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Floor Speech

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Mr. LEE. Madam President, today, I rise to share my concerns with the nomination of Judge Ketanji Brown Jackson to serve as an Associate Justice on the U.S. Supreme Court.

Let me begin my remarks by noting that I have enjoyed getting to know Judge Jackson. My visits with her and conversations with her in the committee and otherwise and also my interaction with Judge Jackson's family have all reinforced what I know of her generally, which is that she is a good person, a noble citizen, and someone who has earned very impressive academic and professional credentials.

After graduating from Harvard Law School, she ended up clerking at all three levels of the Federal judiciary and worked at a number of positions over the years as a lawyer. She has now, as a judge, served as a Federal district judge, which is a trial court position, and has served on the U.S. Court of Appeals for the DC Circuit, which is an appellate court position. If confirmed to the U.S. Supreme Court, she will have served at all three levels of the Federal judiciary, which is itself an impressive accomplishment and one that I think would benefit the Supreme Court. Any time they have the insight of someone who has served in that many roles, it can be helpful.

She is a good person in many respects and comes with impressive qualifications academically and professionally, but I do have concerns, and those concerns are what I want to turn to now.

Many of them date back to efforts by groups like Demand Justice to shame and intimidate Judge Jackson's former boss and the Justice whom she would be replacing if confirmed to this position, Justice Breyer, into retiring by paying for a billboard mounted on a truck to drive around the Supreme Court of the United States, bearing the slogan ``Retire, Breyer.'' These same groups are now the same groups that are spending money--millions of dollars--to advocate for Judge Jackson's speedy confirmation. Then there was the shameless leaking of Justice Breyer's decision to retire well before he was ready to announce it.

Now we find ourselves in the midst of a needlessly rushed nomination process, where liberal dark money groups are pressuring Senate Democrats to confirm their preferred Supreme Court nominee months--many months--in advance of when she could actually be seated on the Court.

Because of this false sense of urgency being presented by the radical left, we have also seen the chairman of the Senate Judiciary Committee refuse to accommodate reasonable and commonsense document requests from Republican members of that committee. The same members of the committee who demanded more time to review and interrogate a nominee about his high school yearbook are now feigning outrage and insisting that it is somehow unacceptable that we should demand more time to review a nominee's own judicial record. The contrast is significant.

Let me provide some additional context to illustrate how outrageous that aspect of this situation is.

My Republican colleagues and I have been very keen to hear from Judge Jackson about her judicial philosophy. This is something that is an essential part of assessing any judicial nominee's fitness for office. The higher level the nomination, the more important it is to understand that. Nowhere is this more important than when the nominee is someone who has been nominated to serve on the highest Court in the land, the Supreme Court of the United States.

Judge Jackson, significantly, has refused to describe her judicial philosophy or even to agree that she has one. Instead, she has told us that she has a methodology, but this methodology--neutrally applying the law to all relevant facts--is nothing more than a simple statement--a simple rote recitation--of what judges do, not an explanation of how they do it.

When Republicans on the Judiciary Committee pressed Judge Jackson for more information about her judicial philosophy or any statement about it, Chairman Durbin and the nominee both directed us to her judicial record. So we asked Judge Jackson about her record. We inquired about questionable sentences in child pornography cases, sentences that appeared to constitute a pattern and practice of giving inexplicably light sentences to criminals--people who are caught trafficking in what can only be described as the products of the commercialization of child sex torture. These are vile offenses. Her response was that we simply couldn't understand her sentencing decisions. We couldn't understand them just by looking only at the public record because we didn't see what she saw. We didn't have the information that she had.

Now, Chairman Durbin told us that we can discern Judge Jackson's judicial philosophy from her judicial record. Judge Jackson told us that we can't understand her judicial record without all of the supporting documents that informed her decisions. So we asked for those supporting documents, which included presentence reports from those cases involving child pornography possession. Chairman Durbin's response? Not on my watch--his words, not mine. Democrats dismissed our requests as baseless attacks on Judge Jackson herself.

What if we said, ``That isn't true''? Do they contest that Judge Jackson presided over those cases? That she, in fact, imposed those sentences? Do they contest that she imposed those sentences or that Judge Jackson's sentences departed from both the sentencing guideline ranges and from the requests of the prosecutors? These are simply the facts in the record, and we have questions about them, legitimate questions.

So, if this is a baseless attack to a nominee's factual record, what exactly is the purpose and scope of the Senate's duty to offer our advice and consent with regard to such nominations?

After we pushed back, Chairman Durbin based his continued refusal on the sensitive nature of the documents at issue. Now, I agree completely that presentence reports are highly sensitive. They contain sensitive information in them, and this body of written work product deals with necessarily sensitive materials on a regular basis. The U.S. Senate deals with sensitive records, so the fact that these are sensitive documents doesn't mean that we can't handle them. In fact, we already have security measures in place to protect that kind of information. We even have specified rooms where we can and routinely do review sensitive information. So hiding behind a glib quote about protecting children at the expense of thousands upon thousands of actual child victims is shameful.

