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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Judge Katangi Brown Jackson's nomination is historic. If confirmed, she'll

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Speaker 1: be the first black woman and the first public defender

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Speaker 1: to sit on the Supreme Court. I am here standing

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Speaker 1: on the shoulders of generations of Americans who never had

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Speaker 1: anything close to this kind of opportunity. Her confirmation hearings

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Speaker 1: were supposed to be dignified. After all, she'd been confirmed

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Speaker 1: to three positions by the same committee, and just last

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Speaker 1: year to the d C. Circuit Court of Appeals, considered

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Speaker 1: the second most powerful court in the country. Yet Judge

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Speaker 1: Jackson had to fend off an orchestrated barrage of Republican

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Speaker 1: attacks centering on race and crime, accusing her of being

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Speaker 1: soft on crime, unduly lenient in sentencing child pornography defendants,

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Speaker 1: and wicked for terrorists, and a proponent of critical race theory.

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Speaker 1: Here are Republican Senators Tom Cotton, Josh Holly, and Ted Cruz.

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Speaker 1: You twisted the law and you rewrote it so you

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Speaker 1: could cut the sentences of a drug king pin. That's

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Speaker 1: what you did. Judge, respectfully, Senator I disagree. Is it

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Speaker 1: your view that society is too hard on sex offenders.

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Speaker 1: Do you agree with this book that is being taught

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Speaker 1: with kids that the babies are racist? My guest is

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Speaker 1: Tamiko Brown Nagan, dean of the Harvard Radcliffe Institute and

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Speaker 1: a professor at Harvard Law School. Were the attacks on

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Speaker 1: her judicial record fair? And how well did she answer them?

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Speaker 1: The Senators certainly should question nominees about their judicial records,

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Speaker 1: and so one would expect that senators a question a

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Speaker 1: district court judge who had sentenced some one d people

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Speaker 1: about her sentences, and one what expect the senators to

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Speaker 1: be interested in the work that she did on the

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Speaker 1: Symptoms Thing Commission. However, I do think that some of

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Speaker 1: the senators were playing to an audience well outside of

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Speaker 1: the hearing room. They were talking to the American people,

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Speaker 1: asking questions to which they did not actually want answers

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Speaker 1: because they kept cutting Judge Jackson off or interrupting her.

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Speaker 1: They were using the hearing as a political platform. And

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Speaker 1: I do think that by the end, and yesterday in particular,

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Speaker 1: it was disappointing to see the way in which the

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Speaker 1: nominee was being treated and really just used for political purposes.

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Speaker 1: Now it is true that this has happened before. She's

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Speaker 1: not the first nominee to become embroiled in the politics.

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Speaker 1: That is inevitable when the high stakes of a Supreme

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Speaker 1: Court appointment arise. But I do think that there were

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Speaker 1: questions about critical race theory, and the policies of the

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Speaker 1: Georgetown Day School, and all sorts of things that were

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Speaker 1: just beyond the pale and the irony is that some

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Speaker 1: of the Republican senators were still concerned about judges exercising

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Speaker 1: restraints and making policy. But the overwhelming majority of some

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Speaker 1: of the questions were just policy questions, asking her to

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Speaker 1: divulge policy preferences that she really had no business divulging

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Speaker 1: in that setting, and she repeatedly said business political, I'm

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Speaker 1: not going to talk about these political topics. The other

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Speaker 1: thing that was striking, as I reflected on the hearing,

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Speaker 1: was that the histrionics contrasted with the judges self restraints

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Speaker 1: and discipline, and Grace probably proved the point that the

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Speaker 1: Republicans who were engaging in those histrionics did not mean

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Speaker 1: to prove, and that is that she has a fantastic

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Speaker 1: temperament and the kind of temperament that we certainly hope

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Speaker 1: to see in Supreme Court justices. There were a lot

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Speaker 1: of questions about her judicial philosophy. She said that she

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Speaker 1: doesn't have a philosophy per se, she has a methodology.

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Speaker 1: Should a judge have a specific judicial philosophy? Well, at

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Speaker 1: some point it seemed to that they were splitting hairs.

