[Congressional Record Volume 168, Number 61 (Wednesday, April 6, 2022)]
[Senate]
[Pages S1994-S1995]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Ketanji Brown Jackson

  Mr. KAINE. Mr. President, I proudly rise to speak about the 
nomination of Judge Ketanji Brown Jackson to be an Associate Justice of 
the U.S. Supreme Court.
  When I began law school in the fall of 1979, the only woman Justice 
at the Supreme Court was a white marble statue on the steps. There were 
no women members of the Court. There had never been women members of 
the Court.
  The motto engraved over the Court's entrance, ``Equal Justice Under 
Law,'' sounded great, but it also rang hollow for the more than half of 
the U.S. population that had never seen themselves represented on the 
U.S. Supreme Court.
  And it was more than just the absence of women on the Court. In 1868, 
the 14th Amendment to the Constitution was adopted in core memorable 
phrase guaranteeing to all persons the equal protection of the law. But 
the Court, for more than 100 years, refused to extend equal protection 
to women.
  In one of the first cases testing the meaning of the phrase ``equal 
protection of the law to all persons,'' the Supreme Court considered an 
Illinois State law restricting the practice of law to men only. A 
dynamic, young, feminist activist, Myra Bradwell, passed the Illinois 
bar exam and applied for a law license to practice law in Illinois. She 
was turned down because she was a woman. She appealed her case to the 
Illinois Supreme Court, and they turned her down because she was a 
woman. And then she came to the U.S. Supreme Court and said: We have 
just changed the Constitution to guarantee equal protection of the law 
to all persons, surely, you cannot turn me down in my quest to practice 
law after I have passed the Illinois bar exam.
  The Supreme Court of the United States, in 1873, by a vote of 8 to 1, 
ruled that she was not entitled to an equal right to practice the 
profession of her choosing.
  Let me read you a key part of the decision in that case:

       The paramount destiny and mission of women are to fulfill 
     the noble and benign office of wife and mother. This is the 
     law of the Creator.

  So a wife and mother can't be a lawyer? So every woman must be a wife 
and mother? That is what the Supreme Court determined in analyzing the 
simple phrase ``all persons are entitled to equal protection of the 
law.''
  Here is a great trivia question: When did the Supreme Court finally 
decide that equal protection of the law applied to women? 1971. It took 
103 years after the 14th Amendment was adopted for the Supreme Court to 
say: Wait a minute, equal protection of the law to all persons, that 
means women.
  In the case of Reed v. Reed, the Court ruled that a State statute 
providing that males must be preferred to females in the administration 
of estates--it was an estate administration case--the Court ruled, wait 
a minute, that violates women's rights to equal protection. Who was the 
lawyer in that case? A dynamic, young civil rights lawyer with the ACLU 
named Ruth Bader Ginsburg.

