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tv   Attorney General Nominee Merrick Garland Testifies at Confirmation Hearing...  CSPAN  February 22, 2021 11:15pm-12:26am EST

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anxiously await his 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]
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senator durbin: the hearing will resume, senator kennedy of louisiana. senator kennedy: thank you, mr. chairman and thank you judge. judge garland: nice to see you senator. senator kennedy: i wanted to follow-up on what senator booker talked about. what, to you, is justice? judge garland: everybody treated equally regardless of their position in society, powerful, powerless, rich, poor, democrat republican, black, white, equal treatment, equal justice under the law. senator kennedy: i want to press you a little bit on that. is it justice if you have an unjust law that applied equally?
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judge garland: that's a lack of justice. senator kennedy: let's tero it down to punishment and justice. if i suggested to you that justice and the concept of punishment is when someone gets what he deserves, would you agree or disagree with that? judge garland: i suppose that depends on what it means. yes, i think justice requires individuals -- individualized determination of a crime you did. there are mitigating circumstances. senator kennedy: let me put another way -- is a person who commits a crime
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a center and the moral sense -- a sinner in the moral sense or a sick person? judge garland: this is again probably beyond my competence. with justice comes mercy and so i think we have to take into consideration all different kinds of things. i also think the kind of crime we are talking about is relevant to the question of what kind of person it is it is. i'm not sure exactly what you are asking me. i'm not trying to be evasive but i don't know what you are asking. senator kennedy: let me shift gears. were you chief judge when the coronavirus judge garland:judge garland: -- unfortunately, for my successor, my term ran out just before
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coronavirus. senator kennedy: if you had been chief judge, would you have adopted a rule that said if one of our employees and the court gets coronavirus and goes to the hospital and is treated and is released and wants to come back to work in the court, it would be discriminatory to ask them to take a coronavirus test? senator kennedy: no. judge garland: ok, isn't that what happened with our nursing homes throughout the country? judge garland: i honestly don't know what happened with the nursing homes. i don't know what they were doing with respect to -- i'm sorry, i'm not trying to be evasive, i really don't know the facts here. an example you gave me, there is
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nothing discriminatory about asking people who might be infected from a public health point of view to be sure they don't infect other people. if a determination is made they are not infected, that's the end of it. equal treatment doesn't mean we don't take into consideration the possibilities of different degrees of health in a particular circumstance. i honestly don't know what happened with the nursing homes. it was terrible that many people got the covid in the nursing homes and that was a major vector of the spread of the infection but i don't know why that was except there are people who got it in one place and is easy to spread that way. senator kennedy: ok, i think science tells us that keeping our schools closed has a disproportionate impact on poor
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people and children from poor families and on families that have children of color. at what point do you think our refusal of some of our leadership in our schools to reopen becomes a civil rights violation? judge garland: senator, i completely agree with your description of the consequences of the school closings. i tutor to children in the neighborhood of washington, d.c. were most of the students in the school are people of color. i have been able to tutor them by zoom every week but when they are taking classes by zoom, it's much more difficult obviously for them. they have done terrifically.
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not because of me but they have. it would be with people with other resources. i think public officials have to weigh very serious competing concerns with respect how to deal with covid. there is no doubt about it. on the one hand, we got to be very worried about sending kids back in their schooling and the other hand, we have to be worried about not spreading the disease in a way that kills them or more importantly, not more likely, their parents or grandparents. i don't want to be the person who makes the judgment. senator kennedy: i understand. you have written in one of your opinions -- i will read it and i know you haven't memorized all your opinions. you said the constitution " does not contemplate that the
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district of columbia may serve as a state for purposes of the apportionment of congressional representatives. that textual evidence is supported by historical evidence concerning the general understanding at the time of the district creation." is that still your considered opinion? judge garland: yes, and i would say that is the case, one of my earliest cases which taught me what it means to be a judge which is to do something the opposite of what you would do if you had a public policy concern. citizens of the district of columbia should be allowed to vote but i didn't think the constitution gave them the right. it made me sad but roomed -- but it reaffirmed my role as a judge. senator kennedy: in my last 26, i will ask you if you agree with this statement.
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i'm not suggesting the answer one way or the other, i want to know what you believe. allowing biological males to compete in an all-female sport deprives women of the opportunity to participate fully and fairly in sports and is fundamentally unfair to female athletes. judge garland: this is a very difficult societal question you are asking. senator kennedy: i know but you are going to be attorney general. judge garland: i may not be the one who has to make policy disuse like that but it's not that i am adverse to it. i think every human being should be cheated with dignity and respect. that's an overriding sense of my own character but an overriding sense of what the law requires. the particular question of how title ix applies in schools is in light of the prospect case which are for you -- which you are familiar with the something i would have to look at when i have a chance to do that.
