Tuesday, March 22, 2022

REPORT: Sen. Grassley Intends to Conduct an Exhaustive Examination of Ketanji Jackson's Record/Views; Senator Refers to 'Obama White House' Three Times

Source: Real Clear Politics

Published: March 21, 2022

By: Ian Schwartz

Sen. Chuck Grassley (R-IA), ranking member of the Senate Judiciary Committee, delivers opening remarks at the confirmation hearing for Judge Ketanji Brown Jackson.

"We will conduct a thorough, exhaustive examination of Judge Jackson's record and views. We won't try to turn this into a spectacle based upon alleged process fouls," Grassley said.


"Unlike the start to the Kavanaugh hearings, we didn't have repeated choreographed interruptions of Chairman Durbin during his opening statements like Democrats interrupted me for more than an hour during my opening statement on the Kavanaugh hearings," Grassley said. "What we will do, however, is ask tough questions about Judge Jackson's judicial philosophy."

SEN. GRASSLEY: Judge Jackson, congratulations. Welcome to you and your family. I thank you for taking time to visit with me in my office after the President nominated you. Since President Biden announced his nominee for the Supreme Court, I've been encouraging my colleagues to schedule meetings with you, Judge Jackson, and they have come off. In addition, I've continually emphasized the need for a thorough respect for access by the committee.

Now I want to talk a bit about what everyone watching should expect from this hearing and what they should expect at the hearing. We will conduct a thorough, exhaustive examination of Judge Jackson's record and views. We won't try to turn this into a spectacle based upon alleged process fouls. Good news on that front.

We're off to a very good start. Unlike the start to the Kavanaugh hearings, we didn't have repeated choreographed interruptions of Chairman Durbin during his opening statements like Democrats interrupted me for more than an hour during my opening statement on the Kavanaugh hearings. What we will do, however, is ask tough questions about Judge Jackson's judicial philosophy.

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In any Supreme Court nomination the most important thing that I look for is the nominee's view of the law, judicial philosophy, and view on the role of a judge in our constitutional system. I'll be looking to see whether Judge Jackson is committed to the Constitution as originally understood. We all know there's a difference of opinion about the role judges should play.

Some of us believe judges are supposed to interpret the law as it was understood when written, not make new law or simply fill in vacuum. Those of us who share that view think that under our Constitution Congress and not the federal courts are given the authority to make law and to set policy. Now there are others who believe that the courts should make policy.

They believe in a so-called living constitution. They think that the Constitution's text and structure don't limit what a judge can do. To them deciding what the Constitution means is really a quote unquote value judgment. Under that approach, judges can exercise their own independent value judgments. One of the leading advocates for this approach explained that as a judge you quote, "Reach the answer that essentially your values tell you to reach," end of quote.

In other words, those who subscribe to this philosophy think that the founders really meant to hide elephants in mouse holes. Then with a bit of creativity these judges can always find that elephant. That sounds like a good job description instead for legislators and not for judges. But for at least four years, Democrats sys -- systematically voted against many well-credentialed nominees that were diverse professionally, diverse geographically, diverse religiously, and rever -- diverse ethnically.

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Was it racist or anti-women for them to do so? I don't believe that it was. Democrats did it because the nominees didn't agree with living constitutionalism, just as Republicans have opposed nominees based upon their judicial philosophy. There are lots of problems with living constitutionalism. In the Senate, we spend a lot of time writing legislation.

We argue over the language. We negotiate over how broad or narrow certain provisions of laws should be. If we can't convince our colleagues to adopt all of our ideas we have been known to compromise every once in a while. We depend on judges to interpret laws as we write them. If judges impose their own policy preferences from the bench and essentially revise the laws we passed, it makes it harder for us to write good laws.

Sometimes we need to include a provision that's very broad to get a colleague's support. If a judge rewrites the law later because of vague notions about fairness or equity or common good that unravels all of our work here in the Congress. More importantly, the American people should be able to read the law and know what it means.

They shouldn't have to ask how a federal judge who disagrees with a law could reinterpret the words on that page. All of this leads to the conclusion as to why we must carefully examine federal judges' records, especially Supreme Court nominees. Judge Jackson has served as an assistant public defender, worked in private practice, and served on the United States Sentencing Commission.

