0 christianity, judaism, islam, embraces traditional definition of marriage, correct? >> i am aware that there are various religious faiths that define marriage in a traditional way. >> do you see that when the supreme court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably sit in conflict between those who ascribe to the supreme court's edict and those who have a firmly held religious belief that marriage is between a man and a woman? woman? >> well, senator, these issues are being litigated, as you know, throughout the courts as people raise issues. i am limited with what i can say about them. i'm aware there are cases -- >> i'm not asking you to decide a case or predict how you would decide to, i'm just asking isn't it apparent that when the supreme court decides that something that is not even in the constitution is a fundamental right, and no state can pass any law that conflicts with the supreme court's edict, particularly in an area where people have so sincerely held religious beliefs, doesn't that create a conflict between what people may believe as a matter of their religious doctrine or faith in what the federal government says is the law of the land? >> well, son of dirt that is of our right. when there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their's sincerely held religious belief. >> do you agree that a marriage is not mentioned in the constitution? >> it is not mentioned, no. >> and religious freedom is mentioned in the first amendment explicitly, correct? >> it is. >> do you share my concern that when the court takes on the role of identifying in on enumerated right, in other words it is not mentioned in the constitution, and creates a new right, declaring that anything conflicting with that is unconstitutional, that that creates circumstance for those who may hold to traditional beliefs, like something as important as marriage, that they will be vilified as unwilling to assent into this new orthodoxy? >> senator, i understand that concern. because there are cases that are addressing these sorts of issues i'm not in a position to comment about either my personal views or -- >> i'm not asking you to. justice alito in the ober filed case wrote that ice and those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by government employers and schools. so the case was decided under a doctrine known as substantive due process, correct? >> if memory serves yes, sub if there might've been equal protection concerns, -- >> and the supreme court has said it is created by the confluence of the fifth amendment and the 14th amendment to the united states constitution. but historically, it has been applied in ways that seem to sanction explicit policymaking via the courts. for example, the lochner versus new york case, which i know you talked to senator lee about in particular, which was a new deal case that such limitations on how long bakers could work in new york, the supreme court struck that down and set it violated the right of free contract. now lochner, as you know, was overruled 30 something years later. it has also been applied in a number of different circumstances. for example, it's been suggested that dred scott, which treated as property, was a product of substantive due process. justice hugo black has criticized the doctrine of substantive due process. as the arbor terry fiat of the man or men in power more the court declaring a law invalid because it shocked the consciousnesses of at least five members of the court. he went on to say this use of judicial review thus subverts the liberty of government by the people overturning laws enacted by legislators who are answerable to the electorate rather than a majority of the supreme court. finally he said for the purpose of my question he said the adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts, which i believe justice black -- and i am constrained to say will be bad for the courts and for the country. justice jackson, why is it substituted due process and analysis just another form of judicial policymaking, which you suggested policymaking is not in your lane -- and you strive to be apolitical, something i applaud, but why isn't substantive due process just another way for justices to hide their policymaking under the guise further constitution? >> welcome of the justices have interpreted the due process clause of the 14th amendment to include a substantive provision that the right to due process, they have interpreted that to mean not just procedural right relative to government action, but also the protection of certain personal rights related to intimacy and autonomy, and it includes things like the right to rear one's children. i believe the right to travel, the right to marriage, interracial marriage, the right to an abortion, the contraception. >> trading as chattel property? >> i don't quite remember the basis for the dred scott opinion, but i will trust you -- >> the fact is that you could use substantive due process to justify basically any result. whether it is conservative, liberal, libertarian, what ever you like to call. it's just a mode of analysis by the court to allow the court substitute its opinion for the elected representatives of the people. would you agree? >> the court has identified standards for the determination of rights under the 14th amendment substantive due process. >> who gives them the right to do that? if it's not mentioned in the constitution, where does the right of the court to substitute its views for that of the elected representatives of the people, where does that come from? >> the court has interpreted the 14th amendment to include this component, the unenumerated right does substantive due process and the court has said that the kinds of things to qualify are implicit in the concept of ordered liberty, excuse me, are deeply rooted in our nations history. those are standards that identify a narrow set of activities. >> well, the judge in the obergefell case, justice roberts and his dissent say the court invalidated marriage laws of more than half the states in order to transformation of a social institution that is form the basis for human society for millennium. that was the basis for the institution of marriage, the practice for millennium and the recognition that marriage was between a man and a woman. don't get me wrong, i'm not arguing the merits or lack of merits of same-sex marriage, i believe the states and the voters can choose what they will. that is their prerogative and i