Nomination of Ketanji Brown Jackson
Floor Speech
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Mr. CORNYN. Mr. President, later this week, perhaps in a day or two, the Senate will vote on the nomination of Judge Ketanji Brown Jackson to serve as a member of the U.S. Supreme Court.
Last week, I laid out my reasons for my opposition to this nomination, and yesterday, I voted against her nomination in the Judiciary Committee. But I want to make clear that my vote against Judge Jackson is not a rebuke of her legal knowledge, her experience, or her character. Judge Jackson is obviously very smart. She has vast practical experience, which I think is very useful. She is likeable. And she is very clearly passionate about her work.
The Senate's constitutional duty to provide advice and consent, though, requires us to look beyond Judge Jackson's resume and personality to understand her judicial philosophy and the lens through which she views her role as a judge.
Certainly, the Senate must evaluate whether Judge Jackson will act fairly and impartially. We have also got to make a judgment whether she will leave her personal beliefs and her policy preferences at the door and whether she will respect the bounds of her role as a judge or attempt to establish new judge-made law.
This last point is absolutely critical, in my view. The Founders wisely established a system of checks and balances to ensure that no person or institution wields absolute power. The legislative branch, of course, makes law; the executive branch enforces the law; and the judicial branch interprets the law. We have each got our responsibilities under the Constitution.
And while that is certainly a simplification of the duties of each of the three branches, it does illustrate that there are separate lanes or roles for each branch in our constitutional Republic. And we talked about that during Judge Jackson's confirmation hearing.
The judge said she understands the importance of staying in her lane. She used that phrase many times during the confirmation hearing. She said she would not try to do Congress's job making laws.
But over the years--and I think this is a blind spot for Judge Jackson and, frankly, many on the bench, particularly at the highest levels. Over the years, we have come to see a pattern of judges who embrace the concept of judge-made law.
In other words, it is not derived from a statute passed by the Congress, it is not derived from the text of the Constitution itself, but rather, it is made as a policy judgment without any explicit reference in the Constitution itself. Now, that, I believe, is judicial policymaking or legislating from the bench.
The Supreme Court over the years has developed various legal doctrines like substantive due process. That is a little more opaque, I would think, to most people than judge-made law, but basically, it is the same thing. It is a doctrine under which judges create new rights that are not laid out in the Constitution.
It shouldn't matter if a person ultimately agrees or disagrees with this new right. If you like the result, well, you are liable to overlook the process by which the judges reached a decision. But if you disagree with it, then, clearly, it is a problem to have judges-- unelected, unaccountable to the voters--making policy from the bench, no matter what it is called.
It is deeply concerning, I think--and it should be--to all Americans, to have nine unelected and ultimately unaccountable judges make policies that affect 330-or-so million people and they can have no say- so about it at all. They can't vote for them; they can't vote them out of office; they can't hold them accountable. In fact, the whole purpose of judicial independence is so judges can make hard decisions, but they have to be tethered to the Constitution and the law, not made up out of whole cloth.
No judge is authorized under our form of government to rewrite the Constitution to their liking or impose a policy for the entire country simply because it aligns with their personal belief or their policy preferences.
As our Founders wrote in the Declaration of Independence:
Governments are instituted among Men, deriving their just powers from the consent of the governed.
When judges find unenumerated and invisible rights in the Constitution and issue a judgment holding that, in essence, all State and Federal laws that contradict with their new judge-made law is invalid and unconstitutional, there is no opportunity for anybody to consent to that outcome like you would if you were a Member of the Senate or a Member of the House. People could lobby us. They could call us on the phone. They could send us emails, use social media to try to influence our decision. They could recruit somebody to run against us in the next election. They could vote us out of office if they didn't like the outcome.
But none of that would apply to life-tenured, unaccountable Federal judges making judge-made law at the highest levels--no consent of the governed, no legitimacy which comes from consent.
Abraham Lincoln made clear that it is the concept of consent that is the foundation for our form of government. He said famously: No man is good enough to govern another man without that man's consent.
Of course, he used that in the context of slavery, and he was right; but it has broader application as well.
As I said, when it comes to the executive and legislative branches, it is easy to see how consent and the legitimacy that flows from that comes into play. Voters cast their ballot for Senators, for Members of the House, for the President.
Once a person is in office, voters conduct what you could describe as a performance evaluation. The next time that person is on the ballot, voters determine whether that person should remain in office or be replaced by someone new.
But, again, that is not true of the judicial branch, which highlights and demonstrates why the judicial branch is different, why it shouldn't be a policy maker, why judges shouldn't be pronouncing judge-made law that is not contained in the Constitution itself.
It is important that our courts remain independent and be able to make those hard calls, but even people like Justice Breyer, who Judge Jackson will succeed on the Supreme Court, has written books worried about the politicization of the judiciary, and I think that is one reason why our judicial confirmation hearings can get so contentious-- witness Brett Kavanaugh's confirmation hearing, which was a low point, I believe, for the Senate Judiciary Committee and for the Senate as a whole.
But people wouldn't get so exercised over these nominations if people were simply calling balls and strikes like the umpire at a baseball game. Judges should be umpires; judges should not be players.
So Justices on the Supreme Court are not held accountable at the ballot box, and they aren't evaluated every few years for their job performance. They are nominated by the President and confirmed for a lifetime appointment.
