[Congressional Record Volume 168, Number 60 (Tuesday, April 5, 2022)]
[Senate]
[Pages S1971-S1974]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Ketanji Brown Jackson

  Mr. BLUMENTHAL. Mr. President, I come here with real pleasure, pride, 
excitement, joy, and real exuberance not often felt on the floor of the 
U.S. Senate because we are going to be making history this week. As 
confident as I am of anything ever in the U.S. Senate happening, this 
week we will confirm Judge Ketanji Brown Jackson as an Associate 
Justice of the U.S. Supreme Court.
  Let me, first of all, thank President Biden for nominating her. His 
wisdom and courage are one of the reasons that she is before us as a 
nominee in this historic vote. And to all my fellow Members of the 
Judiciary Committee, we have labored a long time, through many hours, 
and I particularly thank Senator Durbin for his leadership.
  Now, ``historic'' is a word that is often overused, even in this 
Chamber, where a lot of history is made, but Judge Jackson's nomination 
truly merits that word. It is a joyous, exciting moment for all 
Americans because Justice Jackson will make the U.S. Supreme Court look 
more like America and, hopefully, think more like America at a time 
when Black women and people with diverse backgrounds, races, religions 
have broken many barriers.
  Her confirmation will be a giant leap into the present. She stands on 
the shoulders of many who have come before her, as she recognized so 
explicitly in our hearing. One of them is Constance Baker Motley, a 
daughter of New Haven, CT, the first Black woman to argue before the 
U.S. Supreme Court and the first Black woman to be appointed as a judge 
on the U.S. district court.
  Now, she was also instrumental in the well-known and profoundly 
significant case of Brown v. Board of Education, argued by Thurgood 
Marshall, and she won every one of the cases that she argued before the 
U.S. Supreme Court. I have argued four; she argued ten. Her record 
surpasses almost any of the litigators who have become judges.
  Not only will she be the first Black woman on the U.S. Supreme Court, 
Justice Jackson will be the first public defender. What does that mean? 
She has represented people who couldn't afford a lawyer. There is 
nobody on this Court who has represented people who couldn't afford a 
lawyer as a full-time profession or public defender. She has more 
experience as a trial lawyer and a trial judge combined than anybody on 
the U.S. Supreme Court now and probably over the last century.
  She has academic credentials that are superlative. She has written 
and taught and counseled in ways that give her insights into the real-
life meaning of the law and its real impact on people.
  It has also given her an emotional intelligence. There is no question 
that she is qualified by virtue of intellect and intelligence. Book 
smart--there is no question that she is book smart, but she is also 
people smart. She understands, as Justice Breyer has, as well, that all 
of these abstruse legalisms, all of the abstract concepts in law, all 
the technical distinctions, all of the verbiage--they have a real-life 
impact when they are words in a statute, when

[[Page S1972]]

they are words in a legal opinion, when they are words from the mouths 
of judges or Justices--Federal or State. She understands that real-life 
impact, which gives her more than intellect. It gives her emotional 
intelligence.
  I will say that I have talked to Judge Jackson about her feelings, 
her instincts at critical decision points as a judge. In sentencing, 
when she knew that another person's life was in her hands, 
metaphorically, and when another person's future was within her 
decision-making power, she has looked at sentencing decisions with all 
of the data points, all of the emotional intelligence, all of the 
judgment that she has advanced so movingly in her conversations with 
us, as well as her appearance before our committee.
  She has that capacity for empathy that very few people have. A lot of 
people can go to school and can graduate with honors. They can be book 
smart, but she understands the impact of law on real lives and real 
people. It is those people whose lives are touched by the justice 
system. Whether they are victims or criminal defendants or litigants 
dealing with personal or professional conflict, their stories shone 
through her conversations with us and her testimony before our 
committee and her enthusiasm for the law, because judges are the face 
and voice of justice, and representation matters.

