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NOMINATION OF KETANJI BROWN JACKSON
Mr. DURBIN. Mr. President, I was disappointed but not surprised that Senator McConnell came to the floor and announced that he would not support the nomination of Ketanji Brown Jackson, by President Biden, to fill the vacancy of Stephen Breyer on the U.S. Supreme Court.
Just this morning, or early afternoon, we wrapped up the 4-day process in the Senate Judiciary Committee to consider her nomination, and that is why some of the statements which the Senator made in justifying his opposition, I believe, need to be addressed. I will be brief in doing so, but I wanted to make a record of it quickly.
It seems that he is concerned, as many Republicans are, with the notion of packing of the Court. The notion behind that is that the Democrats are inspired to appoint some number of new Justices to that Court--maybe four--and, thereby, tip the balance back toward the Democratic side.
The question, obviously, before us is, Where does that idea come from?
I will be honest with you, even as chairman of the committee, I don't know. I suppose there are some academics and theorists and researchers who believe that is well worthy of conversation, but let's be honest about this issue which seems to consume the Republicans in the Senate.
There is only one U.S. Senator who has had a direct impact on the composition of the U.S. Supreme Court in modern memory. Who was that Senator? It was Senator Mitch McConnell, of Kentucky, because he decided to keep the Court at eight Justices for almost a year after the death of Antonin Scalia. He refused to give President Obama his constitutional and legal option of filling the vacancy from the Scalia departure on the Court, and for a year, Mitch McConnell, for his own political purposes, kept the Court's composition at eight. So, when it comes to moving the numbers of Justices, he has retired the trophy in modern times because he was the one who did it.
When he starts speculating about the possibility of, ``Well, maybe they will add one, two, three, or four more Justices if the Democrats get an opportunity,'' I happen to know--and the Presiding Officer does as well--that nothing is going to happen in changing the composition of the Court unless it passes the U.S. Senate, which, under current rules, requires 60 votes. There are currently 50 Democrats and 50 Republicans. So the likelihood of ``packing the Court'' is very unlikely in the near future unless some decision is made by the electorate that dramatically changes that.
In the meantime, we are in a situation wherein we have a vacancy on the Court which we are trying to fill with a very competent person, and this notion of packing the Court being the No. 1 issue in deciding is beyond me. There is no sinister conspiracy that I am even aware of that suggests that this is an agenda item for the Democrats. Of course, we would like to see the Court be more sympathetic to our point of view, but there is no grand plan for this to happen.
Incidentally, the Constitution of the United States--I usually keep a copy in my desk here--does not mandate the number of Supreme Court Justices. We have had various numbers over the years, and we arrived at the number of nine in 1869. I believe that was the year. So it has been a tradition on the Court since that time.
The answer by Ketanji Brown Jackson--a Federal judge, a DC Circuit judge--was the obvious answer when asked about whether she wanted to pack the Court. She said: Senator, that is not my job. I would be a judge. You are a legislator, and you would have the power, if you wished, to change the composition of the Court. I, as a judge, don't have that authority.
So to make that the No. 1 reason you can't support her nomination is less than compelling.
The second thing he raised was one we heard over and over again. Judge Jackson, what is your philosophy? Tell us your philosophy when it comes to the Court. What is your judicial philosophy? We want to make sure we know.
Well, there are different schools of thought when it comes to the Constitution. Antonin Scalia was a so-called originalist, and Supreme Court Justice Kavanaugh is a textualist, I believe, and there may be many other schools of thought.
The bottom line is, she has said: I have published 578 written opinions. If you want to know what I think about the law, here is my body of work--take a look at it--on almost every topic under the Sun.
So, if you want to know how she rules and what she thinks, she can represent whatever she wishes, but her words already speak for themselves. She has been very open and has provided 12,000 pages from her time on the Sentencing Commission that also reflect her views on very important topics.
There is also the old saw. We knew it was coming. The Republicans are testing their messages for the November election, and I will bet you have heard some of them.
One of them is that Democrats are soft on crime. They said that about Judge Jackson, but they have got a problem. Judge Jackson has been endorsed by the Fraternal Order of Police, the International Association of Chiefs of Police, and NOBLE, the National Organization of Black Law Enforcement Executives, in addition to other law enforcement leaders.
She has a history in her family of brothers and other members, uncles, who have been in law enforcement, risking their lives for the safety of their communities over and over. One of her uncles is the chief of police of Miami, FL.
This woman is no stranger to law enforcement. It is part of her family; it is part of what she grew up in. To argue that she is ``soft on crime'' ignores the obvious. She has got it in her blood. She is going to be fair, I am sure, when she is on the Supreme Court, but she has no prejudice against police groups. It is part of her family history.
There is also the question about giving light sentences. We spent more time on this than one can imagine.
Three or four Republican Senators were dwelling on her sentencing in a handful of cases and wouldn't let go of it, day after day for 2 straight days. They refused to acknowledge--and the reality is--that her choice of sentencing guidelines was within the same limits and boundaries of 70 percent of current Federal judges; in some regions, 80 percent. She was not out of the mainstream; she was directly in the mainstream when it came to sentencing. You would think the opposite was true.
When you look at these facts and realize that here is our opportunity to put the first African-American woman on the U.S. Supreme Court and that these are the best arguments they could come up with against her, it really troubles me.
I sincerely hope--I really hope and not just because I want to make sure she is on the Court--that we will have bipartisan support for her nomination. If this turns out to be a strictly partisan vote with this historic opportunity, it will be sad, sad for our country and sad as a commentary on where the parties are today.
I am hoping--I am still hoping--that several Republicans and, I hope, many more will step forward and support her nomination. I am disappointed in Senator McConnell's decision, but I am not surprised.
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SOURCE: Congressional Record Vol. 168, No. 53
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