Sen. Mike Lee (R-UT) questioned Judge Ketanji Brown Jackson, President Biden’s nominee to serve on the Supreme Court of the United States today on the second day of questioning.  His questions focused on her past cases dealing with federal lands, her record on criminal sentencing, and the troubling history of Supreme Court precedent regarding partial-birth abortion.  A full transcript of the exchange is below. 

 

MSL indicates Sen. Lee is speaking.  JKBJ and italics indicate Judge Jackson is speaking.  Timestamps are in reference to the above-linked video.

 

 [00:00:00] MSL: Thank you, Mr. Chairman. Thank you, Judge. I want to talk next a little bit about a case that you were involved in. A case called Coal River Mountain Watch versus the United States Department of the Interior. It was a ruling that you issued in 2015 while on the Federal District Court.  I know you've had a lot of cases. 

JKBJ: I have.

I can't imagine that by merely triggering the case name that would necessarily bring it back. But this case involved [00:00:30] a challenge to an administrative action within the Department of Interior on some issues bearing on coal mining within the state of West Virginia.

There were two parallel challenges brought against that administrative action; one in a federal district court in West Virginia, where the land in question was located and another in the US District Court for the District of Columbia, where you sat. The government defending itself against that action brought by [00:01:00] some environmental groups, asked that you dismiss the DC case so that the matter could be litigated in West Virginia. You denied that.

Can you, based on my description of the facts, does that ring any bells? And can you tell me why you might've denied it?

[00:01:17] JKBJ: Thank you, Senator. It actually doesn't. It sounds like dozens of cases that I handled with similar issues and requests. Something like a motion to [00:01:30] dismiss is early in the action. And so denying a motion to dismiss is pretty routine for the District of Columbia.

[00:01:36] MSL: I understand it. And I'm sure you handled a lot of those all the time as a district judge. The reason I raise it is just because it relates indirectly to some concerns that I've got that are somewhat unique to the Western United States.

We have a lot of cases that involve the U S Department of the Interior and agency actions taken relative to the public land [00:02:00] that we have. In every state east of Colorado the federal government owns less than 15% of the land. And in most of those it's much less than 15%, in the single digits or low single digits. In every state, Colorado and west of Colorado, the federal government owns more than 15% of the land, and most of the time it's a lot more.

In my state it happens to be about two thirds of the land that's owned by the federal government. As a result it complicates our ability to do just about everything we do, whether it's recreation, construction, oil, and gas development, whether it's [00:02:30] just accessing people's farms and ranches, or even something as simple as trying to fund local fire, police, search and rescue operations. All these things are affected by the excessive ownership of federal land by the federal government and the way it's often managed.

Sometimes decisions made at the federal level are challenged in parallel actions like these: one in the forum state, in the host state to where the action is happening and other in DC. And I'm always [00:03:00] concerned about forum shopping, and I'm sure that's something you've watched out for as a judge and saw forum shopping from time to time. It's also something that touches on an issue that involves statutory interpretation. There’s something called the Antiquities Act passed 110 years ago or so, designed to give presidents of the United States the authority to designate parcels of federal land as national monuments.[00:03:30]

This text of the statute states that the limits of the parcels in question should be quote, “confined to the smallest area compatible with the proper care, and management of the objects to be protected”. Now given that these presidential proclamations tend to be broad, it's sometimes the objects to be protected are also broad.

And as a result of that it's difficult to tell what the [00:04:00] limits are. Do you have any reactions to how we could discern that? How we could define any meaning out of that? It's got to mean something, the text of the statute. You try not to leave language simply unaddressed or meaningless in a statute.

Do you have any thoughts on how a statute like that, saying that it should be confined to the smallest area compatible with the proper care and management of the objects to be protected? Any thoughts briefly on that?

[00:04:24] JKBJ:  Well Senator, if I were presented with a case with that [00:04:30] statute in that circumstance, I would proceed as I always have.

You would have to understand the party’s arguments about the particulars in the case. What does the presidential proclamation say? To what does it relate? Whether there are any precedents in this area that define, further define, or further address what Congress intended with respect to the statute at issue.

