[Congressional Record Volume 168, Number 60 (Tuesday, April 5, 2022)]
[Senate]
[Pages S1952-S1957]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Ketanji Brown Jackson

  Mr. CORNYN. Mr. President, later this week, perhaps in a day or two, 
the Senate will vote on the nomination of Judge Ketanji Brown Jackson 
to serve as a member of the U.S. Supreme Court.
  Last week, I laid out my reasons for my opposition to this 
nomination, and yesterday, I voted against her nomination in the 
Judiciary Committee. But I want to make clear that my vote against 
Judge Jackson is not a rebuke of her legal knowledge, her experience, 
or her character. Judge Jackson is obviously very smart. She has vast 
practical experience, which I think is very useful. She is likeable. 
And she is very clearly passionate about her work.
  The Senate's constitutional duty to provide advice and consent, 
though, requires us to look beyond Judge Jackson's resume and 
personality to understand her judicial philosophy and the lens through 
which she views her role as a judge.
  Certainly, the Senate must evaluate whether Judge Jackson will act 
fairly and impartially. We have also got to make a judgment whether she 
will leave her personal beliefs and her policy preferences at the door 
and whether she will respect the bounds of her role as a judge or 
attempt to establish new judge-made law.
  This last point is absolutely critical, in my view. The Founders 
wisely established a system of checks and balances to ensure that no 
person or institution wields absolute power. The legislative branch, of 
course, makes law; the executive branch enforces the law; and the 
judicial branch interprets the law. We have each got our 
responsibilities under the Constitution.

[[Page S1953]]

  And while that is certainly a simplification of the duties of each of 
the three branches, it does illustrate that there are separate lanes or 
roles for each branch in our constitutional Republic. And we talked 
about that during Judge Jackson's confirmation hearing.
  The judge said she understands the importance of staying in her lane. 
She used that phrase many times during the confirmation hearing. She 
said she would not try to do Congress's job making laws.
  But over the years--and I think this is a blind spot for Judge 
Jackson and, frankly, many on the bench, particularly at the highest 
levels. Over the years, we have come to see a pattern of judges who 
embrace the concept of judge-made law.
  In other words, it is not derived from a statute passed by the 
Congress, it is not derived from the text of the Constitution itself, 
but rather, it is made as a policy judgment without any explicit 
reference in the Constitution itself. Now, that, I believe, is judicial 
policymaking or legislating from the bench.
  The Supreme Court over the years has developed various legal 
doctrines like substantive due process. That is a little more opaque, I 
would think, to most people than judge-made law, but basically, it is 
the same thing. It is a doctrine under which judges create new rights 
that are not laid out in the Constitution.
  It shouldn't matter if a person ultimately agrees or disagrees with 
this new right. If you like the result, well, you are liable to 
overlook the process by which the judges reached a decision. But if you 
disagree with it, then, clearly, it is a problem to have judges--
unelected, unaccountable to the voters--making policy from the bench, 
no matter what it is called.
  It is deeply concerning, I think--and it should be--to all Americans, 
to have nine unelected and ultimately unaccountable judges make 
policies that affect 330-or-so million people and they can have no say-
so about it at all. They can't vote for them; they can't vote them out 
of office; they can't hold them accountable. In fact, the whole purpose 
of judicial independence is so judges can make hard decisions, but they 
have to be tethered to the Constitution and the law, not made up out of 
whole cloth.
  No judge is authorized under our form of government to rewrite the 
Constitution to their liking or impose a policy for the entire country 
simply because it aligns with their personal belief or their policy 
preferences.
  As our Founders wrote in the Declaration of Independence:

       Governments are instituted among Men, deriving their just 
     powers from the consent of the governed.