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Speaker 1: What was really going on there that the senators wanted

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Speaker 1: to know if Judge jack Then is a judicial activist,

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Speaker 1: if she subscribes to what is called the living in

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Speaker 1: Constitution as opposed to philosophies, that would constrain how judges

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Speaker 1: use their power, and they wouldn't actually credit the answer

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Speaker 1: that she gave time and time again, which is that

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Speaker 1: she is independent, that she does favor restraint, that she

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Speaker 1: seeks to stay in her lane. So she did answer

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Speaker 1: the question, But again it seemed that many of the

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Speaker 1: senators were trying to make a point that her responses

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Speaker 1: weren't actually lending themselves too. There was not a senator

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Speaker 1: who called into question Judge Jackson's qualifications to sit on

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Speaker 1: the court. How will her presence on the court make

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Speaker 1: a difference? Well, no one called into question or qualifications

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Speaker 1: because they were beyond approach. She presuminently qualified, and I

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Speaker 1: am pleased that we've reached this moment when an African

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Speaker 1: American woman, and one with such a varied practice background,

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Speaker 1: will send to the U. S. Supreme Court. In terms

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Speaker 1: of what she will offer to the court, as I

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Speaker 1: wrote in an opinion piece, I think that her background

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Speaker 1: in the criminal legal system is really important. Her background

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Speaker 1: as a district court judge is vitally important. She shares

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Speaker 1: that with Justice Soto Mayor that she has. I think

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Speaker 1: that's important because, as anyone who has spent time in

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Speaker 1: the United States just courts knows, you see every type

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Speaker 1: of American walk through the doors of the Federal Courthouse.

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Speaker 1: And I think that, particularly given the critique that the

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Speaker 1: court is elite and in some sense elitists, it's great

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Speaker 1: to have another person joined the court who has had

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Speaker 1: beat and rich experiences with people from all walks of

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Speaker 1: life who are engaged with our legal system. I think

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Speaker 1: that her experience in a variety of ways will add

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Speaker 1: to those already represented on the court and will enrich

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Speaker 1: and I hope the deliberations that the judges have thankstein.

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Speaker 1: That's Tamiko Brown Nagan, dean of the Harvard Radcliffe Institute,

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Speaker 1: Republicans had promised that Judge Katangi Brown Jackson's Supreme Court

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Speaker 1: confirmation hearings would not be a political circus. Yet Senator

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Speaker 1: Lindsey Graham yelled and stormed out of the hearing. Senator

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Speaker 1: Ted Cruz read from children's books about racist babies, and

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Speaker 1: Senator Tom Cotton all but accused Jackson of lying. In

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Speaker 1: one particularly heated exchange, the committee chair, Democratic Senator Dick

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Speaker 1: Durbin tried to get crews to stop talking two minutes

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Speaker 1: passed his allotted time. Even banging the gavel didn't help

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Speaker 1: allow her to answer the question. Chairman Durbin, thank you, chairman.

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Speaker 1: Why do you not want the American people to know

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Speaker 1: what happened in the Steward case or any of these cases?

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Speaker 1: Chairman Durbin, I've never seen the chairman refused to allow

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Speaker 1: a witness to answer a question. You can bang it

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Speaker 1: as loud as you want. I can just tell you

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Speaker 1: at some point you have to follow the rules. Judge

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Speaker 1: Jackson faced about twenty two hours of questioning with equanimity,

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Speaker 1: never even raising her voice, but tears streamed down her

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Speaker 1: face when Democratic Senator Corey Booker spoke of her nomination

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Speaker 1: as shattering another glass ceiling. Nobody's going to steal that joy.

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Speaker 1: You have earned this spot. You are worthy, You are

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Speaker 1: a great American. Joining me to discuss the hearings and

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Speaker 1: their import is Jessica Levinson, a professor at Loyola Law School.

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Speaker 1: The Republicans said that wasn't going to be a circus.

