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tv   Attorney General Nominee Merrick Garland Testifies at Confirmation Hearing...  CSPAN  February 22, 2021 9:41pm-11:16pm EST

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well live other new him when he was -- i have close personal and professional interactions with both his son, former judge and later, the dean. and with david's son well. he served with me as my chief counsel and work on this committee for several years and later served as chief of staff to attorney general barr. a big fan of that family. i'm glad that he is someone that you look up to. i want to talk about a few issues today. let's talk about the second amendment and the right to bear arms. this is going back 15 years or so. but in the case called parker versus the district of columbia, a case that later became known as the district of columbia vers heller.
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burn bans within the visitors of columbia. of later in the same proceedings of the same case, the supreme court struck down the fan on handguns. >> it is not a vote on the merits of the case. in my case, for myself, it is never a vote on the merits, it is about to rehear the case. the panel decision was the first time a court of appeals held the
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right to keep and bear arms. every court of appeals had decided to the contrary and the issue was plainly one that would require looking at a deep historical record. as to the meaning of the second amendment and the way it has been applied. i thought this was an instrument important issue. important enough since it was the very first time. i was not the only judge. other judges including a judge appointed by the president of a different party. >> i appreciate that. let's talk on the bit about the meaning of the second amendment. do you agree with justice thomas's analysis?
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that the second amendment right to bear arms certainly includes the right to carry firearms in public for self-defense? >> my opinion is totally controlled -- the court said that was a fundamental right which applied to the states as well. it is a right like all rights that is subject to some limitations. the court has not given us much more to work with at this point. i do think that as i said with respect to my vote on the bond, this is a matter that requires careful historical examination. which i had never done. i can't do that sitting here for you. i don't have an opinion on that
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question. en in a traditional role for the last 20, going on 25 years. you will be in a different role if confirmed to this position one which will have a significant impact on policy. let's talk about policy as it relates to the second amendment. you support universal background checks? judge garland: i do think it is very important that we be careful that people who are entitled to have guns get the background check that allows them to have them, and that those who are not entitled, and that we are concerned about because they are a threat or fellows or for some other reason, that they have some opportunity to determine that they not be given a gun. >> the support -- do you support banning of certain types of
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firearms? judge garland: as i am sure you know, the president is a strong supporter of gun control and has been an advocate all his professional life on this question. the role of the justice department is to advance a policy program in the administration is long as it is consistent with the law. we have little indication from the supreme court as to what this means. where there is room under the law for the president's policies to be pursued, than i think the president is entitled to pursue them. >> what about policies that would support holding firearms' manufacturers liable for damage caused by using firearms they produced to commit a crime? judge garland: i believe the president may have a position on this question. i have not thought myself deeply about this.
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i don't think it raises a second amendment issue itself. the question of liability protection, i have not addressed this in anyway and i would need to think about this considerably. >> the other questions i raised potentially implicate the second amendment. that one raises other. policy concerns, i understand. let's talk about fisa briefly. so that only he and i offered an amendment to reform the process by strengthening the amicus curiae provisions that have been put in binder usa freedom act which senator leahy and i got past through congress and was signed into law by president obama in 2015. our amendments would require the government to disclose relevant exculpatory evidence both to the fisa court and to the amicae. this amendment and it up passing
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the senate last year is super majority of 77-19. do you support reforms to fisa, like those just described in the leahy amendment? judge garland: it is an extremely important tool for the justice department and the intelligence community in general to protect the country from foreign agents and foreign terrorists. on the other hand, it is extremely important that everything we do with respect to fisa, that we do so in accordance with the law and with respect for the constitutional rights of citizens. i don't know specifically about your two proposals. i do know that the current roles, with respect -- i do know the current rules with respect to amicus. everyone seems quite happy with the way the process is going. i don't know what more might be needed.
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>> i have one brief follow-up. can i just finished that question? thank you. on the question of the topic related to f.i.s.a., do you think the federal government ought to be with the correct american citizens' web browsing our internet search history without a search warrant supported by probable cause? judge garland: i know this is a big issue. my experience with f.i.s.a. comes from a slightly different era. i have a lot of experience but it was a different era and i followed this a little bit. i haven't had any cases on it myself. i would have to look at it. i believe in judicial review, and i am a strong supporter of and respectful of judicial review of orders, but i do not know what the practicalities of going for a probable cause warned in those circumstances would be, if it would be an
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emergency, etc. i am eager to engage with you and other members of the committee who are concerned about this so i can understand this problem more fully. >> thank you very much. >> senator coon judge garland, welcomes. >>. judge garland: thank you. >> congratulations on your nomination. please convey my thanks to your family for supporting what has been a decade-long career at the bench, the bar, as someone dedicated to public service, to law enforcement and to upholding the balance between justice and liberty. i can't think of a more urgent task for us than restoring the people's faith in institutions and the rule of law. the attorney general represents the public interest, and your enthusiasm for ensuring the 100
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60 thousand career employees of the department of justice are appropriately sheltered from partisan and political inferences is very encouraging to me after what were some harrowing moments in the last few years. as i am sure you know, there are quite a few admirers of yours who work in this committee, former clark's of euros to work closely with me and will have reassured me not just of your professional skill and great insight, but also your personal decency, kindness, and thoughtfulness. i was struck reading your background that he has spent 20 years as a tutor at an elementary school here in the district of columbia, something i think not enough elected or appointed officials neither on the edge or congress do. thank you for your service. i am from a small town in delaware, which like many other cities in america was torn apart by concerns about racial justice and inequality. a city that has also struggled
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with long-standing challenges with gun violence, with insecurity and instability in our community. our mayor and our governor are doing a great job, working hard to address this, it's striking the right time is between protecting our citizens from gun violence but also developing an environment where law enforcement is more transparent and accountable. that is good to be one of the core challenges which you and the d.o.j. will be involved in in partnership with state and local enforcement and other elected officials. in wilmington and dover, delaware, we are rolling out body-worn cameras power law enforcement officers by 2025. but it is very expensive. it is something law enforcement has embraced, something advocates have embraced. i am an appropriator for the department of justice as well as this committee. is that something you could agree to be an advocate for, the funding of audi one cameras to
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ensure both accountability and improve trust between law enforcement and local communities? judge garland: i am, again, always happy to accept more resources. i don't know what that might take away from in other areas, that i personally think that body cams are very important tool to protect -- both to protect officers and to protect the citizens. just as we are all on the inside, i was on the outside what happened on january 6 and the fact that we were able to see exactly what was happening to the officers and the way in which they were carrying about their duties in the best way they could, it is only possible to be captured because of your body cameras. it is an important tool for accountability.
