[Congressional Record Volume 168, Number 61 (Wednesday, April 6, 2022)]
[Senate]
[Pages S2021-S2024]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Nomination of Ketanji Brown Jackson

  Mr. LEE. Madam President, today, I rise to share my concerns with the 
nomination of Judge Ketanji Brown Jackson to serve as an Associate 
Justice on the U.S. Supreme Court.
  Let me begin my remarks by noting that I have enjoyed getting to know 
Judge Jackson. My visits with her and conversations with her in the 
committee and otherwise and also my interaction with Judge Jackson's 
family have all reinforced what I know of her generally, which is that 
she is a good person, a noble citizen, and someone who has earned very 
impressive academic and professional credentials.
  After graduating from Harvard Law School, she ended up clerking at 
all three levels of the Federal judiciary and worked at a number of 
positions over the years as a lawyer. She has now, as a judge, served 
as a Federal district judge, which is a trial court position, and has 
served on the U.S. Court of Appeals for the DC Circuit, which is an 
appellate court position. If confirmed to the U.S. Supreme Court, she 
will have served at all three levels of the Federal judiciary, which is 
itself an impressive accomplishment and one that I think would benefit 
the Supreme Court. Any time they have the insight of someone who has 
served in that many roles, it can be helpful.
  She is a good person in many respects and comes with impressive 
qualifications academically and professionally, but I do have concerns, 
and those concerns are what I want to turn to now.
  Many of them date back to efforts by groups like Demand Justice to 
shame and intimidate Judge Jackson's former boss and the Justice whom 
she would be replacing if confirmed to this position, Justice Breyer, 
into retiring by paying for a billboard mounted on a truck to drive 
around the Supreme Court of the United States, bearing the slogan 
``Retire, Breyer.'' These same groups are now the same groups that are 
spending money--millions of dollars--to advocate for Judge Jackson's 
speedy confirmation. Then there was the shameless leaking of Justice

[[Page S2022]]

