0 of marriage, correct? >> i am aware 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 about state marriage laws, it will inevitably set 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? >> well, senator, these issues are being litigated, as you know, throughout the courts i as people raise issues and so, i'm limited in 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 in the future. i'm asking isn't it apparent that when the supreme court decided 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 sincerely held religious believes, doesn't that effect their religious doctrine or faith and what the federal government says is the law of the land. >> well, senator, that is the nature of a right. when there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious believes. >> you agree marriage is not mentioned in the constitution, is it? >> it is not mentioned directly, no. >> and religious freedom and -- is mentioned in the first amendment, explicitly. do you share my concern that when the court takes on the role of identifying an unenumerated right, in other words, creates a new right, declaring anything conflicting with that is unconstitutional, that it create as circumstance for those who may hold traditional believes like something as important as marriage, that they will be vilified as unwilling to assent to this new orthodoxy? >> so, senator, i understand hath concern and 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 whether -- >> and i'm not asking you to. >> justice alito, in the oberfell case says i assume those who cling to the old believes 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 labelled as bigots. and treated as such by government employers and schools. and the case, to nerd out with you again, was decided under a doctrine known as substantive due process, correct? >> if memory serves, yes and i think there might have been equal protection concerns as well. >> the supreme court has applied that, somehow fairly mysteriously by saying it's created by the confluence of the fifth amendment and the 14th amendment to the united states constitution. but historically it's been applied in ways that seem to sanction explicit policy making by the courts. for example, the lotner verses new york case, which i know you talked to senator lee about in particular, it was a new deal case which set limitations on how long bakers could work in new york. the supreme court struck that down and said it violated the right of free contract. now, lotner, as you know, was over ruled 30 something years later. but it's been applied in a number of different circumstances. for example, it's been suggested that dread scott, which treated slaves as chattal property, was a product of substantive due process, just as hugo black has criticized the doctrine of substantive due process as the arbitrary feought of the man or men in power or the court to d clairing a law invalid because it shocked the consciences of at least five members of the court. he went on to say this use of judicial review this subverts the liberty of government by the people overturning laws enacted by legislatures who ae answerable to the electorate, rather than a majority of the supreme court. finally, for purpose of my question, said the adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever finally achieved, will amount to a great unconstitutional shift of power to the courts which i believe justice black that is, and am constrained to say will be bad for the courts and worse for-country. judge -- justice jackson, why is it substantative due process just another form of policymaking and you strive to be apolitical, something i applaud. but why isn't subtantive due process under guys of interpreting the constitution? >> well, senator, the justices have interpreted the due process clause of the 14th amendment to include a substantive provision, the rights to due process. they have interpreted that to mean not just procedural rights relative to government action but also the protection of certain personal rights related to intimacy and autonomy. they including thes 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. contraception. >> treating the slaves as chattal property? >> i don't quite remember the basis for the dread scott opinion but i'll trust you that -- >> the fact is, is it not, that you can use substantive due process to justify any result, whether conservative, liberal, libertarian, whatever you would like to call, it's a mode of analysis by the court that allows the court to substitute its opinion for the elective representatives of the people and -- would you agree? >> the court has identified standards for the determination of rights under the 14th amendment substantive due process. >> and who gives them the right to do that if it's not in the constitution? >> wr is the right of the court to substitute its views for that of the elected representatives of the people? >> the court has interpreted the 14th amendment to include this component. the unenumerated right to substantative due process and the court has said that the kinds of things that qualify are are implicit in the concept of ordered liberty or deeply rooted in our nation's history and tradition. those are standards that identify narrow set of activities. >> well, judge, in the oberfell case, justices roberts, in his descent, noted the court invalidated marriage laws of more than half the states and orders the transformation of a social institution that is formed the basis for human society for millennia. so, that was the basis for institution of marriage is the practice for millennia. and the recognition that marriage was between a man and a woman. don't get me wrong, i'm not arguing the marriage or lack of marriage of same-sex marriage. i believe the states and voters can choose what they will and that's their prerogative and i think that's legitimate. but 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 a act of judicial policy making, is it not? >> the supreme court has considered that to be an application of the substantative due process clause of 14th amendment. >> and it doesn't mention anything about substance when it talks about due process. the 14th and sfif fifth amendment talks about due process of law, correct? >> correct. >> one of the