America Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength Act of 2022--Motion to Proceed--

Floor Speech

BREAK IN TRANSCRIPT

Mr. CORNYN. Madam President, as anybody who has been watching C-SPAN knows, the confirmation process for Judge Ketanji Brown Jackson is well underway.

Over the last few weeks, members of the Senate Judiciary Committee, on which I am honored to serve, have conducted a meticulous review of Judge Jackson's record and qualifications.

During this week's hearing, though, we have an opportunity to dig deeper and to hear directly from the nominee about her ability to serve as a fair and impartial Supreme Court Justice--somebody without an agenda, somebody who doesn't dabble in politics, and somebody who doesn't use this position to enact policies that they prefer.

Many of our colleagues are familiar with Judge Jackson's experience because she was recently confirmed to the District of Columbia's Circuit Court just 9 months ago. She received her undergraduate degree and law degree from Harvard, certainly sterling credentials, and she worked for Justice Steve Breyer, who is the judge that she is succeeding on the Court.

She has had varied experience, which I think is to her credit. She has been a public defender. She later served on the U.S. Sentencing Commission. And she has spent the last 9 years as a trial court judge on the Federal bench. Judge Jackson is obviously smart, and she is quite accomplished.

But we know that a lifetime appointment on the Supreme Court requires more than just an impressive resume. Our democracy requires that judges rule based on the law. To use the words that Judge Jackson used this morning in the Judiciary Committee hearing, she said, Judges need to stay in their lane, which I actually appreciate, because under the separation of powers, obviously, a lifetime-tenured Federal judge who does not stand for election should not be making policy. That should be left to those of us in the electoral process to make those decisions, and then, of course, the Courts determine the constitutionality and legality of those policy choices. It is not appropriate for them to impose their own preferences instead.

Unlike previous nominees who had no experience on the bench, we don't have to make assumptions about Judge Jackson's decisions; we have the ability to examine hundreds of prior opinions that she has issued and to ask for clarity from the nominee herself.

In addition to her time on the Federal bench, we have a responsibility to dive into Judge Jackson's record as both a prosecutor and as a member of the U.S. Sentencing Commission.

Despite what some of our colleagues have suggested, none of these lines of questioning are out of bounds. It is really amazing to me that even though the President has a constitutional right to nominate whomsoever he chooses, we have a constitutional duty to provide what is called ``advice and consent.''

And so that means asking tough, but respectful, questions about her record and background. The Senate is not here to rubberstamp the White House's nominee. We have a responsibility to scrutinize her record, understand her thinking, her judicial philosophy, and, ultimately, to determine whether she has the right qualities to serve as a member of the Court.

That is exactly what advice and consent involves, and Judge Jackson's record--including her work at every point of her career--should be examined, and none of it should be out of bounds.

Beyond a thorough review of Judge Jackson's record, we also need to gain a clear picture of how she approaches her job of judging--what some people call judicial philosophy, what I call who decides. There are some questions that are decided by judges that should be decided by judges and not elected Representatives, like Members of Congress.

Conversely, there are some areas, as I suggested, where we should be making the decisions and be held accountable for those decisions, and the judge ought to be making a more narrow and focused review of those decisions for constitutionality and legality.

But that does not give her permission to impose her policy preferences over those of a majority of Congress when a bill is passed and signed into law by the President.

Judge Jackson previously suggested that she didn't really have a judicial philosophy--something I find very difficult to believe.

Today, she did not provide a lot of clarity beyond offering vague statements about the methodology by which she decides cases. I find it very hard to believe a judge with this kind of experience says she doesn't have a judicial philosophy, and I hope we can gain more clarity as the hearings continue. Again, she did talk about staying in her lane, not making political or policy decisions, which is a good start. But there is a lot more we need to hear about and a lot more commitments we need to get from the judge before she is confirmed to the Federal bench.

Judicial philosophy has always been of the central points of inquiry by the Judiciary Committee. And never more so than at this particular moment is it important.

The Framers of the Constitution, we know, had the wisdom to establish one branch that made policy decisions. And that would be the executive branch and the legislative branch--actually two branches of government--and another that would operate free of politics and elections and be given lifetime tenure.

Ultimately, all legitimacy of government comes from consent of the governed and so we don't have a group of nine overlords or wise men and women on the Potomac who are going to tell us how to live our lives. That is a decision that we the people make through our elected Representatives and through our Constitution and other laws.

In Federalist 78, Alexander Hamilton said that the courts would have ``no influence on either the sword or the purse.'' In other words, they wouldn't be responsible for national security or public safety or for spending tax dollars.

And he went on to say, ``It may truly be said to have neither force nor will, but merely judgment.'' That is another way of saying that judges decide cases and controversies. They don't make broad policy pronouncements. That is our job here in Congress for which we are held accountable every time we stand for election.