[00:04:59] MSL: And I would assume that it would also matter if the government's lawyer defending the president's action made an argument that would leave the interpretation open-ended and meaningless.

[00:05:11] JKBJ: Well, as part of your interpretive exercise, as you're considering the party’s various arguments, one that did not account for all the words in a statute would be one that you might not agree with.

[00:05:28] MSL: No, I [00:05:30] get it. And this is one of the things that I've appreciated about what you've told us in these hearings. I really like the way you've described the effect. It's important to construe the text that you're asked to interpret. And in interpreting that you look at the language and you're endeavoring to figure out the original public meaning.

And I think that is a very helpful thing. Let’s move to a different issue a moment ago. Now, you clerked on the U S [00:06:00] Supreme Court for Justice Breyer in October term 1999, is that right?

JKBJ: That is right.

MSL: You clerked for Justice Breyer. And that was the same year that the Supreme court issued its decision in a case called Stenberg vs. Carhart. This is the case where the Supreme Court of the United States struck down a Nebraska law prohibiting partial birth abortion. In the absence of circumstances where the baby posed a threat to the life of a mother.[00:06:30] Now to be clear that the law prohibited a procedure where the abortionist causes an unborn baby to be partially delivered by the mother.

And then the abortionist intentionally kills the baby outside the womb by puncturing its skull with scissors and then collapsing the skull. This is gruesome and I don't like having to quote this, but it is relevant to the topic we're covering here. Justice Kennedy described it this way and chilling terms in [00:07:00] his dissent when he describes the fact that, “When scissors are inserted into the back of the head, the fetus’ body wholly outside the woman's body and alive reacts as though startled and then goes limp.”

Justice Scalia in his great eloquence expressed, lamented the ruling, but also expressed optimism for the fact that future courts would get it right. Saying quote, “I'm optimistic enough to believe that one day Stenberg versus Carhart will be assigned to its rightful place in the history of this [00:07:30] court's jurisprudence beside Korematsu and Dred Scott. This method of killing a human child, one cannot even accurately say an entirely unborn human child, prescribed by the statute is so horrible that the most clinical description of it evokes a shutter of revulsion.”

We then saw a few years later, the Supreme Court of the United States issue a different ruling. The Supreme Court issued a different ruling in a case called [00:08:00] Gonzales v. Carhart. Gonzales v. Carhart upheld a different statute. This one was federal rather than state, but it was a different federal statute that also prohibited partial birth abortion.

Judge Jackson, can you distinguish these cases for me? What was the difference between Gonzales v. Carhartt, where the partial birth abortion ban in question was upheld whereas in Stenberg v. Carhartt, it was invalidated? [00:08:30]

[00:08:31] JKBJ: Thank you Senator. I don't have the opinions in front of me. I think it had to do with the method of extraction, the fact-finding related to the procedure.

In one case the district court had made some findings in, and the court felt bound by them. And in another there was considerations beyond those that [00:09:00] previously relied upon. So there were distinctions that the court looked at and considered in the cases.

 

[00:09:09] MSL: Let's talk about court packing for a minute.

JKBJ: Yes.

MSL: One of the reasons court packing concerns me. One of the many reasons is because it's not prohibited in the first instance, it's not prohibited by the constitution. There's nothing in the constitution that says that Congress may not change the size of the Supreme Court, there's no limitation on that. [00:09:30] We have for one hundred and fifty years stuck with the number nine.

It has worked, and the absence of an argument saying that that number is too low, the court is too small, from a workforce standpoint we need to expand it. It's difficult to imagine why it would be a good idea to change it, particularly, because if you increase the size of the court in one fell swoop, and you do that for partisan political purposes, [00:10:00] allowing one president, the current president, to have a disproportionate impact on the court.

And to change its rulings, that portion of the court's docket that tends to be more politically contentious. It can turn the court into a political football of sorts. Given the fact that our Supreme Court Justices serve for life, once you do that, it becomes something of a one-way ratchet, always expanding, never contracting.

