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tv   U.S. Senate Sens. Graham Durbin on Supreme Court Nomination  CSPAN  April 4, 2022 8:42am-9:25am EDT

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court. >> this morning, i am going to my decision on judge jackson's nomination to supreme court. i will oppose her and i i will vote no. my decision is based upon her record of judicial activism, flawed sentencing methodology regarding child pornography cases, and i believe judge jackson will not be deterred by the plain meaning of the law when it comes to liberal causes. i find a judge jackson to be a person of exceptionally good character, respected by her peers and some of who is work hard to achieve her current position. however, a record is overwhelming in its lack of a steady judicialy, philosophy ana tendency to achieve outcomes in spite of what the law requires or common sense would dictate. after a thorough review of judge jackson's record and information gained at the hearing from an evasive witness, i now know why judge jackson was the favorite
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of the radical left, and i will voteor no. in the area of child pornograph pornography, there's been an explosion in this country of child pornography on the internet. in 2021, groups that follow sexual abuse of children on the internet reported 29.3 million reports of individuals accessing information regarding child pornography onld the internet, d has gone from 100,000 in 2003 to 29.3 million in 2021. there's estimated that there's 85 million images and videos and otheroi files involving sexually exploited children on the internet. now, why is this important?
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this is the venue of choice for the child pornographers. it is not the mail. as you can see, the internet is where these people go. in a manner of minutes they can download hundreds if not thousands of images and videos of the most disgusting abuse of children, and my goal is to deter that, not discount it. judge jackson's sentencing methodology, in my view, misses the mark. i don't doubt that personally she's offended by the behavior that we are all talking about, but as as a judge she has an opportunity to deter the behavior of going on the internet and downloading images oflo exploited children. every time shall set opportunity she refuses to exercise it. now, why is judge jackson sentencing so different? in possession cases should give
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29.2 months. the average national is 68 months. and distribution of child pornography, her sentences is 70.9 months and the minimum is 60 months. that's what that's what you have to give. the average nationally they tell me is 135 months. the length of sentence for possession of child pornography and posed by judge jackson is 57% less than the national average in the area of distribution is 40% 40% lesn the national average. why? t under the sentencing guidelines, a judge, if they choose, can enhance the sentence based on the fact that the perpetrator used the internet. now, why do we want that as a sentencing enhancement? we want c to deter the use of internet when it comes to child pornography because there's already 85 million images and videos of children being abused, and that's the venue of choice.
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so instead of deterring that routinely says that shet will nt hold that against the perpetrator. i think that's a mistake. she basically said, it's so easy in the matter of minutes to push a button and download a bunch of files, that seems to me an unfair way to sentence somebody. she also takes off the table a sentence enhancement for the number of the volume of child pornography being possessed or distributed. i think that is absolutely backwards. i think what we should be doing is that every time you mash the button and download anei image f child being exploited, your time in jail should go up. that should be held against you. accessing the internet should be deterred, not ignored. so what i have to say is that
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the national center for missing and exploited children released a report on the 2020 data here there's a 35% increase in child sex material in a single year, 29.3 million reports last year of people accessing child pornography on internet. at least 85 million images and files on the internet. and when it comes time to send these people, judge jackson will not impose additional punishment for the fact that the volume involved in the fact they're using the internet the venue of choice. the more you download, the more you go to jail is my view. i'm going to work with senator hawley to correct these practices. i think she's making a terrible mistake by not enhancing sentences based on the volume, because every click of computer is destroying a life. and we should be deterring a use of the internet when it comes to child p pornography. judge jackson chooses not to you. and when it comes to the volume that should be held against you. the more you abused children,
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the more in your possession, the more you distribute, longer you go to jail. and the reason her numbers are so low is because of that sentencing methodology. and i think if we don't fix this we are making the problem worse, and a thinker approach to this issue is absolutely wrong. it loses all deterrents and i will be watching like a hawk future nominees during the sentencing basise to see if they follow this model. becausehe the model judge jacksn has created is one where the more you do, it doesn't matter. the fact you use the internet where all the child pornography lies is not held against you, and i believe it should be. every click, every download means you go to jail longer in the world that i i want to cr. the other area of concern, guantánamo bay. remember this? this is 9/11.