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yes, i do. >> thank you, your honor. i think it is important we increase investment in a variety of programs. i have worked for the victims of child abuse act, and covid-19 has demonstrated a rise in child abuse. this is a critical tool that allows state and local law enforcement to effectively address and abuse. the pullet proof vest partnership program, which has helped save 3000 officers' lives, these are other programs i look forward to working with you on. there is much needed legislation that will move us forward in terms of criminal justice reform and protecting communities from violence. senator cornyn and i hope to soon reintroduce an act which ensures state and local law enforcement gets notified when a person prohibited lies and tries in the attempt to purchase a gun. that is something that has been discussed in previous congresses on this committee. we haven't made progress on it, i think we should.
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we will reintroduce the bipartisan driving for opportunity act, which incentivizes states to stop suspending drivers licenses simply for unpaid fines and fees. it is a counterproductive way to take away people's ability to get to work and ensures people are trapped in modern day debt prisons. i would be interested in whether you will work with us here in congress to move bipartisan bills like these. judge garland: i am extremely interested, if i am confirmed and working with the members of congress, particularly on bipartisan legislation. i don't know specifically about those, but each of them has the ring of something that is very important and quite reasonable. >>enactable, reasonable, moving the ball forward, are things that i hope will work on. i look forward to working with senator sasse who will serve as
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working member. one of the things we will be looking at is how online misinformation is contributing to domestic terrorism and division. you discussed your own experience with domestic terrorism cases, and your plan to prioritize the issue is something the fbi director has said is one of our most pressing threats. do you think the d.o.j. has a role to play in examining the role of disinformation and incitement online to contributing to violence, and the d.o.j. has a role in working to help us develop reasonable solutions to this challenge? judge garland: again, senator, i think every opportunity the justice department has to work with members of the senate to think about how to solve problems and how to craft legislation is one we should take. i don't have in mind particular legislation in this area. i do think that an important
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part of the investigation of violent extremist groups is following their activities online and getting an idea of what kind of information or misinformation is being put out. i look forward to talking more about this with you. >> well, this increasing regulatory schemes, both in europe and in california and other states being considered, there is, and i look forward to working with you on striking the appropriate balance between protecting data privacy and individual liberty, but also protecting the competitiveness of the united states, and globally, making sure we are pushing back on digital authoritarianism. i am glad to see the department persecuting, i think there are 235 charges brought so far against the raptors who invaded the capitol on january 6. i have supported calls for a 9/11-style independent commission to investigate the bigger picture of what caused this and what we might learn from it. though you think an independent
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commission of that style would help to complement the department's style and help people better understand the root causes of that incident and better help us both protect the capitol and those of us who served here, but more importantly protect the underpinnings of our democracy? judge garland: i think the 9/11 commission was very useful and helpful in understanding what happened then. of course, congress has full authority to conduct this kind of investigation or set up an independent commission. the only thing i would ask if i were confirmed is that care be taken. that that commission's investigation not interfere with our ability to prosecute individuals that caused the capitol, the storming of the capitol. as you well know, it is a very sensitive issue about disclosing
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operations which are still in progress, disclosing our sources and methods, and allowing people to testify in a way that that makes it impossible to prosecute them. so with those caveats, i certainly could not object to anything congress would want to do in this regard. >> understood. thank you, judge. i am encouraged either broad bipartisan support you have already garnered -- by the broad bipartisan support you have or do garnered in this committee. judge garland: thank you. >> senator cruz. >> thank you, mr. chairman. judge garland, welcome. congratulations on your nomination. judge garland: thank you. >> in two deck is on the court, you have built a reputation for integrity -- two decades on the court, you have built a reputation for integrity. the job to which you have been appointed is a very different job.
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and as i look back over the eight years of the obama-biden justice department, in my view, the most problematic aspect of the tenure was that the department of justice was politicized and weaponize in a way that was directly contrary to over a century of tradition of the department of justice the being apolitical and not a partisan tool to target your opponents. so it is very much your hope if you are confirmed that he will bring that reputation for integrity to the department of justice and demonstrate a willingness to stand up for what will be inevitable political pressure, to once again politicize the department of justice and use it as a tool to attack the political opponents of the current administration.
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eric holder, before he was nominated as attorney general, had likewise built a reputation as being relatively nonpartisan, and a prosecutor with integrity. unfortunately, his tenure did enormous damage to that reputation. as was previously discussed eric , holder described his role as attorney general as being the wingman for president obama. am i right in assuming you do not view your role as attorney general as being joe biden's wingmen? judge garland: i said i do not want to comment on any individuals' conduct. my predecessors or fbi director's conduct in any way. i do not regard myself as anything than the lawyer for the people of the united states. not the president's lawyer, i am
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the united states lawyer, and i will do everything in my power that i believe is considerable to fend off any effort by anyone to make prosecutions or investigations partisan or political in any way. my job is to protect the department of justice and its employees in going about their jobs and doing the right thing according to the facts of the law. >> under the obama administration, the irs targeted conservatives for their speech, it's targeted pro-israel groups, targeted tea party groups, targeted individuals perceived to be on the opposite political side of the administration. will you commi that as attorney generalt you will not allow the department of justice to be used to target those who are perceived as political opponents? judge garland: absolutely i will >> also under the obama
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administration, operation choke point was used to pressure lawful organizations and institutions, institutions that, for example, sell firearms, to constrain their lawful authority and to force them to comply with the administration's stated policies. do you believe it is a perfect for the elise: and to use regulatory pressure to force lawful behavior to stop? judge garland: senator, i am not aware of the specifics you are giving. i don't expect i would have been aware of it. of course, i do not believe as a general matter that regulation should be used to stop people from doing what they are lawfully entitled to do unless the regulation is pursuant to a statute which congress has given authority to change the rules.
