[Congressional Record Volume 168, Number 53 (Thursday, March 24, 2022)]
[Senate]
[Pages S1785-S1786]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  NOMINATION OF KETANJI BROWN JACKSON

  Mr. DURBIN. Mr. President, I was disappointed but not surprised that 
Senator McConnell came to the floor and announced that he would not 
support the nomination of Ketanji Brown Jackson, by President Biden, to 
fill the vacancy of Stephen Breyer on the U.S. Supreme Court.
  Just this morning, or early afternoon, we wrapped up the 4-day 
process in the Senate Judiciary Committee to consider her nomination, 
and that is why some of the statements which the Senator made in 
justifying his opposition, I believe, need to be addressed. I will be 
brief in doing so, but I wanted to make a record of it quickly.
  It seems that he is concerned, as many Republicans are, with the 
notion of packing of the Court. The notion behind that is that the 
Democrats are inspired to appoint some number of new Justices to that 
Court--maybe four--and, thereby, tip the balance back toward the 
Democratic side.
  The question, obviously, before us is, Where does that idea come 
from?
  I will be honest with you, even as chairman of the committee, I don't 
know. I suppose there are some academics and theorists and researchers 
who believe that is well worthy of conversation, but let's be honest 
about this issue which seems to consume the Republicans in the Senate.
  There is only one U.S. Senator who has had a direct impact on the 
composition of the U.S. Supreme Court in modern memory. Who was that 
Senator? It was Senator Mitch McConnell, of Kentucky, because he 
decided to keep the Court at eight Justices for almost a year after the 
death of Antonin Scalia. He refused to give President Obama his 
constitutional and legal option of filling the vacancy from the Scalia 
departure on the Court, and for a year, Mitch McConnell, for his own 
political purposes, kept the Court's composition at eight. So, when it 
comes to moving the numbers of Justices, he has retired the trophy in 
modern times because he was the one who did it.
  When he starts speculating about the possibility of, ``Well, maybe 
they will add one, two, three, or four more Justices if the Democrats 
get an opportunity,'' I happen to know--and the Presiding Officer does 
as well--that nothing is going to happen in changing the composition of 
the Court unless it passes the U.S. Senate, which, under current rules, 
requires 60 votes. There are currently 50 Democrats and 50 Republicans. 
So the likelihood of ``packing the Court'' is very unlikely in the near 
future unless some decision is made by the electorate that dramatically 
changes that.
  In the meantime, we are in a situation wherein we have a vacancy on 
the Court which we are trying to fill with a very competent person, and 
this notion of packing the Court being the No. 1 issue in deciding is 
beyond me. There

[[Page S1786]]

is no sinister conspiracy that I am even aware of that suggests that 
this is an agenda item for the Democrats. Of course, we would like to 
see the Court be more sympathetic to our point of view, but there is no 
grand plan for this to happen.
  Incidentally, the Constitution of the United States--I usually keep a 
copy in my desk here--does not mandate the number of Supreme Court 
Justices. We have had various numbers over the years, and we arrived at 
the number of nine in 1869. I believe that was the year. So it has been 
a tradition on the Court since that time.
  The answer by Ketanji Brown Jackson--a Federal judge, a DC Circuit 
judge--was the obvious answer when asked about whether she wanted to 
pack the Court. She said: Senator, that is not my job. I would be a 
judge. You are a legislator, and you would have the power, if you 
wished, to change the composition of the Court. I, as a judge, don't 
have that authority.
  So to make that the No. 1 reason you can't support her nomination is 
less than compelling.
  The second thing he raised was one we heard over and over again. 
Judge Jackson, what is your philosophy? Tell us your philosophy when it 
comes to the Court. What is your judicial philosophy? We want to make 
sure we know.
  Well, there are different schools of thought when it comes to the 
Constitution. Antonin Scalia was a so-called originalist, and Supreme 
Court Justice Kavanaugh is a textualist, I believe, and there may be 
many other schools of thought.
  The bottom line is, she has said: I have published 578 written 
opinions. If you want to know what I think about the law, here is my 
body of work--take a look at it--on almost every topic under the Sun.
  So, if you want to know how she rules and what she thinks, she can 
represent whatever she wishes, but her words already speak for 
themselves. She has been very open and has provided 12,000 pages from 
her time on the Sentencing Commission that also reflect her views on 
very important topics.
  There is also the old saw. We knew it was coming. The Republicans are 
testing their messages for the November election, and I will bet you 
have heard some of them.
  One of them is that Democrats are soft on crime. They said that about 
Judge Jackson, but they have got a problem. Judge Jackson has been 
endorsed by the Fraternal Order of Police, the International 
Association of Chiefs of Police, and NOBLE, the National Organization 
of Black Law Enforcement Executives, in addition to other law 
enforcement leaders.
  She has a history in her family of brothers and other members, 
uncles, who have been in law enforcement, risking their lives for the 
safety of their communities over and over. One of her uncles is the 
chief of police of Miami, FL.
  This woman is no stranger to law enforcement. It is part of her 
family; it is part of what she grew up in. To argue that she is ``soft 
on crime'' ignores the obvious. She has got it in her blood. She is 
going to be fair, I am sure, when she is on the Supreme Court, but she 
has no prejudice against police groups. It is part of her family 
history.
  There is also the question about giving light sentences. We spent 
more time on this than one can imagine.
  Three or four Republican Senators were dwelling on her sentencing in 
a handful of cases and wouldn't let go of it, day after day for 2 
straight days. They refused to acknowledge--and the reality is--that 
her choice of sentencing guidelines was within the same limits and 
boundaries of 70 percent of current Federal judges; in some regions, 80 
percent. She was not out of the mainstream; she was directly in the 
mainstream when it came to sentencing. You would think the opposite was 
true.
  When you look at these facts and realize that here is our opportunity 
to put the first African-American woman on the U.S. Supreme Court and 
that these are the best arguments they could come up with against her, 
it really troubles me.
  I sincerely hope--I really hope and not just because I want to make 
sure she is on the Court--that we will have bipartisan support for her 
nomination. If this turns out to be a strictly partisan vote with this 
historic opportunity, it will be sad, sad for our country and sad as a 
commentary on where the parties are today.
  I am hoping--I am still hoping--that several Republicans and, I hope, 
many more will step forward and support her nomination. I am 
disappointed in Senator McConnell's decision, but I am not surprised.

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