Lankford Votes No on Supreme Court Nominee

CLICK HERE to watch Lankford’s remarks and Q&A on YouTube.

CLICK HERE to watch Lankford’s remarks and Q&A on Rumble.

WASHINGTON, DC – Senator James Lankford (R-OK) today opposed the nomination of Judge Ketanji Brown Jackson, who was nominated to serve as an Associate Justice of the Supreme Court of the United States. Lankford spoke on the Senate floor to outline his concerns with Judge Jackson and why he opposed her nomination.  

Lankford met with Judge Jackson last week and announced he would oppose her confirmation. 

Transcript

Mr. President—There’s been a lot of conversation in the past several weeks about Judge Jackson and judicial philosophy. Rightfully so. This is a lifetime appointment on the United States Supreme Court. It’s a serious position. I don’t know a single Senator in this room that doesn’t take their responsibility seriously. This is a big issue when you put anyone on the Supreme Court for a life appointment. Everyone’s had the opportunity to be table to go through case law, cases that she’s handled, that she’s responded to, things that she’s written, ways that she responded. Actually I had time to sit down with her for about 45 minutes in the office. Just to be able to talk and get back and forth with her a little bit. 

I want to give you a little context of this. Many Americans watched all the hearings last week, a full week of conversations with her asking all kinds of different questions. I don’t serve on the Judiciary Committee. Some on the outside looking in, that’s why I had time individually with her to talk to her for 45 minutes to be able to ask her questions and get to know her. By the way, I had folks in Oklahoma ask if I sat down with her and they asked what she’s like. To all of them I’ve answered the same way. I said, she’s the kind of person you’d want to invite over to dinner and sit and visit with. Extremely pleasant, outgoing, personable, smart, wonderful smile, and interaction. You would want to invite her over for dinner. My decision is not to invite her to dinner to spend time with. 

My decision is how to handle the lifetime position of the Supreme Court and how they’ll handle the law. The difficult part of this conversation has been circled around judicial philosophy. How will you handle cases? We can’t ask how you will rule on a specific case because if she answers then she has to recuse herself from that case in the days ahead. And everyone knows that. So we always try to determine how will you treat cases and what lens will you look through. That’s a reasonable conversation. Her response has been interesting. Her response was that she had a methodology as a judge and it has three aspects to it. Neutrality, that’s a good thing, receiving all the appropriate inputs, that’s making sure everyone is heard, and looking at the factual record and the text of the statute. That is actually a good starting point. 

The question goes to the next set of questions on it about how do you handle the United States Constitution and where does that document fit in? Is it living, is it changing, is it the original text and meaning of it? Or does it have it have a living version that changes. That’s a reasonable conversation because there are different Justices on the Supreme Court that handle that differently. The late Justice William Brennan, he wrote, ‘ for the genius of the Constitution rest not in any static meaning it might have had in a world that is dead and gone, but an adaptability of it’s great principals to coupe with current problems and current needs.’ Well, that’s not an original context locked into that. Justice Scalia wrote, ‘the Constitution I interrupt and apply is not living, but is dead, or as I prefer to call it, enduring. It means today not what current society or the Courts think it ought to mean but what it meant when it was adopted.’ In other words, those words had meaning at that time. They couldn’t predict what the words might mean 100 years from now. They couldn’t only deal with how the words meant right now. If it’s going to have a different meaning at a different time, well there has to be different law to be able to deal with that at a different time. We never got a clear answer on that. We got things towards her methodology, but that is a critical issue.  

There were issues about sentencing that came up and how she chose to do sentencing at a district court level and handled cases. They were all over the news about some of the cases she handled that were very lenient in the sentencing. There were questions about Second Amendment or about due process. There was kind of the moment of the judicial hearings when Senator Blackburn asked, not a trick question, but a real conversational question about how do you handle the law and culture, and that is can you define a woman? I honestly don’t think that Senator Blackburn meant for that to be a trick question, but it really is a question in culture at this point. It’s going to determine how will you be able to handle the law and to be able to read the law. Her response was she can’t answer the question of how to define a woman because she’s not a biologist. Well, I’m not a biologist either, but I can answer that question. 