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i have not had a chance to consider these kinds of issues in my career so far. i agree this is a difficult question. senator kennedy: thank you, judge. senator durbin: for his first question is a member of the senate judiciary committee, senator alex padilla. senator padilla: thank you for your many years of public service and should you be fortunate enough to be concerned -- confirm, it's the next chapter. myself i been in different capacities including the prior six years, prior to my appointed to the senate as california secretary of state and chief elections officer. my mission in that role was to increase voter participation and ensure free and fair elections. as the country has become more diverse, not just in california and new york throughout the
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nation, it is no coincidence that we have seen a resurgence of white supremacy and violent extremism. history is clear. voter suppression is rooted in white supremacy. this is true now and it has been true ever since reconstruction and the establishment of the department of justice. this committee has acknowledged that. it should not be lost on any of us that after the 2013 shell bv holder decision by the supreme court, we have seen a wave of legislation in states across the nation which have the effect of making it harder for eligible citizens to register to vote, to stay registered to vote or to simply cast their ballot. i know senator lahey touched on the subject of voting rights earlier today. i want to acknowledge that despite the success of the 2020
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election, which has been deemed secure, new voter suppression laws are being introduced right now across the country under the false pretext of preventing voter fraud. we also have former trumps years of lies about voter fraud, the big lie, radicalized many of his supporters and lead not just to physical threats against election officials, election offices, polling places and even voters, but they ultimately led to the violent insurrection here in the nation's capital. you touched on this in your opening remarks but can you expand on how you will combat white supremacy that threatens the safety and fairness of our elections specifically? judge garland: well, that's a lot of lessons all in one.
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it's a complicated problem. i strongly believe in voting and increasing every possible opportunity for voting. congress can do that even on its own. the elections clause of the constitution permits the congress to set time, place, and manner and alter state regulations in that respect. the state decides with congress can act on this one thing congress can do as a matter of legislation. as i said, i would like to work with the congress on moving the record with respect to section four so that we can use the tool of section five. we do have the authority of section2 which requires, change the burden of proof and chain doesn't -- and does not change election laws but it gives us the opportunity to bring cases
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where there was intention to discriminate but also where there is an overall disparate impact with respect to discrimination. there are a number of rules available to us. the voting rights section of these was established for the purpose of pursuing these cases and we would do so. senator kennedy: thank you. senator kpadilla: there is a lot that should be done with voter rights, you should be able to vote free of harassment, intimidation, obstacles, etc. and part of what is against that is this big lie.
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we all sat through the impeachment process -- trial and the results notwithstanding, could not help to be moved by the evidence presented by the house managers. it was how president trump's big lie about voter fraud rag allies -- radicalized many of his per forwarders -- supporters. there was an article about the perils between the capital insurrectionist and foreign terrorist organizations. i asked this to be respectfully inserted into the record. they say domestic radicalism has deep parallels to jihadist terrorism. both movements are driven by alienation from the political system and resulting breakdown in social norms. for some groups, and individuals, this break leads to
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violence they see is justified to achieve political ends. as we all know, the definition of terrorism is the unlawful use of violence and intimidation in pursuit of political ends. president trumps political and was clear -- stopping the certification of the 2020 election at the capital on january 6. one could argue that right-wing groups like the proud boys and the oath have acted like terrorist cells, communicating with one another, training together and preparing for the moment they are activated for the mission. indeed, president trump instructed the proud boys on national television to stand back and stand by. then he summoned them to the capital on january 6 as congress was meeting to certify the election. what happened on january 6 was
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not a property crime, it was not vandalism in reference to a question you asked earlier. as we sit here in the united states capitol surrounded by national guard troops and barbed wire, how will you bring the full resources of the justice department to bear on white supremacist organizations that pose an ongoing threat to not just the safety of this capitol building but to our fundamental democracy for which it stands? judge garland: i couldn't agree more that extremist groups and particular white supremacist groups to pose a fundamental threat to our democracy and they have posed that threat throughout our history. as i recounted, that was the reason the justice department was originally established in the first incarnation of the ku klux klan.
