Democrats Discard Their Previous Insistence On Obtaining All Of A Supreme Court Nominee’s Records

Though Democrats Have Pointed To Judge Ketanji Brown Jackson’s Service On The U.S. Sentencing Commission As One Of Her Qualifications For Becoming A Supreme Court Justice, Chairman Durbin Is Refusing To Request All Of Judge Jackson’s Records From Her Time There, Despite Previously Saying ‘America Needs To See Those Documents’ From A Supreme Court Nominee

SEN. CHUCK GRASSLEY (R-IA), Senate Judiciary Committee Ranking Member: “By her supporters’ own accounts, Judge Jackson’s service on the sentencing commission is an important part of her experience, so her records there must be part of a thorough review. This request falls squarely within the committee’s normal practices. As I’ve said from the outset, I want a fair and thorough process. Failing to review categories of material that this committee examines during the normal course of vetting Supreme Court nominees is neither thorough nor fair to the nominee or the American people.” (Sen. Grassley, Press Release, 3/11/2022)


‘The Committee’s Interest Is In Judge Jackson’s Legal Reasoning And Views As They Pertain To Far-Reaching Policy Decisions’ Because Members Of The Sentencing Commission ‘Are Responsible For Significant Policymaking Decisions That Bear On Her Nomination’

SEN. GRASSLEY’s letter to the acting chairman of the U.S. Sentencing Commission and the Archivist of the United States: “The Sentencing Commission is an independent agency led by commissioners that are appointed by the president. The members are responsible for significant policymaking decisions that bear on her nomination. The White House has repeatedly referenced Judge Jackson’s time on the Commission as an important part of her experience that makes her qualified to serve on the Supreme Court. And Senate Democrats have argued that Judge Jackson will ‘draw on’ this experience when she is deciding cases on the Supreme Court. They’re right to say that this experience is relevant, and that’s why it’s important we be able to review records related to her service…. Here, the Committee’s interest is in Judge Jackson’s legal reasoning and views as they pertain to far-reaching policy decisions …” (Sen. Grassley, Letter to Judge Charles Breyer and Archivist David Ferriero, 3/11/2022)


Sen. Dick Durbin (D-IL), Chairman Of The Judiciary Committee, Refused To Join Sen. Grassley’s Letter Requesting Judge Jackson’s Full Records Of Her Time On The U.S. Sentencing Commission

CNN’s MANU RAJU: “Durbin and Grassley sparring over docs from Judge Jackson’s four years on the U.S. Sentencing Commission, with Grassley saying additional records must be produced while Durbin says the GOP is on a ‘fishing expedition.’ Durbin says hearing schedule won’t be changed over dispute…. Durbin said the commission produced 12,000 pages -- ‘all the transcripts, all the statements, all the positions stated by her. And apparently Senator Grassley wants more.’ Asked if it were possible that more documents could be released before the hearing, ‘No, I don’t think so.’Grassley says they are looking for same types of internal records the committee has received for other nominees, and the docs will shed light on her ‘legal reasoning and views as part of a thorough examination of any Supreme Court nominee who has worked in the federal government.’” (CNN’s Manu Raju, @mkraju, Twitter, 3/10/2022)


Democrats Have Said Judge Jackson ‘Will Draw On Her Broad Range Of Experience On The United States Sentencing Commission’ If She Is Confirmed To The Supreme Court

PRESIDENT JOE BIDEN: “And once again following in the footsteps of her mentor, Justice Breyer, [Judge Jackson] would become the only member of the Court who previously served as a member of the United States Sentencing Commission. … Incredibly, Judge Jackson has already been confirmed by the United States Senate three times. First, to serve on the U.S. Sentencing Commission — a bipartisan, independent commission we help — I helped design to reduce the unwarranted disparities in sentencing and promote transparency and fairness in the criminal justice system. On the commission, Judge Jackson was known for working with Democrats and Republicans to find common ground on critical issues.” (President Biden, Remarks, 2/25/2022)

SEN. DICK DURBIN (D-IL), Senate Judiciary Committee Chairman: “[Judge Jackson is] a jurist who understands the importance of pragmatism and real world experience. She will draw on her broad range of experience on the United States Sentencing Commission, as a federal public defender, as a litigator in civil lawsuits, and private practice. Judge Jackson has also demonstrated the premium she places on collegiality and consensus building, especially with those who may not share her views.” (Sen. Durbin, Press Release, 3/01/2022)