Breyer's decision to retire well before he was ready to announce it.
  Now we find ourselves in the midst of a needlessly rushed nomination 
process, where liberal dark money groups are pressuring Senate 
Democrats to confirm their preferred Supreme Court nominee months--many 
months--in advance of when she could actually be seated on the Court.
  Because of this false sense of urgency being presented by the radical 
left, we have also seen the chairman of the Senate Judiciary Committee 
refuse to accommodate reasonable and commonsense document requests from 
Republican members of that committee. The same members of the committee 
who demanded more time to review and interrogate a nominee about his 
high school yearbook are now feigning outrage and insisting that it is 
somehow unacceptable that we should demand more time to review a 
nominee's own judicial record. The contrast is significant.
  Let me provide some additional context to illustrate how outrageous 
that aspect of this situation is.
  My Republican colleagues and I have been very keen to hear from Judge 
Jackson about her judicial philosophy. This is something that is an 
essential part of assessing any judicial nominee's fitness for office. 
The higher level the nomination, the more important it is to understand 
that. Nowhere is this more important than when the nominee is someone 
who has been nominated to serve on the highest Court in the land, the 
Supreme Court of the United States.
  Judge Jackson, significantly, has refused to describe her judicial 
philosophy or even to agree that she has one. Instead, she has told us 
that she has a methodology, but this methodology--neutrally applying 
the law to all relevant facts--is nothing more than a simple 
statement--a simple rote recitation--of what judges do, not an 
explanation of how they do it.
  When Republicans on the Judiciary Committee pressed Judge Jackson for 
more information about her judicial philosophy or any statement about 
it, Chairman Durbin and the nominee both directed us to her judicial 
record. So we asked Judge Jackson about her record. We inquired about 
questionable sentences in child pornography cases, sentences that 
appeared to constitute a pattern and practice of giving inexplicably 
light sentences to criminals--people who are caught trafficking in what 
can only be described as the products of the commercialization of child 
sex torture. These are vile offenses. Her response was that we simply 
couldn't understand her sentencing decisions. We couldn't understand 
them just by looking only at the public record because we didn't see 
what she saw. We didn't have the information that she had.
  Now, Chairman Durbin told us that we can discern Judge Jackson's 
judicial philosophy from her judicial record. Judge Jackson told us 
that we can't understand her judicial record without all of the 
supporting documents that informed her decisions. So we asked for those 
supporting documents, which included presentence reports from those 
cases involving child pornography possession. Chairman Durbin's 
response? Not on my watch--his words, not mine. Democrats dismissed our 
requests as baseless attacks on Judge Jackson herself.
  What if we said, ``That isn't true''? Do they contest that Judge 
Jackson presided over those cases? That she, in fact, imposed those 
sentences? Do they contest that she imposed those sentences or that 
Judge Jackson's sentences departed from both the sentencing guideline 
ranges and from the requests of the prosecutors? These are simply the 
facts in the record, and we have questions about them, legitimate 
questions.
  So, if this is a baseless attack to a nominee's factual record, what 
exactly is the purpose and scope of the Senate's duty to offer our 
advice and consent with regard to such nominations?
  After we pushed back, Chairman Durbin based his continued refusal on 
the sensitive nature of the documents at issue. Now, I agree completely 
that presentence reports are highly sensitive. They contain sensitive 
information in them, and this body of written work product deals with 
necessarily sensitive materials on a regular basis. The U.S. Senate 
deals with sensitive records, so the fact that these are sensitive 
documents doesn't mean that we can't handle them. In fact, we already 
have security measures in place to protect that kind of information. We 
even have specified rooms where we can and routinely do review 
sensitive information. So hiding behind a glib quote about protecting 
children at the expense of thousands upon thousands of actual child 
victims is shameful.
  The chairman says that parents are living in fear that presentence 
reports that discuss harm to their children would be confidentially 
shared with this body for the limited purpose of allowing us to do our 
job, to review Judge Jackson's record. I think it is more likely--far 
more likely, in fact--that parents of sexually exploited children live 
in fear that their children may be victimized again when one of Judge 
Jackson's defendants gets released from prison after an unconscionably, 
indefensibly short sentence.
  To make matters even worse, not only have Democrats refused 
Republican requests for more information on Judge Jackson's judicial 
record, but they have withheld information from me and my Republican 
colleagues on the Judiciary Committee. I am referring in this context 
to a chart referenced accidentally by a Democratic member of the 
Judiciary Committee that summarized probation office sentencing 
recommendations gleaned from the presentence reports--the same 
presentence reports that we have requested and that we have not been 
allowed to see.
  Now, I have to admit I am still unclear as to how the majority 
obtained this information. Chairman Durbin wrote to Republicans that 
the chart was given to him by the White House, which, in turn, obtained 
the chart from Judge Jackson's chambers. However, when I and every 
other Republican member on the Senate Judiciary Committee wrote to 
Judge Jackson to request further information, she replied that she had 
no way of obtaining the requested information because it ``is the 
property of the U.S. District Court for the District of Columbia, and I 
am no longer a member of that court.'' How, then, did her chambers 
obtain the information that was provided to the White House and then 
provided to Senate Democrats which came from the presentence reports?
  Do the Democrats have something to hide--something that they can 
avoid having to reveal and have discussed by rushing Judge Jackson's 
nomination? What might it be? It may be the one thing Judge Jackson 
steadfastly refused to share--her judicial philosophy.
  Despite my Democratic colleagues' pretending that judicial philosophy 
is some arcane and esoteric legal concept that doesn't matter, 
Americans everywhere instinctively understand its importance. While 
they may not all use the same terminology, Americans know that 
justice--as we imagine Lady Justice always depicted as being blind or 
blindfolded--is to ensure equal justice under the law for everyone 
regardless of their race, their religion, their background, their 
creed. That kind of justice matters to every petitioner, every 
respondent, every plaintiff, and every defendant who comes before our 
courts. That kind of justice can be ensured only by judges adhering to 
a guiding principle by which they bring clarity out of often unclear 
language.
  The Supreme Court is not a representative body; Congress is. Justices 
are not accountable to the people once they are confirmed, but we are. 
That is why we have heard from virtually every nominee that their 
personal perspectives on X, Y, and Z don't matter--because they are 
fully committed to applying the law without their own personal 
perspectives getting in the way. That is exactly right and could not 
more fully demonstrated the importance of judicial philosophy. When a 
Justice is swayed by her natural inclinations or fails to get to a 
neutral place when deciding a particular case, adherence to her 
judicial philosophy keeps her from violating that commitment. That 
guiding principle constitute a judge's judicial philosophy.

