[Congressional Record Volume 168, Number 55 (Tuesday, March 29, 2022)]
[Senate]
[Pages S1816-S1817]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Ketanji Brown Jackson

  Mr. DURBIN. Mr. President, last week, the Senate Judiciary Committee 
was busy. We met for over 30 hours to consider the nomination of Judge 
Ketanji Brown Jackson to fill a vacancy on the Supreme Court.
  During the meeting of the committee, hundreds of questions were posed 
to Judge Jackson. She spoke thoughtfully and at length about her years 
in public service, and, most importantly, she really imparted to the 
committee--and to America that has watched--what she thought about this 
great Nation, her pride in being an American, the opportunities which 
were given to her, and opportunities which she used to make this a 
better place for many.
  I was one of the millions who came away from last week's hearing 
deeply impressed with Judge Jackson. It proved to me during the course 
of her testimony that the words over the steps of the Supreme Court, 
``Equal Justice Under Law,'' are a personal challenge and an invitation 
to a person just like Judge Jackson.
  But it appears some of our Republican colleagues are more reluctant 
to support her at this moment. She is still making the rounds. Over 50 
Senators have received personal visits, and even more will during the 
course of this week. They have reservations, and I have spoken to some 
of them and listened to their statements. They say that they don't have 
any question about her qualifications or experience. Well, thank 
goodness. She has a stellar resume. Anyone who is a lawyer in this 
Nation would look at her with envy to think what she has achieved 
against the odds in her life.
  Unfortunately, some of the members of the committee misrepresented 
her record on several issues. I would like to try to set it straight at 
this moment.
  There seems to be this passion amongst some Republicans to get this 
nominee to state in a word or two her judicial philosophy. I find that 
interesting. If a person came up to one of my colleagues and said, 
``What is your political philosophy?'' there are a number of things a 
person might say. They might say, for example, ``I am a fiscal 
conservative.''
  You might then ask, ``Well, then why did you vote for the Trump tax 
cuts that gave tax breaks to the wealthiest Americans and added almost 
$2 trillion to the national debt? And if you are a fiscal conservative, 
why is it that you only preach for a balanced budget amendment when 
there is a Democrat in the White House and never when there is a 
Republican?''
  Basically what you are saying is, ``I can hear you and your 
declaration, but I want to know what you have done.''
  When it comes to Judge Jackson, those who seek her judicial 
philosophy and want a simple label one way or the other just haven't 
done their homework. She has almost 600 published opinions. This woman, 
this jurist, has not held back in explaining, in case after case, how 
she views the law. It is there for the reading. Every Member of the 
Senate and the public has access to that information to get the true 
measure of a judicial philosophy.
  What she said over and over again at the hearing was, I believe in 
judicial restraint. I think that is exactly what we need in a judge, 
personally. That is exactly what you will find when you review the 
hundreds of opinions she has written to date.
  Then there is this litmus test question that meant so much to Senator 
McConnell, the Republican leader in the Senate, that he led off his 
opposition to Judge Jackson on the issue. And the issue, quite simply, 
is whether or not Judge Jackson is willing to say what her position is 
on increasing the number of Justices serving on the Supreme Court--
interesting question.
  Most Americans think it has been nine for all time, but that is not 
true. I believe it was in 1869 that that number was established. Before 
then, it was a fewer number of Justices. It hasn't been changed since. 
There is speculation among some political quarters that people are 
thinking about changing it in the future.
  So when it came to Senator McConnell's opposition to Judge Jackson 
because she said it is a policy matter to be decided by Congress, not 
to be decided by the Court, as to the composition and number on the 
Supreme Court, Senator McConnell went on to say that that disqualified 
her; that was the leading disqualification.
  Well, you might ask Senator McConnell: How did the previous nominee, 
Amy Coney Barrett--you went to great lengths in maintaining a vacancy 
on the Court so that a Republican judge could fill the vacancy--how did 
she answer this probing threshold question when it came to the 
future composition of the Supreme Court?

