[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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