Before long, you could [00:10:30] see an increasingly larger court with the court expanding each time a different party secures the coveted circumstance of a majority of the House, majority in the Senate, and controlled by the same party of the White House. And so this is why it concerns me. I understand why it is that the canons of judicial ethics don't allow you to comment on matters that might come before you.

This is one that could not come before you as a justice. This is not a justiciable political question. It's [00:11:00] committed to the two political branches of government. There's not even a constitutional challenge that could lie to it, even though it would undermine the separation of powers in the constitution.

As I see it, it's not unconstitutional. So it couldn't, and it would never come before you. Last night when you were asked a question by my colleague Senator Kennedy  on this, you acknowledged that you have an opinion? Did I understand that right? Do you have an opinion on court packing?

[00:11:25] JKBJ: Senator, I have a lot of opinions. I'm a [00:11:30] human being, and I have an opinion on a lot of things. The reason why, in my view, it is not appropriate for me to comment is because of my fidelity to the judicial role. I understand that it's a political question, and that is precisely why I think that I am uncomfortable speaking to it.

[00:11:54] MSL: I understand that and out of respect, I respect the impulse. I respect[00:12:00] the overall issue. And I think it's better for Article III judges and justices ordinarily to not wade into the political thicket. This one I do think is different because number one, as I said, can never come before you. 

Number two: It does have an impact on what you would be doing. And you also as an Article III judge, someone who's served for nearly nine years as a Federal Judge, you've developed experience and intuition, and a thorough understanding of our federal court system. And that's why I think your [00:12:30] perspective on it would be valuable.

The reason it concerns me so much is that even when court packing doesn't succeed legislatively, it can leave an impact. The last time this was attempted was in 1937. President Franklin D Roosevelt was upset at the Supreme Court on a number of basis. He didn't like the 32 year old precedent of Lochner versus New York. Where five conservatives on the Supreme Court engaged in an act of judicial activism, reading [00:13:00] something into the constitution that wasn't really there.

Some people disagree with me on this, but it wasn’t there, and they impose that. But the bigger reason was, he didn't like the court's interpretation of the Commerce Clause. It was that interpretation of the Commerce Clause. The one we discussed yesterday, you know, prior to 1937, you had the Supreme Court agreeing as far as the channels and instrumentalities of interstate commerce that we talked about yesterday. You had the court more or less in agreement over [00:13:30] time as to the impact of the Dormant Commerce Clause.

But as to the substantial effects test that didn't exist yet. It required something much closer to an interstate commercial transaction. In order for Congress's Commerce Clause authority to kick in, they were the so-called four horsemen of the apocalypse. FDR actually called them, four conservatives who were consistently pushing for limits on congress’s authority.

And then you had other [00:14:00] justices who would sometimes join with them. Usually that included Justice Owen Roberts, who stood with them in maintaining narrower authority for Congress under the Commerce Clause. All that changed went on April 12th, 1937. Two weeks to the day when the case often associated with the so-called switching time that changed nine, West Coast Hotel versus Parish, or where they undid the Lochner precedent.

April 12th, 1937, the Supreme court decided a case LRP vs [00:14:30] Jones and Laughlin Steel that forever changed and magnified, expanded the Commerce Clause in a way that had it been through a constitutional amendment, it would be among the most significant, impactful constitutional amendments ever adopted.

And yet it's rarely discussed. This case resulted from one vote, one person on the Supreme Court who changed his vote; associate Justice Owen Roberts. It's widely believed, and I believe it, based on what I've researched on it, he was influenced heavily by FTR’s court [00:15:00] packing plan. He didn't want to be on a court that was packed.

He convinced himself that he made that switch in order to save the court as it was. And that has changed everything. It's led to a much bigger, more expensive, more intrusive federal government. We can disagree as to the policy merits of that, but it did change the constitution. That's why I worry about that.

 So I hope. I understand you don't want to answer it. I hope that between now and [00:15:30] the end of the day, you'll see fit to tell us what your opinion is. I do think it's worth discussing.

Let's talk for a minute, just got a moment left. I want to get back to your sentencing approach.