She also served as a federal district court judge from 2013 to 2021. She served on the DC circuit since June last year. I'm sure Senators will have a few questions for Judge Jackson about the two opinions she's authored since joining the DC circuit. As for her district court record, there have been some accusations that we cherry pick some of Judge Jackson's criminal cases.

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Well, don't worry. We're going to talk about other cases as well. I was disappointed that we weren't able to get bipartisan agreement to ask for Judge Jackson's documents from her time as Vice Chair of the Sentencing Commission. The commission is an independent agency created to advise and assist Congress and the executive branch in the development of effective and efficient crime policy.

And that's a quote. Unfortunately, it sounds like we'll have to wait until those documents are required to be released and that will be about 20 years from now. Democrats have argued for time -- Democrats have argued that Judge Jackson's time on the commission is an important part of her experience that she'll draw on as a judge.

The Democrats are right on that point. That's why it would have been good to see what her views were as the head of the commission explained in a letter to Senator Durbin, the public documents turned over to this committee represent the consensus views of the commission and not necessarily Judge Jackson's own views.

The Obama White House sent us roughly 68,000 pages of material, but more than 38,000 of the 68,000 pages are repeated copies of emails, threads that keep the track -- keeping track of the tweets about the Garland nomination. Those emails contain just one tweet about Judge Jackson. More than 13,000 of the 68,000 pages are just a list of previous nominations.

So that leaves only 16,000 of 68,000 that we received from the White House that aren't obviously useless like all the other documents received. But for comparison, the White House has still withheld 48,000 pages under the Presidential Records and FOIA exemptions. Now that's a lot of hiding. But the limited number of useful records that we received from the Obama White House show exactly why the Sentencing Commission documents would have been important.

There are a number of dark money groups on the left that argue federal judges should make policy decisions based on judges' own values. I've talked about the troubling role of far left dark money groups like Demand Justice have played in this Administration's judicial selection process. When the de -- Demand Justice isn't creating shortlists for President Biden to pick judicial nominees from or putting out new litmus tests, they're running ads campaign -- ca -- campaigns attacking the independence of the judiciary.

They've strongly supported the so-called progressive prosecutors who are soft on violent crime in the face of rising crime waves in cities like San Francisco, Philadelphia, Boston, and New -- Los Angeles. Now, what does that have to do with the nominee before us? The Obama White House Records indicate that a co-founder of the Demand Justice played an important role in Judge Jackson's nomination to the Sentencing Commission and the District Court. The Demand Justice Co-Founder even interviewed Judge Jackson about the nomination to the Sentencing Commission.

It would be helpful to know what Demand Justice Co-Founder learned from that process and why they strongly support Judge Jackson. However, it hasn't all been bad on the document front, I want to make clear. We'd ask for briefs that aren't available online for D.C. circuit cases Judge Jackson worked on as an attorney At first, we were told they might not be available for a few weeks, but to our pleasant -- pleasant surprise we received them early, apparently because the White House had asked for the documents as well.

Judging by timetable, We were originally given to get the briefs, that request was made after she was announced. Now those documents concern Judge Jackson's time as assistant federal public defender. Democrats have accused Republicans of vilifying nominees who have represented criminal defendants. That's just not the case, and I think that's a very unfair accusation.

Previous Supreme Court nominees have also represented criminal defendants on Appeals. Chief Justice Roberts was appointed by the Supreme Court to represent a defendant in an important criminal law case and he also helped represent an in -- inmate in a Florida death row. And Justice Barrett represented a criminal defendant appealing their conviction while she was in private practice.

Now, I've distinguished between two types of nominees who have worked in criminal cases. There are Bill of Rights attorneys who want to protect defendants' constitutional rights. Then there are what I've called criminal defense lawyers who disagree with our criminal laws. They want to undermine laws that they have policy disagreements with and, of course, that's a very important difference.

Just a year ago -- no, maybe it's now two years ago -- Democrats had no trouble opposing nominees based on arguments these nominees made on behalf of clients. I could read off quotes of Democrats doing that to Trump nominees, but we only have a few minutes For these opening statements, and I'd run out of time.

Read more at: RealClearPolitics.com
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