03.31.22

Whitehouse Announces Vote to Confirm Judge Ketanji Brown Jackson to Supreme Court

Mdm. President, the reason I am here is to announce my intention to vote for Judge Ketanji Brown Jackson to be an Associate Justice of the Supreme Court, and to congratulate her on the grace and dignity with which she withstood what Chairman Durbin called her “trial by ordeal” in the Judiciary Committee.

Last week, Judge Jackson set the gold standard for patience and courtesy from a Supreme Court nominee. She demonstrated, hour after hour after often agonizing hour, in plain view the qualities that Rhode Islander and Reagan First Circuit appointee Judge Bruce Selya has praised in her: an outstanding legal mind, an exemplary judicial temperament, and a depth of experience in the courtroom that none of the sitting justices possesses.

Judge Jackson reminded us, through her personal story of perseverance and hope, how historic and important it is to have a Black woman about to serve on the United States Supreme Court. That story of perseverance and hope stretches back beyond Judge Jackson’s own life and work into the experience of Black women through American history, and it illuminates a brighter American future. So I will be proud to cast my vote for her confirmation.

During the Judiciary Committee hearing, there were persistent efforts to rewrite Judge Jackson’s own history, to assign to her beliefs she has never espoused. She dispensed with those attempts so effectively that I won’t dwell on them here. But there were other attempts in that hearing to rewrite history that I feel obliged to correct here today.

The first is the notion that a Justice must have a “judicial philosophy.” That’s news to me. If a nominee has a judicial philosophy, it is definitely fair game – it is important to explore that. It’s particularly important to explore that because predisposition can come masked as “judicial philosophy.” But I don’t see where a nominee has to have one, and I’d actually suggest we’re better off if judges don’t — because “judicial philosophy” can so easily be code for predisposition. Republicans persisted in that “judicial philosophy” quest, asking about “judicial philosophy” over 50 times.

The favored theme appeared to be the so-called “judicial philosophies” of originalism and textualism, doctrines which illustrate my concern about predisposition. The big dark-money donors who ushered the last three Justices onto the Supreme Court love the backward look of originalism — a backward look to an era when industry regulation did not exist, because big industry did not exist.

Moreover, Republican justices completely ignore originalism when it suits them: as I pointed out in committee, the entire vast structure of corporate political power in America, erected by Republican justices over years, is a continuing affront to originalism; there was no corporate role in politics in the Constitution, or the Philadelphia Debates, or the Federalist Papers. Any of the customary wellsprings of originalism would say that this is a country to be run by “We the People,” but how happy – how happy – corporate political power makes big Republican donors! So originalism goes out the window and corporate power gets baked into our system.

Unlike those “judicial philosophies” of predisposition and of convenience, Judge Jackson said her judicial philosophy is her methodology — “consistently appl[y]” the “same level of analytical rigor” to a case “no matter who or what is involved in the legal action.” For a judge, following your oath of office, the constitutional precedents of the Court, and the text of the Constitution itself, should suffice. You don’t need a judicial philosophy.

So where did this Republican fascination with judicial philosophy come from? Here are talking points distributed by twinned right-wing dark-money influence groups, the so-called Independent Women’s Law Center and the affiliated, so-called Independent Women’s Voice. These groups are tied in with Leonard Leo’s massive, secretive, $580 million-plus archipelago of front groups like these that make up the right-wing donors’ court-capture operation. They sent these talking points to Republican Senators even before Judge Jackson was selected. These dark-money groups noted, “this nominee is likely to be a woman of color,” and urged that Republicans not argue “that the president’s selection process led him to choose someone who may not be ‘the best person’ for the job.” They said:

It is . . . important that you focus NOT on the selection process or on the nominee’s paper qualifications, but rather on the need to learn more about the nominee’s judicial philosophy. The marching orders were clear, and 50 efforts at judicial philosophy discussion later, we saw these talking points play out in that hearing.

This rewrite of history, to presume that every nominee should have a judicial philosophy, just because right-wing nominees have a fake judicial philosophy of originalism, that turns out to be sourced to right-wing dark-money talking points, seems to me to be an effort to erase the dangers of having a “judicial philosophy,” particularly a judicial philosophy that masks predisposition and is selectively applied.

Another rewrite of history came through the witness chosen to highlight Judge Jackson’s amicus brief defending a 2000 Massachusetts law establishing buffer zones for protests around abortion clinics. The witness was a “sidewalk counselor” – someone who encourages women not to go in and exercise their rights. She seemed like a very nice woman, and she testified that she acted with compassion and love.

