Washington, D.C. — This morning, U.S. Senator Jon Ossoff, a member of the U.S. Senate Judiciary Committee, engaged Judge Ketanji Brown Jackson in a substantive discussion about key Constitutional protections.
A former investigative journalist, Sen. Ossoff asked Judge Jackson about protections of freedom of speech and the press as guaranteed in the First Amendment and asked Judge Jackson how she would approach these vital protections if confirmed.
Sen. Ossoff highlighted the importance of the Constitutional right to an attorney, regardless of ability to afford counsel. He noted the Southern District of Georgia, which stretches from Augusta to Savannah and Brunswick and encompasses Dublin, Statesboro, and Waycross, is one of only three Federal judicial districts nationwide that lack a public defender office — making it challenging for defendants who cannot afford their own attorney to receive effective assistance of counsel.
Last week, he introduced the Access to Justice Act of 2022, which would establish a Federal public defender office in the Southern District of Georgia.
Please find several key lines of questioning below and Sen. Ossoff’s full line of questioning HERE:
SEN. OSSOFF: “Thank you, Judge Jackson. Let’s talk a bit about limitations on power. Our Constitution is a document that renounces monarchism and instead establishes a Republic. You, in an opinion that has been widely cited, made the observation that presidents are not kings. What does that mean? And what are some of the most important bulwarks in our Constitutional system against the abuse of executive power, against tyranny?”
JUDGE JACKSON: “Thank you, Senator. Our Constitutional scheme, the design of our government, is erected to prevent tyranny. The framers decided, after experiencing monarchy, tyranny, and the like, that they were going to create a government that would split the powers of a monarch in several different ways. One was Federalism. It was vertical. They would split the powers between the Federal government and states. Another was to prevent the Federal government from itself becoming too powerful, from having all of the authorities, from having Legislative, Executive and Judicial authority concentrated in one place. So, the Constitution, in its design, puts the Legislative authority in Article One and gives it to the Congress, the power to make laws. It puts the Executive authority in Article Two and gives it to the president, the power to execute the law. And it puts the Judicial authority, the power to interpret the laws, in Article Three, and gives it to the court. The separation of powers is crucial to liberty. It is what our country is founded on. And it’s important, as consistent with my judicial methodology, for each branch to operate within their own sphere. That means for me that judges can’t make law. Judges shouldn’t be policymakers. That’s a part of our Constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty.”
SEN. OSSOFF: “Thank you, Judge. I mentioned in my opening remarks that the Court has played a vital role, constrained within its proper Constitutional boundaries, in the national process of making America in real life what America is in text — and reflecting on your experience as a public defender, a vital role in our justice system, let’s talk a little bit about the Sixth Amendment and the role that the Court played in ensuring that the Sixth Amendment is real in practice. In the Gideon v. Wainwright decision, can you help all those who are tuned in right now to reflect upon that decision? What it means? What it says about the role of the court?”
JUDGE JACKSON: “Yes, Senator. Prior to Gideon v. Wainwright, people who could not afford lawyers were not entitled to lawyers under our system. So, a person could be accused by the government of criminal behavior and would have to fend for themselves in court. They would have to make their own arguments, someone who’s not a lawyer would still be responsible for defending him or herself in front of a judge if the government brought charges. Earl Gideon was a criminal defendant from Florida, my home state, who had a handwritten petition. He complained that it wasn’t fair under our Constitutional scheme that protects and requires people to be tried. He said ‘I need help. I’m not a lawyer, I can’t make these arguments. I think it’s important for the protection of liberty to ensure that people are able to have counsel.’ And that handwritten petition made its way to the Supreme Court. And the Justices read it. And they determined to take his case, and in the end, decided that the protections of the Sixth Amendment, the right to trial includes the right to appointed counsel, so that everybody who is accused of criminal behavior now has the right to an attorney. And that’s very important. I mean, one of the things that I see, or saw, as a trial judge, is that it was crucial for our Justice system to have representation from both sides. It was the only way that a judge, it is the only way, that a judge can really make fair determinations. And in cases — you know, we’ve heard a lot about my criminal cases — in every case, I’m getting, as a judge, arguments from the prosecution. I’m getting arguments from the defense counsel. I’m getting arguments or statements from probation in these criminal cases. And the work of a judge is to look at the facts and circumstances, hear the arguments of the parties, apply the law, and make a fair determination. And so having lawyers for criminal defendants aids in that process and benefits us all in our criminal justice system.”
