0 first of two long and intense days of questioning from members of the senate judiciary committee began this morning with democrats using their questions to allow jackson to issue a rebuttal to republican accusations that she has been soft on crime and republicans pressing her on her record as a judge and public defender and bringing up a whole host of conservative hobby horses. things like critical race theory. jackson has tried to stay above the fray in her responses. early on in the hearing, she told democratic senator, dick durbin, quote, i tried to stay in my lane. along with me are claire mccaskill and msnbc political analyst with danielle holly walker, dean and professor at howard school of law and joyce vance, law professor at university of alabama as well as an msnbc legal analyst. we have a few minutes before we go back to the hearing. claire, i want to start with you. just some of the fireworks that happened earlier today. just in the last hour or so. senator ted cruz arrived prepared with visuals. among them, excerpts from a book for children called anti-racist baby. senator cruz seemed intent on questioning judge jackson about critical race theory. what, may i ask you, do you think the point of that was in oh, say, claire, a midterm election year? >> yeah. it was really awkward. ted cruz knows better. this is a woman that has a really long judicial record. hundreds of opinions. that he could mine for nuggets that would prove his point, but oh, no. oh, no. there's nothing there in her actual judicial record. so he's trying to shoe horn, you know, cultural war buzz words into a record that is just simply laughable. i think it looks silly when he was doing that. i think she was taken aback. i think anybody with a brain, and it was a good lawyer was taken aback. i thought chris coons did such a good job. talk about fighting buzz words with buzz words. he brought up a wall and hillary's e-mails. this judge had two cases with the wall and hillary's e-mails and decided against both hillary clinton's position and those people who didn't like the wall's position. because she did it just on the facts in front of her and the law as it applied to those facts. what a great rebuttal to all of the bs that somehow this is a partisan judge stalking in crt and other things into a judicial position on the highest court in the land. >> danielle, i wonder if you just say the phrase, critical race theory, enough times, whether it does the work. the audience that ted cruz was speaking to is probably a different audience that the audience is chris coons is speaking to, although the phrase, hillary's e-mail, is a sparkly object. do you think that phrase works at all? just saying crt over and over again? >> we've really reached the right of political theatre at this point and earn is trying to play to their audience and get in the most points that they can. i found it a deeply offensive line of questioning and i think she rightfully pointed out, what does this have to do with my role as a judge and potentially a justice on the united states supreme court? it did not go to her qualifications. her almost 600 opinions or her judicial philosophy or methodology on how she decides cases, but to hold up books that he claimed are part of the curriculum at georgetown day i found to be a really deeply offensive line of questioning and clearly, a dog whistle in terms of racial politics. i think it was a low point. also suggesting that those books are not appropriate, which i think is also you know, at a time in our country where we see the promotion of book banning and restrictive teachers can learn is a low for this hearing unfortunately. >> joyce, i wonder, at one point senator cruz mentioned a quote from judge jackson talking about the theories that she relied upon or that the sentencing commission relied upon in formlating its sort of thesis if you will. and critical race theory was mentioned in a sort of longer laundry list and judge jackson tried to articulate the difference between the sentencing commission and her work as a judge. do you think she was effective in her rebuttal? >> i think she was far more effective than senator cruz was because something he seemed to do, alex, he didn't really have any conviction on any of these questions. they were mostly misleading if not just outright sort of fake questions. he would ask them and as soon as she handled them, he would move on. that was what happened with this question where he tried to equate her work on the bench with the work of the sentencing commission which is charged with formlating policy. that's not what judges do and she had been very clear talking from the moment she hit the senate hearing room this morning about her desire to stay in her lane as a judge. cruz was of course unable to come in with any examples from her cases of times she had strayed from her lane. even with that, the slide he put up was misleading and she had the opportunity to come back and explain that critical race theory was one of any number of frameworks that could be consulted when making sentencing policy and that the slide cruz showed her had conveniently emitted all of the remainder. i don't think she had much trouble handling them and the ultimate goal here is to avoid losing a single democratic senator's vote, he certainly do her any damage today. >> claire, the drama starring lindsey graham written by lindsey graham, lighting and costumes by lindsey graham. he brought the fireworks, the drama, this afternoon when he took his moment to question judge jackson to unleash a litany of complaints about how conservatives have been mistreated in hearings and otherwise more broadly in society and stormed out of the hearing. what did you make of that performance? was it effective? what's the point of it all? >> i guess i'd have to, you know, figure out who lindsey was playing to. i guess he was playing to that 25% of the population out there that are big trump supporters and are the base of the republican party right now. it certainly was not the lindsey graham of most judiciary committee confirmation hearings. this is a man who voted for a number of democratic nominees through the years and who typically looked at qualifications and did not engage in histrionics. he had a moment during the kavanagh hearings where he used righteous anger and he believes that turned the tide for justice kavanagh. he may have been right. and i think he's gotten comfortable in that role. so now he's kind of the drama guy. i was disappointed because he is capable of very pointed, effective questioning. unlike other senators who's done some