Ocean Shipping Reform Act of 2022

Floor Speech

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Mr. CORNYN. Mr. President, next week, the Senate will vote on the confirmation of Judge Ketanji Brown Jackson to serve as a member of the Supreme Court of the United States.

Since Judge Jackson's nomination was announced, I made it clear that I would go into this process with an open mind, just as I have tried to do with each Supreme Court nominee who has come before the Judiciary Committee during my time in the Senate. This is now my eighth Supreme Court Justice to participate in the confirmation of.

Now, I have seen the good, the bad, and the ugly when it comes to judicial confirmation hearings, and I know that some people expressed concerns about the tough questions that Judge Jackson fielded. I thought she did a credible job answering those questions. She is obviously incredibly smart, but I found her personally very charming as well.

Judge Jackson has received two degrees from Harvard, completed a Supreme Court clerkship, and served on the Federal bench for nearly a decade. I hear no one questioning Judge Jackson's legal credentials, but a lifetime appointment to the Supreme Court requires a lot more than just the right resume. Our constitutional Republic requires judges who rule based on the law, not based on their personal policy preferences or beliefs and certainly not based on a result and working your way back to a justification for that particular result. Judges are required to go wherever the law may lead them.

Justice Scalia, during his lifetime, said: If you haven't made a decision as a judge that you personally disagree with because the law compels it, you are really probably not doing your job as a judge. And I think there is a lot of truth to that. As I say, the job is not to start with the desired result and work backwards and cherry-pick the legal reasoning to justify the decision.

The question we tried to answer--those of us who serve on the Judiciary Committee--last week is, Where would Judge Jackson fit in this mold if confirmed to the Supreme Court? Would she be an impartial umpire who follows the letter of the law or would she attempt to legislate from the bench? The reason that is important is because, under our Constitution, Members of the Senate are supposed to legislate. But that is also the reason why we run for election, and we are held accountable each election for the votes we take and the policy positions we embrace. That is how public policy in America is supposed to be made, not by judges who serve for a lifetime and whom the voters cannot unelect, like they can Members of the Senate. That is why their job is very different.

Before Judge Jackson was named as the nominee for this seat, President Biden outlined what he was looking for in a candidate. Among the many qualities and beliefs that he specified, the President said, tellingly, he wanted someone with a judicial philosophy that ``suggests that there are unenumerated rights in the Constitution, and all the amendments mean something, including the Ninth Amendment.'' Those are code words, and let me explain.

This wasn't a one-off comment by President Biden. He even said on the campaign trail that he would not nominate somebody for the Supreme Court who did not have a view that unenumerated rights exist in the Constitution. Now, translated into English, that is tantamount to saying that judges shouldn't be bound by a written Constitution.

You might wonder, if they are not bound by the text and the words of the Constitution, where does their authority come from?

The President stated and restated a litmus test for his desired Supreme Court candidate, and he has clearly determined that Judge Jackson fits the bill. So I spent my time during the Judiciary Committee hearing asking her about unenumerated or what you might call invisible rights during her confirmation hearing--invisible because they are not in the text.

I told Judge Jackson it is deeply concerning to me and to the people I represent that five unelected and unaccountable Justices could upend the will of the people by invalidating laws or inventing a new right out of whole cloth. We talked a lot about substantive due process. I suggested that she and I nerd out together, since that is not a topic that people typically talk about around the kitchen table, but maybe they do in a sense I will talk about in a moment.

Substantive due process is this theory that somehow, when you combine the 5th Amendment due process clause with the 14th Amendment due process clause, that out of that formula, unwritten and invisible rights can suddenly appear. This is really just judge-made law.

We have seen many examples of this. For example, in Plessy v. Ferguson, the Supreme Court established the shameful doctrine of separate but equal when it came to the treatment of African Americans in our country. Thankfully, that was later overruled by Brown v. Board of Education. But it is an example of the sort of horrific outcomes that can occur when judges--five judges, unelected, lifetime tenured-- decide to become policymakers in their own right.

Perhaps most famous in legal circles--certainly in law school--you learn about Lochner v. New York. That was another example of substantive due process where the Supreme Court invalidated some labor regulations with regard to how long bakers could work. In that, the Supreme Court discovered a freedom to contract right--again, nowhere written in the Constitution but another example of a result-oriented outcome based on unwritten constitutional rights.

Now, one of the most famous examples is Roe v. Wade in which the Supreme Court found a constitutional right to an abortion. I asked Judge Jackson if the word ``abortion'' or the word ``marriage'' was found anywhere in the Constitution, and she agreed with me that, no, they are not mentioned in the Constitution.

