The Case Against Judge Jackson’s Confirmation

Asked If She Could Defend The Institution Of The Supreme Court Against Calls To Pack The Court With Partisans, As Justices Stephen Breyer And Ruth Bader Ginsburg Did, Judge Jackson Refused

LEADER McCONNELL: “First, Judge Jackson refuses to reject the fringe position that Democrats should try to pack the Supreme Court. Justices Ginsburg and Breyer had no problem denouncing this unpopular view and defending their institution. I assumed this would be an easy softball for Judge Jackson. But it wasn’t. The nominee suggested there are two legitimate sides to the issue. She testified that she has a view on the matter but would not share it. She inaccurately compared her non-answer to a different, narrower question that a prior nominee was asked. But Judge Jackson seemingly tipped her hand. She said she would be, ‘thrilled to be one of however many.’ The opposite of the Ginsburg and Breyer sentiment. The most radical pro-court-packing fringe groups badly wanted this nominee for this vacancy. Judge Jackson was the court-packers’ pick. And she testified like it.” (Sen. McConnell, Remarks, 3/24/2022)

Asked Directly, Judge Jackson Failed To Oppose The Far Left’s Radical Court Packing Schemes

SEN. CHUCK GRASSLEY (R-IA), Senate Judiciary Committee Ranking Member: “On this same subject, I want to point out a difference between you and a couple people who have sat on the Supreme Court…. Court packing is creating new seats for political purposes for a president to appoint more judges. Do you agree with Justice Breyer and Justice Ginsburg that court packing is a ‘bad idea?’ Before you respond, I would like to say, you say this question should be left to Congress as a policy issue. I reiterate that sitting Supreme Court justices have spoken on that matter so I don’t think it would be inappropriate to you to do if other people sitting there have said that it is a bad idea.”
JUDGE KETANJI BROWN JACKSON: “Well, respectfully, senator, other nominees to the Supreme Court have responded as I will, which is that it is a policy question for Congress. And I am particularly mindful of not speaking to policy issues because I am so committed to staying in my lane of the system. I am just not willing to speak to issues that are properly in the province of this body.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

In Another Instance, Judge Jackson Dodged, Inaccurately Comparing Her Lack Of Answer To An Answer Justice Barrett Gave To A Different Question

SEN. DICK DURBIN (D-IL), Senate Judiciary Committee Chairman: “Now that question on court packing was posed to Amy Coney Barrett, justice on the Court, when she appeared before this committee. She was asked about it. She said, and I quote, ‘could not opine on it.’ And on many other policy issues then-Judge Barrett said repeatedly she could not share her views. Stating, and I quote, ‘I will not express a view on a matter of public policy, especially one that is politically controversial, because that is inconsistent with the judicial role.’ … So Judge Jackson, if a senator were to ask you today about proposals about changing the current size of the Supreme Court, what would your response be?”
JUDGE JACKSON: “Senator, I agree with Justice Barrett in her response to that question when she was asked before this committee. Again, my north star is the consideration of the proper role of a judge in our constitutional scheme. And in my view judges should not be speaking into political issues and certainly not a nominee for a position on the Supreme Court. So I agree with Justice Barrett.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

FACT CHECK: During Her Confirmation Hearing, Justice Barrett Was Not Asked About Her Position On Packing The Supreme Court

SEN. MIKE LEE (R-UT), Senate Judiciary Committee Member: “Does the Constitution say anything about the size of the Supreme Court?”
THEN-JUDGE AMY CONEY BARRETT: “The Constitution does not. That is a question left open to Congress. It's my understanding that it's been nine for about 150 years, but that's as a matter of statute, not constitutional requirement.”
SEN. LEE: “It's statutory. It's a statutory decision, one that's stood for more than a century and a half. It's a decision, nonetheless, that has some bearing, could have some bearing on constitutional issues, correct?”
JUDGE BARRETT: “Insofar as there would be more decision makers on the court?”
SEN. LEE: “Yeah, if we abandoned the long-standing historical practice and tradition of having nine justices, could that have an impact on the way the three branches of government interact with each other?”
JUDGE BARRETT: “Possibly, but it's difficult for me to imagine what specific constitutional question you're asking. And of course, if there were one, I couldn't opine on it.”
SEN. LEE: “Of course, of course. There are strong reasons, I believe, why over the last more than a century and a half we've left that number at nine. As you point out, there's nothing in the Constitution that requires it…. There are nonetheless good, prudential reasons, reasons having to do with respect for the separation of powers between the three branches of government, reasons that have over the last 150-plus years left us to leave that number at nine. The last time, as far as I can tell, that there was any serious effort to move the number above nine was in the fall of 1936 when President Franklin D. Roosevelt … proposed packing the court. And let me explain what I mean by packing the court here. What I mean when I refer to this is increasing the number of seats on the Supreme Court and doing so, by statute, with the intent of altering the composition of the court for short-term political gain. That's what FDR wanted to do…. I think it would have been a colossal mistake. Joe Biden himself as a U.S. senator, as a member of this body, in a proceeding of this committee in 1983, gave a rousing speech that I recommend to all talking about that very thing, acknowledging that the Constitution doesn't require it, but our respect for the separation of powers really ought to lead to us sticking to the number nine. Don't pack the court.” (U.S. Senate Judiciary Committee Hearing, 10/13/2020)

In Her Answers, Judge Jackson Kept Leaving The Door Open For Court Packing, Instead Of Slamming It Shut