When Justices engage in blatant policymaking, it takes away the power of ``we the people'' to decide for ourselves and hold our government accountable. It speaks to that statement in the Declaration of Independence that says government derives its just powers from the consent of the governed. But that is totally missing when it comes to judge-made law and identifying new rights that are nowhere mentioned in the Constitution.
Again, I understand, when you like the outcome as a policy matter, you are not liable to complain too much. But we should recognize this over the course of our history as a source of abuse by judges at different times in our history, and we have seen the horrible outcomes of things like Plessy vs. Ferguson, where the Supreme Court, without reference to the Constitution itself, using this doctrine of substantive due process, said that ``separate but equal'' was the answer for the conflict between the rights of African-American schoolchildren and the rest of the population. They said it is OK. You can satisfy the Constitution if you give them separate but equal educations.
Well, of course, that is a shameful outcome, and we would all join together in repudiating that kind of outcome. And, thankfully, years later--too many years later--Brown v. Board of Education established that the ``separate but equal'' doctrine was overruled, and that is as it should be.
But the point I am trying to make here is whether it is the Court's decisions on abortion or the right to marry a same-sex partner or separate but equal, or even things like the Dred Scott decision, which held that African-American fugitive slaves were chattel property, or in the famous Lochner case, where the New Deal Justices struck down an attempt by the government to regulate the working hours of bakers in New York.
All of these involved the use of this substantive due process doctrine as a way to cover up and hide the fact that it was judges making the law and not the policymakers who run for office.
I am also afraid that Judge Jackson did not always adhere to her own admonition that judges should stay in their lane. In the case Make the Road New York v. McAleenan, the American Civil Liberties Union challenged a regulation involving expedited removal of individuals who illegally cross our borders and enter into the country.
The Immigration and Nationality Act gives the Department of Homeland Security Secretary ``sole and unreviewable discretion'' to apply expedited removal proceedings. Judge Jackson, who presided over the case challenging that rule, ignored the law. She went beyond the unambiguous text to deliver a political win to the people who brought the lawsuit.
She barred the Department of Homeland Security from using expedited removal proceedings to deter illegal immigration. She stopped the administration from enacting immigration policies it had clear authority to implement according to the black-letter law. Unsurprisingly, that decision was appealed and ultimately overturned by the DC Court of Appeals. But this is an example of not staying in your lane and not deferring to Congress the authority to make the laws of the land when the Congress has been unambiguously clear.
So, ultimately, I believe that demonstrates a willingness to engage in judicial activism and achieve a result, notwithstanding the facts and the black-letter law in the case, and to disregard the law in favor of a political win for one of the parties.
But this is just exactly what I started off talking about. This is the opposite of consent of the governed, when judges ignore the laws passed by Congress, even when congressional intent is clear.
Unfortunately, that wasn't the only example of activism in Judge Jackson's decisions. We have heard a lot about this, and I think it was an entirely appropriate subject for questions and answers. Judge Jackson is an accomplished and seasoned lawyer and judge, and she knows how to answer hard questions.
During sentencing hearings, Judge Jackson has said she disagreed with certain sentencing enhancements for policy reasons. That is the word she used--for policy reasons--and she chose to disregard its application. That is not staying in your lane.
She also used a compassionate release motion to retroactively slash a dangerous drug dealer's criminal sentence because she didn't like that the government brought a mandatory minimum drug charge, even though the government had every right to do so under the applicable law.
The promise of equal justice under the law requires judges to follow the law regardless of their own personal feelings about the policy. Justice Scalia famously said that if a judge hasn't at one time or another in his or her career rendered a judgment that conflicts with their own personal preferences, then they are probably not doing their job right.
It is absolutely critical for our Supreme Court Justice to not only acknowledge but to respect the limited but important role that our judges play in our constitutional Republic. They shouldn't allow politics or policy preferences to impact their decisions from the Bench, and they can't use their power to invalidate the will of the American people based on invisible rights that aren't actually included in the Constitution itself.
In 1953, Judge Robert Jackson observed that the Supreme Court is ``not final because [it is] infallible, but [it is] infallible only because [it is] final.''
In other words, the recourse that we the people have when judges overstep their bounds when it comes to constitutional interpretation is to amend the Constitution itself--something that has only happened 27 times in our Nation's history--and it is a steep hill to climb, to be sure.
But it is important for the legitimacy of the Supreme Court itself for the judges to be seen as staying in their lane and interpreting the law, not making it up as they go along. I am reminded of another quote about the scope of the Judiciary's duties and powers. In 1820, Thomas Jefferson wrote, ``To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.''
Once again, our Founders, our Founding Fathers, had the wisdom to establish three branches of government to share power to avoid any single person or institution from wielding absolute power, and to ensure that we maintain the proper balance of power, Justices need to stay in their lane and interpret the law, not make the law, particularly when the voters have denied consent from them for doing so.
So to summarize, to ensure that we maintain the proper balance of power under our Constitution, judges must only interpret the law and they can't allow activism to bleed into their decisions and they can't ignore black-letter law and they can't use doctrines like substantive due process to hide the fact that they are making up new rights that aren't contained anywhere in the written Constitution itself.
As I said before, I fear that, if confirmed, Judge Jackson will attempt to use her vast legal skills to deliver specific results and get outside of her lane by making judge-made laws that are not supported by the text of the Constitution itself. As I said in the Judiciary Committee, and I will say again, when the time comes to vote on Judge Jackson's nomination here on the Senate floor, I will once again vote no for the reasons I just stated.
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