  • DURBIN: “Over the past ten days, we’ve all had a chance to learn about her record, and last week I met with [Judge Jackson] in my office. I’d like to share what impressed me the most about her. First, her breadth of experience.  Graduate of Harvard Law School, she’s worked in private legal practice. She served as a federal public defender and served on the United States Sentencing Commission. She’s clerked at every level of the federal judiciary… that’s an amazing resume.” (Sen. Durbin, Press Release, 3/08/2022)


FLASHBACK: Judiciary Committee Democrats Once Insisted That The Committee ‘Have The Full Range Of Documents Available To Examine’ Because They ‘Would Shed A Light On Both [The Nominee’s] Views And [Their] Fitness To Serve On Our Nation’s Highest Court’

SEN. DURBIN: ‘It Would Be An Abdication Of The Senate’s Constitutional Responsibility Of “Advice And Consent” To Consider [This] Nomination Without First Obtaining These Documents And Answers’

SEN. DICK DURBIN (D-IL), Now-Senate Judiciary Committee Chairman: “[T]ry as they might, I’m afraid the majority just cannot get beyond the fact that there are parts of your public life that they want to conceal. They don’t want Americans to see it. I think that is a serious mistake … Judge Kavanaugh, America needs to see those documents. We cannot carefully review, advice, and decide whether to consent to your nomination without clarity on the record…. If you believe your public record is one you can stand behind and defend, I hope at the end of this you will ask this committee to suspend until we are given all the documents, until we have the time to review them. And then we resume this hearing.” (U.S. Senate Judiciary Committee Hearing, 9/04/2018)

  • DURBIN: “The fact that we cannot take a few days or weeks to have a complete review of Judge Kavanaugh’s record is unfair to the American people. It is inconsistent with our responsibility under Article II, Section 2, of the Constitution to advise and consent on Supreme Court nominees.” (U.S. Senate Judiciary Committee Hearing, 9/04/2018)
  • DURBIN: “It would be an abdication of the Senate’s constitutional responsibility of ‘advice and consent’ to consider Judge Kavanaugh’s nomination without first obtaining these documents and answers. What is in these documents that Judge Kavanaugh does not want America to see?” (Sen. Durbin, Press Release, 8/23/2018)
  • DURBIN: “This is unprecedented and unfair to the American people. Senate Republicans want to wrap up Judge Kavanaugh’s hearing before the National Archives releases documents … These documents may bear directly on the credibility of Judge Kavanaugh’s sworn testimony, not to mention his legal views and temperament. The American people deserve to know the true story of the man seeking a lifetime appointment to the highest court in the land…. What are they hiding?” (Sen. Durbin, Press Release, 8/10/2018)

Other Senate Judiciary Committee Democrats: ‘A Vigilant Review Of A Supreme Court Nominee’s Full Record Is Not Optional,’ ‘The Senate Must Be Able To Thoroughly Review [The Nominee’s] Record And Have The Full Range Of Documents Available To Examine,’ ‘The Minority Party Shouldn’t Be Precluded From Document Requests,’ ‘To Go Into This Hearing Without Those Documents Is An Undermining Of The Constitutional Role’

SEN. PAT LEAHY (D-VT): “A vigilant review of a Supreme Court nominee’s full record is not optional. And it should not depend on what party controls the White House. Today, it is undeniable that documents of clear public interest are being hidden from the American people. Documents that would shed a light on both his views and his fitness to serve on our Nation’s highest court. Wearing blinders in this moment is fundamentally incompatible with our constitutional obligation to provide advice and informed consent.” (Sen. Leahy, Remarks, 8/22/2018)

  • LEAHY: “What is being hidden and why? And if I have not been clear, I will be so now. Today, the Senate is not simply phoning in our vetting obligation, we are discarding it. It is not only shameful. It is a sham.” (U.S. Senate Judiciary Committee Hearing, 9/04/2018)