think that's legitimate. about when the court overrules the decisions made by the people, as they did in 32 of the 35 states that decided to recognize only traditional marriage between a man and a woman, that is an active judicial policymaking, is it not? >> senator, the supreme court has consider that to be an application of the substantive due process clause of the 14th amendment. >> and the constitution doesn't mention anything about the substance when it talks about due process? the 14th in the 15th amendment don't talk about substantive due process, talks about due process of law, correct? >> correct. >> oh one of the things that concerns me is here is an example of the court's finding a new fundamental right that is mentioned nowhere in the document of the constitution. it is the product of simply court made law that we are all supposed to salute smartly and follow, because nine people who are unelected, who have lifetime tenure, whose salary cannot be reduced while they serve in office, they decide -- five of them decide this is the way the world should be. what other unenumerated rights do you believe exist? how could we possibly anticipate what those might be? for example, the ninth amendment says the enumeration in the constitution of certain rights shall not be construed to deny or disparage other rights retained by the people, which suggests to me that there are other unidentified rights out there. and somehow someday some court is going to tell us that we've identified and unenumerated right and we are going to reject their right of the american people to determine what the policy out the b.s. regards to that right. because we come of the nine people sitting on the supreme court, have decided that it shall be the law of the land and no legislator can pass any law that conflicts with that. what other unenumerated rights are out there? or can you not say? >> senator, i cannot say. it is a hypothetical that i am not in a position to comment on. the rights that the supreme court has recognized as substantive due process rights are established in its case law. >> your honor, this is not a trick question. >> i understand. i'm just not in the position to speak -- >> can you understand why ordinary folks wonder who did these people think they are? and where does this authority come from? i think the authority comes from we the people. that's the source of legitimacy of government. but when the courts decide to identify and unenumerated right and a gate that conflicts with it can't you see what they might just feel like this is illegitimate? or a sort of policymaking that you have disavowed by saying that you don't want to make policy, you want to stay in your lane. can you understand the concern? >> absolutely, senator, i do understand. >> and -- because i believe the courts legitimacy legitimacy is very important, that's why i agree with justice breyer that notwithstanding what anyone else says, that should be an aspirational goal of the judges, because we are all concerned about the legitimacy of our institutions, and particularly at the institution of our judiciary. how would you as a judge when you are approaching your decisions -- how do you try to avoid being seen as a policymaker by embracing doctrines like substantive due process, which essentially gives judges part bond to do whatever they want. >> well, senator, i've not had that particular situation, but i do have a methodology that is designed to avoid my impartation of policy perspectives. judges are constrained in our system as part of the constitutional design. so in all cases i'm looking neutrally at the arguments of the party, presumably in a case like this there would be arguments made on both sides of the issue. >> your honor, if you will forgive me, one reason i think the supreme court is different is because in your previous capacity as a trial judge, of course you are bound by circuit court precedent. on the circuit court europe bound by the supreme court precedent. but as a member of the united states supreme court you will be bound by nothing. you will be unaccountable to the voters. so -- >> well respectfully, senator, yes technically -- >> so you're not going to be able to find the answer in some while book somewhere. you're going to be presented with a case in the argument is going to be made that this is an unenumerated fundamental right, and the voters, whatever they've sighed is irrelevant. because we, five members of the supreme court, are going to decide what the law of the land should be. anybody who disagrees with us will be labeled a bigot. or be accused of discrimination. even if their beliefs happen to flow from sincerely held religious conviction, like the definition of a marriage between a man and a woman. but you've already told me that you see what this is a concern. >> i see why it's a concern and i would just say that although the supreme court is not bound in the sense of having to apply prior precedent, there is star a decisive's in our system. there are now standards in the star a decisive's world, when the supreme court -- >> thank goodness the supreme court has been willing to revisit its precedent or we will still be living with plessy versus ferguson or dred scott, one of the things senator whitehouse and i agree on our he and others frequently ask nominees do you think brown versus board of education is set in law? leave it or not some nominees will not answer the question. it boggles the mind. i tend to think that nominees for both parties tend to be over couched and told you can't -- if you don't answer the question you have a better chance of being confirmed. but some of these things are obviously settled. and i wish we had a more candid conversation about the source of the power that unelected lifetime tenure judges have the basically rule america when they decide that something is an unenumerated fundamental right. in the one minute and 48 seconds that i have, let me ask you about a specific case. you remember u.s. versus brown? this was a guilty plea where you are asked to assess a punishment. at one point in the proceedings you said i'm going to state for the record, however, that this court has a long-standing policy disagreement with the criminal history guidelines with the respect of the application of the two-point enhancement. do you remember when you said that? >> i don't remember that particular statement. >> how is that policy disagreement different from other disagreements where you said you're