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>> as you also know, attorney general eric holder was held in criminal contempt of congress. a bipartisan vote. 18 democrats voted to hold attorney general holder in contempt. they did so because he refused to produce documents to congress for congress's investigation of the fast and furious scandal, that resulted in the death of two federal law enforcement officers. you have previously committed to senators on this panel that under your leadership, the department of justice will comply, to the extent possible, with requests from this committee. and i want to in the course of this question associate myself with senator whitehouse's comments and questions. he and i disagree on many issues, but on this particular issue, we are emphatically in agreement that senators from this committee should get answers, should get candid answers, substantive answers,
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real answers from the department of justice regardless of the party of the senator asking that question. that is a level of oversight the american people have a right to expect. you agree? judge garland: i do think this is a level of oversight the american people have a right to expect. i want the department, if i am confirmed, to be responsive to the extent possible, with respect to our justice department's appropriate equities, to be responsive to the requests for information. >> so you have had -- previously you said you read the executive summary of the horowitz report. what was your reaction to the horowitz report? judge garland: i thought, as mr. horowitz explained, and i believe director wray agreed, that there were problems with respect to the applications for f.i.s.a., several of them, that
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they were not consistent with the internal regulations of the department, and that those problems had to be corrected. . and i think deeply that we will have to be careful about how we use f.i.s.a.. that is the reason we have pretty strict regulations internally in policies, and we need to find out why they are not followed and make sure they are followed. i understand that was the purpose of the report and his recommendations to director wray. >> so you described the report by saying there were problems. that is a pretty and a date way of characterizing given the multiple mischaracterizations, including the fabrication of evidence and lying to a court to which he has now pleaded guilty to. i think that was yet another example of the deep politicization of the department of justice, culminating in a
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meeting with the acting attorney general, president obama, vice president biden, in the oval office concerning the targeting of their political opponent. will you commit to this committee that under your leadership, the department of justice will not target the political opponents of this administration, and there will be real scrutiny -- what that report outlines among other things, is weaponize in -- weaponize in opposition research from the hillary clinton campaign and launching a criminal investigation based on that. will you commit that that conduct would not be acceptable? under the department of justice you are leading? judge garland: senator, without trying to comment specifically on that matter, it is totally appropriate for the department to target any individual because of their politics.
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the only basis for targeting has to be evidence of risk of a foreign intelligence problem or for a criminal problem. if that is a -- that is a nonpartisan issue and it can never be an efforts to help one party over another party. investigations and prosecutions, there is no party. that is my job to ensure that that is the case. >> thank you. >> thank you, senator cruz. we now understand senator leahy is in zoom range. do you read me? can you hear me? >> i hear a voice. >> i seemed there is a picture here somewhere. >> is there a way to turn up the volume so that we can hear senator leahy? there he is.
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>> i am moving this camera around just a little bit. >> all right. >> ok. >> take it away, senator. >> thank you very much. judge, it is great to see you seated there. i wish five years ago we would have seen you sitting there for the supreme court nomination, but i am glad you are here today. the nomination comes at probably the most vulnerable moment in 151-year history of the department. , and you have got to restore the integrity and the respect of the department. those are all jobs that i cannot think of anybody more qualified to do that. a number of people have stated
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theirone person i know and respt greatly, a former fbi director and i know mr. chairman, if you don't mind, we can have that letter go in the record if you haven't already put their. chair durbin: without a jackson -- without objection. sen. leahy: a lot of things already been covered and you and i have talked before, your experience in the oklahoma city bombing -- anybody who has been a prosecutor knows what a job you did there and i do appreciate that. we have other things to deal with, the voting rights act, it
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would seem there has been a scourge of voter suppression which would be wrong, i don't care who is being suppressed. less the justice department gets its tools back under the voting rights act, i am afraid the right to vote is always going to be at risk, especially for minorities and underserved communities. do you agree with legislation like the john lewis voting rights enhancement act is needed? judge garland: i don't know the specifics of the act but i knew john lewis well and was now -- and was a great admirer. with respect to voting, even in this last election, where a large percentage of americans voted than ever before, at least
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one third did not vote. i think it is important every american have the opportunity to vote. voting is a central facet, the fulcrum of our democracy. any legislation that would encourage more voting i strongly support. specifically, you are referring to the supreme court in its decision in the shelby county case which said the coverage formula for preclearance could not be used because the then state of the congressional record but the court indicated a different and stronger record might support preclearance and i would be in favor if i am confirmed of working with the committee and the senate and the house to try to develop that record that would allow that important tool to be used.
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the department still does have other tools. it has section two, which remains in force as the supreme court said in shelby county and it prevents interference with voting practices and procedures that interfere with the minorities ability to vote and it is something the department has looked to as an important tool. there are plenty of other tools to increase the abilities of americans to vote which i would support. sen. leahy: i know senator lee has already raised this, but please know senator lee and i will be talking about privacy matters. this is not a partisan issue. this is an issue of concern.