But history and my experience don’t align with that image of clinic protestors, as I recall personally. Crowds outside of clinics in Rhode Island in those years leading up to the 2000 law were hostile and intimidating, screaming and accusing of murder, to the point where patients coming in required security escorts to protect them. I remember pink sweatshirts that safety escorts wore outside Planned Parenthood, so that patients could identify who was there to help them and then pass safely. Activists went back and forth between Massachusetts and Rhode Island to protest outside of clinics.

On the morning of December 30, 1994, bad went to worse. A man walked into a pair of abortion clinics in Brookline, Massachusetts. At the first clinic, he shot and killed the receptionist with a modified semi-automatic rifle, then turned on others present – patients accompanying partners, and staff. He left that clinic and traveled to the second clinic, and there continued the slaughter. The man killed two people and wounded five others in this rampage, which shook New England to the core. I was Rhode Island’s United States Attorney when word came out of these shootings at clinics one hour up the road, and that the shooter was still at large. I thought Rhode Island might very well be next, so I went and stood outside the Planned Parenthood clinic just off the highway, with my friend and federal law enforcement colleague U.S. Marshal Jack Leyden, and we stood there on that cold morning until a police cruiser could be posted outside. I’ll just say that the environment that led to Massachusetts’s buffer zone laws passing in 2000 was not an atmosphere of compassion and love, and it is a disservice to the facts to try to rewrite history and pretend that it was.

Another rewrite of history that took place in this hearing was a rewrite of the Brett Kavanaugh hearings. The Judiciary Committee had been provided evidence in those hearings that young Brett Kavanaugh was an out-of-control drinker with a bad history of behavior around women, most particularly the testimony of this woman that she had been physically assaulted as a young woman. You would never know of her testimony from the history rewrite offered by Republicans in the recent hearings. You would never know that she came to the Judiciary Committee, that she testified under oath and intense public scrutiny, that she weathered the attentions of a professional prosecutor hired by the Republicans, that she was calm and credible.

You would never know that the FBI tanked its supplemental background investigation into these allegations, including a tip line whose tips received zero FBI investigation. I’ve described it before as a tip dump not a tip line – the tips related to the nominee were segregated from the regular stream of tips to the FBI tip line and sent, without investigation, to the White House. Republicans sought to erase all of that by rewriting Kavanaugh hearing history during this Supreme Court hearing. Well, she has a face, and she has a name – Dr. Christine Blasey Ford.

And the big rewrite is to ignore all the evidence that our Supreme Court is now a captured Court, captured in the same way that agencies and commissions are sometimes captured by big special interests. There’s a whole literature of administrative law and there’s a whole literature in economics about agency capture or regulatory capture. Well, even before the Trump presidency, big, powerful right-wing donor interests began spending massive sums of money to install justices on the Supreme Court whom they expected to rule reliably in their favor. Very often, as the presiding officer knows, if you can pick the justices, you can pick the winner.

The 5-4 and now 6-3 Republican majority on the Court has been steadily delivering for those donors – over 80 – 80 – 5-4 partisan wins for big corporate and partisan donor interests under Chief Justice Roberts. In those 5-4 partisan decisions, by the way, where there was an easily identifiable Republican donor interest involved, it wasn’t just the 80 decisions that stood out – it was that the score was 80 to 0. Every single one went their way.

Dark money lurked behind the Federalist Society turnstile that picked the justices; dark money lurked behind the secretive agency down the hall from the Federalist Society that ran the ads for them; dark money lurked behind the flotillas of front-group amici curiae who tell the justices, in orchestrated chorus, how to rule. You’d never know any of this from our Republican friends in the committee, but the American people have seen those decisions, and more and more they understand that the Court is rigged – that it is now The Court That Dark Money Built.

Judge Jackson by contrast is a walking reminder of what the Court ought to be. She didn’t pass through the dark-money-funded turnstile at the Federalist Society. She arrived, after a lifetime of accomplishment against unimaginable odds, through a fair and honest selection process – through her merit and abilities. The attacks on her in the committee were unseemly, but there’s no need to dwell on that because at the end of the day, they were “sound and fury, signifying nothing.” Judge Jackson will excel on the Supreme Court, and I will proudly cast my vote to put her there.

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