Senator Lee’s statement in Judge Ketanji Brown Jackson Supreme Court hearing

Sen. Mike Lee (R-UT) spoke in the Judiciary Committee Supreme Court nomination hearing of Judge Ketanji Brown Jackson this morning highlighting what he will be looking for in the hearing and in Judge Jackson’s testimony.  Senator Lee reiterated his commitment to avoid personal attacks, highlighted the importance of humility in the judicial role, and advocated for protecting the legitimacy of the Supreme Court.  Sen. Lee’s remarks are found in transcript form below the video.

Thank you, Mr. Chairman, and thank you, Judge Jackson for joining us today. I appreciated the conversation you and I had in my office a few days ago and your willingness to engage in a lively, interesting conversation during that and look forward to more of that this week. I’ve enjoyed also meeting your husband and your two lovely daughters. They are wonderful people. 

I am grateful to you for your service, your service to the federal judiciary and as a member of the bar. You bring to the court, as I mentioned to you last week, a unique set of experiences. If you are confirmed, you will be someone who has served at all three levels of the federal judiciary, and as a result of that, you will have a perspective that is different than that of most who have served on that Court during the modern era. And I appreciate your willingness to be considered and to be here to talk to us about our questions. 

I echo what many of my colleagues have said today in that I am dedicated, as I always have been, to making sure that these hearings are respectful. Engaging in the politics of personal destruction is not something we should ever aspire to. It is something that has occurred on this committee, in the context of Supreme Court nominations. I am pleased to say that it has never been under Republican leadership that such attacks have occurred, and I intend to make sure that this hearing is no exception to that. There are a few reasons for that. 

First and foremost, the most obvious, is that respect to human beings requires it. Secondly, it is important because if we focus on personal attacks, that means we will be betraying our duty under the Constitution and to our constituents to make sure that we do our jobs fairly and properly. When we are focused on things that we have no business doing, like bringing forward spurious, last-minute, uncorroborated accusations of a personal nature, we neglect the importance of talking about the jurisprudential role, the philosophy that guides individual jurists, and the document that we have all sworn to uphold and protect, the Constitution of the United States. 

It is also important for an additional reason, a third reason. It has to do with the fact that, having been nominated to this position, we know that you stand a very decent likelihood of ultimately being confirmed to this position. In which case, you will serve as a member of the Supreme Court of the United States, and I think it’s important that even when, especially when, we disagree with decisions issued by that tribunal, we as a committee, as the Senate Judiciary Committee, not engage in speech or behavior that would undermine the legitimacy of the Supreme Court of the United States.

You see it is the legitimacy of the courts that gives them their potence, their power, their significance in our system of government. We all have a duty to make sure that we do not undermine that very thing that we purport to be protecting. 

Let me tell you some of the things that I look for when reviewing a nominee, and a few things that I intend to focus on in these hearings with you. One of them will involve any nominee’s commitment to judicial self-restraint, to understanding the judicial role, what it is and what it is not. 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. This is all very true. It raises questions as to how exactly that goes about and what steps, what tools, what rhetorical linguistic devices the jurist in question might follow in order to do that.

I am looking for someone who is, ideally, going to echo something that Justice Amy Coney Barrett said in her confirmation proceedings, in which she likened the Constitution, this document, written by wise men, nearly two and a half centuries ago, wise men who I believed were raised up by Almighty God to that very purpose.

To the extent we have followed that document, it has helped foster the development of the greatest civilization the world has ever known, but she likened this, and our commitment to it, as a little like what Odysseus told his crew.

She said the Constitution is like how Odysseus ties himself to the mast to resist the song of the sirens. She then goes on to explain that he told the crew, do not untie me, no matter how much I beg or plead, don’t untie me from the mast. He wanted to avoid the tempting call of the sirens.

The tempting call of the sirens is inherent, it is in government itself, it’s understandable. And that is why we tie ourselves to it. Critical to that is the federal judiciary: the ultimate backstop, the backstop that’s there to resolve disputes. 

Now, the Constitution is not just something for the courts. It is not something that is owned exclusively and independently by the federal judiciary or the Supreme Court itself. But it does play an important role, because the Court is there to resolve disputes that arise within the Court’s jurisdiction, as to the meaning of a particular provision of federal law, whether in the Constitution itself, or as enacted into law by Congress.

So we need a jurist who is willing to respect that role and demonstrate judicial humility. 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, that the job of the Court, of the judiciary is never to exert will or force. It is only judgment. It is discerning what the law says.

A nominee also, I believe, needs to show a steadfast commitment to the principle of separation of powers. There are a couple of forms of separation of powers required by the Constitution, along two axes. One operates along the vertical axis that we call federalism, that says most of the power of government within the United States, most powers that government might exercise are to be exercised at the state and local level. Power that is federal is the exception, not the norm, in our constitutional system of government. 

The other form of separation of powers operates along the horizontal axis. It is one that recognizes within the federal government, which is limited, we are going to have one branch, our branch, of Congress that makes the laws, another branch headed by the President, the executive branch, that enforces them, and the third branch, which interprets them, resolving disputes between parties coming before the courts’ jurisdiction. 

Third, I think it is important that a jurist within our system of government acknowledge the importance of interpreting the law as it was written, as it was understood by the public at the time of its enactment, if a statute, or if a provision of the Constitution at the time of its ratification. This is part of how we tie ourselves to the mast, making sure that we undertake efforts to make sure that we are interpreting it based on how the public understood those words, regardless of the subjective intent of any particular lawmaker or group thereof. The public meaning at the time it became law.

This is how we maintain the rule of law. This is part of how we have given force to this greatest civilization that human history has ever recorded. It is through the rule of law and tying ourselves to that mast. 

There are increasing threats to this. We have seen those threats arise with efforts to delegitimize the Court, and I am sickened every time I see or hear or experience one of those efforts to delegitimize it.

We have heard some today, in fact. Comments that I think, by their very nature, delegitimize the Court. Another thing that can delegitimize the Court are arguments made in favor of packing the Supreme Court. This was attempted by President Franklin D. Roosevelt in 1937. It did lasting damage to the Court. It didn’t succeed as a legislative matter, but it is arguable that it left a mark, and not a pretty one. There is nothing in the Constitution that requires us to have nine and only nine justices. That is, under the Constitution, left to Congress’s determination. But nine is a number that works. It has worked now for 152 years. It is not one that we ought to revisit, and it is one that Supreme Court justices of various ideologies, including your former boss, Justice Breyer, whom I really enjoyed getting to know, when serving as a law clerk on the Supreme Court, enjoyed our conversations with him. He, Justice Ginsburg, Justice Thomas, and so many others have been against that.

We must protect the Court. We may not protect the Court. We lose 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.