[Congressional Record Volume 168, Number 61 (Wednesday, April 6, 2022)]
[Senate]
[Pages S1989-S1990]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Ketanji Brown Jackson

  Mr. McCONNELL. Mr. President, yesterday, I explained how Democrats 
created the current norms around judicial appointments.
  These days, the Senate takes an assertive role. In particular, most 
Senators do not merely check resumes and basic legal qualifications but 
also look into judicial philosophy.
  This is a discussion Republicans welcomed because judicial philosophy 
is not a routine policy disagreement, like debates over spending or tax 
rates or energy. These are the sorts of normal policy differences that 
our system of government is built to handle.
  But if judges misunderstand the judicial role, that damages the 
system itself.
  Our genius Founding Fathers set up three branches of government. Two 
of them get to make policy. Congress writes and passes laws, Presidents 
sign or veto them, and they are both accountable through frequent 
elections.
  The third branch responsibilities are completely and totally 
different. The courts exist not to rewrite laws but to apply them as 
written; to protect every American's right to the consistent, impartial 
rule of law. So the judiciary is insulated and independent.
  Republicans want to uphold the separation of powers the Framers left 
us. We want judges to honor their limited role in our Republic, stick 
to the text, rule impartially, and leave policymaking to policymakers. 
And then we want those judges to have total freedom from political 
threats and bullying.
  The political left has long held exactly the opposite. They believe 
the Framers got the judicial role wrong. They want the Supreme Court to 
be another forum where progressives can pursue policy outcomes and 
social changes.
  When liberals fail to convince 218 House Members and 60 Senators of a 
position, they want to cross the street and try to persuade five 
lawyers instead. They want judges going beyond the text, roaming 
through policy questions and moral judgements.
  So this is a huge difference. It has consequences for American 
families on issues from crime to border security, to religious liberty, 
and to the health of our institutions.
  So the key question for the Senate is this: Where does Judge Jackson 
come down? Where does her record land along this spectrum?

[[Page S1990]]

  Well, before the nominee was announced, President Biden gave a 
troubling hint. He said whomever he nominated to the Court would have 
to ``have an expansive view of the Constitution,'' acknowledge rights 
that our founding documents leave unsaid, and guarantee specific 
outcomes in certain categories of cases. The President promised he 
would only nominate a judicial activist for the job.
  So I could only support Judge Jackson if her record and testimony 
suggested President Biden actually made a mistake; that he had 
accidentally chosen a nominee who was not the kind of liberal activist 
that he promised.
  But, unfortunately, Judge Jackson's record and testimony suggests she 
is exactly the kind of liberal activist that the President promised. In 
case after case, when statutory text, standards, or guidelines pointed 
in one direction, Judge Jackson set them aside and charted a course for 
a different outcome.
  As a district court judge, the nominee heard the case of a liberal 
activist group challenging the Federal Government's authority to deport 
illegal immigrants. The statute in question plainly gave the Department 
of Homeland Security ``sole and unreviewable discretion'' to enforce 
the policy.
  But, apparently, it didn't lead to the policy outcome Judge Jackson 
wanted. So she ignored the statute, sided with the activists, and used 
a nationwide injunction--a nationwide injunction--to impose her new 
policymaking on the entire country.
  This was such a blatant act of judicial activism that even the 
liberal DC Circuit overturned her ruling.
  Or take another case involving a fentanyl trafficker. If you read the 
initial trial transcripts, Judge Jackson editorialized and expressed 
regret that the law forced her to punish him somewhat harshly. She 
literally apologized to this self-described ``kingpin'' that she wasn't 
allowed to go softer.
  But the next time she saw this criminal at a compassionate release 
hearing, Judge Jackson was ready to legislate from the bench to give 
him the sentence she wished that she could have given him before.
  Even after the judge explicitly acknowledged the First Step Act was 
not retroactive, she tortured its compassionate release provisions to 
make it retroactive anyway.
  The fentanyl kingpin will be coming soon to a neighborhood near you, 
thanks to Judge Jackson. Congressional intent was no match for Judge 
Jackson's intent.
  And then there is Judge Jackson's troubling record in a variety of 
cases involving child exploitation. On average, where these awful 
crimes are concerned, Judge Jackson's peers on the Federal bench fall 
within the stiff sentences Congress prefers a third of the time. But in 
11 cases, Judge Jackson didn't fall within the guidelines even once.
  At her confirmation hearing last month, the Judiciary Committee gave 
Judge Jackson a chance to clear up the activist track record. The 
nominee did not reassure.
  She repeatedly declined to answer why her discretion slanted so 
dramatically and consistently in the direction of going soft on crime. 
She just kept repeating that she had the discretion. Clearly, what 
Senators wanted to know is why she used the discretion the way she did.
  Judge Jackson did tip her hand on a few occasions. She acknowledged 
that her ignoring the guidelines amounted to ``making policy 
determinations.'' Another time she referenced her personal ``policy 
disagreements'' to explain her jurisprudence.
  So if you look at her sentencing transcripts, that is exactly right. 
Not only did the judge herself make frequent reference to her ``policy 
disagreement'' with the guidelines, but you can see the prosecutors in 
her courtroom knew they had to acknowledge her bias as well before 
arguing that she should finally get tough in their particular case. But 
always in vain, of course, because she never got tough once--not once--
in this area. But prosecutors knew what policy bias they were going to 
get when they showed up in Judge Jackson's courtroom.

  Of course, this is exactly, precisely what we do not want judges 
doing.
  Senate Republicans gave the judge many opportunities to reassure, but 
in many cases, the nominee just dug deeper. At one point, the judge 
even echoed an infamous quotation from one of the most famous judicial 
activists in American history, the archliberal Justice Brennan used to 
say the most important rule in constitutional law was the ``Rule of 
Five''--the ``Rule of Five.''
  And Judge Jackson told the Senate ``any time the Supreme Court has 
five votes, then they have a majority for whatever opinion they 
determine.''
  That is judicial activism summarized in one sentence.
  So to summarize, Judge Jackson's nomination started off on the wrong 
foot because President Biden had promised he would only nominate a 
judicial activist. I hoped that maybe the judge's record and testimony 
would persuade us otherwise. Maybe she would persuade the Senate that 
she understands the proper judicial role. Unfortunately, what happened 
was just the opposite.
  I opposed Judge Jackson's confirmation to her current post last year 
over these very same concerns, and this process has only made those 
concerns stronger.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The majority whip.