Opening Statement by Senator Chuck Grassley of Iowa
Member, Senate Judiciary Committee
Business Meeting to Consider Supreme Court Nomination
have six judicial nominees and one executive nominee on the agenda today.
be supporting Jennifer Rearden. Ms. Rearden has spent her career litigating at
some of the best law firms in the country. She’s familiar with the types of
cases that the Southern District of New York handles.
I’d like to take a few minutes to discuss Judge Jackson’s nomination. Judge
Jackson was very personable and engaging. I also enjoyed the opportunity to
meet her family before the hearing started. They obviously are, and should be, proud of
carefully studied her record, unfortunately, I think she and I have
fundamentally different views on the role judges should play in our system of
government. Because of those disagreements, I can’t support her nomination.
the last several weeks, I’ve talked about how the White House and Democrats
have shielded important parts of Judge Jackson’s record. We don’t have any
non-public documents from her time at the sentencing commission. The Obama
White House held back more than 48,000 pages.
Jackson also gave the White House confidential, non-public probation
recommendations for some of her cases. But last week we asked for other
documents having to do with a probation filing in the Hawkins case.
Jackson told us she can’t get records for her old cases because she’s no longer
a district court judge. That’s pretty convenient. However, it is a big
inconvenience for this senator.
refusal tells us that those documents wouldn’t help the nominee because we’ve
seen the willingness to leak any helpful information.
senators have to make a decision on her nomination based on the information we
I said when this started, we would thoroughly examine her record and judicial
philosophy. We’ve done both.
the last few weeks, we’ve heard the remarkable argument from Democrats that we
shouldn’t consider a nominee’s judicial philosophy in voting.
have themselves to blame. After vicious, misleading attacks on Judge Bork and
other conservatives, Republicans didn’t use those same tactics against Clinton
nominees, Ginsburg and Breyer.
you know the history, Senator Schumer decided to bring back attacks on judicial
nominees based on judicial philosophy and ideology. In a June 2001 op-ed,
Senator Schumer pointed to the Bork nomination and argued it would be good to
return to a “more open and rational debate about ideology when we consider
nominees.” He clearly thought the Bork nomination was a model.
the next few years, Senator Schumer put his Bork strategy into practice. In
2003, he even said he was “proud” of his role in blocking nominees based on
ideology. Eighteen years later, Senator Schumer are you still proud you
poisoned the water on judicial nominees?
he and other Democrats think it’s unfair that we looked at Judge Jackson’s
record and asked her about it. That doesn’t hold up to even the lightest
scrutiny. Senator Schumer and Democrats decided to destroy the model of
deference if a nominee was qualified, excluding consideration of their
that’s why judicial philosophy has become the focus with judicial nominations.
her hearing and in her meetings with senators, Judge Jackson explained she does
not have a judicial philosophy. Instead, she has a methodology.
said to look to her cases to see how that methodology worked. I did, and I
found the results of that methodology alarming when Judge Jackson applied it to
the First Step Act.
the hearing, Judge Jackson testified about the compassionate release provisions
of the Act.
Cotton walked through a specific case – that of Keith Young – where Judge
Jackson misused a motion for compassionate release to resentence a dangerous
the lead author of the First Step Act, I know a thing or two about
meant to allow elderly inmates and those suffering from terminal illness to
petition the court for a sentence reduction.
statute also allows for a reduction if the court finds an “extraordinary and
compelling” reason. This is supposed to mean that it’d be a rare instance and
used with great discretion, particularly as weighed against the charge, danger
to society, and risk of recidivism.
her hearing, Judge Jackson said that she based her “extraordinary and
compelling” finding on the non-retroactive change in the law.
chose which provisions of the First Step Act would apply retroactively. I
should know. I wrote it.
The Senate is currently considering legislation that
I cosponsored with Chairman Durbin that makes some of the First Step Act
But Congress must make that change because the First
Step Act didn’t provide for retroactive application in all instances. For
isn’t mentioned once in the compassionate release statute.
relevant sentencing guidelines don’t mention retroactivity as an “extraordinary
and compelling” reason, either.
Judge Jackson’s consideration of applying retroactivity to the First Step Act
when it’s not explicitly provided is extremely concerning.
Jackson’s interpretation was so extreme that she even got Senator Cotton to
defend the First Step Act. I don’t think that’s what the White House had in
mind when they said she was a consensus builder.
other troubling part about this case is that Judge Jackson gave a different
explanation of her reasoning in the sentencing hearing than she did before the
found that Mr. Young’s health and COVID were “extraordinary and compelling
reasons” that warranted the reduction of his sentence. But the reasons have to
justify the reduction. Reducing his sentence based on a current health
condition and a pandemic but leaving him in prison for another seven years
makes no sense. Here, it meant that Judge Jackson got to sentence the defendant
to the sentence she’d wanted to all along.
compromise that I brokered with Senator Durbin and many others wouldn’t have
been possible if we thought that activist judges would insert their own views
into the law. Decisions like this represent serious separation of powers
concerns and will make bipartisan work harder to do.
Young is just one
example of Judge Jackson’s lenient approach to criminal law and sentencing. She’s
declined to apply a number of sentencing enhancements Congress put into the
worked to reform sentencing for non-violent offenders, but Judge Jackson’s
approach applies across most areas of criminal law.
case shows that Judge Jackson can apply her methodology to reach a result that
goes against the plain meaning of a statute. That case is Make the Road New York v. McAleenan. It involved a question over
the meaning of a statutory provision to commit a decision about when illegal immigrants
are subject to expedited removal to Homeland Security’s “sole and unreviewable
Judge Jackson concluded she could still review the agency’s decision because
this language didn’t mean the decision was “committed to agency discretion by
reaching that strange conclusion, she gave herself the power to oversee
Homeland Security’s decisions about expedited removal.
think there’s been bipartisan frustration with how little nominees say and how
candid they are in hearings. But Judge Jackson wasn’t ready to answer a number
of questions other nominees were willing to answer.
senator asked Judge Jackson about the judicial philosophy for three sitting
justices. She said she wasn’t familiar and hadn’t had time to research the
issue. This is a question asked in almost every interview for interns and law
clerks around the country.
don’t expect a nominee to say that they will agree with a specific justice 100%
of the time.
it’s not asking too much that a nominee be able to explain the justices’
approaches to the law and where they might differ.
Jackson also said she didn’t watch and wasn’t familiar with the Kavanaugh
confirmation. That’s pretty surprising for a sitting federal judge who worked
in the same courthouse as then-Judge Kavanaugh.
a member of the committee, it’s hard to satisfy everyone. I’ve had calls to my
office complaining about Senator Durbin saying good things about me.
they argue that I didn’t say enough about how Democrats treated Kavanaugh and
Barrett. And then I have Democrats who are saying I was too mean to the
this process, I’ve focused on thoroughly and fairly assessing Judge Jackson’s
record. I think I’ve done that.
need confidence that judges will interpret the laws as they are written. Judge
Jackson’s re-interpretation of laws I’ve helped write does not give me that
that means I can’t support her nomination.