Nomination of Ketanji Brown Jackson
Floor Speech
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Mr. McCONNELL. Mr. President, the Judiciary Committee has completed its hearing for Judge Ketanji Brown Jackson. I enjoyed meeting the nominee. I went into the Senate's process with an open mind.
But after studying the nominee's record and watching her performance this week, I cannot and will not support Judge Jackson for a lifetime appointment to the Supreme Court.
First, Judge Jackson refuses to reject the fringe position that Democrats should try to pack the Supreme Court. Justice Ginsburg and Justice Breyer had no problem denouncing this unpopular view and defending their institution. I assumed this would be an easy softball for Judge Jackson, but it wasn't. The nominee suggested there are two legitimate sides to the issue. She testified she has a view on the matter but would not share it. She inaccurately compared her nonanswer to a different, narrower question that a prior nominee was asked. But Judge Jackson, seemingly, actually tipped her hand. She said she would be ``thrilled to be one of however many.''
``However many.''
The opposite of Ginsburg and Breyer's sentiment. The most radical pro-court-packing fringe groups badly wanted this nominee for this vacancy. Judge Jackson was the court-packer's pick, and she testified like it.
Second, for decades, activist judges have hurt the country by trying to make policy from the bench. This has made judicial philosophy a key qualification that Senators must consider.
President Biden stated he would only appoint a Supreme Court Justice with a specific approach that is neither textualist nor originalist. That is the President's litmus test: No strict constructionists need apply. And that President picked Judge Jackson.
If the nominee had a paper trail on constitutional issues, perhaps it could reassure us, but she doesn't. When Justice Gorsuch was nominated to the Supreme Court, he had written more than 200 circuit court opinions that Senators could actually study. Justice Kavanaugh had written more than 300. Justice Barrett outpaced them both. She wrote almost 100 appellate opinions in just 3 years, plus years of scholarship as a star professor that Senators could actually examine.
Judge Jackson has been on the DC Circuit for less than a year. She has published only two opinions. Beforehand, Judge Jackson served as a trial judge on the district court. She testified on Tuesday that that role did not provide many opportunities to think about constitutional interpretation.
Yet when Senators tried to dig in on judicial philosophy, the judge deflected and pointed back to the same record she acknowledged would not shed much light. One Senator simply asked the judge to summarize-- summarize--well-known differences between the approaches of some current Justices. The nominee replied that 2 weeks' notice had not been enough time to prepare an answer.
President Biden said he would only nominate a judicial activist. Unfortunately, we saw no reason to suspect that he accidentally did the opposite.
Third, and relatedly, we are in the midst of a national violent crime wave and exploding illegal immigration. Unbelievably, the Biden administration has nevertheless launched a national campaign to make the Federal bench systemically softer on crime. The New York Times calls this a ``sea change.''
Is it more likely the administration chose a Supreme Court nominee who would push against their big campaign or somebody who would be its crowning jewel?
This is one area where Judge Jackson's trial court records provide a wealth of information, and it is troubling, indeed.
The judge regularly gave certain terrible kinds of criminals light sentences that were beneath the sentencing guidelines and beneath the prosecutor's request.
The judge herself, this week, used the phrase ``policy disagreement'' to describe this subject. The issue isn't just the sentences. It is also the judge's rhetoric and trial transcript and the creative ways she actually bent the law.
In one instance, Judge Jackson used COVID as a pretext to essentially rewrite--rewrite--a criminal justice reform law from the bench and make it retroactive, which Congress, of course, had declined to do. She did so to cut the sentence of a fentanyl trafficker while Americans died in huge numbers from overdoses.
Judge Jackson declined to walk Senators through the merits of her reasoning in specific cases. She just kept repeating that it was her discretion and if Congress didn't like it, it was our fault for giving her the discretion. That is hardly an explanation as to why she uses her discretion the way she does.
It was not reassuring to hear Judge Jackson essentially say that if Senators want her to be tough on crime, we need to change the law, take away her discretion, and force her to do it.
That response seems to confirm that deeply held personal policy views seep into her jurisprudence, and that is exactly what the record suggests.
I will conclude with this. Late on Tuesday, after hours of questioning, I believe we may have witnessed a telling moment. Under questioning about judicial activism, Judge Jackson bluntly said this:
Well, any time the Supreme Court has five votes, then they have a majority for whatever opinion they determine.
That isn't just a factual observation. It is a clear echo of a famous quotation from perhaps the most famous judicial activist of all time, the archliberal William Brennan.
The late Justice Brennan told people the most important rule in constitutional law was ``the Rule of Five.'' With five votes, a majority can do whatever it wants.
That is a perfect summary of judicial activism. It is a recipe for courts to wander into policymaking and prevent healthy democratic compromise.
This is the misunderstanding of the separation of powers that I have spent my entire career fighting against. But President Biden made that misunderstanding his litmus test.
And nothing we saw this week convinced me that either President Biden or Judge Jackson's deeply invested, far-left fan club have misjudged her.
I will vote against this nominee on the Senate floor.
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