SEN. OSSOFF: “I would just take the opportunity to note at this time, Judge Jackson, that it so happens that the Southern District of Georgia is one of just three Federal districts without a Federal Defender’s Office, and I’ve offered legislation to establish one, and I’ll be seeking support from my Republican colleagues to try to make that bipartisan to ensure there is access to counsel for defendants in my state.”
SEN. OSSOFF: “Let’s talk a bit about the First Amendment: freedoms of speech, publication, assembly. There’s a well-known Supreme Court case, Brandenberg v. Ohio, which establishes a certain test to ensure that the government is constrained in any effort that may be made to punish speech. And the impulse to censorship is something that can emerge from time to time across the ideological and political spectrum, particularly in times of great controversy or in times of national security crisis. Can you please walk the committee and the broader public watching now from all across the country through that decision, and how you will approach these vital protections for speech, publication, and assembly should you be confirmed?”
JUDGE JACKSON: “Thank you, Senator. Freedom of speech, publication, assembly is in the First Amendment of the Constitution. It is a core foundational protection against censorship. It is important in our constitutional scheme, that people be allowed to express themselves, that ideas be exchanged. That is the groundwork for a vigorous and vital democracy. There are many tests, many cases in the Supreme Court’s jurisprudence that discuss various disputes about circumstances in which the government can restrain or regulate speech. And that decision establishes, to a certain extent, that if there is speech that is an incitement to violence, that’s one circumstance in which the government might be able to prevent it. But other than that, short of that, free speech is supposed to be allowed to happen. And there are, again, various tests and circumstances that the Court has applied in deciding whether the government can regulate the content, place, and manner of speech. But the general principle is that our democracy is –– thrives because the government is restrained and cannot censor its citizens.”
SEN. OSSOFF: “I think in the in the same spirit of thanks, with which I open these questions, I also want to just take a moment and recognize the members of the press who are here –– the reporters and photographers who ensure that these proceedings are truly accessible to the public –– and ask you to describe your approach to press freedom. The question of prior restraint has been litigated. A famous case in the context of the Pentagon Papers, in the latter years of the Vietnam War. I know I believe for all of us on this committee, we recognize the vital role of press freedom in ensuring the free exchange of ideas, access to truth, and debate in our democracy. How will you approach cases that implicate press freedom?”
JUDGE JACKSON: “Thank you, Senator. This is another area in which there is well-established case law that supports the freedom of the press to be able to write and report. There is a general obligation of truth in terms of the press, but also a recognition that sometimes there may be things that get published that aren’t exactly accurate. And so, the Court in New York Times v. Sullivan determined a higher standard of liability for press. Things that are put out in the press have to be knowingly false. There’s an actual malice test, because the court was balancing concerns about libel, people claiming that they have been misrepresented in the press, with the need to allow the press to do their job. The overall understanding is that press freedom, again, is one of the First Amendment freedoms that undergird our democracy.”
SEN. OSSOFF: “I want to turn now to the Fourth Amendment. Want to discuss with you the protections against unreasonable search and seizure. We discussed how the Constitution was a renunciation of monarchism and tyranny. It establishes core civil liberties, one of which is the protection against unreasonable search and seizure. How will you approach Fourth Amendment case law? And can you help those tuned in across the country, remind them of what, for example, the principle of a reasonable expectation of privacy means in the context of Supreme Court jurisprudence?”
