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 m