Now, here is my point. It is not the outcome necessarily, because substantive due process can be used for good or for ill. In other words, the good is when I agree with the outcome, and the ill is when I disagree. But the main problem is that unelected judges are making policy, binding the entire country under the guise of substantive due process, which is nothing but judicial lawmaking. So this doctrine of substantive due process can be used for things you agree with and things you disagree with.

The point is that this has, I think, helped us hone in on the limitless abilities of five Justices to discover new rights that aren't even mentioned in the Constitution and then to eliminate any sort of debate or democratic process where people actually get to vote on public policies because essentially the Supreme Court has taken the issue out of the public square. They said: We have already decided it, and we don't really care what you think.

Even Justice Hugo Black, a noted liberal in the classical sense, said the due process clause itself in the 5th and 14th Amendments was designed to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power. And you would have to update to say ``man or woman,'' obviously.

We all know judges on the Supreme Court and on the Federal bench are unelected and therefore unaccountable to the people. Federal judges discovering rights that do not exist in the written Constitution essentially provides a rudderless and, I would argue, eventually lawless authority to the Supreme Court.

The very nature of our three branches of government is to divide responsibilities among those branches. As I mentioned, the political branches are the executive branch, the President; legislative branch, obviously that is Congress, the House and the Senate. Our job is far different, and it is important to have judges understand their limited but vital role under the Constitution. Their job is to interpret the laws as written, not to make them up as you go along or to use a smokescreen, like substantive due process, to identify new rights that do not appear anywhere in the Constitution.

If the American people want to amend the Constitution, which they have done 27 times during our Nation's history, there is a way to do that. Sure, it is a tough battle. You have to win a supermajority of both Houses, and you have to get it ratified by the States. But you can do it, and it has been done 27 times.

But there are people who want to take a shortcut, and they want judges to abuse their authority by identifying these unwritten rights.

Well, what is at stake when that happens? When judges invent new rights, decide issues that are not in their lane, as Judge Jackson liked to say--she would say ``making policy is not in my lane''--or when a judge acts as a policymaker, like Congress is supposed to do, like the executive branch is supposed to do, when judges act that way, they necessarily undermine the American people's right to choose.

The Declaration of Independence notes that the authority of government is derived from the consent of the governed. But how do judges, when they identify unmentioned rights out of whole cloth, how do we, as the American people, get to consent or withhold that consent? Thus, it is easy to see how judge-made law and these smokescreens, like substantive due process, are really methods by which some members of the judiciary undermine the basic and fundamental premise and legitimacy of our laws because the consent of the governed to those judges is irrelevant.

Now, one unfortunate consequence of judge-made law that is not in the Constitution as written, is that anybody who disagrees with you--and this act of judicial activism--can easily be accused of discrimination or even labeled a bigot, even if their belief is derived from religious conviction, which is expressly protected by the Constitution. This is what happens when invisible rights conflict with rights that are actually written into the Constitution, like the First Amendment, like the right to religious liberty.

President Biden assured the American people that he would nominate somebody who believed in unenumerated rights, so I asked Judge Jackson a logical question: What unenumerated rights are there?

The American people deserve to know. Certainly, in casting our vote for or against a nomination, the Senate deserves to know. But she refused to provide an answer.

This isn't the only place where Judge Jackson was less than candid. My colleagues and I repeatedly asked Judge Jackson about her judicial philosophy, a standard question during these confirmation hearings. Now, Judge Jackson has a marvelous legal education. She has vast practical experience because she was a public defender, a Federal district judge, a circuit court judge, and now will serve on the Supreme Court.

So when you ask a judge with that sort of pedigree, ``Tell us about the way you decide cases: What is your judicial philosophy?'' Well, it is not a trap or a trick question. It is something that every Supreme Court nominee has been asked to describe.

Most recently, Judge Barrett identified her judicial philosophy, describing herself as a ``textualist'' and an ``originalist.'' Now, those are awkward terms, but I think what that means is she believes in interpreting the law as written and as understood at the time it was written. That is what she refers to as a ``written Constitution.''

Judge Jackson previously suggested she didn't have a judicial philosophy at all--something I find impossible to believe with somebody with this sort of experience and background and incredibly impressive education.

During her confirmation hearing, she failed to provide much clarity beyond offering vague statements about her methodology. But her methodology is not a philosophy. We need a clear understanding of how Judge Jackson views judge-made law and the invisible--you might say ``unenumerated,'' in the words of President Biden--rights that she finds in the Constitution.

In order for me to fulfill my responsibility as a Member of the Senate to provide advice and consent, I need to know and understand how Judge Jackson interprets the law and the Constitution, not asking her to make specific commitments on results or outcomes. I would never do that because judges are supposed to interpret, apply the law to a case- by-case method. But after repeated questioning, the judge refused to answer that question.

