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tv   Senate Confirmation Hearing for U.S. Court of Appeals Nominees  CSPAN  April 29, 2021 1:17pm-4:35pm EDT

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crosses constitutional lines in an effort to stay in power. >> investigative journalist lawrence roberts, sunday night, 8:00 p.m. eastern, on c-span's "q&a." ♪♪ next, two of president biden's judicial nominees testify before the senate judiciary committee for their confirmation hearing. judge ketanji brown jackson is
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nominated to fill a judicial vaccines on the u.s. court of appeals for the district of columbia. she's currently a judge on the u.s. district court for d.c. candace jackson-akiwumi is nominated for a seat on the u.s. court of appeals for the seventh circuit. this is three hours and 15 minutes. >> good morning. this hearing of the senate judiciary committee will come to order. our first panel will include two circuit court nominees with outstanding credentials. candace jackson-akiwumi, to be taking an illinois seat on the seventh circuit, and judge ketanji brown jackson for the d.c. circuit.
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our second panel will feature three highly qualified district court nominees, julien neals, judge zahid quraishi, both nominated to the district court of new jersey, and regina rodriguez nominated for the district of colorado. senators duckworth, menendez, hickenlooper, bennet, will join us shortly to introduce the nominees. before i turn over to them and to ranking member grassley, i would like to make a few points about this historic day for the biden administration. looking at this slate of nominees, i'm struck that they bring an extraordinary level of achievement but also demographic and professional diversity. we need it on the federal bench. i'm reminded of what president lyndon johnson said when he nominated thurgood marshall to the supreme court in 1967.
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mindful that he just sent up to nomination the first african-american supreme court justice, president lyndon johnson has already earned his place in history but i think it will be greatly enhanced by his service on the court. johnson continued, i believe he earned that appointment, he deserves that appointment, he's best qualified by training and very, very valuable service to the country. i believe it's the right thing to do, the right time to do it, the right man and the right place. importantly, he closed with this admonition. i quote, i trust that this nomination will be promptly considered by the senate. well, i would say, if i could, to president johnson, a lot of nominees wish the very same thing. surveying these five nominees, i believe that they are qualified by training, have distinguished records, they're the right nominees to fill these
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vacancies, and they've earned and deserve these appointments. all five of these nominees are people of color. they also come from a range of professional backgrounds. all five, all five, received well-qualified ratings by the american bar association. both circuit court nominees are former federal public defenders and will as a result bring that perspective and experience that is far too often missing on the bench. and that's not a partisan point of view. in fact, scholars at the cato institute, cato institute, hardly a liberal bastion, have highlighted the critical importance of adding more public defenders to the ranks of the judiciary. today, we're on our way to doing just that. today's district court nominees represent a depth and breadth of experience that will serve the people of new jersey and colorado. this district court panel includes julien neals, an expert in municipal law and a dedicated public servant who presided over more than 6,000 cases in the
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newark municipal court system. judge zahid quraishi, a decorated military veteran, federal magistrate, who if confirmed will be the first american muslim to sit on an article iii court. regina rodriguez, a path breaking former chief of the civil division in the colorado district attorney's office whose mother's family was interned during world war ii in one of our nation's most shameful moments. while this breadth and depth of experience is important, so too is the confidence we can have that all these nominees, once confirmed, understand their responsibility as judges. it's a welcome change to see nominees who have been selected for their credentials and abilities rather than those who have simply checked a box in their political experience. for four years, president trump nominated and senate republicans approved far too many nominees, many of whom never should have been nominated. ten of the nominees in the trump
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administration for lifetime appointments to the federal court have been found unanimously, unanimously unqualified by the american bar association. but that didn't deter their nomination and in most cases their selection. thankfully, with today's five nominees, the biden has taken an important step towards orienting the courts back toward even handedness, fair mindedness, and competence. and the administration has done so would group of nominees whose qualifications are beyond question. now i have the honor and privilege of introducing two of them. i'll start with candace jackson-akiwumi, nominated to an illinois seat on the seventh circuit. ms. jackson-akiwumi is the daughter of two judges. her father raymond jackson is a federal district court judge in virginia. her mother, gwendolyn jones jackson, previously served as a state court judge. their daughter candace received her undergraduate degree from princeton, her law degree from
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yale, where she served on the yale law journal. she clerked on the u.s. district court for the northern district of illinois for a judge who heads my panel to approve nominees to the federal bunch in illinois and a judge on the fourth circuit court of appeals. she practiced at skadden arps in chicago and then did something highly unusual. she decided to least private practice to join the federal public defenders office in illinois, working in that office for ten years, leaving just last fall when she came to d.c. with her husband eric, pursuing a job opportunity. for the last several months she's practiced at the d.c. office of the law firm zuckerman spader. however, upon confirmation, she will return to chicago, good for us. i want to download her husband eric for adjusting his own career for the sake of his wife's. it is a sad reality that four years of president trump and a republican senate did not expand diversity on our federal courts.
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this includes both demographic diversity and life experience. over four years, president trump appointed 54 judges to the circuit courts, 54. none of them, not one of them, was black. currently the seventh circuit has no judges of color. in fact only one judge of color has ever served on the seventh circuit, my friend and retired federal judge ann claire williams, appointed by president clinton with my strong support. in 2016, president obama nominated a highly qualified black attorney named myra selby to an indiana seat. the republicans blocked her nomination for a year. the naacp has made it clear that this lack of diversity means something important to the federal bench. in a letter, naacp president derek johnson wrote the absence
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of diversity undermines the legitimacy of the federal judiciary. judges from racial, ethnic, and other backgrounds enrich decisionmaking and promote confidence in communities impacted by their rulings. thankfully, we have ms. jackson-akiwumi before us today, highly qualified with a unique perspective and only a tiny fraction on the federal bench now have spent the majority of their careers as public defenders or in legal aid. in fact out of 179 current federal circuit court judgeships there appear to be only two judges who spent a significant part of their legal career as federal public defenders, one of them from the state of iowa. the eighth circuit judge jane kelly and the third circuit judge luis ostrepo from pennsylvania. in contrast, there are many former federal prosecutors on the federal bench. many are extraordinary jurists
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but they do not share the same life experience as many nominees. ms. jackson-akiwumi represented 400 indigent defendants. she has tried eight trials to verdict and argued six appeals to the circuit court. she's litigated hundreds of contested hearings including sentencing hearings. she knows the criminal justice system inside and out. she's exactly the type of nominee we should hope to see more of. i look forward to hearing more about her experience today. i also have the honor of introducing judge ketanji brown jackson, nominated to the d.c. circuit. judge jackson was born right here in washington, d.c. where her parents, who were natives of miami, were at the time working as public school teachers. when she was 3 years old, judge jackson and her parents went back to miami so her dad could attend law school at the university of miami.
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judge jackson's mother served for 14 years as principal of a leading magnate school in the miami area. judge jackson herself attended harvard and harvard law, then went on too series of clerkships at the district court and finally supreme court clerkship for justice stephen breyer. the breadth of her legal career is impressive, from her work at morrison and forster to her time as a federal public defender. judge jackson is well-known to us on this committee in light of her prior nominations to the sentencing commission at the u.s. district court for the districtof columbia. her tenure on the sentencing commission, the issue of criminal sentencing is one that is deeply important to me and i'm sure to my colleague senator grassley. as a sentencing commission
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member and as a federal judge who has handed down sentences, judge jackson has faced the often difficult questions inherent in that responsibility. she will bring that experience to bear on the d.c. circuit. the second is more broadly her record on the federal bench. judge jackson has shown time and again in her decisions that she is guided not by ideology or preferred outcome but by a steadfast belief in approaching every case with fairness and im partiality. we see that reflected in the comments of those who have served with her. she's won praise including from d.c. circuit judge thomas griffith, a george w. bush appointee, who wrote to the commit in support of her nomination. he wrote, and i quote, although she and i have sometimes differed on the best outcome of a case, i have always respected her careful approach and agreeable manner. two indispenable traits for
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success in a collegial body. in partisan times, his words ring even more important. i look forward to hearing from judge jackson today and all five of today's nominees. with that i turn it over to my friend and fellow colleague, ranking member chuck grassley. >> for the first three paragraphs of my remarks i would ask the democrats to pay attention. it may sound facetious but i want to make a point. today we're hearing from five nominees to be considered for judgeships including two circuit nominees. because this is the committee's first hearing on judicial nominees of this congress, i'll be very attentively listening to my democratic friends to see if i catch any apologies from them to justice amy comey barrett. you see, last fall we heard from them time and time again for weeks that judge barrett was being put on the supreme court
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for two reasons, one, to steal the election from donald trump, and to get rid of obamacare. well, i just checked, joe biden is president of the united states, and obamacare is still on the books. if my friends don't want to apologize to justice barrett publicly, she's right next door and i bet she would be happy to accept any apologies in person. turning to today's nominees, judge jackson has been nominated to the d.c. circuit court, often called the second highest court in the land. judge jackson was appointed by president obama to serve d.c. district court, 2013, and has been involved in over 500 cases as a judge since then. as someone who has been very interested and invested in criminal justice reform as senator durbin has been, i
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appreciate judge jackson's work on the sentencing committee, commission, where she also served. we'll also hear from ms. jackson-akiwumi today, nominated for the seventh circuit. she is a nominee who served as a federal public defender for ten years in the chicago area before moving to d.c. and has represented over 400 criminal defendants, many of whom were charged with crimes involving illegal firearms. i'll be interested in hearing her views on the so-called gun pandemic and how violent criminals play into that. from my review of her record, it certainly seems that ms. jackson-akiwumi has been a zealous advocate for clients and criminal defendants are deserving of competent representation in our justice system. but i'll be asking her today about some of the specific positions she's advocated for.
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i'm sure democrats will complain that we shouldn't hold a nominee responsible for her clients and perhaps that once was true. the fact is that previous nominees like kyle duncan, howard nielsen, rosie alston, britt camp, mike park, and countless others were opposed by democrats because of the clients that they represented. at the same time, there is a growing hostility to fair representation on the left with student radicals saying, quote unquote, not everyone deserves representation. and liberal activists speaking to penalize law firms representing clients with wrong positions, so-called wrong positions on social or political issues. as a wise man said recently, there can't be one set of rules
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for republicans and another for democrats. so i plan to look at candidates' records including their legal advocacy on behalf of clients. the fact is, the far left group demand justice which seems to be in charge of the judicial selections in this administration says you can tell what kind of judge someone will be by their clients. they strongly support judge jackson and ms. jackson-akiwumi because of their time as federal defenders apparently caused them to pursue social justice rather than follow the law. and of course i hope not, and it's not an accusatory statement, but it does take off on some very fair accusations against nominees of one party versus the nominees of another party. this hearing is our first look at president biden's judicial
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nominees. i'm hopeful that these nominees will engage with all senators and ultimately respond to our questions. congratulations to all of you for your nomination. >> thank you, senator grassley. and a number of senators would like to formally introduce one or more of our nominees. i have a list of those who are available. the first is physically present, from the state of new jersey, our colleague senator cory booker. >> mr. chairman, this is indeed an honor for me to be able to introduce the two nominees, julien neals and judge zahid quraishi. they both have been nominated by president biden to served as united states district court judges for the district of new jersey. we are in a very severe judicial emergency right now. both are highly qualified, experienced people who serve, who share an understanding of the impact that our courts will have on the people of our state and across this nation. the first individual i choose to introduce, we've done this,
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again, before, judge neals is someone that was nominated by the obama administration. and in 2015, to serve as a federal district judge. unfortunately the senate failed to bring his nomination up for a vote. despite the delay on neals' confirmation, i would like to, again, speak to who he is. judge neals and i have worked together for a very long time. we have history. he's someone that i've had the honor of working with and of all the people i've worked with in my career, and i've worked with extraordinary individuals both here in the united states senate and in my career in newark, judge neals is unequivocally among the best people i've had the honor to work alongside. for two years he served as chief judge of the newark municipal court which is the largest court in the state, muicipal court in the state of new jersey. he personally presided over 6,000 cases. he ushered in a spate of reforms
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helping to create the state's first veterans corps, the state's first youth corps and other innovations that helped newark, new jersey become a national model for court innovation. he joined my mayoral administration and served as the head of the newark corporations counsels office. he served at a time that we were in crisis. the city was going through the great recession along with the rest of the planet earth. i don't think there is any person here that was a former governor, a former county consecutive or former mayor who had to do what julien and i had to do which was to govern down our city's size 25%, to cut our city's budget and to cut our personnel. days and months and years of painful work of getting our budgets to fit with the massive
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shortfalls in revenue that we had. he is a brilliant, skilled administrator who has a balance and an equipoise to keep his head about him while others lose theirs. bergen county, the county of my birth, and where i was raised, if you talk to to people in bergen county, they talk of him as if he is a holy, sanctified figure. when he walks into a room, they say, everyone listens. bergen county has a lot of fiefdoms and power bases. julien seems to sail above it all with great dignity and a great sense of expertise that trumps all politics. i am so honored to know this human being. when i imagine what a federal
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judge should be, i imagine someone with the qualities, the gifts, the kindness, the decency, and the love for others that julien neals possesses. it is an honor for me not only to introduce him but to have recommended him to the president of the united states and it is so great to see my old friend here today. the second person i would like to introduce is judge zahid quraishi. judge quraishi is someone who has had an extraordinary life of commitment to country. he is a dedicated public servant who has served this nation in many roles. you said it, mr. chairman. he was in the military, in the jag corps, at the department of homeland security and recently worked as an assistant united states attorney for the office of new jersey. he is currently a federal
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magistrate judge in new jersey. this is someone who believes in this nation and her ideals and is dedicated to serving them. he has honors in just about everything that he has done, including his military service. judge quraishi is a well-respected person who is also seen as a standout in our state. he is one of the best that new jersey has. his legal skills and experience will serve the people of new jersey in our judicial crisis as a u.s. district court judge. it has been said also that if he is confirmed, judge quraishi will be a history maker as the first muslim american article iii judge in all of our country's past. and because of his example, because of his leadership, because of his character, he will most certainly not be the last. both of these nominees are dedicated to the rule of law, to justice and fairness. both of these nominees will help
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to restore integrity and independence and public faith in our courts. and both of these nominees are exceptionally, extraordinarily, unequivocally qualified. i thank president biden for recognizing and nominating judge neals and judge quraishi to serve as united states district court judges for the district of new jersey and i strongly edger my fellow committee members to support their nominations. thank you. >> thank you, senator booker. senator bennet, i believe by remote. are you there, senator bennet? >> i'm here, can you hear me, mr. chairman? >> i hope we can get your volume up just a bit, but we can hear you. please proceed. >> okay. can you hear me now? >> yes. >> okay. thank you. thank you very much, chairman durbin and ranking member grassley, for inviting me to share a few words about regina rodriguez, president biden's nominee for the u.s. district
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court for the district of colorado. regina comes to the committee with broad support from my state. we've received a flood of letters on her behalf, all of them testify to her character, hard work, and commitment to justice and the rule of law. she learned all of it from her family who join us today. her mom's family knew injustice firsthand, as the chairman mentioned. during the second world war they were relocated from california to an interment site in wyoming, joining 10,000 people whose loyalty to america was questioned for no reason but their japanese ancestry. her father peter was a mexican-american who went from living in a railroad boxcar in the south side of chicago to earning a nomination for the nfl hall of fame. her mother linda became a teacher, an administrator in the denver public schools, my old district when i served as superintendent. education and hard work transformed her parents' lives
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and regina has always sought to live up to their example. she graduated, the ranking member might be interested to know, with honors from the university iowa, then returned home to earn a jd from the university of colorado law school. after starting in a private firm in denver, gina joined the u.s. attorney's office. the department of justice recognized her talent and she went to work for the attorney general on alternative dispute resolution, a new approach at the time, and to avoid lengthy trials through arbitration and mediation. gina helped to mainstream this approach for all u.s. attorneys, saving the government countless hours and taxpayer dollars. regina's leadership in washington earned her promotion back in denver where she rose to beam chief of the civil division in the u.s. attorney's office. today she is one of the most respected trial lawyers in colorado and has received award after award for her work.