Now, when you approach these child pornography cases, what you're describing, in many circumstances is an overall concern that you've got what the [00:16:00] sentencing guidelines and particularly that portion of the sentencing guidelines that deals with child pornography cases. This showed up in the transcripts of some of your sentencing hearings, including the transcript of your sentencing hearing in the Hawkins case. I turned to that page 38, line 17 to 24 of that transcript.

Here's something you say in that Hawkins case, and I believe this was the eighteen year old defendant that you sentenced to three months in prison, when the lower end [00:16:30] of the guidelines range would have been ninety-seven. I think the higher end would have been in the one-twenties or something like that. 

You said, and in your case, this is you speaking to Mr. Hawkins. In your case in particular, “I don't feel that it is appropriate necessarily to increase the penalty on the basis of your use of a computer, or the number of images, or prepubescent victims. As the guidelines require because these circumstances exist in many cases, if not most, [00:17:00] and don't signal, an especially heinous or egregious child pornography offense.”

I've got a couple of questions about that. Were those, you start off that paragraph sounding like you're making a determination as to him, but then the observations you make in that paragraph seem to apply broadly. Is that right?

[00:17:22] JKBJ: Senator, I do not have the transcript of Mr. Hawkins case. I recall that I[00:17:30] found that case, like all child pornography cases, to be difficult, really difficult. His case, I recall, was in many ways an outlier, in terms of the various considerations that Congress required me to take into account.

[00:17:51] MSL: But there were prepubescent victims that were at stake?

[00:17:54] JKBJ: I don't remember how many, I don't remember the circumstances of his actual crime. What I will say is that, consistent with Supreme Court case law and Congress's statute in this area, judges have to take into account a number of factors, and the guidelines, which are no longer, I won't say not mandatory you have to calculate the guidelines, there are no longer binding and the Supreme Court has said that under the statutory scheme to judges have discretion.

[00:18:32] MSL: Okay, I am also almost out of time and I want to make a point. Hawkins, as I recall, as Senator Hawley discussed yesterday, he specifically asked for images of 11 to 17 year olds. So I don't understand how that can be an instance where that shouldn't matter, and where the fact that he did it with the computer, hardly atones for what he was doing, hardly offsets the fact that he was seeking and obtained pre-pubescent child pornography images. Nor does the fact that the images become easier over time to transmit and receive and store because of computers. I actually think it cuts in precisely the opposite direction that you described. It makes it more severe, not less. I see this as an aggravating factor and that is of great concern to me. I see I have exceeded my time. Thank you.

[00:19:33] JKBJ: Senator as in every child pornography case that I sentenced. I considered all of the evidence, all of the relevant factors. It is not the same exercise to look at a transcript, to think about guidelines, to not have in front of you, the individuals, the victims, the pictures, the circumstances that trial judges have to review in these cases or any cases. I understand Senator, that there are some questions about records, ect. Courts have all of the evidence and courts have all of the recommendations of various parties and courts have, under Congress's authority, the responsibility of using our judgment to make determinations that are sufficient, but not greater than necessary to comply with the purposes or promote the purposes of punishment taking into account  things like unwarranted sentencing disparities. It may seem like an easy exercise, it may seem in retrospect, when you look back at a few pieces of data, that courts have not done what it is that they are supposed to do, but what I can assure you is that I took every one of these cases seriously, in my duty, and responsibility as a judge, and I made my determinations in light of the seriousness of the offense, the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to promote various purposes of punishment, and all of the other factors that Congress prescribed.

[00:21:37] MSL: Okay, but you keep resetting that standard, and you specifically excluded from consideration the fact that he had requested and obtained images, prepubescent child pornography images. 

[00:21:52] JKBJ: Senator, I didn't exclude it. I didn't exclude it. What I did was I looked at the guidelines, which is what the Supreme Court requires, and I was making policy determinations as the Supreme Court says that judges are to do in these situations.

[00:22:08] MSL: Look at page 38 of your transcript. It looks to me like you excluded it and your actions sentencing him to three months, for one of the most heinous offenses imaginable, keep in mind because these are transmitted electronically, they are there for years. They re-victimize these victims the rest of their lives.