SEN. AMY KLOBUCHAR (D-MN): “The American people deserve to have all the facts, and that means the Senate must be able to thoroughly review his record and have the full range of documents available to examine. When Justice Elena Kagan’s nomination was considered, more than 170,000 pages of documents were produced for senators to review. The standard should be the same.” (Sen. Klobuchar, Press Release, 7/27/2018)

  • KLOBUCHAR: “As a former prosecutor, I know that no lawyer goes to court without reviewing the evidence and record. I know—and I know you know Judge Kavanaugh—that a good judge would not decide a case with only 7 percent of the key documents. A good judge would not allow a case to move forward if one side dropped 42,000 pages of documents on the other side the night before a case started. And yet, that is where we are today. This isn’t normal. It’s an abdication of the role of the Senate and a disservice to the American people. And it is our duty to speak out.” (Senate Judiciary Committee Hearing, 9/04/2018)

SEN. DIANNE FEINSTEIN (D-CA): “Reviewing documents from Supreme Court nominees is a key part of the Senate’s ‘advice and consent’ responsibility. It’s a tool that both Republicans and Democrats have insisted on over the years.… We are asking for no more and no less than what was provided to the Senate for the Elena Kagan nomination. It was possible then and it should be possible now. The minority party shouldn’t be precluded from document requests. Democrats don’t want to waste time reviewing superfluous material that only crossed Kavanaugh’s desk. What we do want to know are Kavanaugh’s involvement and views on key issues.” (Sen. Feinstein, Press Release, 7/30/2018)

THEN-SEN. KAMALA HARRIS (D-CA): “It is reasonable—it is reasonable—that we should want to review his entire record, and then we can debate among us the relevance of what is in his record to his nomination. But it should not be the ability of this—the leadership of this Committee to unilaterally make decisions about what we will and will not see in terms of its admissibility instead of arguing about the weight of whatever is made admissible.” (U.S. Senate Judiciary Committee Hearing, 9/04/2018)

SEN. CORY BOOKER (D-NJ): “We are about to proceed toward having a hearing on someone having a lifetime appointment on the most important court in the land that will effectuate so many of the areas of American life … Just common sense says we should have access to thoroughly evaluate this person. We are not asking for anything out of the ordinary…. My colleagues talk about what our duty to the American public is. Our duty to the American public is to evaluate a candidate on their body of work, but we are not even getting released that … It undermines our ability to do our job. It is just plain wrong.” (U.S. Senate Judiciary Committee Hearing, 9/04/2018)

  • BOOKER: “I am trying to figure out what the jeopardy would be if we just waited for the documents…. What I do not understand is, what is the jeopardy of just waiting, not just to digest these documents but other documents? … So whether it is not seeing 90 percent of the resume of the gentleman before us, or 50 percent, or 40 percent, that should come within time, and there is no jeopardy when we have a lifetime appointment…. Waiting another week or 5 days or 2 weeks for those documents … to come through, I do not understand what the rush is, especially given all that is at stake…. So those are the reasons why I say to you with sincere respect that this is an absurd process. It just seems unfair to me, and it could easily be solved by us putting a pause here in this process, waiting for the documents, evaluating the documents, and it will be a much more robust set of hearings on this nominee…. I do not think it is unreasonable for us to wait for a week or two to get the full body of those documents. It will cause no harm or damage except to have more of a full telling of what is at stake here. The stakes are too high in what this nominee represents for us to rush through this process without a full sharing of the documents.” (U.S. Senate Judiciary Committee Hearing, 9/04/2018)
  • BOOKER: “[J]ust on the basic ideals of fairness, the traditions of this body, we should have a thorough understanding of the nominee that is put before us so that we can vet them. To go into this hearing without those documents is an undermining of the constitutional role to which we have all sworn an oath to uphold.” (U.S. Senate Judiciary Committee Hearing, 9/04/2018)

SEN. CHRIS COONS (D-DE): “We should not proceed until we have the full documents that allow us to review the Judge’s records.” (U.S. Senate Judiciary Committee Hearing, 9/04/2018)

SEN. RICHARD BLUMENTHAL (D-CT): “Part of our job is to review the record of the nominee as thoroughly and deliberately as possible, looking to all the relevant and probative evidence. We cannot do that on this record.” (U.S. Senate Judiciary Committee Hearing, 9/04/2018)



Related Issues: Supreme Court, Senate Democrats, Judicial Nominations