  It matters for the legitimacy and credibility of our judicial system 
that our judges look like America, that somebody coming into a 
courtroom sees that that Justice has that face and voice that can 
relate to them.
  Judge Jackson will bring to the U.S. Supreme Court all those 
immensely important qualities and, certainly, she will bring a lot of 
patience and perseverance. She has shown those qualities, but also 
grace and dignity, in the way that she responded to some of the 
abusive, demanding questions that she was asked during our hearing. She 
has weathered that storm with extraordinary distinction and diligence. 
When some of our colleagues went low, she went high, to paraphrase 
Michelle Obama.
  When she was attacked for not claiming a ``judicial philosophy,'' she 
pointed to the decisions and opinions and disclaimed a judicial 
philosophy, just as Chief Justice Roberts did when he was asked in his 
hearing about judicial philosophy and he said he had no ``overarching 
judicial philosophy'' and, instead, described his role as ``call[ing] 
balls and strikes.''
  She said she knew her lane. She does, indeed, know her lane. She 
maybe didn't use the same terminology, but it is that objectivity and 
impartiality that Chief Justice Roberts described that will also guide 
her as a matter of principle and philosophy.
  There were other criticisms of Judge Jackson, and one conservative 
commentator described these attacks as ``meritless to the point of 
demagoguery.'' He was right. The concocted outrage, the straw man, the 
old grievances, the ancient complaints about past hearings and the 
treatment of nominees, all will fade and be forgotten because what 
shone through her performance was her integrity, her depth and warmth, 
her grace and dignity.
  Far from being soft on crime, very movingly, she described what it is 
like to have a family member who walks a beat because her brother is a 
cop and her uncle, a chief of police. She described the worries, 
concerns, even fear that family members have when their relatives are 
police--when their brother or uncle puts himself in harm's way. And 
that is probably the reason she has been endorsed by the largest rank-
and-file enforcement organization in the country, the Fraternal Order 
of Police, as well as the International Association of Chiefs of 
Police, high-ranking officials from the Department of Justice, and 
nearly 100 former assistant U.S. attorneys, many of whom observed her 
work as a judge firsthand.
  Some may have tried to smear her, but they failed abysmally, 
fortunately. She had a reversal rate of about 2 percent, well below the 
rate that the average district judge has in the DC Circuit. And she has 
been endorsed, as well, by former colleagues who were appointed by 
Republican judges--well-respected conservative judges who disagreed 
with her in the outcome of cases but who deeply respected the way she 
called those balls and strikes in the best and truest sense of the 
term.
  And she has shown her independence. She has ruled for and against the 
Trump administration. She has ruled for and against labor and 
collective bargaining, for and against qualified immunity, for and 
against class certification, because her philosophy and her 
``methodology,'' to use her word, is to follow the facts and the law, 
and that is what she will do as a Justice on the U.S. Supreme Court.
  Let me just finish, finally, with, maybe, what I think is going to be 
most important about Justice Jackson.
  She is a unifier and a consensus builder. She is someone who can 
build bridges among colleagues and even adversaries. She has been 
confirmed on a bipartisan basis three times already by the Senate 
because she is a bridge builder, and the Court needs a bridge builder 
now more than ever. It has been politicized and polarized in a way that 
undermines respect and trust in the American people. Partly, it is the 
self-inflicted wounds of the Court, which have been dominated in many 
decisions by a far-right coalition that have made it look political, 
and that perception is deeply important because the Court's trust and 
respect depend on the public perceiving it to be above politics.
  So the Court has inflicted wounds on itself, but so have the Congress 
and the political branch inflicted wounds on the Court by dragging it 
through a seemingly political process and making nominations and 
appointments seem to be the result of partisan politics, so that it may 
be perceived as just another political branch.
  I said at the very start that I have reverence for the Court and deep 
respect for it as an institution. It has no armies or police. It has no 
power of the purse. Its authority depends on its credibility.
  My hope is that Judge Jackson as Justice Jackson will help elevate it 
in a way that it needs now more than ever. I asked her about a code of 
ethics for the U.S. Supreme Court, and she said she would talk to her 
colleagues about it. I feel she has an understanding of the need now 
for the Court to adopt a code of ethics.
  It is the only judicial body that lacks a code of ethics. It has 
none. Unlike the appellate courts, the district courts, the U.S. 
magistrate, the court of claims--all of the minor judicial bodies in 
the United States--it has no code of ethics because it has resisted a 
code of ethics. Its credibility now depends on its having a code of 
ethics.
  Recent events have severely imperiled credibility and trust, and that 
peril will grow as more becomes known about some of these events. But 
the Court can help itself by supporting a code of ethics rather than 
resisting it.
  Judge Jackson's commitment to talk to her colleagues about it is a 
very welcome and important step. She said it in response to a question 
that I asked. I was the only member of the committee to ask about a 
code of ethics--surprisingly, to me. But restoring credibility and 
trust will be important to our Nation. Her service will help restore 
and inspire confidence. Her presence and active participation on the 
Court will help that task of reinvigorating credibility and trust.
  Her confirmation will be, indeed, a giant leap forward into the 
present and the future. It will inspire lots of young girls, lots of 
young women, lots of Black women, lots of Americans to believe in the 
American dream and to believe and see the law in different ways. That 
is what one of the young girls who wrote to Judge Jackson said in her 
letter, indeed, that she would look at the law in a different way.
  We will look at the law in a different way, and we will look at the 
Court in a different way because the Court will look and hopefully 
think more like America.
  I am looking forward to that vote. I will never cast a vote in this 
body that I am more proud and excited to do.
  I thank all of my colleagues on both sides of the aisle, and 
hopefully there will be more on the other side of the aisle joining us 
for this historic achievement for our Nation.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Peters). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Ms. ERNST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.