The prism or philosophy through which a Supreme Court nominee views the law and interprets the Constitution is a critical indicator for determining if the judge will ``stay in her lane''--again, those were the terms that Judge Jackson used--or whether she will become a policymaker that President Biden and outside groups like Demand Justice want her to be.

Demand Justice is an advocacy group that advocates defunding the police and progressive solutions to society's problems. They don't want her calling balls and strikes; they want her putting her thumb on their side of the scale and judging in a results-oriented fashion.

As I reviewed Judge Jackson's record, I saw some examples of activism bleeding through her decisions. One of Judge Jackson's opinions from her time on the DC district court demonstrates the serious concerns that I have about her ability to follow the letter of the law as expressed by Congress as opposed to her personal preferences.

In the case Make the Road New York v. McAleenan, a progressive organization challenged the Trump administration's regulation of expedited removal proceedings for people who illegally enter our country without the appropriate paperwork. The Immigration and Nationality Act gives the Department of Homeland Security ``sole and unreviewable discretion'' to apply expedited removal proceedings. Expedited removal is actually a deterrent for illegal immigration because if migrants realize that without authorization they enter the country and they are going to be removed on an expedited basis, a whole lot of them won't spend the money and take the time on that dangerous journey from their home to our shores or to our border if they know they are not going to be successful. So this was not a minor matter. But the Immigration and Nationality Act doesn't leave any gray area for interpretation. Sole and unreviewable discretion is as clear as it comes.

Judge Jackson, who presided over this case, decidedly did not stay in her lane. She went beyond the unambiguous text to deliver a political win to a progressive group and, in the process, entered an injunction barring the use of this tool that is needed by our Border Patrol and immigration authorities in order to deter people from violating our immigration laws.

Unsurprisingly, her decision was appealed and ultimately overturned by the DC circuit court. I think this is a clear-cut example of Judge Jackson ignoring the law as written in order to achieve a result that she preferred.

The critical point to underscore is that as Members of Congress, we are elected and accountable. We can get elected, and we can get unelected when our constituents don't like what we are doing. But our authority comes from the electoral process, which is another way of saying the consent of the governed, as I mentioned, in the Declaration of Independence.

With each bill that is signed into law, we are interacting with the will of our constituents. And if they don't like what we are doing, you can bet we hear from them and certainly will in the next election, if not before.

But by ignoring these laws passed by Congress and signed by the President, Judge Jackson is doing more than just disregarding Congress; she is rejecting the right of the American people to govern themselves, to consent to the laws or withhold their consent.

If given a lifetime appointment to the Supreme Court, I have to wonder: How many other laws would Judge Jackson ignore? How many other precedents would she seek to overturn simply because she doesn't agree with them? How far would she go to achieve a specific result by discovering unenumerated and, hence, invisible rights, whether it relates to immigration, abortion, religion, the Second Amendment, or anything else you might imagine that the Supreme Court might consider?

The separation of powers between the three coequal branches of government is a central feature of our constitutional democracy. Not only do we have three branches, we also have multiple levels of Federal, State, and local governments--a Federal system. That is because the Founders of this great country and the people who ratified the Constitution believed that the best way to protect their liberty was by enacting checks and balances on the authority of government because they didn't trust any person to stay in their lane. They wanted checks and balances to make sure there was a method of enforcing elected officials, including judges, to stay in their lane.

Sixth Circuit Chief Judge Jeffrey Sutton recently wrote a book whose title sums up the overarching debate with a single, succinct question. Ultimately, this is a question of who decides. Do we the people decide? Do our elected representatives whom we delegate the authority to make decisions on our behalf, do they decide or do unelected, lifetime- tenured, unaccountable Federal judges--are they free to be roaming policymakers, enacting judge-made law, which actually contradicts or conflicts with the will of the American people, as evidenced by the laws passed by their elected representatives? When there is a conflict between the different levels or branches of government, who decides is how we determine who holds the power to make decisions that impact every citizen in this country. And as I said, all power, political and government authority, is derived from the people.

Voters select Senators, Congressmen, even the President of the United States, but they have no direct say in the process of selecting Supreme Court Justices. That is why our responsibility, part of the Constitution known as advice and consent--that is why our constitutional obligation is so important.

We have the responsibility to determine whether a nominee understands the important but limited role of Federal judges and can be expected to act with restraint, fairness, impartiality, and ultimately in the best interest of the American people.

Ultimately, I fear Judge Jackson has a blind spot when it comes to judge-made law, and she would use her seat on the Supreme Court to create new rights out of whole cloth and engage in result-oriented decision making.

For that reason, I will oppose Judge Jackson's confirmation to the Supreme Court of the United States.

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