  Now, look, judicial philosophy is not a methodology or, as I said 
earlier when Judge Jackson described her judicial methodology as simply 
applying the law to the facts, that is not describing her unique 
approach to judicial decision making. She was simply reciting the 
definition of what a judge does.

[[Page S2023]]

  Every judge applies the law to the facts. That is literally what it 
means to be a judge. The question is, How? Because statutory and 
constitutional language is often unclear, whether on its face or as 
applied in a particular context. What matters is how a judge resolves 
that ambiguity. Laws are not self-interpreting, and interpretation is 
rarely obvious, especially in the difficult cases that tend uniquely to 
come before the Supreme Court of the United States on the merits. You 
have to have a guiding principle by which to bring clarity out of 
unclear language. That is your judicial philosophy.
  So a judge without a judicial philosophy is no more useful than a 
pastor without a theology. It is just someone making it up as they go 
along, dressing up their opinions as holy writ. A nominee who claims to 
have no judicial philosophy is either being misleading or is perhaps 
unsuited to a lifetime appointment on the Federal bench, let alone on 
the highest Court in the land. Yet the vast majority of President 
Biden's judicial nominees have repeatedly asserted that they simply 
don't have one; that they lack a judicial philosophy. This sudden and 
uniform shift suddenly and strongly suggests that they are being 
coached to give precisely that inexplicable, indefensible answer.
  And yet every judge does, in fact, have a judicial philosophy. 
Whether they acknowledge it or not, whether it is easily definable by a 
few words or a few sentences, they do have one. When a nominee refuses 
to describe her judicial philosophy, the likely explanation is simply 
that she does have one; she just knows that neither the public nor this 
body would approve of it. In that case, we are left to infer what her 
judicial philosophy is from her record, which is precisely what 
Chairman Durbin and Judge Jackson suggested that we do. Except, as I 
have already pointed out, they don't want us to have the whole record, 
and they are unreasonably denying our access to the whole record.
  So, again, Judge Jackson refuses to tell us what her judicial 
philosophy is. Senator Durbin says we can find it in her record; Judge 
Jackson says we can't fully understand her record without all the 
supporting documents, but neither of them will let us see these 
documents. If this makes you nervous, that is because it should.
  So why does this matter? Well, we got to see this firsthand 2 weeks 
ago. While Judge Jackson insisted that she didn't have a judicial 
philosophy, she actually did give us a small peek into it. In response 
to a question from Senator Durbin about the sentencing guidelines and 
child pornography offenders, she acknowledged Congress implemented a 
statutory scheme with specific directives to courts to help them 
determine how they are to sentence defendants found guilty of 
possessing or distributing child sexual assault material. But then she 
admitted that she and other judges have made a habit of using the 
discretion they are given in applying the sentencing guidelines that 
disregard or discount the parts that, in their view, no longer make 
sense, saying:

       Courts are adjusting their sentences in order to account 
     for the changed circumstances.

