'Special Report' All-Star Panel on Judge Jackson's confirmation hearing

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This is a rush transcript of "Special Report with Bret Baier" on March 22, 2022. This copy may not be in its final form and may be updated.


JACKSON: We have to have people being held accountable for committing crimes, but we have to do so fairly under our constitution.

Well, it doesn't mean that lawyers condone the behavior of their clients. They're making arguments on behalf of their clients in defense of the Constitution and in service of the court.


BAIER: Questions about whether Judge Ketanji Brown Jackson is soft on crime up on Capitol Hill, let's bring in our panel early. Josh Kraushaar is politics editor for National Journal.

Syndicated radio host, Hugh Hewitt, and Jonathan Swan, national political reporter for Axios.

Jonathan, the White House has to feel pretty confident about where they are just looking at the numbers up on Capitol Hill. But as you go through the back and forth, you suddenly realize that it is a 50-50 split up in the Senate, and you still have to get there.

JONATHAN SWAN, NATIONAL POLITICAL REPORTER, AXIOS: Yes. I mean, the most useful way, I think, to think about these hearings from a political lens is to look at it through the eyes of Mitch McConnell.

And McConnell has always viewed this particular nomination as relatively low stakes. This is from a man who's, you know, dedicated much of his life to the American courts.

It's not going to change the fundamental balance of the court. And he also knows he doesn't have the votes, unless she does something quite spectacular, in terms of a mishap in these hearings, which we haven't seen so far.

So, the calculus inside the White House is that they feel very, very confident that they've got 50 votes. They're hoping Susan Collins might get -- might get there, which would get them 51. But they're not -- you know, that they're not getting their hopes up that they're going to get a whole bunch of Republicans to vote for her.

BAIER: Hugh, what about the substance of these hearings and this hearing today with the questioning by Republicans specifically?

HUGH HEWITT, SYNDICATED RADIO HOST: It's been good substance, Bret. I'm a common law geek. I've been teaching it for 25 years. So, when Mike Lee brings up the Dormant Commerce Clause, I actually lean forward and the rest of the country goes to sleep.

The most interesting exchange though, is between Senator Cruz and Judge Brown-Jackson, who will be confirmed easily, she's very qualified. On her service on the Georgetown school -- private school at Georgetown Day School, where she said I don't know anything about critical race theory. I don't have any idea about the books you're talking about. This is a problem in the United States.

The left says CRT doesn't exist. It doesn't have anything to do with schools. But in fact, there are books that are CRT derived that come out of the atmosphere of CRT that school board members ought to know about.

And I was kind of astonished when Judge Brown-Jackson said, I don't know anything about this. I'm on the board. I don't teach CRT, it's not in the school. I'm paraphrasing here. So, I hope it goes back to that tomorrow.

I think that was interesting. Finally, Josh Hawley is scoring some points on the sentencing with regards to child pornography defendants. It is mind boggling to many parents out there that anyone can get three months, no matter what their ages.

And the explanation that Judge Brown-Jackson offered left me thinking she hadn't thought that one through. But generally, she's done very well. She'll be confirmed.

BAIER: Yes, the numbers are there. But here is another clip on that exchange. This one's with Ted Cruz about the child pornography stuff.


CRUZ: He believe the voice of the children is heard, when 100 percent of the time, you're sentencing child porn -- those in possession of child pornography to far below what the prosecutors asking for?

JACKSON: Yes, Senator. I take these cases very seriously as a mother. But in every case -- in every case that I handled involving these terrible crimes, I looked at the law and the facts.


Josh, is there other side of this politically for Republicans? Danger, if you will.

JOSH KRAUSHAAR, POLITICAL EDITOR, NATIONAL JOURNAL: Yes. Well, look, I think the strategy from some Republicans, Ted Cruz, and Josh Hawley, in particular, is to try to use Judge Brown-Jackson as a representative of a progressive view on being too indulgent on criminal's rights.