things that concerns me is here is an example of the courts finding a new fundamental right mentioned nowhere in the document of the constitution that's the product of simply court-made law that we're all supposed to salute smartly and follow because of people whose salary cannot be reduced while they serve in office, they -- five of them decide this is the way the world should be. what other unenumerated rights do you believe exist? and 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 used to deny other rights retained by the people, which suggests to me there is yet unidentified rights out there and somehow, some day, some court is going to tell us we've identified an unenumerated right and we're going to reject the right of the american people to determine what the policies ought to be as regards that right because we the nine people on the supreme court a have decided we discovered a new right and it shall be the law of the land and no legislature can passby law that conflicts. what other rights are out there or can you say? >> senator, i can't say. it's a hypothatical that i'm not in a position to comment on. there 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 not in a position to speak to the -- >> can you understand why ordinary folks wonder who do 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 the source of government and when the courts decide to identify an unenumerated right and anything that conflicts with it, can't you see how they might feel this is illegitimate or a sort of policymaking that you have disavowed some by saying that you don't want to make policy, you want to stay in your lane, i k you understand the concern? >> i understand it. >> because i believe the court's legitimacy is very important. that's why i agree with justice breyer that not withstanding what anybody else, that should be an aspirational goal of the judges. because we're all concerned about the legitimacy of our institutions and particularly, i would say the institution of our judiciary. how does a judge, when approaching your desigds, how do you try to avoid being seen as a policymaker by embracing doctrines like substantive due process which essentially gives judges cart blanch to do whatever they want? >> well, senator, i've not had that particular situation. i have a methodology that is designed to avoid my importation of policy perspectives. the judges are constrained in our system. that's part of the constitutional design. and so, in all cases i am looking neutrally at the arguments of the parties and presumably in a case like this, there would be arguments on both sides of the issue. >> if you'll forgive me. one reason i think the supreme court's different is because in your previous capacity, as a trial judge, of course you were bound by circuit court precedent and on the circuit court, you're bound by the supreme court precedent. as a member of the united states supreme court, you will be bound by nothing. you will be unaccountable to the voters. and so, you said you can -- >> respectfully, senator. >> so, yourier not going to be able to find the answer in a lawbook somewhere. you're going to presented with a case and the argument is made this is an unenameerated fundamental right and the voters, whatever they've said is irrelevant because we, five members of the supreme court, are going to decide what the law of the land should be and anybody who disagrees with us will be labelled a bigot or be accused of discrimination, even if their believes happen to flow from sincerely held religious conviction, like that of a marriage between man and woman. you've already said you see why this is a concern. >> i see why it is a concern and although the supreme court is not bound, in the sense of having to apply prior precedent, there is starry desisis in our system and there's standards in that world that the supreme court applies when it it's asked to -- sorry. >> well, thank goodness the supreme court has been willing revisit pres precedent we'd still be living with plessy verses ferguson and scott. they frequently ask nominees for the supreme court do you think brown verses board of education is settled law? and believe it or not some nominees won't answer the question. i mean, it boggles the mind. i tend to think that nominees from both parties tend to be over coached and not -- and told you can't be -- 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 tenured judges have to basically rule america when they decide something is an unenameerated fundamental right. in the minute 48 seconds i have. this is a guilty plea and you were asked to assess a punishment and at one point in the proceedings, you said i'm going to state for the record that this court has a long-standing policy disagreement with the criminal history guidelines respect to the application of the two-point am hansment. do you remember when you said hath? >> 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, into the policy lane? >> yes. senator. supreme court, in the sentencing realm, has made the guidelines, sentencing guidelines advisory. they used to be mandatory. jurjs used to have to calculate the guidelines for are sentencing purposes and then essentially apply a sentence within the guideline range. in a case called united states verses booker, the supreme court determined that the guidelines were -- are advisory now. so, they don't have to be applied in every case. you is to calculate them but judges have more freedom to give effect to congress's -- the various provisions in the statute related to sentencing. in booker, and in the -- its projany, the supreme court made clear that judges at sentencing -- >> i only have a limited amount of time. so, let me just close on one other question and forgive me for interrupting. there's such a thing as a judicial filibuster too. >> trying to get to the point. >> 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 rumsfelled and george w. bush war criminals in a legal filing? it seems so out of character for you? >> senator, you -- are you talking about briefs or habeas petitions i filed? >> i'm talking about when you were 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 you do something like that? it seems so out of character? >> well, senator, i don't remember that particular reference and