  So within my career as a civil rights attorney, from when I started 
law school in 1979 to today--43 years later--I have seen great change 
in the law's treatment of women and in their representation on the U.S. 
Supreme Court.
  The nomination of Judge Ketanji Brown Jackson will make history. She 
will be the first African-American woman on the Court. And she will 
move a Court that had never had a woman member when I started law 
school to a Court where four of the nine members are women.
  What powerful evidence of the capacity we have as a nation to come 
closer and closer to the equality ideal that was articulated as our 
moral North Star in the opening phrase of the Declaration of 
Independence drafted by a Virginian in 1776.
  So I celebrate the history-making nature of this appointment, but it 
is not the reason for my support.
  I support Judge Jackson's nomination because of her stellar academic 
credentials, her prestigious judicial clerkships, her dedicated service 
as an attorney and member of the U.S. Sentencing Commission, her well-
respected tenure as a Federal trial and appellate judge, and the 
multiple attestations that she has received attributing to her fairness 
and to her character.
  In particular--in particular--I think that her successful 
confirmation as a Justice will add two critical skill sets to this 
nine-member collegial body: first, that she is a public defender; and, 
second, that she has been a trial judge.
  That she was a public defender--so much of the Court's docket deals 
with issues that are at the heart of the American criminal justice 
system. There are currently members of the Court--Justice Sotomayor, 
Justice Alito--who had experience as prosecutors in both the State and 
Federal courts before they began their service in the judicial branch. 
That experience as prosecutor is really important experience, and it is 
an important expertise to have on the Supreme Court.
  But a Justice Ketanji Brown Jackson will be the first public defender 
ever to sit on the Court. And for a Court of nine to share perspectives 
and grapple with resolution of questions involving the criminal justice 
system, for that Court only to have people who prosecuted cases and not 
have people who have defended, in particular, the most indigent 
criminal defendants--it is a Court that doesn't have the balanced 360-
degree perspective that we would want in these important matters. So 
the fact that she served honorably as a Federal public defender, in my 
view, is a strong trait for her, but it is even a better trait if you 
think about what we would need in a nine-member Supreme Court.
  Second, she has been a trial judge, a Federal district court judge in 
the district court for the District of Columbia. And that is really, 
really important. There is only one other member of the Court now who 
was a trial judge, and that is Justice Sotomayor. Some of the members 
of the Court, as far as I know--I can find no evidence--not only were 
they not trial judges, some of them I am not sure ever tried cases.
  What does it mean to have a trial judge on the Court? Well, again, 
think about the docket of the Supreme Court. So much of the docket of 
the Supreme Court is ruling on questions and controversies, whose 
ultimate goal is to make the Nation's trials--civil and criminal 
trials--more fair: admissibility of evidence, sentencing standards, 
definitions of police misconduct that could either gain or shed 
sovereignty immunity in a trial going on in a trial court, how to 
impanel jurors, how to instruct jurors, when to strike a juror if there 
is evidence that the juror may have a bias or prejudice. These are all 
cases that come before the Supreme Court all the time. And these kinds 
of cases, it is particularly important to have a Court that is well-
represented by people who have actually been in the courtroom and done 
it.
  What trial judges have to do is they have to figure out how to 
instruct and impanel jurors and deal with the juror who may have a bias 
question. They have to rule on evidentiary objections in a split 
second; dispose of discovery disputes; rule on dispositive motions like 
motions to dismiss or summary judgment motions; in bench trials, 
actually render judgments, which usually involves credibility 
determinations among competing witnesses.
  The judges in the Federal system are those with the power of 
sentencing, the most difficult power of all. If you have not been a 
trial lawyer or a trial judge, you might underestimate how difficult 
and challenging each of those tasks are. But if you have had the 
experience of being a trial lawyer or trial judge, you understand how 
important they are.
  I asked Judge Jackson as I interviewed her, tell me how you think 
that being a trial judge might help you on the Court. She said, so much 
of our opinions are essentially instructions to State and Federal trial 
courts, here is how to conduct a fair trial. I think my experience will 
enable me to write opinions that are more workable; that are more 
understandable; that are more practical; that are more likely to lead 
to a result that is fair to the parties, but also one that will 
increase the

[[Page S1995]]

respect for the decision making in courts themselves.
  When I was Governor of Virginia, I did not have the power to put 
judges on the bench, except in rare instances. In the Virginia State 
system, I wouldn't even nominate judges. The legislature would choose 
the judges, and the Governor had no role, except--except--when the 
legislature would deadlock. If the house and senate couldn't agree on 
filling a position, then the Governor got to put in a judge or a 
justice until the legislature came back next year, and then they would 
have to vote on whether to ratify what the Governor had done.
  Three times, when I was Governor, my two Republican houses deadlocked 
on an appellate judge: one on the court of appeals and two on the 
Virginia Supreme Court. So I had this opportunity. As somebody who 
practiced civil rights law for 17 years, as somebody who was married to 
a juvenile court judge, I had the opportunity to consider and then 
nominate people to be appellate judges.
  I decided pretty quickly, as I analyzed who should be appellate 
judges--and I followed this rule in all three of my opportunities--that 
I would appoint a great trial judge. In each of the three instances, I 
appointed a great trial judge because I knew that that great trial 
judge would be able to sit on an appellate court and render rulings 
that weren't sort of philosopher, king-or-queen rulings that might 
sound good in a law review article or in a panel discussion, but they 
could render rulings that would be instantaneously understood in 
courtrooms all across the Commonwealth and be able to be implemented by 
the other trial judges, who were doing their best every day to conduct 
fair trials.
  So that is why I think the second factor that Judge Brown Jackson was 
a district court judge handling trials, multiple trials and motions 
every day, will put her in such good company as she joins Justice 
Sotomayor as the only other member with that experience.
  I will conclude and just say a Justice Ketanji Brown Jackson will add 
depth and perspective to a Court that needs it. As we near the 150th 
anniversary of Myra Bradwell's quixotic case, the confirmation of 
Justice Ketanji Brown Jackson will make the statue of justice and the 
engraved phrase ``Equal Justice Under Law'' more accurate reflections 
of our Nation's highest Court.
  With that, Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I ask unanimous consent that the following 
Senators be permitted to speak prior to the scheduled vote: myself for 
up to 15 minutes, Senator Cruz for up to 25 minutes, and Senator 
Stabenow for up to 10 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.