[Congressional Record Volume 168, Number 43 (Thursday, March 10, 2022)]
[Senate]
[Pages S1084-S1085]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  NOMINATION OF KETANJI BROWN JACKSON

  Mr. CORNYN. Mr. President, on another matter, 2 weeks ago, President 
Biden nominated Judge Ketanji Brown Jackson--and I know I mispronounced 
her first name; Judge Jackson, let me just call her--to serve as an 
Associate Justice on the Supreme Court.
  During his State of the Union Message, President Biden said that 
choosing somebody to serve on the Supreme Court is one of the most 
serious constitutional responsibilities a President of the United 
States has. Likewise, I believe our responsibilities under the 
Constitution of evaluating the nominee, going through the advice-and-
consent process, is one of the most serious responsibilities we as 
Senators have, and I don't take that responsibility lightly.
  Members of this Chamber are pretty familiar with Judge Jackson's 
qualifications, as she was confirmed to the DC Circuit Court of Appeals 
just 9 months ago--sometimes called the second most powerful Federal 
court in the land, right below the Supreme Court of the United States.
  There is no question that Judge Jackson is an incredibly smart person 
and has all of the sort of pedigree that you would expect: graduated 
from the best universities, the best law schools, has had a broad range 
of practice. She received both her undergraduate and law degrees from 
Harvard. She clerked for a Supreme Court Justice, Justice Breyer. She 
served on the Federal bench for nearly 9 years.
  I could say, as somebody who served on the State court bench for 13 
years, I appreciate the President picking somebody who has actually had 
real-world experience on the trial bench. Too often, I think our 
Supreme Court nominees are academics and people who have very little 
real-world experience. But you can't argue that Judge Jackson does not 
have that kind of real-world experience, serving as a public defender, 
serving on the trial court, and serving on the court of appeals for the 
last 9 months.
  We all know that a nomination for the Supreme Court requires a 
rigorous assessment of far more than just a resume, though. Our Framers 
set forth the role of the Supreme Court in article III of our 
Constitution.
  Alexander Hamilton noted in Federalist 78 that the judiciary, he 
said, would have ``no influence over either the sword or the purse. . . 
. [i]t may truly be said to have neither force nor will, but merely 
judgment.'' Now, if I can interpret what Alexander Hamilton was really 
saying in modern language, it is that judges shouldn't be politicians. 
They are not policymakers.
  That is why we appoint them--they are appointed--for lifetime tenure, 
to be protected from the pressures of politics or personality, and that 
is why they have such a critical and important role in our government. 
But it is not the same role as we serve as elected representatives. We 
are enmeshed in politics. We are directly responsible to the people--
not for the legal correctness of our arguments or our legislation or 
constitutional interpretation, although I think we do have some 
responsibility since we take an oath to uphold the Constitution and 
laws of the United States, but it is different, and I think most people 
recognize judges are different than politicians. Judges should not be 
politicians appointed to serve for lifetime tenure and be unaccountable 
to the public and yet make policy. That is why judges decide individual 
cases. We don't decide individual cases here; we make policy for broad 
swathes of the American people. But judges decide cases based on a 
controversy, a set of facts, and the application of the law to those 
facts, which is, again, the antithesis of politics. That is what 
judging is all about.
  So the Supreme Court is not just another branch of government that 
you can go to if you don't get your desired outcome in the political 
branches. If you don't win the election, if you don't elect your like-
minded representative, you are not supposed to just go to the Supreme 
Court and say: OK, now you give me what I want because I couldn't get 
it through the political branches.

  The Supreme Court is not supposed to be a failsafe to be utilized to 
deliver results that can't be secured through the legislative process. 
Our democracy, equal justice under the law--that is what it says right 
above the door of the Supreme Court of the United States: ``Equal 
Justice Under Law''--can only be accomplished when the same law applies 
to all of us. Cases are therefore decided based on their unique facts--
not on politics, not on personal preferences, not even on strongly held 
personal beliefs. This is absolutely critical to our system of checks 
and balances and the health of our democracy.
  So I look forward to meeting Judge Jackson in person. I saw her 
across the hearing room when she was before the Judiciary Committee 
just about a year

[[Page S1085]]

