Mar 31 2022

Graham Opposes Jackson Nomination to the Supreme Court

WASHINGTON – U.S. Senator Lindsey Graham (R-South Carolina) today announced he will oppose and vote against the nomination of Judge Ketanji Brown Jackson to the Supreme Court.

“I oppose and will vote against the nomination of Judge Jackson to the Supreme Court,” said Graham. “My decision is based upon her record of judicial activism, flawed sentencing methodology regarding child pornography cases, and a belief that Judge Jackson will not be deterred by the plain meaning of the law when it comes to liberal causes. I find Judge Jackson to be a person of exceptionally good character, respected by her peers, and someone who has worked hard to achieve her current position. However, her record is overwhelming in its lack of a steady judicial philosophy and a tendency to achieve outcomes in spite of what the law requires or common sense would dictate. After a thorough review of Judge Jackson's record and information gained at the hearing from an evasive witness, I now know why Judge Jackson was the favorite of the Radical Left.”

Sentencing in Child Pornography Cases:

GRAHAM: “Judge Jackson has taken off the table two sentencing enhancement factors that I think are vital to deter the explosion of child pornography on the internet.

“Judge Jackson will not enhance the sentence of a child pornographer based on the volume of material possessed. She will not enhance a sentence based on the perpetrator’s use of a computer.

“These decisions destroy deterrence in this area and show a lack of appreciation for how the internet has become the venue of choice for child pornographers.”

  • In Senate Judiciary Committee hearings, Judge Jackson said she felt it was unfair to the child pornographer to enhance a sentence due to the volume of downloads because it is so easy to press a button and accumulate hundreds or thousands of images. 
  • It is unfair to the victims of child pornography to not aggressively punish perpetrators. Every download represents a violation of a child, and the National Center for Missing and Exploited Children (NCMEC) estimates that there are over eighty-five million images involving sexual exploitation and abuse of children on the internet today.
  • Judge Jackson’s approach to sentencing in this area shows poor judgment and a lack of understanding of how to deter this heinous crime.
  • While Judge Jackson was personally offended by the nature of these crimes, her lenient methodology in sentencing will only make the problem of child pornography worse.

Guantanamo Bay and the Law of War:

GRAHAM: “My problem with Judge Jackson is not the fact that she represented Guantanamo detainees, but the fact that she exhibited an activist zeal in how she characterized the detainees and called the Bush Administration “war criminals” in legal briefs. This is the language of the Left.

“Judge Jackson also advocated for ending Law of War indefinite detention of enemy combatants. Without this tool, many enemy combatants captured on the battlefield would be released from custody and return to the fight.”

  • Judge Jackson would be the first public defender to serve on the Supreme Court, and her representation of Guantanamo Bay detainees as a District of Columbia Public Defender should be applauded. Lawyers are required to represent people they may find personally repulsive, and our system allows everyone legal representation where appropriate.
  • While every lawyer should vigorously defend their client, Judge Jackson's amicus briefs and her habeas petitions demonstrate an activist approach to ending Law of War detention. 
  • When it comes to fighting radical Islamists, we are not fighting a crime – we are fighting a war. 

Activism on the Bench:

GRAHAM: “No one wants a judge who ignores the law to achieve personal ends.”

  • In the immigration case of Make the Road New York, et al. v. McAleenan, Judge Jackson ruled for the plaintiff, an Arabella activist group, who sought to limit the discretion of the Trump Administration when it came to utilizing expedited deportation procedures available under the statute.
  • The Trump Administration decided to be more aggressive than the Obama Administration and use the full range of options available under the congressional statute authorizing expedited removal for those illegal immigrants in the United States for two years or less.
  • The lawsuit brought by Make the Road New York claimed that this decision was arbitrary and capricious among other things. But the plain wording of the statute said that this decision was in the “sole and unreviewable discretion” of the agency and therefore couldn’t be taken up in court.
  • In spite of this clear dictate and limitation, Judge Jackson ruled for the plaintiff, holding that the discretion exercised by the Trump Administration was arbitrary and capricious.
  • The DC Circuit forcefully reversed Judge Jackson saying: “There could hardly be a more definitive expression of Congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgment. The forceful phrase ‘sole and unreviewable discretion’ by its exceptional terms, heralds Congress’s judgment to commit the decision exclusively to agency discretion.”

Double Standards on Conservative Judicial Nominees:

GRAHAM: “My Democratic colleagues often note the historic nature of Judge Jackson's nomination as she would be the first African American female to serve on the Supreme Court.

“I support the idea of making the Court more like America. However, the people celebrating this nomination are the same people who filibustered and blocked President George W. Bush's nominee Janice Rogers Brown, an African American member of the California Supreme Court, to the District of Columbia Court of Appeals for two years. 

“It speaks volumes about their true desire. The true goal of Democrats is to make the Court liberal, not diverse.

“Finally, when I hear comparisons of Judge Jackson’s hearing to that of then-Judge Kavanaugh, it reminds me how in-the-tank the media is for the liberal cause.

“In the Senate Judiciary Committee, Judge Jackson was asked probative questions. However, no one withheld allegations from Judge Jackson or the committee, as was the case in Judge Kavanaugh’s hearings. Many Senate Democrats were willing to push false allegations against Judge Kavanaugh as if they were true. They were willing to push unsubstantiated allegations that defied scrutiny to keep Judge Kavanaugh off the Court. They wanted the pick to fill the seat to be made by a Democratic President. Nothing was off-limits or out of bounds.”

  • During President George W. Bush's term, Chairman Durbin, Senator Schumer, and many other members of the Senate Judiciary Committee actively filibustered Janice Rogers Brown. Attacks against her were based on her philosophy – she was too conservative. 
  • It appears conservative African American nominees can be roundly attacked for their philosophy, but the same does not hold true for those in the liberal camp.
  • When President Biden was in the Senate, he stated that if Janice Rogers Brown were nominated to the Supreme Court she would most likely be filibustered. In an interview, then-Senator Biden warned President Bush against nominating Brown, saying: “I can assure you that would be a very, very, very difficult fight and she probably would be filibustered.”

In Conclusion:

GRAHAM: “Judge Jackson’s hearing was challenging and informative, the nature of which you would expect for a lifetime appointment.

“The refusal by Chairman Durbin to release the presentence reports, even in a confidential manner that would respect victims’ sensitive information about those sentenced by Judge Jackson in the area of child pornography is beyond unacceptable. Every senator deserves to know facts pertinent to the nominee’s record as a judge and the consequences of their decisions. These records shed light on whether or not there were indications of recidivism in the area of child pornography by those sentenced by Judge Jackson. Such information is being denied.

“The White House, the Democrats on the Judiciary Committee, and Judge Jackson herself are refusing to allow an appropriate, in-camera review of cases presided over by Judge Jackson. I can only imagine if the shoe were on the other foot.

“It is well-known that I openly supported U.S. District Court Judge Michelle Childs from South Carolina for nomination to the Supreme Court. She is a well-respected African American District Court Judge in South Carolina, admired by all in our state.

“When her name was mentioned as a potential nominee, the Radical Left declared war on her nomination and gave their full support to Judge Jackson. There's no doubt in my mind that Judge Childs would have been a reliable vote for the liberal bloc of the Court, but I do believe that she possesses the open mind and balance that all Americans are looking for. She would have received a strong bipartisan vote in the Senate.”