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her commitment to the community has been just as impressive. she's a founding board member of colorado youth at risk, a nonprofit that helps kids stay on the right track. she served as one of colorado's higher education commissioners, and still serves on the board of denver's highest performing charter school. somehow she still finds time to mentor lawyers from underrepresented communities. i could go on and on, but the evidence is overwhelming. regina rodriguez is an exceptionally qualified nominee with a distinguished career and commitment to service. she's blazed trails in colorado law through the sheer force of her intellect, hard work, and character. she has my full and enthusiastic support and i urge the committee to approve her nomination. >> thank you, senator bennet. i believe senator duckworth is available remote. senator, can you hear us? >> i sure can. >> please proceed. >> thank you, mr. chairman and
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ranking member grassley. it's my honor to appear before this committee to introduce and offer my strong support to ms. candace jackson-akiwumi, president biden's nominee to be the next united states circuit judge of the seventh circuit. ms. jackson-akiwumi exemplifies president biden's fulfillment of his promise to nominate highly qualified individuals to the federal judiciary who reflect the incredible diversity of our great nation. as one would expect, ms. jackson-akiwumi possesses an impressive academic background, earning her jd from yale law school where she served as senior editor on the yale law journal. after graduation she quickly gained experience serving in the federal judiciary, first clerking for the northern district of illinois, and then for a fourth circuit judge, roger gregory.
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i was especially struck by her commitment to public service. she has dedicated the majority of her legal career to public service and spent a decade in the city of chicago, serving as a staff attorney in the federal defender program. as that public defender, ms. jackson-akiwumi gained immense litigation experience while advocating for those who are often the most vulnerable and underserved in our communities. she represented over 400 defendants, tried seven jury trials and argued five appeals before the seventh circuit. ms. jackson-akiwumi is currently a partner at the law firm of zuckerman spader. she demonstrated a strong commitment to public service, spending a significant portion of her time working on pro bono matters, involving adoption, civil rights, criminal law, and immigration. she won lawful permanent
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residency for a mother with her two children, advocated for better conditions for incarcerated clients, and represented an employment discrimination plaintiff in a successful eeoc mediation. beyond ms. jackson-akiwumi's accomplishments it is important to recognize the groundbreaking nature of her nomination and the urgency of moving swiftly to confirm her. if seated on the bench, she would be only the second black woman in history to serve on the seventh circuit and the only person of color serving on that court today. equally important, ms. jackson-akiwumi would strengthen the seventh circuit by bringing a broad diversity of experience with her, particularly her time serving as a public defender. mr. chairman, thank you again for allowing me to introduce ms. jackson-akiwumi and i strongly urge the committee to act favorably on her nomination. >> thank you, senator duckworth. next up is our friend and colleague from the state of new jersey, senator menendez. are you with us, senator?
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we'll come back to senator menendez in a minute. currently i believe senator hickenlooper of colorado is waiting. senator, can you hear us? >> yes, thank you, chairman durbin. can you hear me? >> please proceed. >> yes. thank you, chairman durbin and ranking member grassley, for letting me share a few words about regina rodriguez. i want to add a little bit to what michael bennet said so elegantly. regina rodriguez comes to this committee with broad, well-earned support in our state. 30 years of legal experience and accomplishment. she really has dedicated her career to the people of colorado and fighting for historically disadvantaged communities. it's not surprising she got the enthusiastic support of the colorado lawyers committee, the
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colorado bar association. these two organizations consist of attorneys dedicated to providing legal services to children, to the poor, using knowledge of the law to improve our society and our legal system. former united states attorneys appointed by presidents from both political parties note that regina's experience, knowledge, demeanor, and work ethic make her an ideal candidate. throughout her career she managed the coordination of hundreds if not thousands of cases and trials in multiple jurisdictions. given her experience representing both plaintiffs and defendants, rodriguez understands the importance of applying the law even handedly based always on the facts. as the latina first foundation put it, there is no person better qualified to serve on the court than regina rodriguez. i wholeheartedly agree.
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regina has my full support, i hope the committee will confirm her nomination and that the senate will act swiftly to confirm her. thank you, chairman durbin, ranking member grassley, and all the members of the committee for your consideration of this outstanding available. >> i am available. >> oh, good. thanks. please proceed, bob. >> thank you, mr. chairman, and to ranking member grassley and distinguished members of the committee. it's my great privilege to join my colleague from new jersey, distinguished member of the judiciary committee in recommending two highly qualified nominees to the united states district court for the district of new jersey. these nominees represent the best of new jersey. both reflect our state's proud and unique rich diversity. and both demonstrate a steadfast commitment to equal justice under the law. he's served the people of newark
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in an array of capacities from 2010 to 2014 he was the business administrator for the city of new york, the highest-appointed administrator in new jersey's largest city. he also led the city's department of law and served as chief judge of the newark municipal court. he commands enormous respect in our legal community from serving on the supreme court of new jersey's committee on character and fitness to serving as chairman for volunteer lawyers for justice. he personifies the meaning of public service. acknowledge and experience, even temperament and exacting judgment make him a superb candidate to serve on the federal bench. also honored to join and introducing who serves as the u.s. magistrate judge for the u.s. district court for the district of new jersey. prior to his appointment, he was a partner of the firm of reicher dansic.
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white collar criminal defense. previously he served our country as a military prosecutor with the u.s. army judge advocate general corps where he achieved the rank of captain. beyond his impeccable credentials, if confirmed he would also make history as the first muslim-american federal judge and the first asian to serve on the federal bench in new jersey. he has demonstrated both integrity and intellect throughout his distinguished career and public service. and i believe he will bring to this position the wisdom, experience, and demeanor that the district court of new jersey deserves. new jersey's district court currently faces six vacancies, all of which have been declared judicial emergencies by the judicial conference of the
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united states. so i strongly urge the committee's unanimous support and hope that we can have a speedy confirmation process on these qualified nominees. thank you, mr. chairman, for bringing up these nominees as quickly as you have. and we look forward to working with you in the days ahead. >> thank you, senator menendez. would our first two nominees please stand to be sworn?
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equipment time-out. ready? do you swear or affirm the testimony you're about to give before the committee will be the truth, the whole truth, and nothing but the truth so help you god? both witnesses have answered in the affirmative. and we will start with judge jackson. you may make an opening statement at this time. >> good morning, mr. chairman. thank you very much. it is an honor to appear before you all this morning. and i would like to start by expressing my sincerest gratitude to you, mr. chairman, for scheduling this hearing and for introducing me. and i would also like to extend my thanks to ranking member grassley and to all of the members of the committee for participating in this hearing today. i have had the great privilege of having been invited to come
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before this committee twice before for confirmation. so i know that already taken up a great deal of your collective time. i am both humbled and very grateful to be here once again. i'm also truly thankful to president biden for giving me the honor of this nomination to the circuit court. mr. chairman, i don't have opening remarks, but i would like to introduce you to my family members, some of whom have traveled great distances to be here today. i'm going to refrain from giving individual tributes, but i want each of them to know that their love and encouragement has meant so much to me throughout the years, and there is no question that i would not be who i am or where i am today without their support. i would like to start with my parents johnny and elory brown who left their permanent home in miami, florida, last week for
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the first time since the start of the pandemic, and traveled here by way of west virginia where they partially reside. my parents in law, gardner and pamela jackson are lifelong boston and cape cod residents. they too made the effort to travel here via i-95 to be here with me today. also here are my terrific brother-in-law and sister-in-law william and dana jackson who live in maryland. and if william looks familiar, it is because his identical twin brother is my husband, dr. patrick jackson, who is also here. he did not have to travel very far. he's actually been with me all along during this incredible journey by my side for 25 years come this october. finally also here today is the younger of our two daughters leila, who is a junior in high
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school. she is in the most demanding season of this extraordinarily challenging academic year. so it is a special treat for me that she is with us today. as a side note, our older daughter talia would've made the effort, but she is a freshman in college, and after spending three-quarters of this academic year taking classes from her bedroom, she finally got the chance to live on campus just three weeks ago. and i didn't have the heart to make her come back again. mr. chairman, there are so many other members of my family who could not be here with us. at this time they are in wisconsin and florida, in utah and colorado and massachusetts. and some are dearly departed. i am truly grateful for all of them and for all of the wonderful friends around the country who are watching these proceedings and cheering me on through this process. so, with that, mr. chairman, let me once again reiterate my
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thanks to you for inviting me here this morning. i am enormously grateful. and i look forward to answering the members' questions. >> thank you, judge jackson. and ms. jackson, please proceed with your opening remarks. >> good morning. i am deeply grateful to the senators from my adopted home state of illinois, senators durbin and duckworth for their warm introductions of me. i am grateful to chairman durbin and ranking member grassley for convening the hearing today, and all of the members here for considering my nomination. i also am grateful to the president for the honor of this nomination. my immediate family is here today supporting me. i struggled for words to succinctly capture how truly wonderful they are and what a gift they are to me.
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my parents have traveled from my hometown of norfolk, virginia to be here. they are just over my right shoulder, my father, the honorable raymond a. jackson, united states district court judge for the eastern district of virginia. seated next to him my mother, the honorable gwendala jones jackson, a retired judge for the commonwealth of virginia. my siblings are here today as well. my sister is the reverend arlette estelle jackson. she did not travel far. she's a longtime robert of the district of columbia. my brother is here, raymond daniel jackson, attorney at law. he's traveled from tampa, florida, to support me today. and last but not least my husband, eric akiwumi.
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he remains the best friend that i have ever had. in addition to the many other amazing roles he plays in our partnership. my husband and i have not invited today our very active 15-month-old daughter noelle. we will all be much more productive today without her here. also missing is noelle's big brother, my 14-year-old step son isaiah who lives in tampa, florida. he will be watching this hearing later today as an excellent civics lesson in the advise and consent role of the united states senate. there are obviously many other family members and loved ones and friends who could not be here today because of the covid restrictions here in the building. but i'm deeply grateful to them all. my family is the best part of
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me. and i would not be here today without their love and support. thank you again. >> thank you very much. before i turn to questions, i want to lay out a few of the standards we are going to follow. at the request of senator grassley, he has asked that for these two circuit court nominees that we have seven minutes to ask questions. i asked senator grassley before this hearing how he enforced the time when you announce these things, and he came up with the grassley rule. i'm sure i won't state it in its entirely, but basically said if you're in the midst of a question as your time runs out, finish the question but try to keep it short and keep the answer short. is that about right? okay. my ruling has been blessed by senator grassley. so we have bipartisan start here. the second panel on district court nominees will go back to the five-minute standard.
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so let me start my questioning and the seven-minute rule. you both have an extraordinary background in having served in the federal public defender's office representing indigents and people who often struggle in our system of justice. i think we know we're engaged in a national conversation now about justice, long overdue. and it's raised questions about law enforcement, questions about sentencing, questions about incarceration. it really calls to question the agenda of this committee, the senate judiciary committee on the criminal justice side. you've got a special perspective that you bring to this that many nominees don't in light of what you have done with your life. i don't want you to address any case or any specific situation. but i'd like for you observations because you spent
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such a big part of your lives, goes back to what langston hughes once said, spent such a big part of your life for those who would say life for me ain't been no crystal stair. folks who are black, brown, poor defendants who are seeking representation in a system that seems to them just overwhelming and fundamentally unfair in some cases. what would be your general thoughts, without any specific case in mind, about justice in america today and how you've seen it and how it's changed in your time? judge jackson? >> thank you, senator. i had the privilege of serving as a federal public defender, assistant federal public defender in washington d.c. i think it was some 16 years ago. and as part of that experience,
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i, as you say, represented people, i represented them in the appellate division of my office. so all of my clients were convicted. and i think that the insights that one gains from that kind of professional experience really can be very helpful in future endeavors, especially if you go into the judicial service, as i have. and i can give you a concrete example. when i worked with my clients as a defender, my job was to talk with them and to try to get their help to identify errors, things that had gone wrong in their trial proceedings so that i could raise them on appeal. and one of the things that i noticed that i was really struck by was how little they could help me with that project.