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an issue of concern to me -- in the bush administration, the last bush administration, they put a moratorium on the death penalty. they gave a solid reason for that and that moratorium lasted from 2003 during the bush administration and then suddenly in the last six months, the justice department under the last president rushed to execute more people and this is what is stunning -- in six months have been executed then in the past 60 years. that was nothing short of being
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a killing spree. what worries me is we know the death penalty is used disproportionately against minorities and the poor. i prosecuted many murder cases and i always opposed the death penalty. vermont has gotten rid of theirs. i would much rather have someone -- i'm joining with senator durbin and senator booker which would end the federal death penalty, so i ask you this. would you go back to what president bush did and reinstate the moratorium which was
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reinstated while we work on the -- on elevating the death penalty. judge garland: as you know, president biden is an opponent of the death penalty. over the years where it had been paused, i have had great paws about the death penalty. i am very concerned about the large number of exonerations that occur through dna evidence and otherwise not only in death penalty convictions but other convictions. i think a terrible thing occurs when somebody is convicted of a crime they did not commit and the most terrible thing that happens is someone is executed for a crime they did not commit. it is the case that we have seen
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fewer and fewer death penalty applications anywhere in the country, not only in the federal government, but as a consequence, i am concerned about the increasing, almost randomness or arbitrariness of this application when you have so few number of cases. finally, very importantly as the other matter you raise, is its disparate impact, the data is clear it has an enormously disparate impact on black americans and members of communities of color and exonerations that something like half the exonerations had to do with black men. all of this has given me pause and i expect the president will be given direction in this area,
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and if so, i expect it not at all unlikely that we will return to the previous policy. sen. leahy: i think my time is just about up, but i would also add that as chairman of the appropriations committee, i will be talking to you about the department of justice with the grants they have on the violence against women act and other such things. we have to make sure that they are done. i'm very happy that you are here but i have a feeling we will have a lot of conversations in the next few years. judge garland: i would be happy to conversations even if i am not confirmed. sen. leahy: you are going to be
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confirmed. i would bet the farm on that. sen. sasse: thank you, judge and thank you for your time that you spent with those of us who wanted to grill you in private. you are in the process of moving from article three to article two. you were confirmed to the bench and 96 or 97? in the 24 year since you left an executive role, the article to branch has grown in power and article one seems to be shriveling in lots of ways. do you have a theory as to why articles two and three are gaining power and article one is seemingly weaker? judge garland: that is a cosmic
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question of our civic life. i don't really have an answer to that. each branch has enormous powers authorized by the constitution and maybe if this is the case, that congress has not asserted itself as it should with respect to protecting its authorities. i'm not enough of a political scientist to know how the balance has changed but from the point of view of the congress, it's role has diminished but sometimes i'm sure the other branches feel the same way. sen. sasse: i think it's a mix of an overreach by article two and i'm not asking it in a way to put you on the defensive. i think we are probably chiefly to break -- to blame. but you are going to become the most powerful law enforcement officer in the nation and you will have lots of prosecutorial
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discretion. could you help us understand what the line is between prosecutorial discretion which is understandable in any complex organization and executive unilateralism, which i hope we can agree at the definitional level is a massive constitutional problem. what is the line? judge garland: the supreme court's cheney cases the best overall description. for the entire history of the country, prosecutors and government agencies have had discretion to make decisions about how they allocate their resources in terms of enforcement priorities, criminal and civil. this is either generally been none reviewable or deferentially reviewable in the courts. the opposite side of the line is that the executive branch cannot simply decide to not enforce a law.
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no matter where a particular piece of conduct falls between those things is a difficult thing to say except on an individual case. sen. sasse: in our tribal politics it's easy for each party when they are out of power saying the article two branch is overreaching. when you are in power it turns out those mostly look like discretion. how do you think not just the supreme court minded cases, but at the level of you being the boss of the aag, how will you determine what actions are beyond the pale? judge garland: i think when the department makes determinations based on resources and its views about which are the most important matters that it should go forward with when it thinks that state and local governments are in a better position to handle those matters, any of
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those factors are perfectly appropriate for deciding to exercise prosecutorial discretion. but mere disagreement with a law passed by congress or a decision that a department will not roof -- in for regardless of resources would be impermissible. i think no matter how hard i try i cannot put this in perfect words and i am sure maybe we will disagree in the future if i get this position. it will be a good faith effort on my part to be sure that the executive only does what it is supposed to. sen. sasse: i want to move on to another topic. his congressional inaction a legitimate basis for article two to decide it must act the echo because it wishes policy were different and legislation does not move, therefore you if you have a pen and a phone can you
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act to congress did not? judge garland: you are asking really tough questions of basic constitutional structure. doing so simply out of upset that congress has not done what -- what you want is not ok. in the formulation that justice jackson who i quoted in my opening famously gave in the youngstown steelcase, president does have authorities when he acts constant with -- consonant with congress he is at his highest power. when congress has not acted at all he is left with only only his own power which is clearly available under the constitution depending on the circumstance we are talking about. when he acts in contravention of congress he has only the
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authorities the constitution gives them minus the authorities that the congress has. this is what jackson famously referred to as the lowest end of executive authority. inaction is in the middle. you can do this just because congress did not act, but the president can act if it's within his authority and he believes it something in the public interest. sen. sasse: i was encouraged earlier when you said the department's purposes -- purpose is to -- include to be sure that the powerful and the powerless are treated equally. i want to talk about one case where that has not happened, jeffrey epstein and his many victims of domestic and international sex trafficking. he evaded justice for years and when the department did ultimately partner with local authorities and allowed charges to be brought that did not befit
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the seriousness of his crimes. infuriatingly he was allowed to die by apparent suicide in federal custody despite the fact that everyone knew he was a suicide risk and many would benefit from that outcome. his state has failed to pony up to make right on all of their obligations to compensate his victims. what do you think went wrong with the department's handling of the epstein case? judge garland: [sigh] my position and as a judge in my previous position as a prosecutor i've always been careful not to comment about something without knowing the facts. the facts i know about the epstein matter are the ones i read in the media and the ones i have seen on television. sen. sasse: we can agree those are disgustingly embarrassing about how weak the department's pursuit of this evil man -- judge garland: absolutely. you ask the why and i cannot answer the why question.
