Legislative Session
Mr. President, 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 2 days in. Judge Jackson is receiving a calm, respectful…
Mr. President, 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 2 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 and ameliorate real concerns.
First and foremost is the simple question of Court packing. The far- left fringe groups that promoted Judge Jackson to 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 the seat, and she has repeatedly refused to reject their position.
Both of the liberal legal giants, Justice Ginsburg and Justice Breyer, had no problem--no problem--defending the Court and denouncing Court packing. Both Ginsburg and Breyer denounced Court packing. As sitting Justices, they commented freely on the subject. The Justices knew that expressing a
clear view and defending their institution was not--I repeat, not-- judicially inappropriate in any way.
But Judge Jackson has refused to follow in the footsteps of 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 is ``not a strongly held opinion,'' and, in any event, she wouldn't tell Senators what it was.
But the nominee made sure to quietly signal openness--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, Judge Jackson leaves it open. She even told the Committee:
I would be thrilled to be one of however many Congress
thought appropriate to put on the Court.
`` . . . thrilled to be one of however many Congress thought appropriate to put on the Court.'' ``[H]owever many''? I am 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 and treats litigants fairly. That is not explaining a judicial philosophy. That is just rewording the judicial oath. It is, basically, a nonanswer.
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 original 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 2 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 had 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 has 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--does not have enough experience.
Here is 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 U.S. Supreme Court tried to tell the Committee that her professional experience had not prepared her--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, but it sounds like the nominee herself may actually disagree with that.
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 has given out sentences far, far below the sentencing guidelines and far below the government prosecutors' request. In cases ranging from child exploitation to fentanyl trafficking, she has used every possible ounce of discretion to essentially remake sentencing policy from the bench.
Under questions 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 and 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.
I suggest the absence of a quorum.