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Speaker 1: I don't know what happened to their promises. What did

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Speaker 1: you think about the whole atmosphere of the hearings. Well,

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Speaker 1: I don't think it was a circus. I think in

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Speaker 1: some ways it was a horror show. I mean, the

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Speaker 1: idea that she was questioned over and over again on

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Speaker 1: this baseless allegation that she's soft on people who violate

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Speaker 1: child pornography laws was astonishing to me. This is something

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Speaker 1: that began as a fringe theory about a week ago,

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Speaker 1: and it really garnered a number of senators attention and

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Speaker 1: time in the questioning, and Judge Jackson said over and

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Speaker 1: over and plain in so many different ways that there

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Speaker 1: is no they're there to those allegations. So yes, it

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Speaker 1: was different from the hearings for now Justice Kavanaugh in

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Speaker 1: so many ways. But I also think it's curious that

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Speaker 1: Senate Republicans kept reminding us of the Kavanaugh hearings because

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Speaker 1: it makes us remember that he was in fact accused

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Speaker 1: of sexual assault, and I don't think that's helping their

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Speaker 1: argument here well. Also, as I recall the hearings for

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Speaker 1: Justice Amy Coney Barrett, we're pretty tame, exactly. I think

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Speaker 1: every hearing obviously is so much a product of what's

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Speaker 1: happening outside the Senate chambers. But the hearings for now

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Speaker 1: Justice Barrett, we're in comparison, I think, quite team. Obviously,

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Speaker 1: she had a different Senate obviously, where we're in a

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Speaker 1: different moment, But in some ways, I think the stakes

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Speaker 1: felt higher in that confirmation hearing because she was replacing

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Speaker 1: a Justice Justice Ginsburg who had an ideology very different

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Speaker 1: from hers, and time was really of the essence in

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Speaker 1: that case, because people were already voting. I think they

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Speaker 1: were already sending back early voting ballots when now Justice

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Speaker 1: Barrett was going through her confirmation process. As you mentioned,

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Speaker 1: crime seemed to be the focus of the Republicans attacks.

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Speaker 1: The last time a Supreme Court justice was subjected to

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Speaker 1: so many questions about crime was the late Third Good Marshal.

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Speaker 1: So was it a dog Whistle, I think it was

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Speaker 1: two things. One, it's hard to escape the reality that

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Speaker 1: Judge Jackson, likely future Justice Jackson, and the late Justice

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Speaker 1: or Good Marshal both faced intense questioning with respect to

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Speaker 1: whether or not they're soft on crime. Now. They also

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Speaker 1: both practiced law in different ways than we've seen before.

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Speaker 1: For instance, Justice Jackson would be the first former federal

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Speaker 1: public defender, So to that extent, I unders and some

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Speaker 1: of the questions about her views on the criminal justice

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Speaker 1: system and criminal defendants. Having said that, I think many

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Speaker 1: of the questions were frankly disingenuous, and yes, I think

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Speaker 1: nodding to certain elements of the party in harping on

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Speaker 1: this idea that she's comfortable letting people out of federal

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Speaker 1: prison and frankly trying to tie her to her clients

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Speaker 1: both when she was a federal public defender and when

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Speaker 1: she was in private practice. People understand well, the senators

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Speaker 1: who were questioning her very well understand the role of

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Speaker 1: lawyers and why they're important in an adversarial system, and

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Speaker 1: that lawyers do not have the same views as their

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Speaker 1: clients in so many different situations. So it did feel

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Speaker 1: that some of the questions is to be expected when

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Speaker 1: you have the first former federal public defender who's going

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Speaker 1: to be on the Supreme Court. Some of the questions

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Speaker 1: I thought were outside about what about the questions on

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Speaker 1: critical race theory? Would Senator Crews have asked that of

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Speaker 1: a white candidate. Well, it's hard to get into Senator

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Speaker 1: Cruz's head and his strategy, but no, I think all

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Speaker 1: of the questions that you heard, particularly from Senator Cruz

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Speaker 1: about critical race theory would not have been asked of

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Speaker 1: a non minority Canada, of a Caucasian nominee. And I

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Speaker 1: think that really brings to bear the fact that she

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Speaker 1: had this very difficult role where she had do not

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Speaker 1: just do what every other nominee does, which is she

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Speaker 1: had to answer the questions but not commit herself to

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Speaker 1: any particular position, but answer in a way that demonstrates

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Speaker 1: that she's showing us she has a command of all

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Speaker 1: of the issues. But she also doesn't want to look

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Speaker 1: to upset or like she's to easily thrown off of

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Speaker 1: her game, like she doesn't have a proper judicial temperament.