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on the values question i can answer, it was just horrendous and he obviously should have been vigorously prosecuted substantially earlier but i don't know the why. sen. sasse: and he has co-conspirators that are still being held in pursuit. i hope that we will make sure the department prioritizes resource for this. scores of the women he victimized are in their 30's now but they have had so much of their lives stolen from them and obviously sex trafficking is a scourge of our time and i would hope the department continues to do an after action review on why we have under invested. moran -- more questions on the china initiative so i will follow-up separately because my time is expired. sen. durbin: senator blumenthal? sen. blumenthal: i want to welcome you to the committee and
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welcome your family. a supportive and accomplished family and say that among the qualities that you bring to this job, obviously you are brilliant, you are -- the lesson today is that character counts. restoring the integrity and credibility of the leadership of the department of justice i think that the character that you have demonstrated throughout your career is going to be most important. your resilience and your brilliance. you have been tested and the kind of values you exemplified beginning with both of us served as circulars in the department of justice and first met. i look forward to your inspiring, more young attorneys to join the ranks of law
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enforcement and celebrate the accomplishments of those 115,000 professionals who, every day, help keep us safe. i welcome your commitment to combating violent extremism. i have supported and am introducing a 9/11 mission bill. i want to turn to an area of violence, hate crimes, the growing incidence of hate crimes especially against now certain groups, asian americans think is extraordinary alarming. i've introduced a measure called the no hate act, it would reform the penalties and increase reporting. many of these crimes are underreported. i would like your commitment that you will support such a measure and enforcement of the existing penalties against hate
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crimes? judge garland: couldn't have any opposition from me in that matter, senator. hate crimes tear at the fabric of our society and make our citizens worried about walking on the street and exercising even their most normal rights. the role of the civil-rights division is to prosecute those cases vigorously. i can assure you that it will if i am confirmed. sen. blumenthal: thank you. on gun violence you have been asked a few questions by senator lee, three years ago this month parkland occurred. parkland, sandy hook, other places like las vegas have become shorthand for massacres that are true tragedies and also preventable by commonsense steps
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such as president biden had supported, and i have helped to lead in the congress, universal background checks, ethan's law, closing the charleston loophole, and of course emergency risk protection orders, senator graham and i have worked together on a measure i am hoping we will reintroduce. one of your president -- one of your predecessors, william barr, said about emergency risk protection orders, this is the single most important thing i think we can do in gun control areas to stop these massacres from happening in the first place. william barr and i did not agree on the, but i think i am of the opinion that it is an important step to take. would you support these kinds of common sense steps?
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judge garland: yes, i don't know the specifics of all of them. with respect to emergency risk orders, when somebody is acting out in a way that suggests they are going to use violence against another human being we have to be careful that they don't get a weapon in their hands. i don't know the specifics of how the legislation would do that, but i do think that. sen. blumenthal: i welcome your support to that extent. judge garland: i don't mean to be nonsupportive, but in less i know the specifics it's hard for me. sen. blumenthal:4 i understand and you are doing an excellent job of navigating your way through the request for specific commitments. i understand, sometimes a nonanswer is the right way for you to go in this position. i hope you will consider executive orders. i understand that president biden may have some under consideration, for example
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closing the charleston loophole and redefining the nature of a firearm to prevent ghost gun's from populating the world and other steps. i hope you will consider using the existing authority through atf and other agencies to take such actions. i want to ask you about two areas that are of importance. they may not have reached a lot of public visibility. as you may be aware the survivors of the 9/11 tragedy have filed a lawsuit pursuant to the justice against sponsors of terror act. senator cornyn and i were strong advocates of this. they have asked for information
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from the fbi in connection with that lawsuit. they have been denied that information under the state secrets privilege. in my view there is no justification for failing to provide that information. i hope that you will consider taking prompt action to release it. i know that you cannot necessarily address it now, but i wrote to the department of justice last week and i hope you will take that letter as a matter of priority area -- as a matter of priority. judge garland: if i am confirmed i will get the letter and give it my intention, yes i will. sen. blumenthal: similarly, the department of justice inspector general reportedly opened an investigation in september 2018 of the fbi's essential
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mishandling of the investigation into larry nassar's sexual abuse, i'm sure you recall his prosecution. there was an inspector general for that visit to the fbi's possible delay malfeasance. i hope that will be published promptly in the interest of the transparency value. judge garland: i will consult with the inspector general and i believe in making those reports public to the extent permissible within the law. and finally, you may be aware that a number of my former colleagues have taken action against exxon and other oil companies to hold them accountable for misleading and defrauding the public about climate change for decades.
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nothing could be so important as the united states department of justice similarly taking action against gas and oil companies for lying to the american public about the devastating effects of these products on climate change. i hope you will consider taking action in that regard. judge garland: from the way you began it feels like there is pending litigation on this matter. it's not something i should be commenting on. sen. blumenthal: thank you, judge. >> thank you, chairman. judge garland, thank you for your passion on since june of last year the city of st. louis in my home state of missouri, the homicide rate is at its highest level since 1970. 11 police officers have been shot including former police officer david dorn who was murdered in cold bread during fighting in the city this last
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summer in chicago. homicides are up 50% in new york and 30%. clearly our criminal justice system is under renewed and extreme strain. can you tell me if you are confirmed as attorney general what will you do to confront this growing crisis? judge garland: you asked what i will do? sen. hawley: what you will do. judge garland: i am obviously -- i read the statistics myself and i know that there is an upswing in violent crime. i'm concerned about it. when i was an assistant u.s. attorney the number of merck -- i joined at a time when the number of murders in the district of columbia were more than twice the number of murders they are now. i spent much of my early career on this problem of violent crime searching for the best possible ways to suppress it going after violent repeaters, one of the best ways, going after violent
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gangs that supported violent action -- and when putting resource in places where they are necessary. i was a strong supporter and one of the developers of the violent crime initiative during that time i was in the justice department and it might be time for another one. the administration of attorney general -- attorney general barr looked at this as well. i share your concern. sen. hawley: in the midst of this mounting crime wave there
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has been increasing calls by some activists including members of the united states congress to defund the police. i think this sends the long message -- the wrong message to law enforcement who feel very much overburdened, underpaid, and it sends their message to folks suffering from this violent crime wave especially in working-class communities. on defunding the police do you support this movement? judge garland: president biden has said he does not support defunding the police and neither do i. we saw how difficult the lives of police officers were and the bodycam videos we saw when they were defending the capital. president biden believes in giving the resources to police departments to help them reform and gain the trust of their communities. i do believe and i believe he does as well that we do need to put resources to alternative ways of confronting some actors,
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particularly those who are mentally ill and those who are suicidal so that police officers don't have to do a job they are not trained for and from what i understand they don't want. those resources need to go to mental health professionals so police can do the job they have trained for, so that confrontations if possible do not lead to deaths and violence. sen. hawley: let me ask you about assaults on federal property leases in washington, d.c.. you regard assaults on federal court houses or other properties acts of domestic extremism or domestic terrorism? judge garland: my own definition is of the same as the statutory definition, the use of violence or threats of violence and attempt to disrupt the democratic processes.