Judge Jackson Said She ‘Would Be Thrilled To Be One Of However Many Congress Thought It Appropriate To Put On The Court,’ Lending Legitimacy To The Idea Of Adding Partisan Justices

SEN. JOHN KENNEDY (R-LA), Senate Judiciary Committee Member: “Well, in deciding to join the United States Supreme Court, if you’re affirmed, wouldn’t it make a difference to you whether you’re one of nine or one of 28?”
JUDGE JACKSON: “Would it make a difference?”
SEN. KENNEDY: “Don’t you think that’s a -- that impacts the judiciary, that involves the judiciary?”
JUDGE JACKSON: “Senator, it certainly involves the judiciary. I would be thrilled to be one of however many Congress thought it appropriate to put on the court.”
KENNEDY: “Okay. So, you’d be okay if it was 28?”
JUDGE JACKSON: “If that’s Congress’s determination, yes. The Congress makes political decisions like that.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

She Also Refused To Answer Whether ‘Calls To Pack The Court De-Legitimize Court’

SEN. KENNEDY: “Can we agree that the calls to pack the court de-legitimize the court?”
JUDGE JACKSON: “Senator, it would not be appropriate for me, in my view, to comment on calls to pack the court, as you say, to increase the number or to do any structural changes. Those are policy determinations for Congress. What -- the consequences of those are policy considerations for Congress. I’m just looking forward to working with the brilliant people who are there at whatever size Congress decides, if I am confirmed.”
SEN. KENNEDY: “Well, the calls to pack the court don’t legitimize the court, do they?”
JUDGE JACKSON: “Well, Senator, I think that would be for you to decide.”
SEN. KENNEDY: “I’m asking your opinion.”
JUDGE JACKSON: “Respectfully, Senator, I’m not in a position to give my opinion on issues that are policy issues concerning the court and not something that a judge would have to consider, or should consider, in -- in my view.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

Pressed By Sen. Kennedy, Judge Jackson Finally Admitted She Did Have A Personal Opinion On Court Packing But Refused To Share It, Noting ‘I Hear The Arguments On Both Sides’

SEN. KENNEDY: “You have an opinion [on court packing] though, don’t you?”
JUDGE JACKSON: “Senator, any opinion that I would have is not something that would ever come up in a -- in my work as a judge, something that I would ever rely on. This is a political issue for Congress.”
SEN. KENNEDY: “But do you have an opinion, Judge?”
JUDGE JACKSON: “Not a strongly held opinion, actually.”
SEN. KENNEDY: “But you have an opinion?”
JUDGE JACKSON: “I haven’t really thought about it, but I hear the arguments on both sides and I understand it to be a political issue. … I don’t have an opinion that I think it appropriate to share. I work very hard to set aside my opinions when I’m thinking about cases, which is the work of a judge. And so, this particular issue is one that is very contentious, as you say… One that’s in the province of Congress, and one that I think it not appropriate for me to comment on.”
SEN. KENNEDY: “I understand that, but I think it would tell us a lot about you if you would answer the question. I’m a little confused about your answer earlier. It’s probably more my fault than yours. Do you have an opinion about whether these efforts to pack the United States Supreme Court de-legitimize the court? Do you have an opinion?”
JUDGE JACKSON: “Senator, I have an opinion about the efforts. It’s not an opinion that I think is appropriate for me to share. And so, therefore I don’t have anything further to add.
SEN. KENNEDY: “So, you do have an opinion, but you don’t want to share it. Is that –”
JUDGE JACKSON: “I don’t think it’s appropriate for me as a nominee to comment on a political matter that is in the province of Congress.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

In Stark Contrast, Justice Stephen Breyer, Whom Judge Jackson Hopes To Succeed, Warned Against Court Packing, As Did The Late Justice Ruth Bader Ginsburg, A Liberal Icon

Justice Breyer Explained Packing The Court Would Undermine The Institution Of The Supreme Court And Destroy Public Trust In It

“Justice Stephen Breyer on Tuesday said liberal advocates of big changes at the Supreme Court, including expanding the number of justices, should think ‘long and hard’ about what they’re proposing. Politically driven change could diminish the trust Americans place in the court, Breyer said in the prepared text of a long speech he gave remotely Tuesday to Harvard Law School students, faculty and alumni.” (“Breyer Says Big Supreme Court Changes Could Diminish Trust,” The Associated Press, 4/06/2021)

“Emphasizing that the Supreme Court’s authority hinges on the public’s trust in the court, Justice Stephen Breyer used a speech on Tuesday at Harvard Law School to argue against efforts to expand the number of seats on the Supreme Court. The 82-year-old Breyer contended that public trust in the court rests in the public’s perception that ‘the court is guided by legal principle, not politics’ and would therefore be eroded if the court’s structure were changed in response to concerns about the influence of politics on the Supreme Court.” (Amy Howe, “In Harvard Speech, Breyer Speaks Out Against ‘Court Packing,’” SCOTUSblog, 4/07/2021)

• JUSTICE STEPHEN BREYER: “It is wrong to think of the Court as another political institution. And it is doubly wrong to think of its members as junior-league politicians…. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust. There are no shortcuts to it.” (“Justice Breyer Lays Out Opposition to Expanding Supreme Court,” The Wall Street Journal, 4/07/2021)