[[Page S1973]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. ERNST. Mr. President, in the last few weeks, we have heard a lot 
about and from Judge Ketanji Brown Jackson.
  I would like to start off by congratulating Judge Jackson and her 
family on her nomination. I had a wonderful meeting with the judge last 
week. She is a highly qualified attorney. I would also like to 
congratulate her for making it through the Senate Judiciary Committee. 
The hearing process can be grueling, but it is extremely important. 
Judge Jackson demonstrated grace under pressure. However, I have 
concerns about Judge Jackson's nomination and will not be supporting 
her confirmation to the Supreme Court.
  Perhaps my greatest issue with Judge Jackson is her lack of adherence 
to a judicial philosophy. I have been very clear with each Supreme 
Court nominee since I took office that I am looking to support a 
nominee who prescribes to originalism. Judge Jackson explained during 
the Senate Judiciary hearing that she abides by a judicial 
``methodology'' instead of a philosophy. This means, according to her, 
that she begins at a neutral position to understand the facts and to 
interpret the law, receives all the appropriate inputs, and then 
interprets the law.
  While I would hope that all judges, no matter which court they sit 
on, approach their rulings from a neutral position and evaluate all 
applicable court filings, Judge Jackson's methodology says nothing 
about the way she understands and subsequently interprets the law.
  In my mind, there are three areas of the law a judge must evaluate: 
the meaning of the Constitution, statutes, and case precedents. 
Different theories of interpretation sometimes lead to different 
answers about the meaning of each of these different areas, which is 
why it is vitally important to know what a Supreme Court nominee's 
philosophy is.
  For example, Justice Breyer, whom Judge Jackson clerked for and is 
nominated to replace on the Court, often described his own judicial 
philosophy as pragmatic. As a result, Justice Breyer balances the 
interests and values surrounding a case.
  While I don't agree with Justice Breyer's method of interpretation, 
Judge Jackson won't even commit to abiding by this judicial philosophy, 
and this is very troubling. If a Justice's legal interpretation has no 
philosophical grounding, that provides flexibility for a Justice to 
bend their thinking to achieve a desired outcome instead of following a 
structured analysis. We have enough politicians in the legislative 
branch; we don't need any in the courts, especially the Supreme Court.
  My concerns with Judge Jackson's apparent lack of a judicial 
philosophy are magnified by her other progressive and activist choices. 
Case in point: her lax stance on the sentencing of pedophiles. The laws 
she applied simply hold those who distribute child pornography 
accountable, considering how often these offenders recidivate. Instead, 
Judge Jackson went out of her way to articulate her discomfort with 
imposing sentences based upon, in her words, ``outdated laws'' because 
the nature of child pornography distribution has changed. For the 
children depicted in these heinous images, it really doesn't matter how 
they are distributed. Judge Jackson afforded leniency to offenders and 
previewed for all of us how she applies outdated laws to modern 
problems.
  Going further, when asked if she supports expanding the number of 
Justices on the Supreme Court, Judge Jackson refused to reject that 
position. Perhaps echoing this thought process during the Senate 
Judiciary hearing, Judge Jackson commented that she would be ``thrilled 
to be one of however many'' Justices. This tells me everything I need 
to know.
  In addition, Judge Jackson's unverified stance on life issues gives 
me great pause. During several exchanges at the hearing, Judge Jackson 
refused to acknowledge when the life of an unborn child begins. As a 
result, the only information I have to evaluate is her previous 
decision supporting a Massachusetts law that created a buffer zone 