cross-examination in his day and he typically knows how to make a point and make it well. but this was awkward that he was kind of trying to put on a show, like you said. you know, give me the popcorn and where are the credits. >> danielle, one wonders what the strategy is on behalf of a number of these high profile republicans on the committee. whether this is not just fodder for some broader argument they're making. some broader attempt at a culture war within american society. i guess i just wonder, you know, it seems like they're trying to figure out a way to be righteously indignant over judge jackson's nomination, but there's really not much there in her record. do you read it in the same way? >> absolutely. yesterday, what was interesting is we didn't see negative comments about her qualify cases. there seems to be no disagreement among the senators on the committee about her qualifications. she is, has excellent qualifications. ranked well qualified by the aba. what's very interesting is seeing someone like senator graham, who has voted for her confirmation. so we have to keep in mind this is her fourth confirmation hearing. senator graham has voted for judge jackson's confirmation in the past, so to see this political theatre and the point scoring, the attempts to point score without really thinking about and talking about specifically her record is to me disappointing, but it also lends this incredibly partisan trend to supreme court confirmation hearings. and so even though we heard a lot of talk yesterday about civility, about complaining about how political and ugly these confirmation hearings have become, we've seen that trend continue today with lot of questions that have nothing to do with judge jackson's outstanding qualifications and record as a judge and she has an extensive record. which could be actual talked about in many of the moments where political point scoring is being attempted. >> i want to follow up on that, danielle. i kind of wonder how we'll look back at this confirmation hearing. there of course have been these partisan fireworks, but then there are the moments where judge jackson talks about her own experience, her family, the fact that she's received letters from little girls who say they're so excited to see someone like them to see someone like them take a seat on the highest bench on the land. i wonder whether the contours of history are shamed around that as opposed to where a lot of the republican members on this committee would like to see us go. >> i thought one of the most special moments from her exchange with senator cruz went right to your point. which is when she talked about the history of the georgetown day school. and talked about the history of a group of jewish and black parents wanting to create a school despite the fact that there was still legalized segregation. i agree with you that i think those moments are hopefully that will survive and the historic nature of this hearing and of hopefully her eventual confirmation to the supreme court. those will stick with us and i have to say my students are going to the hearing tomorrow. seeing students in the audience. seeing people around the country celebrate the historic nature of this confirmation hearing, i hope that that is what survey survives and that's what she has done a great job with is taking these deeply offensive lines of questioning then hitting home runs with them by talking about her personal story, achievements, but also the work of being fair and impartial in a system in which we know is not always the case. >> just a reminder for those joining us now. we are in a short break in the confirmation hearings for judge ketanji brown jackson. she is walking back into the room i believe right now. we still have our panel with us. joyce, really quickly. i want to get your thoughts on how judge jackson responded to questions about roe v. wade, which are concerned may fall in this coming docket on the court. did you, she cites starry desies is, something we heard from justice kavanagh and amy coney barrett. what did you make of her answer in terms of roe being settled law effectively? >> well, she certainly dug in on the role of the court in abiding by starre. which we're all waiting to see if the court will overturn roe versus wade this time, which would be a clear violation. there's a lot of squabbling about when old cases are right to be overturned. that's why you heard some of the senators referencing cases like dread scott which was overturned because it held black people can be owned by white people. clearly bad law. that's the sort of argument that republicans will offer if roe versus wade is in fact overturned so the issue becomes an issue of whether additional case, for instance cases that entitle american women to obtain contraception. >> joyce, i hate to cut you off, but we are going back to the confirmation hearings for judge ketanji brown jackson. we know senator ben sass is up next. we'll return to those hearings now and take a listen. >> thank you for answering the questions of the committee today and tomorrow. what you've said in public matches what you've said in private and that's a testament to your character. that also could be helpful to rebuilding public trust. so thank you for the way you've engages us thus far. judge, you are likely to go on to serve a lifetime appointment on the supreme court, which means that this is very likely the last job interview you ever have. >> and the most public, senator. >> these processes are a lot like proctology exam. that means it's an opportunity for you to explain how you view a supreme court justice's job and the limits and bounds on the job. so i want to go back to a topic we've discussed, which is how you approach cases. you've told this committee and in in private, that you don't have a judicial philosophy yet, but you think of yourself as having a judicial methodology. i'd like to understand that a little bit more and i think it would be helpful for the american people to understand that argument and the distinction more as well. earlier today, you said you quote, do not believe there is a living constitution and you also said that you're constrained to interpret the text and i think you said sometimes that's enough to resolve the issue. so i think i've heard you pay partial tribute to the judicial philosophy of originalism, but you've not adopted it as philosophy or label that applies to you. so maybe one of the places we could tease that out a little bit more is trying to dig into who's jurisprudence you most add mir. we've heard senator grassley, i'm not an attorney, so