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the best that i can do, as i said, my first priority will be to have a re-think on where we are if i'm confirmed with the investigations which, from the outside, pure quite vigorous and nationwide. and to find it what additional resources we need but that is just the focus on what happened in the capital. we also have to have a and on where this could spread where this came from. it does require a lot of resources. i am very pleased to have read that the director of the fbi believes that this kind of extremism is the most dangerous threat to the country and that pi resources. that is where i would put justice department resources and we need very much to make sure
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that is the case. i do want to be careful that we also always worry about the foreign threat because it is always with us and the fact that nothing has happened recently doesn't mean it could not happen from whichever direction, inside, outside, right, left, it doesn't matter, and institute -- an attack on our institutions of democracy and the ability to go forward in our daily lives safely has to be stopped -- is a justice-white obligation. x >> senator blackburn is up. sen. blackburn: i am connected,
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mr. chairman, thank you so much. judge garland, i want to say thank you for your willingness to serve and for your career in public service. i will tell you that as i talk to tennesseans about this, they care a lot about law, order, timeliness at the justice department and after the christmas day bombing, you and i discussed this and the bombing that took place in nashville. they are interested in the principles and conviction of our nation's top law enforcement official. my hope is and i think the expectation is you will assure the american people that you are going to apply the law fairly and equitably because in this country, as we know, no one is above the law. i know you have been asked about
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the durham investigation and i will tell you this is important to tennesseans in making certain that investigation is going to be completed and you are going to work to be certain that it is completed and you are committed to seeing this through to completion. judge garland: thank you, senator and i appreciate the opportunity we had to discuss these matters as well. with respect to the durham investigation, i don't know anything about it other than what has appeared in the media. the investigation has been complete with risk right -- with respect to its status. mr. durham has been able to remain in his position and i know of nothing that would give
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any doubt that that was the correct decision. sen. blackburn: we had discussed the investigation into hunter biden and we want to make certain that we commit to allowing delaware u.s. attorney david white to complete that investigation and ring that evidence forward. judge garland: i don't know anything about that investigation other than what i have read in the media and again, that investigation has been proceeding discreetly, not publicly, as all investigations should. i understand the delaware u.s. attorney was to stay on as u.s. attorney and i have absolutely no reason to doubt that was the correct decision.
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sen. blackburn: let's talk a little bit about china because we discussed some of that for the record. it was stated that china was our greatest threat. do you agree the chinese communist party is an enemy of the american people? judge garland: i don't have the same familiarity with the intelligence information the director of national intelligence has. so in terms of comparing a threat from china and a threat from russia, i'm not competent to make that comparison and i have learned in my professional career not to make judgments which i am not competent. but certainly from what the director said, there is no doubt china is a threat with respect to hacking of our computers,
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hacking of our infrastructure, theft of our intellectual property, all of these are very difficult problems and we have to defend against. sen. blackburn: well, we do, and i know lindsey graham ask you about section 230 and some of the issues that are there. we are all very concerned about the issues that surround china, whether it is the chinese communist party and the way they threaten our democracy and our economic leadership around the globe. we are also concerned about the chinese military links into our american universities through things like the confucius institute. for instance, recently, there was a situation at harvard with a cancer researcher. he was caught trying to smuggle
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21 vials of biological material out of the u.s. and get it to china. i would hope that you agree that this threat puts american intellectual property and technology at risk and i would hope you would assure the american people that you are going to put the full force of the department of justice forward to investigate and prosecute every one of these spies working on u.s. soil. judge garland: i am not familiar with that circumstance, so i cannot comment on it specifically, but i can assure you the justice department's national security division was created in part for the purpose of ferreting out espionage by foreign agents and that is also
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the role of the fbi and the two working together. if foreign agents are caught stealing american intellectual property, american trade secrets, american materials, that they will be prosecuted, yes, of course. sen. blackburn: thank you. we are about a year into this pandemic and technology has allowed for us to do work like we in the senate are doing with webex. it gives a lot of flexibility, but as we are spending more time online, we hear from people about holding big tech accountable. you discussed section 230 earlier and we are hearing more about antitrust lawsuits. you have the current suit
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against google and i will hope you are going to allow that lawsuit to continue. judge garland: again, i don't want to talk about a particular lawsuit, but i would have to ask for a briefing on it. but much of that lawsuit is public and, again, given what i have read, i don't see any reason -- the decision to institute that investigation would be changed -- but i only know what i have read with respect to the descriptions of the public filings. sen. blackburn: let me ask you one more question and then i'm going to have a series of questions come to you as q f ours -- sq f as qfrs.