  With all due respect, that is not her or any other judge's decision 
to make. Courts don't change the law; Congress changes the law. If 
Congress one day decides that receiving child sexual assault material 
electronically is somehow less offensive than receiving it through the 
mail, then we will change the law.
  Judge Jackson insists that she was statutorily required to consider 
the factors--the very factors she relied upon--to depart from the 
guidelines, consistently sentencing defendants to prison terms 
considerably below where the sentencing guidelines would have sent her.
  All that is true, but all the factors listed in the statute in 
question, codified in 18 U.S.C. Section 3553, Judge Jackson seems to 
weigh quite heavily those factors that will decrease an offender's 
sentence and gives, apparently, short shrift to those who would 
lengthen the sentence in these child pornography cases.
  This kind of cherry-picking of considerations resulted in astonishing 
outcomes, like giving one defendant 3 months in prison instead of 10 
years. Her willingness to change the outcome based not on the law but 
based on her own sense of ``changed circumstances'' demonstrates a lack 
of judicial humility and restraint, and that is troubling.
  Unfortunately, this lack of judicial humility and restraint was not 
limited to any narrow line of cases. It wasn't limited to those cases 
that involved the production and distribution and possession of child 
pornography.
  In the case of Make the Road New York v. McAleenan, Judge Jackson 
ignored clear statutory language, stating that she didn't even have 
jurisdiction to review the case. She set aside that language and 
instead reached back in time to apply the previously enacted and much 
broader Administrative Procedures Act to obtain her preferred outcome, 
the outcome advocated for by the dark money group Arabella Advisors, 
which happens to be funding the campaign for her confirmation. When 
asked about this case, Judge Jackson doubled down on her faulty 
reasoning, even though it had been overturned by the left-leaning DC 
Circuit.
  Unfortunately, this was not the only case where Judge Jackson ignored 
clear statutory language to assert jurisdiction and reach her preferred 
policy outcome.

  To make matters worse, Judge Jackson took multiple opportunities in 
her responses to my colleagues' written questions to separate herself 
from principles that form the bedrock of our constitutional Republic.
  When asked by Senator Cruz if she believed that individuals possess 
natural rights, she said:

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

  This is after she acknowledged that these lines from our Declaration 
of Independence reflect natural rights:

       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.

  When asked by Senator Cornyn if she believed that natural law is 
reflected in the Bill of Rights, she stated that she ``would interpret 
the Bill of Rights based on the methods of constitutional 
interpretation the Supreme Court employs, not based on principles 
derived from natural law.''
  These responses eliminate any hope that I had that even if Judge 
Jackson interprets and applies statutes incorrectly, she would still be 
guided by our Founding documents. Every part of Judge Jackson's 
record--that is, every part that we have been given--seems to indicate 
something of a desire to separate herself from grounding principles in 
order to reach her desired outcomes.
  This is why judicial philosophy matters. This is why it isn't just 
some esoteric exercise for law nerds. This is why it matters and should 
matter to every American.
  When a judge can impose her own policy views in contradiction of the 
expressed will of the people through their elected representatives in 
Congress, it doesn't just undermine our representative system of 
government. As we have seen here, it can put child predators back on 
the streets.
  In one case, the convict, upon release from his inexplicably short 
jail sentence, resumed seeking out suggestive images of children to the 
point that Judge Jackson had to agree to send him to 6 months in a 
halfway house.
  In another case, the convict who had been convicted of raping his 13-
year-old niece and then falsifying his address to evade the sex 
offender registry, sexually assaulted another family member after being 
released from the light sentence imposed previously by Judge Jackson.
  Neither of these defendants would have had these opportunities to 
reoffend had Judge Jackson just followed the sentencing guidelines and 
what the law required.
  Judicial philosophy matters. It is foundational to the very fabric of 
our constitutional Republic. And, again, there are no magic words we 
are looking for. There is not a single judicial philosophy that is 
either going to deem it acceptable or not acceptable, but they need to 
have one. They need to be willing to talk about it and explain what 
animates, what motivates their decision making, how they will go about 
construing these statutes.
  If judges won't commit to giving effect to the words of the laws that 
Congress passes, as understood at the time

[[Page S2024]]

they were written and enacted, then American voters have no control 
over the laws that govern them. We will be ruled in that kind of 
scenario by a self-anointed class of five philosopher Kings in black 
robes.
  I fear Judge Jackson may see the Court in that very way. I fear that 
based on her answer to a question in the hearing raised by one of my 
colleagues. In response to that question, she said:

       Well, anytime the Supreme Court have five votes . . . they 
     have a majority for whatever opinion they determine.

  The Constitution demands more, and the American people deserve 
better.
  For all these reasons, I oppose Judge Jackson's nomination.
  The PRESIDING OFFICER (Mr. Ossoff). The Senator from Delaware.