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Floor Speech

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Mr. LANKFORD. Mr. President, there has been a lot of conversation in the past several weeks about Judge Jackson's judicial philosophy-- rightfully so. This is a lifetime appointment on the U.S. Supreme Court. It is a serious position. I don't know a single Senator in this room that doesn't take their responsibility seriously. This is a big issue when you put anyone on the Supreme Court for a life appointment.

Everyone has had the opportunity to be able to go through case law, cases that she has handled, things she responded to, things that she has written, ways that she has responded. Actually, I had time last week to sit down with her for about 45 minutes in the office just to be able to talk and to be able to get back-and-forth with her a little bit.

I want to give a little bit of context to that because many Americans watched all the hearings that happened last week--a full week of just conversation with her, asking her all kinds of different questions. I don't serve on the Judiciary Committee so I am on the outside looking in. That is why I got time individually with her for about 45 minutes to be able to ask her questions and get to know her.

By the way, I had folks in Oklahoma say: You had the opportunity to sit down with her; what is she like?

To all of them, I answered the same way. She is actually the kind of person you would want to invite over for dinner, just to be able to sit and visit with--extremely pleasant, outgoing, personable, smart, sharp, wonderful smile and interaction. You would want to invite her over to dinner to be able to visit with.

But my decision is not about whether to invite her over for dinner to be able to spend time with. My decision is, How will they handle a lifetime appointment on the Supreme Court and how will they handle the law?

The difficult part of this conversation has been interesting. It really circled around judicial philosophy. How would you handle cases?

We can't ask: How are you going to actually rule on this specific case? Because if she answers, then she has to recuse herself from that case in the days ahead, and everyone knows that.

So we are always trying to determine: How will you treat cases in the days ahead and what lens will you look through? That is a reasonable conversation.

Her response has been interesting. Her response was that she had a ``methodology'' as a judge, and it has three aspects to it: Neutrality, which is a good thing; receiving all the appropriate inputs, which is making sure everyone is heard; and looking at the factual record and the text of the statute. That is actually a very good starting point with this.

The question then goes to the next set of questions on it: How do you handle the U.S. Constitution and where does that document fit in? Is it living? Is it changing? Is it the original text and the meaning of it, or does it have a living version that changes?

That is a reasonable conversation because there have been different Justices on the Supreme Court that have handled that differently.

The late Justice William Brennan wrote:

For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.

Well, that is not an original meaning in the original context and locked into that.

Justice Antonin Scalia wrote:

The Constitution that I interpret and apply is not living, but [it is] dead, or as I prefer to call it, enduring. It means, today, not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

In other words, those words had meaning at that time. They couldn't predict what those words might mean 100 years from now. They could only deal with what those words mean right now. And if it is going to have a different meaning at a different time, well, then, there has to be different law to be able to deal with that at a different time. We never got a really clear answer on that. We get things toward her methodology. That is a critical issue to be able to deal with.

There were issues about sentencing that came up and how she chose to do sentencing when she was at the district court level and handled cases. They were all over the news about some cases that she handled that were very lenient in the sentencing.

There were also a lot of questions about the Second Amendment or about due process.

There was kind of the moment of the judicial hearings when Senator Blackburn asked--not a trick question but a real conversational question--about how you handle the law and culture. And that is, Can you define a woman?

I honestly don't think that Senator Blackburn meant for that to be a trick question, but it really is a question in culture at this point. It will determine how you are going to handle the law and to be able to read the law.

Her response was she couldn't answer the question of how to define a woman because she is not a biologist. Well, I am not a biologist either, but I think I can define that question. And it is just a conversational issue that we have as a nation to be able to determine: Let's deal with things that are self-evident.

There were all those issues that were dealt with during the hearing time, but when I got with her, I didn't want to go back and revisit those issues. I wanted to spend time with her talking through the things that weren't actually discussed.

Obviously, it was over days of her hearings. There were several issues discussed about how she handles the law. One of those is Tribal law. In some areas of the country, this is a very big deal and in some areas, not at all. So I understand why it didn't come up in the hearings.

In her past history in her cases, she has had one case to deal with Tribal law. So there are a lot of questions to be able to talk about.

Oklahoma is very proud of who we are as a State. We have great diversity as a State. We have a unique relationship in Indian Country in our State. I thought it was important for us to be able to talk about the relationship that our State has with 39 Tribes and, quite frankly, the history our State has, as we were the State where Tribes were relocated to from the Southeast. We spent a lot of time talking about that.

We talked about issues of religious liberty, First Amendment issues, how you handle those cases. There are differences even in the Court, even on what is the more liberal side of the Court. Sotomayor and Kagan often disagreed on issues of religious liberties. They handle it with a different perspective, and it is not uncommon for a religious liberty case to come up and Sotomayor and Kagan to be on either side. So, quite frankly, I was trying to discern: Is this person more like Sotomayor or more like Kagan on how to handle the issues of religious liberty?

It didn't come up a lot in the hearings, but I really think that is a foundational issue.

Quite frankly, this is the fourth Supreme Court Justice I have had the opportunity to be able to sit down with personally, and with each of them, the issues that I just brought up were the issues that I talked with all four of them about because they don't often come up in the other issues, but to me it is foundational.

We have three branches of government defined by our Constitution. Those branches are coequal, and they check each other. And it is exceptionally important that they really do check each other; that the legislative branch doesn't just give it away to the executive branch or to the courts or that the legislative branch doesn't run over the courts or the executive branch and neither can the executive branch or the judicial branch do for either. But if the judicial branch sits passive at a moment that they should engage, the other two branches are not checked or if the judicial branch engages in a moment when they should be silent, they have exceeded their authority as well.