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an attack on a courthouse while in operation trying to prevent judges from deciding cases, that plainly is domestic extremism. an attack simply on government property at night or any other kind of circumstances is a clear crime and a serious one. this is a core attack on our democratic institutions. sen. hawley: some progressive groups have been saying with regard to you, the progressive change campaign committee, left-wing activist group that does fundraising for democrat party pauses is circulating a petition that quotes trump and his criminal network of
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associates must be investigated and prosecuted for lawbreaking. this is against the backdrop of groups keeping lists of people who worked at the white house including interns who worked at the white house to prevent them from getting jobs, trying to prevent them from working whether it is in politics, government, or anywhere else. senator cruz asked about political targeting. i am very concerned about the specter of political targeting because it's happening before -- it happened in the obama biden administration. it culminated in the lies told to the pfizer court the last administration with the fbi and the department of justice signed off on submissions to the fisa court which were falsified, actively falsified leading to an unprecedented and historic rebuke from that court. given this pressure campaign being mounted towards you, this
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petition that is quoted as addressed to you personally, if you are confirmed, will you resist calls and efforts by political groups to politicize the department of justice, to use political targeting, adhere to the statute down the middle and enforce the law equally? judge garland: i have been a judge for almost 24 years. people on one side or the other of every single case, i think i have done the wrong thing in that case because both sides cannot win. i have grown pretty immune to any kind of pressure other than the pressure to do what i think is the right thing given the facts and the law. that's what i intend to do as attorney general. i don't care who pressures me. if i am confirmed the department will be under my protection for the purpose of preventing any kind of partisan or other improper motive in making any kind of investigation or
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prosecution. that is my vow. that's the only reason i'm willing to do this job. sen. hawley: do you agree that what the department of justice and fbi did in misleading a fisa court and submitting false information to a pfizer court and submitting falsified information and evidence to a pfizer court, drawing the rebuke of that court, do you agree that was an egregious violation of public trust? >> a false statement of the court is a terrible thing. i was going to say obstruction of justice and it may well be, but that's a very specific concern. i can tell you how angry judges get when they learned that somebody who has made an application to them has not told them the complete truth or has spun the truth in any way. you hear those statements by judges all the time and appropriately so. sen. hawley: i hope if you are confirmed that you will be that
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guardian and make sure that the rule of law is fairly enforced. mr. chairman, my time counter is not working. is my time expired? sen. durbin: yes. senator hirono? are you within zoom range? sen. hirono: thank you, mr. chairman. starting with two preliminary questions that i ask every nominee that comes before any committee on which i sit. since you became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or political harassment -- physical harassment or assault of a sexual nature? judge garland: no. sen. hirono: have you ever face to discipline or entered into a settlement related to this kind of contact? sen. hirono: no. --
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judge garland: no. sen. hirono: considering that we just had a president who did not think the rule of law applied to him i am gratified to hear that so many of my republican colleagues are asking you whether you as attorney general will follow the rule of law, and of course you will. i want to get to the consent decree. i don't think you have been asked about consent decrees about. in the justice department civil rights division -- as described consent decree as "most effective at ensuring accountability transparency and flexibility for accomplishing institutional reforms. despite their effectiveness, they trump administration was openly hostile to the consent decrees. attorney general jeff sessions issued a memo that drastically curtailed their use and brain --
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bringing police departments into compliance with the constitution. the reason the trump administration did not enter into a single new consent decree with any law enforcement agency suspected of systemic abuse of constitutional rights. they also actively undermined existing consent decrees. all of this wild police in minneapolis, louisville, kenosha, and other cities lead to one of the biggest social justice movements this country has ever seen. what is your view of the role of these investigations and consent decrees and -- in investigating civil rights abuses by police? judge garland: thank you for this question. i think police accountability is an essential element of the ability of a police department to have a credibility with the
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community and without credibility and trust a police department cannot do its job of ensuring the safety of the community. police officers who violate the constitution must be held accountable, and police officers follow the constitution want to police officers not to be held accountable for that reason because it leads to a taint on all police officers which would be unfair. congress has given the justice department the authority and the responsibility to investigate patterns or practices of law enforcement entities conduct that violate the constitution and laws of the united states. that's the statutory responsibility of the justice department. it is an important tool the
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department has for ensuring accountability. the statute further provides that if the department finds this pattern or practice of unconstitutional conduct that it can seek equitable remedies from the court. one kind of equitable remedy that has proven effective in the past is a consent decree. where they are necessary to assure accountability, it is very important that we use that tool. that is not the only tool available to the justice department. we can use grantmaking to provide funds for police departments to reform themselves, to make themselves more accountable. we can provide technical assistance and incentives. all of these are a set of tools and the justice department has been given these tools by the
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congress and it should use all of them. sen. hirono: you emphasize accountability of police department and the justice department that consent decrees, which by the way are not one-sided, they are entered into after much dialogue and discussion with the respective police department. i hope that you pledge to reengage the justice department in enforcing and abiding by the existing consent decrees. i know that the previous administration has undermined the existing consent decrees. judge garland: if there is an existing consent decree will require adherence. sen. hirono: you have been asked a number of questions about voter suppression laws that are being enacted particularly after the shelby county decision.
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the voting rights act -- it gives the attorney general's office some tools to go after -- go after the states contemplating legislation. are you aware of any instance of widespread voter fraud in the 2020 presidential election or any other election? judge garland: no, all i know is what i have been able to gleam from the public reports of government agencies. the department of homeland security in the previous administration publicly describe the last election as the most secure in american history. some 60 or more courts rejected claims of fraud in the election.
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some on legal grounds but many after providing an opportunity for the submission of evidence, the evidence that was submitted was insufficient. attorney general barr authorized the u.s. attorneys to investigate voter fraud after the election and before certification. at the conclusion, he announced the department had not found evidence sufficiently material of widespread voter fraud to have an effect on the election. sen. hirono: i heard you in your earlier response that you would work with congress to determine whether a clearance provision should be reenacted. there is something i wanted to note which is in your acknowledgment that hate crimes against the community is
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definitely rising and that you will do everything you can to make sure that there is enforcement of the laws against these kind of crimes. i know that just a few weeks ago a man died after he was abruptly attacked while out on a morning walk in san francisco. in oakland, in and they chinatown neighborhood a man violently shoved and injured a 91-year-old man, 60-year-old man, and a 55-year-old woman. each of these cases the victims were aapi community members. i do have additional questions that i will rate -- wait for round two. chair leahy: -- chair durbin senator cotton?