JUSTICE BREYER: “This lecture … reflects my own effort to be certain that those who debate [reform] proposals also consider an important institutional point, namely how would ‘court packing’ reflect and affect the rule of law itself.” (“Supreme Court Justice Stephen G. Breyer Cautions Against ‘The Peril Of Politics,’” Harvard Law Today, 4/07/2021)

“Justice Breyer, speaking at Harvard Law School on Tuesday, said he hoped ‘to make those whose initial instincts may favor important structural (or other similar institutional) changes, such as forms of “court-packing,” think long and hard before embodying those changes in law,’ according to prepared remarks publicly released …” (“Justice Breyer Lays Out Opposition to Expanding Supreme Court,” The Wall Street Journal, 4/07/2021)

Justice Ginsburg Made A Full-Throated Condemnation Of Proposals To Pack The Supreme Court: ‘If Anything Would Make The Court Look Partisan It Would Be That’

“Justice Ruth Bader Ginsburg said this week that she opposes proposals to expand the Supreme Court beyond its current nine members, a step that some Democratic presidential candidates have pushed …” (“Ginsburg Opposes 2020 Democrats’ Proposals To Expand Supreme Court,” Politico, 7/24/2019)

• JUSTICE RUTH BADER GINSBURG: “Nine seems to be a good number. It’s been that way for a long time…. I think it was a bad idea when President Franklin Roosevelt tried to pack the court.” (“Justice Ginsburg: ‘I Am Very Much Alive,’” NPR, 7/24/2019)

“Roosevelt’s proposal would have given him six additional Supreme Court appointments, expanding the court to 15 members. And Ginsburg sees any similar plan as very damaging to the court and the country.” (“Justice Ginsburg: ‘I Am Very Much Alive,’” NPR, 7/24/2019)

• JUSTICE GINSBURG: “If anything would make the court look partisan it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’” (“Justice Ginsburg: ‘I Am Very Much Alive,’” NPR, 7/24/2019)

• “That impairs the idea of an independent judiciary, she said. ‘We are blessed in the way no other judiciary in the world is,’ she noted. ‘We have life tenure. The only way to get rid of a federal judge is by impeachment. Congress can’t retaliate by reducing our salary, so the safeguards for judicial independence in this country, I think, are as great or greater than anyplace else in the world.’” (“Justice Ginsburg: ‘I Am Very Much Alive,’” NPR, 7/24/2019)

Judge Jackson Was The Top Choice Of Far Left Dark Money Group Demand Justice, Which Has Been One Of The Loudest And Most Prominent Advocates For Packing The Supreme Court

Demand Justice Is One Of The Most Vociferous Groups On The Left Advocating For Packing The Supreme Court

DEMAND JUSTICE: “With a 6-3 Republican supermajority, the Supreme Court is too biased in favor of special interests and Republican politicians. Our democracy is at risk from decisions that suppress the right to vote. Adding four seats is the solution—and we need your help to get it done. Congress can change the number of justices on the Court at any time with a simple piece of legislation, and it has done so many times throughout American history. Now, top Democrats have introduced a bill to add seats and restore balance, and more than 40 members of Congress have signed on in support.” (Demand Justice, Accessed 1/31/2022)

BRIAN FALLON: “At Demand Justice, we strongly believe that reforming the court — especially by expanding it — is the cornerstone for re-building American democracy… We are thrilled to work in coalition with the team at Pack the Courts to undo the politicization of the judiciary.” (“Progressive Activists Push 2020 Dems To Pack Supreme Court,” Politico, 2/25/2019)

• FALLON: “We need reform of the third branch of the government. We must look at expanding the number of justices on the Court to ensure a future Democratic president has the chance to fill two or more seats on the Court.” (Brian Fallon, Remarks, 12/05/2018)

Demand Justice Endorsed, And Even Paid For Ads To Promote, A Radical Piece Of Legislation To Pack The Supreme Court

Brian Fallon and Demand Justice endorsed legislation introduced by far-left Democrats, including Sen. Ed Markey (D-MA), to pack the Supreme Court. (Sen. Markey, Press Release, 4/15/2021)

• FALLON: “Democrats are officially done being complacent about the courts…. Our goal is to build consensus for this plan as quickly as we have seen Democrats align around the need to abolish the Senate filibuster. Expanding the Court is every bit as necessary for restoring our democracy.”  (Sen. Markey, Press Release, 4/15/2021)

“Demand Justice will begin a six-figure television advertising campaign in support of a new bill to add four seats to the Supreme Court. The ad features video of two of the bill’s sponsors at a press conference on the steps of the Supreme Court. The announcements follow the introduction of The Judiciary Act of 2021, a bill to add four seats to the Supreme Court, sponsored by House Judiciary Committee Chair Jerry Nadler, House Judiciary Courts Subcommittee Chair Hank Johnson, House Judiciary Courts Subcommittee Vice Chair Mondaire Jones, and Senator Ed Markey. On Saturday, Demand Justice hosted an organizing call featuring remarks from Sen. Markey and Rep. Jones and co-sponsored by Black Lives Matter Global Network, Indivisible, and Sunrise Movement.” (Demand Justice, Press Release, 4/20/2021)

Demand Justice Also Spent More Than A Million Dollars ‘Aimed At Pressuring Democrats In Congress To Support’ Court Packing

