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Brian Lehrer: Brian Lehrer on WNYC. Now we'll turn to the start of Judge Ketanji Brown Jackson's confirmation hearing for a seat on the US Supreme Court. Judge Jackson is currently a judge on the US Court of Appeals for the District of Columbia Circuit. The proceedings yesterday started with opening statements from senators and concluded with a statement from Judge Jackson yesterday afternoon.

This morning, hours of questioning have already taken place from senators on the Judiciary Committee. We're going to play a few clips and talk to law professor Olatunde Johnson from Columbia. Let me start with a clip first here. This is part of Judge Jackson's remarks from her opening statement yesterday, she talks about how her life differs from her parents' lives just one generation ago.

Judge Jackson: My parents taught me that unlike the many barriers that they had had to face growing up, my path was clearer. So that if I worked hard, and I believed in myself, in America, I could do anything or be anything I wanted to be.

Brian Lehrer: That was yesterday. Here's a clip from this morning. Senator Lindsey Graham spent a lot of his questioning time this morning focusing on Judge Brown Jackson's time as a defense lawyer for several detainees at Guantánamo Bay. Here's an exchange. It's about a minute and a half between the two. This starts with Senator Graham asking Judge Brown Jackson about an amicus brief that she signed on to during her tenure.

Senator Graham: We hold enemy combatants as long as they're a threat. There's no magic passage of time that you got to let them go. My question is very simple, do you support the idea? Did you support then the idea that indefinite detention of an enemy combatant is unlawful?

Judge Jackson: Respectfully, Senator, when you are an attorney and you have clients who come to you whether they pay or not, you represent their positions before the court.

Senator Graham: I'm sure everybody in Gitmo wants out. Now, I got that. This is an amicus brief, and I just don't understand what you're saying, quite frankly, I'm not holding it against you because you represented a legal position I disagree with. I mean, that happens all the time. I'm just trying to understand what made you join this cause and you say, somebody hired you, but did you feel okay in adopting that cause? I mean, when you signed on to the brief, were you not advocating that position to the court?

Judge Jackson: Senator, as a judge now, in order to determine the lawfulness or unlawfulness of any particular issue, I need to receive briefs and information making positions on all sides.

Brian Lehrer: That interaction from this morning between Judge Brown Jackson and Senator Lindsey Graham. We have two more clips yet to play. Joining me now is Olatunde Johnson, faculty director for the Center for Constitutional Governance and the Jerome B. Sherman professor of law at the Columbia University Law School here in New York. Professor Johnson, thanks for coming on. Welcome back to WNYC.

Olatunde Johnson: Thank you for having me, Brian.

Brian Lehrer: Can you put the exchange that we just heard between Senator Graham and the Judge into context for us?

Olatunde Johnson: Yes. To put it into context, maybe I'll back up a little bit and just say what much of the day was like yesterday before we got to this. I was really struck yesterday by just the historic nature of the nomination, and you see that in that first clip that you shared with us. Not just that she situated her journey in terms of her family history, which is really important, but she situated her appointment in terms of our history as democracy.

I thought that that could sound very scripted, and it didn't move me personally. We talk about representation, we talk about legitimacy, we talk about role models, and you really saw that come into play, but it was also making a point about our yet unfinished democracy that I thought was very powerful in the legitimacy of the court as an institution more broadly. I thought that was really important. You didn't play this clip, where she also talked about Justice Breyer, which we can talk about in a second. [crosstalk]

Brian Lehrer: Let me follow up on something that you just said and ask you to go a little further, because one thing that struck me about that first clip that we played from yesterday's opening statement, when she says, "My parents taught me that unlike the many barriers they had had to face growing up, my path was clearer, so that if I worked hard and I believed in myself, in America, I could do anything or be anything I wanted to be."

