The U.S. Senate made history on April 7 by confirming the first Black woman to the U.S. Supreme Court, with the country's first Black vice president presiding. Three Republicans joined all 50 members of the Senate Democratic caucus to confirm Appeals Court Judge Ketanji Brown Jackson, prompting loud applause in the chamber.
There was never any doubt that Iowa's two Republicans would vote against this confirmation. However, Senators Chuck Grassley and Joni Ernst laid out their reasons for opposing Judge Brown Jackson only this week.
As the ranking Republican on the Senate Judiciary Committee, Grassley announced his opposition during the committee's April 4 meeting, where members deadlocked on the confirmation. (Those remarks, as prepared, are enclosed in full below.)
Grassley's Senate floor speech of April 7 covered much of the same ground.
First, Grassley said he and Brown Jackson have "fundamentally different views on the role judges should play in our system of government." He also complained about an alleged lack of disclosure, saying the Obama White House withheld documents "from her time at the sentencing commission," and the current White House didn't hand over "non-public probation recommendations for some of her cases."
According to Grassley, Brown Jackson "misused a motion for compassionate release" to resentence a "drug kingpin." That kind of motion became possible due to the criminal justice reform bill commonly known as the First Step Act, which Grassley helped write and Congress approved in late 2018.
He claimed the judge's "lenient approach to criminal law and sentencing" would make bipartisan work on criminal justice reform "harder to do" in the future.
Speaking on the Senate floor April 5, Ernst praised Brown Jackson as a "highly qualified attorney" who "demonstrated grace under pressure" during her confirmation hearing. But she said she could not support the nomination because of the judge's "apparent lack of a judicial philosophy." (Brown Jackson told the Senate Judiciary Committee she used a "methodology" rather than a "philosophy" when deciding cases.)
Ernst went on to discuss the judge's alleged "lax stance on the sentencing of pedophiles." But like Grassley and most of their Senate Republican colleagues, Ernst voted to confirm at least two appeals court judges nominated by President Donald Trump, who also "previously sentenced defendants convicted of possessing child pornography to prison terms well below federal guidelines."
Bleeding Heartland sought comment from Ernst's staff on whether the senator would oppose those judges now, knowing about that aspect of their records. I also asked whether the senator was aware that many federal judges impose sentences below the guidelines in such cases. There was no reply.
Back to the current confirmation vote: Ernst also cited Brown Jackson's "unverified stance on life issues," as well as the nominee's statement that she was "not a biologist" when asked to define a woman. (Some Republican senators themselves had trouble answering the same question.)
Appendix 1: Prepared Opening Statement by Senator Chuck Grassley during the Senate Judiciary Committee's April 4 Executive Business Meeting:
We have six judicial nominees and one executive nominee on the agenda today.
I’ll be supporting Jennifer Rearden. Ms. Rearden has spent her career litigating at some of the best law firms in the country. She’s familiar with the types of cases that the Southern District of New York handles.
Finally, I’d like to take a few minutes to discuss Judge Jackson’s nomination. Judge Jackson was very personable and engaging. I also enjoyed the opportunity to meet her family before the hearing started. They obviously are, and should be, proud of her achievements.
Having carefully studied her record, unfortunately, I think she and I have fundamentally different views on the role judges should play in our system of government. Because of those disagreements, I can’t support her nomination.
Over the last several weeks, I’ve talked about how the White House and Democrats have shielded important parts of Judge Jackson’s record. We don’t have any non-public documents from her time at the sentencing commission. The Obama White House held back more than 48,000 pages.
Judge Jackson also gave the White House confidential, non-public probation recommendations for some of her cases. But last week we asked for other documents having to do with a probation filing in the Hawkins case.
Judge Jackson told us she can’t get records for her old cases because she’s no longer a district court judge. That’s pretty convenient. However, it is a big inconvenience for this senator.
The refusal tells us that those documents wouldn’t help the nominee because we’ve seen the willingness to leak any helpful information. So senators have to make a decision on her nomination based on the information we have.
As I said when this started, we would thoroughly examine her record and judicial philosophy. We’ve done both.
In the last few weeks, we’ve heard the remarkable argument from Democrats that we shouldn’t consider a nominee’s judicial philosophy in voting.
Democrats have themselves to blame. After vicious, misleading attacks on Judge Bork and other conservatives, Republicans didn’t use those same tactics against Clinton nominees, Ginsburg and Breyer.
Then, you know the history, Senator Schumer decided to bring back attacks on judicial nominees based on judicial philosophy and ideology. In a June 2001 op-ed, Senator Schumer pointed to the Bork nomination and argued it would be good to return to a “more open and rational debate about ideology when we consider nominees.” He clearly thought the Bork nomination was a model.
Over the next few years, Senator Schumer put his Bork strategy into practice. In 2003, he even said he was “proud” of his role in blocking nominees based on ideology. Eighteen years later, Senator Schumer are you still proud you poisoned the water on judicial nominees?