farming and ranching people from i come from know that john kennedy is super smart lawyer who kind of pretends to be an aw shucks kind of guy as he picks your pocket. >> do i get equal time, mr. chairman? >> he always gets unequal time. he always gets bonus time. but i think it might be helpful for us to understand who you most identify with in past nominees before this committee have talked about the mold of particular justices they thought they followed in. so if you had to tell the american people who you're closest to, who's that justice or those justices? >> thank you for the question, senator, and i must admit that i don't really have a justice that i've molded myself after or that i would. what i have is a record. i have 570 plus cases in which i have employed the methodology that i've described and that shows people how i analyze cases. i, in every case, am proceeding neutrally from a neutral posture from, in every case. i describe thoroughly all of the arguments that are made in the case to me as a judge because i want, in my lengthy opinion, for people to understand the inputs. this, i say, is what i'm considering because i lay out in very detailed way, everything that people have argued in the cases and when i'm doing my interpretation, i am focused on the text of any statute or constitutional provision. i am looking as appropriate to the intentions of the people who wrote the words because i view statutory interpretation, constitutional interpretation, those exercises consistent with my limited authority. i am conscious of not interpreting those texts consistent with what i believe the policy should be or what i think the outcome should be. i am trying in every case that involves that kind of interpretation to assess what it is that the parties, the parties who wrote the text intended. as a result, because my methodology involves these various pieces and because of the way in which i do things, i'm reluctant to establish or to adopt a particular label because the idea of how you interpret is just one part of the entirety of a judge's responsibility. as i mentioned, you know, i'm looking at the facts in a case. and my experience as a trial judge helps me to assess the facts from all of the different perspectives of the parties because i'm able to do that, i think, having heard from parties in all sorts of cases directly as they present their arguments. that's a part of the judging responsibility that isn't really captured by something like originalism or living constitution and i believe that the constitution is fixed in its meaning. i believe that it's appropriate to look at the original intent, original public meaning of the words when one is trying to assess. because again, that's a limitation on my authority to import my own policy views. but there are times when the meaning, unreasonable searching and seizures, due process. looking at those words are not enough to tell you what they actually mean. you look at them in the context of history. you look at the structure of the constitution. you look at the circumstances that you're dealing with in comparison to what those words meant at the time that they were adopted and you look at precedents that are related to this topic. all of those tools judges use and i have used, if you look at my cases. >> but when you said that you look at the intent of the authors of a statute, sometimes courts have to say the people who wrote this statute, whether they meant to or not, have done something the we the judiciary, speaking in the voice of you, is unconstitutional. and deciding that something is unconstitutional requires an ininterpretertive frameworks. we talked in my office about the differences between kagan, sotomayor's judicial philosophies and you told me you needed time to study that issue further. so assuming you've had a chance to think about that more, i guess i'd ask you again, among the three of their judicial philosophies. >> with respect, senator, i have not actually had time with all of my meetings with senators and the work that i've don to appear before you today. i would say that there are differences as you see from the various opinions that they have issued. i'm not sure which one i would necessarily follow because it depends on the case. i think their differences indicate that they are looking at different provisions. they are using the various tools that judges use and that i have used in my cases. the idea of striking down a statute is unconstitutional is daunting and should be for any judge or justice and would have to be looked at very carefully because of the limited nature of the judicial role and the fact that the policies have been adopted by the branch of government that has that authority under the constitution. >> so i guess i'm surprised after nine years on the bench that, i mean, you're super smart. nobody disputes that. and having worked for justice breyer and knowing of some of the philosophical arguments he and justice kagan had, it seems surprising that you wouldn't be able to reflect on the nachl of those disagreements because to say it depends on the particular case, that's fine, but they have different philosophical approaches. maybe another way to get at it. i think justice breyer again for whom you clerked and justice scalia used to travel together and have lively debate circuit conversations. can you tell the american people a little bit about what breyer, scalia road show looked like? what were they arguing about? >> well, my understanding is they were arguing or at least presenting two different viewpoints as to how the constitution should be interpreted. and i would say just as an aside before talking about their positions, that while i have been on the bench for nine plus years, the issue of constitutional interpretation in that sense doesn't come up very often. it comes up to the supreme court for sure. but it doesn't come up very often in the lower courts. what justice scalia and justice breyer, i believe, were debating was the justice scalia's notion of originalism, meaning the words of the constitution should be interpreted as they were written by the founders in the founding era and that they should not be considered to essentially to establish principles that modern justices could now apply based on their own view of the needs of society. and that justice breyer's position was more toward that latter view. that the idea of the constitution needing to be interpreted in a way that is consistent with modern sensibleties about the principles that the document reflects. and i would just say that it appears now that the supreme court has taken