  When judges find unenumerated and invisible rights in the 
Constitution and issue a judgment holding that, in essence, all State 
and Federal laws that contradict with their new judge-made law is 
invalid and unconstitutional, there is no opportunity for anybody to 
consent to that outcome like you would if you were a Member of the 
Senate or a Member of the House. People could lobby us. They could call 
us on the phone. They could send us emails, use social media to try to 
influence our decision. They could recruit somebody to run against us 
in the next election. They could vote us out of office if they didn't 
like the outcome.
  But none of that would apply to life-tenured, unaccountable Federal 
judges making judge-made law at the highest levels--no consent of the 
governed, no legitimacy which comes from consent.
  Abraham Lincoln made clear that it is the concept of consent that is 
the foundation for our form of government. He said famously: No man is 
good enough to govern another man without that man's consent.
  Of course, he used that in the context of slavery, and he was right; 
but it has broader application as well.
  As I said, when it comes to the executive and legislative branches, 
it is easy to see how consent and the legitimacy that flows from that 
comes into play. Voters cast their ballot for Senators, for Members of 
the House, for the President.
  Once a person is in office, voters conduct what you could describe as 
a performance evaluation. The next time that person is on the ballot, 
voters determine whether that person should remain in office or be 
replaced by someone new.

  But, again, that is not true of the judicial branch, which highlights 
and demonstrates why the judicial branch is different, why it shouldn't 
be a policy maker, why judges shouldn't be pronouncing judge-made law 
that is not contained in the Constitution itself.
  It is important that our courts remain independent and be able to 
make those hard calls, but even people like Justice Breyer, who Judge 
Jackson will succeed on the Supreme Court, has written books worried 
about the politicization of the judiciary, and I think that is one 
reason why our judicial confirmation hearings can get so contentious--
witness Brett Kavanaugh's confirmation hearing, which was a low point, 
I believe, for the Senate Judiciary Committee and for the Senate as a 
whole.
  But people wouldn't get so exercised over these nominations if people 
were simply calling balls and strikes like the umpire at a baseball 
game. Judges should be umpires; judges should not be players.
  So Justices on the Supreme Court are not held accountable at the 
ballot box, and they aren't evaluated every few years for their job 
performance. They are nominated by the President and confirmed for a 
lifetime appointment.
  When Justices engage in blatant policymaking, it takes away the power 
of ``we the people'' to decide for ourselves and hold our government 
accountable. It speaks to that statement in the Declaration of 
Independence that says government derives its just powers from the 
consent of the governed. But that is totally missing when it comes to 
judge-made law and identifying new rights that are nowhere mentioned in 
the Constitution.
  Again, I understand, when you like the outcome as a policy matter, 
you are not liable to complain too much. But we should recognize this 
over the course of our history as a source of abuse by judges at 
different times in our history, and we have seen the horrible outcomes 
of things like Plessy vs. Ferguson, where the Supreme Court, without 
reference to the Constitution itself, using this doctrine of 
substantive due process, said that ``separate but equal'' was the 
answer for the conflict between the rights of African-American 
schoolchildren and the rest of the population. They said it is OK. You 
can satisfy the Constitution if you give them separate but equal 
educations.
  Well, of course, that is a shameful outcome, and we would all join 
together in repudiating that kind of outcome. And, thankfully, years 
later--too many years later--Brown v. Board of Education established 
that the ``separate but equal'' doctrine was overruled, and that is as 
it should be.
  But the point I am trying to make here is whether it is the Court's 
decisions on abortion or the right to marry a same-sex partner or 
separate but equal, or even things like the Dred Scott decision, which 
held that African-American fugitive slaves were chattel property, or in 
the famous Lochner case, where the New Deal Justices struck down an 
attempt by the government to regulate the working hours of bakers in 
New York.
  All of these involved the use of this substantive due process 
doctrine as a way to cover up and hide the fact that it was judges 
making the law and not the policymakers who run for office.
  I am also afraid that Judge Jackson did not always adhere to her own 
admonition that judges should stay in their lane. In the case Make the 
Road New York v. McAleenan, the American Civil Liberties Union 
challenged a regulation involving expedited removal of individuals who 
illegally cross our borders and enter into the country.
  The Immigration and Nationality Act gives the Department of Homeland 
Security Secretary ``sole and unreviewable discretion'' to apply 
expedited removal proceedings. Judge Jackson, who presided over the 
case challenging that rule, ignored the law. She went beyond the 
unambiguous text to deliver a political win to the people who brought 
the lawsuit.