i was representing my clients and making arguments. i'd have to take a look at what you meant. i did not intend to disparage the president or the secretary of defense. >> well, being a war criminal has a huge ramifications. you would be hauled before that international tribunal and tried for war crimes. it's not a casual comment i would suggest. thank you. >> thank you, senator cornyn. >> judge jackson. good to be with you again. >> good to be with you. >> i know that a great many people are are extremely proud that you are here today. i don't know that there are a great many who are prouder than ruth sellia and so, with your permission, i'll take a moment and offer into the record some of his comments about you. and then maybe give you a chance to reciprocate with a word about him. but yesterday in my opening remarks, i mentioned the boston globe article in which judge sellia said, about you, she is absolutely everything you'd want in a supreme court justice. all the tickets in terms of intelligence, education, work experience and demonstrated judicial temperament. i see some of the same qualities in her as ruth bader ginsburg. the way to inspire not at the top of her voice. some have the example by the force of their reason. she's very smart, well informed and very hard working and well focussed. she gets the big picture. i ask that be admitted in the record. he didn't stop there, your honor. he went on to wpri, the local station in rhode island and said about you she's worked hard. she deserves it. and i literally don't think that the president could have made a better choice. i think she'll be 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 towards the law. she has a very winning personality. she's kind to the people she comes in contact with. and she has a certain humility that i find very attractive in people. i ask unanimous consent that the statement from wpri be put in the record. she went on law 360 and said i sense that she, you, she has the same sort of desire to achieve consensus at a pragmatic streak characterized some of justices breyer's work. i think she will be quite balanced. i have not found her to be an ideologue. she understands what being a justice is and wants very much to do it in the right way and she'll bend her considerable talents to that direction and won't get side tracked by any extemp rainious side issues. i think the country will appreciate that and that she understands the importance to the position and will give 100% of her talents every day to do that job in the right way and in accordance with her oath of office. unanimous consent that be put in the record and finally the providence journal, our home state newspaper, katy mulvaney, in an interview heard judge sellia say i think it's a terrific appointment. i'm happy, not only for her but for the whole country. she listens well, gets the whole picture, has great respect for the rule of law. i think she has the whole package. unanimous consent that be put in the record. so, any reflections on judge sellia? >> oh, well, that was very moving. thank you. senator for reading his lovely remarks. it's exactly who i know judge sellia to be always eloquent, always insightful. and i'm so flattered by his -- by his admiration because he's someone i have admired my entire professional life. he taught me how to look at issues very carefully, how to write in a lot of ways. because of the way in which he's so fest idious with his opinions. and he's been an extraordinary mentor and role model. >> as you know he's on senior status and when he went on senior status, we're able to recommend the thompson to succeed him. of whom i think rhode islanders are equally proud and she has gone on senior status. and mr. chairman, i hope we'll be considering shortly an equally impressive biden nominee for her position. on an unrelated subject and weilates to yesterday's activities, you can relax a moment, your honor. this will not be a question for you. but a lot was said in the room about dark money by our republican friends are to the point where one of the headlines about yesterday read "republicans hammer dark money groups." is and i'll be first to concede there is dark money on both sides and hope we can get rid of it shortly by legislation. but there is a difference, i believe, between a dark money interest 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 they had a role? we know because everybody involved said so. was pretty straight-forward stuff. president trump said we're going to have great judges, conservative. all picked by the federalist society. that's pretty plain. senator orrin hatch, the former chairman, was asked some -- said some have accused president trump of out sourcing his jude it's selection process to the federalist society. i say dam right. the cofounder of the federalist society said that the administration is relying on the federal society to come up with qualified nominees. and then don, who ran the operation for trump in the white house said i've been a member of the federalist society since law school and still am and frankly that role seems to be einsourced. pretty broad agreement that selection process took place out of the public eye and appears to have been informed heavily by dark money interests. they were not alone in saying this. here's laura ingram on fox news concerned about abortion cases coming up before the court. we have six republican appointees on this court after all the money that's been raised, the federalist society, all these big fat cat dinners. if this court with six justices cannot do the right thing, i think it's time circumicize the jurisdiction of the court. that's the way to change things finally. so, we have people who are in a position to know what was going on behind the scenes describe thing six republican appointees who got there after all the money that's been raised, the federalist society and all the big fat cat dinners and threatening if they don't do what she considers the right thing, they'll be punished by circumsizing the jurisdiction of the court. that's pretty big talk but backed up by pretty big dollars. if you go back to before the enterprise got underway, the money a that came into the federalist society from what's called donors trust, which has been described as the dark money atm of the right, the koch brothers affiliated operation, in 2002 it got $5. no big deal. 2019, in this operation was in full swing, it got $7 million. we don't know who the real donor was because that's the job of donors trust is to deidentify the donor. to launder the identity off the donation so you can't connect the dots anymore. but $7 million i think is quite a lot of money. and unfortunately, the federalist society was not alone. right down the hallway, is something called the jude it's crisis network. it's in the downtown washington building. although jcn's mailing address at a different location and address shared by multiple companies. and right down that hallway, at that jude it's crisis network, there's more money pouring. and here is how much poured into the last three nominations via the judicial crisis network. $21 million related in time to the gorsch nominee. 