It is exceptionally important that the three branches both check each other and also know their lane and do their lane well.

There are two cases that popped out that became very significant to me and were part of our conversation as well. There was a case that came up during the Trump administration when Judge Jackson was at the district court level and dealt with this issue of expedited removal. Now, it is my guess that she doesn't like the expedited removal process in immigration, but I didn't ask that; I didn't drill down on that, so it was only my guess. But what was interesting was she ruled on a case on expedited removal and forbid the Trump administration from actually putting in place what they did and did it nationwide.

The problem was, when that was appealed up to the DC Circuit Court, the DC Circuit Court actually reversed Judge Jackson's preliminary injunction and reminded Judge Jackson, at that point, that the way the law was written made this statement: that the Secretary had ``sole and unreviewable discretion.''

She literally reviewed a decision made by a Secretary, where specifically in the law it stated a judge cannot review this decision, though she overturned it, only to go to the circuit court and have them overturn her. That tells me a balance of power issue, of knowing what your lane is and determining how that lane is taken on.

There is another case that came up, actually during the Trump administration as well, when Judge Jackson was also in the district court, and she dealt with the issue about what unions could do and what the executive branch could do in relationship to unions.

It has been a contentious issue, quite frankly, for decades. It is entirely reasonable to be able to have that kind of dialogue about it. She ruled in the favor of the unions, and the DC Circuit, again, reversed her decision when it came there, but it is not just that they reversed her decision, it is that they reversed her decision, and this was the statement from the DC Circuit:

We reversed because the district court lacked subject matter jurisdiction.

In other words, that is not your responsibility in that lane. Specifically, that kind of issue has to be taken up by the Federal Labor Relations Board. In statute, it says it can't go to a district court; it has to go to a different place. Typically, other judges look at it and say, ``You can't be in this spot to be able to argue this,'' and send it to the correct place. Instead, she ruled on it in favor of the unions and declared it done, until the circuit came back and said: That is not your lane. That is actually the executive branch's lane.

And one of the most interesting dialogues we had to be able to talk through things was the issue about deference.

Now, why does this matter? Well, for about 80 years, Congress has been writing a law that gets broader and broader and broader. Quite frankly, it has been a problem with both parties. If we want to see something done, we write a broad law; we send it to the executive branch; and we say figure it out.

And each executive branch is getting more and more creative on how they figure it out. And we deal with all kinds of regulations, and both parties argue with the executive branch and say: Why do you do that? And the executive branch responds back sometimes: Well, you gave me the ability to make that decision on my own and so I did.

This issue of deference and of delegation is a very significant constitutional principle. It is an issue that we have got to resolve here as a body--quite frankly, on both sides of the aisle--to be jealous of the responsibility that we are given in the Constitution.

But it is also an issue, I think, that is very important for the courts to be able to engage in because the courts are able to step in uniquely to the executive branch in a way the legislative branch cannot. The legislative branch can complain about it, but the courts actually can look at it and say, ``You are out of your lane,'' to the executive branch.

And if the court is passive in this, then whoever the executive is gets to run. One of the clearest examples of those is something that is called Chevron deference or our deference. I won't go into all the details on it, but it basically says, if a piece of legislation, the way that it is written, is ambiguous, then the executive branch can interpret it the way that they choose.

I have a problem with that interpretation because I believe if the law was written poorly, we shouldn't just give it to the executive branch and say: Figure it out. What do you want it to mean? If it doesn't mean something clearly, it doesn't mean anything at all.

Now it is about two issues: One is a constitutional issue. If you go back to 1803, Marbury v. Madison is a foundational piece for the Supreme Court. This is the piece that has come up over and over again over the last two centuries.

The foundational statement that came out of Marbury v. Madison was this simple statement:

It is emphatically the duty of the judicial department to say what the law is.

If the judicial hands to the executive and says, ``We can't tell what the law says, so we will give it to you,'' it is literally the judicial handing to the executive something that is uniquely the judicial's power.

Now, this is no simple issue. This goes back to our balance of power. What we have is a situation now over the past several decades where Congress has given its power to the executive branch. If the judicial branch does the same, giving its power to the executive branch, we have a rising executive branch and the other two bodies will look at it and say: How did that happen? Because we gave it away is how it happened. And we have a more and more powerful President of either party and a less and less powerful Congress and judicial branch.

In my conversation with Judge Jackson, she repeated over and over to me that the court is limited, the court is limited, the court is limited. And I said, yes, they are limited, but they have a responsibility, and the court's responsibility is to say what the law is.

And at the moment--as I said to her, if I threw letters on the table, the executive branch doesn't have the ability to say: I will make them say whatever I want to.

I can't--if a law was written and the law said, ``Orange, penny, Ford, desk, Reagan,'' now all those are English words, but, quite frankly, they don't really make a sentence. The authority shouldn't be given to the executive branch to be able to figure out what they could make of that. The responsibility should be in the judicial branch to be able to look at that and say: That means nothing. Congress, go do your homework. Clean it up.

The executive branch can't just make it mean what they want it to say and say what the law is. Congress has to say make it clear and the judicial branch has to say what the law is and the executive branch has to apply it.

Now, again, this is very philosophical, but it is also foundational in our constitutional construct. It is why I find myself in the position of voting no for someone I personally liked when I met her but do not align with on how you handle the Constitution, separation of powers, and the responsibility of the court to align with original intent of the Constitution.

This is not a new dialogue for us in the Senate body. It is a conversation we have had for two centuries that is still unresolved for us. But we cannot select individuals that are not committed to the original meaning of the Constitution and can hand to the executive branch what the law says. This is one that we need to guard.

And so for that reason, when the vote comes tomorrow on Judge Jackson, I will vote no.

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