[Congressional Record Volume 168, Number 55 (Tuesday, March 29, 2022)]
[Senate]
[Pages S1813-S1814]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Ketanji Brown Jackson

  Mr. THUNE. Mr. President, last week's Judiciary Committee hearing 
gave Senators the opportunity to hear directly from President Biden's 
nominee to the Supreme Court, Judge Ketanji Brown Jackson, to help them 
decide whether she is an appropriate candidate for the Nation's highest 
Court.
  My approach to deciding whether or not to vote for a Supreme Court 
nominee or any judicial nominee is pretty simple. I look at the 
character and qualifications, and most of all, I look at the question 
of whether the nominee understands the limited role of the judiciary 
and the separation of powers.
  Our Federal Government, of course, has three distinct branches: the 
legislative branch, which makes the laws; the executive branch--the 
President and executive Departments--which executes the laws; and the 
judiciary,

[[Page S1814]]

which interprets the laws. Pretty simple, right? Civics 101. Too often, 
however, our colleagues on the left look to the judiciary to usurp the 
role of the legislative branch. They look for activist judges who will 
not just interpret the law but who will go beyond the law to deliver 
the policy outcomes that liberals are interested in, whether that is an 
aggressive abortion agenda, restraint of the free exercise of religion, 
or liberals' preferred approach to immigration.
  President Biden, for example, specifically noted that he would only 
appoint judges who could be relied on to rule in favor of Roe v. Wade 
and a right to abortion. Well, that is a big problem because delivering 
specific political outcomes is not the job of the judicial branch. In 
our system of government, policy decisions are vested in the 
legislative branch and are made there by the people's democratically 
elected representatives. Judges have discretion in applying the laws, 
but their discretion is to be guided by the plain text of the law and 
by the intention of the people's representatives in drafting the 
statute. Otherwise, we end up not with government of the people but 
with government by an unelected, unaccountable group of judges.
  President Biden has unfortunately placed himself squarely in the camp 
of those who would like to see the judiciary take an active role in 
making policy. ``The people that I would appoint to the Court,'' 
President Biden said during his campaign for President, ``are people 
who have a view of the Constitution as a living document, not as a 
staid document.''
  Well, let me just talk about that for a minute. What is a 
Constitution if not a staid document? If there is no fixed meaning to 
the Constitution, if it can be stretched and adjusted and expanded by 
judges at their discretion, then why have a Constitution? The whole 
point of the Constitution--of written law in general, I would argue--is 
that it is fixed, ``staid,'' to quote the President. The rule of law, 
equal justice under the law--these concepts rely on the idea that the 
law has a fixed meaning, that there is one law that applies equally to 
everyone.
  If the Constitution does not have a fixed meaning, it cannot be the 
supreme law of the land. It cannot be a guide to which we can all 
appeal. A living Constitution is a meaningless one. Of course that 
doesn't mean that the Constitution will always stay exactly the same. 
There is a process, as we all know, for amending the Constitution so 
that needed changes can be made. But these changes have to be made 
through the amendment process, with the concurrence of three-fourths of 
the States.
  That is not what the President is talking about. When the President 
talks about a living Constitution, he is not talking about periodically 
amending the Constitution via the process laid out within the 
Constitution itself; what he is talking about is nominating judges who 
will take it upon themselves to amend the Constitution through their 
rulings by finding new rights and authorities as needed to advance a 
particular political agenda. That is deeply concerning, particularly 
when we are talking about a lifetime appointment to the highest Court 
in the land.
  Unfortunately, after watching last week's Judiciary Committee hearing 
and examining Judge Jackson's record, I am concerned that her 
jurisprudence reflects President Biden's belief in an activist 
judiciary.
  As has become clear, Judge Jackson has a strong point of view when it 
comes to sentencing guidelines in certain cases. That is not in and of 
itself a problem, of course. Judges can and do have strong opinions 
about any number of issues that come up in the law. What is a problem 
is it seems that Judge Jackson has allowed her personal opinions to 
shape her judicial decisions.
  For example, as a Federal trial judge, she repeatedly chose to reject 
sentencing guidelines and the recommendations of prosecutors in favor 
of lenient sentences for those who possess and distribute child 
pornography. It appears that she had a record of advocating for 
leniency with respect to these types of crimes during her time at the 
U.S. Sentencing Commission and that she then applied those opinions to 
her sentencing practices when she became a Federal judge.
  For this reason and more, I am deeply concerned that her record 
suggests that she would allow her personal opinions on issues like 
sentencing to shape her decisions on the Supreme Court. A Supreme Court 
Justice's allegiance must be to the plain words of the law and the 
Constitution, not to any personal political opinion, and I am not 
convinced that Judge Jackson meets that standard.
  My concern has only been heightened by Judge Jackson's inability or 
refusal to define her judicial philosophy. It should not be difficult 
for a nominee to the Supreme Court to lay out her theory of 
constitutional interpretation. Given how often her strong personal 
opinions have appeared to influence her decisions as a judge and absent 
a clearly expressed judicial philosophy that rejects personal opinion 
in favor of the plain meaning of the law and the Constitution, I am 
concerned that her judicial approach would follow the ``living 
Constitution'' model that President Biden embraces.
  Finally, I was deeply concerned by Judge Jackson's refusal to reject 
Court packing. Court packing, of course, is a long-discredited idea 
that has been revived by members of the far left and increasingly 
embraced by the Democratic Party. The idea behind it is simple. If the 
Supreme Court isn't delivering the decisions you want, expand the 
number of Justices until you can be pretty sure you will get your 
preferred outcomes.
  The problems with this approach are obvious, starting with the 
question, where does it end? It is easy to envision a Democrat-led 
Congress packing the Court with additional Democrat-selected Justices 
and then a Republican-led Congress coming in and matching those new 
Justices with additional Republican-appointed Justices and on and on 
and on. Pretty soon, the size of the Supreme Court would be approaching 
the size of the U.S. Senate. I can think of no approach more guaranteed 
to bring about a complete delegitimization of the Supreme Court.
  Do Democrats seriously think that there is any--any--American who 
would regard the Supreme Court as a nonpartisan institution after it 
had been packed full of Democrat Justices or, if it were Republicans 
who were advancing this Court-packing plan, with Republican Justices? 
Court packing would instantly turn the Supreme Court into nothing more 
than a partisan extension of the legislative branch, which is why it is 
so concerning that Judge Jackson has repeatedly--repeatedly--declined 
to oppose it.
  Both Justice Ginsburg and Justice Breyer spoke out against Court 
packing during their time on the Supreme Court, so this is a subject on 
which Judge Jackson can and should have felt free to speak. That she 
did not do so only underscored my concern that she is too open to 
allowing politics to shape the judiciary.
  I enjoyed meeting with Judge Jackson, and I respect her achievements, 
but I cannot in good conscience vote for a Supreme Court Justice whose 
record indicates that she will allow her personal political opinions to 
shape her judicial decisions.
  The rule of law depends upon having Justices who decide cases based 
on the plain meaning of the law and the Constitution, not on personal 
beliefs or political considerations.
  I can only vote to confirm a Justice who I believe will respect the 
separation of powers and the limited role of a Justice and refuse to 
allow her personal opinions to influence her decisions on the Bench.
  For these reasons, I cannot support Judge Jackson's confirmation to 
the Supreme Court.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. TOOMEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Warnock). Without objection, it is so 
ordered.