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Speaker 1: And I frankly think that the bar for her when

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Speaker 1: it comes to judicial temperament is very different. Let's imagine

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Speaker 1: that she had done anything those to which is this

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Speaker 1: Kabinah did in his confirmation hearings. I think we would

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Speaker 1: have a very different discussion. And yes, I think we

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Speaker 1: can't escape the conclusion that questions about critical race theory

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Speaker 1: are very much targeted, almost exclusively to nominees and candidates

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Speaker 1: who are minorities. The only real news I saw coming

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Speaker 1: out of this was that she said she was going

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Speaker 1: to recuse herself on the upcoming Supreme Court case involving Harvard.

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Speaker 1: Is that a good decision? What does that show? So?

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Speaker 1: I think Judge Jackson's statement that she would recuse herself

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Speaker 1: from the affirmative action cases that are going to come

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Speaker 1: before the Court, at least with respect to the one

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Speaker 1: coming out of Harvard, shows that she has respect for

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Speaker 1: the process, respects for appearances. We know that when it

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Speaker 1: comes to a judicial code of conduct and a code

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Speaker 1: of ethics, that it is suggestive but not mandatory when

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Speaker 1: it comes to Supreme Court justices, so she really can

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Speaker 1: decide whether or not to accuse herself. I think that

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Speaker 1: her decision to say yes, I would because of my

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Speaker 1: connections is the type of decision that helps bolsters people's

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Speaker 1: confidence in the decisions that Supreme Court justices make. We

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Speaker 1: don't know if she will similarly refuse herself from the

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Speaker 1: companion case dealing with the University of North Carolina. I

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Speaker 1: heard some Republican senators flat out say that she was lying,

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Speaker 1: that they didn't believe what she was saying. They said that,

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Speaker 1: you know, her decisions were wrong. Some of them almost yelled,

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Speaker 1: and they interrupted her repeatedly. It seemed like they weren't

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Speaker 1: giving her the respect, the proper respect that she's due.

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Speaker 1: I think, in so many overt and less overt ways,

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Speaker 1: in more implicit ways, there were a number of Senators who,

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Speaker 1: as Senator Dick Durbin said, conducted themselves in a way

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Speaker 1: that beneath the Senate. Or maybe this is the new Senate,

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Speaker 1: maybe this is now how senators conduct themselves. But there

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Speaker 1: were so many ways in which either the questions that

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Speaker 1: were posed to her, which weren't really questions, were just

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Speaker 1: teaches that misstated her record, or the baseless accusation, the

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Speaker 1: constant interruptions, or even in some cases referring to Judge

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Speaker 1: Jackson as her as opposed to a more respectful the

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Speaker 1: witness or Judge Jackson. I think even in the way

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Speaker 1: that some of the senators held themselves when they were

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Speaker 1: asking her questions, in the tone that they used it.

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Speaker 1: There were so many ways big and small that I

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Speaker 1: think some of the senators did conducted themselves in a

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Speaker 1: way that I think we could conclude his debraving. Thanks

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Speaker 1: for being on the show, Jessica. That's Professor Jessica Levinson

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Speaker 1: of Loyola Law School, and that's it for this edition

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Speaker 1: of The Bloomberg Law Show. Remember you can always get

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Speaker 1: the latest legal news on our Bloomberg Law Podcast. You

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Speaker 1: can find them on Apple Podcasts, Spotify, and at www

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Speaker 1: dot Bloomberg dot com, slash podcast Slash Law, and remember

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Speaker 1: to tune to The Bloomberg Law Show every week night

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Speaker 1: at ten BM Wall Street Time. I'm June Grosso, and

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Speaker 1: you're listening to Bloomberg