not going to get out of your lane, you're not going to get into the policy lane? >> yes, senator, the supreme court in the sentencing realm has made the guidelines, the sentencing guidelines advisory. they used to be mandatory. judges used to have to calculate the guidelines for sentencing purposes and then essentially apply a sentence within the guideline range. in a case called united states versus booker the supreme court determined that the guidelines are advisory now so they do not have to be applied in every case, that you have to calculate them, but judges have more freedom to give effect to congress -- the various provisions in the statute related to the sentencing. in booker and in the guinness progeny, the supreme court made it clear that judges -- >> judge i only have a limited amount of time so let me just close on one other question. forgive me for interrupting you, but there is such a thing is that judicial filibuster too. >> sorry house trying to get to the point. >> let me just ask you -- i don't know you well but i've been impressed by our interaction and you've been gracious and charming. why in the world would you call secretary of defense rumsfeld and george w. bush war criminals in a legal filing? it seems so out of character for you? >> senator -- are you talking about the heaviest petitions that i filed? >> i'm talking about when you are representing a member of the taliban and the department of defense identified him as an intelligence officer for the taliban and you referred to the secretary of defense and the sitting president of the united states as war criminals. why would he do something like that? >> well, senator, i don't remember that particular reference. i was representing my clients and making arguments -- i would have to take a look at what you meant. i did not intend to disparage the president door the secretary of defense. >> while being a war criminal has huge ramifications. you can be subject to the jurisdiction of the international criminal court and hauled before that international tribunal and tried for war crimes. it's not a casual comment. i would suggest. thank you. >> senator whitehouse. >> thank you, chairman, judge jackson, good to be with you again. i know that a great many people are extremely proud that you are here today. i don't know that there are a great many who are more proud then ruth bailey appeared with your permission i will take a moment and offered to the record some of his comments about you and then if you give you a chance to reciprocate a word about him. yesterday in my opening remarks i mention "the boston globe" article in which judge sally us said about you, she has absolutely everything you would want in the supreme court justice, she has all of the tickets in terms of her intelligence, or education, her work experience, and her demonstrated temperament. i've seen a lot of the same qualities in her that i signed ruth bader ginsburg. humility, the ability to inspire others, some people have the capacity to inspire by the force of their reason. intellectually she is very smart, very well-informed, and she is very hardworking and focused. she gets the big picture. he didn't stop there, your honor, he went on to w pri, a local station in rhode island and set about you, she's worked hard. she deserves that. i literally don't think that the president could've made a better choice. i think she will make a terrific addition to the supreme court. she listens to what other people have to say, but makes up her own mind. she has a very scholarly approach to the law. she is very winning personality. she's kind of the people that she comes in contact with, and she certain humility that i find very attractive and people. unanimous consent of the statement from w pri be put into the record. >> without objection. >> she went on law 360 and said i sense that she, jo, has the same sort of desire to achieve consensus and end up her peck streak that has characterized some of justice breyer's work. i think that she will be quite balanced. i have not found her to be an ideologue. she understands the job of being a judge or being a justice. she wants very much to do it in the right way. and she will bend her considerable talents to that direction and will not get -- i think the con truly appreciate that and that this is a woman that understands the importance of the position and will give 100% of her talents every day to do that job in the right way in accordance with her oath of office. unanimous consent that that be put into the record without objection? and finally the providence journal, the home state newspaper, j.d. mulvaney in an interview with her, i think it is a terrific appointment. she is a very thoughtful person. and wonderfully well-qualified. i'm happy not only for her, but for the whole country. she listens well, she gets the whole picture, has great respect for the rule of law, i think she has the whole package. unanimous consent that that article be put into the record. any reflections? >> well that was very moving. thank you, senator, for reading his lovely remarks. it's exactly who i know judge sally and to be, always eloquent, always insightful. he is someone that you someone that i've admired my entire professional life. he taught me how to look at issues very carefully, how to write in a lot of ways because the way in which he is so fastidious with his opinions. he's been an extraordinary mentor. >> we are very proud of him. if you know he's on senior status and we were able to recommend the rosary thompson to succeed him. i think rhode islanders are equally proud and she is now gone on senior status and i hope will be considering shortly and equally impressive vibe nominee for her possession. on an unrelated subject, it relates to yesterday's activities, you can relax a moment, your honor, this will not be a question for you. a lot was said in this room about dark money by our republican friends to the point where one of the headlines about yesterday read republicans hammer dark money groups. i'll be the first to concede that there is dark money on both sides. i hope very much that we can get rid of it on both sides shortly. there is a difference i believe between dark money in trust rooting for someone and right wing dark money interests having a role in actually picking the last three supreme court justices. now how do we know that they had a role in doing that? we know because everyone involved said so. it was a pretty straightforward thing. pr