“A progressive judicial advocacy group announced Wednesday that it is launching a $1.5 million grassroots program aimed at pressuring Democrats in Congress to support legislation adding seats to the U.S. Supreme Court. Demand Justice’s plans include hiring an in-house team of six people, working with Bernie Sanders’ 2016 presidential campaign strategist Becky Bond, and organizing an in-person lobby day on Capitol Hill in October …” (“Progressive Judicial Group Launches $1.5 Million Effort To Expand Supreme Court,” Huffington Post, 9/08/2021)

Demand Justice Is Working With Other Far-Left Groups To Promote Packing The Court, Based On Their Assumption That Adding New Partisan Justices Would Immediately Give Progressives Political Victories

DEMAND JUSTICE CO-FOUNDER AND CHIEF COUNSEL CHRISTOPHER KANG: “Even if you could do term limits, if you could do it tomorrow, it doesn’t help pregnant people in Texas right now, or in Mississippi or across the country. It doesn’t help Black voters in Georgia.… The only thing that is actually going to provide balance to the court and do something in the near term is Supreme Court expansion.” (“More Democratic Senators Are Willing To Weigh Changes To Supreme Court,” The Washington Post, 12/02/2021)

“‘The docket [in 2022] is going to help make the case for why the court is an urgent issue,’ said Brian Fallon, executive director of Demand Justice. Demand Justice is planning to team with March for Our Lives, a student-led group supporting gun-control legislation, which it approached after the high court granted a concealed carry case for the term beginning in October, New York State Rifle and Pistol Association v. Corlett. Fallon said Demand Justice also is working with Sunrise Movement, a youth climate change group. ‘There’s a lot of relatively new, young insurgent-minded groups, and we just want to sort of suffuse the argument about the court and the need for court reform into their narrative about what’s broken as it affects their particular issue,’ Fallon said.” (“Progressives Look to Next Term to Keep Focus on Supreme Court,” Bloomberg Law, 7/23/2021)

• FALLON: “If you are a climate change hawk and don’t yet support Court reform, now would be the time.” (“EPA Climate Order Fuels Calls For Supreme Court Reform,” E&E News, 11/01/2021)

Judge Jackson Was Selected After Appearing On A List Of Potential Supreme Court Candidates Created By Far Left Dark Money Group Demand Justice

During The 2020 Campaign, Demand Justice Added Judge Jackson To The Group’s Own Shortlist Of Potential Supreme Court Nominees For Joe Biden

“Even before Ginsburg’s death, progressive judicial advocacy groups, like Demand Justice, were readying a list of suggested women for Biden’s shortlist… The Black women newly added to Demand Justice’s Supreme Court shortlist are… U.S. District Court for the District of Columbia Judge Ketanji Brown Jackson” (“Will Biden’s Pledge To Nominate A Black Woman To The Supreme Court Mobilize Voters?”, The 19^th, 9/16/2020)

• Judge Ketanji Brown Jackson was listed on “Demand Justice’s Supreme Court Shortlist.” (“Demand Justice’s Supreme Court Shortlist,” Demand Justice Website, Accessed 2/25/2022)

Within A Day Of Democrats Capturing The Senate Majority In 2021, Demand Justice Was Pressuring Justice Breyer To Retire And Promoting Judge Jackson To Replace Him

“The results of the Georgia Senate runoffs aren’t yet final. But left-wing activists are already pressuring Supreme Court Justice Stephen Breyer to take advantage of a possible Democratic majority in the Senate and retire. Demand Justice, the group founded in 2018 as a progressive response to conservative organizing around the courts, praised Breyer in a statement to POLITICO but encouraged him to make way for a younger liberal replacement and to do it early in Joe Biden’s first term.” (“Liberals To Breyer: Time To Retire,” Politico, 1/06/2021)

“Progressives are already eyeing the D.C. Circuit seat that Merrick Garland would vacate if he becomes Biden’s attorney general as a potential springboard for a future [Supreme Court] justice. Biden said on Thursday he’d move promptly to fill Garland’s seat following confirmation. ‘Georgia results resolve the concerns about Garland’s DC circuit seat,’ Brian Fallon, executive director of Demand Justice, a progressive group pushing for aggressive approach to judicial confirmations, tweeted Wednesday. ‘Time to elevate Ketanji Brown Jackson?’” (“Justice Breyer Pressured to Retire, Make Room for Biden Pick,” Bloomberg Law, 1/07/2021)

Even Before President Biden Officially Nominated Judge Jackson For The D.C. Circuit Court Of Appeals, Demand Justice Was Already Pushing For Her To Be Elevated To The Supreme Court

“The expected nomination of District Court Judge Ketanji Brown Jackson to replace Merrick Garland on the D.C. Circuit Court of Appeals could be a precursor to another promotion for her — fulfilling Biden’s campaign promise to choose a Black woman for a seat on the Supreme Court…. Court-focused progressive advocates expect she’ll be picked, although they say they haven’t been told it directly. And they’re not only preparing to support her candidacy for the appeals court seat, but also a potential Supreme Court vacancy on the horizon…. The progressive judicial group Demand Justice says it is preparing materials, research documents and social media videos to defend Jackson in preparation for an announcement.” (“Biden Poised To Announce First Wave Of Nominations To Reshape U.S. Courts, NBC News, 3/18/2021)

• DEMAND JUSTICE EXECUTIVE DIRECTOR BRIAN FALLON: “If [Jackson] is picked for the D.C. Circuit, I’d expect her stay there to be rather brief, because I’d expect her to be the lead candidate for a Supreme Court vacancy in the event that Justice Breyer retires.” (“Biden Poised To Announce First Wave Of Nominations To Reshape U.S. Courts, NBC News, 3/18/2021)