[[Page S1954]]

  She barred the Department of Homeland Security from using expedited 
removal proceedings to deter illegal immigration. She stopped the 
administration from enacting immigration policies it had clear 
authority to implement according to the black-letter law. 
Unsurprisingly, that decision was appealed and ultimately overturned by 
the DC Court of Appeals. But this is an example of not staying in your 
lane and not deferring to Congress the authority to make the laws of 
the land when the Congress has been unambiguously clear.
  So, ultimately, I believe that demonstrates a willingness to engage 
in judicial activism and achieve a result, notwithstanding the facts 
and the black-letter law in the case, and to disregard the law in favor 
of a political win for one of the parties.
  But this is just exactly what I started off talking about. This is 
the opposite of consent of the governed, when judges ignore the laws 
passed by Congress, even when congressional intent is clear.
  Unfortunately, that wasn't the only example of activism in Judge 
Jackson's decisions. We have heard a lot about this, and I think it was 
an entirely appropriate subject for questions and answers. Judge 
Jackson is an accomplished and seasoned lawyer and judge, and she knows 
how to answer hard questions.
  During sentencing hearings, Judge Jackson has said she disagreed with 
certain sentencing enhancements for policy reasons. That is the word 
she used--for policy reasons--and she chose to disregard its 
application. That is not staying in your lane.
  She also used a compassionate release motion to retroactively slash a 
dangerous drug dealer's criminal sentence because she didn't like that 
the government brought a mandatory minimum drug charge, even though the 
government had every right to do so under the applicable law.
  The promise of equal justice under the law requires judges to follow 
the law regardless of their own personal feelings about the policy. 
Justice Scalia famously said that if a judge hasn't at one time or 
another in his or her career rendered a judgment that conflicts with 
their own personal preferences, then they are probably not doing their 
job right.
  It is absolutely critical for our Supreme Court Justice to not only 
acknowledge but to respect the limited but important role that our 
judges play in our constitutional Republic. They shouldn't allow 
politics or policy preferences to impact their decisions from the 
Bench, and they can't use their power to invalidate the will of the 
American people based on invisible rights that aren't actually included 
in the Constitution itself.
  In 1953, Judge Robert Jackson observed that the Supreme Court is 
``not final because [it is] infallible, but [it is] infallible only 
because [it is] final.''
  In other words, the recourse that we the people have when judges 
overstep their bounds when it comes to constitutional interpretation is 
to amend the Constitution itself--something that has only happened 27 
times in our Nation's history--and it is a steep hill to climb, to be 
sure.
  But it is important for the legitimacy of the Supreme Court itself 
for the judges to be seen as staying in their lane and interpreting the 
law, not making it up as they go along. I am reminded of another quote 
about the scope of the Judiciary's duties and powers. In 1820, Thomas 
Jefferson wrote, ``To consider the judges as the ultimate arbiters of 
all constitutional questions [is] a very dangerous doctrine indeed, and 
one which would place us under the despotism of an oligarchy.''
  Once again, our Founders, our Founding Fathers, had the wisdom to 
establish three branches of government to share power to avoid any 
single person or institution from wielding absolute power, and to 
ensure that we maintain the proper balance of power, Justices need to 
stay in their lane and interpret the law, not make the law, 
particularly when the voters have denied consent from them for doing 
so.
  So to summarize, to ensure that we maintain the proper balance of 
power under our Constitution, judges must only interpret the law and 
they can't allow activism to bleed into their decisions and they can't 
ignore black-letter law and they can't use doctrines like substantive 
due process to hide the fact that they are making up new rights that 
aren't contained anywhere in the written Constitution itself.
  As I said before, I fear that, if confirmed, Judge Jackson will 
attempt to use her vast legal skills to deliver specific results and 
get outside of her lane by making judge-made laws that are not 
supported by the text of the Constitution itself. As I said in the 
Judiciary Committee, and I will say again, when the time comes to vote 
on Judge Jackson's nomination here on the Senate floor, I will once 
again vote no for the reasons I just stated.
  The PRESIDING OFFICER. The Senator from Missouri.


