Nomination of Ketanji Brown Jackson
Floor Speech
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Mr. DURBIN. I have to ask myself, why now? Why does the junior Senator from Missouri bring this bill to the floor of the U.S. Senate today?
When you think back, this matter has been considered. Originally, the guidelines were considered in 1984. The question of child pornography came back to us in 2003.
In 2005, there was a Supreme Court case about applying the guidelines on sentencing to these types of cases--a case known as Booker. We know that in 2005, that decision was handed down.
We know that in 2012, the Sentencing Commission said to Congress and to the world that you need to do something here. These guidelines that you promulgated don't reflect the reality of today.
We know, as well, that the guidelines were written--some were written in an era when the materials we are talking about were physical materials. And we now live in the world of internet and access to not just tens and hundreds but thousands of images, if that is your decision.
And all these things have happened, and we come here today--today. I don't know exactly how many years the Senator from Missouri has been in the Senate, but to my knowledge, this is his first bill on this subject that he has presented in the last few weeks. And I wonder why--why now?
Are there valid questions about sentencing guidelines? Certainly, there is no question about it. I said as much, and he quoted me.
The Sentencing Commission told us over a decade ago, in 2012: You have got a problem here. The world has changed, and the law doesn't reflect it.
But this is the first time, to my knowledge, that the Senator from Missouri or any Republican Senator has tried to enact legislation on the subject. Why now? Well, I know why. He said as much. It is because we are now considering the nomination of Judge Ketanji Brown Jackson to the Supreme Court.
This Senator has suggested over the course of the last 2 weeks in hearings before the Senate Judiciary Committee that somehow this judge--this judge who is aspiring to the Supreme Court--is out of the mainstream when it comes to sentencing in child pornography cases.
It is no coincidence that the Senator from Missouri comes to the floor today while Judge Jackson's nomination is pending on the Senate calendar. It was discharged from our committee by a bipartisan vote in the Senate last night. It is no coincidence that he is raising this issue within hours or days before her confirmation vote. It is one more, very transparent attempt to link Judge Ketanji Brown Jackson's confirmation with this highly emotional issue of Federal sentencing when it comes to child pornography or child exploitation.
There are some political groups--at least one well-known political group--that manufacture theories about child pornography, pedophilia, and the like and that even inspire deadly reactions to them, and they are cheering this on. I have seen their reactions already, this morning, in the newspaper. They are watching this and hoping that someone can keep this issue alive on the floor of the U.S. Senate--for them.
The Senator from Missouri has even gone so far as to make the outrageous claim that this woman, Judge Jackson--the mother of two wonderful girls, whom I had a chance to meet, a mother who comes to this issue not only as a judge but as the sister and niece of law enforcement officials who have been part of her family--in the words of the Senator from Missouri, that this woman ``endangers children''-- ``endangers children.''
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Mr. DURBIN. I will yield when I am finished.
One conservative former prosecutor called Senator Hawley's charges ``meritless to the point of demagoguery.''
I have read so many reviews of the Senator's charges against this judicial nominee, and not one of them gives him any credence. They basically say: What you are dealing with here is a complicated area of the law, a controversial area of the law, and to try to ascribe to this one nominee these motives, these outcomes, is baseless and meritless.
Consider this: How can this judicial nominee possibly have the endorsement of the largest law enforcement organization in America--the Fraternal Order of Police--the endorsement of the International Association of Chiefs of Police, and many other law enforcement groups--how could she possibly have all of that and be as wrong on a critical issue as the Senator from Missouri has asserted?
How is it possible that the American Bar Association took a look at all of her contacts as a judge, as a lawyer, as a law student and came up with 250 individuals who knew her personally, appeared in court with and against her, judged her in her individual capacity as a lawyer--how can the American Bar Association interview those 250 and find no evidence of the charges that have been made by the Senator from Missouri? How is it possible that they would review all of this and miss such a glaring fact? They didn't.
They told us, under oath, that they were asked point blank: Is her sentencing standard soft on crime? different than other judges?
The answer was no, no.
The net result of it was that the American Bar Association found this nominee, whom the Senator from Missouri charges with these outrage claims--they found her to be unanimously ``well qualified''-- unanimously ``well qualified.'' Yet the Senator from Missouri believes that he has discovered something that the whole world has missed. Unfortunately, he is wrong, and he doesn't admit it.
When Judge Jackson is confirmed to the Supreme Court--and I pray that she will be later this week--it will be in part because she is a thoughtful, dedicated person who has worked as a judge for over 10 years. She has published almost 600 written opinions. She has had 100 cases wherein she has imposed criminal sentences and a dozen-plus cases involving children.
What the Senator from Missouri has done is to cherry-pick arguments from one small part of her service on the bench that has been debunked across the board. But let me say it again: Judge Jackson's sentences were appropriate exercises of discretion as a judge in applying the law to the facts in difficult cases.
