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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, again, everyone. It is day three of Judge Ketanji Brown Jackson's Confirmation Hearing for the Supreme Court and the second day of questioning by senators on the judiciary committee. Yesterday, the questions went on late into the evening with Republicans grilling Jackson on culture war issues like the teaching of race in schools. What does that have to do with being a Supreme Court Justice again? This morning, Senator Dick Durbin put it this way.

Dick Durbin: Your nomination turned out to be a testing ground for conspiracy theories and culture war theories. The more bizarre the charges against you and your family, the more I understand the social media scoreboard lit up yesterday. I'm sorry that we have to go through this. These are not theories that are in the mainstream of America, but they have been presented here as such.

Brian Lehrer: Senator Durbin, of course, the Chairman of the Judiciary Committee and a Democrat. We'll recap yesterday a little bit. We've been listening this morning. Our producer, [unintelligible 00:01:12] has been listening and monitoring, and pulling some clips from the last couple of hours. We'll play a few of those and talk about them with Mark Joseph Stern, Senior Writer at Slate covering courts and the law. Hi, Mark. Thanks for doing this on the fly. Welcome back to WNYC.

Mark Joseph Stern: Of course, thanks so much for having me back on.

Brian Lehrer: Let me play one of the exchanges from yesterday that I think Senator Durbin was referring to in that clip. This is between Senator Ted Cruz and Judge Jackson as he brings up the topic of critical race theory.

Dick Durbin: They include a book called Antiracist Baby by Ibram Kendi. They're portions of this book that I find really quite remarkable. One portion of the book says, "Babies are taught to be racist or antiracist. There is no neutrality." Another portion of the book, "They recommend the babies confess when being racist." Now, this is a book that is taught at Georgetown Day School to students in pre-K through second grade so four through seven years old. Do you agree with this book that is being taught with kids, that babies are racist?

Ketanji Brown Jackson: Senator, I do not believe that any child should be made to feel as though they are racist or though they are not valued, or though they are less than, that they are victims, that they are oppressors. I don't believe in any of that. What I will say is that when you asked me whether or not this was taught in schools, critical race theory, my understanding is that critical race theory as an academic theory is taught in law schools.

Brian Lehrer: Mark Joseph Stern, the silence there before she answered the question with words, that space was so long and almost violated our standards and practices for how much dead air you could have on a radio show.

Mark Joseph Stern: [laughs]

Brian Lehrer: I guess my question is, would a white person up for a Supreme Court nomination ever be held responsible for any theories of race that were not associated with them personally? Somehow she was being held responsible for critical race theory?

Mark Joseph Stern: No, of course not. So many of these culture war attacks on Judge Jackson are really dog whistles or even more explicit attempts to draw attention to her race and to her gender, her status as a Black woman, the first-ever nominated to the Supreme Court because Republicans know that for a certain segment of the American population, that will be enough to oppose her. That segment of the population is likely already very plugged into this frenzy over critical race theory, this moral panic over what is being taught toward children in schools. Republicans like Cruz have decided to latch onto that panic and try to somehow drag Judge Jackson into it. The connection here is so incredibly tenuous.

I have to imagine that's part of what she was thinking during that pause. She sits on the board of Georgetown Day School. She has no real control over what's taught in classrooms.

She doesn't know the curricula. She frankly, probably just mostly fundraises to the extent she's involved at all. Yet, here's Ted Cruz demanding that she answer to the racist baby. It's so absurd that I feel bad for her having to dignify it with a response.

Brian Lehrer: She's running for education secretary, isn't she?

Mark Joseph Stern: [laughs]

Brian Lehrer: No, I'm kidding. Also to the restraint that she showed in her composed answer, as a Black woman, I would think she did not have permission in the court of let's say white public opinion to get angry at the opposition's more ridiculous questions. Let's say, Brett Kavanaugh got angry at the questions that he found to be baseless or over the top about him and his confirmation hearings. Can you imagine how the majority public would react if she sounded like an angry Black woman in the way that Kavanaugh sounded like an angry white man, and it helped him?

Mark Joseph Stern: It is incredible to go back and watch Kavanaugh's performance when he lashed out at the committee and in quite personal terms roasted individual senators and accused them of trying to destroy his life and compare that to how Judge Jackson responded to these outrageous smears including, and we haven't talked about it yet, but the charge that she has soft on child predation and may even facilitate child molestation. These outrageously false charges are being flung at her from every direction. Yet, she has been able to retain just incredible poise to remain calm and eloquent under these very difficult circumstances because as you said, she knows she's not allowed to lash out the way that Brett Kavanaugh is. That is a privilege reserved only to white men. When a Black woman tries to do it or allows herself to do it, she will not get the applause that Brett Kavanaugh received when he did it. I think that she's acutely aware of the limitations that she has to deal with as a Black woman in the public sphere. She's working within those limitations. Frankly, she's been working within them her entire life. It really struck me. She keeps talking about how she writes long opinions because she wants to explain to everyone why she has ruled the way she has to give everyone an understanding of what she did and why they got a fair hearing.

