Sen. Mike Lee outlined what he will be looking for in a U.S. Supreme Court justice as Senate confirmation hearings started Monday for Judge Ketanji Brown Jackson.
The Utah Republican also expressed opposition to the idea of expanding the nine-member court as he has done in previous confirmation hearings, noting Justice Stephen Breyer, the liberal justice Jackson would replace and for whom she worked as a law clerk, also opposed so-called court packing.
“We must protect the court,” Lee said. “We lose the ability to protect the court if we allow arguments to take root that are focused on expanding that and turning the court into a political body.”
Members of the Senate Judiciary Committee made 10-minute opening statements on Monday, with at least two days of questioning to follow Tuesday and Wednesday. Witnesses are expected to testify Thursday.
Retired Judge Thomas Griffith, a BYU graduate and former general counsel at the university, and Lisa Fairfax, a professor at the University of Pennsylvania law school, introduced Jackson for her opening remarks after the senators’ comments.
Griffith was nominated to the U.S. Court of Appeals for the D.C. Circuit in 2004 by President George W. Bush. He said some find it noteworthy that a Republican appointee would “enthusiastically” endorse a Democratic president’s Supreme Court nominee.
“That reaction is a measure of the dangerous hyperpartisanship that has seeped into every nook and cranny of our nation’s life and against which the framers of the Constitution warned us,” he said.
Griffith said there should be nothing unusual about his support for Jackson, who he said has shown a commitment to the rule of law and an impartial judiciary. He described her as having high character, keen intellect, deep legal knowledge, broad experience and faith in God.
As an appeals court judge, Griffith said he has had many opportunities to review and observe Jackson’s work as a judge. Although they did not always agree on the outcome the law required, he said he respected her diligent and thoughtful approach as well as her collegiality.
Jackson, he said, is an independent jurist who adjudicates based on the facts and the law and not as a partisan.
“Her rule is simple: Follow the law,” Griffith said.
President Joe Biden chose Jackson, who has been confirmed by the Senate three times before, to replace Breyer, who is retiring at the end of the current term, typically late June or early July. Jackson, a federal appeals court judge in Washington, D.C., is the first Black woman to be nominated for the Supreme Court.
“Not a single justice has been a Black woman. You can be the first,” Sen. Dick Durbin, D-Ill., the committee chairman, told Jackson. “It’s not easy being the first. In some ways you have to be the best, in some ways the bravest.”
In her comments to the committee, Jackson again expressed her faith in and gratitude to God.
“Even prior to today, I can honestly say that my life has been blessed beyond measure,” she said.
Jackson thanked her family, including her brother-in-law and his wife who live in Park City, and friends and mentors who have supported her.
If confirmed, Jackson said she would work productively to support and defend the Constitution. She said she knows her role as a judge is a limited one and constrained by careful adherence to precedent. She said her written opinions tend to be long because she believes in being transparent so people know what she thinks and the basis for her decision.
Lee said he intends to make sure the hearings are respectful, saying the “politics of personal destruction is not something we should ever aspire to.” When senators focus on things that “we have no business doing like bringing forward spurious last-minute, uncorroborated accusations of a personal nature,” they neglect talking about the nominee’s judicial philosophy, he said.
In his questioning of Jackson in the coming days, Lee said he would focus on her commitment to judicial self-restraint, judicial humility and separation of powers.
“Any judicial nominee these days will acknowledge that he or she understands that the role of the judge is to interpret the law based on what it says, rather than on the basis of the judge’s personal opinion,” he said.
The senator said he’s looking for someone who would echo what Justice Amy Coney Barrett said during her confirmation proceedings when she likened the commitment to the Constitution as Odysseus tied himself to the mast of his ship to resist the song of the sirens.
The Supreme Court’s role, he said, is to resolve disputes in the law, whether in the Constitution or passed by Congress. Jurists need to respect that role and demonstrate judicial humility, Lee said.
“What I mean by that is an ability to acknowledge that there are a lot of things not within the province of the courts that entail policy,” he said. “The job of the court, of the judiciary, is never to exert will or force. It is only judgment, discerning what the law says.”
Lee said a justice should interpret the law as it was written and understood by the public at the time it was enacted or ratified as part of the Constitution.
“This is how we maintain the rule of law,” he said.
Jackson, who Lee said stands “very decent likelihood” of being confirmed, would bring a unique set of experiences to the court. He noted she would be the first Supreme Court justice to have served as a federal district court judge and a federal appellate court judge.
“You will have a different perspective than that of most who have served on the court in the modern era,” Lee said.
Jackson also would be the first justice to have worked as a federal public defender.