Part of the background there is both her parents had attended segregated primary schools, and so they came from that era of American history where the segregation was official, but that's a fairly conventional view of the American dream, right? That it offers a path to success based on if you believe in yourself and you work hard. I think we hear much more these days about how opportunity is structural, that it depends more on the ZIP code you're born into than the content of your character.

Olatunde Johnson: Yes.

Brian Lehrer: Were you surprised at all to hear that from a judge who might be characterized as a progressive today?

Olatunde Johnson: I can't say that I was surprised to hear about that. One of the things-- Your last guest, you were talking about these questions about the challenges that remain in our country and in our city. That is the reality, but I'm not surprised that she would cast it in that way. I do think that you have to believe in this idea of law, to be a judge, and it's a lot of what we teach in law school, a lot of how we frame things that we're on a path to a law that's more capacious and inclusive over time, you have to have that optimism that it can operate that way.

I do think it's still a resonant story. I don't think she meant it in any kind of fictional sense to describe her family's path. I think it's important. What you also saw yesterday, and this leads into thinking about Senator Graham's comments, were, while Democrats really emphasized her expertise or breadth of experience or credentials and framed her criminal defense background as a strength, she knows about the Constitution, she has empathy for people.

From the start, a few of the Republican senators really questioned her on this, and that's what you really saw Graham delving into today. It's really counting on us not to be focused on the details of it all, because it's very hard especially, even if you're a lawyer, to go back into these cases and think about the range of her arguments. What they want is the headlines, it's around crime, it's around Guantánamo, those are really easy talking points to get across the built skepticism in her as a nominee or at least are trying to build skepticism.

Brian Lehrer: Right. Every defendant in our criminal justice system deserves a lawyer. I don't think there's a Republican on the Judiciary Committee who would disagree with that.

Olatunde Johnson: Yes.

Brian Lehrer: Let's hear another clip from this morning where Judge Jackson characterized her work on behalf of Guantánamo detainees further, this time speaking to Senator Chuck Grassley.

Judge Jackson: After 9/11, there were also lawyers who recognized that our nation's values were under attack. That we couldn't let the terrorists win by changing who we were fundamentally. What that meant was that the people who were being accused by our government of having engaged in actions related to this, under our constitutional scheme, were entitled to representation.

Brian Lehrer: On a related line of questioning, Judge Jackson was an Obama appointee on the US Sentencing Commission, where she helped to rewrite some of the guidelines that were intended to reduce recommended penalties for drug-related offenses that were seen as excessive or discriminatory. Here's a clip of her explaining that role.

Judge Jackson: Advocacy on behalf of your clients, making critical arguments, the best arguments you can come up with is a service to the court, but it's a totally different thing than operating as a judge. I think that having had those various experiences, I'm now really mindful of my role and limitations in the judicial branch.

Brian Lehrer: Professor Johnson, I didn't get to watch the hearing this morning. Obviously, I've been doing the show, but it sounds from these clips that my producer pulled, like they're putting her on the defensive about being a defense attorney at all and working on a sentence commission that was evaluating what is fair sentencing under federal law.

Olatunde Johnson: She [unintelligible 00:10:12] a bunch of opportunities to really speak to that, from Democrats and Republicans, and some of the questions were more pointed, but I thought she held up pretty well, and I have one area that I want to mention that I thought was a little bit more difficult for her. One is that she didn't back away from the core importance of being a public defender and representing people who've been accused of crimes or people who are in Guantánamo Bay, and that's very important.

She grounded that in a constitutional value and also the ethical values, the value of representation that lawyers really adhere to. I thought of, many of my students who want to go into public defense or who do this work in private law firms pro bono and what message was being sent to them by this being a continual area of questioning.

I thought she answered that pretty well. She also talked about the role division, you saw that in the clip, that she understood the role of a trial judge and an appellate judge and what she would do as a Supreme Court Justice, which is not to impose her particular personal views. She talked about that throughout. I thought the hardest thing for her were the Lindsey Graham's line of questioning that wasn't about Guantánamo. That was really about the treatment of past nominees.