ago. But I want to ask her a little more about her judicial philosophy 
and how she views her role on the Supreme Court.
  Now, some have suggested, since she has been confirmed to the circuit 
court, that this ought to be a rubberstamp. Well, I don't view it that 
way. Circuit court nominees and district court nominees have to apply 
Supreme Court precedent, but when you are a member of the Supreme 
Court, there is no higher court that dictates the decision or the 
precedence you need to apply.
  Now, ideally, you are applying the statutes and laws passed by 
Congress and the Constitution itself, but there is admittedly more 
flexibility for the nominee, which means her philosophy is even more 
important to know now.
  I tried to flesh out Judge Jackson's judicial philosophy during her 
confirmation hearing for the DC Circuit Court. A number of us submitted 
questions for the record asking her to clarify her judicial philosophy 
and the way she interprets the Constitution.
  We have heard a lot of testimony over the years about originalists 
and textualists and different ways people approach their duties as a 
judge.
  I don't think Judge Jackson was particularly forthcoming with her 
answers when we asked about her philosophy, and I ultimately voted 
against her confirmation for the circuit court. Now, that vote is not 
going to determine how I view her nomination to the Supreme Court, but 
I think the question applies with even greater strength because she 
will not be bound by Supreme Court precedent.
  I know she will have plenty of time and plenty of opportunity to 
clarify her views during the confirmation process, and I hope to see an 
unvarnished look, beginning with our conversation tomorrow, on 
Thursday.
  I am also eager to learn more about Judge Jackson's views of the 
Supreme Court as an institution, which has increasingly come under 
attack by partisans, again, who don't particularly like the decisions 
of the Court. But that is not supposed to be the test. The test is 
whether they apply the Constitution and laws of the United States to 
the facts found by the finder of fact.
  There have actually been a number of calls here on the Senate and in 
our political system in general to change the makeup of the Supreme 
Court, to actually add additional Justices to the Court--something that 
used to be called court packing back in the days of Franklin Delano 
Roosevelt. But Justice Breyer, to his credit, whose seat Judge Jackson 
has been nominated to fill, has been a steadfast defender of the 
Supreme Court as an institution, and I hope soon-to-be-Justice Jackson 
takes her cues from her mentor.
  Justice Breyer echoed the comments of the late Ruth Bader Ginsburg 
and warned about a potentially dangerous politicalization of the 
Supreme Court and the consequential loss of public confidence in its 
judgments. Well, I would like to know whether Judge Jackson agrees with 
Justice Breyer and whether she shares Justice Ginsburg's assessment 
that nine seems to be a good number when it comes to the Supreme Court.
  In the coming days and weeks, the Senate will thoroughly review Judge 
Jackson's qualifications, just as this body has done for every other 
nominee to the Federal bench. This is a familiar process to most of us. 
Judge Jackson is the fourth Supreme Court nominee we will have 
considered in the last 5 years.
  But I hope there is something we do differently this time than has 
been done in the recent past, particularly in the case of Justice 
Kavanaugh. Frankly, the confirmation process for Justice Kavanaugh was 
an embarrassment and, I believe, a black mark on this Senate. 
Conversely, I think we have an opportunity to show the American people 
how to do it the right way and treat Judge Jackson with civility and 
dignity, even when we disagree. We know that outside groups launched a 
full-on character attack against Judge Kavanaugh. Even Justice Barrett, 
more recently, was attacked based on her religious beliefs.
  I can assure you that will not happen this time around. We will 
meticulously review Judge Jackson's record. We will ask detailed 
questions to understand her judicial philosophy. We will read and 
review her opinions and carefully evaluate her ability to serve. 
Through it all, there is no question that she will be treated with 
dignity and respect.
  I think the confirmation process must be thorough and it must be 
civil. The American people and, frankly, the nominee deserves nothing 
less. I am prepared to fulfill my advice and consent duties as a Member 
of this body and as a member of the Judiciary Committee.
  As we know, there is no particular timeline for this process. In some 
cases, it moves quickly, and in others it has taken significantly more 
time. Chairman Durbin has announced that the Judiciary Committee will 
begin its confirmation hearing in the week of March 21, which doesn't 
allow much more time for our colleagues to meet with Judge Jackson 
before evaluating her record, and I know she has prioritized meeting 
with Members of the Judiciary Committee. I hope she will have adequate 
time to meet with other Members who are not on the Judiciary Committee, 
as well.
  I know our colleagues are anxious to expedite this process, but we 
all know Justice Breyer will stay on the Court until the end of this 
term, which will be the first week or so in July.
  Justices do not have term limits. They are not held accountable on 
elections, but they wield tremendous power under our Constitution. So 
we have a duty, not necessarily to get it done fast but to get it done 
right and thoroughly evaluate Judge Jackson's qualifications and ensure 
that, if confirmed, she will serve as a fair and impartial member of 
the Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Van Hollen). The Senator from Hawaii.
  Ms. HIRONO. Mr. President, I was listening very carefully to my 
friend, my colleague from Texas, on his comments regarding the process 
by which we give our advice and consent to all of our judicial 
nominees, but, of course, particularly our responsibility with regard 
to Supreme Court nominees.
  There seems to be some concern that we are rushing the nomination 
process for Judge Jackson. Nothing could be further from the truth 
because everybody remembers the speed with which nominee Amy Coney 
Barrett was put on the Court, from the time of her nomination to the 
hearings, to her being sworn in.
  There will be enough time for all of our Members of this body to 
consider Judge Jackson's nomination, not to mention that we have 
already confirmed her twice, once to the district court and another 
time to the circuit court. It is not as though she is unfamiliar to us.
  Also, any connotation that somehow President Trump's nominees were 
ill-treated--again, nothing could be further from the truth because the 
whole process, especially with regard to Justice Kavanaugh, was with 
the utmost desire on the part, particularly, of the Democrats on the 
Judiciary Committee to get to the bottom of certain allegations against 
Justice Kavanaugh that were highly serious.
  To cast any kind of doubt or aspersions on the work of the members of 
the Committee--especially the Democrats on the Committee--with regard 
to President Trump's nominees is not well-taken.

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