Nomination of Ketanji Brown Jackson

Floor Speech

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Mr. CORNYN. Mr. President, on another matter, 2 weeks ago, President Biden nominated Judge Ketanji Brown Jackson--and I know I mispronounced her first name; Judge Jackson, let me just call her--to serve as an Associate Justice on the Supreme Court.

During his State of the Union Message, President Biden said that choosing somebody to serve on the Supreme Court is one of the most serious constitutional responsibilities a President of the United States has. Likewise, I believe our responsibilities under the Constitution of evaluating the nominee, going through the advice-and- consent process, is one of the most serious responsibilities we as Senators have, and I don't take that responsibility lightly.

Members of this Chamber are pretty familiar with Judge Jackson's qualifications, as she was confirmed to the DC Circuit Court of Appeals just 9 months ago--sometimes called the second most powerful Federal court in the land, right below the Supreme Court of the United States.

There is no question that Judge Jackson is an incredibly smart person and has all of the sort of pedigree that you would expect: graduated from the best universities, the best law schools, has had a broad range of practice. She received both her undergraduate and law degrees from Harvard. She clerked for a Supreme Court Justice, Justice Breyer. She served on the Federal bench for nearly 9 years.

I could say, as somebody who served on the State court bench for 13 years, I appreciate the President picking somebody who has actually had real-world experience on the trial bench. Too often, I think our Supreme Court nominees are academics and people who have very little real-world experience. But you can't argue that Judge Jackson does not have that kind of real-world experience, serving as a public defender, serving on the trial court, and serving on the court of appeals for the last 9 months.

We all know that a nomination for the Supreme Court requires a rigorous assessment of far more than just a resume, though. Our Framers set forth the role of the Supreme Court in article III of our Constitution.

Alexander Hamilton noted in Federalist 78 that the judiciary, he said, would have ``no influence over either the sword or the purse. . . . [i]t may truly be said to have neither force nor will, but merely judgment.'' Now, if I can interpret what Alexander Hamilton was really saying in modern language, it is that judges shouldn't be politicians. They are not policymakers.

That is why we appoint them--they are appointed--for lifetime tenure, to be protected from the pressures of politics or personality, and that is why they have such a critical and important role in our government. But it is not the same role as we serve as elected representatives. We are enmeshed in politics. We are directly responsible to the people-- not for the legal correctness of our arguments or our legislation or constitutional interpretation, although I think we do have some responsibility since we take an oath to uphold the Constitution and laws of the United States, but it is different, and I think most people recognize judges are different than politicians. Judges should not be politicians appointed to serve for lifetime tenure and be unaccountable to the public and yet make policy. That is why judges decide individual cases. We don't decide individual cases here; we make policy for broad swathes of the American people. But judges decide cases based on a controversy, a set of facts, and the application of the law to those facts, which is, again, the antithesis of politics. That is what judging is all about.

So the Supreme Court is not just another branch of government that you can go to if you don't get your desired outcome in the political branches. If you don't win the election, if you don't elect your like- minded representative, you are not supposed to just go to the Supreme Court and say: OK, now you give me what I want because I couldn't get it through the political branches.

The Supreme Court is not supposed to be a failsafe to be utilized to deliver results that can't be secured through the legislative process. Our democracy, equal justice under the law--that is what it says right above the door of the Supreme Court of the United States: ``Equal Justice Under Law''--can only be accomplished when the same law applies to all of us. Cases are therefore decided based on their unique facts-- not on politics, not on personal preferences, not even on strongly held personal beliefs. This is absolutely critical to our system of checks and balances and the health of our democracy.

So I look forward to meeting Judge Jackson in person. I saw her across the hearing room when she was before the Judiciary Committee just about a year ago. But I want to ask her a little more about her judicial philosophy and how she views her role on the Supreme Court.

Now, some have suggested, since she has been confirmed to the circuit court, that this ought to be a rubberstamp. Well, I don't view it that way. Circuit court nominees and district court nominees have to apply Supreme Court precedent, but when you are a member of the Supreme Court, there is no higher court that dictates the decision or the precedence you need to apply.