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most of my clients didn't really understand what had happened to them. they had just been through the most consequential proceeding in their lives. and no one really explained to them what they were supposed to expect. so they didn't know where things might've gone wrong. and i remember that experience from all those years ago when i became a trial judge. one of the things that i do now is i take extra care to communicate with the defendants who come before me in the courtroom. i speak to them directly and not just to their lawyers. i use their names. i explain every stage of the proceeding, because i want them to know what's going on. and when i have to sentence someone, and i've sentenced more than a hundred people to date. i always tell them, i explain to them, this is why your behavior was so harmful to society that
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congress thought that it had to be made a crime. and i say, this is why i as the judge believe that you have to serve these consequences for your decision to engage in criminal behavior. and i think that's really important for our entire justice system, because it's only if people understand what they've done, why it's wrong, and what will happen to them if they do it again, that they can really start to rehabilitate. so, there is a direct line from my defender service to what i do on the bench, and i think it's beneficial. >> thank you. ms. jackson-akiwumi, i noted in my introduction that you made the extraordinary career move from private practice to the federal defender's program for ten years, i believe, that you served there. so i'd like you to consider the same question i just asked judge jackson. and in the process perhaps you
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would comment on demeanor and temperament of judges. >> certainly, senator. thank you for the question. i can think of two observations from my time serving as a federal public defender that i think will bode well for me in serving the public as a judge if confirmed. first is the importance of listening and the importance of being heard. it's actually something i learned well before i went to law school from my mother when she served as a judge. she often talked about the importance of letting people make sure they've been heard by the court, because it's easier for people to accept even adverse rulings by the court when they at least know they've been heard. that's built into our system of due process, which involves an opportunity to be heard. a cousin to that is listening. i gained an extraordinary amount
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of experience listening as a federal public defender, and listening to the views of opposing counsel, prosecutors, about their views of the case to find out where we might negotiate, where we might find common ground, listening to the stories of my clients to understand why and how they came to be standing before the court and what their fears and questions were, and listening very carefully to the questions that piercing trial judges and appellate judges were asking me about the case. and, so, being a federal public defender sharpened my listening skills, and i know that even though the job of advocate and judge are completely different, one skill that should translate well for me is that of listening, because circuit judges, above all, must listen to the parties before they even attempt to reach a reason decision. the other observation from my time in the criminal justice system as an advocate is the importance of setting aside
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personal convictions, personal opinions. at the federal defender program, we represented whoever walked in the door, charged with whatever crime so long as they needed an attorney, so long as they were poor and working-class and could not afford an attorney, that's what the constitution and the case law dictated. with each and every case i had to put aside any personal opinions i had about my client and any personal opinions i had about what they were accused of or the behavior and represent them zealous ly in the courts. that is one similarity like a federal public defender, a judge has to set aside their personal opinions and their personal convictions in decisionmaking. thank you. >> thank you. senator grassley? >> i'm going to start with jackson-akiwumi. during the most recent seventh
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circuit hearing, we heard about the supposed link between indiana gun shows and street violence in chicago. for four years, you represented a man who during one year had bought nine firearms in indiana gun stores and proceeded to sell them without a license to people in chicago, including at least one felon. he was investigated when the police in chicago recovered seven firearms that he had bought in indiana. you said in the pretrial motion that, quote, this case is not about gun violence or gangs in chicago, end quote. do you stand by the view that a case about illegal firearms trafficked from indiana to chicago is not about guns, violence, or gangs in chicago? >> senator, i lived in chicago
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for many, many years. my formative years as an attorney. and just as a private citizen. so, i am all too aware of the crisis regarding guns that chicago faces and so many other communities face. it affects me personally as a citizen. i stand by my commitment and the oath that i took as an attorney, which is to represent zealously everyone who requires representation in our federal courts. and that is without regard to the crimes they are charged with. that's how our system works best. if you look at the sixth amendment and how the supreme court has interpreted the sixth amendment in gideon v. waynewright, it talks about the right to counsel. and there's no limitation on that based on what someone is charged with. >> i think i'll accept that
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answer. going on, on the same case, do you agree that vigorously prosecuting unlicensed firearm traffickers is the best way to stop pipeline of illegal guns into the city of chicago? that should be an easy one to question. >> well, senator, thank you for the question. i think there are a number of tools in the tool book for combating an issue like guns and gun violence. prosecution is one tool i also know that this body and other legislative bodies at every level, state, federal, and local, have to consider these issues and have been working on these issues vigorously. so there are just a number of tools out there. >> thank you. last question on that case -- well, no, it's not really on that case. just, give me a very rough idea of how many firearm traffickers you've defended in court, just a rough number. >> senator, i appreciate the question. it would actually be hard to say. i've always described my career over a decade like this.
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about a third of my cases involved fraud. there are so many frauds in the united states code book, it would blow your mind. a third of my cases involved drugs and firearms, whether it was possession of firearms, trafficking of firearms. and then about a third of my cases involved a big mix of everything else, from bank robbery to immigration offenses, sex offenses. so it would be difficult to give you an exact number. >> i accept that answer. >> my second point. in your sentencing memoranda, you have repeatedly highlighted the sentencing differences that exist between black defendants and white defendants charged with the same crime. in fact, you've gone so far as to argue that your black clients should not receive a sentence higher than any applicable mandatory minimums, quote, to avoid further entrenching proving racial disparities, end of quote. as a sitting senator, i agree
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with your policy points about racial disparities in the laws we write. but, i have concern about the courts engaging in those policy arguments. when you made these arguments in court, did you expect district judges to let broad social policy concerns govern how they applied the law in the case before them? and maybe i can give you a short answer. you would say they should apply the law, not the policy, right? >> well, senator, yes, because that's actually the law that congress passed. congress passed the sentencing statute 18 usc 3553 a. and one of those factors congress has said that judges should consider is disparities, any disparities that might result from the sentence the judge imposed. so in those cases like the one that you provided an example of, i was asking the court to apply that statutory sentencing
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factor. >> okay. another question. if district judges should let policies concern governing how they apply the law, would it be right for them to give white defendants longer sentences than the facts require in order to correct racial disparities? >> senator, every sentencing judge that i have ever appeared before has been guided by the same statute i've referred you too, 3553 a which sets forth at least seven sentencing factors, including disparities. so everyone in this system, both the judge and the attorneys are operating within that framework that congress provided. and if confirmed, that is the exact framework that i would be looking to in order to review any sentencing decisions by judges. >> i accept that. >> okay. >> as an appellate judge, would you have the ability to take social facts such as racial
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disparities into consideration when reviewing a sentence? >> senator, what guides for circuit judges and what would guide for me if confirmed is the law and applying the law to the facts of any given case. that is purely what guides. >> i think i am going to take my last -- i'm going to send a question for answer in writing so i can ask judge jackson only one question. you've worked on sentencing reform, and as someone who has worked hard on the first step and other issues of criminal justice reform, i really appreciate your work on sentencing reform. now when it comes to more sentencing reform, people like you and judge bill pryor both agree sentencing needs to be reformed. can you explain how your views differ from judge pryor's or
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specifically why do you trust judges with more discretion when it comes to sentencing than pryor does? >> thank you for that question, senator. and first let me just say as a former member of the sentencing commission, thank you for your work. i know that the chairman that you, that senator lee, and others on this committee were very, very active in making changes to the sentencing system, partly because the commission did research and pointed out to you some of the disparities in our laws and congress has made changes that have been very beneficial to the system. i did have the privilege of serving with judge pryor. we were on the commission together. and he and i both did talk quite a bit about in our public statements and in the meetings
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about the need for reform and how do we change the system after the supreme court's decisionmaking -- the guidelines advisory and not binding any more on judges. i would say my primary answer is because, in my experience, most judges really don't like to be outliers when they're sentencing. most judges really do want to do something that is consistent not only with the law but also with what similarly situated other defendants are getting in their district. so, in my view, instead of more, you know, mandatory minimums or prescriptions that actually bind judicial discretion, if we could just give judges more information that turning to a repository of information like
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the sentencing commission that captures every sentence that federal judges give, and then giving judges access to that information is a way of ensuring that judges are handing out fair sentences that are similarly situated to other defendants. i think judge pryor, he said that we need to do a little bit more to constrain judicial discretion. but my hope and faith is that judges will constrain themselves to an extent when they get the information that they need. >> senator feinstein? >> thanks very much, mr. chairman. according to the center for american progress, only 1% of sitting circuit judges have spent the majority of their career as public defenders or within a legal aid setting. in light of this fact, i just want you to know that i'm very
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pleased that we're considering two nominees today with extensive service as public defenders. so i want to ask you this question. there are some critics who claim wrongly, in my book, that a public defender can't function as an impartial judge. how do you respond to this question? the judge may go first. >> thank you, senator. well, i have been a judge for eight years. and as i mentioned at the outset, i think that actually having defender experience can help not only the judge, him or herself in considering the facts and circumstances in the case, but also help the system overall in terms of their interactions with defendants and the way in which they proceed in the
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courtroom. i would think that there would be no difference between defender experience and prosecutorial experience from the standpoint of whether or not someone can do what the law requires, and many, many prosecutors have been appointed as judges. when you become a judge, you take an oath to look only at the law in deciding your cases, that you set aside your personal views about the circumstances, the defendants or anything else, and you apply the law. so, i guess i would just say that i wouldn't see any distinction between people with prosecutorial backgrounds and defense backgrounds in their ability to stay true to their oath. >> thank you. judge jackson, also, i was impressed to learn that according to the alliance for
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justice, you have a reversal rate of less than 2% of your more than 550 decisions since assuming the role of u.s. district judge for the district of columbia. to what do you credit that 98% affirmative rate on appeal? >> thank you, senator. i think it might be my methodology in the way that i approach cases. what i'll say about that is that when i get a case, if you look at my 550 cases, you'll see that there is a consistency in the way in which i'm analyzing the issues. i am applying a particular method as the supreme court has directed, which is that i'm looking only at the arguments that the parties have made at the facts in the record of the
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case, and at the law as i understand it. and i'm sticking very closely to those three inputs. and i'm also applying the same amount of analytical rigor to my analysis of those inputs. and, as a result, i think i'm not making many errors, although the d.c. circuit tells me that i do occasionally. but i'm doing that because i want to see every case through the same analytical lens. and it doesn't make a difference whether or not the argument is coming from a deaf inmate or the president of the united states. i'm not injecting my personal views. i'm looking at those three things. and i think by being very methodical, i've been able to produce opinions that the circuit can see my reasoning, and they understand that i am even-handedly applying the law in every case. >> thank you. i'd like to ask the other
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candidate here. since the supreme court held in usv booker that federal sentencing guidelines are not binding on judges at sentencing. we've seen a gradual return to discrepancies in the way different judges at different courts sentence those before them. how do we ensure fairness and consistency in sentencing, while maintaining judicial discretion consistent with the supreme court's ruling in booker? >> senator feinstein, thank you for what is really an incredibly difficult question that you've rightly recognized. that is in fact why the guidelines were invented or created to avoid disparities. and then that's why they were moved from mandatory to advisory
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to remove disparities and give judges more discretion. sitting here today, what i know is that it would not be my role as a circuit judge if confirmed to opine on those issues and sort through those issues in the way that, for example, the sentencing commission would, and this body would. but my role would be to review cases very carefully, review the record scrupulously to see if sentencing judges at least adhered to the sentencing law and took into account fairly all of the factors that they were supposed to. if i may address your earlier question about public defenders being able to be fair and neutral judges, i'll note that in the northern district of illinois, this body has
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confirmed a few district court judges at the district court level with public defender experience. those judges have been serving a long time, and they are all doing so diligently, fairly, neutrally, and partially. and i'll also note that my entire career, i've had to work within the framework of the rule of law. every argument i ever made to a court was grounded in the constitution or a statute. you don't get anywhere with our fine judges of the northern district of illinois in the seventh circuit if you make up arguments that don't have a basis in law. and i've even had to advise clients when the law is not on their side, when they had an argument that they hoped we might be able to make, and i did the research or i knew immediately that there was no law to support that argument. that happened many times. so, i am confident that i can serve, if confirmed, as a neutral, fair, impartial judge who works within the rule of law. i've had to do it my entire career.
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>> thank you very much. thanks, mr. chairman. >> senator cornyn. >> thank you, mr. chairman. let me say to both of the nominees, i very much appreciate the fact that both of you have extensive trial court experience as practitioners and as a judge, in the case of ms. jackson, i think that's a very important qualification for somebody who's going to sit in judgment on an appellate court that they actually know how the trial courts operate and understand the appropriate standards of review on appeal. both of you have a very impressive background. i agree with my colleagues that it's important to have, that the public have confidence in the judiciary. and i think part of that confidence is knowing that people like them can serve on
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the bench and that we applaud that diversity. i've noticed a difference in the way those issues have been treated in the past when my democratic colleagues blocked, for example, janice rogers brown, an african-american on the d.c. circuit of miguel estrada. thankfully we've had some great judges in the western district of, northern district of texas. people like ada brown and san antonio. and then asian-american circuit court judge jim ho who was confirmed for the fifth circuit. but since our democratic colleagues seem to be placing so much emphasis on race. i just want to ask this question. none of us can choose our parents. and even if we could choose our parents, i suspect that most of them would choose the very parents we have.