We do not need--nor do I want--a judge who will decide at the front end the result they want to reach and then cherry-pick the law and the facts in order to justify that decision. So it is important to understand the process by which Judge Jackson makes her legal decisions, and we got a little bit of a glimpse this morning, but over the next couple of days, we will have further opportunity to ask more questions about that.

One of the things I am concerned about is some of the outside groups that are advocating for Judge Jackson's confirmation. We are seeing activists that demand judges reach a particular result, regardless of the facts, or what the law prescribes.

Some of these outside rabble-rousers believe judges should deliver results that their party can't seem to accomplish through the deliberation, compromise, and rough-and-tumble of the legislative process.

And when the Court does not deliver these results, many of these outside groups will attack the integrity and legitimacy of the Court as an institution.

In recent years, these radical views have made it into the mainstream. In the summer of 2019, five of our Democratic colleagues-- including the current chairman of the Judiciary Committee--filed a ``Friend of the Court'' brief in the U.S. Supreme Court on gun rights. These Senators, in their brief, made a not-so-subtle threat that unless the Court ruled a particular way, the entire institution would be restructured.

Several months later, the leader of the Senate--the majority leader-- fired his own warning shot. He actually went to the Supreme Court steps and threatened two sitting Supreme Court Justices by name if they did not rule in a particular fashion.

But the Senate isn't the only place we are seeing these sorts of irresponsible attacks. Liberal dark money groups, like Demand Justice, have paid millions of dollars to promote Court packing and sow public distrust in the legitimacy of the Court.

And even the White House appears to be open to a Supreme Court overhaul. On the campaign trail, for example, President Biden refused to disavow reforming the Supreme Court. His administration even established a commission to study the issue.

The courts were not designed and are not designed to be a roundabout way to deliver certain results or invent new rights out of whole cloth. That is illegitimate, in my view, and I am not the only one who thinks that. That is why it is imperative that we gain a clear understanding of Judge Jackson's approach to judging and what she regards as in her lane and what she understands to be out of her lane in terms of policymaking or political decision making.

We need to know that if confirmed, she will rule without fear or favor; that she will follow the law as written, not as what she wants it to be, but what it actually is; and that she will defend the Supreme Court as an institution, as Justice Breyer has and Justice Ginsburg had when asked about Court packing.

The Senate's duty is to provide advice and consent, and it is absolutely critical to the integrity of the High Court and the health of our democracy. Judges, after all, don't have term limits. They don't serve for 2 years and stand for reelection or 6 years as we do here in the Senate.

They are not accountable in elections. They wield tremendous power as defenders of the Constitution and the last word in resolving contested lawsuits in the courts.

So we have a responsibility to the American people to get this right, to thoroughly evaluate Judge Jackson's qualifications, and do our best to ensure that, if confirmed, she will be an impartial and fair judge, not just for the people who nominated her, not just for the outside groups that are cheering on her confirmation, but for all Americans.

Before Judge Jackson was named to fill this vacancy and before there was even a vacancy to fill, President Biden promised to nominate an African-American woman to fill this bench. While the historic nature of Judge Jackson's nomination has been heavily reported, there has been far less attention paid to the fact that she is not the first African American who was considered for the Supreme Court--African-American woman.

When Justice Sandra Day O'Connor announced her retirement in 2005, one of the top names floated as a potential successor was Judge Janice Rogers Brown.

And, as we now know, Democrats filibustered Judge Brown, and she was ultimately never even given the opportunity to be nominated to serve on the Supreme Court. But that wasn't because of opposition by Republicans; it was because our Democratic colleagues, led by then- Senator Joe Biden, derailed her nomination. Janice Rogers Brown had the opportunity to make history by being the first African-American woman nominated for and confirmed as a member of the Supreme Court, but it is very clear that then-Senator Joe Biden led the effort to derail that nomination and denied her that historic opportunity.

I understand and appreciate the historic nature of Judge Jackson's nomination, but I hope our colleagues and members of the media do not lose sight of the mistreatment of the many nominees and should-have- been nominees who came before Judge Jackson. What the American people have seen over the last 2 days is a far cry from the way we have seen people like Justice Gorsuch or Justice Kavanaugh treated by our friends across the aisle.

Judge Jackson has been treated with courtesy, with civility, dignity, and respect, and I expect that trend to continue through the remainder of this process. As Republicans have said all along, this process will be thorough and exhaustive, but it will be respectful.

We have a busy week ahead of us, and I am eager to learn more about Judge Jackson, her judicial philosophy, and the qualifications she would bring if confirmed to the Supreme Court.

BREAK IN TRANSCRIPT

Source