Now, ideally, you are applying the statutes and laws passed by Congress and the Constitution itself, but there is admittedly more flexibility for the nominee, which means her philosophy is even more important to know now.

I tried to flesh out Judge Jackson's judicial philosophy during her confirmation hearing for the DC Circuit Court. A number of us submitted questions for the record asking her to clarify her judicial philosophy and the way she interprets the Constitution.

We have heard a lot of testimony over the years about originalists and textualists and different ways people approach their duties as a judge.

I don't think Judge Jackson was particularly forthcoming with her answers when we asked about her philosophy, and I ultimately voted against her confirmation for the circuit court. Now, that vote is not going to determine how I view her nomination to the Supreme Court, but I think the question applies with even greater strength because she will not be bound by Supreme Court precedent.

I know she will have plenty of time and plenty of opportunity to clarify her views during the confirmation process, and I hope to see an unvarnished look, beginning with our conversation tomorrow, on Thursday.

I am also eager to learn more about Judge Jackson's views of the Supreme Court as an institution, which has increasingly come under attack by partisans, again, who don't particularly like the decisions of the Court. But that is not supposed to be the test. The test is whether they apply the Constitution and laws of the United States to the facts found by the finder of fact.

There have actually been a number of calls here on the Senate and in our political system in general to change the makeup of the Supreme Court, to actually add additional Justices to the Court--something that used to be called court packing back in the days of Franklin Delano Roosevelt. But Justice Breyer, to his credit, whose seat Judge Jackson has been nominated to fill, has been a steadfast defender of the Supreme Court as an institution, and I hope soon-to-be-Justice Jackson takes her cues from her mentor.

Justice Breyer echoed the comments of the late Ruth Bader Ginsburg and warned about a potentially dangerous politicalization of the Supreme Court and the consequential loss of public confidence in its judgments. Well, I would like to know whether Judge Jackson agrees with Justice Breyer and whether she shares Justice Ginsburg's assessment that nine seems to be a good number when it comes to the Supreme Court.

In the coming days and weeks, the Senate will thoroughly review Judge Jackson's qualifications, just as this body has done for every other nominee to the Federal bench. This is a familiar process to most of us. Judge Jackson is the fourth Supreme Court nominee we will have considered in the last 5 years.

But I hope there is something we do differently this time than has been done in the recent past, particularly in the case of Justice Kavanaugh. Frankly, the confirmation process for Justice Kavanaugh was an embarrassment and, I believe, a black mark on this Senate. Conversely, I think we have an opportunity to show the American people how to do it the right way and treat Judge Jackson with civility and dignity, even when we disagree. We know that outside groups launched a full-on character attack against Judge Kavanaugh. Even Justice Barrett, more recently, was attacked based on her religious beliefs.

I can assure you that will not happen this time around. We will meticulously review Judge Jackson's record. We will ask detailed questions to understand her judicial philosophy. We will read and review her opinions and carefully evaluate her ability to serve. Through it all, there is no question that she will be treated with dignity and respect.

I think the confirmation process must be thorough and it must be civil. The American people and, frankly, the nominee deserves nothing less. I am prepared to fulfill my advice and consent duties as a Member of this body and as a member of the Judiciary Committee.

As we know, there is no particular timeline for this process. In some cases, it moves quickly, and in others it has taken significantly more time. Chairman Durbin has announced that the Judiciary Committee will begin its confirmation hearing in the week of March 21, which doesn't allow much more time for our colleagues to meet with Judge Jackson before evaluating her record, and I know she has prioritized meeting with Members of the Judiciary Committee. I hope she will have adequate time to meet with other Members who are not on the Judiciary Committee, as well.

I know our colleagues are anxious to expedite this process, but we all know Justice Breyer will stay on the Court until the end of this term, which will be the first week or so in July.

Justices do not have term limits. They are not held accountable on elections, but they wield tremendous power under our Constitution. So we have a duty, not necessarily to get it done fast but to get it done right and thoroughly evaluate Judge Jackson's qualifications and ensure that, if confirmed, she will serve as a fair and impartial member of the Supreme Court.

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