Now he and other Democrats think it’s unfair that we looked at Judge Jackson’s record and asked her about it. That doesn’t hold up to even the lightest scrutiny. Senator Schumer and Democrats decided to destroy the model of deference if a nominee was qualified, excluding consideration of their philosophy.
So that’s why judicial philosophy has become the focus with judicial nominations. At her hearing and in her meetings with senators, Judge Jackson explained she does not have a judicial philosophy. Instead, she has a methodology.
She said to look to her cases to see how that methodology worked. I did, and I found the results of that methodology alarming when Judge Jackson applied it to the First Step Act.
At the hearing, Judge Jackson testified about the compassionate release provisions of the Act.
Senator Cotton walked through a specific case – that of Keith Young – where Judge Jackson misused a motion for compassionate release to resentence a dangerous drug kingpin.
As the lead author of the First Step Act, I know a thing or two about compassionate release.
It’s meant to allow elderly inmates and those suffering from terminal illness to petition the court for a sentence reduction.
The statute also allows for a reduction if the court finds an “extraordinary and compelling” reason.
This is supposed to mean that it’d be a rare instance and used with great discretion, particularly as weighed against the charge, danger to society, and risk of recidivism.
At her hearing, Judge Jackson said that she based her “extraordinary and compelling” finding on the non-retroactive change in the law.
Congress chose which provisions of the First Step Act would apply retroactively. I should know. I wrote it.
The Senate is currently considering legislation that I cosponsored with Chairman Durbin that makes some of the First Step Act retroactive.
But Congress must make that change because the First Step Act didn’t provide for retroactive application in all instances. For instance, retroactivity isn’t mentioned once in the compassionate release statute.
The relevant sentencing guidelines don’t mention retroactivity as an “extraordinary and compelling” reason, either.
So Judge Jackson’s consideration of applying retroactivity to the First Step Act when it’s not explicitly provided is extremely concerning.
Judge Jackson’s interpretation was so extreme that she even got Senator Cotton to defend the First Step Act. I don’t think that’s what the White House had in mind when they said she was a consensus builder.
The other troubling part about this case is that Judge Jackson gave a different explanation of her reasoning in the sentencing hearing than she did before the committee.
She found that Mr. Young’s health and COVID were “extraordinary and compelling reasons” that warranted the reduction of his sentence. But the reasons have to justify the reduction. Reducing his sentence based on a current health condition and a pandemic but leaving him in prison for another seven years makes no sense. Here, it meant that Judge Jackson got to sentence the defendant to the sentence she’d wanted to all along.
The compromise that I brokered with Senator Durbin and many others wouldn’t have been possible if we thought that activist judges would insert their own views into the law. Decisions like this represent serious separation of powers concerns and will make bipartisan work harder to do.
Young is just one example of Judge Jackson’s lenient approach to criminal law and sentencing. She’s declined to apply a number of sentencing enhancements Congress put into the sentencing guidelines.
I’ve worked to reform sentencing for non-violent offenders, but Judge Jackson’s approach applies across most areas of criminal law.
Another case shows that Judge Jackson can apply her methodology to reach a result that goes against the plain meaning of a statute. That case is Make the Road New York v. McAleenan. It involved a question over the meaning of a statutory provision to commit a decision about when illegal immigrants are subject to expedited removal to Homeland Security’s “sole and unreviewable discretion.”
But Judge Jackson concluded she could still review the agency’s decision because this language didn’t mean the decision was “committed to agency discretion by law.”
By reaching that strange conclusion, she gave herself the power to oversee Homeland Security’s decisions about expedited removal.
I think there’s been bipartisan frustration with how little nominees say and how candid they are in hearings. But Judge Jackson wasn’t ready to answer a number of questions other nominees were willing to answer.
One senator asked Judge Jackson about the judicial philosophy for three sitting justices. She said she wasn’t familiar and hadn’t had time to research the issue. This is a question asked in almost every interview for interns and law clerks around the country. We don’t expect a nominee to say that they will agree with a specific justice 100% of the time.
But it’s not asking too much that a nominee be able to explain the justices’ approaches to the law and where they might differ.
Judge Jackson also said she didn’t watch and wasn’t familiar with the Kavanaugh confirmation. That’s pretty surprising for a sitting federal judge who worked in the same courthouse as then-Judge Kavanaugh.
As a member of the committee, it’s hard to satisfy everyone. I’ve had calls to my office complaining about Senator Durbin saying good things about me. Or they argue that I didn’t say enough about how Democrats treated Kavanaugh and Barrett. And then I have Democrats who are saying I was too mean to the nominee.
Throughout this process, I’ve focused on thoroughly and fairly assessing Judge Jackson’s record. I think I’ve done that. We need confidence that judges will interpret the laws as they are written. Judge Jackson’s re-interpretation of laws I’ve helped write does not give me that confidence.