JUDGE JACKSON: “Thank you, Senator. The Fourth Amendment is one of the amendments in the Constitution that protects individual liberty by limiting what the government can do with respect to criminal processes. It restrains the government from engaging in unreasonable searches and seizures. And the Supreme Court has developed a series of tests and ways of evaluating whether any particular act by an officer in a case qualifies as an unreasonable search or seizure. Let me just say that this is the kind of area of Supreme Court and judicial review that is very fact-specific, because courts, in order to stay in our appropriate role, can’t make policy about police behavior writ large, can’t just sort of look out into the universe and say, we have a Constitution that says unreasonable searches and seizures, so let us tell you all what that means. That’s not the way that courts operate. Under Article Three, courts can only hear individual cases and controversies and decide them. So, every court, including the Supreme Court, is looking at unreasonable search and seizures in the context of a particular dispute, where someone has had something searched by an officer in their house, they’ve been seized under a particular set of facts, and they claim in the context of a lawsuit, or in the context of defending themselves, that there has been an unreasonable search or seizure. And so, the court, case by case by case, looks at the facts and circumstances and decides. And I would say that this is the kind of analysis that takes into account a number of things, but one of the things, in addition to understanding the facts and circumstances, is understanding what is meant in the Constitution by unreasonable search and seizure. There is case law that the Supreme Court has developed that looks at whether or not something is an unreasonable search and seizure in part by analyzing whether there was a reasonable expectation of privacy in that item, in that area. Is there a reasonable expectation of privacy in your house? For example, if a police officer were to come into your house, you would not be able to claim Fourth Amendment protection unless, says the Supreme Court, there was a reasonable expectation of privacy in your house. And the Supreme Court has determined whether there’s a reasonable expectation of privacy, for example, in your house, by looking at what areas were protected at the time of the founding, when the words ‘unreasonable searches and seizures’ were written into the Constitution. Lo and behold, something like your house, the Court has determined, there is a reasonable expectation of privacy, because that’s what those terms meant back then. And so, if a police officer were to come without a warrant, the Court has said, in areas where there is a reasonable expectation of privacy, that would be an unlawful search.”
SEN. OSSOFF: “This is an area where the emergence of new technologies makes it likely, I believe, that should you be confirmed, you will have to consider Fourth Amendment claims in light of circumstances that couldn’t have been anticipated at the time of the drafting of the Constitution. And indeed, Constitutional interpretation has already evolved over time to adapt to the reality of new technologies. From phone booths, a classic case in the late 1960s, about whether a closed phone booth door demonstrates an expectation of privacy, to more recent case law involving geolocation data from cell phones. And I want to urge you, should you be confirmed, to remain vigilant about how the emergence of new technologies, the way that they become ubiquitous in our lives, the way that virtual spaces are increasingly akin to physical spaces, will require the court to consider very complex questions and to seek technical advice, because these are technologically complex questions. What is your view on how the court should seek such technical expertise? Which may be, with all due respect, beyond the training or experience of a Justice or their clerk. And if, for example, one such method of seeking advice is through amici, what’s the importance of understanding the provenance and origin and funding source of such briefs submitted to the court? So, this is a two-part question. I want to restate it. The first is, again, I want to urge you, should you be confirmed, as I’m confident you will, to vigorously defend the Constitutional rights of American citizens against unreasonable search and seizure in the context of new technologies. Like to hear how you will approach seeking technical expertise to inform that decision making? And then, a question about the transparency of briefs filed before the court, something that Justice Scalia noted in some campaign finance case law, that it’s important for the public to know who’s funding electioneering communications in the context of political campaigns. I think it’s important for the Court to know who’s briefing them, what the motive and funding source of such briefs might be. Could you please, with my remaining time –– and then I’ll yield, and we’ll have some more time later to discuss war powers –– could you please comment on those matters? Those will be my final questions for this round.”
JUDGE JACKSON: “Thank you, Senator. One of the ways in which the Court receives information, other than directly from the parties in a case, is through a practice, an established practice, of receiving amicus briefs. Amicus is a term for friend, friend of the court briefs. These are people who are not parties to the case, who don’t have that kind of interest in the case but may have expertise or information or arguments that they wish the Court to hear. And I think that that would be the primary mechanism by which, if the Court were to decide to hear a case concerning a matter that involves some technical expertise, I would think that there might be amicus briefs related to the technology, for example. I have not looked at the Court’s rules, I would certainly want to discuss with the Court’s other Justices, the ways in which determinations are made about which amicus briefs are received and what disclosures are related to them. But the Court does receive amicus briefs in cases in order to inform itself so that it can make a decision related to the issues in the case.”
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