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but what role does race play, judge jackson, in the kind of judge that you have been, and the kind of judge you will be? >> thank you, senator. i don't think that race plays a role in the kind of judge that i have been and that i would be in the way that you ask that question. as i mentioned to senator feinstein, i'm doing a certain thing when i get my cases. i'm looking at the arguments, the facts, and the law. i am methodically and intentionally setting aside personal views, any other inappropriate considerations. and i would think that race would be the kind of thing that would be inappropriate to inject in my evaluation of a case.
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i would say that my different professional background than many of the court of appeals judges including my district court background, which will be different if i'm confirmed than many of my colleagues, would bring value. it's sort of like the oliver wendell holmes quote that the life of the law is not logic, it's experience. and so i've experienced life in perhaps a different way than some of my colleagues because of who i am. and that might be valuable, i hope it would be valuable if i was confirmed to the court, the circuit court. >> thank you very much. ms. jackson, the same question for you, please. >> thank you, senator. i agree with judge jackson that i don't believe race will play a role in the type of judge that i would be if confirmed. i do believe that demographic diversity of all types, even beyond race, plays an important role in increasing public
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confidence in our courts and increases the public's ability to accept the legitimacy of court decisions. it's very akin to the way in which we guarantee a jury of one's peers and the idea that you walk into the courtroom and 12 people from all kinds of different backgrounds might decide your case. i also think that demographic diversity of all types helps us achieve a role modeling result for young students, law students, young lawyers. it's important for anyone aspiring to public service to know that that path is open to all. >> well, thank you very much for that answer. for what it's worth, i agree with you, it's well said. judge jackson, i just have a few questions for you. you know, in this town, there's a lot of people expressing themselves on a variety of
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topics. and i know you're not responsible for what these third parties are saying, but i just want to ask you first of all, are you familiar with an organization called demand justice? >> senator, i know of demand justice, yes. >> and do you know that they are spending money to promote candidates of your nomination to this circuit court? >> if you mean by advertising or placements in various publications, i'm aware of that. >> okay. and on their website, they say they advocate adding additional seats to the supreme court. do you think congress should add additional seats to the supreme court? >> senator, as a sitting judge, i am bound by the supreme court, and i don't think it's appropriate for me to comment on
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the structure or the size of the court any more than it would be for me to comment on the court's rulings. regardless of the size, i would follow the precedence of the supreme court. >> demand justice claims that the supreme court is broken. do you think the supreme court is broken? >> senator, i've never said anything about the supreme court being broken, and, again, you know, i am not able to comment on the structure, the size, the functioning even of the supreme court. >> and, finally, demand justice says that the supreme court has been captured by partisan republican interests on their website. judge jackson, ms. jackson, do you agree with that or disagree, or do you have no opinion?
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judge jackson first? >> senator, i, again, am not able to make any comment about whether or not the supreme court is influenced in the way that demand justice apparently, as you say, believes that it is. so i don't have a comment. >> thank you. ms. jackson? >> yes, senator. i am not aware of that quote by demand justice or anything they have said, quite frankly. but, likewise, the code of conduct for united states judges does apply to nominees as well. and so, like judge jackson, it would not be appropriate for me to comment on any type of views about the supreme court, the supreme court's rules would be binding on me as a circuit judge. >> thank you very much. good luck to both of you. >> thanks, senator cornyn. and senator whitehouse? >> thanks, and welcome to you both to the committee.
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i'm sorry we're so far apart and spread out here. that's the nature of the pandemic. usually it's a setting in which we can see one another a little bit better. i wanted to ask you both questions about fact-finding at the appellate level. we had an interesting hearing in my court's subcommittee yesterday on this very question. it was my training in law school, my training when mentored by experienced appellate advocates, and my mentoring when i was trying to bring along other appellate advocates to stay the hell away from the facts, because, really, the only two ways that an
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appellate court gets to look at facts is either to be asked to overturn a factual determination by the court below, which is heavily defended by the clearly erroneous standard, therefore, not usually a great avenue for appellate advocacy. or facts that are really not in dispute, facts of which judicial notice can be taken, that christmas fell on a wednesday in a particular year or whatever. what are your thoughts about the role of appellate courts engaging in fact-finding that is outside of the record that's presented to the court either by congress as they put together the statute that is the subject of the challenge, or by the
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court below as it assembled the record to support its decision? what as an appellate judge, do you get to do at that point regarding facts? >> well, thank you, senator, for that question. let me just say that my training was similar to yours in terms of the judges for whom i clerked at the appellate level and the way in which at least i was taught to think about the role of the appellate court in terms of the facts. i don't, as i sit here, know what the practice is in the district of columbia. and i will say that we have4■bm little bit of an unusual docket insofar as so many of our cases come through the administrative process where even at the district court level, we're not looking at trials very much, and we're not developing a factual record very much.
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there is already an administrative record that travels with the case. so, i think, you know -- >> but let's say whether it's the congressional whether or whether it's the administrative agency record or whether it's the trial court record, those are three sources that an appellate court can draw from to determine what the facts are in the case and to support or overrule the finding of the district court. what happens when a court goes outside those records and starts finding facts on its own sua sponte? >> i frankly don't know. i would have to talk to my colleagues and look at the federal rules of appellate procedure and the local rules of our court. i'm not sure the circumstance in which the appellate court would feel at liberty to do that sort
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of thing. >> okay. >> yes, senator. broadly speaking, senator whitehouse, federal courts are courts of limited power. and one duty of circuit court judges, and i remember this very clearly from my time clerking on the fourth circuit court of appeals is to be quite restrained. federal judges are supposed to be restrained and decide only the issues that appear before them, and no other issues. it extends in the way you described to fact-finding. so it would be, from my experience, both clerking and then also litigating before the seventh circuit court of appeals quite rare for appellate judges to go outside the record. and, sitting here today, i can't tell you a circumstance where i've seen it in my own practice. so i can't tell you what exceptions there might be to make that rare thing happen. >> the case that obviously comes
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to mind that has enormous impact on those of us in the political line of work is citizens united, which allowed unlimited amounts of money into politics on the predicate, on the premise that all of that spending was going to be transparent, and therefore would not contribute to corruption or the appearance of corruption of the political system. and, of course, it's indisputable that it has been anything but transparent. we're well through a billion dollars in anonymous political funding. so, that fact that justice kennedy stood his decision on is simply provably false, which then raises the question, now what do you do about that decision, if that fact was the hinge upon which the decision swung and the fact is false, where do you go?
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>> well, senator, for lower court judges, we can't go anywhere really. >> yeah. even when it's fact-finding. you're supposed to agree with the legal determinations of the supreme court and to follow them, but it's an interesting question whether a false factual determination by the supreme court merits similar deference or the deference that separation of powers puts the legislative and executive branch is under, with respect to a supreme court decision. it's something to ponder, because it has not been the custom of the court to engage in this free-range fact-finding, and particularly false free-range fact-finding. but some of the political decisions of the court have stood on false free-range fact-finding. and it raises this whole new interesting set of questions about what do you do when the supreme court has made a factual determination that is not
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supported by any record that is provably false, that is essential to the logic of their decision. is it really true that all of government is powerless to address that error? so, i have used my time. something for you to ponder as you move towards your seats on our circuit courts of appeal, which i will strongly support. thank you. >> thank you, senator whitehouse. senator lee. >> thanks to both of you for being here today and for your willingness to serve in our judiciary if confirmed. i've got a number of questions. we'll start with you, ms. akiwumi-jackson. it's been widely reported that president biden met with you in anticipation of your nomination to the u.s. court of appeals for the seventh circuit. and congratulations again on that nomination. during that meeting with him, did you -- were you asked for commitments regarding, or did
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you discuss abortion or roe versus wade, second amendment or d.c. versus heller to de-fund the police, illegal immigration, any of those issues? >> none of the above, senator. >> okay. judge jackson, what about you? >> no, sir. >> judge jackson, in your notes for a presentation that you gave at columbia law school in 2019, i believe, you said that, quote, disparities in judicial outcomes can also occur when judges consider legitimate and relevant factors, closed quote. talk to me a little bit about what that meant. >> thank you, senator. that presentation was a symposium that i've been invited to, to comment on an article that was being presented. and the article itself was about judicial bias. and i was critiquing it and
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making arguments in response to it based on my experience. and i believe that the -- i would have to see exactly the context of the quote that you read. but what i was suggesting was the idea that because the factors in the law concerning something like sentencing are open-ended, that congress says you have to sentence defendants to terms of imprisonment that are sufficient but not greater than necessary to promote the purposes of punishment. and it lists the purposes of punishment, and any judge who looks at that has basically those broad parameters within which to think about how they're going to sentence. but the judge then will have to decide whether they're thinking
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about deterrence or retribution or various purposes in order to determine how they're going to sentence. and my idea was that a similarly situated judge looking at the exact same set of facts applying those factors in 3553 a could reach a different result so that you're going to have sort of inherent in the nature of judicial exercise of discretion in the world of something like sentencing disparity unbeknownst. >> that's helpful. now, i believe you've been a judge now for about eight years, if i've not mistaken. in your experience as a judge and prior to that your experience as a lawyer, would you agree or disagree with someone who said that most racial disparities in criminal convictions and sentencings result from an unconscious
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racial bias of judges, juries, and other decisionmakers, would you agree or disagree with that statement? >> well, senator, let me just say that as a judge now, it's very important for me not to make, you know, personal commitments about things like the question that you asked. that my personal views about anything don't impact my rulings. i am aware of social science research. there is a professor at harvard, professor benagi who has done inpolicit bias work. and there are studies from the commission when i was back at the commission in the policymaking role that talked about and indicated that all of us human beings can have biases that we are unconsciously
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operating on and that we have to think about that when we are making decisions, and especially policymakers in the criminal justice system. i'm aware of those studies, but i'm not a social scientist. >> i understand that. i'm just asking for your overall sense as a judge and certainly not for a commitment or social science. in 2019, i think in connection with notes prepared in connection with the same speech, you noted that, quote, observed inconsistencies or largely attributable to factors other than group-based bias by judicial decisionmakers. does that ring a bell? >> yes. in the context of the critique that i was making because the article had indicated that they saw -- they showed research that there were these demographic disparities, and the article said they were attributable to bias. >> right. >> and so i was trying to give another perspective. >> right. so what are some of the leading factors that is other than
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unconscious bias that you see having an impact there that account for some of the disparities we see in convictions and in sentencing? >> well, one of the things that i was aware of in my time on the sentencing commission and is something that you all have worked on, were the differences in statutory penalties for things like crack and powder, that many, many -- >> vast disparities between what you get sentenced for with crack versus -- >> correct. that it was having a demographic effect because the research and statistics showed that overwhelming number of defendants who were convicted of crimes involving crack were african-american. >> thank you. that is very helpful. i do want to make sure i get to one other thing before i run out of time. you've remarked that presidents are not kings. that's a comment that i've made a number of times as well and tend to agree with it.