That just goes to her desire to prove her own legitimacy while also demonstrating the legitimacy of the system that she is working within. It's an incredible talent. It's one that no white man who has sat in that seat before has ever even had to think about because that comes automatically to them.

Brian Lehrer: We'll play some more clips from just this morning in a minute. I want to follow up on something you brought up because one of the issues the Republicans have been pressing her on is a lighter sentence than sentencing guidelines recommended in a child pornography case. At least, that's how they frame it. Again, let's just take a step back and think, "Wait, are you accusing this judge with everything we know about her life, from having sympathy for child pornography, for somehow being in cahoots with child pornographers." Can you explain what really happened there?

Mark Joseph Stern: Judge Jackson, as a District Court judge, heard a number of cases involving child pornography that are called non-production cases, which means that the individual did not create the pornography. They possessed the pornography. I want to be clear that that is horrific and odious and not even remotely acceptable and that people who possess child pornography certainly deserve to be punished. Punished they were in her courtroom.

Brian Lehrer: By the way, that's the point that the discourse has reached in this country. You felt compelled just now to say, "Don't worry. I think child pornography is bad."

Mark Joseph Stern: Yes, absolutely. To be perfectly honest with you, I was looking at my Twitter responses yesterday. When I was defending Judge Jackson, people were accusing me of molesting children, simply because I defended her, her sentencing in these cases. The discourse has fallen far below the gutter. To go back to my point, the sentencing guidelines that were passed by Congress and implemented by the Sentencing Commission, they're incredibly outdated. They have not really been adjusted to the internet age. They are outlandishly draconian. An 18-year-old who has pornographic pictures of his 17-year-old girlfriend could potentially go to prison for years, even decades.

An individual who has a few images of child pornography could be in prison for decades and decades and not let out any time in the foreseeable future. That is not the goal of our criminal justice system to simply slap these just completely draconian punishments on especially first-time offenders. The vast majority of Federal judges in this country who hold these trials and sentencing hearings, they give sentences to these individuals on the lower range of the guidelines. That is perfectly within their rights, they are allowed to go anywhere within the guidelines, and they are allowed to go beneath the guidelines, which judge Jackson has a few times when she feels there were mitigating circumstances.

Again, the vast majority of trial court judges are already doing that. She is not alone and this isn't even a political thing. Judges are appointed by Democrats and Republicans, every single day. As we speak, are handing down sentences to people convicted of child pornography that are at the low range of the guidelines, because everyone agrees that they are too harsh. The Sentencing Commission agrees, the Department of Justice agrees, many members of Congress agree. For Republicans to pluck out a handful of these cases where Judge Jackson has ruled entirely within the mainstream, along the exact same lines as hundreds of other judges.

That is a grotesque assassination on her character and does not at all reflect the reality of how sentencing worked in her courtroom.

Brian Lehrer: We should mention that different from what you may be seeing on your television screens or on your phones with this questioning by the senators who are maybe playing for the 2024 presidential nomination or more time on Fox News or whatever they're playing for. There have been a number of conservative court watchers, NPR and others have noted this, who have said that Judge Jackson's sentencing in these cases was on par with the majority of judges' sentences in similar cases. Just saying that to back up your statement that she's mainstream on this.

I want to bring up another one from yesterday. I said we were going to go on to this morning's clips, but I want to bring up one more, play one more from yesterday that I found really interesting and left me with a question about Judge Jackson's actual judicial philosophy and how much you would call it liberal or conservative in the way that we use those times as they apply to the court. This is in an exchange with Senator Ben Sasse yesterday, where Judge Jackson seemed to invoke part of Justice Scalia's judicial philosophy of originalism and say-- I have to rule in this context because this is what the Supreme Court is. Now let's listen to 20 seconds.

Ketanji Brown Jackson: It appears now that the Supreme Court has taken Justice Scalia's view that the prevailing interpretive frame for interpreting the Constitution is now very clearly looking back through history.

Brian Lehrer: Is Judge Jackson essentially conceding that she will have to rule the way the majority is because Breyer who she would, of course, replace on the court and who she clerked for, was famous for pushing back on Scalia on that originalist way of looking at the law. What was Judge Jackson saying there, and she said versions of that to a number of senators.

