Sen. Cruz At Ketanji Brown Jackson Hearing: ‘Will You Protect Freedom Or Restrict It?’

As a member of the Senate Judiciary Committee and Ranking Member of the Subcommittee on The Constitution, I gave my opening statement on the first day of the Supreme Court confirmation hearing for Judge Ketanji Brown Jackson Monday. You can watch my opening statement here. The full text of my opening statement is included below.

"Thank you Mr. Chairman. Judge Jackson, congratulates on your nomination.

“Eleven thousand, one hundred and seven men and women have served as members of the House of Representatives. One thousand, nine hundred and ninety four men and women has served as members of the United States Senate. Only 115 men and women have served as Supreme Court justices. The position to which you have been nominated is extraordinarily important. And that is why the Senate is given the responsibility for advice and consent under the Constitution—because the job matters immensely. 

“Supreme Court confirmations were not always controversial. In fact, Bushrod Washington, when nominated to the Supreme Court in 1798, was confirmed the very next day. So what changed? Well, what changed is starting in the 1960’s and the 1970’s, the Supreme Court's role in our society changed dramatically. The Supreme Court became a policymaking body rather than a merely judicial body. Just a moment ago, my colleague Sen. Klobuchar said we should consider the Supreme Court's place in our democracy. Starting in the 60’s and 70’s, the Supreme Court decided its place in our democracy, at least to many justices, was to set aside the democratic decisions of the people and instead to mandate the policy outcomes they themselves supported. 

“Our Democratic colleagues want the Supreme Court to be anti-democratic. Our Democratic colleagues get frustrated with the democratic process when they can't pass gun control laws, because the American people don't support them. They want unelected judges to mandate those same laws instead. Law after law after law that they can't get through the democratic process, the Democrats have decided it's much simpler to convince five lawyers in black robes than to try to convince 330 million Americans.

“That is why Supreme Court confirmation hearings have become so contentious. It’s because the Supreme Court is arrogated to itself a responsibility the Constitution doesn't give it, which is to make contested policy decisions and take them away from the American people. 

“Now, what should this hearing be and what should it not be? Well, you've heard a number of members on the Republican side of the aisle [be] quite clear on what it should not be. This will not be a political circus. This will not be the kind of character smear that sadly, our Democratic colleagues have gotten very good at. And it's important to note, you know, a couple of years ago, I was doing my weekly podcast, and I was on with a noted liberal intellectual who made a comment something to the effect of well, both sides do this, both sides smear Supreme Court justices. And I was forced to laugh out loud and say, look, I understand that's a pretty good talking point, it just happens not to be true. It is only one side of the aisle—the Democratic aisle—that went so into the gutter with Judge Robert Bork that they invented a new verb, ‘to Bork’ someone. It is only one side of the aisle that with Justice Clarence Thomas, was so reprehensible that as the president who nominated him, President George Herbert Walker Bush, wrote at the time quote, ‘What's happening to Clarence Thomas is just plain horrible. All the groups that tried to beat him up on abortion, affirmative action have now come out of the woodwork. They're trying to destroy a decent man…This is an ugly process, and one can see clearly why so many good people elect to stay out of public life.’

“As Justice Thomas observed in that hearing, what happened there was to use his words, ‘a high tech lynching.’ And I would note, the chairman who presided over that disgrace was Joe Biden. 

“And then most of the members of this committee remember the confirmation hearing of Brett Kavanaugh. One of the lowest moments in the history of this committee were Democrats on this committee sat on allegations, didn't refer them to the FBI, didn't ask for investigations, hid them and then leaked them against the wishes of the complaintant. And we began a circus that featured Spartacus moments, featured such nuts as Michael Avenatti, whom CNN breathlessly for some months described as a possible Democratic presidential candidate—that’s before presumably he became a felon in recent months. 

“Judge Jackson, I can assure you that your hearing will feature none of that disgraceful behavior. No one is going to inquire into your teenage dating habits. No one is going to ask you with mock severity, ‘Do you like beer?’ But that's not to say this hearing should be non-substantive and non-vigorous. In this hearing, this committee has a responsibility to focus on issues, to focus on your record, to focus on substance, to do our very best to ascertain what kind of justice you would be. And a couple of straw men—it is no longer the case that Supreme Court confirmation hearings are merely about qualifications. There are some who say, ‘Well, if the justice is qualified, the Senate should confirm.’

“There was a time that was the case. Our Democratic colleagues have abandoned that standard long ago. Our Democratic colleagues—then-Sen. Joe Biden was perfectly happy to vote against John Roberts, someone who was unquestionably qualified for the court. He was perfectly happy to vote against Sam Alito, someone who was unquestionably qualified for the court. And indeed, every member of our Democratic colleagues, who was here at the time, participated in the first ever filibuster of a Supreme Court justice on partisan lines with Justice Neil Gorsuch. They did so for someone unquestionably qualified, but they had a political agenda and so every one of them happily, filibustered Justice Gorsuch. 

“Likewise, it's not about race. We will see Democrats in the media suggest that any senator that is skeptical of your nomination, that questions you vigorously, or that dares to vote against you must somehow harbor racial animus. If that were the standard, I would note we are sitting on a committee where multiple members of this committee, the senior Democrats in the committee, happily filibustered Judge Janice Rogers Brown, a very qualified African-American woman nominated to the D.C. Circuit. And they did so precisely because they wanted to prevent Judge Brown from becoming Justice Brown, the first African-American woman. Joe Biden was among the Democrats filibustering the first African-American woman nominated the D.C. Circuit. 

“The senior Democrats on this committee also filibustered Miguel Estrada. As the staff for Sen. Ted Kennedy said in writing at the time, the Democrats filibustered Miguel Estrada, quote, ‘because he is Hispanic.’ They were explicitly racial. If you dare, if you are Hispanic or African-American and you dare depart from their political orthodoxy, they will crush you, they will attack you, they will slander you, they will filibuster you.

“So this is not about race. It is however, about issues and substance, and I gotta say I agree with Chairman Durbin. Chairman Durbin quoted Paul Simon, and he said, history will judge quote, did she ‘restrict freedom?’ Or did she ‘expand it?’ I agree with that. The reason the American people care about the Supreme Court is it is integral to protecting or taking away our constitutional rights.

“When it comes to free speech, this committee should inquire—will you protect the rights of Americans to speak, to say unpopular ideas, to say ideas that the government doesn't want you to say that you nonetheless have a right to say? Will you protect freedom or restrict it? When it comes to religious liberty, will a justice vote to protect your right to live according to your faith and according to your conscience, or will a justice vote to crush religious liberty and strip those rights away? The Second Amendment—will a justice vote to defend your Second Amendment rights to keep and bear arms, to defend your family, to defend your children, or will a justice roll over to the Democrats that want a disarmed citizenry? The right to life—will a justice protect the rights of the people, the rights of state legislatures to enact laws protecting innocent life, protecting unborn life, stopping abominations like partial birth abortion, or will a justice view her job as a super legislator, striking down all such rights? School choice—will a justice protect the rights of kids to get a quality education or will a justice legislate from the bench and shut down school choice programs across this country? And crime—we are seeing murder rates, carjacking rates, crime rates skyrocketing across the country, in significant part because political Soros-backed district attorneys, because of Democratic efforts to abolish the police, and part of the Democratic effort to abolish the police is nominating justices that consistently side with violent criminals, release violent criminals, refuse to enforce the law, and that results in jeopardizing innocent citizens.

“So all of those questions are fair game. Will you follow the law? What does your record indicate? Will you protect the rights of every American citizen regardless of race, regardless of party, regardless of views? That's what the focus of this hearing should be.”