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: sen. cotton: i want to return to questions about the durham investigation. senator grassley asked you if you would commit to ensure that john durham had the staff, resources, and the time needed to complete that investigation. you said you did not have the information that you needed to speak with him but you had no reason to think that him staying on was not the correct decision. why can't you commit specifically to saying that he will have the time, staff, and resources he needs to complete his investigation? judge garland: it's because i'm sitting here and i don't have information about what he needs and what his resources -- everything i know sitting here suggests that he should have those resources. sen. cotton: two years ago bill barr made the same commitment about the mueller special counsel. he did not have this information and did not consult with the department. he simply said yes. why can you not say yes the way bill barr did? judge garland: i feel about every investigation and decision i make, i have to know the facts before i can make those
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decisions. i don't know what went into his consideration, but for myself i have to be there and learn what is going on before i can make a decision. i have no reason to doubt that the decision to keep them in place and continue this investigation was in any way wrong. >> was it wrong for bill barr to make that commitment? judge garland: i'm not going to be making judgments about my predecessors. i don't think there is any purpose. i want you to judge me on my own record. sen. cotton: was it wrong for democratic senators demand that bill barr make that commitment two years ago? judge garland: my answer would be the same. sen. cotton: on the death penalty said you have developed great cause over it and use that joe biden expressed opposition to the death penalty. did joe biden or anyone from his administration transition or campaign -- not to pursue capital punishment in cases against murderers or terrorists? judge garland: no.
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sen. cotton: you spoke at the outset about your outstanding work in the 1995 oklahoma city bombing case in which you were part of a team that helped bring to justice a white mass murderer. he was sentenced to death. that death penalty has been carried out. do you regret that timothy mcveigh received the death penalty and has been executed? judge garland: i supported that as i said in my original senate hearing when i became a judge originally, i supported the death penalty at that time for mr. mcveigh in that individual case. i don't have any regret. i have developed concerns about the death penalty. the sources of my concern are issues of exonerations. people who have been convicted of the arbitrariness and randomness of its application. and because of its disparate
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impact on black americans and members of other communities of color. those are the things that give me pause. those are things that have given me pause over the past 20 years. sen. cotton: you are confirmed -- if you are confirmed as attorney general and there was a case like timothy mcveigh were a white supremacist bombed a courthouse and your attorney sought approval for the death penalty would you give that approval? judge garland: it depends on the development of the policy. if the president asks or we develop a policy about moratorium it would apply across the board. no point in having a policy if you make individual discretionary opinions. if that is a policy that's the policy. sen. cotton: you said in your opening statement and in addition to several questions from senators that you would regulate communications between the white house, that there would be no partisan influence. in this case there would be influence from the white house?
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the u.s. attorney was seeking the death penalty against a white supremacist domestic terrorist? judge garland: what i'm trying to say is if there was a policy decision made by the president and announced by the president he certainly has the authority and nothing inappropriate about it within his authority to require an across-the-board moratorium. what i was talking about was not a decision by the president in any particular case or the direction of how any particular case should go forward. the moratorium would apply as a policy across the board. the supreme court has held the death penalty is constitutional, but not required. that is within the discretion of the president. sen. cotton: before we move on from oklahoma city, let me commend you for your work and that i believe that timothy mcveigh deserved the death penalty. another case involves still in
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-- involves dylan roof. -- a white supremacist from south carolina who went into an african-american church and killed nine african-americans in a racially motivated attack. the obama white house saw the death penalty for him. you believe it was a mistake to see that to seek the death penalty against dillon roof for murdering nine african-americans? judge garland: i'm not supposed to be asking you, but i have the feeling this is still a pending matter, and if it is i cannot talk about a particular case. sen. cotton: let me ask you the hypothetical. judge garland: i apologize for asking you. sen. cotton: let's oppose -- let's suppose another white supremacist walks into another african-american church and murders african-americans worshiping christ in cold blood in the u.s. a trinity seeks the death penalty. would you approve it? sen. cotton: i think it does depend on what policy is adopted going forward. i would not oppose a policy of the president because it's within his authority to put a
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moratorium on the death penalty penalty in all cases. instead to seek mandatory life without possibility of parole. without any consideration of the facts in any particular case. sen. cotton: some on the left are calling for president biden to grant a commutation to all federal death row inmates to reduce their sentence to life in prison. would you recommend to president biden they make such an across-the-board commutation? judge garland: this is one i would have to think about and which i have not thought about. i would have to consult the administration on such an across-the-board. sen. cotton: on racial equity, do you agree the core concept of -- core concept judge is that
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government cannot discriminate against a citizen on the basis of their right see? judge garland: absolutely. equal justice under the law. written on the steps of the supreme court. sen. cotton: fun only unlawful, -- and you agree it is not only unlawful but morally wrong? judge garland: yes, i think this termination is morally wrong. sen. cotton: you know president biden said his admin attrition -- his administration will advance racial equity, not racial equality, but racial equity. judge garland: yes, and i read the opening of that executive order, which defines equity as a fair and impartial treatment of every person without regard to their status. and including individuals in underserved communities where they were not accorded that before. i don't see any distinction in that regard. that is the definition that is included in that executive order
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you are talking about. sen. cotton: racial equity and racial equality are the same thing? judge garland: this word was defined in the executive order as i just said it. i can't give you any more than the way in which the executive order defined the term it was using. sen. cotton: thank you, judge. sen. durbin: senator booker? sen. booker: it's good to see you sitting before the judiciary committee of the united states senate. judge garland: thank you, i am grateful. sen. booker: if you don't mind me starting with philosophy there is the micah mandate, i'm not sure about your expression, but you have heard before it is due justice and love mercy. this idea of justice to me is fundamental to the ideas of the -- the ideals of a nation founded with a lot of injustice at the time. the brilliance of the imperfect geniuses of our founders who
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aspired to create a society that john lewis and others would have called a more beloved community. one thing i have read says what does love look like in public? it looks like justice. you have, to me, one of the most positions on planet earth for trying to create a more just society. the issues of race, and i was grateful in your opening remarks you talked about your agency coming about to deal with issues of justice in our nation. i want to talk to you about white supremacist violence that has been mentioned a lot. before i get there, i am concerned with something i consider pernicious and difficult to root out, which is the realities of implicit racial bias that lead to larger systemic racism. the issue of systemic racism has become something argued over.