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the biden administration has talked about paying to third-party groups like la raza and the urban league. i find it really interesting that they would choose to have that money go to these outside groups instead of victims or to the u.s. treasury. do you plan on reinstating that policy and how would you justify reinstating that policy? judge garland: i don't have any plan one way or the other. i know you raised that policy when we were talking before and i understand your concern about it. obviously, damage recoveries first go to help victims. i don't know very much at all about the policy and it would be something i would have to
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consider if i am confirmed. i have two hear the arguments on both sides of why the policy started and why it was rescinded. sen. blackburn: enke so much. i appreciate your time. chair durbin: senator ossoff, welcome to the committee. your turn to question. sen. hassan: thank you for your time. thank you also for sharing your families immigrant story. it mirrors my own. my great friend parents came fleeing anti-semitism in 1911 in 1913 from eastern europe. i'm sure your ancestors could hardly have imagined you would be sitting before this committee pending confirmation for this position. i want to ask you about equal justice. black americans continue to
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endure profiling, harassment, brutality, discrimination in policing and prosecution, sentencing and incarceration. how can you use the immense power of the also -- of the office of attorney general to make real america's promise of equal justice for all? can you please be specific about the tools you will have at your disposal? judge garland: this is a substantial part of why i wanted to be the attorney general. i'm deeply aware of the moment the country is in. when senator durbin was reading the statement of robert kennedy, it hit me that we are in a similar moment to the moment he was in. so there are a lot of things the department can do and one of those things has to do with the problem of mass incarceration. the over incarceration of
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american citizens and its disproportionate effect on black americans and communities of color and other minorities. there are different ways -- that is disproportion in the sense of both the population but also given the data we have on the fact that crimes are not committed by these communities in any greater number than in others and similar crimes are not charged in the same way. we have to figure out ways to deal with this. one important way i think is to focus on the crimes that really matter, to bring our charging and arresting on violent crime and others that deeply affect our society. and not have such an overemphasis on marijuana possession, for example, which
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has disproportionately affected communities of color and damaged them far after the original arrest because of the inability to get jobs. we have to look at our charging policies again and go back to the policy i helped janet reno draft, eric holder drafted while he was attorney general of not feeling we must charge every offense to the maximum, that we don't have to seek the highest possible offense with the highest possible sentence, that we should give discretion to our prosecutors to make the offense and the charge for the crime and to the damage it does to society. that we should also look closely and be more sympathetic to retrospective reductions in
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sentences, which the first step act has given us some opportunity, though not enough to reduce sentences to a fair amount. legislatively, we should look at equalizing, for example, what is known as the crack-powder ratio which has had an enormously disproportional impact on communities of color but which evidence shows is not related to the dangerousness of the two drugs. and we should do as president biden has suggested, seek the limitation of mandatory minimum so that we, once again, give authority to district judges trial judges to make determinations based on all the sentencing factors judges normally apply and don't take away from them the ability to do justice. all of that will make a big difference in the things you are talking about.
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sen. hassan: let's discuss accountability for local agencies. the civil rights division has the authority to launch practice investigations targeting violations of federal statutes regarding law enforcement. tomorrow will be the first anniversary of the murder of ahmaud arbery and glenn county, georgia, who was shot to death in broad daylight in the street on camera. but local authorities chose to look the other way. were it not for the activism of georgia's naacp, there likely would not have been any prosecution in that case. how can congress equip doj's civil rights division to launch more and more effective practice investigations without asking you to comment on the details of the arbery case and how else can the department of justice use its authority to ensure where
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local agencies violate constitutional rights or fail to uphold the guarantee of equal protection that there is accountability? judge garland: i appreciate your not asking me to talk about a pending case what i will say is that like many, many americans, i was shocked by what i saw on the videos of black americans being killed over this last summer. that, i do think, created a moment in the national life that brought attention from people who had not seen what black americans and other members of communities of color had known for decades. it did bring everything to the fore and created a moment in which we have an opportunity to make dramatic changes and really bring forth equal justice under the law, which is our commitment at the justice department. the civil rights division is the place where we focus these
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operations. you are exactly right that best practice investigations are the core of our ability to bring actions here and easily to all different kinds of remedies. sometimes consent decrees as a potential remedy. we also can criminally prosecute violations of constitutional rights and we can also provide funding for police departments to reform themselves. i do believe officers who follow the law and the constitution want that account ability. they want officers who do not to become accountable because if that doesn't happen, their law enforcement agency is tainted. they lose quite ability in the community.