And it’s just a conversational issue we have as a nation to be able to determine, let’s be able to deal with things that are self-evident. There are additional things during the hearing, but I didn’t want to revisit those issues. I wanted to spend the time talking through things that were not discussed. There were several issues that weren’t discussed about how she handles the law. One of those is tribal law. In some areas of the country this is a big deal and in some areas it is not at all. So I understand why it didn’t come up in the hearings. In her past history in her cases, she had one case to deal with tribal law. There’s a lot of questions to be able to talk about. Oklahoma is very proud of who we are as a state. We have great diversity as a state. We have a unique relationship in Indian Country in our state, and I thought it was important for us to be able to talk about the relationship that our state has with 39 Tribes, and, quite frankly, the history our state has. As we were the state where tribes were relocated to from the southeast. We spent a lot of time talking about that. We talked about issues of religious liberty, First Amendment issues, how you handle those cases, there’s differences even in the Court, even on what is the more liberal side of the Court. Sotomayor and Kagan often disagree on issues of religious liberty. They handle it with a different perspective. And it’s not uncommon for a religious liberty case to come up and Sotomayor and Kagan can be on either side. So, quite frankly, I was trying to discern is this person more like Sotomayor or Kagan. Is this person more like Sotomayor or more like Kagan on how she will handle the issues of religious liberty. 

I wanted to deal with the role of balance of power and checks and balances. It didn’t come up a lot in the hearings, but I think that is a foundational issue. Quite frankly, this is the fourth Supreme Court Justice I’ve had the opportunity to sit down with personally and with each of them the issues that I just brought up is what I talked with them about. They don’t often come up in the other issues but to me it’s foundational. We have three branches of government defined by our Constitution. Those branches are coequal and they check each other. It’s important they do check each other. The Legislative Branch doesn’t just give it away to the Executive Branch or the courts. Or the Legislative Branch doesn’t run over the courts or the Executive Branch. Neither can the Executive Branch or Judicial Branch do for either. If the Judicial Branch sits passive at a moment they should engage, the other two branches are not checked. Or if the Judicial Branch engages in a moment when they should be silent, they’ve exceeded their authority as well. It’s exceptionally important that the three branches both check each other and also know their lane and do their lane well. 

There are two cases that popped out. They became very significant to me and were part of our conversation as well. There was a case that came up during the Trump Administration when Judge Jackson was at the District Court level. It dealt with this issue of expedited removal. Now, it’s my guess that she doesn’t like the expedited removal process in immigration, but I didn’t ask and I didn’t drill down on that. So it was only my guess. But what was interesting was she ruled on a case on expedited removal and forbid the Trump Administration from actually putting in place what they did and did it nationwide. The problem was when that was appealed up to the DC Circuit Court, the DC Circuit Court actually reversed Judge Jackson’s preliminary injunction and reminded Judge Jackson at that point that the way the law was written made this statement, ‘that the Secretary had sole and unreviewable discretion.’ She literally reviewed a decision made by a Secretary where specifically in the law it stated a judge cannot review this decision though she overturned it only to go to the Circuit Court and have them overturn her. That tells me a balance of power issue, of knowing what your lane is and determining how that lane is taken on. 

There’s another case that came up. Actually during the Trump Administration as well when Judge Jackson was also in the District Court and she dealt with the issue about what unions could do and what the Executive Branch could do in relationship to unions. It’s been a contentious issue quite frankly for decades. It’s entirely reasonable to have that kind of dialogue about it. She ruled in the favor of the unions and the DC Circuit again reversed her decision when it came there, but it’s not just that they reversed her decision. It’s that they reversed her decision and this is the statement from the DC Circuit, ‘We reverse because the District Court lacked subject matter jurisdiction.’ In other words, that’s not your responsibility in that lane. Specifically that kind of issue has to be taken up by the Federal Labor Relations Board. In statute it says it can’t go to a District Court. It has to go to a different place. Typically other judges look at it and say you can’t be in this spot to be able to argue this and send it into the correct place. Instead she ruled on it in favor of the unions and declared it done until the Circuit came back and said that’s not your lane. That’s actually the Executive Branch’s lane. 

