[Congressional Record Volume 168, Number 61 (Wednesday, April 6, 2022)]
[Senate]
[Pages S1996-S1999]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Ketanji Brown Jackson

  Mr. CRUZ. Mr. President, I rise today ahead of the Senate's vote on 
Judge Ketanji Brown Jackson to be a Justice on the U.S. Supreme Court. 
There are few responsibilities the Senate has that are more important 
than confirming judges and, in particular, confirming Justices on the 
Supreme Court of the United States.
  The Supreme Court is charged with the responsibility of defending and 
upholding the Constitution and the Bill of Rights. It is charged with 
the responsibility of upholding the rule of law and protecting your 
rights and my rights.
  Judge Jackson is someone that I have known personally for 30 years. 
She and I went to law school together. We were both on the law review 
together. Judge Jackson is someone who, on a personal level--she is 
smart; she is talented; she is charming. I have always liked Judge 
Jackson. But the responsibility given to the Senate is not to make an 
assessment on a personal level, but rather to assess a nominee's record 
and the kind of job they would do for the position to which they have 
been appointed.
  Now, many Democrats in this Chamber and their cheerleaders in the 
corporate media insist that we cannot examine Judge Jackson's record. 
They insist, in fact, that any scrutiny of her record, any difficult 
questions directed her way, and, certainly, any opposition to her 
nomination must, must, must be rooted in racism or sexism. Sadly, this 
is a common talking point for Democrats. Whenever anyone disagrees with 
them on substance, you must be a racist. If you are not a socialist, 
you are a racist. That is their standard go-to.
  And in this instance, all should acknowledge and should celebrate the 
historic milestone that would be having the first African-American 
woman serve as a Justice on the Supreme Court. Given our Nation's 
troubled history on race, that is a major important milestone. I would 
note, though, that the Democrats celebrating that fact--patting 
themselves on the back--there is more than a little irony in their 
celebrating that fact because the reason that we have not, to date, had 
an African-American woman on the Supreme Court--a major reason--is that 
the Democrats who are so proud of themselves filibustered a qualified 
African-American woman nominated to the U.S. Court of Appeals for the 
DC Circuit. Her name was Janice Rogers Brown. She was a justice on the 
California Supreme Court, and 20 years ago, President George W. Bush, a 
Republican, nominated her to the DC Circuit. And Senate Democrats 
realized that a qualified African-American woman on the DC Circuit was 
a real threat to go to the U.S. Supreme Court.
  Janice Rogers Brown is a conservative and a constitutionalist, and 
for Democrats, that was unacceptable. So Democrats filibustered Janice 
Rogers Brown. Chuck Schumer filibustered Janice Rogers Brown. Joe Biden 
filibustered Janice Rogers Brown. Dick Durbin filibustered Janice 
Rogers Brown. Pat Leahy filibustered Janice Rogers Brown. Dianne 
Feinstein filibustered Janice Rogers Brown.
  So now, all the Democrats who are celebrating putting the first 
African-American woman on the Supreme Court have themselves to thank 
for that because it could have happened 20 years ago.
  But in Senate Democrats' way of viewing things, if a Black woman or a 
Black man or a Hispanic woman or a Hispanic man dared to disagree with 
leftist orthodoxy, they do not count. Indeed, it was not just Janice 
Rogers Brown. Democrats also filibustered Miguel Estrada to the DC 
Circuit. Miguel Estrada, an advocate with superb credentials, was 
criticized, as the staff for Senator Ted Kennedy wrote at the time in 
internal memos that they could filibuster ``because he is Hispanic.''
  Mr. President, this was before your time and my time in this body.
  Here is what Ted Kennedy's staff told them:

       Identify [Miguel Estrada] as especially dangerous . . . 
     because he is Latino.

  That is racism--which the Democrats put in writing. If you are Black, 
if you are Hispanic, we will target you, we will filibuster you, we 
will block you, and that is what they did. For that matter, that is 
what Democrats have done for three decades now to Justice Clarence 
Thomas, one of the greatest Justices to ever serve on the U.S. Supreme 
Court. And yet, in Democrats' minds, he is not a Black man because he 
dares disagree with their leftist ideology. It is wrong; it is racist; 
it is cynical; and it is offensive.