The chairman says that parents are living in fear that presentence reports that discuss harm to their children would be confidentially shared with this body for the limited purpose of allowing us to do our job, to review Judge Jackson's record. I think it is more likely--far more likely, in fact--that parents of sexually exploited children live in fear that their children may be victimized again when one of Judge Jackson's defendants gets released from prison after an unconscionably, indefensibly short sentence.

To make matters even worse, not only have Democrats refused Republican requests for more information on Judge Jackson's judicial record, but they have withheld information from me and my Republican colleagues on the Judiciary Committee. I am referring in this context to a chart referenced accidentally by a Democratic member of the Judiciary Committee that summarized probation office sentencing recommendations gleaned from the presentence reports--the same presentence reports that we have requested and that we have not been allowed to see.

Now, I have to admit I am still unclear as to how the majority obtained this information. Chairman Durbin wrote to Republicans that the chart was given to him by the White House, which, in turn, obtained the chart from Judge Jackson's chambers. However, when I and every other Republican member on the Senate Judiciary Committee wrote to Judge Jackson to request further information, she replied that she had no way of obtaining the requested information because it ``is the property of the U.S. District Court for the District of Columbia, and I am no longer a member of that court.'' How, then, did her chambers obtain the information that was provided to the White House and then provided to Senate Democrats which came from the presentence reports?

Do the Democrats have something to hide--something that they can avoid having to reveal and have discussed by rushing Judge Jackson's nomination? What might it be? It may be the one thing Judge Jackson steadfastly refused to share--her judicial philosophy.

Despite my Democratic colleagues' pretending that judicial philosophy is some arcane and esoteric legal concept that doesn't matter, Americans everywhere instinctively understand its importance. While they may not all use the same terminology, Americans know that justice--as we imagine Lady Justice always depicted as being blind or blindfolded--is to ensure equal justice under the law for everyone regardless of their race, their religion, their background, their creed. That kind of justice matters to every petitioner, every respondent, every plaintiff, and every defendant who comes before our courts. That kind of justice can be ensured only by judges adhering to a guiding principle by which they bring clarity out of often unclear language.

The Supreme Court is not a representative body; Congress is. Justices are not accountable to the people once they are confirmed, but we are. That is why we have heard from virtually every nominee that their personal perspectives on X, Y, and Z don't matter--because they are fully committed to applying the law without their own personal perspectives getting in the way. That is exactly right and could not more fully demonstrated the importance of judicial philosophy. When a Justice is swayed by her natural inclinations or fails to get to a neutral place when deciding a particular case, adherence to her judicial philosophy keeps her from violating that commitment. That guiding principle constitute a judge's judicial philosophy.

Now, look, judicial philosophy is not a methodology or, as I said earlier when Judge Jackson described her judicial methodology as simply applying the law to the facts, that is not describing her unique approach to judicial decision making. She was simply reciting the definition of what a judge does.

Every judge applies the law to the facts. That is literally what it means to be a judge. The question is, How? Because statutory and constitutional language is often unclear, whether on its face or as applied in a particular context. What matters is how a judge resolves that ambiguity. Laws are not self-interpreting, and interpretation is rarely obvious, especially in the difficult cases that tend uniquely to come before the Supreme Court of the United States on the merits. You have to have a guiding principle by which to bring clarity out of unclear language. That is your judicial philosophy.

So a judge without a judicial philosophy is no more useful than a pastor without a theology. It is just someone making it up as they go along, dressing up their opinions as holy writ. A nominee who claims to have no judicial philosophy is either being misleading or is perhaps unsuited to a lifetime appointment on the Federal bench, let alone on the highest Court in the land. Yet the vast majority of President Biden's judicial nominees have repeatedly asserted that they simply don't have one; that they lack a judicial philosophy. This sudden and uniform shift suddenly and strongly suggests that they are being coached to give precisely that inexplicable, indefensible answer.

And yet every judge does, in fact, have a judicial philosophy. Whether they acknowledge it or not, whether it is easily definable by a few words or a few sentences, they do have one. When a nominee refuses to describe her judicial philosophy, the likely explanation is simply that she does have one; she just knows that neither the public nor this body would approve of it. In that case, we are left to infer what her judicial philosophy is from her record, which is precisely what Chairman Durbin and Judge Jackson suggested that we do. Except, as I have already pointed out, they don't want us to have the whole record, and they are unreasonably denying our access to the whole record.

So, again, Judge Jackson refuses to tell us what her judicial philosophy is. Senator Durbin says we can find it in her record; Judge Jackson says we can't fully understand her record without all the supporting documents, but neither of them will let us see these documents. If this makes you nervous, that is because it should.

