Klobuchar: “Your nomination presents an opportunity to address a decline in the public's confidence in our Court”
WASHINGTON - Today, on the second day of the Senate Judiciary Committee’s hearing to consider the nomination of Judge Ketanji Brown Jackson to the Supreme Court, U.S. Senator Amy Klobuchar (D-MN) questioned Judge Jackson on how her approach to the law will help maintain public confidence in the Supreme Court.
Klobuchar highlighted how Judge Jackson’s nomination may help address declining public confidence in the Supreme Court, asserting: “One of the things your nomination presents is an opportunity to address a decline in the public's confidence in our Court and increasingly, many, if you see public opinion polls, see the Court as over-politicized or out of touch.” Klobuchar asked. “How do you think we can work to maintain the public's confidence in the Court? What do you see [as] your role in that?”
Judge Jackson responded that “Public confidence in the Court is crucial…That is the key to our legitimacy in our democratic system.” Pointing to her historic selection as the first Black woman nominated to the court, Jackson continued: “I am here standing on the shoulders of generations of Americans who never had anything close to this kind of opportunity… So this nomination, against that backdrop, is significant to a lot of people. And I hope that it will bring confidence. It will help inspire people to understand that our Courts are like them, that our judges are like them, doing the work, being a part of our government.”
Klobuchar also emphasized how transparency is key to maintaining public confidence in the Court, expressing concern about the Supreme Court’s increasing use of expedited “shadow docket” cases. She underscored how these opaque decisions have real-world consequences, highlighting a one-paragraph decision upholding a restrictive Texas abortion law.
“In the last few years we've seen the Court increasingly deciding cases in this way... Last fall in a one paragraph decision, a majority of the Court refused to stop the enforcement of a Texas law that severely restricts a woman's access to abortion,” said Klobuchar. “ I think you know these decisions have a profound effect on people's lives.”
Klobuchar further questioned Judge Jackson on the need for the Court to respect legal precedent to “avoid the perception that the Court is acting as another political branch.”
Judge Jackson concurred that “it's very important to have stability in the law for rule of law purposes so that people can order themselves and predict their lives given what the Supreme Court has already said. If there were massive shifts every time a new justice came on or every time new circumstances arose, there would be a concern that public confidence would be eroded.”
Pointing to an April 2020 ‘shadow docket’ decision where the Supreme Court halted a Wisconsin District Court order granting more time for voters to cast absentee ballots during the coronavirus pandemic, Klobuchar also asked Judge Jackson about the importance of protecting the right to vote.
Judge Jackson reaffirmed that the right to vote represents “the basis of our democracy…the right upon which all other rights are essentially founded.”
The full transcript of Klobuchar’ questions is given below.
Senator Klobuchar: Now, I want to go back to something I was talking about yesterday, and that is why today's hearing is so monumental including that it is occurring at a time when we as Americans have been reminded again, due to the courage of Ukrainians thousands of miles away, that we can never take our democracy or, for that matter, our courts for granted. It is also happening at a time when we are seeing each other for the first time after a two-year pandemic, connecting to each other again. And I hope this moment will be a moment where we see a renewed interest in our democracy, that we respect each other's rights and views, and that we see that we are not a nation of 300 plus million silos. Instead, we are a nation committed to this idea that what unites us as Americans is much bigger than what divides us.
And so in that context, you come before us with this incredible strength, legal acumen, grace under pressure that you have demonstrated today, and you also come before us, as we've noted, as the first black woman to be nominated, following 115 justices who have been confirmed. And I will note of the 115 justices, 110 have been men. And I actually once reminded late night show Trevor Noah of similar issues in the U.S. Senate. In fact, in the history of the U.S. Senate, of the nearly 2,000 people who have served, only 58 have been women. And he responded that if a nightclub had numbers that bad they would shut it down. But today, Judge, we're not shutting anything down, not the Court, not the Senate, and you are opening things up. And I think one of the things your nomination presents is an opportunity to address a decline in the public's confidence in our Court and increasingly, many, if you see public opinion polls, see the Court as over-politicized or out of touch. At the same time we've seen an alarming rise in threats targeting members of our judiciary for just doing their jobs. How do you think we can work to maintain the public's confidence in the Court? What do you see your role in that?
Judge Jackson: Thank you, Senator. Public confidence in the Court is crucial. As has been said here earlier, the Court doesn't have anything else. That is the key to our legitimacy in our democratic system, and I am honored to accept the President's nomination, in part because I know it means so much to so many people. It means a lot to me. I am here standing on the shoulders of generations of Americans who never had anything close to this kind of opportunity. From my grandparents who had just a grade school education, but instilled in my parents the importance of learning. And my parents, who I've mentioned here many times already, who were the first in their families to get to go to college. So this nomination, against that backdrop, is significant to a lot of people. And I hope that it will bring confidence. It will help inspire people to understand that our Courts are like them, that our judges are like them, doing the work, being a part of our government. I think it's very important.