                   Unanimous Consent Request--S. 3951

  Mr. HAWLEY. Mr. President, I rise today to urge the Senate to take 
action to crack down on child pornography offenders and to protect our 
children. This is a growing crisis, and it is one that is near to the 
heart of every parent in America. I can attest to that as a father of 
three small children myself. I have got a 9-year-old, a 7-year-old, and 
a 16-month-old baby at home.
  But I can also attest to it as a former prosecutor. As the attorney 
general for the State of Missouri, one of the first things I did was 
establish a statewide anti-human trafficking initiative and task force 
because what I saw as attorney general of my State was that human 
trafficking, including, unfortunately, child sex trafficking, is an 
exploding epidemic.
  In my State and around our country, children are exploited, children 
are trafficked. And those who work in this area and those who prosecute 
in this area--law enforcement who work day in and day out--will tell 
you that the explosion of child pornography is helping to drive this 
exploding epidemic of child sexual exploitation and child sex 
trafficking.
  The problem is that child porn itself is exploding. A New York Times 
investigative reporter found that in 2018, there were 45 million images 
of children being sexually exploited available on the internet--45 
million. Just a few years before, it had been 3 million and in 2018, 
45. Then, last year, the National Center for Missing and Exploited 
Children found that that number had grown to 85 million--85 million 
images on the internet of children being brutally sexually exploited.
  And as every prosecutor and every law enforcement advocate and every 
law enforcement agent who works in this area will tell you, that 
explosion of this material--which, by the way, is harmful in and of 
itself, is exploitative in and of itself--is driving a crisis of child 
exploitation and child sex trafficking in this country.
  Now the nomination of Judge Ketanji Brown Jackson to the Supreme 
Court has helped bring this issue front and center. Her record of 
leniency to child sex offenders has been much at the center of her 
hearings, and it has startled the public. A recent Rasmussen survey 
found that following her hearings, 56 percent of all respondents said 
that they were troubled by her record on child sex offenders. That 
included 64 percent of Independents.
  And they are right to be troubled. Her record is indeed startling. In 
every case involving child pornography where she had discretion, she 
sentenced below the Federal sentencing guidelines, below the 
prosecutor's recommendations, and below the national averages.
  We now know that the national average for possession of child 
pornography--the national sentence imposed, on average, is 68 months. 
Judge Jackson's average is 29.3 months. The national average sentence 
for distribution of child pornography: 135 months; Judge Jackson's 
average, 71.9 months.

  In fact, it is true for criminal sentencing across the board. The 
national average of all criminal sentences imposed in the United 
States, 45 months; Judge Jackson's average, 29.9 months.
  This is a record of leniency. In the words of the Republican leader, 
leniency to the ``extreme'' to child sex offenders and on criminal 
matters in general.
  But--but, but, but--we are told, and have been told for weeks on end 
now, it is not really her fault. We were told by the White House and 
Senate Democrats that it is not her fault because those Federal 
sentencing guidelines that she, in every case where she could went 
below--those guidelines aren't binding. Thanks to the decision by the 
Supreme

[[Page S1955]]

Court, by Justice Breyer and Justice Stevens, those guidelines are only 
advisory. And so we were told, repeatedly, that if we really want to 
get tougher sentences for child porn offenders, then we are going to 
have to change the law.
  In fact, I see my friend Senator Durbin here today, the chairman of 
the Judiciary Committee. He said this to me multiple times during the 
committee.
  On March 22, he said to me:

       I hope we all agree that we want to do everything in our 
     power . . . to lessen the incidence of pornography and 
     exploitation of children. . . . I . . . want to tell you, 
     Congress doesn't have clean hands. . . . We haven't touched 
     this for 15, 16 or 17 years.

  Senator Durbin went on:

       We have created a situation because of our inattention and 
     unwillingness to tackle an extremely controversial area in 
     Congress and left it to the judges. And I think we have to 
     accept some responsibility.

  And he went on:

       I don't know if you--

  Meaning me--

     have sponsored a bill to change this. I will be looking for 
     it. . . . If we're going to tackle it, we should.
  Well, I agree with that 100 percent. I agree we should tackle it. 
This is the time to tackle it, and I am here to do that today. I am 
proud to sponsor and introduce legislation along with my fellow 
Senators Mike Lee and Thom Tillis and Rick Scott and Ted Cruz to get 
tough on child porn offenders.
  Now, let's be clear. When Congress wrote the child pornography 
Federal sentencing guidelines, and it is Congress that wrote them 
substantially, way back in 2003--when Congress wrote them, they wanted 
them to be binding. Congress meant for these guidelines to bind Federal 
judges. The Supreme Court struck those guidelines down.
  Now it is time to put it back into place. My bill would put a new 
mandatory--mandatory--sentence of 5 years for every child porn offender 
who possesses pornography, 5 years. If you do this crime, you ought to 
go to jail. It would make the guidelines binding for any and all facts 
found by a jury or found by a judge in a trial, restore the law to what 
Congress intended back in 2003, take away discretion from judges to be 
soft on crime, and get tough on child sex offenders. That is what this 
bill would do.
  Now, I called this bill the Protect Act of 2022 because it is modeled 
on the PROTECT Act of 2003, when Congress wrote these guidelines. And I 
would just note for the record that I believe every Senator voted for 
it back in 2003, including the chairman of the Judiciary Committee, 
Senator Durbin, and every member of the Judiciary Committee, Republican 
and Democratic, who was serving at the time.
  That act back in 2003 toughened penalties for child porn offenders, 
made the guidelines mandatory, and explicitly took away discretion from 
judges to sentence below the guidelines.
  I think it was a pretty good law, and I think now is the time to act. 
Our children are at risk. The epidemic of sexual assault, sexual 
exploitation, and victimization is real.
  And let's be clear what child pornography is. It is an industry--an 
industry that feeds on the exploitation of the most vulnerable members 
of our society, that feeds on the spectator sport of child abuse and 
child victimization.
  If you have a lot of images of child pornography, you ought to go to 
jail for a long time. If you possess child pornography, you ought to go 
to jail for at least 5 years. And, yes, it is time for every judge in 
America to get tough on child porn. That is what this bill would do, 
and I urge the Senate now to take this opportunity to act.
  So as if in legislative session, I ask unanimous consent that the 
Committee on the Judiciary be discharged from further consideration of 
S. 3951, and the Senate proceed to its immediate consideration; I 
further ask that the bill be considered read a third time and passed 
and that the motion to reconsider be considered made and laid upon the 
table.
  The PRESIDING OFFICER. Is there objection?
  The majority whip.
  Mr. DURBIN. Mr. President, reserving the right to object. I have to 
ask myself, why now? Why does the junior Senator from Missouri bring 
this bill to the floor of the U.S. Senate today?
  When you think back, this matter has been considered. Originally, the 
guidelines were considered in 1984. The question of child pornography 
came back to us in 2003.
  In 2005, there was a Supreme Court case about applying the guidelines 
on sentencing to these types of cases--a case known as Booker. We know 
that in 2005, that decision was handed down.
  We know that in 2012, the Sentencing Commission said to Congress and 
to the world that you need to do something here. These guidelines that 
you promulgated don't reflect the reality of today.
  We know, as well, that the guidelines were written--some were written 
in an era when the materials we are talking about were physical 
materials. And we now live in the world of internet and access to not 
just tens and hundreds but thousands of images, if that is your 
decision.
  And all these things have happened, and we come here today--today. I 
don't know exactly how many years the Senator from Missouri has been in 
the Senate, but to my knowledge, this is his first bill on this subject 
that he has presented in the last few weeks. And I wonder why--why now?
  Are there valid questions about sentencing guidelines? Certainly, 
there is no question about it. I said as much, and he quoted me.
  The Sentencing Commission told us over a decade ago, in 2012: You 
have got a problem here. The world has changed, and the law doesn't 
reflect it.
  But this is the first time, to my knowledge, that the Senator from 
Missouri or any Republican Senator has tried to enact legislation on 
the subject. Why now? Well, I know why. He said as much. It is because 
we are now considering the nomination of Judge Ketanji Brown Jackson to 
the Supreme Court.
  This Senator has suggested over the course of the last 2 weeks in 
hearings before the Senate Judiciary Committee that somehow this 
judge--this judge who is aspiring to the Supreme Court--is out of the 
mainstream when it comes to sentencing in child pornography cases.
  It is no coincidence that the Senator from Missouri comes to the 
floor today while Judge Jackson's nomination is pending on the Senate 
calendar. It was discharged from our committee by a bipartisan vote in 
the Senate last night. It is no coincidence that he is raising this 
issue within hours or days before her confirmation vote. It is one 
more, very transparent attempt to link Judge Ketanji Brown Jackson's 
confirmation with this highly emotional issue of Federal sentencing 
when it comes to child pornography or child exploitation.
  There are some political groups--at least one well-known political 
group--that manufacture theories about child pornography, pedophilia, 
and the like and that even inspire deadly reactions to them, and they 
are cheering this on. I have seen their reactions already, this 
morning, in the newspaper. They are watching this and hoping that 
someone can keep this issue alive on the floor of the U.S. Senate--for 
them.
  The Senator from Missouri has even gone so far as to make the 
outrageous claim that this woman, Judge Jackson--the mother of two 
wonderful girls, whom I had a chance to meet, a mother who comes to 
this issue not only as a judge but as the sister and niece of law 
enforcement officials who have been part of her family--in the words of 
the Senator from Missouri, that this woman ``endangers children''--
``endangers children.''
  Mr. HAWLEY. Will the Senator yield for a question?
  Mr. DURBIN. I will yield when I am finished.
  One conservative former prosecutor called Senator Hawley's charges 
``meritless to the point of demagoguery.''
  I have read so many reviews of the Senator's charges against this 
judicial nominee, and not one of them gives him any credence. They 
basically say: What you are dealing with here is a complicated area of 
the law, a controversial area of the law, and to try to ascribe to this 
one nominee these motives, these outcomes, is baseless and meritless.
  Consider this: How can this judicial nominee possibly have the 
endorsement of the largest law enforcement organization in America--the 
Fraternal Order of Police--the endorsement of the International 
Association of Chiefs of Police, and many other law