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whenever you're sitting in any court from time to time you have to review executive actions, it seems like executive actions have more of a likelihood coming up at the u.s. court of appeals for the d.c. circuit than many other places. do you think it would be appropriate under the guise of prosecutorial discretion for any president of the united states to tell an agency not to enforce a particular law? >> senator, i am unfortunately not going to be able to engage in a hypothetical discussion precisely because those kinds of matters might come before me, and i don't want to prejudge any case that might involve those facts. i do understand the implications of the law related to it. but i can't tell you whether it would be appropriate or not. >> i'd love to delve more into this. i see my time's expired. but thank you. mr. chairman? >> thank you senator lee. senator klobuchar? >> thank you very much, mr. chairman, ranking member grassley, and congratulations to
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both of you for your nominations and for your incredible work. judge jackson, the last time that you were here in december 2012, then representative paul ryan introduced you. do you remember that? >> i introduced you, you remember that? >> i do. >> saying our politics may differ, but my praise for her sledge, character, integrity is unequivocal. on 2013 you were confirmed and have sense presided over many jury trials, bench trials and written 562 opinions. what have you learned during your time as a district court judge that will inform your service as a judge on the d.c. circuit? >> thank you, senator. i have been very fortunate to work in a wonderful district with terrific colleagues and
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what i've learned is a lot about agency practice as has been previously mentioned. i did not do agency work in private practice or in my role as a federal public defender. and so i've learned a lot about how our government works in talking with my colleagues and i'm looking forward to, if i'm confirmed, being in constant communication with other judges in looking at some of these very, very complicated issues concerning our government and its operation. i've learned the importance of having a collegial relationship with your colleagues on the bench and i look forward to continuing that in my role as a circuit judge, if i'm confirmed. >> very good. over the course of your service as a judge, you've ruled both
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for and against the government, including in center for biological diversity, that case where you -- where you rejected a challenge about the plan to build a wall along the southern border. how do you ensure that you impartially review the facts in law when approaching a case and how will you apply those principles as a circuit court judge? >> senator, i try to stick to the same methodology in my rulings. i try to focus -- i do focus on the arguments, the facts and the law, the binding precedence of the supreme court and the circuit. and i very methodically work through an analysis of those issues, of those inputs in every case and that helps me to not
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pay attention to who is involved, whether it's a government that is being run by one administration versus the other. i'm focused on the arguments that are being made and it's funny because my clerk sometimes, they say, your opinions are all the same. elementally, they all look the same. and i say, yes, exactly. that's the point. that's what i'm trying to do to make sure that i'm treating everybody equally and i'm not paying attention to who is in the administration when i'm ruling on a case. >> very good. thank you very much for that answer. ms. jackson akiwumi, congratulations to you. you spent many years working as an advocate for various clients in both criminal and civil cases with a breadth of experience. if you're confirmed to serve on the seventh circuit, which i very much hope you will be, you
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will have to impartially apply the law. can you say -- you talked a little bit about your experience. could you talk about how you view the role of a judge and how it differs from that of an advocate and do you have any resignations setting aside your past advocacy when analyzing a case. >> thank you, senator klobuchar. as you indicated, i've had a variety of different roles throughout my career, civil litigators, large lawmakers, law clerk to two federal judges. in each of those roles, i've had to get up to speed in a variety of new areas of law and represent different types of clients, corporations, non-profit organizations, individuals. i have enjoyed the challenge and the variety and that's what i fully expect to encounter on the circuit court if confirmed. so i believe that will be a transition that i'm up to and i
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also am fully confident that i can apply the law neutrally and fairly as a circuit judge. as i indicated in one of my earlier answers, being an advocate requires you to work within the framework of existing law. you can't go off on your own. and so i'm prepared to work within the existing framework of seventh circuit precedent, supreme court precedent in reaching reasoned decisions. and finally, senator, yes, i'm aware that the role of advocate and judge are so very different. as an advocate your positions are essentially given to you because you must create -- you're coming up with the best arguments for your client, the best positions within the framework of existing law to advocate what's best for your client. as a judge you don't come from that perspective at all. you approach each case open mindedly with an open mind and you listen to the arguments of
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both parties without a thumb on the scale. you do the research. i'm familiar with the fourth circuit, you talk with your colleagues, and then you work through the law to get to a reasoned result. it's not dictated by a position that you started with. >> very good. i think that's a good description as well when you look at someone who served as a public defender and people may, of course, not agree with some of the things that -- clients that you may have represented or with crimes that were committed. but you have a job to represent them under the law. and i think it's -- that confusion of those issues that have sometimes led the senate to not confirm some people. and i just see it as having been in the role of the prosecutors before, done a little bit on the public defender side, more pro bono. just seeing that we have to
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differentiate that or we'll never have anyone in these jobs that has been an advocate for clients on the criminal defense side. and i guess i would end with that area. judge jackson, you spent two years as an assistant special counsel on the u.s. sentencing commission. how has that experience informed your approach as a district court judge for sentencing principles and how will that inform your your work as a circuit court judge? >> thank you, senator. one thing that the assistant special counsel did was to work on the actual drafting of the guidelines. and so even apart from the substance, just the meticulous work that was necessary to draft the guidelines has been helpful in my drafting opinion. and with respect to the
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substance, understanding sentencing, understanding sentencing policy and practice has been useful for me as a trial judge because, as i said, i have sentenced more than 100 people and you use the guidelines manual as the supreme court directs in order to do that and so i came to the job with a sense of what sentencing was about. and i think that for appeals, my experience in actually engaging in sentencings and understanding trial procedures from the trial court perspective would be very helpful because the court of appeals reviews trial court proceedings and sentencings in criminal cases and i think that that perspective should be valuable if i were confirmed. >> thank you very much. thank you to both of you. >> thanks, senator klobuchar.
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senator cotton. >> congratulations to you both on your nomination. judge brown jackson or judge jackson? >> judge jackson. >> in your career before you were a judge, have you ever represented a terrorist at guantanamo bay? >> about 16 years ago when i was a federal public defender. >> was that case assigned to you as a federal public defender. >> it was. >> who was the client that you had? >> senator, i don't remember the name. >> can we get that for the record, please. >> sure. >> thank you. >> ms. jackson akiwumi, in your legal career, have you ever represented a terrorist at guantanamo bay? >> no, senator. >> thank you. i want to speak about race discrimination and the constitution. does the constitution allow the government to treat americans differently because of their race? >> no, senator. >> thank you.
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i'm glad that we agree on that. judge jackson? >> no, senator. >> thank you. let's turn to religious liberty if we can. the first amendment protects the freedom of religion. this also means the government can't institute policies that treat religion organizations such as churches worse than they treat secular organizations, such as restaurants, clubs and casinos. is that right, ms. jackson akiwumi? >> senator, the first amendment protects religious liberty, religious freedom, exercise of religion and those -- all of those issues are being actively litigated right now including at the supreme court. >> but the government can't treat a religious organization worse than they would a secular business, like a restaurant or a casino, is that correct? >> senator, you're referring to the principle about neutral laws
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and that -- there is a principle there that if a law is neutral as to everyone, a religious organization can be included. and that -- it's my view that the supreme court is testing the areas of that. for example, the supreme court recently granted an injunction out of california that involved one of those issues. so i just wanted to be sure to reflect the nuance there, senator, and the fact that the supreme court is working through those issues. and i'll also add that first amendment litigation has not been my area of practice the last ten years or even 16 years. but that's my broad understanding of what's happening with the clause right now at the supreme court. >> thank you. judge jackson? >> yes, senator. i too have not had many cases involving religious liberty issues. i have one right now that might involve some of these issues, but i'm aware that the supreme
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court has rightly viewed the first amendment right to religious liberty as foundational, fundamental. 's in the first amendment. and the supreme court is working through the doctrine. there's been a series of cases in the last few years as the court determines what it means to treat religious organizations differently. >> thank you. let's turn to the second amendment. ms. jackson akiwumi, do you believe the second amendment protects an individual's right to keep and bear arms? >> the supreme court has said that very clearly, the supreme court protects an individual right to keep and bear arms. >> which has been extended to the state and local governments through mcdonald, correct? >> that's correct. >> what do you believe are the
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limits on that right? >> that's the very thing that circuit courts across this country in the supreme court are figuring out right now. >> do you have any personal views on that? >> well, if i had any personal views, they certainly wouldn't be relevant to decision-making that i would engage in as a circuit judge, if confirmed. i would be bound by the supreme court's precedence in heller, mcdonald. >> i agree wholeheartedly with what ms. jackson akiwumi said. any personal views regarding the fundamental right to bear arms would have no bearing on my decision-making concerning those issues and i would be bound by the supreme court's and the d.c. circuit's precedence concerning the issue. >> in heller and mcdonald? >> yes. >> do you agree that the supreme
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court should have nine justices and justices should not be added? >> well, senator, i will have to admit that i'm not familiar with their particular views on that issue and i don't think it would be appropriate, as i indicated in a question from your colleague, for me to opine upon the composition of the supreme court or what should or shouldn't happen. it is a question that this body must sort through. it's a question left to the legislative branch and the executive branch. >> yes, senator. i'm currently -- >> i won't even ask. >> thank you. >> thank you, both, for your testimony today and congratulations again. >> thank you, senator cotton. senator coons. >> welcome to our two nominees. both of the nominees before us are highly qualified and impressive candidates and both have demonstrated a commitment to justice and fairness throughout their extraordinary
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legal careers. judge jackson, some critics have pointed to cases where you ruled against the trump administration and somehow suggest that is evidence you are biased. a review of your actual record shows you've ruled both for and against administrations of both parties. even on some pressing and important legal matters with political overtones. could you speak about some of these examples and how it is a mischaracterization of your judicial record to simply look at your record in the last four years? >> well, thank you, senator. i tend to leave it to others to characterize my record. i'm doing the work of analyzing the arguments and the facts in the law in every case. >> can i reframe that? >> yes. >> if we try to assess a judge's record, simply based on sort of a score keeping of which
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administration they were confirmed under or they rule for or against, what does that miss about a judge's judicial philosophy and qualifications and is that an adequate way to assess how you, as a nominee, for an important circuit seat, would approach a case? >> well, i do think it misses quite a bit because as -- i'm applying a methodology as i go through my cases, and it involves looking only at the arguments that the parties are making, the facts and the law. and sometimes those arguments are being made by one party or another in a government case. but that doesn't matter because i'm testing out the merits of the claims that are being made and how the binding law of the supreme court in the d.c. circuit applies to those claims in light of the facts.
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if you look at a judge's body of work, you will see that the claims and the law and the facts don't vary really based on party. and so sometimes you're going to find cases in which the judge might rule in favor of one administration, sometimes you might find against, that's not what is the driving force behind the judge's rulings. i have had cases -- many cases, in fact, that i can think of, in which i've ruled partially for one party or the other so that -- party, meaning a party in a case, not a political party. so that it's a split decision and, you know, both parties in the case are upset at the end of the day, but it's because that's what i believe the law required. and so if the judge is going to
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do their duty, they're not focused on the same political dynamics that you're talking about that other people tried to find in their rulings. >> can you both -- i'll ask you to go first, if i could, judge jackson, speak to the value of an independent judiciary, one that's insulated from temporal partisan considerations. >> senator, i think it is one of the bedrocks of the rule of law, which is a foundational constitutional principle is, it is what everything in our government is really erected around. if you don't have judges who are able to do their duty, their marbury versus madison, saying what the law is independent of the political branches, then we've lost that very important check that the founders wanted us to have. it's the way our government was constructed and so the
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independence of the judicial branch is crucial. >> thank you. ms. jackson akiwumi, would you care to comment on the significance or importance of a federal judiciary independent from the sort of winds of politics. >> it's hard to improve upon the answer that judge jackson just gave. i will also add that i've clerked for two federal judges and every single judge i've ever appeared in front of seemed to understand this foundational principle about their independence. it does not seem to be in dispute among the judges i've appeared in front of and worked for. >> my understanding is both of your parents were also judges. could you just fill me in briefly on what motivated you to pursue a career in service and in particular in the law. >> thank you, senator. it is true, i grew up in a family that very much valued public service. i always knew that the bulk of
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my career would be spent working in the public interest so i'm honored to have this opportunity and the faith of the president and our community in returning to public service. it's simply an honor. my parents have taught me a lot throughout my life. in terms of their judicial careers, i certainly witnessed my father do the very thing you just finished discussing, rule without fear or favor and understand his independence. i watched my mother put litigants first. even at risk of her own body. she sat for hours on the bench because she knew that litigants had taken time off from work to come to court, police officers were away from their beat, caregivers were away from their families, and she did not want
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to delay the administration of justice so she sat for hours without taking a break. so i learned a lot about service from my parents and judicial service long before the thought of serving our country in this way ever, ever came to me, long before i was presented with this opportunity by our president. >> last question, you would bring some badly needed diversity to the seventh circuit of several kinds. the cato institute had a study that showed there was four times as many prosecution as defense attorneys in the federal judiciary. and in terms of background, life experiences, racial, gender background, have a more diverse federal judiciary is a goal of this administration and certainly one that i strongly support. could you speak briefly to what difference does that make and why is that a value for our federal judiciary? >> as i indicated earlier,
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demographic, diversity and professional diversity certainly increase public confidence in the court and our court system. people can accept decisions as more fair knowing that a broad array of judges have considered the matter and the courts aren't restricted to just some. there's an important role modeling function so young students, lawyers, know that is the path of public service on the bench is open to everyone not just those who have taken a certain career path. and then i hope to be able to bring something to discussions with my judicial colleagues if confirmed because of my experience. just in the way -- i'm aware of the collegial nature of your courts. from clerking, i'm aware that judges conference to discussion their impressions about any particular case. and just like a colleague with a background as a state court
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judge might notice one fact in the record and want to discuss that or a colleague with a background in mergers and acquisitions might notice another fact in the record, i hope that i too can bring something to our discussion because of my experience as a federal public defender and thereby enhance our collective discussion and decision-making. >> thank you, both. i really appreciate your answering my questions. i look forward to supporting your nominations. thank you, mr. chairman. >> senator hawley. >> thank you, mr. chairman. thank you to the nominees for being here. congratulations on your nominations. ms. jackson akiwumi, if i could start with you, i want to ask you about the taylor case, this was an armed robbery case. you argued in that memorandum that the defendant should not be subject to the 15-year mandatory minimum for the armed career --
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should not apply to this defendant. it was a mandatory minimum. walk me through this. what was your argument about not applying a mandatory minimum sentence? is it your view that judges should be free to depart from those mandatory minimums. help me understand your argument there. >> thank you for the opportunity to address that. that argument was based on the armed career criminal act which stated -- congress stated that defendants should only be subject to the mandatory minimum if they had certain predicate offenses in their criminal history. the predicate criminal offense that the government relied on in mr. taylor's criminal history was residential burglary. the supreme court and the seventh circuit and many circuits around the country were working through the issue of whether residential burglary qualified as a predicate offense. we took the position that
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residential burglary did not qualify as a predicate defense. if it did not, that meant the mandatory minimum would not apply in mr. tailor's case. >> very good. let me ask you about something you wrote in that same sentencing memorandum. you wrote that this departure from the mandatory minimum was appropriate because -- i'm quoting know, when black defendants continue to receive longer sentences than white defendants for the same crime, no additional time should be added to further entrench this disparity, end quote. is it your view that the armed career criminal act or mandatory minimum sentences in general are racist, inherently racially disparate. >> thank you for that question as well. there has been research by the sentencing commission and other agencies in our government that have showed -- have shown -- the
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research has shown the racial impact of mandatory minimum sentences. it's an issue that this body and this very committee has considered. what i was referring to in the portion of my sentencing memorandum that you quoted is the supreme court law -- the supreme court case law that says above and beyond a mandatory minimum, a judge does not have to impose any additional time. if the judge in her discretion feels that the mandatory minimum will impose what congress has stated the standard is, a sentence that is sufficient but not greater than necessary, then the judge does not have to add time on top of that. and so the argument that i was making to the judge was, look, court, if you feel the mandatory minimum imposes a sufficient but not greater than necessary sentence on mr. taylor here, please do not add additional time on top. >> let me ask you a question
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that i've asked other nominees who have come before this committee. do you think the u.s. criminal justice system is systemically racist? >> those are not terms that i use. in the law when we look at issues of race, we look at discrimination which has very specific standards under supreme court and statutory law in terms of making findings. and so courts will be generally looking for attorneys to prove up discriminatory intent, discriminatory impact, in some cases, retaliation. there's no supreme court doctrine that speaks to systemic racism and it's certainly not a -- it's -- there certainly aren't words that i've used in a court of law to make claims based under the constitution or the applicable statutes. >> those are just, to be to be
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clear, those are not words you would use to describe our criminal justice system as it currently exists? >> that is certainly not the way as an advocate i would be able under the law to approach any case involving race. >> very good. let me ask you about the adam walsh child protection and safety act. in a presentation you did for the illinois institute for continuing legal education, you stated at the time that the law includes a new mandatory condition of electronic monitoring for all persons who are charged with a long list of sexual abuse including failure to register as a sexual offender under the appropriate statute. in your presentation, you noted that a number of district courts had found this act unconstitutional, procedural due process claims and separation of powers doctrine. since you were advocating these -- making these arguments
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to other defense council, do you believe that the adam walsh child protection and safety act is unconstitutional on eighth amendment grounds. >> sitting here, senator, i actually can't remember that presentation that you're referring to or anything i might have said in that presentation. what i can tell you is that if confirmed as a judge, i am certainly bound by the statutes of this body and would be called upon to apply them to the facts of any case that's before the seventh circuit. >> very good. i wanted to ask you the same question about the statute being unconstitutional on fifth amendment grounds or separation of powers grounds. is your answer the same for those as well. >> yes, senator. i'm sorry, do you recall that presentation or the content. >> i'll give this to you as a question for the record which will give you opportunity to go back and look at your notes and you can get back to us on that once you've had a chance to review. in my final moments, i wanted to
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say, judge jackson, that i noticed -- i think i'm right about this, that you served on the board of a christian school, is that right? >> yes, for about a year. >> got it. well, i mention it because i noted in the board's statement of faith at the time, it said that we should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death. it went on to say that children from the moment of conception are a blessing from the lord. the school took the position that marriage is the uniting of one man and one woman and the state has no right to impose penalties for religious opinions of any kind. those are positions that i happen to agree with, which is beside the point. i raise them because i recall that justice amy barrett was attacked for serving on the board of trinity schools which took similar positions. i defended her at that time.