Senator Klobuchar: Very good. I think along those lines your wonderful mentor, Justice Breyer, I quoted him about how he said we can help maintain public acceptance of the Court, and these are his words: “We can do it best by helping ensure that the Constitution remains workable in a broad sense of the term, specifically the Court can and should interpret the Constitution in a way that works for the people of the day.” As you know, I think Article 2, Section 2, doesn't refer to the Air Force because we didn't have an Air Force back then. So there are things about the Constitution that, of course, as we've gone along have been interpreted to meet the moments of our time. What do you think Justice Breyer means when he says a Constitution should be interpreted in a way that works for the people of today? And do you think justice can be both pragmatic and objective, and respect history?
Judge Jackson: I do and I think that the justices have demonstrated that. Some of their recent opinions have had to deal with modern technology, technologies that did not exist at the time of the founding. So, for example, the Riley case, the Carpenter case, these were Fourth Amendment decisions in which the Court was asked to determine whether or not it violated the Fourth Amendment for the police to search someone's cell phone without a warrant or for the police to use a GPS location data to determine where someone had been without a warrant. And obviously those technologies did not exist, but what the Court did was it looked back at the time of the founding and determined what the reasonable expectations of privacy were related to the term ‘unreasonable searches and seizures’, which appears in the Constitution. And having assessed what that meant back then, they could use those principles to decide whether or not a cell phone is like someone's home these days, with all of the information and all of the things that are stored there, and the Court determined that it was a violation of the Fourth Amendment. That the police officers needed a warrant, and they did so with reference to what the Constitution meant in history.
Senator Klobuchar: Very good. You are viewed as a judge, and you talked about this a bit yesterday, that writes lengthy opinions, that believes you should spell things out, and believes in being transparent. Is that a fair characterization?
Judge Jackson: That is, that is.
Senator Klobuchar: Okay, good. I'm sure your clerks know that. And I want to talk about something, to me, that's a bit the opposite, and that's something that some have termed, “the shadow docket,” and that includes decisions that the Court makes on an expedited basis that are usually unsigned and issued without oral argument or full briefing. In the last few years we've seen the Court increasingly deciding cases in this way, often over the dissent of maybe three or four of the justices. Last term, the Court granted 20 requests for emergency relief, a historically high number. Ten years ago, in the October term of 2011, the court granted only six requests in an entire year. When do you think it's appropriate for the Supreme Court to grant emergency relief, use this docket, when are the circumstances that warrant this? And I think you know these decisions have a profound effect on people's lives. I’ll just use one example, last fall in a one paragraph decision, a majority of the Court refused to stop the enforcement of a Texas law that severely restricts a woman's access to abortion. In that case, even Chief Justice Roberts objected to the Court’s decision to let the law take effect, calling the statutory scheme not only unusual but unprecedented. As someone who believes in transparency, could you talk in general about when you think the shadow docket should be used, when emergency relief should be given, and how if it's overused, it could undermine public confidence in the Court?
Judge Jackson: Thank you, Senator. Well, there's a balance that the Court has to consider. And that it -- insofar as on the one hand it has always had an emergency docket, the need for flexibility, the ability to get answers to the parties at issue is something that's important in our system. On the other hand, the Court has also considered the interest in allowing issues to percolate, allowing other courts to rule on things before they come to the Court. And I am not privy at the moment to the justices' views, and why and how they're using the emergency docket in these cases. If I was fortunate enough to be confirmed, I would look at those issues, but it's an interesting and important set of issues.
Senator Klobuchar: Okay. You know, I think just another example of this, by the way, is the day before Wisconsin's primary election, on April 6, 2020, right as the first beginnings of some of the health orders that came out with the beginning of the pandemic. The Court issued a 5-4 decision halting a district court's order allowing voters extra time to cast their absentee ballots so that they could avoid waiting in line to vote. And back then people literally got Covid, election workers and the like, because of this. And, again, I'm not going to belabor this point, but I think some of this is these decisions that are made that don't reflect some of the careful consideration that you have made in many of your decisions as a judge. But speaking of voting, I'll ask you one question on that front. Since the Supreme Court gutted the Section 5 preclearance regime of the Voting Rights Act in its decision in Shelby County, the D.C. Circuit has not seen many voting rights cases. However, as you know, Justice Ginsburg dissented in that case describing the right to vote as “the most fundamental right in our democratic system.” Do you agree that the right to vote is fundamental?
Judge Jackson: Senator, the Supreme Court has said that the right to vote is the basis of our democracy, that it is the right upon which all other rights are essentially founded, because in a democracy there is one person, one vote, and there are constitutional amendments that relate directly to the right to vote. So it is a fundamental right in our democracy.