Mark Joseph Stern: She was saying something very shrewd, which is that originalism, the idea that judges interpret the Constitution in line with its original public meaning that that is now a kind of default mode for the Supreme Court. That judges whenever they're interpreting a constitutional provision, must look to the original meaning of the clause to try to figure out the scope and whether it applies to the case at hand. I think that was a really smart concession because conservatives like to say that there are two schools of thought. There's originalism, which is conservative, and then there's living constitutionalism, which is liberal, and living constitutionalism just allows the constitution to evolve with the times and liberal judges just infuse their policy preferences as they wish. That is not at all the case today. I don't think a liberal Justice has used the words living constitutionalism in decades. The reality is that originalism is very, very powerful and a very useful mode of interpretation, but it doesn't answer every single question.

In the last few decades, we've seen a lot of liberal groups use originalist arguments to lead to liberal outcomes to say, if we actually embrace the original meaning of equal protection, it leads to a broader right for gay people or for women than what a conservative court has said in the past. What Judge Jackson is doing is conceding that she will use originalism as one tool in the toolkit, without disclaiming any other mode of interpretation.

I think placating Republican senators, that she won't be a "living constitutionalist," but not truly conceding anything substantive because, at the end of the day, judges across the political-ideological spectrum can use originalism to get to the outcome that they prefer, whether it's on the left or the right.

Brian Lehrer: All right. Let's play a clip from this morning. Another clip from this morning, Georgia Senator Jon Ossoff, a Democrat. Started things off today as the first round of questioning came to a close this morning. He was supposed to question her last night, but they went so late. A former investigative journalist, if you know Ossoff's background, he asked Judge Jackson about press freedoms. He also asked about the right to legal representation and other constitutional matters, but he began by asking Jackson about her brother, a former police officer who also served in the military. Here's how Judge Jackson responded.

Judge Brown Jackson: I grew up with family members who put their lives on the line. I understand the need for law enforcement, the importance of having people who are willing to do that important work, the importance of holding people accountable for their criminal behavior. I also, as a lawyer and a citizen, believe very strongly in our Constitution, and the rights that make us free. What that means to me, is an understanding that although we need accountability, although there is crime, we also have a society that ensures that people who have been accused of criminal behavior are treated fairly. That is what our Constitution requires. That is what makes our system so exceptional.

Brian Lehrer: She invoked American exceptionalism. Yesterday she was invoking in her opening statement. I guess that's two days ago now. The American Dream that anybody who works hard can accomplish their dreams in this country, which a lot of people don't believe is really true. Put her in context of invoking American exceptionalism and the American Dream.

Mark Joseph Stern: I think this is really canny rhetoric from her because she understands that there are going to be attacks based on critical race theory. She understands that she will be tied to the 1619 Project and other bugaboos of the rights. She knew going into this, that one argument on the Republican side would be that liberals and liberal judges don't really love America or believe in America. She clearly decided to head that off from the start and give at the outset of the hearing what sounded like a pretty conservative speech. As you noted, she talked about the American Dream and how it can still be achieved, and how she is living it.

During these hearings, she has really invoked and embraced American exceptionalism and actually notably disclaimed any reliance on international law in her jurisprudence, which is quite interesting because her former boss, Justice Breyer is a big proponent of using international law on the court, she decided to throw him under the bus a little bit. I think, again, that was a canny move because she is pre-empting these potential lines of attack on her that are, of course, dog whistles about her race, that are, of course, trying to convince viewers at home that as a Black woman, she couldn't possibly believe in America, that she must be too fixated on the legacy of slavery and racism.

She has very definitely put all of that behind her and said, "No, I am right in the mainstream mold of an American citizen, I am a patriot, and I will enforce this constitution that I fundamentally believe in." These attacks that are trying to tie her to very far-left groups that dislike the Constitution or want to expand the courts, she has let all of that roll off her back. At least to my eyes, it hasn't really stuck at all.

Brian Lehrer: Is this just a PR show? You used the word rhetoric, or is this who Judge Brown Jackson really is in a court belief system? I'm not sure any of it really matters for sitting on the Supreme Court, then you're going to look at the merits of individual cases, but she's presented herself this way. Do you have reason to believe this is her philosophical grounding?

Mark Joseph Stern: Look, when you're testifying before a Senate committee, it's all PR to some degree. She wants to win at least one Republican vote on this committee because it's evenly tied, it's split down the middle, and otherwise her confirmation will take longer. I think there has to be some political calculus here, but I really do believe that she is pretty much speaking her truth when she says this stuff. I have had conversations with former clerks of hers, individuals who know her, who say she really is just pure sunshine, that she really does believe that she has been able to live this dream and that others should be able to as well and that she wants to lift people up.