So why does this matter? Well, we got to see this firsthand 2 weeks ago. While Judge Jackson insisted that she didn't have a judicial philosophy, she actually did give us a small peek into it. In response to a question from Senator Durbin about the sentencing guidelines and child pornography offenders, she acknowledged Congress implemented a statutory scheme with specific directives to courts to help them determine how they are to sentence defendants found guilty of possessing or distributing child sexual assault material. But then she admitted that she and other judges have made a habit of using the discretion they are given in applying the sentencing guidelines that disregard or discount the parts that, in their view, no longer make sense, saying:

Courts are adjusting their sentences in order to account for the changed circumstances.

With all due respect, that is not her or any other judge's decision to make. Courts don't change the law; Congress changes the law. If Congress one day decides that receiving child sexual assault material electronically is somehow less offensive than receiving it through the mail, then we will change the law.

Judge Jackson insists that she was statutorily required to consider the factors--the very factors she relied upon--to depart from the guidelines, consistently sentencing defendants to prison terms considerably below where the sentencing guidelines would have sent her.

All that is true, but all the factors listed in the statute in question, codified in 18 U.S.C. Section 3553, Judge Jackson seems to weigh quite heavily those factors that will decrease an offender's sentence and gives, apparently, short shrift to those who would lengthen the sentence in these child pornography cases.

This kind of cherry-picking of considerations resulted in astonishing outcomes, like giving one defendant 3 months in prison instead of 10 years. Her willingness to change the outcome based not on the law but based on her own sense of ``changed circumstances'' demonstrates a lack of judicial humility and restraint, and that is troubling.

Unfortunately, this lack of judicial humility and restraint was not limited to any narrow line of cases. It wasn't limited to those cases that involved the production and distribution and possession of child pornography.

In the case of Make the Road New York v. McAleenan, Judge Jackson ignored clear statutory language, stating that she didn't even have jurisdiction to review the case. She set aside that language and instead reached back in time to apply the previously enacted and much broader Administrative Procedures Act to obtain her preferred outcome, the outcome advocated for by the dark money group Arabella Advisors, which happens to be funding the campaign for her confirmation. When asked about this case, Judge Jackson doubled down on her faulty reasoning, even though it had been overturned by the left-leaning DC Circuit.

Unfortunately, this was not the only case where Judge Jackson ignored clear statutory language to assert jurisdiction and reach her preferred policy outcome.

To make matters worse, Judge Jackson took multiple opportunities in her responses to my colleagues' written questions to separate herself from principles that form the bedrock of our constitutional Republic.

When asked by Senator Cruz if she believed that individuals possess natural rights, she said:

I do not hold a position on whether individuals possess natural rights.

This is after she acknowledged that these lines from our Declaration of Independence reflect natural rights:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

When asked by Senator Cornyn if she believed that natural law is reflected in the Bill of Rights, she stated that she ``would interpret the Bill of Rights based on the methods of constitutional interpretation the Supreme Court employs, not based on principles derived from natural law.''

These responses eliminate any hope that I had that even if Judge Jackson interprets and applies statutes incorrectly, she would still be guided by our Founding documents. Every part of Judge Jackson's record--that is, every part that we have been given--seems to indicate something of a desire to separate herself from grounding principles in order to reach her desired outcomes.

This is why judicial philosophy matters. This is why it isn't just some esoteric exercise for law nerds. This is why it matters and should matter to every American.

When a judge can impose her own policy views in contradiction of the expressed will of the people through their elected representatives in Congress, it doesn't just undermine our representative system of government. As we have seen here, it can put child predators back on the streets.

In one case, the convict, upon release from his inexplicably short jail sentence, resumed seeking out suggestive images of children to the point that Judge Jackson had to agree to send him to 6 months in a halfway house.

In another case, the convict who had been convicted of raping his 13- year-old niece and then falsifying his address to evade the sex offender registry, sexually assaulted another family member after being released from the light sentence imposed previously by Judge Jackson.

Neither of these defendants would have had these opportunities to reoffend had Judge Jackson just followed the sentencing guidelines and what the law required.

Judicial philosophy matters. It is foundational to the very fabric of our constitutional Republic. And, again, there are no magic words we are looking for. There is not a single judicial philosophy that is either going to deem it acceptable or not acceptable, but they need to have one. They need to be willing to talk about it and explain what animates, what motivates their decision making, how they will go about construing these statutes.

If judges won't commit to giving effect to the words of the laws that Congress passes, as understood at the time they were written and enacted, then American voters have no control over the laws that govern them. We will be ruled in that kind of scenario by a self-anointed class of five philosopher Kings in black robes.

I fear Judge Jackson may see the Court in that very way. I fear that based on her answer to a question in the hearing raised by one of my colleagues. In response to that question, she said:

Well, anytime the Supreme Court have five votes . . . they have a majority for whatever opinion they determine.

The Constitution demands more, and the American people deserve better.

For all these reasons, I oppose Judge Jackson's nomination.

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