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so guantánamo bay has been a place to house enemy combatants captured in the war on terror. judge jackson was a public defender i think for four or five gitmo detainees, and that's a noble thing. i have no problem with somebody, public defender anywhere in the country, defending very unpopular people and people at gitmo deservere representation. but what i found during this representation is that her briefs in the defense of amicus briefs and gitmo detainees accuse president bush and his team of being war criminals. that's not defending somebody charged or held as an enemy combatant of being part of the enemy force. that an accusation against your own government that i think buys into the language of the left. you can vigorously defend anyone captured as an enemy combatant
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or potentially charge with a crime against terrorism. that is a noble thing, but when you use the language that was in her briefs, she said well, i really don't remember that. i had a hard time believing that you put your name on a brief that calls the president of the united states and his team war criminals, that is not about defending somebody. that is a activist approach to the war on terror. and it is further in her legal briefs she wanted to deny the united states the ability to hold gitmo detainees under the law of war indefinitely. there's about 377 or 30 gitmo detainees still held that if never been charged. we know to the intel any evidence that they are hardened killers committed to the jihadist cause, and under the law of war, once their habeas corpus in has been reviewed by
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the federal courts where the courts agree with the government that the person is, in fact, an enemy combatant, under the law of war there's no requirement to release them it but judge jackson took a position as an advocate that we could not hold them indefinitely, where you have to charge them with a crime or let them go. i don't consider these people criminals as much as warriors and they cost to destroy our way of life. if you choose to charge them with a crime, wine, i too don't have to make that choice. and r the reason that there's 30 plus still in detention is we have chosen, republicans or democrats, to hold these people off the battlefield. if we accepted judge jackson's recent that told that it been available to us as a nation, would have ability to defend ourselves, and i think that approach was the most extreme view of representation in this
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area, and i think it shows lack of understanding of the war in which we are in. we are not fighting criminals. these are not wayward goat herders. these are people who committed the jihadist cause emmett till's all if they could. the next area is immigration. and before i i leave gitmo, 3f the people that have been detained since the beginning of the war had gone back to the fight. i will introduce at the the hearing next week, and that some of the senior leadership of the current taliban government were gitmo detainees that is now not only come back to the fight but actually have gone back to serve in the taliban government that is raining pressure on the taliban people. so those who think this is a crime we're fighting, you're wrong, and a war for the survival of good against evil.
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immigration. in case you haven't noticed, this country is being invaded by illegal immigrants. right after taking office, president biden rolled back virtually every policy of president trump regarding asylum, deportation, basically destroyed the regime created by president donald trump that gave us the lowest number of illegal crossings in this country in 30 or 40 years at the end of 2020. now every week we are setting new records. why? the policies that existeddm durg the trump administration worked. they are being reversed by president biden and we are being overwhelmed, and the worst is yet to come. if the biden administration, the cdc, does away with the ability to deport illegal immigrants under title 42 of the public health law, presenting a threat to covid, then you will see the
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numbers go up even further and there will be thousands, 18-20,000 people a day people a day coming across our border from countries with low vaccination rates. so when it comes to illegal immigration, policy matters. when judge jackson was a district court judge, there was a case brought by make the road new york versus mac only was the acting dhs secretary under president trump. the group, make the road new york, was an activist group. this isis kind of a holding company for lack of a better word, an umbrella group funding by george a source and a of other liberal billionaires. this group in that chain receiving money from these folks filed a lawsuit arguing that the
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trump decision to deport under expedited immigration authority people of been here two years or less to change obama policy and actually fully implement the authority given to the dhs secretary. they decided to go to full two years anybody two years and under in the category in question could be deported with x but a procedure, meaning it was a quick turnaround. this authority given by the congress to the dhs director. obama didn't use that authority fully. trump decided to do it. make the road new york, a bunch of little groups, sued the trump policy change. judge jackson was the judge and she overruled the trump decision and the statute in question said
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that the secretary has the sole and -- discretion to use expedited deportation for people to use less. the statute could not have been written in a clear. if you're looking for what an activist judge is all about, this is the case, exhibit a. the law was written in the most clear terms saying the decision of the secretary is unreviewable and solely in their hands when it comes to using expedited removal procedures for people two years or less. she ruled against the trump administration and she basically said this was arbitrary and capricious. it reeks of bad faith, showed contempt for the authority that