preventing pro-life sidewalk counselors from approaching expectant 
mothers outside of abortion clinics.
  Without an articulated process on how the judge would approach a life 
question in combination with this troubling decision, I have no 
reassurance that the judge will not take an activist stance. I cannot 
and will not accept this answer.
  Finally, I am deeply concerned at Judge Jackson's response when asked 
to define a woman. The judge responded that she is not a biologist. 
Well, folks, I am not a biologist either, but it seems pretty common 
sense to me. I can tell you the voters of Iowa didn't have to think 
about the answer to this question when they elected me as the first 
woman to represent Iowa in the U.S. Senate. I can tell you the Taliban 
didn't have to think about the answer to this question when they closed 
the doors of schools to female students 2 weeks ago. And I can tell you 
President Biden didn't have to think about the answer to this question 
when he nominated Judge Jackson as the first Black woman to the Supreme 
Court.
  While I am grateful Judge Jackson believes science is the basis for 
determining a woman, I am deeply concerned that a fellow woman who is 
set to define the contours of laws that are specific to women has to 
even think about an answer to that question.
  So Judge Jackson's language, or lack thereof, speaks volumes for me, 
and I cannot support her nomination for a lifetime appointment on our 
Nation's highest Court.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. VAN HOLLEN. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Hassan). Without objection, it is so 
ordered.
  Mr. VAN HOLLEN. Madam President, later this week, the full Senate 
will take up and vote on the nomination of Judge Ketanji Brown Jackson 
to be an Associate Justice of the Supreme Court of the United States.
  Over the last several weeks, the Congress and the country and, 
indeed, the world have gotten to know Judge Jackson. We have learned 
about her broad life experience, her exceptional career, her deep love 
of the law.
  Judge Jackson endured a verbal marathon of intense questioning from 
members of the Judiciary Committee. She endured challenging and 
sometimes specious lines of questioning from some of our colleagues on 
the other side of the aisle, but through it all, she shined. She 
approached every moment of the hearing with grace, with wisdom, and 
with brilliance. Her good judgment and sharp mind were on full display 
for all to see. She was unshakable; she was inspiring.
  If confirmed, she will make history as the first Black woman to sit 
on the highest Court of the land. With Judge Jackson on the top Bench, 
we will get one step closer to ensuring that the Supreme Court of the 
United States looks like the Nation it serves; and with Judge Jackson 
on the highest Court, we will be even closer to realizing the noble 
ideal inscribed on the face of the Supreme Court building: ``Equal 
Justice Under Law.''
  Her confirmation will be a victory for all of America.
  My State of Maryland is also proud to have a small connection with 
Judge Jackson. Not only did she reside in Maryland for a period of 
time, but her brother served on the Baltimore Police Department for 7 
years, and he has also served two tours of duty as a member of the 
Maryland National Guard. Other members of her family also pursued 
careers in public service. Two of her uncles were police officers, and 
her parents were public school teachers.
  Like her family members, Ketanji Brown Jackson has taken up the 
mantle of public service as a public defender, as a member of the U.S. 
Sentencing Commission, as a district court judge, and as a Federal 
circuit court judge.
  It is no mystery as to why her nomination has been met with 
widespread praise. She has been lauded by the Fraternal Order of Police 
and by the International Association of Chiefs of Police. Prominent 
Republican-appointed judges and lawyers have spoken in favor of her 
confirmation. The American Bar Association listed her as

