TUESDAY, MARCH 29, 2022
Delivering script to one world: Last night, we watched the thirty minutes all over again. We even jotted down notes.
We were watching for maybe the third or fourth time. In truth, we saw nothing which struck us as shocking. We saw nothing which even came close.
We refer to Lindsey Graham's thirty-minute exchange with Judge Ketanji Brown Jackson on Tuesday morning, March 22. You can watch the whole thing yourselves, through the underutilized miracle of this C-Span videotape.
(Click on "Sen. Graham Questions.")
On that occasion, Graham became the fourth senator (out of 22!) to interview Jackson during last week's confirmation hearings. To our eye, the thirty minutes proceeded roughly like this:
For something like the first ten minutes, Graham voiced a series of complaints about the way other nominees to federal courts had been treated in the past. He never suggested that any of this had been Judge Jackson's doing or fault.
As we suggested yesterday, the comity was general during this part of the session. Now, Graham turned to a new line of questioning, and this exchange occurred:
GRAHAM (3/22/22): So now let's talk about Gitmo. Being a public defender, did you consider that rewarding?
JACKSON: Senator, yes, I did, because public service is very important to me. It is an important family value. It is something that now I dedicated my career to.
GRAHAM: Yes. And do you think it's important to the system that everybody be represented?
JACKSON: Absolutely. It's a core constitutional value.
GRAHAM: You'll get no complaint from me. That was my job in the Air Force. I was an Air Defense Counsel. I represented anybody that came in the door, whether I liked them or not. I did my best. Is that what you did?
JACKSON: Yes, sir.
GRAHAM: Okay, good. Now, so the American people deserve a system where everybody's represented, whether you like them or not, and anybody who takes up that cause, no problem with me. You're just doing your job and I think you make our country stronger.
The pair were still playing together quite nicely at this point.
At this point, Graham finally began to voice an objection to an amicus brief Jackson had filed while representing a Gitmo detainee.
As we'll show you below, it eventually became clear that Graham thought the amicus brief had been very poorly advised. But even this part of the interview started off in this cheerful way:
GRAHAM (continuing directly): But there's the other side of the story that never gets mentioned when I talk about Gitmo. The American people deserve a system that can keep terrorists off the battlefield. They deserve a system that understands the difference between being at war and in crime.
Do you consider 9/11—you said "a terrible tragic event." Would you consider it an act of war?
JACKSON: Yes, Senator.
GRAHAM: Okay. I would too. I think it was an act of war byAl Qaeda and associated groups against the people of the United States.
So, as you are rightfully proud of your services as a public defender and you represented Gitmo detainees, which is part of our system, I want you to understand, and the nation to understand, what's been happening at Gitmo.
What's the recidivism rate at Gitmo?
JACKSON: Senator, I'm not aware.
GRAHAM: It's 31 percent. How does that strike you? Is that high, low, about right?
JACKSON: I don't know how it strikes me overall.
GRAHAM: You know how it strikes me? It strikes me as terrible.
JACKSON: Yes, that's what I was going to say.
GRAHAM: Okay, good. We found common ground.
Even as the new discussion began, the pair still held common ground.
Lacking a background in the law, we can't say that we really understand the discussion which followed. Nor have we seen any major pundits attempt to clarify what was said for the benefit of us non-experts.
But Graham seemed to say that Jackson's brief had been an exercise in poor judgment. We can't evaluate that claim, but as the clock struck 11:05 A.M. that day, here's what he eventually said:
GRAHAM: I'm not holding the clients' views against you. Like the people you represented at Gitmo, they deserve representation.
But this is a amicus brief, where you and other people try to persuade the court to change policy.
The policy I described is a periodic review. If the court had taken the position argued in the brief that you signed upon, it would have to release these people [from Gitmo] or try them.
In some of them, the evidence we can't disclose, because it's classified. You're putting America in an untenable position. This is not the way you fight a war. If you try to do this in World War II, they'd run you out of town.
We hold enemy combatants as a threat. There's no magic passage of time that you've got to let go.
So my question is very simple. Do you support the idea, did you support then the idea then, that indefinite detention of an enemy combatant is unlawful?
JACKSON: Respectfully, Senator, when you are an attorney and you have clients who come to you, whether they pay or not, you represent their positions before the court.
GRAHAM: I'm sure everybody at Gitmo wants out. I got that.
This is an amicus brief. And I just don't understand what you're saying, quite frankly.
I'm not holding it against you because you represented a legal position I disagree with. I mean, that happens all the time. I'm just trying to understand what made you join this cause, and you say somebody hired you.
But did you feel OK in adopting that cause? I mean, when you signed on to the brief, were you not advocating that position to the court?
JACKSON: Senator, as a judge now, in order to determine the lawfulness or unlawfulness of any particular issue, I need to receive briefs and information, making positions on all sides.
GRAHAM: I got what a judge is all about. Listen, I'm not asking you to decide the case in front of me right here.
I'm asking you to explain a position you took as a lawyer regarding the law of war. And I am beyond confused.
I know what you said in your brief. Whether I agree with it or not is not the point. I just want you to understand that it's important for all of us to know where you were coming from.
If that brief had been accepted by the court, it would be impossible for us to fight this war because there's some people who are going to die in jail in Gitmo and never go to trial for a lot of good reasons, because the evidence against them is so sensitive, we can't disclose it to the public.
We're not charging them with a crime. What we're doing is saying that you engaged in hostile activities against the United States, that you are an enemy combatant under our law and you'll never be released as long as you're a danger until the war is over or you're no longer a danger. That's the difference between fighting a crime and a war.
It seemed to us that Jackson was uncomfortable during the bulk of this lengthy discussion. In the portion we've just posted, we couldn't tell whether Graham's overall position about Jackson's past conduct actually made good sense. At times, it seemed to us that Jackson was looking for ways to avoid Graham's questions, but we can't exactly be sure.
At any rate, it never seemed to us that Graham was asking some sort of inappropriate question, or that Jackson wasn't being given every chance to answer and explain. And we're sorry, but no:
It never seemed to us that Graham was conducting himself, during this thirty-minute session, in a way which was hostile, rude or otherwise inappropriate. We couldn't evaluate some of his claims, but his deportment struck us as normal.
A few additional lines of question followed before his thirty minutes were done. (And yes, he ended on time.) Those questions were pursued in a somewhat cursory fashion—but on at least one occasion, overt comity prevailed again.
Having said that, we'll also say this about Graham's initial thirty minutes:
We lack the background which would let us evaluate the discussion about that amicus brief. Near the end of the session, a few of Graham's concerns struck us perhaps as a bit petty.
That said, most of his concerns didn't strike us that way. Beyond that, we're forced to say it:
We saw nothing that was inappropriate, insulting or rude in the course of Graham's discussion this day. He often complimented Judge Jackson. They agreed on quite a few points.
For us, that's the way the session seemed—until the gigantic Senate committee took its first fifteen-minute break. At that point, CNN's pundit panel came center stage, and we got a chance to see part of the process by which we in this country have come to be living in (at least) two different worlds.
Yesterday, we showed you some of what was said on CNN during that first break. Tomorrow, we'll show you more.
As Americans, we live in at least two different worlds, with many micro-worlds forming. In our view, each of those worlds is badly served by the various "jugglers and clowns" who script our childish narrative dreams, who rush to tell us what we should think and also what we should say.
Tomorrow: "Shocking" and beyond