And, you know, I don't think it worked. I thought, Holly, as he was talking about -- scored some points about this light sends on a particularly heinous child pornography case. But, you know, by and large, I think she came across as empathetic, compassionate, and, familiar with the details of most of these cases.

So, you know, I think Republicans are trying to make a larger argument against Democrats as being too soft on crime, too indulgent of criminals. Judge Brown-Jackson is going to get confirmed, she'll probably get not just Susan Collins. I wouldn't be surprised if he gets one or two other Senate Republicans from my conversations with Hill Republicans today.

But, you know, that there is a vulnerability there. Not just with Brown- Jackson -- Brown-Jackson, but with Democrats and their views on crime.

BAIER: Yes, I want to turn now, Vice President Harris was actually leading this search, or was set to, one of the things that she was said to do for a nominee. This soundbite has made the rounds, especially in Republican circles on social media, take a listen.


KAMALA HARRIS, VICE PRESIDENT OF THE UNITED STATES: The governor and I and we were all doing a tour of the library here and talking about the significance of the passage of time, right? The significance of the passage of time.

So, when you think about it, there is great significance to the passage of time in terms of what we need to do to lay these wires, what we need to do to create these jobs. And there is such great significance to the passage of time, when we think about a day in the life of our children.


BAIER: Well, there's a lot of passage of time in that soundbite, but it comes as this new book comes out, and it's by a friend Jonathan Martin. And Politico has a write up Harris allies complained throughout the first year of the administration that she was handled -- handed an impossible portfolio. According to the book, Kate Bedingfield, Biden's comms director not only grew tired of the criticism that the White House was mismanaging Harris, she blamed the V.P.

In private Bedingfield had taken to noting that the vice presidency was not the first time in Harris's political career she had fallen short of sky- high expectations. Her Senate office had been a messy -- had been messy and her presidential campaign had been a fiasco.

Perhaps, she suggested the problem was not the vice president's staff, Martin and Burns, write. I should write. Both of them write that book.

Jonathan, the White House is pushing back on this saying that it's just hearsay. But clearly, there's a political vulnerability for Vice President Harris in this White House.

JONATHAN SWAN, POLITICAL REPORTER, AXIOS: Well, I don't know if there's a new statement. But I -- the statement that I read this morning in Politico was not a denial. It was very carefully worded. It said that it -- I can't remember the exact wording of it but it was one of those if you sort of study the art of flacking, it was somewhere in between.

But look, that's not an isolated view. There's been -- I don't think it's a surprise to anyone. There's been a large amount of frustration inside the West Wing over the last year at the coverage in particular of the V.P. but also some of her missteps.

And there's -- look, there's also been frustration in the other direction. But the fact is, Biden has stuck by her. There's no suggestion that he's going to, you know, throw her under the bus or anything like that. And he gets very frustrated I'm told when he sees stories about her that suggests that -- a suggestive of leaks from inside his building, and he's really read the riot act to folks that he doesn't want to see any of this.

So, look, they're in this position. And this I think, just adds a bit more color to the picture that we already have of this.

BAIER: Yes, but Hugh, politically as far as delivering a speech and delivering a message, she really hasn't hit the mark as of yet.

HUGH HEWITT, SYNDICATED RADIO HOST, SALEM RADIO NETWORK: No, that story about her staff turnover, I gather her speech writer as part of the staff that turned over. The ice is forming over the vice president's reputation as being a lightweight. And the only way to break out from that ice is to go into in depth interviews with people like you, Bret or Jonathan Swan on T.V. or do the Sunday shows, take hard questions, hit them out of the park and demonstrate capacity and grasp.

She has not done that once. Instead, she's given me clips to play on the radio show and when I played that clip three times this morning to Al Stewart's classic time passages, as has everybody else because it's so inane.

So, if you want to stop being viewed as inane, start giving serious conversation with people.

BAIER: We've invited her many times as I'm sure you all have too. Panel, we'll see you later in the show.