17 million to the kavanaugh and 16 million to the barrett. could bow the same donor. who knows and we don't know what business may may have had before the court. and i think it matters when someone is seeking to influence the makeup of the court that the public understand what business they may have before the court. and they didn't stop with the trump nominees. they got up on the air a dark money group using dark money to accuse biden's supreme court nominee, at that point, a player to be named later. judge jackson had not been selected at this point. of being a tool or stooj of liberal activist dark money. this is a screen shot from their advertisement paid for by the jude it's crisis network. so, it's worth understanding for a moment what the judicial crisis network is and where it lies. and it lies in a network of organizations. the prevailing way political mischief is accomplished these days is with a 501 krourks 3 organization. 501 c 3 gets tax deduction and the c-4 gets to participate in political activities. and there's a fund twinned together as a 501 c 3 and 4 organization. they filed to operate under what they call fictitious names. that's the term of law they filed. fic tish its names. and there's judicial crisis network. one of the -- it has a parallel judicial education process, that's a fictitious name. if you're interested in voter suppression, you can move to the honest elections project action. another fictitious name and it's twin, the honest elections project and they've even got new ones less active. free to learn action and free to learn. they're eight organizations that are essentially one. as lawyers we think from time to time about piercing the corporate veil. that's corporate veiling that you could pierce with a banana. and it runs back and forth with three groups called crc advisors -- that take money as part of the planning element. you might say crc advisors strategies and relations, this 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 to that nuch much trouble to create that many organizations to hide how much money they've spent to control the nomination process to the court. and it's no small amount of money. in the original "washington post" research, they've pegged it at $250 million. further research led to testimony and my court subcommittee that the number is actually $400 million. and we have a recent report that we haven't fact checked that the number is higher than that. i may amend this number upward once we're done with our fact checking. $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. and i want to make sure that difference is clear since our friends on the republican side have made dark money such a big focuses of their attention already. there is a drastic difference between rooting for somebody and controlling the turn style that decides who gets on the court. controlling the funding of the political campaigns that pursue the folks on the court. and actually once you get on the court, we're working now with judiciary itself to try clean up the mess of that same anonymous money appearing before the court through phoney front groups that file amks briefs or in a full armada. of dark money-funded front groups. so, that bears not at all on this nominee but because this is a public forum and we've heard that so-called hammering of dark money groups. i wanted to make sure it was cleared to everybody how this game is played. and what the difference is. in the way the two sides play it. so, now, back to our business, judge jackson. you have served as a trial court judge >> ib have. >> you have served as an appellate court judge. >> i have. >> and with any luck on your way to serve as a supreme court justice. one of the things 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 witnesses in the eye. that's where evidence can be amassed. that's where the trial judge has the responsibility of sifting through it. if there is a jury, then the jury, of course, is the ultimate fact finder but if you're in a non-jury, it's the judge who is the ultimate fact finder. and comes up with a record of fact in the case. and in my view that record of fact that 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. you having lived in both houses, the trial court has house and the appellate court house, tell me a little about what that 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 at the trial court, you are on the ground level. parties have filed the case, you have all of the issues usually at the trial level because you'll have the complaint, if it's a civil case and they'll be a lot of litigation about the development of the facts in the case. in civil cases, you have a period of discovery in many cases that is really about the development of the record. what actually happened. in this case. sometimes there's even a trial and that too is a part of the development of the facts in the case because a jury will be charged with responsibility of determining what happened, who's guilty, for example. if it's a criminal case or who's liable, if any. if it's a civil case and sometimes there are even questions presented to the jury. that they have to determine the facts. at the appellate level, as you said, there is already a record and the court is looking primarily at the law. the legal principals that guided the decision below, base on the factual record and importantly, at the appellate level, there are