Although America certainly is flawed, that individuals can overcome those flaws even if they face discrimination and roadblocks along the way. While I do think some of this is calculated to win a handful of votes on the other side, I don't think it's all nonsense and I don't think it's all just a smokescreen. I think this is really who she is deep down and that has again really disabled a lot of these Republican attacks that were designed to make her seem like she doesn't truly love America.

Brian Lehrer: We have a few minutes left and one more clip to play from this morning's hearing with Mark Joseph Stern, Senior Writer at Slate covering courts and the law as we're focusing now of course on the confirmation hearing for Ketanji Brown Jackson to sit on the Supreme Court. Mark just to follow up on what you just said if she's angling to get at least one Republican vote, do you think she's going to get it. Three Republicans voted to confirm her for her current Court of Appeals position.

They're still all in the Senate, Lindsey Graham who seems to have turned against her plus Susan Collins and Lisa Murkowski I was also interested in Senator Sasse who I mentioned before I watched their whole exchange yesterday and he was so respectful of her and seemed to thank her for the thoughtfulness of her answers and all this stuff. I thought it's Ben Sasse who would like to be president himself as a Republican thinking of voting for Judge Brown Jackson. Do you have any headcount?

Mark Joseph Stern: I am skeptical that she will win any Republican votes. Although I would put Ben Sasse at the top of the list if I thought there might be any crossovers. The issue seems to be that Republicans on this committee are using these hearings as a grievance parade to trot out all of their complaints about the previous three confirmation hearings for the three justices nominated by Donald Trump. They keep talking about the allegedly awful treatment of Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch.

They keep turning back to those hearings and accusing Democrats of dragging them down into the muck. I think they see their position here their skepticism for Jackson as revenge for all of that history. Even if there are some Republicans who would be inclined to vote for her. I think Graham if he could set all of this history aside really would be because he's been reasonable on this stuff in the past. They're probably not going to do it here just to make a point about how aggrieved they are over the treatment of choice nominees.

Brian Lehrer: Another one who has voted for some of Biden's lower court nominees is Republican Thom Tillis of North Carolina. I want to play a clip of him before we run out of time. I think the context for this is another ruling of Judge Jackson's that they're pressing on her to shorten the sentence of a big fentanyl dealer based on the new sentencing law that Congress passed recently even though Congress did not make that law retroactive. She had the legal right to shorten it but Republicans are saying it's an example of the judge making her own policy rather than just following the law. The Congress passed and you'll hear Senator Tillis here with the innuendo that she's soft on fentanyl dealers. Here we go.

Ketanji Brown Jackson: There were lots of people in our system who instead of taking responsibility for what they had done and then ultimately understanding the harm and potentially not doing it again. Instead of that those people were bitter, they were angry, they were feeling reaction victimized because they didn't get a chance to say what they wanted to say because nobody explained to them that drug crimes are really serious crimes. Nobody said to them, "Do you understand that there are children who will never have normal lives because you sold crack to their parents and now they're in a vortex of addiction." Do you understand that Mr. Defendant I was the one in my sentencing practices who explained those things in an interest of furthering Congress's direction that we are supposed to be sentencing people so that they can ultimately be rehabilitated to the benefit of society as a whole?

Thom Tillis: I appreciate that Judge Jackson I just still note that virtually half of those people statistically speaking that you gave that speech to within eight years were back in prison and in some cases for more serious offenses than the first incarceration.

Brian Lehrer: There was Thom Tillis. Sorry if I misled you, folks, introducing that clip he was obviously not the first speaker in that, she was responding to the question that I said he raised but can you put that one in context before we run out of time, Mark?

Mark Joseph Stern: This one almost rebuts itself because of course she has no control over the actions of individuals whom she sentences and if they become recidivists. That's not on her. It's just a reality of our system. This whole idea that she violated Congress's desires by imposing a retroactive sentence relief, that's just pure nonsense and reflects a deep misunderstanding of how sentencing guidelines work. Congress has given judges so many different to balance. It's a really difficult job and 10 different judges will come up with 10 different answers. Her answers are certainly defensible. She gave pretty harsh sentences to a lot of these individuals.

I actually think there are a lot of judges out there who would've given lighter sentences. She clearly wanted them to pay for their crimes. She felt some of had the capacity for rehabilitation. In a lot of cases, she was right, in some she was wrong but she applied the law even-handedly. There's just not much more you can say about this unless you want to attack every single District Court judge who's ever had an offender commit another crime once released. That's 100% of them.

Brian Lehrer: Mark Joseph Stern, Senior Writer at Slate covering courts and the law and watching the Ketanji Brown Jackson confirmation hearing. Thanks for taking some time from watching the hearing to talk about it with us.

Mark Joseph Stern: Thanks so much for having me on.

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