By Dave Andrusko
The Senate voted today 53-47 to confirm Judge Ketanji Brown Jackson as the next associate justice of the Supreme Court. All 50 Democrats voted in favor, all but three Republicans–Mitt Romney, Lisa Murkowski , and Susan Collins—voted against.
She will replace Associate Justice Stephen G. Breyer after the Supreme Court’s term ends in late June or early July.
“Most nominees take their oaths quickly after they are confirmed, but Breyer’s unusual timetable means that cannot happen immediately,” Mike DeBonis , Robert Barnes, and Seung Min Kim reported. “A confirmed nominee cannot become a justice until she has taken an oath to support the Constitution and a separate judicial oath to ‘administer justice without respect to persons, and do equal right to the poor and to the rich.’”
In remarks made earlier today, U.S. Senate Republican Leader Mitch McConnell (R-KY) said “I see hallmarks of judicial activism in Judge Jackson’s record and will vote ‘no.’” His full remarks are posted below.
The last few weeks have confirmed a pattern that has played out repeatedly in recent decades. When Republican presidents make Supreme Court nominations, the far left and the media melt down. Absurd allegations, conspiracy theories, cheap gimmicks, and apocalyptic rhetoric are guaranteed.
But when Democratic presidents make nominations, Senate Republicans inquire about past rulings and judicial philosophy, and the country gets the serious process it deserves.
On Tuesday, I explained how 30 years of escalation by Democrats ushered in this assertive period for the Senate regarding judicial nominations. Now, and for the foreseeable future, the Senate views itself as a co-partner in this process.
On Wednesday, I walked through Judge Jackson’s long and disturbing record of using judicial activism to go soft on crime. Today, I need to discuss how these disagreements affect the very bedrock of our Republic.
For multiple years now, the Democratic Party has waged an aggressive campaign to bully our independent Justices and attack the legitimacy of their institution. When the plain text of our laws and Constitution disappoint liberals’ policy preferences, they mount radical campaigns to wreck the Court.
This civic cancer began on the fringe, but it’s quickly metastasized through their party. Three years ago, sitting Senate Democrats sent the Court an absurd amicus brief, threatening retribution for a certain ruling.
Two years ago, the Democratic Leader rallied with radicals on the Court’s steps and threatened multiple Justices by name if they didn’t produce the policy result he preferred. Last year, when fringe activists wanted to dig up the discredited concept of partisan court-packing, President Biden lent it legitimacy with a presidential commission.
Now, just recently, the Senate Democratic Whip said that his side’s court-packing proposals don’t matter because they lack 60 votes to pass the Senate. This was cold comfort considering the Senator just voted to destroy the 60-vote threshold a few months back. So this nomination has occurred against a strange backdrop. The same Democrats who’ve spent weeks fulsomely praising Judge Jackson have spent years attacking her soon-to-be workplace.
This is why I needed to hear Judge Jackson denounce court-packing. Justices Ginsburg and Breyer had no trouble condemning these schemes loudly as sitting Justices. Surely President Biden could find himself an institutionalist in their mold.But Judge Jackson was the court-packers’ favorite pick for this vacancy. And she refused to follow the Ginsburg-Breyer model. She signaled the opposite. She said she’d be ‘thrilled to be one of however many.’
The left’s escalating war against the judiciary is a symptom of a profound misunderstanding. Judicial activism sees the Court as a third legislature. The left wants one policymaking body with 435 members, one with 100, and one that consists of nine lawyers. But that isn’t what the Founders created and it’s not what the American people signed up for.
We have seen over and over that when judicial activism triumphs over fidelity to the rule of law, our courts mutate into clumsy proxy battlefields for arguments that belong in this chamber and in 50 state legislatures. This is unfair to the American people and it damages our institutions, not least the courts themselves.
There is only one way to lower the temperature, depoliticize the courts, and protect the rule of law: Confirming only judges who will honor the Constitution and not supplant it. The road to a healthy Court and a healthy country is not striking some ‘balance’ where some Justices stick to the text and some Justices try to make policy. The solution is for all the Justices to stay in their lane.
There is one right number of Justices who seek to follow the law. It is nine. There is one right number of Justices who seek to make policy. It is zero.
There are jurists and scholars with personal views across the political spectrum who understand that all judges should be textualists and constitutionalists in their day jobs. That must be the Senate’s standard.
I see hallmarks of judicial activism in Judge Jackson’s record and will vote ‘no.’ Nevertheless, our Democratic colleagues are on track to confirm our next Supreme Court Justice.
And do you know what won’t happen? Top Republicans will not imply she’s illegitimate. We will not call for court-packing. I won’t be joining any mobs outside her new workplace and threatening her by name.
Democrats must stop their political siege of the institution that Judge Jackson is about to join. They must stop their assault on judicial independence.
We’re about to have a new Justice whose fan club has openly attacked the rule of law. So Judge Jackson will quickly face a fork in the road. One approach to her new job would delight the far left. A different approach would honor the separation of powers and the Constitution.
The soon-to-be Justice can either satisfy her radical fan club or help preserve the judiciary that Americans need. But not both.
I’m afraid the nominee’s record tells us which is likely. But I hope Judge Jackson proves me wrong