Judge Jackson’s “Policy Disagreement” From the Bench

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:

“Yesterday, I said I hoped the second day of Judge Jackson’s responses would provide more clarity on some vital questions. 

“Unfortunately, the nominee’s answers trended the other way.

“Regarding the Court as an institution, the nominee continued to reject the examples of Justices Ginsburg and Breyer. She refused to denounce partisan court-packing.

“On judicial philosophy, the Judge continued to deflect basic questions. This lack of candor is especially troubling since the President sent us a nominee with no meaningful written record on constitutional matters.

“For more than eight of Judge Jackson’s nine years on the federal bench, she was a trial judge on the District Court. As the nominee herself explained on Tuesday, that role neither requires a particular talent for constitutional interpretation nor gives judges much of a chance to exhibit one.

“She deflected a question about judicial philosophy by explaining that such questions did not often occur to her on the lower court.

“District Court records alone shed little light on what kind of Supreme Court Justice someone might be. Now, Judge Jackson’s current post on the D.C. Circuit is a much closer analog.

“The problem is, she’s held that position for less than one year and has only published two opinions.

“Justice Gorsuch had authored 212 Circuit Court opinions before he was nominated to the Supreme Court. Justice Kavanaugh had written 306. Senators had an unbelievable wealth of writings to examine.

“As for Justice Barrett, in just three years on the Seventh Circuit, she had already written 91 appellate opinions. Not to mention her many academic writings on constitutional law.

“Judge Jackson has written a total of two Circuit opinions. Just two.

“The only real body of evidence before the Senate is her record as a trial judge. Like I mentioned, those rulings communicate very little about a judge’s approach to big-picture questions of interpretation. But to make matters worse, Judge Jackson declined to answer basic questions about those rulings.

“Senators asked about clear patterns in the Judge’s criminal sentencing decisions. The nominee deflected by saying every case is unique. So Senators tried to examine one case at a time. Then the nominee said she couldn’t recall details.

“So Senators tried to supply the details. Then the nominee stonewalled and said no one case can fully capture a judge’s record.

“This made up an endless circle of evasion. Judge Jackson wouldn’t address broad patterns in her rulings because she said it was unfair for Senators to zoom out, and she wouldn’t discuss specific cases because she said it was unfair for Senators to zoom in.

“Since the only real body of evidence before the Senate is Judge Jackson’s trial records, Senators asked why she consistently imposed weak sentences for certain crimes.

“The nominee ducked the question over and over. She blamed Congress for giving her that discretion in the first place. Both the nominee and Chairman Durbin kept repeating that if Senators wanted to guarantee harsher penalties, we could mandate them.

“That’s true, but it’s a non sequitur.

“Senators wanted to know why Judge Jackson used the discretion she did have in the specific ways she chose to use it. The Senators were trying to understand what this nominee does with discretion when she has it.

“But the nominee would not answer. She kept blaming the mere existence of her discretion for her decisions to go soft on criminals, when she could have just as easily used that discretion to be tough. We basically had a nominee saying that if Senators want me to be tough on crime, you’ll have to change the law to force me to do it.

“In several egregious instances, from child exploitation to fentanyl trafficking, the nominee used especially unusual and creative legal moves that stretched the bounds of the judicial role. In the nominee’s own words, she simply has a — ‘policy disagreement’ — with parts of sentencing law.

“Evidently the Judge’s personal policy views change how she applies the law.

“Finally, I understand some Democratic Senators held a press conference yesterday to complain that Republicans’ questions were too tough.

“Of course, nobody could have less credibility to police the fine details of confirmation hearings than our Democratic colleagues on the Judiciary Committee. The last 48 hours were a dry and friendly legal seminar compared to the circus that Democrats inflicted on the country just a few years back.

“The American people know it is not asking too much to ask a federal judge legal questions about her record. I just wish the Senate had gotten more answers.”


Related Issues: Senate Democrats, Supreme Court, Nominations, Judicial Nominations