0 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 these a determination that this person still represents a threat to the united states rp 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, that's -- my understanding is that 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? >> i'm not in a position to speak to the policy or the discretion of the executive branch regarding how they are going to handle detainees. >> the reason i mention it is because in the brief you argued that the executive brarn doesn't have that option, that if you had had your way, the executive branch could not do periodic reviews about the danger the detainee presents to the united states. 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 kato institute and the constitution project -- >> well, when you sign on to a brief, does it not become your target? >> it does not, senator. >> if you are an attorney and you are representing a client in amicus -- >> was that your position when you are in private practice? >> you sign on to this brief making an argument saying it's not your position. why would you do that if it's not your position? why would you take a client that has a position like that, this is voluntary, nobody is make you do this? >> oh, senator, i would refer you to the same sorts of statements that chief justice roberts made when he came before the committee which is that lawyers represent clients. >> i'm not holding the client's views against you like the people you represented 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, we would have to release these people or try them and some of them the evidence we can't disclose and it's classified, you're putting america in an untenable position. this is not the way you fight a war. if you tried to do this in world war ii they would run out of town. we would hold enemy combatants as long as there's a threat. there's no magic passage of time that you've got to let them go, so my question is very simple. do you support the idea -- did you support then the idea that indevaney detention of an enemy combatant is unlawful? >> respectfully, senators, 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 -- i'm sure everybody at gitmo wants out. now i've got that. this is an amicus brief, and i just don't understand what you're 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 on to 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 b.listen, i'm not asking you to decide the case in front of me right here. i'm asking you to explain a position took as a lawyer regarding the law of washing and i am beyond confused. i know what you said in your brief. whether i agree with it or not. i just want you to understand that it's important for all of us to 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's some people going to die in jail in gitmo and never go to trial for a a lot of good reasons, because the evidence against them is so sensitive we can't disclose them to public, that we're not charging them with a crime. what you're doing is you engaged in hostile activities against the united states, that you're an enemy combatant under our law and you'll never be released as long as you're a danger until the war is over and you're no longer a danger. that's the difference between danger and fighting a war. did you ever accuse in one of your maybe petitions the government of acting as a war criminal for holding detainees, that the holding of 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 habeus petitions at this very early stage in the process was making allegations to preserve issues on behalf of my clients. a habeus petition is like a complaint that lawyers make -- >> you know, 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 trip. i just think that'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 aniant action with a group called demand justice? >> no. >> directly or indirectly? >> no. >> have you ever had any interaction with a group called american prospect? >> no. >> do you know anything about arbella, is that the right time? have you ever heard of a group called arbella? >> i've heard of a group that i think is a rabil la. >> yes, that's right. >> do you know anything about them or had any contact with them? >> no. >> in your nomination did you notice that people from the left were pretty much cheering you senator. >> a lot of people were cheering me on, senator. >> did you know a lot of people from the left from trying to destroy michelle chiles, did you notice that? >> senators, a lot of people were supporting various people for this nomination. >> so you're saying you didn't know there was concerted effort to disqualify judge chiles from south carolina because she was union busting unreliable republican in disguise? >> senator, i'm a focused judge and -- >> it's okay if you didn't know that. >> no, i didn't know. >> would that have bothered you if that happened? >> senator, it is troublesome that people are or were doing things related -- >> i think the best way to say it 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 -- well, here's president biden has only a certain amount of political capital for keeping his party united. if he needlessly akers progressives on this scotus picks that could create all sorts of problems for him down the line, jeff hauser, revolving door projects. let's see i've just got so many quotes. it's difficult to imagine someone with a record like judge chiles winning votes from criminal justice advocates like senator cory bjork, even dick durbin. chiles' experience is nothing like the diversity of experience that the biden administration has championed. let's see. picking her, chiles, would demoralize the bide, side with corporate america. the fact that lindsey graham is vouching for her should give the white house pause. joseph jeravangi, sorry about that, he's bernie sanders pac director. you didn't know all those people were declaring war on judge chiles? >> no, senator, i did not. >> i'll take you at your word. i am saying is what is your judicial philosophy? >> so i have a methodology that i use in my cases in order to ensure that i am ruling impartially -- >> so your judicial philosophy is to rule impartially. >> my judicial philosophy is to rule impartially 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. >> so you wouldn't say that you're an activist judge? >> i would not say that. >> okay. >> so we'll have 20 minutes more later on, but here's what i would say. that every group that wants to pack the group, that believes this court is a bunch of right wing nuts that 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 restroi the law as we know it declared war on michelle chiles 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 chiles and now i believe he is publicly supporting your nomination and michelle chiles 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, there are currently 39 guantanamo detainees remaining. the annual budget for guantanamo is $540 million per year which means each of these detainees is being held at the extension of $12 or $between million per year. if they were incarcerated in colorado at the super max prison, the federal prison, the amount would be dramatically, dramatically less. since 9/11 nearly 1,000 convicted in the united states on terrorism charges. since 2009 with the beginning of the obama administration the recidivism rate of guantanamo detainees released is 5%. >> mr. chairman, according to director of national intelligence it's 21%. somebody is wrong here. if you're going to talk about what i, i'm going to respond what you said. if we close gitmo hand move them to colorado, do you support indefinite detention? >> i'm giving you the facts. >> the answer is no. >> i want to make sure that the 31% you referred to goes back to the year -- >> what does it matter when it goes back to. we had them and they got loose and they started killing people. if you're one of the people killed in 2005, does it matter to you when we release them? >> the president of your own party released them -- >> i'm suggesting that the system has failed miserably and advocates to change the system like she was advocating would destroy our ability