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the constitutions framers invested in the judicial branch. that contempt she's talking about was a congressional act. the congressional act was designed to tell judges that the dhs secretary has discretion in this area solely and unreviewable she found that concept offensive. sof instead of following the plane letter of the law, she did general, legal gymnastics defined against the trump administration, and when she said the statute created content for the authority that the constitutions framers invested in the judicial branch, what she's saying, i'll be damned if i'm going to be limited by congressional act that't tells e i can't do what i want to do, and the plaintiff in that case was from the radical left, and e ruled for them in spite of the
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plain meaning of the statute, and she was overturned by the d.c. circuit court. the court said, and this is a fairly liberal court, there could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal within statutory bounds to the secretaries independent judgment. the forceful phrase soul and unreviewable discretion by its exceptional terms harold's congress' judgment to commit the decision exclusively to agency discretion. she ignored the plain meaning of the statute, the language of the statute, to get a result she wanted, and the d.c. district court of appeals said that there could hardly be a more definitive expression of congressional intent. that is judicial activism on steroids, and it makes managing our immigration problem even
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worse when jeff activist judges that ignore the law, take given by congress to the executive branch because they don't like the outcome. that is, in fact, the premier definition of judicial activism, and i find in her judging a desire to get an outcome, and no matter what sheme has to do to t that outcome, she will pursue it. and this is a case where you couldn't have written the statute more clear, and she just went around it, got the result she wanted and slap down on appeal. now, shias -- she is the first african-american female selected to go to the supreme court. she, however, is not the first african-american female that had potential to be on the supreme
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court. janice rogers brown was nominated by president bush 43 to be on the d.c. circuit court of appeals, one of the premier appellate courts, like judge jackson was nominated to. she is from alabama. she was the bar and granddaughter of sharecroppers growing up in alabama during the jim crow era. .. she wound up serving on the california supreme court. she is a single mother raising children. in june 2005, she was confirmed to the d.c. court in a 56-43 vote. that was after the gang of 14 broke a filibuster by my democratic colleagues against her and others. she was >> she was nominated in 2003 and her nomination was stalled for two years. here is what senator schumer said.
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judge brown was the least worthy pick this president made for the appellate court based on her record. senator durbin, one of the president's most ideological and extreme judicial nominees. 2005, if the president sends us a nominee like janice roberts brown who believes the new deal was the triumph socialist revolution, there would be a fight. here is what senator biden, then senator biden said about judge brown, not only did he filibuster, but he said i can assure you there would be a very, very difficult fight and she probably would be filibustered if she were nominated to the supreme court. so to my democratic colleagues. as you celebrate judge jackson's potential ascension to the court, as those of us on the committee who asked penetrating relevant questions of judge jackson's judicial
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philosophy, how she sentenced people and why, you know, the liberal media that's completely in the tank on issues like this, sat on the sidelines and watched you, my democratic colleagues, stop the ascension of an african-american conservative nominee by president bush and when it came to her potential of being on the supreme court, you threatened to filibuster her, you considered her ideology unacceptable and too conservative. so if you're a conservative nominee of color, a woman, it's okay to use your ideology against you. if you question the ideology and the judging ability of a liberal african-american nominee, you're a racist. those days are over for me. i have very little respect for what's going on in modern
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america when it comes to judging. miguel he is -- estrada was nominated, and he was nominated, and the filibuster of the bush nominees in the 2003 era. he didn't make it through the gang of eight, justice, judge janice rogers brown got on the court two years delayed and when she was being considered to go on the court, joe biden, senator joe biden said she will be filibustered very, very likely. so, we live in a world where if you're a person of color, a woman, and you're a conservative, everything is fair game. if you're a person of color and liberal, how dare anybody
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question or use the same standard against you that was used against the other nominees. i don't accept that and finally about the hearing itself, to the liberal media comparing this hearing, to judge kavanaugh is an absolute offense. nobody on the republican side held information back accusing judge, justice brown of doing something that was either made up, not credible, nobody questioned her high school annual, nobody took a bunch of garbage and made it seem like that the nominee had been bill cosby in his teenage years. crazy stuff. offensive stuff. what we did ask judge jackson is why do you sentence the people the way you do, explain the reasoning and the cases
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involving child pornography, and we went after her judicial philosophy and it had to be contentious because the judge seldom would answer a question, but to me, if you're going to be nominated to the supreme court for a lifetime appointment, you should expect to be asked hard questions. you should not expect to have your life destroyed. and if you don't see a difference between the two hearings, then you're blinded by your desire to get an outcome. here is where we're at in 2022. the only person qualified to go to the supreme court as an african-american woman is a liberal. you can be equally qualified as a conservative, but you need not apply because your ideology disqualifies you. that's not exactly the advancement i was hoping we would have in america in 2022.