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i defend your right for the religious liberty. and i take it that from your service that you believe in the principle and the constitutional right of religious liberty, is that fair to say? >> senator, i do believe in religious liberty. that is a foundational tenant of our entire government. our constitutional scheme, the supreme court has made clear through its case law that governments can't infringe on people's religious rights. those ideas, that concept comes from my duty to observe supreme court precedent, to follow its tenants, not from any personal views that i might have. and any personal views about religion would never come into my service as a judge. i would also say that i've
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served on many boards and that i don't necessarily agree with all of the statements of any -- of all of the things that those boards might have in their materials, the statement that you read, i'm not even sure that that was something that was in the school's circumstances at the time that i was there because i was not aware of that. but in any event, i do believe in religious liberty, yes, senator. >> thank you very much. thank you, mr. chairman. >> senator blumenthal. >> thanks, mr. chairman. thank you, both, for your willingness to serve. thank you to your families who are undoubtedly very, very proud of you, justifiably so. and i'm proud to be here as a member of the judiciary committee to be involved in your confirmation.
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i will support you because you are both superlatively well qualified by your academic background, your professional standing, your service to our nation and your families. so i want to just begin by saying that you both have backgrounds as public defenders. i served for 4 1/2 years as united states attorney in connecticut, the chief federal prosecutor. i then was attorney general of our state for 20 years, involved in law enforcement. and i really welcome the president's emphasis on elevating and showing that public defenders are as deserving by virtue of their background to appointment as a federal judge, as a prosecutor, as anyone else.
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i know that the positions are very competitive now, but public defenders bring a perspective to judging that prosecutors may not, just as people who come from private practice bring a different perspective. so i congratulate and thank you for your backgrounds as public defenders. and likewise, i think diversity is very, very important on both of the circuits that you will join. the seventh circuit presides over 7.5 million people of color and its jurisdiction includes chicago, milwaukee and indianapolis, among other cities. yet all of the judges currently sitting on the court are white. in 2021 i am dumb struck, it's
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breathtaking that a federal circuit court in any part of our country is all white. and i've remarked on this point before just to say it again. thank you to the president, thank you to you for helping to correct this injustice which undermines the faith of the public in our judiciary. the reason that we are still as strong and resilient as we are as a democracy is because of an independent judiciary. that has had the encourage to stand up to the kind of potential abuse in our democracy that we've seen, the contempt for the rule of law that we've seen at the highest places in the past administration. i want to avoid unnecessarily
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going into politics here. but i do think that we are at a moment when we need to thank you the judiciary as an independent branch of government, most especially our district courts, our courts of appeals, for continuing to stand strong for our democracy. so i am proud to support you and i just want to ask each of you roughly the same question i asked judge jackson eight years ago as a nominee for the district court, about your positions on sentencing discretion. this issue is critically important now as we approach the justice in policing act and possible revisions to our law to make it fairer and more just. sentencing is an enormous power.
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you won't have it as circuit court judges. but i would be interested in your views as to when departures from the sentencing guidelines are justified and some of the more common reasons there ought to be for departing. perhaps you can give us the benefit of your experience on that point. >> well, senator, thank you for that question. the sentencing system has gone through different phases and we're now at a point in which not only do we have the guidelines manual and the departures that are in the manual, but as a result of the supreme court's decision in booker, now judges can use the guidelines as a starting point
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for their analysis and they can determine whether the guideline sentence and any departures are sufficient penalty for the case. what that has meant is that in some districts, judges don't depart in the same way that the -- the departures are grounds within the guidelines manual for imposing a instance that is different than the one that comes out just from the initial calculation. and in the guidelines manual, there's a lot of room for judges to take into account certain factors concerning the circumstances of the individual in departing, but in my district, i know that judges tend to -- what we call vary from the guidelines as well in circumstances in which -- let's
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say the age of the person may mean that the guideline penalty is too much. there are lots of different reasons, mental health reasons are in the guidelines, but they tend to be factors that have to do with the individual and there's also the most prevalent departure which is one that the prosecutors actually recommend in a situation in which a person is cooperating. so all of those factors enable judges now in our system to impose sentences that are sufficient but not greater than necessary. but congress, obviously, as the policymaking body has to evaluate whether changes need to continue to be made. >> thank you. ms. jackson akiwumi. >> senator, it's hard to improve upon that answer that judge -- very comprehensive answer that
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judge jackson gave. she accurately described the sentencing regime that i litigated under for a decade and in every case -- in almost every case, i will say, where judges departed from the guidelines and i was representing a client, it was because of the presence or absence of mitigating or aggravating factors. and so there would be aggravating factors that warranted in the judge's mind a higher sentence, guideline sentence in the rare case and in the more common case, mitigating factors that warranted a sentence lower than the advisory guideline range. in all of those cases, the judges were still operating under the statutory framework that this body laid out about how they should sentence. and only one of those many statutory factors was the sentencing guidelines. there are many other things that judges needed to look to. thank you. >> thank you very much. thank you both of you. thank you, mr. chairman.
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>> is senator tillis available remote? >> i am, chairman. >> please proceed. >> thank you, mr. chairman. to judge jackson and ms. jackson akiwumi, congratulations on your nomination. i'm sure your family and friends are very proud of you and rightfully so. mr. chairman, i think it's important to highlight one of the key reasons why we have these nominees before us today. the group demand justice, a group i have spoken about in this committee before and i spoke about it when senator whitehouse has a hearing on the issue of dark money campaigns behind judicial nominations. that group is largely responsible for the nominations that we have before us today. demand justice is a dark money liberal group whose first priority is getting left-wing judges who will follow a liberal agenda instead of the constitution if confirmed. i should also add demand justice is spending millions of dollars advocating for the expansion and
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the packing of the supreme court. in fact, they've been pushing for liberal judges since before president biden was even elected. like many of us last year, demand justice called on candidate biden to release a potential list of supreme court nominees. but he refused. however, demand justice released the list of their preferred supreme court nominations, the short list was first released in october of -- 15th 2019. and without objection, mr. chairman, i would like to submit two documents that were on the demand justice website for the first and the second list that i'll talk about in a moment. the first list contained 32 names of bold, progressive leaders. according to demand justice, their list included lawyers who have championed progressive values as public defenders, public interest lawyers,
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scholars, plaintiff's lawyers and elected officials. however, the two nominees before us today were not on the first demand justice list. but in april of 2020, demand justice released a second short list of their supreme court nominees for soon to be president biden to pick from. both judge jackson and ms. jackson akiwumi were on the second list from demand justice. and now they're sitting in front of this committee today as nominees to circuit court positions. so what changed between the first demand justice list and the second one? in judge jackson's case, roughly one month after the first demand justice supreme court short list came in, ms. jackson -- judge jackson issued a ruling in a case brought by house democrats who wanted to compel former white house council don mcgahn to testify. while we can debate the conclusions of judge -- that judge jackson made, one thing is
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clear, the 120-page ruling had a purpose. i think rachel maddow explained the purpose of the 120-page ruling well. if the production crew can run the video clip of ms. maddow, do so now. >> the judge in this case, tonight has ruled against the president and has ruled that in this specific instance, the official that the president has instructed to defy the subpoena, former white house council don mcgahn, the judge says don mcgahn must comply with that subpoena and must turn up to congress to testify. and this is a long ruling tonight. it's -- but it's interesting. it seems to me like it is written with a broad audience in mind. because it's not a superlegalistic thing. it's not a order that mcgahn has to show up and here's the precedence. this is the kind of judicial
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ruling that is -- if this were an indictment, you would call it a speaking indictment. this is a ruling that is designed to be read by people who are outside this case. >> so just to repeat some of the comments, the ruling was written with a broad audience in mind, it's not just a legalistic thing. kind of a judicial ruling, that is. if this were an indictment, it would be a speaking indictment. this is a ruling designed to be read by people outside of the case. this case was one month after demand justice supreme court short list came out. the demand justice released their second supreme court short list in 2020 and judge jackson was added. how is this any different from what democrats have accused republicans of for the last four years? or is it suddenly okay when it is liberal dark money, liberal
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dark money group, picking the nominees for the highest courts in the country? mr. chairman, again, i would like to seek unanimous consent to add the two short lists from the demand justice website and thank you. >> without objection they will be -- does senator have any further comment or questions? >> no, sir, i'm clear. >> senator, i'm going to ask judge jackson if she would like to reply to your comment. it was not a question. it will be your decision. judge jackson? >> thank you, mr. chairman. i've been a federal judge for eight years, and i have a duty of independence. i clerked for three federal judges before i became a judge and they were models of judicial independence. and what that has meant is that i know very well what my
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obligations are, what my duties are, not to rule with partisan advantage in mind. not to tailor or craft my decisions in order to try to gain influence or do anything of the sort. i have no control over what outside groups say about my rulings. i have no control over what reporters say about my rulings. and to some extent, all of my 560 opinions are written for people outside of the case. they're written for the public. they're written for the appeals court and they're written for the parties. so my statement is that i've always been an independent judge and i believe that that is one
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of the reasons why the president has honored me with this nomination. >> judge jackson, i said from the onset, it was one of the factors, not all of them. i'm sure your jurors prudence weighed into it, but your response would read almost identicalically to dozens of judges who came before the judiciary and they were -- they were rejected out of hand. the fact of the matter is, dark money is influencing, demand justice is trying to expand the supreme court. you can understand after four years of hearing how the federalist society and other organizations were a dark money group with malign intentions, a group that is very much supporting you, why we would draw the same conclusion. thank you, mr. chairman. >> thank you, senator. let me add one other element. i didn't want to incorrectly infer this. i want to make it clear, this hearing was scheduled today not
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because of any plea by any special interest group at all. the nominees go through an extensive background check, all of them do, and it takes some period of time before it is completed and submitted to the committee and we have scheduled the five judicial nominees today as soon as that process had been completed. it takes sometime. i'm sitting here looking through your questionnaires. i don't know how you managed to accumulate all of this information in response, but it was a good faith effort i'm sure to comply with everything under the law. as soon as it was ready, we set this hearing. no outside group demands or pleas had anything to do with the timing of this hearing. senator hirono, are you available remote? it's your turn. >> i am. thank you, mr. chairman. democrats have long criticized the role of dark money in
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politics and certainly in judicial nominees. if what i'm hearing is that our republican colleagues are now on the same page with us and criticizing dark money, then we should all be voting for legislation to require disclosure of dark money sources. i welcome that change from the republicans. i congratulate our two nominees. you are imminently qualified. that is why the president nominated you for these important judicial opinions. i congratulate both of you. i ask the following questions of every nominee who comes before any of the committees of which i sit. these questions are, first question, since you became a legal adult, have you ever made unwanted request for sexual favors or committed any verbal or physical harassment or assault of a sexual nature. >> no, senator. >> no, senator. >> next question, have you ever faced discipline or entered into
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a settlement related to this kind of conduct? >> no, senator. >> no, senator. >> both of you have served as public defenders and you've been asked some questions about that. for ms. jackson akiwumi, in 2014, you gave an interview to yale in which you discussed being a black woman attorney, you described the burden you carry, like when a prosecutor accused you of being overly aggressive because you forcefully made a point. but you described the benefits. you said, quote, sometimes my client's families are grateful to see me, a young black woman, in a position of power. i can inspire clients child without even knowing. you are nominated to fill a seat in the seventh circuit which would make you the first black person -- person of color on the bench. what is the significance of that fact to you?
