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Floor Speech

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Mr. KAINE. Mr. President, I proudly rise to speak about the nomination of Judge Ketanji Brown Jackson to be an Associate Justice of the U.S. Supreme Court.

When I began law school in the fall of 1979, the only woman Justice at the Supreme Court was a white marble statue on the steps. There were no women members of the Court. There had never been women members of the Court.

The motto engraved over the Court's entrance, ``Equal Justice Under Law,'' sounded great, but it also rang hollow for the more than half of the U.S. population that had never seen themselves represented on the U.S. Supreme Court.

And it was more than just the absence of women on the Court. In 1868, the 14th Amendment to the Constitution was adopted in core memorable phrase guaranteeing to all persons the equal protection of the law. But the Court, for more than 100 years, refused to extend equal protection to women.

In one of the first cases testing the meaning of the phrase ``equal protection of the law to all persons,'' the Supreme Court considered an Illinois State law restricting the practice of law to men only. A dynamic, young, feminist activist, Myra Bradwell, passed the Illinois bar exam and applied for a law license to practice law in Illinois. She was turned down because she was a woman. She appealed her case to the Illinois Supreme Court, and they turned her down because she was a woman. And then she came to the U.S. Supreme Court and said: We have just changed the Constitution to guarantee equal protection of the law to all persons, surely, you cannot turn me down in my quest to practice law after I have passed the Illinois bar exam.

The Supreme Court of the United States, in 1873, by a vote of 8 to 1, ruled that she was not entitled to an equal right to practice the profession of her choosing.

Let me read you a key part of the decision in that case:

The paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother. This is the law of the Creator.

So a wife and mother can't be a lawyer? So every woman must be a wife and mother? That is what the Supreme Court determined in analyzing the simple phrase ``all persons are entitled to equal protection of the law.''

Here is a great trivia question: When did the Supreme Court finally decide that equal protection of the law applied to women? 1971. It took 103 years after the 14th Amendment was adopted for the Supreme Court to say: Wait a minute, equal protection of the law to all persons, that means women.

In the case of Reed v. Reed, the Court ruled that a State statute providing that males must be preferred to females in the administration of estates--it was an estate administration case--the Court ruled, wait a minute, that violates women's rights to equal protection. Who was the lawyer in that case? A dynamic, young civil rights lawyer with the ACLU named Ruth Bader Ginsburg.

So within my career as a civil rights attorney, from when I started law school in 1979 to today--43 years later--I have seen great change in the law's treatment of women and in their representation on the U.S. Supreme Court.

The nomination of Judge Ketanji Brown Jackson will make history. She will be the first African-American woman on the Court. And she will move a Court that had never had a woman member when I started law school to a Court where four of the nine members are women.

What powerful evidence of the capacity we have as a nation to come closer and closer to the equality ideal that was articulated as our moral North Star in the opening phrase of the Declaration of Independence drafted by a Virginian in 1776.

So I celebrate the history-making nature of this appointment, but it is not the reason for my support.

I support Judge Jackson's nomination because of her stellar academic credentials, her prestigious judicial clerkships, her dedicated service as an attorney and member of the U.S. Sentencing Commission, her well- respected tenure as a Federal trial and appellate judge, and the multiple attestations that she has received attributing to her fairness and to her character.

In particular--in particular--I think that her successful confirmation as a Justice will add two critical skill sets to this nine-member collegial body: first, that she is a public defender; and, second, that she has been a trial judge.

That she was a public defender--so much of the Court's docket deals with issues that are at the heart of the American criminal justice system. There are currently members of the Court--Justice Sotomayor, Justice Alito--who had experience as prosecutors in both the State and Federal courts before they began their service in the judicial branch. That experience as prosecutor is really important experience, and it is an important expertise to have on the Supreme Court.