[[Page S1997]]

  What we should be doing--what every Senator should be doing--is 
examining Judge Ketanji Brown Jackson's record, her actual record. If 
you look at her substantive record, it is far out of the mainstream. It 
is an extreme record. If you look at her record, I believe it 
demonstrates that Judge Jackson, if she is confirmed, will be the 
single most liberal Supreme Court Justice ever to serve on the Supreme 
Court. I believe she will be to the left of Justice Sotomayor; she will 
be to the left of Justice Kagan; and she will be way, way, way to the 
left of Justice Stephen Breyer, the Justice she would be replacing.
  What does that mean as a practical matter, left and right? Why do the 
American people care about the Supreme Court? They care because they 
care about their rights. As a practical matter, what it means--I 
believe the odds are nearly 100 percent that Judge Jackson would vote 
to overturn the case of Heller v. District of Columbia.
  What is that case? It is the landmark case that upholds the Second 
Amendment right to keep and bear arms, a fundamental protection for all 
of us. That case was decided 5 to 4. Judge Jackson, I believe, is a 
vote to overturn that case to take away our Second Amendment rights, 
and that means every Senator who votes to confirm her is voting to take 
away the Second Amendment rights of Americans.
  Judge Jackson, I believe the odds are nearly 100 percent that she 
would vote to overturn the Citizens United case. What is Citizens 
United? It is a landmark case that protects our right to free speech, 
our right to speak in the political process to support candidates, to 
oppose candidates, to express our views, and participate in democracy. 
Citizens United was 5 to 4, one vote away from being taken away.

  By the way, in the Citizens United case, the Obama Justice Department 
argued that the Federal Government has the power to ban books. The case 
was 5 to 4. There were four Justices willing to go there. Judge 
Jackson, I believe, would support the assertions of government power to 
silence you, to silence me, to silence the men and women we represent.
  When it comes to religious liberty, I believe Judge Jackson will vote 
consistently over and over again against the religious liberty of 
Americans, against our right to live according to our faith, according 
to our conscience. One of the most precious rights, the very first 
right protected in the first clause of the First Amendment of the Bill 
of Rights--that is what our Framers thought about it--is that without 
the right to seek out and worship the Lord God Almighty with all of 
your heart, mind, and soul, no other rights matter. I believe she will 
consistently vote to undermine that right and, in particular, one of 
the applications of that right, the context of school choice.
  School choice is the civil rights issue of the 21st century. If you 
care about civil rights, if you care about advancement and opportunity 
for young kids, for young African-American kids, for young Hispanic 
kids, there is nothing, nothing, nothing that matters more than school 
choice. And yet, the Supreme Court, in the case of Zelman v. Simmons-
Harris, upheld Ohio school choice program by one vote, 5 to 4. I 
believe Judge Jackson would vote to overturn Zelman v. Simmons-Harris 
and vote to strike down school choice programs across the country.
  You know, one of the problems with politics today is Members of this 
body like to avoid accountability for what they are doing. But everyone 
in this body is on notice that this is a Justice who will vote to take 
away our free speech rights, vote to take away our religious liberty 
rights, vote to take away our Second Amendment. And that means every 
Senator that votes for her cannot avoid responsibility for those 
lawless outcomes.
  When it comes to abortion, Judge Jackson's record is extreme. I 
believe she would vote to strike down every single restriction across 
the country on abortion. I believe she would vote to strike down 
prohibitions on Federal partial-birth abortion, a truly horrific 
practice opposed by the vast majority of Americans. The Supreme Court 
upheld the Federal ban on partial-birth abortion by a vote of 5 to 4--
one vote away. Judge Jackson, based on her record of being a radical 
advocate for abortion, will consistently vote to strike down reasonable 
restrictions.
  All of those are extreme positions. But if you want to understand 
just how extreme, there was one portion of the confirmation hearing 
that I thought spoke volumes: when Senator Marcia Blackburn asked Judge 
Jackson, ``What is a woman?''
  ``What is a woman'' didn't used to be a trick question. One hundred 
fifteen men and women have served on the Supreme Court, and all 115 of 
them would have no difficulty whatsoever answering the question, ``What 
is a woman''--not so Judge Jackson. Judge Jackson's response: I can't 
define a woman.
  ``I am not a biologist'' was her defense.
  Now, does that really mean that Judge Jackson doesn't know what a 
woman is? Of course not. What it does show is her sensibility that she 
is completely in line with the radical left that wants to redefine what 
a woman is and erase it from the dictionary. You know, yesterday, a 
reporter stopped me. A reporter from a left-leaning publication said he 
was asking every Senate Republican on the Judiciary Committee the 
following question: What is a woman?
  You could tell from the expression on his face he thought this was a 
great ``gotcha'' question.
  I looked at him and said: An adult female human.
  He looked at me astonished, and he said: Did you look it up? He said, 
That is actually the dictionary definition.
  I said, No. I just speak English. If you would like another 
definition, how about this one: A Homo sapien with two X chromosomes. 
For all of recorded history, people have known what a woman is, but 
Judge Jackson is such a fellow traveler with the radical left that she 
cannot acknowledge common sense.
  There is a reason the radical left groups in this country pressured 
the Biden White House to nominate Judge Jackson because she was the 
most extreme of the nominees being considered. There is a reason they 
pledged billions of dollars to support her confirmation because she is 
the most extreme of the nominees being considered.
  Let me give an example of just how extreme. In the written questions, 
I submitted a question to Judge Jackson that says:

       The theory that humans possess inherent or inalienable 
     rights is reflected in the Declaration of Independence, which 
     states:
       We hold these truths to be self-evident, that all men are 
     created equal, that they are endowed by their Creator with 
     certain unalienable rights, that among these are life, 
     liberty, and the pursuit of happiness.

  Do you hold a position on whether individuals possess natural rights, 
yes or no?
  Judge Jackson answered--this is in writing:

       I do not hold a position on whether individuals possess 
     natural rights.

  That is a radical broad statement. Our country was founded on the 
quote I just read from the Declaration of Independence, with those 
words that Thomas Jefferson penned.
  We declared our independence from Great Britain. We declared that we 
were our own Nation. We started a revolutionary war. We drafted a 
Constitution based on the proposition ``We hold these truths to be 
self-evident.'' They are not evident to Judge Jackson.
  She doesn't hold a position that ``all men are created equal, that 
they are endowed by their Creator with certain unalienable rights, that 
among these are Life, Liberty, and the pursuit of Happiness.'' Judge 
Jackson says she has no position on whether you have a right to life. 
She has no position over whether you have a right to liberty. She has 
no position on whether you have a right to the pursuit of happiness.
  If you are a modern leftist, if you are a socialist who wants the 
government to control every aspect of your life, every aspect of your 
freedom, then a judge who has no view on whether we have natural rights 
is exactly the kind of judge you want.
  By the way, to understand how radical her opinion is, you can look at 
the Make the Road decision. This is a decision in her court, in the 
district court, that was challenging the Trump Department of Homeland 
Security deporting people illegally in this country.
  The statute under which the Secretary was removing illegal aliens 
explicitly gave the Secretary discretion

[[Page S1998]]

