[Congressional Record Volume 168, Number 53 (Thursday, March 24, 2022)]
[Senate]
[Pages S1784-S1785]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  NOMINATION OF KETANJI BROWN JACKSON

  Mr. McCONNELL. Mr. President, the Judiciary Committee has completed 
its hearing for Judge Ketanji Brown Jackson. I enjoyed meeting the 
nominee. I went into the Senate's process with an open mind.
  But after studying the nominee's record and watching her performance 
this week, I cannot and will not support Judge Jackson for a lifetime 
appointment to the Supreme Court.
  First, Judge Jackson refuses to reject the fringe position that 
Democrats should try to pack the Supreme Court. Justice Ginsburg and 
Justice Breyer had no problem denouncing this unpopular view and 
defending their institution. I assumed this would be an easy softball 
for Judge Jackson, but it wasn't. The nominee suggested there are two 
legitimate sides to the issue. She testified she has a view on the 
matter but would not share it. She inaccurately compared her nonanswer 
to a different, narrower question that a prior nominee was asked. But 
Judge Jackson, seemingly, actually tipped her hand. She said she would 
be ``thrilled to be one of however many.''
  ``However many.''

[[Page S1785]]

  The opposite of Ginsburg and Breyer's sentiment. The most radical 
pro-court-packing fringe groups badly wanted this nominee for this 
vacancy. Judge Jackson was the court-packer's pick, and she testified 
like it.
  Second, for decades, activist judges have hurt the country by trying 
to make policy from the bench. This has made judicial philosophy a key 
qualification that Senators must consider.
  President Biden stated he would only appoint a Supreme Court Justice 
with a specific approach that is neither textualist nor originalist. 
That is the President's litmus test: No strict constructionists need 
apply. And that President picked Judge Jackson.
  If the nominee had a paper trail on constitutional issues, perhaps it 
could reassure us, but she doesn't. When Justice Gorsuch was nominated 
to the Supreme Court, he had written more than 200 circuit court 
opinions that Senators could actually study. Justice Kavanaugh had 
written more than 300. Justice Barrett outpaced them both. She wrote 
almost 100 appellate opinions in just 3 years, plus years of 
scholarship as a star professor that Senators could actually examine.
  Judge Jackson has been on the DC Circuit for less than a year. She 
has published only two opinions. Beforehand, Judge Jackson served as a 
trial judge on the district court. She testified on Tuesday that that 
role did not provide many opportunities to think about constitutional 
interpretation.
  Yet when Senators tried to dig in on judicial philosophy, the judge 
deflected and pointed back to the same record she acknowledged would 
not shed much light. One Senator simply asked the judge to summarize--
summarize--well-known differences between the approaches of some 
current Justices. The nominee replied that 2 weeks' notice had not been 
enough time to prepare an answer.
  President Biden said he would only nominate a judicial activist. 
Unfortunately, we saw no reason to suspect that he accidentally did the 
opposite.
  Third, and relatedly, we are in the midst of a national violent crime 
wave and exploding illegal immigration. Unbelievably, the Biden 
administration has nevertheless launched a national campaign to make 
the Federal bench systemically softer on crime. The New York Times 
calls this a ``sea change.''
  Is it more likely the administration chose a Supreme Court nominee 
who would push against their big campaign or somebody who would be its 
crowning jewel?
  This is one area where Judge Jackson's trial court records provide a 
wealth of information, and it is troubling, indeed.
  The judge regularly gave certain terrible kinds of criminals light 
sentences that were beneath the sentencing guidelines and beneath the 
prosecutor's request.

  The judge herself, this week, used the phrase ``policy disagreement'' 
to describe this subject. The issue isn't just the sentences. It is 
also the judge's rhetoric and trial transcript and the creative ways 
she actually bent the law.
  In one instance, Judge Jackson used COVID as a pretext to essentially 
rewrite--rewrite--a criminal justice reform law from the bench and make 
it retroactive, which Congress, of course, had declined to do. She did 
so to cut the sentence of a fentanyl trafficker while Americans died in 
huge numbers from overdoses.
  Judge Jackson declined to walk Senators through the merits of her 
reasoning in specific cases. She just kept repeating that it was her 
discretion and if Congress didn't like it, it was our fault for giving 
her the discretion. That is hardly an explanation as to why she uses 
her discretion the way she does.
  It was not reassuring to hear Judge Jackson essentially say that if 
Senators want her to be tough on crime, we need to change the law, take 
away her discretion, and force her to do it.
  That response seems to confirm that deeply held personal policy views 
seep into her jurisprudence, and that is exactly what the record 
suggests.
  I will conclude with this. Late on Tuesday, after hours of 
questioning, I believe we may have witnessed a telling moment. Under 
questioning about judicial activism, Judge Jackson bluntly said this:

       Well, any time the Supreme Court has five votes, then they 
     have a majority for whatever opinion they determine.

  That isn't just a factual observation. It is a clear echo of a famous 
quotation from perhaps the most famous judicial activist of all time, 
the archliberal William Brennan.
  The late Justice Brennan told people the most important rule in 
constitutional law was ``the Rule of Five.'' With five votes, a 
majority can do whatever it wants.
  That is a perfect summary of judicial activism. It is a recipe for 
courts to wander into policymaking and prevent healthy democratic 
compromise.
  This is the misunderstanding of the separation of powers that I have 
spent my entire career fighting against. But President Biden made that 
misunderstanding his litmus test.
  And nothing we saw this week convinced me that either President Biden 
or Judge Jackson's deeply invested, far-left fan club have misjudged 
her.
  I will vote against this nominee on the Senate floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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