standards of review that the court of appeals applies when it decides how to review, whether or not to reverse or afirm the judgment of the lower court. and i've been very mindful, especially as a trial judge, of the standards of review. >> when i was prepping lawyers for oral argument before appellate courts, i would often say please don't quarrel with the facts. unless you have a knockdown case because if you want to get the appellate court to relitigate the facts, you're up against the harshest standard of review available. erroneous test and clear error is no small thing. outside of that narrow finding, by an appellate court, that somehow the district court got it wrong, filtered through that clear error standard, are there other circumstances in which it's proper for appellate courts to do their own independent fact finding outside of the record of the case that they're reviewing? >> i am 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 standards like clear error and so, therefore, the record is usually set and established by the time 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 and do free range fact finding. they have to be tethered to the record of the actual case before them. it's related to the controversy requirement >> that's correct. >> and in that regard, civil juries are, i think, think is americans have prided themselves on for a long time. you go back the colonial days and the civil jury was one of the immediate imports from england, every colony set up civil jury. when the crown tried to interfere with civil juries in the colonies, it was in the declaration of independence of what the king had done wrong that offended the colonists and caused the revolution. and the documents around the founding, and around the creation of the constitution all reflect passionate belief in the importance of the jury, including the civil jury, which as you may know from your experience and the trial court is getting to be a rarer and rarer creature. and in pact, there are trial judges who have written about how do we keep the civil jury alive? and i'd like to hear your thoughts whether there's more to the civil jury than just a fact finding appendage of the trial judge. whether was seen by the founders and whether it belongs in our constitutional structure as a part of the responsible self governance that was established by our constitution? >> yes, sen itter. it is part of our ordered liberty. it is a mechanism by which citizens can participate in fwvance. governance. they can be called upon by the court to sit in judgment of other people in the community. and it was something that was a part of the democratic vision of the founders from the very beginning. >> black stone was one of the legal experts who were early lawyers of the united states relied on. i suppose there were experts with only commentaries of his bible on their shelf. and black stone 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 prom the power of what he called the more powerful and wealthy citizens. there was long experience are in government of corruption. whether getting to a chief executive and getting them to do things your way for improper reasons or controlling the legislature, a legislative body. but the jury is fundamentally different because they don't stick around. they're there for one case and one case only. you can't fix them so they decide your way over time. and if, in that one case, you try fix it, you've likely committed a criminal offense. if anybody tampered with your jury, how would you respond? >> very seriously. >> the jury is in a protected environment from the danger of corruption that the elected branchs often suffer. and do you have thoughts about the importance of the civil jury in that regard as the bastian where people can go where they'll get a square deal from regular citizens and can stand toe to toe with the lawyers or whatever mighty an ponent they have, with almost no danger, less in danger of the fix being put in? >> well, certainly the jury system is descreened in that manner. that citizens are brought in from the community. when we pick juries, we ask, as judges, do any of you, in this pool, have any connection to anyone? >> so, you screen them for conflicts of interest some. >> you screen them heavily. that's part of what we call the voir dire. >> and in fact, a that would be ea reason to exclude someone from the jury. we even ask do any of you, do any of you know me? and if you do, you'll have to let me know and be removed. because the idea, as you've indicated, is to get people prom the community who have no connection to the case and can hear the evidence that's presented in the court room and the arguments of the lawyers and make a decision that is unconnected to any sort of personal interest they might have. >> protecting the jury against the dangers of bias or corruption, giving the parties before it a clean and fair shot? >> yes, sen iter. >> so, with any luck, you'll be on the supreme court before long and i hope you'll remember all of this because it seems to me the court has been on something of a campaign to depricate and diminish the civil jury. including by allowing big corporations to build into their standard contracts, buried way down in the fine print, that folks often don't read, and if they do, they'll never get through the phone tree to find snoob complain about it and try to strike it out of the contract. it's a take it or leave it proposition. build into that th you've given up your right to a jury. your 7th amendment right to a jury. that is right in the bill of rights. and i can't think of another right that the course pays less attention to or throws more readily under the bus if you read the mandatory arbitration days, there is rarely a mention of the 7th amendment. and it seems to me that it flies in the face of the purpose of the jury to allow the citizens of the corporate citizens to actually be able to take on the ability of their own through contracts that the customer has no chance to negotiate. the employee has no chance to negotiate. to actually take away that right that was at the heart of our founding. without a squeak of objection or even notice by the court. and i think that it has created a dramatic shift in power towards big corporations. and i think that it has