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>> thank you, senator hirono. i want to know that i would be the second person of color nominated to the seventh circuit. i indicated earlier and i stand by it that there is the same role modeling function that i played when i was in an advocate that i was referring to in that interview. oftentimes you can inspire a client's child without any even knowing it because it might be the first time they've seen a black woman standing up in court before the bench. and the same would be true if i were confirmed as a judge. i could serve as a role model for any number of people coming behind me and that's not limited to people of the same race or same gender. one can inspire any number of people and i would hope to do that through my service if
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confirmed. >> i very much appreciate that you're noting the importance of demographic diversity and professional diversity such as being a public defender to achieve role modeling that you speak of. this kind of role modeling should effect the diversity of our country. i very much appreciate your saying that. getting back to both of you serving as public defenders, these are highly competitive and difficult jobs. i'm sure you could have been -- gone to the prosecutors' office, et cetera. we rarely consider public defender nominees in the judiciary committee. can you talk a little bit more each of you on why you sought out these positions as public defenders? >> well, senator, my service as a public defender was a while ago. i'm trying to think back on my
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reasons. i had come from a staff position on the sentencing commission and was working on sentencing just -- a sentencing policy. and i remember thinking very clearly that i felt i didn't have enough of an idea of what really happened in criminal cases. and i wanted to understand the system, if for no other reason than to be a better policymaker at the end of the day, although i didn't end up ultimately doing that. and i thought it would be a good opportunity to help people as well. i come from a background of public service. my parents were in public service. my brother is -- was a police officer and in the military.
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and being in the public defenders office felt to me very much like the opportunity to help with my skills and talents. >> it sounds as though -- as the kind of experiential diversity that was mentioned. i think that's important to understand that the people who come before you and whose lives you can impact with your decisions. would you like to also respond, ms. jackson akiwumi? >> when i initially applied to become a federal public defender, i was looking for a job where i could help protect constitutional rights and work in that realm. i was looking forward to being a trial litigator and an appellant litigator at the federal defender program, we represented our clients from arrest all the way through appeal, even when they wanted to petition for cert in the u.s. supreme court which i did in two cases.
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and i was also looking to represent individuals clients. at that time i had been a civil litigators for years and most of my clients, at least on the billable side were corporations, non-profit organizations, i was only representing individuals through my extensive pro bono work at the full time. now having had the benefit of ten years of this kind of service, i see i was absolutely right about the reward that comes from helping our country to live up to its constitutional ideals in the sixth amendment that everyone should have the assistance of counsel. what i quickly learned over the course of that ten years was how gratifying it was to walk with someone through the toughest days and nights of their lives when they were being judged for the worst moments in their lives and to serve as a guide counselor, investigator, social
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worker, strategist, negotiator, there were so many hats in addition to a trial litigator, an appellant litigator, oral advocate, written advocate, there was no end to the variety of ways i was being called to help people and help communities and also to help victims. because the system works when everybody is ably represented and certainly many of my clients were clients one day but they had been victims the day before. and so it was a robust way to help our country live up to its constitutional values and it was an honor and privilege to do that. >> thank you, senator. is senator blackburn available by remote? >> yes, i am. thank you, mr. chairman. >> please proceed. >> and i am so pleased that we have these two nominees in front of us today. and judge brown, i want to come
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to you first, if i may. i know you're fully aware that you are disgusted regularly as a future supreme court nominee. many of our supreme court nominees are -- they come from the circuit that you would be serving on. but we have some that are advocating to pack the court and expand the court. i know that has been discussed. i think senator cornyn talked with you about it earlier. this is something i see as a dangerous proposal because it would basically set up a judicial arms race. if somebody adds something else is going to add. we know that it is said that even president roosevelt's threat and unsuccessful attempt to pack the court was enough to intimidate justices. so first of all, do you believe
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that deliberately expanding the court to allow one president to pack it with their nominees would undermine confidence in our laws and undermine the separation of powers, and then secondly, if they were to expand the court, if president biden did that, would you accept a supreme court nomination under those circumstances? >> thank you, senator. i am currently a sitting judge in the lower courts and as such, i'm bound by supreme court precedent and by supreme court rulings and i don't think that it's appropriate for me to comment on proposals about the structure of the court, about expanding the court or anything of the sort just as it wouldn't be appropriate for me to talk about -- or critique or comment
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on supreme court precedent. so i'm unable to answer your question -- >> you are aware that groups that are advocating for you support that? have expressed th support for me and i'm gratified but i'm really focused on this nomination and i am hoping to be confirmed to the d.c. circuit. >> okay. ms. jackson-akiwumi, i appreciate the comments you said about diversity. i always say having good relationships with individuals who are different from me and have different points of view from me is something that is important, to help me in public policy and to do a better job in
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representing all tennesseeans, so, i appreciate the comments that you have made there. and i also noted, as i looked through your record, that you've respected many very clients and you've been a zealous advocate for those clients. i want to draw attention to a case where you defended a man who preyed on women for sex, prostituted them. his victims accused him of physically restraining them with a firearm despite believing all women, you called these women liars to cast doubt on their testimonies and claimed there was no evidence from the victims testimonies and their words were dishonest. in your sentencing memorandum, you further shamed the victims, alleged prior -- believing
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survivors of sexual violence and crime? >> thank you, senator blackburn, for the question. i'm not sure which case you are referring to. as we've shown, i've represented more than 400 cliens and a number of those cases were sex offenses. what i can say is that calling a victim a liar is not something that i've done in court or in written record. it is certainly my job as an attorney to examine the evidence and present questions about the evidence to the court where appropriate and where necessary. and then -- >> let's do this. let me give you the specific case and you can submit in writing, because your sentencing
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memo is something that does cause me concern and we've been through a time where previous supreme court justice kavanaugh, we've got an issue now with governor cuomo and whether -- knowing where you stand on that, i think, is really important. so, i will get that to you in writing, is that okay? >> thank you, senator. >> thank you, i appreciate that. judge jackson, i want to come back to you. in 2019, you granted a preliminary injunction against a dhs rule expanding the use of the department's statutory authority to use expedited removal procedures. the d.c. circuit then reversed your injunction and found that congress granted the dhs secretary sole and unreviewable discretion on expedited removal determination to enforce our
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immigration laws. since the beginning of president biden's term, the amount of illegal border crossings has skyrocketed and it appears that we will exceed everything that we hit at that border in 2019. lost month, border agents took over 170,000 migrants into custody at the southern border, including 19,000 unaccompanied children. these border apprehensions have hit a 15-year high. the biden administration's flawed immigration policy has only encouraged more and more migrants coming to the country illegally. on top of that, the administration is failing to properly handle the surge in illegal crossings and has allowed our country's borders to be overwhelmed. they have even failed to acknowledge the crisis exists. the administration's failures
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have caused massive suffering and endangered communities and anyone who has not been to that border needs to go, i was astounded. so, judge jackson, do our homeland security officials lack sufficient authority to act decisively and timely to keep us safe and enforce these immigration laws? >> thank you, senator. i've had a number of immigration cases and in those cases, like the one you mentioned, what i'm doing is i'm evaluating the law, the immigration laws' very complex scheme, the facts in the particular case and the claims that are being made, the arguments of the parties. i'm not assessing the policy, i'm not making a determination about, sort of in a general sense of whether or not dhs
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officials have enough authority or any other sort of policy consideration. so, i -- given what it is that i do and that is in my purview, i can't way whether or not they have enough authority. what i can tell you is that in the case that you referenced, that i worked on, there was a disagreement -- the d.c. circuit disagreed with the way i had analyzed the statute and that sometimes happens, that judges disagree on statutory interpretations, and so they made the ruling that they made and that's binding precedent now in our circuit for how that statute is to be interpreted. >> all right, i have one other i will submit to you for writing and it has to do with a number of reversals that you've had but i see senator booker there and mr. chairman, i thank you for the time. >> thank you very much, senator
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blackburn. senator booker, are you available by remote? i don't hear him. >> i've been muted sorry, i was having trouble unmuted myself. i'd like to just first make the case, it was said earlier in a equivalency that was a bit stunning to me, about outside groups influence on the picking of judges for the circuit and the, in particular, the supreme court. i want to just say that joe biden has said no such thing, in fact, he's directly refuted the questions about outside groups governing his decision. he understands this is one of the civically sacred powers delineated to the president of the united states of america and is an executive power and i'm
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sure he would feel it would be a betrayal of that power to farm out responsibility for making choices to an organization especially one that doesn't even necessarily align with his principles, his values for evaluating judges. that is dramatically different than what president donald trump, former president donald trump said. and i'll quote him. trump promised that his judicial nominees would all be picked by the federal society, he also said that he had turned to, the quote, federalist people and to the heritage foundation to assemble his list of 21 supreme court nominees which is basically saying that that power vested in the president of the united states was being turned over to an organization that, yes, that should bring up questions for every senator. who are these organizations? what's the money and the interests behind them? is it dark money? is it folks with agendas that cut across the concerns that should be held in a bipartisan
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manner by members of congress? this is a stunning departure from our national history and farming out to such organizations should be abhorrent to everyone and so, i just wanted to make that distinction. to both of our nominees, it is an extraordinary honor to be sitting before you. this is a day that, to me, is worthy of celebration, given your backgrounds, given the uniqueness of your careers and i want to thank you both for being here. i talk often about issue us of race and diversity, those have been brought up, people, members on both sides, i just want to ask one question and it's simply about another type of diversity that's just not talked about enough, which is the diversity of career paths. we just don't see that many on the higher courts of our land, people that are not ones necessarily having prosecutorial
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backgrounds but people having time working as public defenders. this is an ideal that goes back to adams representing british who were involved in the boston massacre, this belief that everyone deserves defense. i think it is noble work and i think it brings a much-needed bit of diversity to -- to our judicial system, in fact, an urgently needed level of diversity, to have people from both career paths. and so i would love for both of you and then i'll take my answers off -- i'll back on mute and turn it back over to the chairman, but can each of you maybe explain why it's important to you to have professional diversity on the federal bench when appellate judges are deliberating as a panel or as a full court, how does that diversity of professional experience help to really inform their decisions in your opinion? and maybe a little bit about how
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each of your experiences has public defenders affect your opinions in and of himselves and with that, i will go back on mute and thank the nominees in advance for their answers. >> thank you, senator. i had the experience of working as a law clerk for two extraordinary appellate judges. i don't know yet, i hope to be confirmed and could see first-hand what the deliberation process is, but i do know that the judges meet and they discuss cases and in that context it seems to be typical for judges from all different backgrounds, prosecutors, people who have worked in private practice, people who have worked in other
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areas, to be able to contribute to the discussions about the cases. i sort of look at it from the oliver wenzel holmes view is the life of the law is not logic, it's experience, so, the more experiences that can be brought to bear on our complex legal problems, the better. i also know from my experience as a district judge that there have been changes in my own way of practicing, in my own way of interacting with defendants in my courtroom that are based on insights that i had from representing clients 16 years ago when i was an assistant federal public defender. and so, you learn things. you learn things from
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experiences that relate to what you're doing in the judicial system and they can be useful in helping and i told the story earlier, just about the way in which i now communicate and forecast and lay out for defendants what is happening in cases and i do that because i was aware as a defender of how many of my clients did not really understand the process and that was detrimental to their rehabilitation. so i work on that communication aspect based on my insights from the time when i was a defender. >> senator booker, i would only add that the seventh circuit has judges from many different backgrounds. there are state court judges who are now sitting on the seventh circuit, law professors, people who have been -- judges who have been prosecutors, attorneys for the executive branch.
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so i hope i would just add to that mix, because as i reflected earlier and judge jackson just referred to, that it's a klee jal environment and judges spend time discussing together the cases in an effort to reach their individual opinions in that case. and so, i hope that my background as a federal public defender and frankly my background as a civil it will gator, as well, will help bring something to the table in a way i know my colleagues' backgrounds already do. >> thank you, senator booker, senator cruz? >> thank you, mr. chairman. congratulations to both of the nominees. judge jackson, you and i attended law school together. >> we did, senator. >> it is good to see you. >> good to see you again. >> congratulations. >> let me start with a general question to both of you is,
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which is, how would you define judicial activism? >> i think judicial activism is when a judge is unable or unwilling to separate out their own personal views of a circumstance or a case and they rule consistent with those views rather than the law as they're required to do. >> i would give the same answer, senator cruz and also add, although judicial activism means many different things for many people, for me it also suggests a judge who goes outside -- beyond the issues presented to the court. judges are limited, they have quite a restrained role in that they are only to decide the issues presented to them, and one form of activism is going beyond that. >> so, what should a principled judge do if the law requires one outcome and your own personal,
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political policy views are to the contrary? how does a judge resolve that conflict? >> oh, absolutely the judge is duty bound to follow the law. the law is the binding principle that guides a case and judges need to methodically separate out their personal views. when i rule in my cases, i look at the facts, the law and the party's arguments in the same way in every case and i methodically apply only those inputs, because i'm trying very hard not to look at this case through anything other than the prism of the binding pprecedent. so, absolutely, there's no question that a judge has to set aside their personal views about how a case comes out and rule
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only consistent with the law. >> that's absolutely correct, senator. the roles of advocate and judge are completely different. but in the same way as an advocate that i set aside my personal opinions about my clients and what they were accused of or what they were guilty of, i would also set aside, if confirmed my personal views, my personal convictions, if any, because the law is what guides and should guide judicial decision-making. >> what are both of your views on the notion of a louvring constitution and whether we have a living constitution? >> senator, i have not had any cases that have required me to develop a view on constitutional interpretation of text in the way that the supreme court has to do and has to have thought about, the tools of
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interpretation. i am aware that the supreme court, at least with respect to certain provisions of the constitution, that it has already interpreted, has looked at history and has focused on the original meaning of the text, say in the second amendment context in the heller case. i just have not had any opportunity to do that. i have worked with those kinds of materials when i was in private practice, i filed an amicus brief in which we argued using english common law about whether or not the english courts would have accepted evidence that had been extracted by torture -- >> so, was this the amicus you did in the bomadine case? >> it was. >> was it pro bono?