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so we have this number of tools, whether we need additional tools in this area, i don't know. obviously, the resources are necessary -- i'm going to be like a broken record -- every one of these areas to do our job. sen. barrasso: off will you commit to working with my office and this community -- this committee to determine what resources you may require in order to bring more and more effective pattern of practice investigations were appropriate? judge garland: absolutely. simple ossoff thank you. i yield back. -- sen. hassan: off -- chair durbin: only in the senate would we characterize a five-minute round of questioning as a lightning round. [laughter] that is what we are going to shift to at this moment.
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those senators who wish to ask a second question will have five minutes to do so and i'm going to kick it off if i can. i want to address an issue that doesn't, -- doesn't come up very often and that is the state of america's federal prisons. we talk a lot about justice under law, sentencing enforcement and we know the outcome in many cases is that a person is incarcerated for sometimes a very lengthy time. how long that is and how that person is treated in prison should be our concern as well. it is a reflection on our value as a nation -- our values as a nation, just as many things are. the first thing i would say is i made a serious mistake along with many others, including the president, supporting a bill to any five years ago which established a sentencing for crack cocaine 100 to one compared to powder cocaine. the net result of it was a
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failure of policy. it did not reduce addiction, it did not raise the price of crack cocaine. just the opposite occurred. we ended up arresting thousands of americans and arresting -- and sentencing them to lengthy sentences, primarily african-americans. i introduced a bill several years ago which was signed into law by president obama and then i worked with senator grassley and senator lee, who is here today, as well as senator booker and others to pass the first step act. the idea was to reconcile some of the injustice in our sentencing under that earlier law. president trump, much to our surprise, signed it into law and even spoke positively about it at the state of the union. unfortunately, it has not been implemented. in the provisions there to prepare people for release from prison as well as to reduce sentences have not been
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effectively enforced. point number one, i hope you will put that on your agenda because i will be back in touch with you to ask. second point, the united states has 5% of the population of the world and 20% of the covid infections and deaths. it's a terrible commentary on our failure to deal with this public health crisis. what to make matters even worse, the infection rate in federal prison populations is four times what it is in the surrounding community. more than 230 federal prisoners have died. we need to have a sensible and humane response to compassionate release in this time of pandemic. senator grassley and i have introduced legislation along those lines and i'm going to ask you to look at that carefully as well. the third, the last item i will bring up for your response, was an article written several years ago in the "new yorker" magazine
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by a surgeon in boston, a prolific writer and a very insightful man. he wrote an article about the impact of solitary confinement on the human mind. he went further to talk about how people in a perilous situation can be reduced to an inhuman level just by isolation 23 hours a day, sitting in a cell by yourself. it just has that impact. i looked into it to see what was happening at the federal level. i'm happy to report to you that things are marginally better, but only marginally. i think isolation is cruel and unusual and has to be used in some circumstances for extremely dangerous inmates, but unfortunately, it is used into me circumstances now. many states are way ahead of the federal prison system looking at this issue. i only have a minute left and
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it's all yours to react. judge garland: these are all easy because i've thought about all of them. in each case, i will be looking at each one of these problems stop the first step act, both with respect to -- obviously if i am confirmed -- the first step act with respect to the reentry to education that is required so people don't become recidivists and are able to go into society. the first step act with respect to the coverage of the act for retroactive reduction in sentences, i also, over the years, i have learned more about the crack-powder distinction. and the reports about how there seems to be little if any support for making that. i am now of the view there is no reason, so i'm very interested
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in reforming that area stop i have read but don't know a lot of out the solitary confinement issue. obviously it is required in some circumstances to protect people from other people but it is not any kind of regular measure for incarceration. all three of these areas are ones i was already planning to look at and can assure you i will. chair durbin: thank you for judge. i see senator lee is here and i'm going to recognize him next in the lightning round. sen. lee: consistent with the idea of this being our lightning round, i'm going to start some questions that can be yes or no. they -- if they require more than that, you can say yes with this or that caveat, but i would prefer a yes or no. do you believe individuals who advocate for the rights of unborn human beings are rendered unfit for public office by
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virtue of having engaged in such advocacy? judge garland: no. sen. lee: you believe efforts to purge voter rolls of people who have died or left the state in question or to require voter identification are racially discriminatory and an assault on voting rights? judge garland: this is when i cannot answer yes or no because you are asking about motivations of individuals, some of whom may have discriminatory purpose and some of whom have no disco in a tory purpose. sen. lee: i think that answers my question because what i'm asking is without knowing more than that, is there anything about those comments or support for those additions that in and of themselves would make that person a racist? or an assault on voting rights? judge garland: there is nothing
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about the comment itself, but there is such a thing as circumstantial evidence, obviously. if there is an enormously's proportionate impact of things people continue to propose, it's not unreasonable to draw conclusions of that, but the mere fact of the statement, no. sen. lee: do you believe republicans of the united states as a whole are determined to "leave our communities to the mercy of people and institutions driven by hate, bigotry, and fear of any threat to the status quote?" judge garland: i don't make generalizations about people from political parties. sen. lee: the reason i raise these as these are questions drawn from comments made by a person nominated to be associate attorney general who has advocated for each of these sessions. judge garland: i know her quite
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well -- i did not know her before but since the nomination, i've gotten to know her and i can tell you i regard her as a person of great integrity and a person dedicated to the mission of the department, particularly equal justice under the law. sen. lee: i'm not asking you to weigh in on her as a person, i'm just talking but the comments. let's move on. would an individual's past statements, statements in the past as an adult declaring one racial group is superior to another, with statements like that be relevant to an evaluation of whether such a person should be put in charge of running the department of justice's civil rights division? judge garland: i have read in the last few days these allegations about kristin clark, who i have also gotten to know, who i also trust, who is a person of integrity, whose views about civil rights i have discussed with her and they are in line with my own.
