McConnell Announces Three Reasons He “Cannot and Will Not” Support Jackson: Court Packing, Judicial Activism, and Lenient Sentencing

On 3/25/2022, Senate Republican Leader Mitch McConnell delivered a detailed floor speech announcing he would vote against Judge Ketanji Brown Jackson’s Supreme Court nomination, citing three specific reasons: her refusal to reject court packing, her lack of a discernible judicial philosophy beyond activism, and her troubling pattern of lenient sentencing. McConnell said Jackson “was the court packer’s pick and she testified like it” and called her echo of Justice Brennan’s “rule of five” a “perfect summary of judicial activism.”

Reason One: Court Packing

McConnell’s most pointed criticism was Jackson’s refusal to denounce court packing — something Justices Ginsburg and Breyer had done without hesitation. “I assume this would be an easy softball for Judge Jackson, but it wasn’t,” McConnell said. “The nominee suggested there are legitimate sides to the issue. She testified she has a view on the matter but would not share it.”

McConnell cited a revealing exchange. “In deciding to join the United States Supreme Court, if you’re confirmed, wouldn’t it make a difference to you whether you’re one of nine or one of 28?” a senator had asked. “I would be thrilled to be one of however many Congress thought it appropriate to put on the court,” Jackson replied.

“See, you’d be okay if it was 28?” the senator pressed. “If that’s Congress’s determination, yes,” Jackson said.

“The most radical pro-court-packing fringe groups badly wanted this nominee for this vacancy,” McConnell said. “Judge Jackson was the court packer’s pick and she testified like it.”

Reason Two: No Judicial Philosophy

McConnell argued Jackson had no discernible judicial philosophy beyond activism. “President Biden stated he would only appoint a Supreme Court justice with a specific approach that is neither textualist nor originalist. That’s the president’s litmus test. No strict constructionists need apply,” McConnell said.

He contrasted Jackson’s thin appellate record with prior nominees. “When Justice Gorsuch was nominated, he’d written more than 200 circuit court opinions. Justice Kavanaugh had written more than 300. Justice Barrett wrote almost 100 appellate opinions in just three years, plus years of scholarship,” McConnell said.

“Judge Jackson has been on the DC Circuit for less than a year. She’s published two opinions,” McConnell noted. “She testified that her trial court role did not provide many opportunities to think about constitutional interpretation. Yet when senators tried to dig in, the judge deflected and pointed back to the same record she acknowledged would not shed much light.”

McConnell cited a specific failure. “One senator simply asked the judge to summarize well-known differences between the approaches of some current justices. The nominee replied that two weeks’ notice had not been enough to prepare an answer,” McConnell said.

Reason Three: Lenient Sentencing

McConnell addressed Jackson’s sentencing record. “This is one area where Judge Jackson’s trial court record provides a wealth of information, and it is troubling indeed — beneath the sentencing guidelines and beneath the prosecutor’s request,” McConnell said.

“The judge herself this week used the phrase ‘policy disagreement’ to describe this subject,” McConnell noted. “She just kept repeating that it was her discretion and if Congress didn’t like it, it was our fault for giving her the discretion. That is hardly an explanation as to why she uses her discretion the way she does.”

“That response seems to confirm that deeply held personal policy views seep into her jurisprudence — and that is exactly what the record suggests,” McConnell said.

”The Rule of Five”

McConnell closed with what he called a “telling moment” from the hearing. “Under questioning about judicial activism, Judge Jackson bluntly said: ‘Well, anytime the Supreme Court has five votes, then they have a majority for whatever opinion they determine,’” McConnell quoted.

“That isn’t just a factual observation. It is a clear echo of a famous quotation from perhaps the most famous judicial activist of all time, the arch-liberal William Brennan,” McConnell said. “The late Justice Brennan told people the most important rule in constitutional law was the ‘rule of five’ — with five votes, the majority can do whatever it wants.”

“That’s a perfect summary of judicial activism. It’s a recipe for courts to wander into policymaking and prevent healthy democratic compromise,” McConnell said. “This is the misunderstanding of the separation of powers that I’ve spent my entire career fighting against.”

Key Takeaways

• McConnell cited three reasons for opposing Jackson: refusing to reject court packing, lacking a judicial philosophy, and a pattern of lenient sentencing.
• Jackson said she would be “thrilled to be one of however many” justices Congress put on the Court — McConnell called her “the court packer’s pick.”
• She had only two published opinions in less than a year on the DC Circuit, compared to hundreds for Gorsuch, Kavanaugh, and Barrett.
• Jackson described her sentencing as a “policy disagreement” and said if Congress didn’t like her discretion, it was their fault for giving it to her.
• McConnell said Jackson’s “rule of five” comment echoed arch-liberal Justice Brennan’s philosophy that “with five votes, the majority can do whatever it wants.”

Transcript Highlights

The following is transcribed from the video audio (unverified — AI-generated from audio).

• I cannot and will not support Judge Jackson for a lifetime appointment to the Supreme Court.
• I would be thrilled to be one of however many Congress thought it appropriate to put on the court. You’d be okay if it was 28?
• One senator asked her to summarize well-known differences between current justices. She said two weeks hadn’t been enough to prepare an answer.
• Anytime the Supreme Court has five votes, they have a majority for whatever opinion they determine. That’s a perfect summary of judicial activism.
• She just kept repeating it was her discretion. Deeply held personal policy views seep into her jurisprudence.
• The court packer’s pick. She testified like it.

Full transcript: 1050 words transcribed via Whisper AI.