Unfortunately, that means I can’t support her nomination.
Appendix 2: Transcript of Senator Joni Ernst's April 5 remarks on the Senate floor
“In the last two weeks, we’ve heard a lot about…and from Judge Ketanji Brown Jackson.
“I’d like to start off by congratulating Judge Jackson and her family on her nomination.
“I had a wonderful meeting with the Judge earlier this week.
“She is a highly qualified attorney.
“I’d also like to congratulate her for making it through the Senate Judiciary Committee hearing last week.
“The hearing process can be grueling process, but it is extremely important.
“Judge Jackson demonstrated grace under pressure.
“However, I have concerns about Judge Jackson’s nomination and will not be supporting her confirmation to the Supreme Court.
“Perhaps my greatest issue with Judge Jackson is her lack of an adherence to a judicial philosophy.
“I have been very clear with each Supreme Court nominee since I took office that I am looking to support a nominee that prescribes to originalism.
“Judge Jackson explained during the Senate Judiciary hearing that she abides by a judicial ‘methodology,’ instead of a philosophy. This means, according to her, that she begins at a neutral position to understand the facts and to interpret the law, receives all appropriate inputs, and then interprets the law.
“While I would hope that all judges, no matter which court they sit on, approach their rulings from a neutral position and evaluate all applicable court filings, Judge Jackson’s methodology says nothing about the way she understands and subsequently interprets the law.
“In my mind, there are three areas of the law a judge must evaluate—the meaning of the Constitution, statutes, and case precedents.
“Different theories of interpretation sometimes lead to different answers about the meaning of each of these different areas, which is why it is vitally important to know what a Supreme Court nominee’s philosophy is.
“For example, Justice Breyer, whom Judge Jackson clerked for and is nominated to replace on the Court, often described his own judicial philosophy as pragmatic. As a result, Justice Breyer balances the interests and values surrounding a case.
“And while I don’t agree with Justice Breyer’s method of interpretation, Judge Jackson won’t even commit to abiding by this judicial philosophy. And this is very troubling.
“If a justice’s legal interpretation has no philosophical grounding, that provides flexibility for a justice to bend their thinking to achieve a desired outcome, instead of following a structured analysis. We have enough politicians in the legislative branch. We don’t need any in the courts, especially the Supreme Court.
“My concerns with Judge Jackson’s apparent lack of a judicial philosophy is magnified by her other progressive and activist choices.
“Case in point, her lax stance on the sentencing of pedophiles.
“The laws she applied simply hold those who distribute child pornography accountable, considering how often these offenders recidivate.
“Instead, Judge Jackson went out of her way to articulate her discomfort with imposing sentences based upon, in her words, “outdated laws” because the nature of child pornography distribution has changed.
“For the children depicted in these heinous images, it doesn’t matter how they are distributed.
“Judge Jackson afforded leniency to offenders, and previewed for all of us how she applies outdated laws to modern problems.
“Going further, when asked if she supports expanding the number of justices on the Supreme Court, Judge Jackson refused to reject that position.
“Perhaps echoing this thought process, last week Judge Jackson commented that she would be ‘thrilled to be one of however many’ justices. This tells me everything I need to know.
“In addition, Judge Jackson’s unverified stance on life issues gives me great pause.
“During several exchanges at the hearing, Judge Jackson refused to acknowledge when the life of an unborn child begins.
“As a result, the only information I have to evaluate in her previous decision supporting a Massachusetts law that created a ‘buffer zone’ preventing pro-life sidewalk counselors from approaching expectant mothers outside of abortion clinics.
“Without an articulated process on how the Judge would approach a life question in combination with this troubling decision, I have no reassurance that the Judge will not take an activist stance.
“I cannot and will not accept this answer.
“Finally, I’m deeply concerned at Judge Jackson’s response when asked to define a woman.
“The Judge responded that she’s not a biologist.
“Well folks, I’m not a biologist either, but it seems pretty common sense to me.
“I can tell you the voters of Iowa didn’t have to think about the answer to this question when they elected me as the first woman to represent Iowa in the United States Senate.
“I can tell you the Taliban didn’t have to think about the answer to this question when they closed the doors of schools to female students two weeks ago.
“And I can tell you President Biden didn’t have to think about the answer to this question when he nominated Judge Jackson as the first black woman to the Supreme Court.
“While I’m grateful Judge Jackson believes science is the basis for determining a woman, I’m deeply concerned that a fellow woman, who is set to define the contours of laws that are specific to women, has to even think about an answer to that question.
“So, Mr. President, Judge Jackson’s language, or lack thereof, speaks volumes for me and I cannot support her nomination for a lifetime appointment on our nation’s highest court.
Top image: Official White House Photo by Lawrence Jackson, posted on Flickr, of Vice President Kamala Harris (right) with Judge Ketanji Brown Jackson in the Blue Room of the White House on February 25, the day President Joe Biden officially nominated her to the Supreme Court.