Senator Klobuchar: Yes, I know that's how Justice Barrett answered that question as well in her recent hearing. I'm going to turn to an area that Senator Lee and I, we both chaired the Subcommittee on Antitrust, and so it's near and dear to my heart, so I thought I would spend a little time -- it usually gets relegated to the second round, but I'm putting it up on the docket here. U.S. antitrust law has been described as a comprehensive charter of economic liberty and I agree. And effective antitrust enforcement plays a critical role, as you know, in protecting consumers and workers, promoting innovation, ensuring new businesses have an opportunity to compete. It actually, from really early on in our country's history, has been a very important part of assuring that capitalism works. And in January, for the first time since the dawn of the internet, the Senate passed a tech competition bill out of the Judiciary Committee, it’s a bill that Senator Grassley and I lead, many of the members of this committee supported the bill, 16-6 vote. It's called the American Innovation and Choice Online Act. It's now headed to the Senate floor. I'm not going to ask you about that bill obviously, but I want to put this in some context. While tech monopolies have seized from 50 to 90 percent market share in major parts of their business lines, it is clear to me when you look at the plain language of the Sherman Act, Clayton Act, laws that are in place, that these monopolies are not okay. However, court rulings for decades in antitrust have created some major obstacles to taking on these cases, and it's not just court rulings. It is on us with, as I said, the dawn of the internet, decades having passed. It is on us, the Senate and the House, to update our laws this year to give enforcers the resources to do their jobs. Something you, if confirmed, would not have a role in, but the role of the courts is also very critical. You have been nominated to replace Justice Breyer, who came to the Court with a strong background in antitrust law. I know you handled a case -- you and I discussed it in my office. I think it got -- I think it got decided -- the merger was abandoned so you didn't have to rule on the merits of it. It was back in 2017. An FTC challenge. But I'll just quote something that Justice Breyer once said. He told this committee: “if you're going to have a free enterprise economy then you must have a strong and effective antitrust law.” Do you agree with Justice Breyer's statement, and how would you characterize the goals of our antitrust laws?
Judge Jackson: Well, thank you, Senator. The antitrust laws protect competition and, as you said, therefore, protect consumers and competitors and the economy as a whole. And the Sherman Act and the Clayton Act are broad in their statements, in their protections, and there's a lot of precedent in this area. If I were confirmed, I would use my methodology to look at the precedents in these areas to ensure that any legislation that I was considering is interpreted according to the text consistent with Congress' intent. And in the area of antitrust, that is ensuring that there is consumer protections.
Senator Klobuchar: Very good. And just -- to play it out a little bit, since the 1980s, the Court in cases like Trinco and Credit Suisse, Ohio v. American Express, has really made it increasingly difficult to enforce the antitrust laws and protect competition. And during that same time, and I know many of my colleagues know this, we have seen a rise in industry consolidation, market power, not only in tech with companies like Google and Amazon and Facebook and Apple, but also across our economy, really, in everything from pharma to cat food to caskets. What role do you think that congressional intent should play in the court's interpretation of the antitrust laws? And I say that because I think that we're dealing with some cases where justices have actually substituted their own ideologies for the intent of Congress in originally passing the laws. And I think it was Justice Souter who once said before this committee: “when we are dealing with antitrust laws, we are dealing with one of the most spectacular examples of delegation to the judiciary that our legal system knows,” and he added this: “certainly, a respect for legislative intent has got to be our anchor for interpretation.” So, what role do you think congressional intent should play in the court's interpretation of the antitrust laws?
Judge Jackson: Thank you, Senator. So, I've interpreted a number of statutes in my near decade on the bench. And in every case, the text of a statute is what the Court looks at in order to ascertain what the legislature intended and that is important because, as I've said, courts are not policymakers, and judges should not be importing their own policy preferences. Judges are restrained in our constitutional scheme in order to affect the will of Congress in terms of their interpretation of the laws.
Senator Klobuchar: Okay. Thank you. I'm going to turn to another topic, and that's freedom of the press. New York Times v. Sullivan 1964 case. We have recently witnessed, as you know, unprecedented attacks on journalists and journalism, whether it's violence overseas, recently losing, sadly, members of the press just in the last month in Ukraine, or threats and intimidation at home. This is very concerning to me, given the important role of the First Amendment. My dad was a newspaper reporter, so the issues hit home for me. Can you talk about your view of the role of journalists in our democracy?
Judge Jackson: Thank you, Senator. Journalists' freedom of the press is protected by the First Amendment. It is about the dissemination of information, which is necessary for a democratic form of government. The Supreme Court has held as much, and that was the basis for the Court’s determinations in protecting the press from liability in New York Times v. Sullivan and its progeny.