harmed in-humanerable employees. and it is not just your fact findinged a jukt, but as an important part of our structured liberty as americans. i wish you well. i'll see you again tomorrow. and thanks so much for your patience with all of us here today. >> thanks, i don't whitehouse. and let me say a positive word to follow up this committee in the last few weeks has passed legislation signed in to law by president biden which in cases of sexual harassment provide that individuals who are republicans have the option of a jury trial. despite efforts to steer them into arbitration. so i think that is a step in the right direction. and so i'd like to ask everyone to consider returning promptly at 1:30 for the much anticipated senator lee of utah. >> and so a lunch break after about 3 1/2 hours of questioning for ketanji brown jackson. what the chair called trial by ordeal. just 7 of the 22 senators have questioned judge jackson so far. likely another 7 1/2 more hours of questions. and a joining me now is ari melber. and so give me your big picture of what we've seen so far. how much is about climate change's qualifications to be a supreme court justice zirs as politics and how much senators asking questions versus gets answers? >> they haven't gotten a ton of answers and that of course is by design. i think judge jackson has had a very good start. it is early, it may not feel like that, but it is still early and anything can happen. but she'sed a a very good start. she had good coal lloqies book d forth. and we saw early in the day chairman grassley not trying to devote go at her that hard. and it almost felt like a lobbying session of saying hey, don't forget about this often forgotten issue about the civil right to jury trials. anyone who has ever sdip had to sign an employment contract, you might have something tucked in there, but that was not seek a lot of information so much as saying hey, please remember this if you become a justice. and the big fireworks with lindsey graham is a preview of what we may get later with other republicans including senator hawley. but thus far a good start for climate change. >> ari melber, thank you. and while they take a break to lunch, i want to toss to andrea mitchell. >> and i'm in brussels with the latest reporting on the war in ukraine ahead of president biden's arrival here for emergency meetings with nato, with the european union and the g7. and nato leaders inviting volodymyr zelenskyy to speak at thursday's very important nato meeting via video link. on the battle front today, ukrainian officials say that their troops are moving russian officials out and people inside the capital remain under a curfew as the government tries to protect them. and meanwhile the refugee toll is rising, the united nations now saying within 3.5 million ukrainians are scattered with no way of knowing when or if they will ever return to their homeland. and today president zelenskyy spoke with pope francis before addressing italy's par will youment saying that there are russian troops killing raping and torturing people and at least 117 children have died during the conflict. [ sirens ] and the president holding up his phone to play an air raid siren and telling them don't be afraid. and gabe guttierez is joining us and also admiral, first to you, the latest update is that there is no concrete indication of an imminent chemical attack from russia, but that the russians are also shelling mariupol from ships in the sea. so why is that important? >> for two reasons. believe me, if the u.s. intel community did not have a pretty good idea about the use of chemical weapons, you would not hear the president of the united states make those points. they don't hand him those talking points if they don't have reasonable certainty that there is serious thinking under way. as to the shelling from the sea, you know, always good to ask an admiral about naval gunfire. it is a smart move on the part of russia because it is not in dispute that they control those seas completely, so unlike ashore where they are encountering ukrainian resistance everywhere they go, from out at sea they are working from a safe haven. so what should we do about it. we ought to be providing the ukrainians surface to surface missiles that can reach out and touch those warships at sea in that pe do exist. it could be part of the kit we are moving i think quite effectively to the ukrainians right now. >> thanks so much, admiral. i know you have a busy day. and gabe, let's talk about your perspective from ukraine, from leave. lviv. how important is this nato meeting and the speech that zelenskyy will be given to nato? >> reporter: i spoke yesterday with the deputy prime minister of ukraine and she knew of course that president biden could not come to ukraine because of a variety of reasons. but she did say that she hoped that the president could unite the world in increased sanctions toward russia. and of course we've been hearing from ukrainian officials over the last several weeks talking about not just sanctions, but also this no-fly zone, this is something that we've been hearing over and over again from refugees. whether or not that happens, the ukrainians are hoping that this nato meeting later on this week could provide some unity for the rest of the world to really unify and beat back this russian advance. you mentioned that the ukrainian military is, you know, achieving and retaking potentially some areas around kyiv, but the greatest fighting right now as it has been perhaps the last several days and weeks has been in that southern port city of mariupol. we are still hearing more and more devastating stories from some of the first refugees that are now starting to make it out of that area. i was at the lviv train station earlier today and where refugees from that region managed to make it out as part of a humanitarian co corridor. and they say that they have no water, no electricity, and they don't see anyway out. but the local officials say that they reject any calls for sure render, this is not just happening in mariupol but other cities such as kharkiv and other towns and other parts of the country that have bean surrounded by russian troops over the last several weeks. they remain defiant and as you mentioned, a humanitarian crisis