DEMAND JUSTICE: “Judge Ketanji Brown Jackson is a rising star whose time on the Court of Appeals may prove a stepping stone. She and the other public defenders and civil rights lawyers in this group are exactly the kind of judges we need …” (Demand Justice, Press Release, 3/30/2021)

Demand Justice Even ‘Launched A Six-Figure’ Ad Campaign To Support Her Nomination For The D.C. Circuit

“Courts-focused Democrats see Jackson as being on the shortlist, if not a front-runner, for a Supreme Court vacancy should one open up during the Biden administration…. The courts-focused liberal group Demand Justice has elevated Jackson in a recent ad campaign to build support for her among Black audiences.” (“Senate Confirms Ketanji Brown Jackson To Be Judge On Powerful Appeals Court,” NBC News, 7/14/2021)

“Demand Justice has launched a six-figure, digital and radio ad campaign reaching Black audiences to build support for the confirmation of Judge Ketanji Brown Jackson to the D.C. Circuit.” (Demand Justice, Press Release, 6/07/2021)

And Two Days Prior To Her Announcement As Biden’s Supreme Court Nominee, Demand Justice Sent A Letter To The White House ‘Unmistakably Crafted To Boost Jackson’

“President Joe Biden is on the cusp of picking a Supreme Court nominee, and a dozen progressive groups are revealing their preferred candidate among the finalists: U.S. Appeals Court Judge Ketanji Brown Jackson. In a Wednesday letter to Biden led by the courts-focused Demand Justice, the 12 groups nudge him to nominate someone with a background working as a public defender or in civil rights…. Although they didn’t name names, the letter appears unmistakably crafted to boost Jackson, who is currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit, in the final stretch before a decision.” (“Liberals Gather In Ketanji Brown Jackson’s Corner As Biden’s Supreme Court Decision Nears,” NBC News, 2/23/2022)

• “The left-leaning groups that signed the letter — which also include MoveOn, Indivisible, Justice Democrats and Demos — noted the Biden White House’s push to put more public defenders and civil rights lawyers on the courts …” (“Liberals Gather In Ketanji Brown Jackson’s Corner As Biden’s Supreme Court Decision Nears,” NBC News, 2/23/2022)

Demand Justice ‘Is Slated To Lead The Fight On The Left’ For Judge Jackson’s Confirmation, Even Creating Ads For Her Before Her Nomination Was Announced

“Demand Justice, a progressive judicial advocacy outfit, is slated to lead the fight on the left. Demand Justice has already announced a $1 million ad campaign in support of Jackson and said it's prepared to spend much more.” (“Scoop: Progressives Prep Big Spending For SCOTUS Confirmation,” Axios, 3/06/2022)

• “According to tax exemption applications filed with the IRS, Demand Justice projected a budget of $7.5 million for 2022.” (“Scoop: Progressives Prep Big Spending For SCOTUS Confirmation,” Axios, 3/06/2022)

“Demand Justice has already produced ads to support Jackson in case she’s chosen, a source familiar with the matter said.” (“Liberals Gather In Ketanji Brown Jackson’s Corner As Biden’s Supreme Court Decision Nears,” NBC News, 2/23/2022)

Judge Jackson Could Not Explain Her Judicial Philosophy, Claimed Her Own Experience As A Judge Gave Her No Answers, And Didn’t Distance Herself From Joe Biden’s Pledges To Appoint A Judicial Activist

LEADER McCONNELL: “Second — for decades, activist judges have hurt the country by trying to make policy from the bench. This has made judicial philosophy a key qualification that Senators must consider. President Biden stated he would only appoint a Supreme Court Justice with a specific approach that is neither textualist nor originalist. That’s the President’s litmus test: No strict constructionists need apply. And that President picked Judge Jackson. If the nominee had a paper trail on constitutional issues, perhaps it could reassure us. But she doesn’t. When Justice Gorsuch was nominated to the Supreme Court, he’d written more than 200 circuit court opinions that Senators could study. Justice Kavanaugh had written more than 300. Justice Barrett outpaced them both. She wrote almost 100 appellate opinions in just three years, plus years of scholarship as a star professor that Senators could examine. Judge Jackson has been on the D.C. Circuit for less than one year. She has published only two opinions. Beforehand, Judge Jackson served as a trial judge on the District Court. She testified on Tuesday that that role did not provide many opportunities to think about constitutional interpretation. Yet when Senators tried to dig in on judicial philosophy, the Judge deflected and pointed back to the same record she acknowledged would not shed much light. One Senator simply asked the Judge to summarize well-known differences between the approaches of some current Justices. The nominee replied that two weeks’ notice had not been enough time to prepare an answer. President Biden said he would only nominate a judicial activist. Unfortunately, we saw no reason to suspect he accidentally did the opposite.” (Sen. McConnell, Remarks, 3/24/2022)

During His Presidential Campaign, Joe Biden Said He Would Appoint Supreme Court Justices ‘Who Have A View Of The Constitution As A Living Document’ And ‘Have An Expansive View Of The Constitution’

JOE BIDEN: “The people that I would appoint to the Court are people who have a view of the Constitution as a living document, not as a staid document.” (Joe Biden, Remarks At Iowa Campaign Event, Washington, IA, 12/28/2019)

