OPINION: This article may contain commentary which reflects the author's opinion.
Senate Minority Leader Mitch McConnell has announced his intention to vote against Supreme Court nominee Judge Ketanji Brown Jackson.
“After studying the nominee’s record and watching her performance this week, I cannot and will not support Judge Jackson for a lifetime appointment to our highest Court,” he said in a speech to the Senate.
“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,” he added.
“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,” the minority leader said.
“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,” he continued.
“This is one area where Judge Jackson’s trial court records provide a wealth of information. And it is troubling,” he said.
“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,” McConnell said.
“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,” McConnell said.
“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,” he concluded.
WATCH:
Earlier this week, Jackson refused to offer a direct answer when asked about packing the Supreme Court with liberal judges.
During her Senate confirmation hearing, Brown, who was nominated by President Joe Biden to replace retiring Justice Stephen Breyer, dodged a question about court-packing.
Below is a transcript of the exchange:
DURBIN: “Another issue which has come up to my surprise, and I have spoken with my Republican colleagues about their fascination with it, is the notion of the composition of the Supreme Court, which euphemistically is referred to as court-packing. I have said on the floor, and I will repeat it here, there is exactly one living senator who has effectively changed the size of the Supreme Court. That was the Republican leader, Sen. McConnell, who shrank the court to eight seats for nearly a year in 2016 when he blocked President Obama’s nomination of Merrick Garland. 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, 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.’ I do believe we should have rules and traditions and precedents, but we shouldn’t have a separate set of rules for Republican nominees and Democratic nominees. 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?”
JACKSON: “Senator, I agree with Justice Barrett and 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. In my view, judges should not be speaking to political issues, and certainly not a nominee for a position on the Supreme Court. So, I agree with Justice Barrett.”
WATCH:
Last year, the Presidential Commission on the Supreme Court voted in favor of approving its final report to President Joe Biden.
The final draft of the 288-page report didn’t offer specific recommendations, but rather provided a summary of arguments for and against critical issues ranging from court-packing to judicial term limits.
Notably, the commission took “no position” on court-packing, which is the liberal idea of adding justices to the Supreme Court.