[[Page S1956]]

enforcement groups--how could she possibly have all of that and be as 
wrong on a critical issue as the Senator from Missouri has asserted?
  How is it possible that the American Bar Association took a look at 
all of her contacts as a judge, as a lawyer, as a law student and came 
up with 250 individuals who knew her personally, appeared in court with 
and against her, judged her in her individual capacity as a lawyer--how 
can the American Bar Association interview those 250 and find no 
evidence of the charges that have been made by the Senator from 
Missouri? How is it possible that they would review all of this and 
miss such a glaring fact? They didn't.
  They told us, under oath, that they were asked point blank: Is her 
sentencing standard soft on crime? different than other judges?
  The answer was no, no.
  The net result of it was that the American Bar Association found this 
nominee, whom the Senator from Missouri charges with these outrage 
claims--they found her to be unanimously ``well qualified''--
unanimously ``well qualified.'' Yet the Senator from Missouri believes 
that he has discovered something that the whole world has missed. 
Unfortunately, he is wrong, and he doesn't admit it.
  When Judge Jackson is confirmed to the Supreme Court--and I pray that 
she will be later this week--it will be in part because she is a 
thoughtful, dedicated person who has worked as a judge for over 10 
years. She has published almost 600 written opinions. She has had 100 
cases wherein she has imposed criminal sentences and a dozen-plus cases 
involving children.
  What the Senator from Missouri has done is to cherry-pick arguments 
from one small part of her service on the bench that has been debunked 
across the board. But let me say it again: Judge Jackson's sentences 
were appropriate exercises of discretion as a judge in applying the law 
to the facts in difficult cases.
  It is interesting to me how the Senator from Missouri has carefully 
drawn lines to exclude Trump appointees to the bench who have done 
exactly what this judge has done as well--so-called deviate from the 
guidelines when it has come to sentencing. In fact, one judge from his 
State, from the Eastern District of Missouri, whom he has personally 
endorsed as a good judge--and he may well be--has followed the same 
practice as this judge. Did he raise that at all in the Senate 
Judiciary Committee about the Missouri judge who was doing the same 
thing as Judge Jackson? No, nothing.
  There is nothing about these judges that is deviating from other-
than-accepted practices. When 70 to 80 percent of sentences handed out 
by judges across America are using the same standard, Judge Jackson is 
in that mainstream, along with judges whom this Senator from Missouri 
has endorsed.
  If this issue needs to be addressed--and I believe it does--we can do 
so if we do it carefully, and we should do it carefully. Make no 
mistake, I don't back off from my words. As a father, as a grandfather, 
as a caring parent, I sincerely consider this to be one of the most 
serious crimes--the exploitation of children. I can't think of anything 
worse.
  The pornography issue certainly is out of control because of the 
internet and because of those who are making a dollar on it. We should 
take it very seriously--very seriously. It changes and destroys lives. 
But let's make sure we do this in the right way.
  What have we done in the Senate Judiciary Committee?
  It is great for the chairman to stand on the Senate floor and talk 
about the issue.
  Well, what have you done, Senator?
  Let me tell you what I have done, and I think the Senator from 
Missouri knows it.
  We have done what we can to address this issue from many different 
angles. The committee held a hearing on the FBI's failure to properly 
investigate allegations against Larry Nassar for assaulting young 
athletes, Olympic gymnasts included, which enabled the abuse of dozens 
of additional victims. We called them on the carpet. We put them under 
oath. We brought the testimony forward. We didn't back away from the 
issue of child abuse.
  Following that hearing, I introduced the Eliminating Limits to 