and said that discretion is unreviewable in Federal courts. It was a 
clear and explicit authorization and a removal of the authority of 
Federal courts to second-guess the policy determinations. That didn't 
stop Judge Jackson at all. She ignored the plain text of the statute. 
She issued a nationwide injunction to stop the Federal Government from 
removing illegal aliens. Her decision was so extreme that, on appeal, 
it was reversed by the Federal Court of Appeals for the DC Circuit 
unanimously. This is a left-leaning court, with a majority of Democrat 
appointments, and unanimously, the DC Circuit reversed her because she 
ignored the plain language of the statute.
  But there is no area that is more extreme than Judge Jackson's record 
on crime. This was the central focus of the confirmation hearing, and 
her record is far, far, far out of step with the mainstream.
  When it comes to crime generally, nationally, the average for Federal 
judges sentencing criminals is 45.1 months. That is the average 
sentence nationally. Judge Jackson's average is 29.9 months--33.8 
percent less than the national average. If you are a criminal, you want 
to be in Judge Jackson's court because you are going to get a sentence 
more than a third less than you will get in the average district court. 
That is far out of the mainstream.
  As you know, there was considerable focus not just on her leniency on 
criminals, her leniency on violent criminals, her leniency on sexual 
predators, her leniency on drug dealers, but there was a particular 
focus on her very disturbing record as it concerns child pornography.
  When it comes to child sex offenders, it is a truly grotesque problem 
we face in this country. I spent a number of years in law enforcement. 
As the solicitor general of Texas, I worked on many criminal cases. 
There were no cases that were more disturbing to me personally than the 
cases where people abused kids, where they hurt kids, the evil, sick 
predators who carry out unspeakable acts on little children.
  I have to say, when I first heard that there was a concern about her 
record on child pornography, I thought, come on now, that can't 
possibly be the case. Who is soft on child pornography? That didn't 
sound plausible. Then I examined her actual record. I examined cases. 
She had roughly a dozen child pornography cases as a district judge. In 
every single case where she had discretion, 100 percent of the time 
where she had discretion, she sentenced the defendant way, way, way 
below the Federal sentencing guidelines and way, way, way below what 
the prosecutors recommended, the very liberal DC prosecutors.
  Now, when this issue was first raised, the Democrats responded: Well, 
Federal judges across the country sentence defendants below the 
sentencing guidelines, especially concerning child pornography. And 
that claim, insofar as it goes, is true. But her record is not simply 
sentencing below the guidelines; it is sentencing way, way, way below 
prosecutors.
  Then we examined, how does she sentence in child pornography cases 
compared to other Federal judges? Let's compare apples to apples. When 
it comes to possession of child pornography, the national average for 
all Federal judges is 68 months, a little over 5 years. It is a serious 
crime with a serious prison sentence. Judge Jackson's average is 29.2 
months. Now, note, the national average sentences child porn offenders 
to a longer sentence than your typical crime. Judge Jackson sentences 
child porn defendants to a shorter sentence than your typical crime. 
When it concerns possession of child pornography, it is a 57-percent 
difference.
  But it is even more disturbing in a separate category, and that is 
distribution of child pornography. Distribution of child pornography, 
the national average is 135 months--11 years--a long time for a 
horrific crime. Judge Jackson's average sentence was 71.9 months. That 
is a full 47 percent less than the national average.
  But it is even more egregious than that when you understand that with 
distribution of child pornography, Congress has passed into law a 
minimum sentence of 60 months. So Federal judges have no discretion to 
sentence below 60 months. That is the bare minimum. When you look at 
that, you realize that judges across the country--and we are not 
talking just Republican judges; we are talking Democrat judges: Bill 
Clinton judges, Barack Obama judges, Joe Biden judges--they sentence, 
on average, 75 months longer than the minimum. Judge Jackson sentences 
on average 11.9 months longer. It is a consistent and disturbing 
pattern.
  Now, why does she do this? Well, when you sit down and read the 
transcripts of her sentencing hearings, which I have done, it is 
disturbing stuff. When you read the transcripts, she is very explicit 
that she has clear policy concerns.
  Under the sentencing guidelines, there is a stricter sentence for 
child pornography involving very young children. She refuses to apply 
that. There is a sentencing enhancement for child pornography involving 
sadomasochistic abuse of children, children being tortured. She refuses 
to apply that.
  If you look at what she has said, she said to the prosecutors--this 
is a quote from Judge Jackson at a sentencing hearing in United States 
v. Cane--she said, ``[You are] obviously aware''--she is talking to the 
prosecutors--``[You are] obviously aware of my policy disagreement. I 
just think it's very, very hard to deal with number of images as a 
significant aggravator.''
  Now, what does this mean? There are two other aggravators for child 
pornography. One is use of a computer, and the other is number of 
images. In case after case, she refuses to apply them.
  On use of a computer, she says: Well, at the time the guidelines were 
passed, this crime was primarily carried out through the mail. Now, 
everybody does it through a computer, so I am not going to use an 
enhancement for a computer.
  Now, I don't agree with her on that, but I understand that point. 
That point is not out of the mainstream. But there is another 
aggravator, an aggravator up to five levels for the number of images, 
and over and over again, she says she won't apply the number of images.
  I asked at her hearing. I said: So you are saying that somebody who 
has videos of a thousand children being sexually abused and somebody 
who has an image of one child being abused--that those are the same 
crimes, that you shouldn't punish the one offender more than the other?
  She refused to answer that question.
  That is extreme. It is radical, and that is not the law. Her 
disagreement--I would note, I believe I have 25 minutes, and Senator 
Thune extended--had a UC to change the time.
  The ACTING PRESIDENT pro tempore. The Senator has used the 25 minutes 
allotted.
  Mr. CRUZ. When it comes to Judge Jackson's record, it is far out of 
the mainstream. This is a judge who, as a Justice--the odds are 100 
percent, I believe, she will vote to strike down the death penalty 
nationwide, and she will rule repeatedly to release violent criminals, 
to release murderers, to release sex offenders. This is a pattern that 
is highly, highly disturbing.
  Our Democratic colleagues like to say they don't support abolishing 
the police. When you nominate and confirm judges who let criminals out 
of jail, you have the responsibility for the consequences of your 
actions.
  Judge Jackson's record is extreme, and I urge my colleagues to vote 
against her confirmation.
  The PRESIDING OFFICER (Ms. Duckworth). The Senator from Michigan.
  Ms. STABENOW. Madam President, first let me say, after listening to 
my colleague from Texas, if half of what he said I thought was 
accurate, I would not be supporting Judge Jackson. Fortunately, it is 
not. So I rise today to urge the Senate to confirm Judge Ketanji Brown 
Jackson to the United States Supreme Court. I am so excited about her 
nomination.
  Her nomination, we know, is historic--not just because Judge Jackson 
is eminently qualified for the position. Both Democrats and Republicans 
agree. In fact, based on her broad range of experience, you could argue 
she is more qualified to serve on the Supreme Court than any sitting 
judge. It is not just historic because of the dignified and honorable 
way she has conducted herself during this entire nomination process. If 
you think your last job