But a Justice Ketanji Brown Jackson will be the first public defender ever to sit on the Court. And for a Court of nine to share perspectives and grapple with resolution of questions involving the criminal justice system, for that Court only to have people who prosecuted cases and not have people who have defended, in particular, the most indigent criminal defendants--it is a Court that doesn't have the balanced 360- degree perspective that we would want in these important matters. So the fact that she served honorably as a Federal public defender, in my view, is a strong trait for her, but it is even a better trait if you think about what we would need in a nine-member Supreme Court.

Second, she has been a trial judge, a Federal district court judge in the district court for the District of Columbia. And that is really, really important. There is only one other member of the Court now who was a trial judge, and that is Justice Sotomayor. Some of the members of the Court, as far as I know--I can find no evidence--not only were they not trial judges, some of them I am not sure ever tried cases.

What does it mean to have a trial judge on the Court? Well, again, think about the docket of the Supreme Court. So much of the docket of the Supreme Court is ruling on questions and controversies, whose ultimate goal is to make the Nation's trials--civil and criminal trials--more fair: admissibility of evidence, sentencing standards, definitions of police misconduct that could either gain or shed sovereignty immunity in a trial going on in a trial court, how to impanel jurors, how to instruct jurors, when to strike a juror if there is evidence that the juror may have a bias or prejudice. These are all cases that come before the Supreme Court all the time. And these kinds of cases, it is particularly important to have a Court that is well- represented by people who have actually been in the courtroom and done it.

What trial judges have to do is they have to figure out how to instruct and impanel jurors and deal with the juror who may have a bias question. They have to rule on evidentiary objections in a split second; dispose of discovery disputes; rule on dispositive motions like motions to dismiss or summary judgment motions; in bench trials, actually render judgments, which usually involves credibility determinations among competing witnesses.

The judges in the Federal system are those with the power of sentencing, the most difficult power of all. If you have not been a trial lawyer or a trial judge, you might underestimate how difficult and challenging each of those tasks are. But if you have had the experience of being a trial lawyer or trial judge, you understand how important they are.

I asked Judge Jackson as I interviewed her, tell me how you think that being a trial judge might help you on the Court. She said, so much of our opinions are essentially instructions to State and Federal trial courts, here is how to conduct a fair trial. I think my experience will enable me to write opinions that are more workable; that are more understandable; that are more practical; that are more likely to lead to a result that is fair to the parties, but also one that will increase the respect for the decision making in courts themselves.

When I was Governor of Virginia, I did not have the power to put judges on the bench, except in rare instances. In the Virginia State system, I wouldn't even nominate judges. The legislature would choose the judges, and the Governor had no role, except--except--when the legislature would deadlock. If the house and senate couldn't agree on filling a position, then the Governor got to put in a judge or a justice until the legislature came back next year, and then they would have to vote on whether to ratify what the Governor had done.

Three times, when I was Governor, my two Republican houses deadlocked on an appellate judge: one on the court of appeals and two on the Virginia Supreme Court. So I had this opportunity. As somebody who practiced civil rights law for 17 years, as somebody who was married to a juvenile court judge, I had the opportunity to consider and then nominate people to be appellate judges.

I decided pretty quickly, as I analyzed who should be appellate judges--and I followed this rule in all three of my opportunities--that I would appoint a great trial judge. In each of the three instances, I appointed a great trial judge because I knew that that great trial judge would be able to sit on an appellate court and render rulings that weren't sort of philosopher, king-or-queen rulings that might sound good in a law review article or in a panel discussion, but they could render rulings that would be instantaneously understood in courtrooms all across the Commonwealth and be able to be implemented by the other trial judges, who were doing their best every day to conduct fair trials.

So that is why I think the second factor that Judge Brown Jackson was a district court judge handling trials, multiple trials and motions every day, will put her in such good company as she joins Justice Sotomayor as the only other member with that experience.

I will conclude and just say a Justice Ketanji Brown Jackson will add depth and perspective to a Court that needs it. As we near the 150th anniversary of Myra Bradwell's quixotic case, the confirmation of Justice Ketanji Brown Jackson will make the statue of justice and the engraved phrase ``Equal Justice Under Law'' more accurate reflections of our Nation's highest Court.

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