Justice for Child Sex Abuse Victims Act, with Senator Marsha Blackburn, 
a Republican from Tennessee. The Senate has now passed this bipartisan 
legislation, which would enable those survivors of child sex abuse to 
seek civil damages in Federal court no matter how long it takes the 
survivor to disclose the facts of the case.
  The committee has also unanimously reported a bill which the Senator 
from Missouri knows well, the EARN IT Act, which is legislation he has 
cosponsored with Democratic Senator Blumenthal that will remove blanket 
immunity for the tech industry for violations of laws related to online 
child sexual abuse material.
  I make no apologies for our approach on this, and there is more work 
to be done.
  I want to tell you that I am tempted to leave it just at that but for 
one part, one thing I am concerned about.
  Our Federal sentencing guidelines have been advisory, not mandatory, 
since the Supreme Court's 2005 ruling in the Booker case. This bill now 
being offered on the floor in a very quick fashion by the Senator from 
Missouri attempts to create mandatory sentencing guidelines for a 
single category of offense. It is not clear whether it passes the 
constitutional test of Booker. It could be a waste of time. We don't 
need to waste time in a critical area of the law that has been so 
controversial and has been considered and reviewed over decades.
  Even so, it is a dangerous slope to go down. Imagine a world wherein 
every time it was politically advantageous--whether it was a Supreme 
Court nominee or a headline in the paper--that some Senator could come 
forward, disagree with a Federal judge in a particular case, and say: 
Let's pass a mandatory minimum sentencing guideline to take care of the 
matter.
  That is no way to approach the law in a fashion that is used for 
deterrence and punishment. We need to be thoughtful about it. A subject 
of this seriousness, of this gravity, deserves more than a driveby on 
the floor of the U.S. Senate.
  I invite my colleague to do his work on this issue as we all should--
the work that is required, the work that is required by the seriousness 
of this matter.
  I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Missouri.
  Mr. HAWLEY. Mr. President, the Senator asks: ``Why now?'' Why act 
now?
  It is because it is a crisis now, because there are 85 million images 
of children being exploited on the internet now, because child 
exploitation is exploding in this country now.
  Today, the Senator lays bare on this floor the bait and switch that 
he and his colleagues have employed.
  They say: Oh, Judge Jackson--it is not her fault. You should act on 
the law to change the law.
  But when we come to change the law and do what this Congress did in 
2003, to do it now in 2022--a measure that Senator Durbin supported in 
2003--he says: Oh, no, no, we don't need to act now. Why do it now? It 
is rushed. It is too hurried. Let's do it later. Let's think about it 
longer.
  Then we hear recited again the bizarre claims that somehow child 
pornography is a conspiracy theory. This is something that Senate 
Democrats, including the chairman, have repeated over and over and 
over, led by the White House--the idea that child exploitation is a 
conspiracy theory.
  I would just invite you to look any parent in America in the eye and 
tell them that the exploitation of children is a conspiracy theory--or 
any law enforcement agent or any prosecutor or anyone who is working on 
the exploitation, to combat the exploitation of children in this 
country. No. It is a crisis, and it is real. The fact that the Senate 
hasn't acted until now is, I think, shameful for the Senate. But why 
wait another day?
  Now, I look forward, if the Senator is serious. He does hold the 
gavel in the Judiciary Committee. We could mark this bill up. We could 
hold hearings. We could take action. I would invite him to cosponsor 
this bill. He voted for it in 2003. Let's have hearings, then, if we 
can't vote on it today, if we can't debate it today. Let's have 
hearings. Let's mark it up. Let's take it seriously. I will wait. I 
suspect I will be waiting for an awfully long time.