And then one of the most interesting dialogues when we had to be able to talk through things was the issue about deference. Now what does this matter? Well, for about 80 years Congress has been writing the law that gets broader and broader and broader. Quite frankly it’s been a problem with both parties. Though we want to see something done, we write a broad law, send it to the Executive Branch and say figure it out. And each Executive Branch is getting more creative on how they figure it out, and we deal with all kinds of regulations and both parties argue with the Executive Branch. And say why do you do that? And the Executive Branch responds back sometimes, well, you gave me the ability to make that decision on my own so I did. This issue of deference and of delegation is a very significant constitutional principle. It’s an issue that we’ve got to resolve here as a body. Quite frankly on both sides of the aisle to be jealous of the responsibility we’re given in the Constitution. But it’s also an issue I think is very important for the courts to be able to engage in because the courts are able to step in uniquely to the Executive Branch in the way the Legislative Branch cannot. The Legislative Branch can complain about it. The Courts actually can look at it and say you’re out of your lane to the Executive Branch. If the Court is passive in this, then whoever the Executive is gets to run. 

One of the clearest examples of those is something that’s called Chevron deference or our deference. We won’t go into the all the details on it but it basically says if a piece of legislation, the way that is written, is ambiguous, then the Executive Branch can interpret it in the way that they choose. I have a problem with that interpretation. Because I believe if a law was written poorly, we shouldn’t just give it to the Executive Branch and say figure it out. What do you want it to mean? If it doesn’t mean something clearly, it doesn’t mean anything at all. Now, it’s about two issues. One is a constitutional issue. If you go to 1803, Marbury v. Madison, it’s a foundational piece for the Supreme Court. It is the piece that has come up over and over again through the last two centuries. The foundational statement that came out of Marbury v. Madison is this simple statement, “It is emphatically the duty of the Judicial Department to say what the law is.’ If the Judicial hands to the Executive and says we can’t tell what the law says so we’ll give it to you. It is literally the judicial handing to the Executive something that’s uniquely the Judicial Branch’s power. This is no simple issue. This goes back to our balance of power. What we have is a situation now over the past several decades where Congress is given its power to the Executive Branch. If the Judicial Branch does the same, giving its power to the Executive Branch, we have a rising Executive Branch and the other two bodies will look at it and say how did that happen because we gave it away is how it happened. And we have a more and more powerful president of either party and a less and less powerful Congress and Judicial Branch. 

My conversation with Judge Jackson, she repeated over and over to me that the Court is limited, the Court is limited, the Court is limited. I said yes, they are limited but they have responsibility. And the Court’s responsibility is to say what the law is. And at the moment as I said to her, if I threw letters on the table, the Executive Branch doesn’t have the ability to say I will make them say whatever I want to. If a law was written and the law said orange, penny, Ford, desk, Reagan. All those are English words but quite frankly they don’t really make a sentence. The authority shouldn’t be given to the Executive Branch to be able to figure out what they can make of that. The responsibility should be in the Judicial Branch to be able to look at that and says that means nothing. Congress, go do your homework. Clean it up. The Executive Branch can’t just make it mean what they want it to say and say what the law is. Congress has to say, make it clear, and the Judicial Branch has to say what the law is, and the Executive Branch has to apply it. Now again this is very philosophical. But it’s also foundational in our constitutional construct. It’s why I find myself in the position of voting no for someone I personally liked when I met. But do not align with on how you handle the Constitution, separation of powers, and the responsibility of the Court to align with original intent of the Constitution. This is not a new dialogue for us in the Senate body. It’s conversation we’ve had for two centuries that is still unresolved for us. But we cannot select individuals that are not committed to the original meaning of the Constitution and can hand to the Executive Branch what the law says. This is one that we need to guard and so for that reason when the vote comes tomorrow on Judge Jackson, I will vote no.

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