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i have every reason to want her. she is an experienced former prosecutor of hate crimes and we need some of you to be running -- sen. lee: i'm asking about the statement, not her as a person. what, in the abstract, someone who has made that comment, with that comment be relevant to whether that person, having made that statement, should be put in charge of running the civil rights division? judge garland: all i can tell you is i have had many questions -- i have talked to her about her views on that civil rights -- sen. lee: what about anti-semitic -- judge garland: no one needs to question those i -- i want you to know i'm a pretty good judge of what an anti-semite is and i do not believe she is an anti-semite. i do not believe she is discriminatory in any sense. sen. lee: you are a man of
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integrity and one who honors and respects the laws. what assurances can you give us -- what assures sins -- what assurances can you give americans who are pro-life, religious, people members of certain mayor eddie groups -- certain minority groups, more than half the country, telling them the u.s. to part one of justice, if confirmed will protect them -- u.s. department of justice, if confirmed will protect them. leaders have condoned radical positions like those i have described. judge garland: i will say it again. i don't believe either of them condone those positions and i have complete faith in them but
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we are a leadership team along with lisa monaco that will run the department and the final decision is mine. the buck stops with i will assure the people you're talking about, i am a strong believer in religious liberty, and there will not be any discrimination under my watch. sen. lee: thank you. >> i might remind the committee the statements being alleged can all be asked of the actual witness. the committee is going to have a hearing on these individuals, and it would only be fair to take the question to them, as opposed to asking for a reaction from someone who did not make that statement. senator klobuchar? sen. klobuchar: thank you.
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i appreciate your full throated defense not only of religious liberty, but also of your team and the people you want to work with going forward. while the chairman is correct, we can ask questions of those nominees, i think it is important to hear from you, of your beliefs about how they can do the job. i appreciate that. i know both of them and have a lot of respect for them. judge garland: thank you, senator. they have skills and experiences i do not have. experience in the intelligence world i do not have. no human being can have all the skills necessary to run the justice department. i need this team if i am going to be successful, if you confirming. sen. klobuchar: thank you very much. one thing we didn't touch on when i asked my first round of questions is the violence against women act. i will be working with senator feinstein and others on this
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committee to finally get that done. i don't know if you follow this, but we've had a delay in getting that reauthorized. it's been a bipartisan bill in the past. i have several provisions in the bill, including one on -- one to fix a loophole that exists. it is not as positive as it sounds. about getting guns after people have committed serious crimes. the second piece is a bill called the abbey huddled act. which is a rape victim in minnesota who worked with us and senator cornyn, as my cosponsor of the bill, to be able to do a better job with law enforcement to investigate sexual assault crimes. just in general, do you want to talk about your views on the justice department's role in training and the like across the country and the violence against women act? judge garland: the violence
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against women act was pressed by senator joe biden many years ago. he has a deep commitment to his continued reauthorization as to why. i was in the justice department when we set of the first office violence against women for the purpose of coordinating departmental programs in this area. i know this requires resources, both of the examples you give, again, i don't know if specifics come about from the description i can hardly imagine a serious disagreement, we have to provide the resources necessary to help rape victims, obviously. i don't see any reason why somebody who commits a violent crime against a person, but isn't married or has an intimate relationship, should be treated in a -- treated any
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differently than one who does. i am for re-upping the statute authorization. sen. klobuchar: thank you. another thing i've been very focused on, partly because my dad struggled with alcoholism most of his life, and got through that thanks to treatment and recovery, is to give that same kind of opportunity to people in the criminal justice system. drug courts are a big presence in minnesota. as is treatment. as well as many other treatment centers. we worked really hard here and some of the efforts on diversion with federal courts with a drug court, and of course, there's much use of them, and state courts. could you talk about your views on that? judge garland: i think the courts and diversion are an excellent idea for people who
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have addiction and need to be treated. i think now that the opioid crisis has struck large parts of america, many americans now understand that sometimes, it's just not a question of willpower, to turn this stuff down. these kinds of drugs take control of your life. you just can't do anything about it. treating people in those circumstances, and the criminal justice system -- in the criminal justice system, is a terrible misallocation of resources. getting people into addiction programs is a godsend and i am in favor of them. sen. klobuchar: thank you for also mentioning opioids, which has been such as gorge -- such a scourge.