[[Page S1957]]

  Here is the bottom line: I am not willing to tell the parents of my 
State that I sat by and did nothing. I am not willing to dismiss child 
exploitation as just some conspiracy theory. I am not willing to 
abandon the victims of this crime to their own devices and say: Good 
luck to you.
  No, I am not willing to do that--nor am I willing to excuse Judge 
Jackson's record of leniency that does need to be corrected. She should 
not have had the discretion to sentence leniently in the extreme, as 
she did, nor should any judge in America, in my view. What is sauce for 
the goose is sauce for the gander. We should fix it for everybody 
across the board, and we can begin by acting as we did in 2003.
  So I am disappointed, but I can't say that I am surprised that this 
measure has been objected to today. All I can say is that I pledge to 
my constituents--I pledge to the parents of my State and, yes, to the 
victims of my State--that I will continue to come to this floor and 
that I will continue to seek passage of this act until we get action 
from this Senate to protect children and to punish child pornographers.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, after 27 minutes of debate on the floor of 
the Senate, the Senator now believes we are prepared to change the law 
that has been debated for decades. He has put in a bill introduced 7 
days ago. It has been 7 days he has had passion for this issue--enough 
to introduce legislation.
  If you want to take on a serious issue, take it on seriously, and 
that means doing the homework on it. Yes, have a hearing. Of course, 
have a hearing. We want to make sure the people from the Sentencing 
Commission and others are part of this conversation. It isn't just a 
matter of throwing charges out against a nominee.
  If you want to be serious about it, then admit the obvious: In 70 to 
80 percent of cases involving child sexual abuse material, Federal 
judges struggle with the same sentencing that we have set down. In 
light of Supreme Court decisions, we understand--I ask for order, Mr. 
President.
  The PRESIDING OFFICER. There was no response to begin with to the 
Senator, so let's move forward.
  Mr. DURBIN. Mr. President, I will say, as far as I am concerned, this 
is a serious matter that should be taken seriously. You don't become an 
expert by, 7 days ago, introducing a bill and saying: I have got it. 
Don't change a word of it. Make it the law of the land. Make it apply 
to every court in the land.
  No. We are going to do this seriously. We are going to do it the 
right way, and we are going to tackle an issue that has been avoided 
for more than two decades, when you look at the history of it.
  I find this reprehensible--the pornography, this exploitation of 
children--and there are no excuses whatsoever, but I am not going to do 
this in a slipshod, make-a-headline manner. We are going to do it in a 
manner that is serious, one in which we work with prosecutors, 
defenders, judges, and the Sentencing Commission, and get it right. It 
is time to get it right.
  We wrote this law some 19 years ago, before the internet was as 
prevalent in society as it is today. Let us be mindful of that as we 
attack this problem and address it in a fashion that is befitting the 
Senate and the Senate Judiciary Committee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. HAWLEY. Mr. President, the Senator from Illinois says that 
Congress hasn't acted in two decades; that is true. I haven't been here 
for two decades; he has.
  There is no excuse to not take action now. There is no excuse to not 
act on this problem when we know what the solution is.
  So, listen, if the Senator is saying today, if he is committing 
today, to holding hearings and marking up a bill to toughen the child 
pornography laws, to make mandatory the sentencing guidelines, that is 
fantastic. I will take him at his word. I look forward to seeing those 
hearings noticed and to seeing that markup noticed, and I hope it will 
be forthcoming.
  I am here to make a prediction. I think we will be waiting a very 
long time, because let's not forget what his party and the Sentencing 
Commission, stacked with members of his party, have been recommending. 
It has not been to make child sentences tougher--child pornography 
sentences tougher. They have wanted to make them weaker.
  What the Sentencing Commission has recommended, with its liberal 
members for years now, is to make them weaker. That is what Judge 
Jackson has advocated. She also wants to change the guidelines--to make 
them weaker.
  I think that is exactly the wrong move, and that is why the Senator 
was here to block this effort today. He doesn't want there to be 
tougher sentences. He doesn't want to talk about this issue. He wants 
to sweep it under the rug. I am here to say I won't let that happen. I 
will be here as long as it takes. I will be advocating for this in the 
Senate Judiciary Committee as long as it takes, until we get justice 
for the victims of child pornography and child exploitation.
  I yield the floor.

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