It's one thing to raise that in your opening statement, but he framed a lot of that as a question to her, "Do you agree with this mistreatment of other nominees?" There's really nothing for her to say. He also asked her about her religious views just to bait her into saying that Amy Coney Barrett was treated inappropriately, so those were more uncomfortable lines of questioning. I thought she held up pretty well in talking about the value of representation.

Brian Lehrer: What did she say about the treatment of the previous nominees?

Olatunde Johnson: She tried not to answer that. She said, "This is not something that I can speak to myself" and sat there quite uncomfortably through it. Of course it's not to her to say anything about, she didn't want to answer questions about her own personal religious views other than her general statement about her faith which she introduced and others introduced on her behalf.

This is kind of a fine line to walk. People often try to invoke their faith. It's a way of saying I'm just like you, but I think [crosstalk] also can raise a context of a religious test because not everyone is of that religious faith. I thought she sort of backed away from saying the specifics of that, and Lindsey Graham wanted to push her on it. This is inevitable. It's a political process.

Brian Lehrer: It's worth remembering that the only reason it came up in the case of Judge Barrett was that there were things in her background that would make people at least want to ask the question about whether she wanted to impose her religious views as the law of the state. That's very different than asking somebody about their religious views on a personal level.

I have a follow-up question for you about the fact that Judge Brown Jackson was a defense attorney and what that might bring to the bench on the Supreme Court, because people may not know this stat but it's really eye-popping when you do. Of the other Supreme Court Justices, five of them have been prosecutors in the past. I think I saw that there's not been another defense attorney or maybe it's just another public defender since Thurgood Marshall.

Olatunde Johnson: Yes, this is true.

Brian Lehrer: What happens to justice when the only people who become judges on the highest court have been prosecutors and not defense attorneys? Do you as a law professor know any data on that? Are people who've been public defenders and become judges likely to make different kinds of rulings than people who are prosecutors and become judges?

Olatunde Johnson: Yes. This issue I think is actually one of the most important dimensions of her nomination that I think has gone a little bit under the radar in the sense of just focusing on her race. She contributes diversity in terms of that background, and that's very important. She talks about that in very specific ways. She understands the sentencing laws, and she understands the whole array of criminal justice institutions around that.

She understands particular constitutional provisions, but she also talked about the impact on defendants and how she deals in sentencing. People come in and they have sort of these broad ideological takes on the law but don't actually understand the impact of the laws on individuals, on poor people. I think that she has that experience will add a dimension to the court.

I don't have the statistics in front me on the skew the imbalance, but I know far more prosecutors are appointed to the federal judiciary than public defenders. Biden has been trying to correct that. In terms of if it changes the outcome of the cases, I don't have that data, but I do suspect that she'll think about things like what is effective counsel very differently or how should sentences be structured or how can a judge actually implement this broad rule or law that the Supreme Court makes. She'll have more precision on that than any of the justices, or she'll have a different take on that than the current justices on the Supreme Court.

Brian Lehrer: I see a stat from the Cato Institute, the libertarian think tank that says, "Donald Trump appointed over 12 times more judges who had worked exclusively as government advocates than judges with backgrounds in Criminal Defense or Plaintiff-Side, Civil Rights Litigation," so there's a little context for that as we run out of time with Columbia law professor Olatunde Johnson on the Ketanji Brown Jackson hearings so far. Professor Johnson, we always appreciate it. Thanks a lot.

Olatunde Johnson: Thank you. Thank you, Brian.

Brian Lehrer: We are streaming the hearings live at wnyc.org. We'll talk about them more on tomorrow's show of course. That's the Brian Lehrer Show for today, produced by Mary Croke, Lisa Allison, Zoe Azulay, Amina Srna, and Carl Boisrond. Our interns this spring semester are Anna Conkling, Gigi Steckel, and Diego Munhoz, and that was Juliana Fonda and Miyan Levenson at the audio controls.

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