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so judge jackson, i will vote no. i find her sentencing methodology to reinforce and take deterrents for the most heinous offenses off the table. the statements she made during the sentencing hearings showed a tilted sense of compassion. i'm sure she doesn't like the behavior and feels sorry for the kids, but every time she had a chance to increase punishment for the volume of material in the hands of the perpetrator, she chose not to do that and i think she should and going to the internet to her and downloading a bunch of files is too easy to enhance punishment. it's too easy to destroy lives. when it comes to immigration, the most egregious case i've seen ignoring the plain meaning of law to get the result they
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wanted and when it comes to the war on terror, i think the position she wanted our country to take would make us less safe and the language of the left in her calling bush a war criminal says more about her politics than the merits of the argument. and judge jackson was the preferred pick of the radical left, now i know where they went after michelle childs, and somebody i could have been supported, and highly qualified individual. now i know, and that's why i'm voting no, to my democratic colleagues. i'll work with you when i can, but this is a bridge too far. thank you. >> the democratic whip. >> mr. president, i listened carefully to the presentation by my colleague and friend, senator graham of south
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carolina. i wanted to come to the floor to make it clear that he didn't tell you the whole story. in fact, in some ways, he didn't even get close. who is this judge, ketanji brown jackson? how could she even be considered for the supreme court if she is the preferred pick of the radical left? well, let's take a look at her background. an extraordinary story of a daughter of two public school teachers. a daughter of a father who decided he was going to go to law school. basically stopped working full-time, his mother supported the family-- her mother supported the family. she was a little girl at the time. she remembers it well because there would be law books stacked on the kitchen table. she would come in and as a little girl bring her coloring
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books to sit next to her daddy while he was studying for law school. he would go on to become a lawyer. family members were policemen, one of her uncles turned out to be the chief of police of miami. she grew up in a very ambitious, determined, orderly family and she certain had a respect for her family ties to law enforcement. she was on the debate team in high school and one of the trips took her from florida up to the campus of harvard university. she was dazzled, believed that this just might be the answer to her dreams. came back to her high school and sat down with her high school counselor who said to this young black woman, honey, you're shooting too high. i don't want your heart to be broken. think about other schools, don't think about that harvard university school. luckily, she ignored that advice, applied and was
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accepted. she told the story before the hearing about being on the campus at cambridge, not sure it was the right decision, looking around and seeing a much different world than the one she grew up in, a much different group of people than she was used to socializing with. and she must have shown it in her face because as she was walking across the campus one day an african-american woman saw her, looked at her and said, persevere. persevere. just that simple word captured everything for her and she did. she persevered and went on to harvard law school. an outstanding student so much she became a clerk to the federal district court. did such a good job, she was promoted to federal circuit court clerk and the ultimate prize for any law school
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graduating clerk to the justice of the supreme court, and what an irony she worked for justice stephen breyer whose vacancy she seeks. sentencing commission, she worked in the public defender's office, she became federal district court judged cleared by this committee, judiciary committee. this was her fourth time before the committee. each time she appeared bipartisan support including the senator that spoke against her. and ultimately the opportunity of a lifetime, to fill a vacancy on the supreme court. for the hearing itself. i want to commend my republican colleague, chuck grassley, a chairman of the committee, democrat couldn't be luckier to have chuck grassley, a gentleman, a strong faithful republican, but he's a gentleman and we were
