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U.S. Sen. John Thune (R-S.D.) today spoke on the Senate floor regarding Judge Ketanji Brown Jackson’s nomination to the U.S. Supreme Court.
Thune’s remarks below (as prepared for delivery):
“Mr. President, last week’s Judiciary Committee hearing gave senators the opportunity to hear directly from President Biden’s nominee to the Supreme Court, Judge Ketanji Brown Jackson, to help them decide whether she is an appropriate candidate for the nation’s highest court.
“My approach to deciding whether or not to vote for a Supreme Court nominee – or any judicial nominee – is pretty simple.
“I look at character and qualifications, and most of all I look at the question of whether the nominee understands the limited role of the judiciary and the separation of powers.
“Our federal government, of course, has three distinct branches:
“The legislative branch, which makes the laws.
“The executive branch – the president and executive departments – which executes the laws.
“And the judiciary, which interprets the laws.
“Pretty simple, right?
“Too often, however, Mr. President, our colleagues on the left look to the judiciary to usurp the role of the legislative branch.
“They look for activist judges who will not just interpret the law, but who will go beyond the law to deliver the policy outcomes liberals are interested in – whether that is an aggressive abortion agenda, restraint of the free exercise of religion, or liberals’ preferred approach to immigration.
“President Biden, for example, specifically noted that he would only appoint judges who could be relied on to rule in favor of Roe v. Wade and a right to abortion.
“That’s a big problem, Mr. President.
“Because delivering specific political outcomes is not the job of the judicial branch.
“In our system of government, policy decisions are vested in the legislative branch and are made there by the people’s democratically elected representatives.
“Judges have discretion in applying the laws, but their discretion is to be guided by the plain text of the law and by the intention of the people’s representatives in drafting the statute.
“Otherwise we end up not with government of the people, but with government by an unelected, unaccountable group of judges.
“Mr. President, President Biden has unfortunately placed himself squarely in the camp of those who would like to see the judiciary take an active role in making policy.
“‘The people that I would appoint to the court,’ he said during his campaign for president, ‘are people who have a view of the Constitution as a living document, not as a staid document.’
“Let me just talk about that for a minute.
“Mr. President, what is a constitution if not a staid document?
“If there is no fixed meaning to the Constitution – if it can be stretched and adjusted and expanded by judges at their discretion – then why have a constitution?
“The whole point of the Constitution – of written law in general – is that it is fixed – “staid,” to quote the president.
“The rule of law, equal justice under the law – these concepts rely on the idea that the law has a fixed meaning. That there is one law that applies equally to everyone.
“If the Constitution does not have a fixed meaning, it cannot be the supreme law of the land.
“It cannot be a guide to which we can all appeal.
“A living Constitution, Mr. President, is a meaningless one.
“Of course, that doesn’t mean the Constitution will always stay exactly the same.
“There is a process for amending the Constitution so that needed changes can be made.
“But these changes have to be made through the amendment process with the concurrence of three-fourths of the states.
“That’s not what the president is talking about.
“When the president talks about a living Constitution, he is not talking about periodically amending the Constitution via the process laid out within the Constitution itself.
“What he is talking about is nominating judges who will take it upon themselves to amend the Constitution through their rulings by finding new rights and authorities as needed to advance a particular political agenda.
“And that is deeply concerning – particularly when we’re talking about a lifetime appointment to the highest court in the land.
“And unfortunately, after watching last week’s Judiciary Committee hearing and examining Judge Jackson’s record, I am concerned that her jurisprudence reflects President Biden’s belief in an activist judiciary.
“As has become clear, Judge Jackson has a strong point of view when it comes to sentencing guidelines in certain cases.
“That’s not in and of itself a problem of course.
“Judges can and do have strong opinions about any number of issues that come up in the law.
“What is a problem is that it seems that Judge Jackson has allowed her personal opinions to shape her judicial decisions.
“For example, as a federal trial judge she repeatedly chose to reject sentencing guidelines and the recommendations of prosecutors in favor of lenient sentences for those who possess and distribute child pornography.
“It appears that she had a record of advocating for leniency with respect to these types of crimes during her time at the U.S. Sentencing Commission, and that she then applied those opinions to her sentencing practices when she became a federal judge.
“And for this reason, and more, I am deeply concerned that her record suggests that she would allow her personal opinions on issues like sentencing to shape her decisions on the Supreme Court.
“A Supreme Court justice’s allegiance must be to the plain words of the law and the Constitution – not to any personal political opinion.
“And I am not convinced that Judge Jackson meets that standard.
“And my concern has only been heightened by Judge Jackson’s inability or refusal to define her judicial philosophy.
“It should not be difficult for a nominee to the Supreme Court to lay out her theory of constitutional interpretation.
“Given how often her strong personal opinions have appeared to influence her decisions as a judge, and absent a clearly expressed judicial philosophy that rejects personal opinion in favor of the plain meaning of the law and the Constitution, I am concerned that her judicial approach would follow the “living Constitution” model that President Biden embraces.
“Finally, Mr. President, I was deeply concerned by Judge Jackson’s refusal to reject court-packing.
“Court-packing, of course, is a long-discredited idea that has been revived by members of the far left and increasingly embraced by the Democrat Party.
“The idea behind it is simple – if the Supreme Court isn’t delivering the decisions you want, expand the number of justices until you can be pretty sure you’ll get your preferred outcomes.
“The problems with this approach are obvious – starting with the question of where does it end.
“It’s easy to envision a Democrat-led Congress packing the court with additional Democrat-selected justices, then a Republican-led Congress coming in and matching those new justices with additional Republican-appointed justices, and on and on and on.
“Pretty soon the size of the Supreme Court would be approaching the size of the U.S. Senate.
“Mr. President, I can think of no approach more guaranteed to bring about a complete delegitimization of the Supreme Court.
“Do Democrats seriously think that there is any American who would regard the Supreme Court as a nonpartisan institution after it had been packed full of Democrat justices?
“Or, if it were Republicans who were advancing this court-packing plan, with Republican justices?
“Court-packing would instantly turn the Supreme Court into nothing more than a partisan extension of the legislative branch.
“Which is why it is so concerning that Judge Jackson has repeatedly declined to oppose it.
“Both Justice Ginsburg and Justice Breyer spoke out against court-packing during their time on the Supreme Court, so this is a subject on which Judge Jackson can and should have felt free to speak.
“That she did not do so only underscored my concern that she is too open to allowing politics to shape the judiciary.
“Mr. President, I enjoyed meeting with Judge Jackson, and I respect her achievements.
“But I cannot in good conscience vote for a Supreme Court justice whose record indicates that she will allow her personal political opinions to shape her judicial decisions.
“The rule of law depends upon having justices who decide cases based on the plain meaning of the law and the Constitution – not on personal beliefs or political considerations.
“And I can only vote to confirm a justice whom I believe will respect the separation of powers and the limited role of a justice and refuse to allow her personal opinions to influence her decisions on the bench.
“For these reasons, I cannot support Judge Jackson’s confirmation to the Supreme Court.
“Mr. President, I yield the floor.”