[[Page S1974]]

``well-qualified'' for the position to which she has been nominated--
their highest rating.
  There is no question in my mind that she will serve our Nation well 
and with distinction as the newest Justice of the Supreme Court, and I 
will vote in favor of her confirmation this week, proudly.
  I have watched many of my colleagues on the other side of the aisle 
strain to find some justification for voting against Judge Jackson. 
They know she is highly qualified. They know she is a person of 
integrity. They know she has the training and judgment required of a 
Supreme Court Justice.
  Last week, one Republican member of the Senate Judiciary Committee 
called Judge Jackson a ``person of exceptionally good character, 
respected by her peers, and someone who has worked hard to achieve her 
current position.''
  Another Republican member of the committee noted that she had 
``impeccable credentials and a deep knowledge of the law.''
  You would think these were words leading up to state support for 
Judge Jackson, but in both of those cases, those Senators have 
announced their decisions to vote against her. The pattern is the same 
for too many of our Republican colleagues. They come out and praise 
Judge Jackson and then announce they are voting against her.
  So the question is, Why? What is the reasoning here? And I have been 
listening carefully.
  Many of our colleagues tie their opposition to what they have called 
her ``judicial philosophy.'' They say Judge Jackson will push her own 
political ideology at the expense of the law. They say she is going to 
be an activist instead of a judge. They say she will create ``new 
rights from the Constitution out of whole cloth.'' In fact, that was a 
quote from my colleague, the senior Senator from Texas, who took to the 
floor last week in opposing Judge Jackson's confirmation.
  When my friend from Texas made that statement, I happened to be 
sitting where the Presiding Officer is right now, as I was presiding 
over the Senate, and I listened very closely to his arguments and 
others that were made along similar lines. None of the claims that I 
have heard hold water when you look at the facts because here is what 
Judge Jackson herself said during her confirmation hearing when asked 
about judicial restraint:

       I am acutely aware that, as a judge in our system, I have 
     limited power, and I am trying in every case to stay in my 
     lane.

  This is not just a hollow promise. Judge Jackson has explained to 
this Senate her clear methodology for ruling on cases to ensure that 
she stays in her lane. The methodology is simple.
  Step 1, start from a position of neutrality.
  We have all seen the scales of justice. We want them to be evenly 
balanced. Everybody who walks into a court should get a fair shot. That 
is step 1.
  Step 2, evaluate all of the facts from various perspectives.
  Step 3, apply the law to those facts.
  That is it. She was clear. That is how she makes decisions. That is 
how she rules from the bench.
  So what about the Constitution itself, that great document? What 
about this notion that she would be a runaway Justice, ``creating new 
rights from the Constitution out of whole cloth''?--to use the 
language, the expression, of some of my colleagues.
  That, too, is just plain wrong.
  Here is Judge Jackson again when she said:

       I believe that the Constitution is fixed in its meaning. I 
     believe it is appropriate to look at the original intent, 
     original public meaning of the words when one is trying to 
     assess because, again, that is a limitation on my authority 
     to import my own policy.