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determined to make this hearing for this judicial nomination to the supreme court different than some that had gone before. and i want to commend the republicans on the committee. there are 11 of them. the majority of those republicans asked tough probing questions as they should. they never got personal, they never raised their voice, they were respectful throughout the majority of them. i'm sorry to say that in a few instances there were exceptions on that side of the aisle, but i think the hearing by and large was a good hearing, despite a few differences, which i'll note in a minute. and at the end of the day, you could not help, but leave that hearing and think you had just seen, you had just witnessed a moment in history not just the first african-american tosy spire to serve on the supreme court, but also a pillar of strength during her hearing, through it at every direction. i can't tell you how many
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people came up to me, how did you sit through that and put up with that and i thought, i said to them, think about her, sitting in front of her husband and her daughters, some of the things that were said about her, and said again this morning on the senate floor. she came out a pillar of strength, grace, and dignity under pressure. i looked up at that table several times and thought, judge, if you stood up at this moment and said enough, i've taking my family, we're out of here, but she never did, she never wavered. she was solid as a rock and that's why it's my honor to support her and believe that she's going to make history. some of the things they said were outrageous. this case they want to make about her sentencing guidelines when it comes to sex crimes involving children and child
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pornography, what did she say about it? she said they were horrible and despicable crimes, but didn't just say it before the committee under assault. listen to what she said in one of her cases, united states versus hilly. the case involving this sexual misconduct to children. the true nature of these offenses, judge ketanji brown jackson said, lies in how they affected the children who you tormented for nearly a decade when you lived on and off with their mother. that's a substantial portion of their childhood. these two children carried a burden no child should have to shoulder. the burden of protecting themselves from a man charged with their care, but who instead exploited them and then she went on to say, this family has been torn apart, she said to the defendant, by your criminal actions, you saw it on the faces of those women, you heard it in their voices and impacted of your act of these real victims struggling to recover to this day makes your
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crimes among the most serious criminal offenses this court has ever sentenced. does that sound like she's soft on crime? does that sound like she didn't remember she's a mother of daughters and cared for the impact those crimes had on the children and the family? not in any way whatsoever. you would draw a much different conclusion if you just listened to the arguments being made recently here on the floor and it would be an unfair conclusion. the bottom line, as far as i'm concerned is this: what they've left out in the presentation is critical to the very truth of their allegations. judge ketanji brown jackson is in the mainstream of sentencing when it comes to these cases. 70 to 80% of federal judges divert from the guidelines, as she has in some cases. and let me add, her accusers have been voting for federal
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judges proposed by president trump right and left who do exactly the same thing she does. i ask consent to enter into the record the new york times article of march 25th, 2022 entitled "jackson's critics back judges with like rulings." . >> without objection. >> it tells a story and the story is very clear. we have a situation in this country where we have not upgraded the child pornography and sexual misconduct statutes in years. across the board, 70 to 80% of federal judges take the same position as judge ketanji brown jackson. the so-called deviations from the guidelines has become commonplace. as i've said, the overwhelming majority of federal judges are doing this. well, is there a problem? there is. the problem is that we have not upgraded the statute. we bear responsibility for this. the decision was made before
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the supreme court that these guidelines would not be mandatory. it was a decision joined by anton scalia, the originalist, the conservative. it put the burden back on congress and we have not picked up that responsibility. so you say to yourself, well, if she were so soft on crime, it surely would have shown up in other places. well, let me tell you what happened, the american bar association did a review of her career as a prosecutor, as a defender, on the bench, they interviewed 250 individuals, judges, prosecutors, defense lawyers, other counsel who had worked with her, and i asked point blank, justice ann williams who led this investigation by the aba, did you hear from anyone who said she was soft on crime, that she somehow was not in the norm when it came to sentencing? none, not one. 250 people interviewed not one came up with it.