The New York Times’ NICK FOX: “I was kind of curious what kind of person? What are you looking for in the Supreme Court?”
JOE BIDEN: “They have to have an expansive view of the Constitution. Recognize the right to privacy, unenumerated rights that exist in the Constitution. Not the Federalist Society view that if it’s not listed, it doesn’t exist. And they have to be, they acknowledge the unenumerated rights and a right to privacy in the Constitution, and the ‘penumbra’ [laws] and the Ninth Amendment, then in fact that means I know they will in fact support Roe v. Wade. They’ll support a woman’s right to choose and a whole range of other things that relate to individual personal rights. That is critical. I’ve written about it extensively. I’ve written law review articles about it.” (Interview with The New York Times Editorial Board, 1/17/2020)

Biden Also Agreed That He’d Have A Litmus Test On Abortion And That His Appointee Would Have A Philosophy That ‘Would Support Roe v. Wade’

ABC’s DAVID MUIR: “Would there be a litmus test on abortion?”
JOE BIDEN: “Yes. Look, here’s the deal. Litmus test on abortion relates to the fundamental value of the Constitution. A woman does have a right to choose. I would in fact, if they rule it to be unconstitutional, I will send to the United States Congress and it will pass, I believe, a bill that… Excuse me, legislates Roe V. Wade adjusted by Casey. It’s a woman’s right to do that. Period. And if you call that a litmus test it’s a litmus test …” (Democratic Presidential Debate, Manchester, NH, 2/07/2020)

JOE BIDEN: “I would not appoint anyone who did not understand that Section 5 of the 14th Amendment and the Liberty Clause of the 14th Amendment provided a right to privacy. That’s the question I’d ask them. If that is answered correctly, that that is the case, then it answers the question, which means they would support Roe v. Wade.” (Democratic Presidential Debate, Las Vegas, NV, 11/15/2007)

Asked Repeatedly By Republican Senators What Her Judicial Philosophy Is After All Her Time On The Bench, Judge Jackson Could Not Give Any Straightforward Answers

SEN. LINDSEY GRAHAM (R-SC), Senate Judiciary Committee Member: “What is your judicial philosophy?”
JUDGE KETANJI BROWN JACKSON: “So, I have a methodology that I use in my cases in order to ensure that I am ruling impartially and that –“
SEN. GRAHAM: “So, your judicial philosophy is to rule impartially.”
JUDGE JACKSON: “No, my judicial philosophy is to rule impartially and to rule consistent with the limitations on my authority as a judge. And so, my methodology actually helps me to do that in every case.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

Judge Jackson Invalidated Her Own Judicial Experience, Saying That ‘The Issue Of Constitutional Interpretation … Doesn’t Come Up Very Often In The Lower Courts’

SEN. BEN SASSE (R-NE), Senate Judiciary Committee Member: “So, I guess I’m surprised after nine years on the bench that -- I mean, you’re super smart. Nobody disputes that. And having worked for Justice Breyer and knowing of some of the fights -- some of the philosophical arguments he and Justice Kagan had, it just seems surprising that you wouldn’t be able to at least speculate -- not speculate, but reflect a little bit on the nature of those disagreements. Because to say it depends on the particular case, that’s fine, but they have different philosophical and hermeneutic approaches to the text. So, may -- maybe another way to get at it, I think Justice Breyer, again for whom you clerked, and Justice Scalia used to travel together and have lively debate circuit conversations. Can you tell the American people a little bit about what Breyer-Scalia Roadshow looked like? What were they arguing about?”
JUDGE JACKSON: “Well, my understanding is they were arguing, or at least presenting, two different viewpoints as to how the Constitution should be interpreted. And I would say, just as an aside before talking about their positions, 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.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

Republican Senators Tried To Get An Answer A Different Way, Asking If She Considered Her Views Close To Any Current Or Prior Supreme Court Justices, But Judge Jackson Said She Hadn’t Really Thought About That

SEN. GRASSLEY: “There’s 115 justices that served before you, if you are approved by the Senate. Is there any of them, now or in the past, that has a judicial philosophy that most closely resembles your own?”
JUDGE JACKSON: “You know, I haven’t studied the judicial philosophies of -- of all of the prior justices. I will say that I come to this position, to this moment, as a judge who comes from practice; that I was a trial judge and my methodology has developed in that context. I don’t know how many other justices, other than Justice Sotomayor, have that same perspective, but it informs me with respect to what I understand to be my proper judicial role.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

SEN. SASSE: “I think it might be helpful for us to understand who you most identify with, and past nominees before this committee have talked about the mold of particular Justices they thought they followed in. And so, if you had to tell the American people who you’re closest to, who is that Justice, or who are those Justices?”
JUDGE JACKSON: “Well, thank you for the question, Senator. And I must admit that I don’t really have a Justice that I’ve molded myself after or that I would. What I have is a record. I have 570 plus cases in which I have employed the methodology that I described and that shows people how I analyze cases. I, in every case, am proceeding neutrally, from a neutral posture in every case.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

Judge Jackson Could Not Even Explain The Judicial Philosophy Of Justice Breyer, For Whom She Served As A Clerk

SEN. SASSE: “And deciding that something is unconstitutional requires an interpretive framework for how you get there, right? And so, you and I talked to my office about the differences between Justices Kagan, Breyer, and Sotomayor’s judicial philosophies, and you told me that you needed time to study that issue further. So, assuming that you’ve had a chance to think about that a bit more, I guess I’d ask you again, what are the differences among the three of their judicial philosophies?”
JUDGE JACKSON: “With respect, Senator, I have not actually time, with all of my meetings with Senators and the work that I’ve done to appear before you today. I would say that there are differences, as you see from the various opinions that they have issued. I’m not sure which one I would necessarily follow because it depends on the case. I think their differences indicate that they are looking at different provisions.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

