0 facts, i'm applying the law in as neutral and consistent a manner as i can. because that is the duty and requirement of the judicial oath. i'm also very conscious of the limits of judicial authority, of the restrictions that exist in the law to prevent me as a judge from becoming a policymaker. this means that i carefully scrutinize my jurisdiction. it means that i look at the text and focus on the text and the intentions of the legislatures that drafted that provision. or the intention of the framers that put forward that constitutional principle. it means i'm looking at precedent if i was fortunate enough to be confirmed to the supreme court, i would be upholding the principles as i consider the precedents, and making sure that the court is putting forward consistent and predictable rulings. >> you're watching msnbc's live coverage of the confirmation hearing of judge ketanji brown jackson. this is ari melber. we'll continue our live coverage here on "the beat." soon we'll be joined by our experts for legal analysis. >> -- to ensure public confidence in my rules as a judge. >> judge jackson, i've sat on this committee now for a number of years. and as some of my colleagues continue to try to pin labels on the nominees that come before us, frankly, i find your methodology to be as succinct a definition of what would lead a judge to come up with fair and objective results. i thank you for that. as a lower court judge, you were generally bound by the supreme court's and the d.c. circuit's precedents. the supreme court can overturn its own precedents. that's why i found your analysis instructive. you had a precedent that had already confronted the issues you faced. however, it was another district court decision, and you were not bound by it. you nonetheless followed it, why did you find that opinion so persuasive? >> well, senator, in the law, there are different kinds of precedent. by that i mean there's vertical precedent, which is what people are most familiar with. there are cases that are handed down by higher courts, the appellate court, the supreme court. those bind the lower court. even if you disagree with them, you have to follow them, because they're binding precedent. but there's also horizontal precedent. it's about maintaining consistency and predictability in the rule of law. what that means is, when you are in a district, there are many judges and if someone else in your district has handled a case that comes out or that involves the same issues and comes out in a certain way, you as the second judge have to contend with that ruling. you can't ignore the fact that there is precedent in your district that handles a case in a particular way. and with respect to the mcgahn case, the precedent wasn't just close, it was nearly identical. the myers case involved the former white house counsel and the argument by the executive that the former white house counsel had absolute immunity with respect to a request by the legislature that she provide testimony. my case involved a former white house counsel who was claiming absolute immunity at the request of the executive in response to a legislaive subpoena. in both cases, not only was the immunity at issue, but in both cases, the same threshold issues about whether or not there was jurisdiction in the court, because the legislature did or didn't have standing, which was the argument that was being made. the same question about whether the court could hear a dispute between the legislature and executive branch. all of those issues had previously been considered by my colleague in the district court. and he wrote an extensive opinion, judge bates, analyzing each of the issues. at a minimum, as the second judge dealing with these exact same issues, i had to look at what he did and decide, was it persuasive? did i agree? and i do. >> judge jackson, if there had been a vertical precedent, ie, from the supreme court or the circuit court that was on point to your mcgahn situation, yes, you would have had to follow that precedent. but there wasn't. so you followed a reasoning by another district judge that made a lot of sense to me. and that certainly makes sense to me. you discussed the importance of precedent in your opinion. this is what you wrote. it is interesting to know that the doctrine performs a limiting function that reflects the foundational principles that undergird the federal government's tripartate institutional system. this nudges the court outside of its established domain of saying what the law is, and into the realm of legislating what the law should be. i know that you've been asked questions about the importance of precedent before. but maybe you can just tell us one more time, why precedent is important in our judicial system. >> thank you, senator. our judicial system is one that is designed to uphold the rule of law. unlike other systems and other societies, some other societies, we believe that we have a government of laws and not men. and yet there are men and women who are acting as judges in the context of our system. what precedent does is ensure that there is consistency across the different individuals who are tasked with the responsibility of interpreting the law. it ensures that there is public confidence that the law is what is guiding judges in their decision making, and not just their own individual views. and so it's crucial for maintaining public confidence, maintaining stability in the law, establishing a system that has predictability in it. all of which supports confidence in the judiciary, which is the currency of the judicial branch. >> because of the importance of precedence in promoting confidence, people need to know what the law is. precedence is important. and if you were confirmed to the supreme court, what factors would you consider before overturning precedent? >> there are many factors that the supreme court considers, and not just whether they think a prior precedent is wrong. that is one of the factors, the court has said that a precedent that is egregiously wrong is one that is subject to reconsideration. but in order to actually make the determination about overturning it, in addition to it being wrong, the court considers whether or not there's been reliance on that precedent. if so, how much? the court considers whether or not the precedent is workable. sometimes the court will issue a ruling in a case, and it turns out that it's not actually functioning in the way that the court intended. that might be a reason to revisit it. the court considers whether or not other precedents in the