  Judge Jackson understands the boundaries of her authority as a judge. 
She has stayed within those boundaries for over a decade on the Federal 
bench.
  So enough of the spurious arguments that she is going to be an 
activist on the Court. Her method is clear; it is fair; it is balanced 
and honest, and I am confident that her rulings will be clear, fair, 
balanced, and honest.
  Let's not forget this: There are certain rights that most Americans 
would acknowledge are central to our Nation's traditions and values but 
that are not specifically and expressly enumerated in the Constitution, 
not each and every one with its own sentence.
  I have a short list here: the right to travel, the right to vote, the 
right to privacy, the right to marry. None of these rights are 
explicitly, expressly referenced in the text of the Constitution, but 
all of them have been derived by a close analysis of the letter and 
spirit of our Constitution and laws. These are rights we all embrace. 
These are rights the American people don't want elected officials to be 
able to take away from them.
  Let's not forget that the First Amendment, as written, only protects 
Americans from Federal action, from congressional action, that would 
violate their right to freedom of religion, press, speech, and 
assembly.
  Over time, the Court has taken action to protect these rights in the 
face of all government action, whether Federal or State or local, to 
make sure that those rights are protected against all government action 
no matter what its source.
  Justices appointed by Presidents of both parties have worked to 
protect rights Americans hold dear.
  President Reagan's appointee Justice Anthony Kennedy wrote the 
majority opinion in the case of Obergefell v. Hodges, which protects 
the rights of same-sex couples to marry. His fellow Reagan appointee 
Sandra Day O'Connor joined the majority in the case of Planned 
Parenthood v. Casey, which reaffirmed the reproductive liberties 
guaranteed under Roe v. Wade.
  Let's be clear: The Supreme Court considers the most challenging 
questions in American law. Judge Jackson will have to take on these 
challenging questions, like her peers on the Court, if she is 
confirmed; but one thing is crystal clear from her testimony and from 
the record: She will apply the law based on the facts. She will not be 
a partisan in a robe. She will be a fair, independent Justice of the 
Supreme Court, and she is very deserving of that title.
  I had the great privilege of meeting with Judge Jackson just 
yesterday. During our conversation, I was struck, again, by her 
brilliance, her intelligence, her kindness, and resolve. That came 
across on television during the hearings, but it was very evident in 
our one-on-one meeting. I thought about another Supreme Court nominee 
who broke barriers nearly 55 years ago, a man from Baltimore, MD: 
Thurgood Marshall. He was the first Black man to serve on the Supreme 
Court of the United States.
  So, during my conversation with Judge Jackson, I invited her to join 
me in West Baltimore at P.S. 103. This is public school building 103. 
It is in West Baltimore. It is the school where Thurgood Marshall 
learned to read and write. It is no longer an active school. The 
building is in bad condition. Just this year, as part of the omnibus 
appropriations bill, Senator Cardin and I were able to secure some 
Federal funds to help renovate that building and to turn it into a 
living memorial to Justice Thurgood Marshall and to expand 
opportunities for people in West Baltimore. So I told Judge Jackson 
that once she gets settled, it would be a great honor and privilege to 
bring her, the first Black woman on the Supreme Court, to the place 
where the first Black man on the Court grew up and went to school.

  Justice Thurgood Marshall inspired a generation of leaders and public 
servants to enter the legal field. Soon, Justice Ketanji Brown Jackson 
will do the same. Young people from all across our country will look at 
the Supreme Court of the United States and feel more included. Her 
presence on the Court will be a victory for ``we the people.''
  In 1978, Justice Thurgood Marshall said to a group of university 
graduates:

       This is your democracy. Make it. Protect it. Pass it on.

  I am deeply honored to work alongside my colleagues in the Senate to 
advance that vision, as we all strive to form a more perfect Union. And 
there is no doubt in my mind--no doubt at all--that elevating Judge 
Jackson to Justice Jackson will make our Union a little more perfect.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.

                          ____________________