SEN. SASSE: “And does Breyer have a different view?”
JUDGE JACKSON: “You know, I haven’t -- I’m just trying to think. I -- my understanding of the living constitutional principle is that it’s closer to looking at the needs of modern society. But I’m not well-versed in it in part because the Supreme Court has now so clearly taken the historical perspective -- the originalist perspective in its interpretations.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

In The Midst Of A Violent Crime Wave, President Biden Selected A Nominee, Judge Jackson, With A Record Of Light Sentences For Certain Offenders And Bending The Law To Reduce Sentences For Others

LEADER McCONNELL: “Third, and relatedly — we are in the midst of a national violent crime wave and exploding illegal immigration. Unbelievably, the Biden Administration has nevertheless launched a national campaign to make the federal bench systematically softer on crime. The New York Times calls this a ‘sea change.’ Is it more likely the Administration chose a Supreme Court nominee who would push against their big campaign, or somebody who would be its crowning jewel? This is one area where Judge Jackson’s trial court records provide a wealth of information. And it is troubling. The Judge regularly gave certain terrible kinds of criminals light sentences that were beneath the sentencing guidelines and beneath the prosecutors’ requests. The Judge herself, this week, used the phrase ‘policy disagreement’ to describe this subject. The issue isn’t just the sentences. It’s also the Judge’s rhetoric in trial transcript and the creative ways she bent the law. In one instance, Judge Jackson used COVID as a pretext to essentially rewrite a criminal justice reform law from the bench and make it retroactive, which Congress had declined to do. She did so to cut the sentence of a fentanyl trafficker while Americans died in huge numbers from overdoses. Judge Jackson declined to walk Senators through the merits of her reasoning in specific cases. She just kept repeating that it was her discretion, and if Congress didn’t like it, it was our fault for giving her the discretion. That is hardly an explanation as to why she uses her discretion the way she does. It was not reassuring to hear Judge Jackson essentially say that if Senators want her to be tough on crime, we need to change the law, take away her discretion, and force her to do it. That response just seems to confirm that deeply-held personal policy views seep into her jurisprudence. And that is exactly what the record suggests.” (Sen. McConnell, Remarks, 3/24/2022)

The Biden Administration Is Creating ‘Is A Sea Change In The World Of Judicial Nominations’ By Selecting Judicial Nominees Who Were Once Defense Attorneys

“The Republican strategy is a response to a concerted push by the Biden administration to diversify the federal bench by nominating more people with experience in criminal defense work, many of them women of color. It is a sea change in the world of judicial nominations, where presidents of both political parties have long shied away from defense attorneys … The type of high-profile murder cases handled by some of Mr. Biden’s nominees would have been considered disqualifying only a few years ago; now the president, who himself served briefly as a public defender early in his legal career, is actively seeking to name more jurists who have such experience, as well as to broaden racial diversity on the federal bench by naming more people of color.” (“As Jackson Faces Senators, Her Criminal Defense Record Is a Target,” The New York Times, 3/16/2022)

One Offender Felt Fortunate He Wound Up In Judge Jackson’s Courtroom, Noting He Might Have Otherwise Spent Multiple Years In Prison Instead Of Just Three Months

“Wesley Hawkins … [knew] [Ketanji Brown] Jackson was the judge who had sentenced him for possession of child pornography nine years earlier, when he was a teenager…. Perhaps most surprising, Hawkins said, was that he found himself feeling sympathy for the judge he had once been angry with for sending him to prison. ‘I wasn’t very happy that she gave me three months, though, after reflection when I was in jail, I was hearing from other people who said it was their first time arrested and they got five years, six years. I feel that she chose to take into consideration the fact that I was just getting started [in life] and she knew this was going to hold me back for years to come regardless,’ he said, ‘so she didn’t really want to add on to that.’” (“Wesley Hawkins, Talk Of The Jackson Hearings, Describes Life After Pornography Sentence,” The Washington Post, 3/25/2022)

Sen. Cotton Explained How Judge Jackson Twisted A Statute To Reduce The Sentence Of A Fentanyl ‘Kingpin’

SEN. TOM COTTON (R-AR), Senate Judiciary Committee Member: “Keith Young was a career criminal who had previously been convicted of trafficking cocaine. In 2017, he was running a drug business in his house where his children lived and was found with two one kilogram bricks of heroin worth hundreds of thousands of dollars, along with a gun, ammunition, thousands of dollars in cash and equipment to cut and package heroin for retail sale. The drug lab also confirmed that there was fentanyl in both bricks of heroin. And in one of the two bricks there was actually more fentanyl than there was heroin. While at the DC jail awaiting trial, Young bragged about his arrest and about how he was a kingpin. ... The prosecutors filed a notice of Young's criminal history which meant he faced a mandatory minimum of 20 years. You did not seem to like that, Judge. In fact, at his sentencing, you said -- this is a quote -- that you shared his frustration that you couldn't give him a lighter sentence. I was shocked to see this in the transcript. I was also shocked that you apologized to this drug kingpin for having to follow the law. You literally said that you didn't think 20 years was fair. This is the quote, ‘And for this I am sorry, mostly because I believe in second chances.’ You apologized to this career criminal, a drug kingpin in his own words. He was not some low level first time drug offender who made a bad -- bad choice.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