area have shifted such that the foundation for the particular precedent is no longer sustainable. and the court considers whether there are changes in the facts that relate to that precedent, or a new understanding of the facts. all of those factors are things that a court takes, that the supreme court takes into account when it decides whether or not to revisit a precedent. >> therefore, the court should consider all of those factors. i would say those factors loom large before overturning a precedent. but basically, if you have five members of the court deciding to overturn a precedent, they can do so. right? >> under our scheme, yes. under the constitution. mm-hmm. >> so we're seeing more and more precedents being asked to be overturned. and an analysis found that since 2017, when justice gorsuch was appointed to the court, the court has shown an increasing readiness to overturn precedent. this is true for longstanding ones and recent ones. there was a decision that weakened public sector decisions. justice alito said he wanted that to be challenged. this is called signaling. justice alito definitely signaled his desire to revisit that decision. so, yes, these groups, they got the message. they brought case after case to meet the criteria that justice alito laid out. although they came close in 2016, the court was stuck in a 4-4 decision in a case due to the justice's death. the minute justice gorsuch was confirmed, the court had a conservative 5-4 majority to overturn the case. i follow these cases closely, they waited for justice gorsuch, and, boom, 5-4 against unions. in another example, the court's acknowledged four most conservative justices dissented, voting to overturn a precedent banning burdensome and unnecessary restrictions placed on abortion providers. this was only four years old. now the court is poised to overturn roe v. wade. even though women have had the constitutional right for an abortion for nearly 50 years. i'm not suggesting that supreme court decisions or precedents are sacrosanct. i'm thankful the court revisited some decisions like plessy v. ferguson that were wrong. but one result of the court's new approach is that people's view of the court is changing for the worst. a recent poll found that 44% of americans now disapprove of the supreme court. this is up 15 points from august 2020, shortly before the late justice ruth bader ginsburg died and amy coney barrett was appointed. i think there is an ideological split in this current supreme court. we're seeing more cases decided on ideological bases rather than the law. you were asked earlier today about your representation of guantanamo detainees. just to make it clear, as a federal public defender, you were assigned to represent guantanamo detainees, is that right? >> that is correct, senator. >> and you did pro bono work for guantanamo detainees. were you assigned that work as well? >> there was one detainee who i had represented as a federal public defender who was brought into my firm's practice, unbeknownst to me. when i arrived at the firm, the attorneys who were working on that case recognized that i had previously been a lawyer who had represented this particular detainee. and asked if i would help with his habeas petition at that stage. >> i think you clarified that earlier today. and you served as counsel of record on amicus briefs related to detention. >> yes. >> were you working on behalf of detainees or other groups or individuals? >> i was working on behalf of other groups or individuals. >> retired judges? >> yes. there were three briefs in total, two different cases. and one of the briefs that i filed was on behalf of 20 retired federal judges, including one who was a partner at my firm at the time, and who wanted to make a particular argument to the court concerning the detention process. >> it must have been a diverse group, and they asked you to do the brief. >> and they did. yes. >> so as part of your work at the law firm, a responsibility of your employment, you were assigned to work with a group of retired judges, to represent conservative or independent organizations to advocate their views? >> yes, the other two briefs that i filed were at the cert and at the merit stage that was eventually mooted. but my clients were a diverse group of organizations, including the cato institute. >> members of this committee know very well, lawyers, we are, we have to follow the codes of professional conduct, we have to zealously represent our clients. i just want to note, some of the very senators who are openingly questioning you for representing defendants or detainees have in the past made the argument that judicial nominees should not be opposed for the arguments they make in representing clients. one said, i represented people as a defense attorney in the military that were charged with some horrific acts. and i gave them my all. the system of justice that we're so proud of in america requires the unpopular to have an adequate and an advocate. every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer. do you agree with that? >> i do, senator. >> in 2012, prominent conservative lawyers signed a letter defending lawyers who have defended detainees. good defense counsel is key to ensuring military commissions, federal juries, and federal judges have access to the best arguments and the most rigorous presentation that affects important issues. so the quote that i read isn't the first time that my colleagues on the other side of the aisle have tried to say that your representation and your work as a public defender, i don't know, somehow disqualifies you or makes you lean one way or the other. you've made it very clear that that is not what you're about. i just have one more question in the remaining time. i'm sorry, i'm over. >> you're on a roll, and we're on a roll call. >> mr. chairman, before we break, if i could ask one question? >> sure. >> the senator made reference to the recommendations in five of these cases. i haven't seen them, my staff hasn't seen them. and that raises two questions, whether the white house is providing differential material on this nominee's background to democratic members than republican members. i don't know where the senator would get access to them, other than from the white house. secondly, regardless of whether it's differential, would the chairman agree that there is considerable focus on these cases, and the committee, both sides, should have access to the underlying facts? >> senator, you know we completed discovery before we started this hearing. >> how did senator hirono get this information? do you have access to them? >> i don't know that i do. >> can we ask the senator how she got access? >> we're going to take a ten-minute break. we have a vote on the floor. it will take about ten minutes. 