to protect the country. we're at war. we're not fighting a crime. this is not some passage of time event. as long as they are dangers, i hope they all die in jail if they are going back to kill americans. it won't bother me one bit if 39 die in prison, that's a better outcome than letting them to g and if it costs $2 hundred million to keep them in jail, put them back in the jail. look at the afghan governor. made up of former detainees at gitmo. the whole thing from the left about this war ain't working. >> let me note that larry thompson who served as deputy attorney general under george w. bush,or orrin kerr, the assistant attorney general for legal policy in the george w. bush administration, john belanger and former d.c. circuit judge independent counsel ken starr were all attorneys signed letters representing gitmo detainees. i don't believe we should see that activity as inconsistent with our constitutional values. that the point we're going to recognize senator feinstein and then take a break after she has completed her questioning. senator feinstein. thank you very much, mr. chairman, and i just would like to compliment the witness. i think you're 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've asked the three most recent supreme court nominees about this issue, and so i would like to discuss it a bit 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 determine nancy of the law, end quote. he also stated that rowe has been reaffirmed many times. i also spoke with judge kavanaugh about this issue in 2018. i asked him whether he believes that rowe was settled law, and if so whether it was correctly settled? >> justice kavanaugh said that rowe, quote, is settled as a precedent of the supreme court, end quote. he said that rowe, quote, has been reaffirmed many times over the past 45 years, and most prominently, most importantly reaffirmed in planned parenthood v. casey, end quote, and he described 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 rowe was wrongly decided. she committed to obey the rules of starry decisis. she said she, quote, no agenda to overrule caseys, end quote. here's 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 all the rules of starry decisive in relation to all the cases? >> thank you, senator. i do agree with both justice kavanaugh and justice barrett on this issue. rowe 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 starry decisis is a very important principle. it provides and establishes predictability, stability. it also reserves as a restraint in this way on 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 read. let me add one to that and then move on. i'm particularly interested in "roe v. wade." rowe was decided nearly 50 years ago and it's been reaffirmed over a dozen times since then so my question is this. does "roe v. wade" have the status of being a case that's a super precedent and what other supreme court cases do you believe that have status? >> well, senator, all supreme court cases are presidential, they are binding, and they are their principles and rules have to be follow. rowe and casey, as you say, have been reaffirmed by the court have been relied upon, and reliance is one of the factors that the court considers when it seeks to revisit or when it's asked to revisit a precedent, and in all cases the precedent of the supreme court would have to be reviewed pursuant to those factors because stare decisis is very important. >> thank you. if you are confirmed you would be one of only two justices who has also severed on a federal district court, the other being justice sotomayor. in your eight years as a trial judge on 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's important for appeals courts and especially the supreme court to be cleared 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 courts of appeal in your case and now as a judge in the d.c. circuit you're 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's a question. i have two relate questions. how did you make sure that you were properly applying the relevant precedents as a district court judge, and if you're 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, us a noted in my time as a district court judge i had the opportunity to apply precedents that were handed down by the court 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 process is receiving information from the parties in the case. the parties write briefing, and in most cases they identify the precedents that they at least believe they 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's anything that directly controls, and if it does that's your answer. in many cases the precedents might be a little bit different in certain ways and you are assessing the party's arguments in determination within your proper role whether what the appellate courts have said provides the law of decision for the case, but what's important as you've mentioned is the clarity by which courts of appeals in the supreme court need to operate so that the lower courts can actually follow the precedents, and i'm very conscious of that, as you said, someone who has had to follow precedent and i would think carefully about that and use -- use my communication skills to ensure 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 the 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 ensuring that our communities are safe and that the interests of justice are served, and so, mr. charges 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's the question. how, if at all, has having several 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 year law enforcement. one was a detective, uniformed detective and one of them was a city of miami police department overs parks troll overs for a long time before he became the 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 families and-mile-per-hour uncles would sometimes come off of their shifts and i see in my mind their uniforms coming in, and they would always -- they would be carrying their weapons and they would take them off and put them way up high on the china cabinet so the kids couldn't get to them, and 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 ten years younger than i am to decide after he graduated from college he would want to also be in law enforcement, so i'm 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 but and worries about your safety and so this is not something that is -- that is unfamiliar, and i'm 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 ginsburg to the supreme court. justice ginsburg's confirmation made her only the second woman to serve of on the supreme court after justice sandra day o'connor so we've 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 courts. 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 what depend are 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, i am 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 so having meaningful numbers of women and people of color matters. i think it also supports public confidence in the judiciary when you have different people because we have such a diverse society. >> i want to say thank you very much. this is such a hard place and how you go through the hard times i real 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're going to take a break. 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. this afternoon in the earlier part of the afternoon. >> a short break in the confirmation hearing of supreme court nominee ketanji brown jackson. up next we'll go to the latest updates on the fighting in ukraine. you're watching msnbc. fightingn ukraine. you're watching msnbc. i could've put off telling my doctor my leg was red and swollen just doing the crossword... but i didn't wait. they told their doctors. and found out their symptoms... leg pain, swelling and redness - were deep vein thrombosis. a blood clot which could travel to the lungs and lead to a pulmonary embolism. which could cause chest pain or discomfort, or difficulty breathing - and be deadly. if you have one or more of these symptoms, contact your doctor. this is no time to wait.
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