It is interesting to me how the Senator from Missouri has carefully drawn lines to exclude Trump appointees to the bench who have done exactly what this judge has done as well--so-called deviate from the guidelines when it has come to sentencing. In fact, one judge from his State, from the Eastern District of Missouri, whom he has personally endorsed as a good judge--and he may well be--has followed the same practice as this judge. Did he raise that at all in the Senate Judiciary Committee about the Missouri judge who was doing the same thing as Judge Jackson? No, nothing.
There is nothing about these judges that is deviating from other- than-accepted practices. When 70 to 80 percent of sentences handed out by judges across America are using the same standard, Judge Jackson is in that mainstream, along with judges whom this Senator from Missouri has endorsed.
If this issue needs to be addressed--and I believe it does--we can do so if we do it carefully, and we should do it carefully. Make no mistake, I don't back off from my words. As a father, as a grandfather, as a caring parent, I sincerely consider this to be one of the most serious crimes--the exploitation of children. I can't think of anything worse.
The pornography issue certainly is out of control because of the internet and because of those who are making a dollar on it. We should take it very seriously--very seriously. It changes and destroys lives. But let's make sure we do this in the right way.
What have we done in the Senate Judiciary Committee?
It is great for the chairman to stand on the Senate floor and talk about the issue.
Well, what have you done, Senator?
Let me tell you what I have done, and I think the Senator from Missouri knows it.
We have done what we can to address this issue from many different angles. The committee held a hearing on the FBI's failure to properly investigate allegations against Larry Nassar for assaulting young athletes, Olympic gymnasts included, which enabled the abuse of dozens of additional victims. We called them on the carpet. We put them under oath. We brought the testimony forward. We didn't back away from the issue of child abuse.
Following that hearing, I introduced the Eliminating Limits to Justice for Child Sex Abuse Victims Act, with Senator Marsha Blackburn, a Republican from Tennessee. The Senate has now passed this bipartisan legislation, which would enable those survivors of child sex abuse to seek civil damages in Federal court no matter how long it takes the survivor to disclose the facts of the case.
The committee has also unanimously reported a bill which the Senator from Missouri knows well, the EARN IT Act, which is legislation he has cosponsored with Democratic Senator Blumenthal that will remove blanket immunity for the tech industry for violations of laws related to online child sexual abuse material.
I make no apologies for our approach on this, and there is more work to be done.
I want to tell you that I am tempted to leave it just at that but for one part, one thing I am concerned about.
Our Federal sentencing guidelines have been advisory, not mandatory, since the Supreme Court's 2005 ruling in the Booker case. This bill now being offered on the floor in a very quick fashion by the Senator from Missouri attempts to create mandatory sentencing guidelines for a single category of offense. It is not clear whether it passes the constitutional test of Booker. It could be a waste of time. We don't need to waste time in a critical area of the law that has been so controversial and has been considered and reviewed over decades.
Even so, it is a dangerous slope to go down. Imagine a world wherein every time it was politically advantageous--whether it was a Supreme Court nominee or a headline in the paper--that some Senator could come forward, disagree with a Federal judge in a particular case, and say: Let's pass a mandatory minimum sentencing guideline to take care of the matter.
That is no way to approach the law in a fashion that is used for deterrence and punishment. We need to be thoughtful about it. A subject of this seriousness, of this gravity, deserves more than a driveby on the floor of the U.S. Senate.
I invite my colleague to do his work on this issue as we all should-- the work that is required, the work that is required by the seriousness of this matter.
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Mr. DURBIN. Mr. President, after 27 minutes of debate on the floor of the Senate, the Senator now believes we are prepared to change the law that has been debated for decades. He has put in a bill introduced 7 days ago. It has been 7 days he has had passion for this issue--enough to introduce legislation.
If you want to take on a serious issue, take it on seriously, and that means doing the homework on it. Yes, have a hearing. Of course, have a hearing. We want to make sure the people from the Sentencing Commission and others are part of this conversation. It isn't just a matter of throwing charges out against a nominee.
If you want to be serious about it, then admit the obvious: In 70 to 80 percent of cases involving child sexual abuse material, Federal judges struggle with the same sentencing that we have set down. In light of Supreme Court decisions, we understand--I ask for order, Mr. President.
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Mr. DURBIN. Mr. President, I will say, as far as I am concerned, this is a serious matter that should be taken seriously. You don't become an expert by, 7 days ago, introducing a bill and saying: I have got it. Don't change a word of it. Make it the law of the land. Make it apply to every court in the land.
No. We are going to do this seriously. We are going to do it the right way, and we are going to tackle an issue that has been avoided for more than two decades, when you look at the history of it.
I find this reprehensible--the pornography, this exploitation of children--and there are no excuses whatsoever, but I am not going to do this in a slipshod, make-a-headline manner. We are going to do it in a manner that is serious, one in which we work with prosecutors, defenders, judges, and the Sentencing Commission, and get it right. It is time to get it right.
We wrote this law some 19 years ago, before the internet was as prevalent in society as it is today. Let us be mindful of that as we attack this problem and address it in a fashion that is befitting the Senate and the Senate Judiciary Committee.
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