10 to 15 minutes, relax, and then we're going to come back. and we have two senators, cotton and booker, who will be recognized. then take a break for dinner, and we're going to try to still finish tonight with two remaining senator who will be first thing in the morning. so we stand in recess. >> we've been listening to confirmation hearings of judge ketanji brown jackson. you heard the chairman gavel in the recess. i'm ari melber, and this is "the beat." we've been covering the hearings, this has been the first day of the questioning. that's why "the beat" is reporting from washington, with some special guests right here to break down this hearing in a moment. here's what you need to know about the news that has emerged. first, at this point, judge jackson is on track for confirmation to the supreme court. she's been sober, poised, and largely unflappable. there are no public signs of cracks in the democrats' coalition to get her confirmed. second, there are signs that judge jackson may draw fewer votes than the 53 that she got for her current job. senator graham, who voted for her last year, but today was questioning her advocacy for guantanamo detainees, and at one point just marching out of the hearing. >> these were five people that we had in our control, that are now helping the taliban run the country. as an american, does that bother you? >> well, obviously, senator, any repeated criminal behavior or repeated attacks, acts of war, bother me. as an american. >> it bothers me. i will not hold it against you the fact that you represented gitmo detainees, it's time to look at the system. >> republican senators using this hearing to go after more general culture and hot button issues almost more than they went after the judge. that may be good news for her. take what might come to be known as the little baby portion of the hearing. ted cruz attacking critical race theory, and displaying pictures of cartoon babies from children's books to discuss whether babies are, quote, racist or not. this overlapped repeated attacks on how the judge has sentenced criminal defendants. saying she may be soft on crime, and perhaps pro-criminal. it was pushed by cruz, and also josh hawley, linking to broader conservative arguments that we may hear going into the midterms about something that is true, that crime is on the rise in america. >> in 100% of the cases, was the evidence less than the prosecutors asked for? >> senator, the evidence in these cases are egregious. judges have to take into account the personal sentences of the defendant. that's a requirement of congress. >> you have discretion, and you used it to choose the sentences that you did. >> this is not done at the level of -- senator, sentencing is a discretionary act of a judge. but it's not a numbers game. >> that exchange there brings us to one final takeaway before i bring in our guests. how often the judge seemed to breeze through much of the questioning, offering either crisp legal answers or policy deflections. she said it was her due to avoid policy statements, drawing a line between what politicians my prefer, and what judges do. it was dry, and at times kind of boring. perhaps deliberately so. >> i'm particularly mindful of not speaking to policy issues. our obligation as judges is not to create policy. i believe that judges are not policymakers. >> that's the way this system works. are you okay with that? >> as a policy matter, senator, i'm not speaking to my views. >> does that make sense to you, as a way to deal this these detainees? >> i'm not in a position to speak to the policy. >> it went like that over and over. i'm excited to tell you, we have some great guests. judith brown deanna, and e.j. dion. great to be with you. what have you seen today? >> first, she was great. she answered the questions, she made sure that we understood her role as a judge. stay in her lane, i'm not a policymaker. and we've seen the republicans are making all the arguments for the midterms. they're talking about critical race theory, talking about soft on crime. she keeps steering them back to look at my record. over 500 decisions that we could be talking about. >> right. i thought she did that quite effectively. a lot of the republican questioning sort of walked around her record. what does break through is some of the more bombastic senators. e.j., you've covered a lot of hearings. we remember when john roberts was asked about racist babies. i'm kidding. it's that ridiculous. here we go. >> do you agree with this book that is being taught with kids, that babies are racist? >> 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. they don't come up in my work as a judge, which i'm respectfully here to address. >> okay, good, then let's go back to your work as a judge. >> i thought that was one of her best answers in two different ways. one, she answered the question that shouldn't have been asked. but then, she, in the most polite possible way, essentially said to senator cruz, what the heck are you asking me this question for? i'm here to talk as a judge. she did that all day long. my favorite exchange is one you'll never show on television, because it was kind of boring and academic. but senator sasse started asking her about originalism. it just showed how smart she was. and that she explained originalism better than most conservative law professors could explain it. we're seeing cruz and hawley practicing lines for the 2024 republican primary. clearly they want to be out there at the edges. but i think the other thing you saw is, they don't really have anything on her. and that's why they have to go to these child pornography cases, where she did give some pretty tough sentences. and also for 2022 elections, they're doing the crt thing, and the soft on crime thing. there are times when you wanted to ask, would they be going so hard on crt if they were not a black woman appointee? i don't know the answer, but it's a question that came, i suspect, across a lot of people's minds. >> yes. that exchange reminded me, and even the questions about dred scott, reminded me about the microaggressions that black people get from law professors. i remember a hypothetical that had to do with drugs in a car. all the other white students got other kinds of hypotheticals that had nothing to do with criminal activity. i said, i