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we have lost many people that people may not know their names and kids to opioids. many have been leading the way for a while, before people were even identifying this as an issue. a commitment to the treatment side of what you have already made just now, but also to the prosecution of synthetic production and distribution, synthetic opioids continues to this day. could you comment briefly, if you could? judge garland: i think that is right. the people putting the poison in the communities are the people we should be focused on. i think that is what the dea is well known for doing. i would love to put as much effort into this as we possibly can. sen. klobuchar: i see the chairman is looking at me in a very polite midwestern way to tell me my time is expired.
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so, thank you. judge garland: i'm familiar with the polite midwestern way. >> you have five minutes. >> thank you, mr. chairman. judge, i'm really curious about your thinking on this. and i don't want my questions to be interpreted as suggestive, or inconsistent with your thinking. but you and i are about the same age, i think. judge garland: i think so, that's right, senator. >> when you refer to systemic racism, what is that? judge garland: i think it is
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clear to me that there is discrimination and widespread different treatment of committed is of color and other ethnic minorities in this country. they have a disproportionately lower employment, disproportionately lower homeownership rates, disproportionately lower ability took emily wealth -- to accumulate wealth. >> so you are basically saying there's a disparate impact. judge garland: there's a disparate impact which in some cases is the consequence of historical patterns, sometimes the consequence of unconscious bias, certain kinds of consciousness. >> when you were at the department of justice, was the department of justice then systemically racist? judge garland: we look for a pattern or practice in each institution. we talk about a specific
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institution, you look for its pattern and practices. >> but how do you know what you know? in other words, you say in institution is systemically racist. judge garland: i didn't say any particular institution. >> i know. i'm not saying you did. i'm saying, if you say an institution is systemically racist, how do you know what you know? do you measure it by disparate impact? other factors? do you just look at the numbers and say the system must be racist? judge garland: now you've asked me a slightly different question, which i think i have a slightly different answer for. the authority of the justice department has to investigate institutions, to look for patterns or practices of unconstitutional conduct. if we find a pattern or practice of oxygen will conduct, i would describe it as as additional racism within that institution -- as institutional racism within that institution. >> so it's just a product of the
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numbers. judge garland: if there's a pattern, and a practice, this is not just a question of individual numbers. what we are looking for here are patterns. why is it that, a series of similar events occurring like that? looking into any individual's heart is not something we can do. >> who bears the burden of proving that, the institution? judge garland: as all matters of law, the burden is on the government investigator to prove first by investigation and a court -- and then by a court. >> is there any way to measure institutional racism other than the disparate impacts? judge garland: yes, you can look at a large number of individual cases in which discriminatory conduct is actually found. intentional discriminatory conduct. then it's not just a question of numbers. but if an institution has a very
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large number of incidents among us additional conduct, the entity is responsible in the same way a corporation is responsible for the behavior of its individuals, the same way -- >> what is the difference, though, between people who are racist and institutions that are racist? judge garland: now we have a cosmic question. but i think institutions are made above -- >> but this is important. judge garland: i know. i'm totally with you. i totally agree with that. corporations are nothing other than the collection of their individuals. and the same is true for a public entity, which in a certain way, is a corporation. >> have got to get one more in. i've got 14 seconds. -- i've got 24 seconds. i'm going to ask you about this concept of implicit bias -- does that mean i am a racist no matter what i do or what i
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think? i am a racist but i don't know i am a racist? judge garland: the label racist is not one that i would apply like that. implicit bias just means every human being has biases. that is part of what it means to be human being. the part of the examining of biases is to bring our conscious mind to our unconscious mind, and to know when we are behaving in a stereotyped way. everybody has stereotypes. it's not possible to go through life without working through stereotypes. implicit biases are the ones we don't recognize our behavior. that doesn't make you a racist. >> who judges that? doesn't the person judging me have his own implicit bias? how do i know his implicit bias is worse than mine? judge garland: i agree, but i'm not judging you, senator. >> i'm not asking you. but somebody, if you say you have implicit bias, that is a pejorative statement.