SEN. COTTON: “After Young's sentence, Congress passed something called the First Step Act, which reduced sentences for serious drug traffickers with lengthy criminal records. During the pandemic lots of criminals like Keith Young tried to twist the First Step Act's compassionate release provision, which was intended for terminally ill elderly inmates to get early release and blame it on COVID. … You said in the resentencing that quote, ‘Congress did not make their changes under the First Step Act retroactive.’ That if they had, then you could have given him a reduced sentence. But then you said no matter what the law says, and this is a quote, Judge, ‘The court feels as though in this moment per Mr. Young's compassionate release motion the court is being called upon to evaluate the length of his sentence under the revised section of the law in the First Step Act. And so it is almost as if I am sentencing him today.’ ‘And if I were to do so, he would face a sentence that would be well below the 240 months that Mr. Young received. And so for that reason I will grant Mr. Young's motion.’ Judge Jackson before you granted this fentanyl kingpin's motion to reduce his sentence did you contact any of the victims from his case?” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)

Judge Jackson Explained Some Of Her Sentencing Departures By Saying That She Had A ‘Policy Disagreement’ With Sentencing Guidelines

JUDGE KETANJI BROWN JACKSON: “Senator, two observations. One, I am sentencing in every case, I have policy disagreements with certain aspects of the operation of the guidelines that I lay out in every case as Congress has required and as the Supreme Court permits. In light of my experience, not only as a district judge, but also on the Sentencing Commission, which did a report about the operation of the guidelines. …”
SEN. JOSH HAWLEY (R-MO), Senate Judiciary Committee Member: “But the guidelines are not mandatory. I wish they were, but they're not. The Supreme Court made that determination. I'm trying to understand why you think it's rational not to sentence criminals based on the number of images they have. You say that this is a policy disagreement that you have with the guidelines. This gets to the core of your judicial philosophy. You served on the Sentencing Commission where you recommended changes to the guidelines based in part on this policy disagreement. So I think it's relevant and indeed vital we understand what the policy disagreement is. That's what I'm trying to get at.”
JUDGE JACKSON: “Senator, I previously explained what the policy disagreement is and I will stand on my answer.” (U.S. Senate Judiciary Committee Hearing, 3/23/2022)

Judge Jackson Echoed Famous Liberal Former Justice William Brennan’s Line Justifying Judicial Activism

LEADER McCONNELL: “Late on Tuesday, after hours of questioning, I believe we may have witnessed a telling moment. Under questioning about judicial activism, Judge Jackson bluntly said this: ‘Well, any time the Supreme Court has five votes, then they have a majority for whatever opinion they determine.’ That isn’t just a factual observation. It is a clear echo of a famous quotation from perhaps the most famous judicial activist of all time, the arch-liberal William Brennan. The late Justice Brennan told people the most important rule in constitutional law was ‘the Rule of Five.’ With five votes, a majority can do whatever it wants. That’s a perfect summary of judicial activism. It’s a recipe for courts to wander into policymaking and prevent healthy democratic compromise. This is the misunderstanding of the separation of powers that I have spent my entire career fighting against. But President Biden made that misunderstanding his litmus test. And nothing we saw this week convinced me that either President Biden or Judge Jackson’s deeply-invested, far-left fan club have misjudged her. I will vote against this nomination on the Senate floor.” (Sen. McConnell, Remarks, 3/24/2022)

Justice Brennan: ‘Five Votes Can Do Anything Around Here’

“A clerk beginning his tenure with Justice [William] Brennan receives a series of short orientation speeches from his employer…. There is also the five-finger speech. It generally comes when a new clerk asks, in dismay and outrage, how a majority of the Court has arrived at a decision he or she feels is flagrantly unjust. Justice Brennan holds up his hand, wriggles his five fingers, and says, ‘Five votes. Five votes can do anything around here.’” (Nat Hentoff, “The Constitutionalist,” The New Yorker, 3/12/1990)

Judge Jackson: ‘[A]ny Time The Supreme Court Has Five Votes, Then They Have A Majority For Whatever Opinion They Determine’

SEN. KENNEDY: “Can you understand why some Americans go, wait a minute, are justices -- these are unenumerated rights. Are justices interpreting in the Constitution or are they just deciding a right when they get five votes and it's just a moral conviction?”
JUDGE KETANJI BROWN JACKSON: “Yes, Senator, I do understand.”
SEN. KENNEDY: “Okay. Well, when you talk about judicial restraint, where does the restraint start with the -- with fundamental, right -- let's take the Ninth Amendment, okay. What's it say? I know, you know, because you talked about it earlier.”
JUDGE JACKSON: “Well, it says that it indicates that they are rights that -- the fact that there are some enumerated rights in the Constitution doesn't mean that there aren't others.”
SEN. KENNEDY: “And how do -- how are we supposed to determine what others there are?”
JUDGE JACKSON: “I think the Supreme Court has not found any others coming from that particular constitutional provision.”
SEN. KENNEDY: “Could they?”
JUDGE JACKSON: “I can't speak to that, Senator.”
SEN. KENNEDY: “I mean it's possible, right? If they get five votes, right?”
JUDGE JACKSON: “Well, any time the Supreme Court has five votes, then they have a majority for whatever opinion they determine.” (U.S. Senate Judiciary Committee Hearing, 3/22/2022)