Judge Jackson Owes the Senate Far More Clarity and Candor
WASHINGTON, D.C. – U.S. Senate Republican Leader Mitch McConnell (R-KY) delivered the following remarks today on the Senate floor regarding the Supreme Court:
“On Monday, I explained that the thinness of Judge Jackson’s appellate record makes this week’s Judiciary Committee hearings all the more important.
“Well, we are two days in. Judge Jackson is receiving a calm, respectful process — unlike the treatment that Senate Democrats typically inflict on Republican presidents’ nominees.
“But unfortunately, thus far, many of Judge Jackson’s responses have been evasive and unclear.
“She has declined to address critically important questions or ameliorate real concerns.
“First and foremost is the simple question of court-packing.
“The far-left fringe groups that promoted Judge Jackson for this vacancy want Democrats to destroy the Court’s legitimacy through partisan court-packing or unconstitutional term limits. She was literally the court-packers’ pick for this seat. And she has repeatedly refused to reject their position.
“Both the liberal legal giants Justice Ginsburg and Justice Breyer had no problem whatsoever defending the Court and denouncing court-packing. As sitting Justices they commented freely on this subject.
“The Justices knew that expressing a clear view and defending their institution was not judicially inappropriate in any way.
“But Judge Jackson has refused to follow in the footsteps of Justices Ginsburg and Breyer. She refuses to rule out what the radical activists want.
“She told Senator Kennedy that she does have an opinion on court-packing, but it’s ‘not a strongly held opinion,’ and in any event, she wouldn’t tell Senators what it is.
“But the nominee made sure to quietly signal openness for the radicals’ position. She told Senators she could see both sides of the court-packing debate. Where Justices Ginsburg and Breyer slammed the door shut, Judge Jackson leaves it open. She even told the Committee, ‘I would be thrilled to be one of however many Congress thought it appropriate to put on the Court.’
“I’m not sure Judge Jackson’s secret opinion on court-packing is as secret as she thinks it is.
“Judge Jackson also displayed a remarkable lack of candor during basic questions about judicial philosophy.
“When asked about judicial philosophy, the nominee tried to punt by simply restating the most basic elements of a judge’s job description. She said she looks at the facts of cases and treats litigants fairly.
“That’s not explaining a judicial philosophy. That’s just rewording the judicial oath. It’s a non-answer.
“These are pivotal questions. They require clear responses. And previous nominees had much less trouble providing them.
“A year and a half ago, now-Justice Barrett gave the Committee an intellectual master class in her textualist and originalist judicial philosophy. She described her interpretive approach in great detail. She helpfully compared and contrasted her philosophy with past and present Justices to provide Senators with points of comparison.
“But Judge Jackson either cannot or will not do any of that.
“Senator Sasse said that in his meeting with the nominee more than two weeks ago, he asked the Judge to compare and contrast her own thinking with Justices Breyer, Sotomayor, and Kagan, to give Senators a point of reference. At that time, the Judge apparently told the Senator that she needed to think about it but would get back to him.
“He followed up yesterday, and Judge Jackson said, actually, she’d been too busy to give it any thought.
“She could not or would not even supply a clear summary of just the philosophy of Justice Breyer. Justice Breyer is Judge Jackson’s former boss, for whom she clerked. He’s written entire books detailing his judicial approach. But Judge Jackson either could not or would not describe it.
“In one jaw-dropping moment, Judge Jackson tried to dodge questions about constitutional interpretation by claiming that she does not have enough experience!
“Here’s what she said. ‘I would say, just as an aside… that while I have been on the bench for nine plus years, the issue of constitutional interpretation in that sense doesn't come up very
often. It comes up to the Supreme Court for sure, but it doesn't come up very often in the lower courts.’
“In other words, at least in that moment, a nominee for the United States Supreme Court tried to tell the Committee that her professional experience had not prepared her for an in-depth discussion of constitutional interpretation.
“The White House and Senate Democrats keep saying Judge Jackson’s District Court experience is perfect preparation for the Supreme Court. It sounds like the nominee herself may disagree.
“Let’s be very clear. If Judge Jackson truly feels she lacks sufficient experience with constitutional interpretation, then the Senate certainly should not confirm her. But if she does not actually feel that way, then she owes the Senate much more candor about her approach.
“For decades, liberal activists have preferred judges who do not limit themselves to applying the text of our laws and our Constitution, but rather make new policy from the bench.
“Sure enough, Judge Jackson spent all day yesterday trying to explain what amounts to a passionate policy disagreement with existing sentencing guidelines for certain horrible crimes. In a number of instances, she’s given out sentences far, far below the sentencing guidelines and far below the government prosecutors’ requests.
“In cases ranging from child exploitation to fentanyl trafficking, she used every possible ounce of discretion to essentially remake sentencing policy from the bench.
“Under questioning from Senator Cotton, Judge Jackson said it would be inappropriate for her to comment on the proper durations of criminal sentences, as this was a policy matter for legislators, not judges. But at other times, she justified her own past leniency by explaining that judges have huge amounts of discretion and latitude on sentencing criminals.
“Either subjective questions about sentencing are fair game for the judicial branch, or they are not. Certainly the nominee cannot have it both ways.
“Today, Judge Jackson will have another chance.
“Another chance to defend the institution of the Court, like Justices Ginsburg and Breyer had no trouble doing.
“Another chance to give Senators a clear explanation of her judicial philosophy, like Justices Gorsuch and Barrett had no trouble doing.
“Another chance to explain whether and how her clear policy views on the merits of sentencing criminals will continue to impact her judicial judgment.
“The Senate and the country will be watching.”
Related Issues: Law Enforcement, Senate Democrats, Judicial Nominations, Supreme Court