BAIER: The atrocities continuing in the coastal city of Mariupol as the Russians try to force the Ukrainians there to give up. They haven't yet, and the bombardment continues. This also happens as President Biden gets ready to leave for NATO. What is going to say there? What will the policy pitch be? We're back with our panel, Josh Kraushaar, Hugh Hewitt, and Jonathan Swan. Josh, it is a heavy lift here to go on the world stage in NATO and say something different or to come with deliverables to get over there?

JOSH KRAUSHAAR, "NATIONAL JOURNAL": Yes, Bret, there's not much left in terms of sanctions that the White House has to give. One announcement that they made today is that they're going to sanction some members of the Russian Duma. But there's again, only so many things left to do besides declaring that our mission to win the war, and help Ukraine win the war, which is something they have been very, very wary of saying for fear of provoking Russia and Vladimir Putin.

So this is a rally of NATO allies together moment. It's a very important symbolic moment. But the worry is that the central and eastern European countries are a little more hawkish, a little more interested in doing more, and you have western European countries that are getting a little bit wary of pushing punishments on Russian energy and doing more measures that could end up provoking Vladimir Putin.

BAIER: Yes. And Jonathan, that is the line, the whole provoking, and where does this go. Is the White House in that framework, or are they ready to push, sensing that Putin is weak?

JONATHAN SWAN, NATIONAL POLITICAL REPORTER, "AXIOS": This trip, you're just going to see, they need some things to announce. They are going to announce more sanctions and energy policy. That's not really, what they say publicly is not actually the most important thing about this trip. There is a conversation going on privately which is much more fraught between not just the Americans but also the allies, which is what is the atrocity threshold, what is the atrocity threshold inside Ukraine that would provoke a more aggressive response from NATO? Is it chemical weapons? Is it Putin using one of his quote-unquote, tactical smaller nuclear weapons? What would those actions do to that conversation in NATO?

They have been very resolute, we are not doing a no-fly zone, we're not doing anything. But the people I speak to both on the Hill and also among foreign governments, they all believe that this is going to change the conversation, God forbid, if this happens.

The other thing they are really worried about is cyber. It's very hard to contain a cyberattack. If Putin uses his cyber weapons, it's quite likely they will spill out into other NATO countries, and then you're immediately having an Article Five conversation. If he deploys a cyber weapon inside Ukraine that then hits something inside Poland, what does NATO do about that? We're going to be potentially having these conversations sooner rather than later.

BAIER: I think that's a big conversation at NATO this week.

Hugh, the president was speaking at the Business Roundtable last night during our show, talking a lot about inflation and the economy, did speak about Ukraine and Russia. And then he had this soundbite that really perked our ears after we went back and listened to it about a new world order. Take a listen.


JOE BIDEN, (D) PRESIDENT OF THE UNITED STATES: We are at an inflection point, I believe, in the world economy, not just the world economy, in the world that occurs every three or four generations. And now is the time when things are shifting. And there's going to be a new world order out there. And we have got to lead it, and we've got to unite the rest of the free world in doing it.


BAIER: We have to lead the new world order. Hugh, there are some shifts happening, especially in the Middle East. You have the Saudis meeting with China. You have Basher al-Assad taking meetings with the UAE and the Saudis. You have Iran rising up in the eyes of this administration, obviously with this nuclear deal. There are shifts.

HUGH HEWITT, SYNDICATED RADIO HOST: There are. And you cannot possibly deal with Iran with Russia as a mediator and then turn around and deter Putin on the other side from launching cyberattacks. What is most needed from the president is Europe is coherence. He needs to get the allies persuaded, as Jonathan mentioned, on a cyber response if a cyberattack is coming so that it's unified. And they have to abolish the distinction between offensive and defensive weapons to Ukraine. It's all defensive weapons now. They need to get everything there that can move.

BAIER: Gentlemen, we appreciate it. We'll be talking about this all week. Thanks.

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