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all we've heard against her has come out of the mouths of three or four people in the committee and that's in because there is no record for it. well, how did the american bar association grade her when it was said and done? unanimously well-qualified. unanimously well-qualified. it doesn't sound like the same person just described, does it? because it isn't. what you've heard on the floor here is a mischaracterization of her record, and i'm sorry to say it's unfair and i wish it hadn't been part of the record today. what about guantanamo? i have differences with the senator from south carolina about guantanamo. hundreds of detainees have been sent through guantanamo since the war on terror began. many of them should have been there, but hundreds and hundreds have been released by presidents republicans and democrats. we're now down to 39 detainees,
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spending over $10 million for each one of them each year at guantanamo bay. and when it comes to the resolution of who was responsible for 9/11, the families have testified before us, they've waited over 20 years and they still don't have an answer. they understand the approach of guantanamo bay is not leading to justice, it's not answering the basic factual questions. so what is her situation? why would she dare to call on the republican president of the united states a war criminal? what was she thinking? well, it sounds like a terrible charge until you read the facts. and the facts were, she presented a brief and the brief referred to a body of law known as the alien tort statute and the person she was representing in this brief was arguing that he was tortured, mistreated the at guantanamo bay so he filed a
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claim under the alien tort statute and when you do that, you sue the president of the united states and the secretary of defense. they were the named defendants that included president bush. what the senator of south carolina failed to disclose, as that case was winding its way through, the administration changed and if there was an allegation of war crime against president bush, it was the same allegation that was made when the administration changed and the name of the defendant changed to barack obama. to argue that this was a personal charge against the president of the united states as a war criminal is a gross exaggeration and unfair on its face. the named defendants were required under the tort statute for the allegations made. that wasn't her decision, that was the decision of congress to write the specifics of the alien tort statute. the third point i want to make is immigration, yes, we have challenges in immigration.
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i think we all know it, but to blame her and say that she's somehow responsible for the invasion, you saw the crowd of people coming across the border, is really unfair. what happened was there was a lawsuit filed challenging a trump decision on policy and she was asked to rule on it. and she ruled in one direction, and the deal was taken and she was reversed at circuit court. now according to the senator who just made the presentation, evidence she's in the pocket of the radical left when it comes to the immigration, evidence to george soros is somehow controlling her decisions, it's preposterous. the fact of the matter is, if you look at almost 600 decisions handed down by judge ketanji brown jackson, you will find a small, small percentage that were actually reversed and if you're looking for a second case to build a theory that she's on the radical left, i don't think you've found the
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first one. she has a balanced approach. she's ruled for and against democrats and republican presidents and shown the kind of balance that we expect on the supreme court. i would say that this notion that how joe biden has chosen someone who is radical is a shame. she's not. she is as solid as they come and her testimony and her appearance before the committee prove that over and over again. i also want to say i have nothing against the south carolina judge who was in the finals, but wasn't chosen by the president. in fact, president biden has asked that she be promoted from the federal district court to the federal circuit court and i'd like to get that done as quickly as we can. i think that judge childs is well deserving of that opportunity. she certainly is a good jurist, but the choice by president biden is clear and it's the right choice. these charges that somehow she
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is soft on crime because she's an african-american woman and a public defender belie by the records. and the labels, we know that story the hundred of us who sit on that side of the chamber in the senate, we're attached to labels which we embrace and some we don't embrace, but most people who are fair are going to say i'm not going to judge you by your label, i'm going to judge you by your record. if you judge ketanji brown jackson by her record, written decisions the fourth time before the judiciary committee and approved the three previous times and serving on the commission and other things, now there's an outstanding and stellar record it almost has to be. if you want to be the first, you have to be the best. she is the best. despite some things thrown at her today and in other places, the american people came out of that hearing and felt better
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and stronger about her nomination than before the hearing began. it's evidence of the strength that she brings to this nomination and the value that she had bring to the supreme court. i yield the floor. >> senator from texas is recognized. >> thank you, mr. president. mr. president, next week the senate will vote on confirmation of judge ketanji brown jackson to serve as a member of the supreme court of the united states. since judge jackson's nomination was announced, i made it clear that i would go into this process with an open mind, just as i have tried to do with each supreme court nominee that's come before the judiciary committee during my time in the senate. and this is now by eighth supreme court justice to participate in the confirmation of. and mr. president, i've seen


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