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i'm not saying you are being mean. you're not a mean guy. you're a nice guy. if you say somebody has implicit bias, somebody's got to make that subjective judgment, and the person making that subjective judgment has implicit bias. if it's part of being a human, then how do you know who wins? judge garland: if we say that all people have implicit bias, then it's not -- you shouldn't take it as pejorative. this is just an element of the human condition. so you shouldn't take that as pejorative. implicit bias is just a descriptor of the way people's minds work -- everyone's mind works. >> how about if you say that america has racism in it, just like everybody else, just like everywhere else, does that make america systemically racist? >> i don't want to waste your time, because i think this is what i said before -- what i mean by systemic racism is the
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patterns of discrimination and disparate treatment across the country. it doesn't mean that any particular individual is a racist. >> judge, i'm in big trouble. i've gone way over. >> i'm developing a bias. [laughter] thank you for the exchange. judge garland: a pleasure talking with you, senator. >> had like to let the committee know that -- i would like to let the committee know that one senator will be next, then we will take a break, then return for five rounds. senator, are you tuned in? >> yes, i am. i would like to ask what i think is a very straight forward question. over the past couple of years, the justice department has initiated a number of efforts related to missing and murdered indigenous people and women, including projects in alaska and oklahoma to implement
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trouble committee response plans -- tribal community response plans. to what extent do you plan to continue to focus on these efforts that could help address the missing and murdered indigenous peoples crisis? judge garland: i certainly do intend to continue those. again, in the office of tribal justice -- again, the office of tribal justice was established, looking at the records, it is still there. this is an important aspect. we have a response ability to indigenous peoples, both statutory and otherwise. to protect. many of our problems in this country are regional. we must focus our resources on problems that are regional. not every problem as a national one. our regional problems have to be
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addressed directly with respect to the problems caused in those regions. >> i think this is a possibly underreported -- i think this is possibly underreported. on missing and indigenous women. i think we have to put a lot more emphasis on what is going on there. the past four years have seen a reawakening of right windex room is -- right wing extremism. last year, it was testified the greatest domestic terror threat to the united states is white extra missed groups -- is white extremist groups. the right at the capital was led by white extremist. the new york times reported that president trump, with the help of his attorney general, barr, diverted law-enforcement resources from combating the
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serious threat by right wing extremist groups. would you used apartment resources to address white supremacist and other right wing extremists? judge garland: yes, senator. if anything was necessary to refocus our attention on what's a premises -- on white supremacists, on the capitol, i expect to put all departmental resources necessary to combat this problem. into this area. to make sure our agents and prosecutors have the numbers and the resources to accomplish that mission. >> thank you. my next question has to do with the immigration courts. we discussed immigration and the courts a few weeks ago.
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it is worth highlighting under the drum administration, the backlog of cases pending in immigration courts has exploded to almost 1.3 million cases. in some jurisdictions, the wait to hear a case is four years. there are cases that have been pending for more than four years. not only affects families trying to reunite -- this not only affects families in the -- this not only affects families trying to reunite. 1.3 million backlog. how would you increase the efficiency of the immigration courts? judge garland: this is an extraordinarily serious problem. looking from my pampered perch as an appellate judge, who has a
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limited number of cases, and weeks and weeks to study those, then weeks and weeks to write those, i can't imagine how judges can operate under the conditions that you described. i have heard even from other judges that they exist. what am confirmed, -- when i am confirmed, i will certainly look at what can be done. i will look at a number of resources and judges. if it means to some ability to give to the judges, to prioritize your cases -- their cases, even in their own appellate courts, we have developed ways in which we handle some cases more swiftly and some cases take longer. some cases are barely resolved. some require full opinions. some weigh the evaluation of
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requirements. i can't give you an idea with respect to court administration, which i know something about, but not a normal amount about, to have a chance to get into the department of confirmed, and if i understand, with this huge backlog, the number of cases. >> i think the really important thing is the acknowledgment that this kind of serious backlog -- the acknowledgment of this kind of serious backlog. thank you. >> we will break now and come back five minutes after 3:00.
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