[[Page S1999]]

interview was rough, take a look at hers. Judge Jackson showed 
incredible grace during more than 20 hours of questioning that at times 
was incredibly hostile and rude. I would challenge any Member of this 
Chamber to endure that level of pressure without cracking. I am quite 
certain I couldn't do it. She is eminently qualified, and we have seen 
her judicial temperament up close.
  What really makes Judge Jackson's nomination historic is this number: 
115. One hundred and fifteen. That is how many U.S. Supreme Court 
Justices have served in our Nation's entire history--115. Out of those 
115 Justices, 108 have been White males. Just think about it for a 
moment. In other words, nearly 94 percent of the Supreme Court Justices 
in our Nation's history have been White men. That is a very exclusive 
club.
  And like many very exclusive clubs, it has tended to leave a lot of 
folks out in the cold. In a country as magnificently diverse as ours, 
that is simply not right, and I am so grateful that President Biden 
understands this.
  The decisions made by the U.S. Supreme Court touch every single 
American. What does the right to vote truly mean under our 
Constitution? Freedom of religion; our freedom of speech. How are we as 
consumers or workers treated under our Constitution? Can a public 
school district force White students to attend one school while sending 
Black students to another? Can that same public school district refuse 
to educate students with disabilities? Can a couple be prevented from 
marrying and spending the rest of their lives caring for one another 
because they happen to be gay? And can a State override a woman's right 
to privacy and force her to continue a pregnancy that puts her own 
health and future at risk?
  These are some of the types of decisions made by the U.S. Supreme 
Court every day. And when the Supreme Court doesn't look like America, 
it means that its decisions are less likely to take into account the 
lives and the needs of all Americans.
  The late Justice Ruth Bader Ginsburg had a straightforward answer 
when she was asked how many women should serve on the U.S. Supreme 
Court. How many was enough? ``Nine,'' she would say.
  Well, we are not quite there yet--but four? I would say that is a 
pretty good start. And a Black woman Justice? It is about time. It is 
past time.
  You may have seen a wonderful photo making the rounds. It is of Judge 
Jackson's 17-year-old daughter Leila. It was from the first day of the 
nomination hearing. Leila is wearing a beautiful lavender suit and 
sitting behind her mom.
  The expression on her face is absolutely priceless. She is looking at 
her mom with such admiration and pride.
  Well, Leila isn't alone. Millions of young Black girls and their moms 
and their grandmas are looking at Judge Jackson with that same pride 
and admiration. They have never had someone who looks like them serving 
on our Nation's highest Court.
  And how many of these young girls will see this incredibly 
accomplished woman and think, ``Hey, that could be me''? I hope they 
all do.
  I will be honored to support Judge Jackson's confirmation. I am 
excited. I am proud of her. And I urge my colleagues to do the same. It 
is past time.
  I yield the floor.

                          ____________________