[Congressional Record Volume 168, Number 60 (Tuesday, April 5, 2022)]
[Senate]
[Pages S1951-S1952]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Ketanji Brown Jackson

  Mr. President, now on a different matter, the Constitution makes the 
President and the Senate partners in selecting Supreme Court Justices. 
And as a practical matter, each Senator gets to define what ``advice 
and consent'' means to them.
  For much of the 20th century, Senates typically took a different 
approach. Senators tended to give Presidents a lot of leeway as long as 
nominees checked basic professional and ethical boxes.
  But then the political left and Senate Democrats initiated a series 
of major changes. In the late 1980s, Democrats thrust the Senate into a 
more aggressive posture toward nominations with an unprecedented, 
scorched-earth smear campaign that took aim at a nominee's judicial 
philosophy.
  The Washington Post editorial board said back at the time that the 
formerly ``conventional view'' that Presidents would get great 
deference had now ``fallen into . . . disrepute.'' They worried that a 
``highly politicized future'' for ``confirmation proceedings'' might 
lie ahead following Democrats' actions.
  Well, just a few years later, personal attacks on then-Judge Thomas 
made the previous hysteria over Judge Bork seem like lofty debate by 
comparison.
  And 1 year after that, in 1992, then-Senator Biden proclaimed that if 
another vacancy occurred toward the end of President Bush 41's term, 
the Judiciary Committee should not hold any hearings before the 
Presidential election.
  Well, that situation didn't arise that year, and once President 
Clinton took office, Republicans did not try to match Democrats' 
behavior simply out of spite. We tried actually to deescalate. Justices 
Ginsburg and Breyer both won lopsided votes with opposition in single 
digits. That was during a time when Republicans were in the majority.
  But the very next time that Democrats lost the White House, the 
precedent-breaking tactics came roaring back.
  During the Bush 43 administration, Senate Democrats, and especially 
the current Democratic leader, took the incredibly rare tactic of 
filibustering judicial nominations and made it routine.
  The press at the time described the sea change:

       They said it was important for the Senate to change the 
     ground rules and there was no obligation to confirm someone 
     just because they are scholarly or erudite.

  Democrats decided that pure legal qualifications were no longer 
enough. They wanted judicial philosophy on the table.
  So, 20 years ago, several of the same Senate Democrats who are now 
trumpeting the historic nature of Judge Jackson's nomination used these 
tactics to delay or block nominees, including an African-American woman 
and a Hispanic man--both, of course, nominated by a Republican 
President.
  In one case, Democrats suggested their opposition was specifically--
listen to this--specifically because the nominee's Hispanic heritage 
would actually make him a rising star.
  Half--half--of Senate Democrats voted against Chief Justice Roberts, 
the best appellate advocate of his generation. All but four Democrats 
voted against Justice Alito, who had the most judicial experience of 
any nominee in almost a century.
  There was no question about the basic legal qualifications of either, 
but Democrats opposed both. And in mid-2007, more than a year before 
the next Presidential election, Senator Schumer expanded upon the Biden 
standard from 15 years prior. He said that if another Supreme Court 
vacancy arose, Democrats should not let President Bush fill it.
  Our colleague from New York proposed to keep a hypothetical vacancy 
open until an election that was more than a year away. During President 
Obama's terms, Republicans took up the same hardball tactics that 
Democrats had just pioneered.
  But our colleagues recoiled at the taste of their own medicine and 
broke the rules to escape it. They preferred to detonate the ``nuclear 
option'' for the first time ever rather than let President Obama's 
nominees face the same treatment they had just invented--invented--for 
President Bush's.
  Democrats did not then change the rule for the Supreme Court because 
there was no vacancy. But the late Democratic leader Harry Reid said 
publicly he would do the same thing for the Supreme Court with no 
hesitation.
  By 2016, Democrats had spent 30 years radically changing the 
confirmation process, and now they had nuked the Senate's rules. 
Obviously, this pushed Republicans into a more assertive posture 
ourselves.
  So when an election-year vacancy did arise, we applied the Biden-
Schumer standard and did not fill it. And then, when Democrats 
filibustered a stellar nominee for the next year, we extended the Reid 
standard to the Supreme Court.
  In 2016 and 2017, Republicans only took steps that Democrats had 
publicly declared they would take themselves. Yet our colleagues spent 
the next 4 years--4 years--trying to escalate even further.
  Justice Gorsuch, impeccably qualified, received the first successful 
partisan filibuster of a Supreme Court

[[Page S1952]]

nominee in American history; Justice Kavanaugh got an astonishing and 
disgraceful spectacle; and Justice Barrett received baseless, 
delegitimizing attacks on her integrity.
  Now, this history is not the reason why I oppose Judge Jackson. This 
is not about finger-pointing or partisan spite. I voted for a number of 
President Biden's nominees when I could support them, and just 
yesterday, moments after the Judiciary Committee deadlocked on Judge 
Jackson, they approved another judicial nominee by a unanimous vote.
  My point is simply this: Senate Democrats could not have less 
standing to pretend--pretend--that a vigorous examination of a 
nominee's judicial philosophy is somehow off limits.
  My Democratic friends across the aisle have no standing whatsoever to 
argue that Senators should simply glance--just glance--at Judge 
Jackson's resume and wave her on through.
  Our colleagues intentionally brought the Senate to a more assertive 
place. They intentionally began a vigorous debate about what sort of 
jurisprudence actually honors the rule of law. This is the debate 
Democrats wanted. Now it is the debate Democrats have. And that is what 
I will discuss tomorrow--why Judge Jackson's apparent judicial 
philosophy is not well suited to our highest Court.