Senator Klobuchar: Okay. As you know, that ruling was a unanimous ruling in support of the First Amendment, and the Court held that when newspapers report on public officials, they're only liable for untrue statements that are published with knowledge or reckless disregard for whether the statement was false. The Court in Sullivan based its decision on our country's, “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” That's their quote. And it recognized that, “erroneous statement is inevitable in free debate”, “must be protected if the freedoms of expression are to have the breathing space that they need to survive”. Do you agree that those principles are just as relevant today as they were when the Supreme Court first decided New York Times v. Sullivan?
Judge Jackson: New York Times v. Sullivan is the continuing binding precedent of the Supreme Court, and it does state the principles that the Court has determined are undergirding the First Amendment right to free press.
Senator Klobuchar: Okay. And last summer, actually, in Berisha v. Lawson, the Supreme Court declined to review a case in which the Eleventh Circuit applied New York Times v. Sullivan, Justice Thomas and Justice Gorsuch each dissented from the decision not to grant cert, arguing that the Court should reconsider its holding in Sullivan. How would you approach a case that sought to limit or overturn the central holding in New York Times v. Sullivan?
Judge Jackson: Thank you, Senator. Any time the Court is asked to revisit a precedent, there are criteria that the court uses to decide whether or not to overrule a precedent. New York Times v. Sullivan is a precedent, and stare decisis is very important. The principle that courts -- that the Supreme Court should maintain its precedents for predictability and stability in the law. If the court is asked to revisit a precedent, its criteria, what it looks at are whether the precedent is wrong, and in fact egregiously wrong the court has said, whether there has been reliance on that precedent, whether there are other cases that are similar to the precedent or that relied on the precedent that have now shifted so that the precedent is no longer on firm footing. Whether or not the precedent is workable. Sometimes the Supreme Court will issue a ruling and determine later that it's not actually doing what the Court intended, and whether or not there are new facts or a new understanding of the facts. Those various criteria are what the Court looks at to decide whether or not to overturn a precedent, and they would be what I would look at if I were confirmed to the Supreme Court.
Senator Klobuchar: Thank you. I was recalling, as you spoke, about stare decisis at one of your first nomination hearing for the District Court and you actually, in response to one of my questions, you said: “ stare decisis is a bedrock legal principle that ensures consistency and impartiality of judgments.” And I think, as you know, by how you've talked more broadly about this moving off of the First Amendment questions, throughout the Court's history, stare decisis has been so key, and the Court has relied on it to maintain stability in the law, reaffirm its impartiality. As a former justice, I know Senator Durbin just read a very famous book about him, Minnesotan, Justice Harry Blackman, who actually Justice Breyer succeeded on the Court, said in his concurrence in Planned Parenthood v. Casey about the Court’s decision to uphold Roe v. Wade, he said: “what has happened today should serve as a model for future justices and a warning for all who have tried to turn this Court into yet another political branch.” What role do you think that stare decisis plays in protecting the independence of the judiciary and avoiding the perception that the Court is acting as another political branch?
Judge Jackson: I think it plays a very important role. As a doctrine that keeps shifts from happening in the Court. As I previously mentioned, it's very important to have stability in the law for rule of law purposes so that people can order themselves and predict their lives given what the Supreme Court has already said. And if there were massive shifts every time a new justice came on or every time new circumstances arose, there would be a concern that public confidence would be eroded, and so stare decisis is a very important doctrine that the Supreme Court has established and it's one that furthers the rule of law in this country.
Senator Klobuchar: Thank you very much. Well, that's a good way to end, Judge Jackson, and I do see Senator Cruz waiting in the wings, so by coincidence, and it looks like he has things he's putting up, of charts, by coincidence, I have a - I was going to put on the record and since he's here, it makes a lot of sense from the Judge that you clerked for, Senator Cruz, Judge Luttig who's now retired, and I know you were very close to him, and he actually submitted a letter on your behalf, Judge Jackson, and said, in this letter, and he's an appointee of George H.W. Bush, similar to Judge Griffith, who introduced you yesterday, and I have been very impressed by the support you have had from retired judges. Obviously, not appropriate for current judges, but retired judges appointed by both Democratic and Republican presidents as well as the bipartisan votes that you have gotten through the U.S. Senate for your other positions, but in this letter, the Judge -- former Judge Luttig says that you are eminently qualified to serve on the Supreme Court of the United States. And then he actually says, “Republicans and Democrats alike should give their studied advice and then their consent to the President's nomination.” And he adds, “Republicans in particular should vote to confirm Judge Jackson.” So I thought that might be a good segway, Senator Cruz, to your questions. So, I ask, Chairman, that the letter of support from former Judge Luttig, who employed Senator Cruz as a trusted law clerk, be admitted to the record.