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>> it was. i respected 20 former federal judges that wanted to make that point. >> and what -- that's why, frequently, lawyers take it on. what led you to want to take that position -- >> i wasn't working alone, i was at a big law firm and i was in their appellate division and it was a client, a group of judges who i was assigned to work with as apart of that, my employment in the law firm. >> but did you agree with the position you were advocating? >> i was focused on my client's interest. i was doing what advocates do. i didn't have a personal view, really, of the issue other than just to make sure that i was making the most convincing argument that i could make on behalf of my clients. >> so -- let me go back to the original question, which is, do you believe we have a living
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constitution? >> i believe that the constitution is an enduring document. it is said that it has a fixed meaning, that we look to the original words in the constitution and interpret provisions the way in which the supreme court does and they look at the text and look at the original meaning and so if i ever had one of those cases, that is how i would approach the task. >> ms. jackson-akiwumi. >> senator, thank you for the question. i don't find these phrases particularly useful. as a lawyer, a living constitution is very similar to me like judicial activism. i means so many things to different people. i know that chief justice
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marshall said that we have a constitution that was meant to endure for ages, which it has. and to be adapted to the various crises of human affairs, and i think that is what has happened with our constitution over the years and beyond that, it's the supreme law of the land and if confirmed, i would be bound by the supreme court's interpretations of the constitution. it would not be my job to make law. >> so, if you could both tell me your view of the importance of the first amendment and in particular, the protections of free speech and religious liberty. >> well, senator, my view comports with the supreme court's view, because as a judge, i have to apply the doctrines of the supreme court. and it is very clear, from the supreme court's recent rulings
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from -- the recent covid cases, trinity lutheran, masterpiece cake shop and various others, that the court is looking into and is concerned about restrictions on religious liberty as a first amendment principle. as well they should be, because the first amendment includes religious freedom as a core constitutional right. so, my views comport with what the supreme court has held about these things and i would have to apply the supreme court's principles in any of my cases. >> ms. jackson-akiwumi. >> i agree, senator cruz. the first amendment is fundamental, it's foundational. all of the freedoms protected there. >> thank you. >> thank you, senator cruz. senator padilla?
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>> thank you, mr. chair. before i begin my questions, i want to take a moment to remark on the significance of this hearing. as chairman durbin reminded us and noted at the outset of this hearing, over the past four years, the prior administration appointed 226 judges to the federal courts. almost 30% of the current federal judiciary. an overwhelming majority of those appointees, 189, were white. and nearly as many, 171, were men. over the course of the prior administration, our federal judiciary became markedly less diverse. today marks an important step in reversing that trajectory and creating a federal judiciary
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that reflects the america that it serves. this committee has heard and will hear testimony from five nominees, all persons of color and three women. they have experience in public defense, prosecution, civil litigation, municipal law and military service. the diversity of background and professional experience they offer to the federal judiciary in addition to their impressive qualifications is remarkable and important. so, i hope, mr. chair, and expect, that this will be only the first of many such nomination hearings this congress. now, to my questions. the first, for ms. jackson.
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if confirmed, you'll be one of the few former public defenders to serve in this capacity. so, can you take just a minute to speak to the role and importance of public defenders to our criminal justice system? >> senator, did you mean -- ms. jackson-akiwumi? >> yes, ms. jackson-akiwumi. >> yes, senator. the supreme court has interpreted the right to counsel in criminal cases when one cannot afford an attorney. this is important because the integrity depends on it. judges make the best decisions when presented with the best arguments from both sides and due process guarantees that people be represented and have the opportunity to be heard regardless of their ability to pay.
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so, it was my honor and privilege to work with in that system for a decade to ensure that my clients were competently represented, regardless of their ability to pay and frankly, regardless of what they were accused of. and to help our country live up to its constitutional values. and just a followup. earlier in your career, you spent three years working at a corporate law firm with, i'm sure, very nice offices, a lot of resources and high salaries. you chose to leave that very comfortable path to spend the next decade of your career as a public defender. just for a moment to reflect on what prompted you to make such a change? >> well, senator, i am very grateful for the three years i spent litigating there. it was a tremendous experience representing our clients which ranged from corporations from
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nonprofit organizations, individuals. i gained a lot of experience, tried my first jury trial, argued my first case before the seventh circuit court of appeals, which -- before which i appeared many times after that as a federal public defender. but i always knew i wanted to return to public service. i began my legal career serving the public as a law clerk to two federal judges and waited to spend the bulk of my career that way and this nomination by the president has given me an opportunity to yet again serve the public, if this committee and the senate as a whole so decides. >> thank you. next question ms. brown jackson. >> thank you. >> in the eight years you served as a district court judge, you've presided over hundreds of cases. in that time, you have ruled for both prosecutors and criminal defendants. for workers and employers.
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for the government and those challenging governmental decisions. is there an ideology in your judicial making, and how do you see that changing at all if confirmed? >> thank you, senator. not really a philosophy, more of a methodology. it is only appropriate for the judge to take into account the arguments of the parties, the facts in the case and the law that applies in every case. and i have found that if you do that, you can be consistent in the way that you're analyzing the issues and you can set aside any thoughts about who is making the arguments, what advantages any side might take away from your opinions, if you have a
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fidelity to the rule of law that is grounded in looking at only those inputs, then i think you can rule without fear of favor, which is what i've attempted to do. >> i want to -- some of my colleagues have already done. thank you for your willingness to serve and your families supporting your service. i know it's not easy. but in the last minute i have left, i ask you both to briefly comment on what it just means to you personally, for you and your family, for you to be here with this opportunity before you. >> well, senator, i am fortunate enough to have an office now that is just a few blocks from the national archives. sometimes i go there and i reflect on the momentousness of my duties and the fact that i've had an opportunity that my
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grandparents would not have been able to even fathom. and it is the beauty and the majesty of this country that someone who comes from a background like mine could find herself in this position. and so i'm just enormously grateful to have this opportunity, to be a part of the law in this way and i'm truly thankful for the president giving me the honor of this nomination. >> thank you. >> senator padilla, i share a similar sentiment. i am the granddaughter of a sharecropper. three of my four grandparents had only a fourth and sixth grade education. but i also grew up with the precept to whom much is given, much is required. and despite those humble
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beginnings, my family has always been one that valued education and i have been given a top notch education. and top notch experiences that i'm so grateful for. and i recall attorney general garland telling you all that he believed it was the highest and best use of his skills to be able to serve the country in this way now, and although i've not been a circuit judge and i'm certainly not the attorney general, i agree with attorney general garland, in this moment now, to serve as a circuit judge at the request of our president, would be the highest and best use of the skills that i have and such a way to thank my family and this country for the many opportunities that i have been given. >> well, as a proud son of immigrants from mexico, with little formal education but a work ethic that led to 40 years working as a short order cook and a domestic worker who had an
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opportunity to study at the massachusetts institute of technology, earn a degree and years and years later gets to sit on this side of the dias, i thank you both. >> thank you. >> thank you, mr. chairman. >> thank you, senator padilla. senator kennedy? >> thank you, mr. chairman. judge, counselor, welcome. counselor, let me start with just a few general questions. can you give me your thoughts about the meaning and the importance, if you think it's important, of the adequate and independent state ground doctrine, which you'll probably see a lot on the court of appeal? >> sure. senator kennedy. it's actually a doctrine of the supreme court that governs when a case presents federal grounds, but if there's also an independent and adequate state
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court ground that supports the decision, the supreme court will not choose to take the case. so, the supreme court is the body that has the ability to exercise that doctrine. the seventh circuit court of appeals, if i am confirmed to it, would not have that opportunity, because as you know, the court of appeals takes every case that's appealed to it, it doesn't have the ability, like the supreme court does, to pick and choose which cases it will hear. >> so, you're saying that the seventh circuit can't decide a case or invoke the adequate and independent state doctrine? >> there are other doctrines that would govern if the seventh circuit, if a panel felt that there were state court questions that needed to be resolved so the federal case should hold off for a bit or if there was an indegent state court ground for the case that necessitated a
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particular type of ruling, but it wouldn't -- that doctrine would not cause the seventh circuit to not take the case to begin with. the seventh circuit has to consider the appeal and then issue a decision, yes. >> right. but you're not saying that the adequate and dependent state ground doctrine is not applicable to the seventh circuit, are you? >> i'm saying that's a doctrine of the supreme court and the seventh circuit has other -- >> it's a doctrine of the court of appeals, too, isn't it? >> my understanding and i will tell you, senator kennedy, that this is not an area i've been litigaing in the last 16 years, but this is my broad understanding that it's a doctrine of the supreme court. >> okay. what is your definition of justice? >> thank you for the question,
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senator kennedy. emblazoned on the supreme court across the street is "equal justice under law." i marry that with the ethical canons and codes of conduct that apply to judges and that includes treating all parties fairly and impartially and acting with diligence and upholding the independence of the court. and i think when you marry all of those concepts together, then you arrive at hopefully what is justice for the parties who come before a court. >> counselor, do you believe that -- that crime is a disease
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that needs a cure or is it anti-social behavior that deserves punishment? >> senator kennedy, neither of those options are words i've ever used to describe crime. which has been my province for the last ten years, representing people accused of crime and who have plead guilty to crime. if there's anything that my decade as a public defender taught me is how gray everything is. and how there's often a faint line, an indescribable line, a complicated line, where someone goes from being law abiding to breaking a law. and all the reasons why that happens. and all the different ways we as a society can address that.
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and i hope to bring that nuanced understanding with me to the circuit court, if confirmed. i will be guided by the law and have to apply the law and would willingly do that to the facts of any different case, but i think that nuanced understanding will enhance my ability to understand the facts of any given case. >> okay. are you a textualist or a provostist? >> one of the things i expressed to your colleague who asked a question earlier about a living constitution and there was yet another question about judicial activism is that i don't find these labels particularly helpful. they mean so many things to so many different people. what we do know is that the supreme court has instructed us that -- >> actually, counselor, i think
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they're pretty standard definitions. can you tell me which way you lean? >> no, senator. the supreme court has instructed that one must first look to the text of the constitution, the plain meaning there, also the plain meaning of the text of a statute, so, that method, the supreme court has instructed judges what to do. >> counselor. >> yes? >> i'm sorry to interrupt you, but my chairman's very strict on me and i do want to ask the judge one question in my 35 seconds and i'm sorry to interrupt you. judge, you've been on the bench and you've seen the federal judicial system up close and i agree with you, america's a remarkable country.
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do you think the federal judicial system is systemically racist? >> senator, thank you for that question. i am aware of social science research -- >> i'm sorry, i couldn't hear you. >> i'm aware of social science research, in particular, in my former area of expertise, which is in sentencing, that relates to ways in which policy choices about various aspects of the system can have demographic disparate effects. one is one this body has worked on very hard, much appreciated, the 100 to 1 crack powder disparity.
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as a judge, i am not looking at systemic effects, i'm not thinking about or focusing on or forming opinions about the research or the -- or the circumstances in the abstract like that. i am looking at each case, a person might make a claim that they've been discriminated against in a particular con ticket and i'm applying the law to see if the law sustains that claim. so, i don't really have a frame of reference to answer a question about systemic racism, but i am happy that you are thinking about those things, because they are in the province of the policymakers like yourself. >> okay. thank you, mr. claim. >> thank you, senator kennedy. and i would like to thank our two circuit court nominees for
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your patience, your endurance. please be mindful that as you've heard, senators may submit written questions following the hearing. we'd ask you to diligently respond, as they are sent your way. i'm going to excuse this panel and -- just in time, in the nick of time comes the senator from new jersey -- have you voted? >> yes, sir. >> good. come right on up here, because i haven't. and thank you to this panel and i'm going to ask the senator from new jersey to convene the second panel and prepare them for testimony. and i will return briefly. following his address to congress last night, president joe biden and first lady jill biden are on the road today with a stop in duluth, georgia, later this afternoon. our live coverage starts at 6:00 p.m. eastern on c-span 2, online
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at or listen live with the free c-span radio app. and then this evening, mike pence will make his first public remarks since leaving office in january. he'll be speaking at a fund-raiser hosted by the palmetto family council. live coverage starts at 7:00 p.m. eastern on c-span, online at or listen with the free c-span radio app. weeknights this month we're futuring american history tv programs as a preview of what's available every weekend on c-span 3. tonight, an evening of president james madison. author lynne cheney wrote a book about the fourth president and discusses his personality, health problems and political career. she also talks about the influential women in the president's life. the society of the four arts and palm beach, florida, hosted this event and you can see it tonight starting at:00 eastern. and enjoy american history tv every weekend on c-span 3.
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american history tv on c-span 3. exploring the people and events that tell the american story, every weekend. saturday at 8:00 a.m. eastern, american history tv and washington journal host a live study session for high school students preparing to take the u.s. advanced placement history exam, with jason stacy and matthew ellington. coauthors of "fabric of a nation" and live sunday at 9:00 a.m., on american history tv and washington journal, we'll look back 50 years on the spring of 1971 when tens of thousands of anti-vietnam war protesters converged on washington, d.c., with investigative journalist lawrence roberts, author of "mayday 1971: a white house at war. a revolt in the streets and the untold history of america's biggest mass arrest." exploring the american story. watch american history tv. this weekend on c-span 3.
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♪♪ the major of long beach, california, told house lawmakers about the facilities housing migrant children in his city and immigration policy experts testified on why unaccompanied children are coming to the u.s. from a house homeland security subcommittee. this is an hour and 45 minutes. the subcommittee is


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