses, but sometimes from one self, the truths whose revelation would wreak havoc or at least do more harm than good. professor tribe goes on in criticizing justice breyer's book. he says in his stubborn vow that the court, even with its current far right sierp majority remains an apolitical body, it per pet waits a lie that is anything but noble. you've talked about staying in your lane, not making policy decisions, not being seen as political. do you agree with justice breyer that -- or with professor tribe? >> senator, i believe that judges are not policymakers. that we have a constitutional duty to decide only cases and controversies that are presented before us and within that framework judges exercise their authority to interpret the law and not make the law. >> so you would agree with me that judges should not be politicians. >> yes. >> let me talk to you a little bit about some of the decisions that have been made by the supreme court over many years starting perhaps with dred scott that adopts the substantive due process argument to determine the constitutionality of various laws. perhaps the most recent decision by the supreme court that was a dramatic departure from previous laws in the states and in the nation was the oberfeld case that dealt with same-sex marriage. in the opinions that were written , there it was noted that here we are at the time 234 years after the constitution had been ratified, 135 years since the 14th amendment had been ratified, that the supreme court articulated a new fundamental right which is a right to same-sex marriage. you are familiar with that case, aren't you? >> i am. >> at the time it was noted that 11 states, including the district of columbia, had passed laws sanctioning same-sex marriage but also at the same time there were 35 states who put it on the ballot and 32 of those states decided to maintain the traditional definition of marriage between a man and a woman. do you agree with me that marriage is not simply a governmental institution, it is also a religious institution? >> well, senator, marriages are often performed in religious institutions. >> well, when -- you agree with me that many of the major religions that i can think of,
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