Judge Jackson’s Record Steeped in Judicial Activism

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 explained how Democrats created the current norms around judicial appointments. These days, the Senate takes an assertive role. In particular, most Senators do not merely check resumes and basic legal qualifications, but also look into judicial philosophy.

“This is a discussion Republicans welcome. Because judicial philosophy is not a routine policy disagreement like debates over spending, or tax rates, or energy.

“Those are the sorts of normal policy differences that our system of government is built to handle. But if judges misunderstand the judicial role, that damages the system itself.

“Our genius Founding Fathers set up three branches of government. Two of them get to make policy. Congress writes and passes laws, Presidents sign or veto them, and they’re both accountable through frequent elections.

“The third branch’s responsibilities are totally different.

“The courts exist not to rewrite laws, but to apply them as written. To protect every American’s right to the consistent, impartial rule of law. So the judiciary is insulated and independent.

“Republicans want to uphold the separation of powers the framers left us. We want judges to honor their limited role in our Republic: Stick to text, rule impartially, and leave policymaking to policymakers. And then we want those judges to have total freedom from political threats and bullying.

“The political left has long held the opposite. They believe the framers got the judicial role wrong. They want the Supreme Court to be another forum where progressives can pursue policy outcomes and social changes.

“When liberals fail to convince 218 House members and 60 Senators of a position, they want to cross the street and try to persuade five lawyers instead. They want judges going beyond the text, roaming through policy questions and moral judgments.

“This is a huge difference. It has consequences for American families on issues from crime to border security to religious liberty. And for the health of our institutions.


“So a key question before the Senate is:

“Where does Judge Jackson come down? Where does her record land along this spectrum?

“Well, before this nominee was even announced, President Biden gave a troubling hint.

“He said whomever he nominated to the Court would have to, ‘have an expansive view of the Constitution,’ acknowledge rights that our founding documents leave unsaid, and guarantee specific outcomes in certain categories of cases.

“The President promised he would only nominate a judicial activist for this job.

“So I could only support Judge Jackson if her record and testimony suggested President Biden had actually made a mistake. That he had accidentally chosen a nominee who was not the kind of liberal activist that he’d promised.

“But unfortunately, Judge Jackson’s record and testimony suggest she is exactly the kind of liberal activist that he promised.

“In case after case, when statutory text, standards, or guidelines pointed one way, Judge Jackson set them aside and charted a course to a different outcome.

“As a district court judge, the nominee heard the case of a liberal activist group challenging the federal government’s authority to deport illegal immigrants. The statute in question plainly gave the Department of Homeland Security ‘sole and unreviewable discretion’ to enforce the policy.

“But apparently that didn’t lead to the policy outcome Judge Jackson wanted. So she ignored the statute, sided with the activists, and used a nationwide injunction to impose her new policymaking on the entire country.

“It was such blatant judicial activism that even the liberal D.C. Circuit overturned her ruling.

“Or take another case involving a fentanyl trafficker. If you read the initial trial transcripts, Judge Jackson editorialized and expressed regret that the law forced her to punish him somewhat harshly.

“She literally apologized to this self-described ‘kingpin’ that she wasn’t allowed to go softer.

“But the next time she saw this criminal, at a compassionate release hearing, Judge Jackson was ready to legislate from the bench to give him the sentence she wished that she could have given him before.

“Even after the Judge explicitly acknowledged the First Step Act was not retroactive, she tortured its compassionate release provisions to make it retroactive anyway. This fentanyl kingpin will be coming soon to a neighborhood near you thanks to Judge Jackson.

“Congressional intent was no match for Judge Jackson’s intent.

“And then there’s Judge Jackson’s troubling record in a variety of cases involving child exploitation.

“On average, where these awful crimes are concerned, Judge Jackson’s peers on the federal bench fall within the stiff sentences Congress prefers a third of the time. But in eleven cases, Judge Jackson didn’t fall within the guidelines once.

“At her confirmation hearings last month, the Judiciary Committee gave Judge Jackson a chance to clear up this activist track record.

“But the nominee did not reassure.

“She repeatedly declined to answer why her discretion slanted so dramatically and consistently in the direction of going soft on crime. She just kept repeating that she had the discretion. Clearly. What Senators wanted to know was why she used it the way she did.

“Judge Jackson did tip her hand on a few occasions. She acknowledged that her ignoring the guidelines amounted to, ‘making policy determinations.’ Another time she referenced her personal, ‘policy disagreements’ to explain her jurisprudence.

“Well, if you look at her sentencing transcripts that’s exactly right. Not only did the Judge herself make frequent reference to her ‘policy disagreement’ with the guidelines; but you can see the prosecutors in her courtroom knew they had to acknowledge her bias as well, before arguing that she should finally get tough in their particular case. 

“But always in vain, of course, because she never got tough once in this area. But prosecutors knew what policy bias they were going to get when they showed up in Judge Jackson’s courtroom.

“Of course this is precisely what we do not want judges doing.

“Senate Republicans gave the Judge many opportunities to reassure. But in many cases the nominee just dug deeper.  

“At one point, the Judge even echoed an infamous quotation from one of the most famous judicial activists in American history. The arch-liberal Justice Brennan used to say the most important rule in constitutional law was the ‘Rule of Five.’

“And Judge Jackson told the Senate, ‘any time the Supreme Court has five votes, then they have a majority for whatever opinion they determine.’

“That’s judicial activism summarized in one sentence.


“So to summarize —

“Judge Jackson’s nomination started off on the wrong foot because President Biden had promised he’d only nominate a judicial activist.

“I’d hoped maybe the Judge’s record and testimony would persuade us otherwise. Maybe she’d persuade the Senate she understands the proper judicial role.   

“Unfortunately, what happened was just the opposite.  

“I opposed Judge Jackson’s confirmation to her current post last year over these very concerns.

“And this process has only made those concerns stronger.”