  She said virtually exactly what Judge Jackson said: It is a matter 
for Congress to decide, not for the courts. That was an acceptable 
answer with Amy Coney Barrett, but for Senator McConnell, it is an 
unacceptable answer when it comes to Judge Jackson.
  The other questions that were raised were about her legal 
representation. Those of us who have practiced law understand that you 
don't necessarily agree with the legal position of every client who 
walks in the office, and sometimes you have no choice. If the court 
appoints you as a defender or as an attorney to represent someone who 
is an indigent client, you often have a client before you--not 
necessarily a savory character--who might have some questionable 
background. Your job is to be a zealous advocate for that client but 
never to lie to the court, stick with the truth, do your best, and 
represent them in the course of litigation.
  That is what Judge Jackson has done in her private practice and her 
years working for the Federal public defender. Most attorneys get it. 
Most of them understand that the client you are representing is not 
necessarily espousing your point of view, nor, really, boasting a 
lifestyle that you admire, but you have a professional obligation to do 
your best as a lawyer to represent them before the court of law.
  Some of them were opposed to Judge Jackson because she represented 
detainees at Guantanamo Bay. That is curious because these same 
lawmakers once claimed that judicial nominees should not be held 
accountable for the views and actions of their clients.
  It was the junior Senator from Missouri who not that long ago argued 
that litigators ``do not necessarily share the views of the people 
[they represent]'' but must ``represent them effectively and fairly.'' 
He was right then, and he ought to remember it now.
  Consider the words of the junior Senator from Texas, who told us in 
September of 2019:

       Saying that the views of your clients or the positions of 
     your clients are necessarily your own personal views is no 
     more accurate than saying a criminal defense lawyer who 
     represents capital defendants is advancing the cause of 
     murder.

  That is the quote from the junior Senator from Texas.
  Finally, some of our Republican colleagues have accused Judge Jackson 
of being soft on crime. We had an interesting panel the last day when 
we considered the judge, and on that panel was a gentleman who is the 
president of the Black law enforcement organization known as NOBLE.
  I asked him point blank: We know the Fraternal Order of Police has 
endorsed Judge Jackson's aspiration to the Court. We know that the 
International Association of Chiefs of Police also endorsed her. You, 
NOBLE, representing Black law enforcement agents across the Nation, 
have endorsed her. Would you or any of these organizations have even 
considered the endorsement if you thought she was soft on crime or 
wanted to defund the police? He was unequivocal. No, he wouldn't have 
considered her. But her critics ignore that reality.
  I want to make it clear that any Senator considering her nomination 
has the right to make their own choice in this process. They can also 
look beyond the fact that she comes from a law enforcement family to 
her actual decisionmaking and sentencing. But to claim, as a few have--
only a few--that somehow Judge Jackson was soft when it came to child 
predators or endangering children is just inaccurate and, frankly, 
insulting.
  Look at the facts. Judge Jackson is well within the judicial 
mainstream of 70 to 80 percent of sentences by Federal judges when it 
comes to child pornography offenders--not out of the mainstream, in 
it--and she has put many

[[Page S1817]]

behind bars for decades. Her approach to these cases is comparable to 
that of many of President Trump's nominees on the bench today.
  Independent fact checkers have exposed these baseless attacks for 
what they are. I can't say it any better than the conservative Federal 
prosecutor who wrote in a conservative magazine, the National Review, 
that this line of attack against Judge Jackson is ``meritless to the 
point of demagoguery.''
  Let's be clear. None--absolutely none--of the attacks that have been 
leveled against Judge Jackson stand up to scrutiny. I assume that is 
why only a few of my Republican colleagues have spoken out in support 
of them.
  So I want to thank the majority of Republican Judiciary Committee 
members who treated last week's hearing with dignity and respect. They 
posed challenging, probing questions to Judge Jackson, and that was 
their responsibility to do so. Judge Jackson's forthright responses 
showed the American public why she deserves this historic opportunity.
  She is a brilliant jurist, evenhanded, with a model temperament. 
There were so many moments--for those who followed the hearing, they 
know what I am speaking of--when I looked up and saw her sitting at the 
table, thinking that she could stand up at this very moment and say 
``Enough. My family and I are leaving.'' But she didn't. She had the 
strength and the grace and the dignity and determination to weather 
even that political firestorm.

  I am honored to support Judge Jackson. I look forward to our 
Judiciary Committee vote on her nomination next Monday.
  (The remarks of Mr. Durbin pertaining to the introduction of S. 3950 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. DURBIN. I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.