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if i can walk you through for a second, does our justice system treat people equally in this country? judge garland: sadly, and as -- it is plain to me it does not. sen. booker: i'm going to stop you there. we have a common justice system that treats you better if you are rich and guilty than if you are poor and innocent because one's finances make a difference in what kind of justice one gets. judge garland: there is no question there is disparate treatment in our justice system. mass incarceration is a good example of this problem. we are incarcerating almost 25% of the worlds population. we have something like 5% of the worlds population. i don't think that it's because americans are worse. what belies that is the disparate treatment of blacks
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and the communities of color. sen. booker: let's drill down on that. one big thing driving arrests in our country is marijuana arrests. we had in 2019 more marijuana arrests for possession than all violent crime arrests combined. when you break out that data and aggregate along racial lines it's shocking that an african-american has no difference in usage or selling than someone who is white in america, but their likelihood of being arrested for doing things that two of the last four presidents admitted to doing is three to four times higher than somebody white. is that evidence that within the system there is implicit racial bias, yes or no? judge garland: it is definitely evidence of disparate treatment within the system, which i think does arise out of implicit bias. unconscious bias, maybe, but
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bias. sen. booker: i think that is a fair point. unconscious or conscious it results in a system -- i've had great conversations with people on both sides of the aisle who think of this as abhorrent to american ideals that we have a system that so desperately treats people. the stationhouse adjustment which i have seen happen as a mayor. people get called in for arrest for marijuana and police make a decision like, just leave and your parents, and it's dismissed. we have seen from stationhouse adjustments to charging to , sentencing, every objective analysis has shown that race in our country is still playing a specific influence in the justice someone gets. you are aware of this? judge garland: i am and this is a reason why at this moment i think i wanted to be the attorney general. sen. booker: i want to get to that. a point that a lot of folks are making, it does not mean that the people who are engaged in
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this are racist overtly. it means they have an implicit racist bias that leads them to make different decisions about people. judge garland: yes. it also -- the marijuana example is a perfect example. here is a nonviolent crime that does not require us to incarcerate people and we are incarcerating at significantly different rate in different communities. that is wrong and it's the kind of problem that will then follow a person for the rest of their lives. it will make it impossible to get a job and will lead to a downward economic spiral. sen. booker: to your point before, hearing you are in an agency that was formed to deal with systemic racism going on at that time, when you have
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disparate views of the law where you see african-americans being churned into the carbonneau justice system, it is concentrated in certain communities and not others, where the american bar association says 40,000 poetical -- collateral consequences on the lives of african-americans where they can't get loans from banks or jobs. they can't get certain business licenses. it's so dramatic that their estimates that the costs to african-americans and the persistence of a wealth gap in our country where black families have 1/10 the wealth of white families. if you look at the impact of the law and the disparate impact on marijuana it's estimated to have caused african-americans in this -- cost african-americans in this country billions of dollars more. my question is, assuming this position where you were called upon for that micah mandate what , are you going to do about this
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outrageous injustice that persists and infects our society with such a toll on black and brown communities? judge garland: there are many things that justice department has to do in this regard. i agree that disparate results with respect to wealth accumulation, discrimination in employment, housing, and health care availability, all of which we all see now in the consequences of the pandemic which affects communities of color enormously more with respect to infection rates and hospitalization. and ultimately to death. one set of things we can do is the mass incarceration example. we can focus our attention on
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we can focus our attention on violent crimes and other crimes that put great danger in our society and not allocate our resources to something like marijuana possession. we can look at our charging policies and stop charging the highest possible offense with the highest possible sentence. sen. booker: i was told never to interrupt a judge, i hope you'll forgive me. i would like to end with this question then my time is up. you have talked about your thoughts about this and i've been inspired. get back to your conviction on this issue and your determination to go down in a time when our nation needs this, to go down as one of the great leaders when it comes to dealing with the daily, unconscionable injustices faced by some americans and not others at the hands of law enforcement. one thing you said privately particularly motivated me to believe you when you talk about your aspirations. i'm wondering if you could conclude by answering the question about your motivation and some of your family history in confronting hate and
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discrimination in american history. judge garland: yes, senator. i come from a family where my grandparents fled anti-semitism. and persecution. the country took us in -- and protected us. and i feel an obligation to the country to pay back -- this is the highest, best use of my own set of skills to pay back. so, i want very much to be the kind of attorney general that you are saying i could become. i will do my best to try to be that kind of attorney general. sen. booker: i believe your heart and i'm grateful that you are living that micah mandate. sen. durbin: thank you, senator booker.
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i'm going to make a motion to introduce into the record letters of support for judge garland's nomination. there are 25 different categories of letters to -- of support. i am struck immediately by the diversity of support that you have, 150 former attorneys general and top department of justice officials, the list goes on. dozens of former federal judges, former state attorneys general, for you to have the national sheriffs association, the fraternal order of police, and the leadership conference on human rights is an amazing political achievement.
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the list goes on. advocates for crime victims and survivors -- former fbi direcot -- director lee. i want to take a moment in light of your closing statement from this round to tell you your work and life has been recognized across the board. this array of letters of support speaks to fairness and honesty. without objection, i will introduce these letters of support for your nomination into the record. now we will take a lunch break. i'm going to declare -- i guess i have the power to do that now -- that we will return at 1:40. the first person up will be from the sovereign state of louisiana, john kennedy. we'll all anxiously await his
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contribution. let's stand in recess. [gavel] [captions copyright national cable satellite corp. 2021] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]

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