Newest Supreme Court justice approved with one ‘yea’ vote from Murkowski, one ‘nay’ vote from Sullivan

Sen. Dan Sullivan said no to the appointment of incoming U.S. Supreme Court Justice Ketanji Brown Jackson. Sen. Lisa Murkowski was a yes vote.

Jackson was confirmed by a vote of 53 yeas and 47 nays. Three Republicans voted for her: Sens. Mitt Romney of Utah, Susan Collins of Maine and Murkowski.

The confirmation fulfills one of President Joe Biden’s promises, which was to appoint a black woman to the Supreme Court. Jackson will be sworn in later this year, when Justice Stephen Breyer retires.

Today’s historic vote will usher in one the most radical justices in Supreme Court history, in the same cut of cloth as Justices Elena Kagan and Sonia Sotomayor. Jackson has a history of letting criminals off easy. She can’t say what a woman is because she is “not a biologist.” She can’t say she supports the natural rights declared in the Declaration of Independence. She has let child pornography traffickers walk. She has claimed to have no judicial philosophy.

Murkowski said, in a statement: “In addition to reviewing her record, I had the opportunity to speak with Judge Jackson on two occasions, to learn more about her background, jurisprudence, and discuss issues important to Alaskans. Her qualifications and her record demonstrate her knowledge and respect for the Constitution. I congratulate her on this achievement and celebrate her historic confirmation with Americans.

Murkowski excused Jackson’s record on child abuse and pornography: “One thing that Judge Jackson’s confirmation hearings made clear is that Congress needs to revisit the PROTECT Act to address the heinous crimes of child abuse, including child pornography. It is the responsibility of Congress to provide updated direction to the U.S. Sentencing Commission and that review is underway.”

Sen. Dan Sullivan gave a fulsome explanation for why he voted no:

“As with all U.S. Supreme Court nominees, I thoroughly examine the individual’s record, prior decisions, confirmation hearing transcripts, judicial philosophy, and take the opportunity to discuss in detail federal laws and U.S. Supreme Court decisions that directly impact Alaska, including Venetie, Sturgeon I & II, and Chehalis. I respectfully ask nominees with whom I meet to read these cases prior to meeting with me so we can go into detail about the uniqueness of Alaska on so many important federal issues.

“The most important quality I look for in an individual who is privileged to be confirmed for life tenure as a Supreme Court justice or federal court of appeals judge is a record and judicial philosophy that understands and emphasizes limits on federal judiciary and federal agency powers. This is critical to the proper functioning of our constitutional system of government and of fundamental importance to the State of Alaska.

“For 25 years—as a law clerk to federal courts of appeals and to the Alaska Supreme Court, as Alaska’s Attorney General and Commissioner of the Department of Natural Resources, and as a U.S. Senator—I have witnessed firsthand how federal agencies and federal courts, particularly the D.C. and 9^th Circuit Courts of Appeals, have made decisions and taken actions well beyond their statutory mandates as prescribed by Congress. Such overreaching federal judiciary and agency actions have limited our state’s full potential and have negatively impacted the lives of countless Alaskans.

“With the recent confirmation of new justices to the Supreme Court, we have made progress in reversing overreaching federal courts of appeals’ decisions that have ignored the will of Congress as it relates to critically-important Alaska issues in the Sturgeon I & II cases, as well as in the Chehalis decision.

“However, in my view, an overreaching federal judiciary by life-tenured judges remains one of the biggest factors limiting Alaska’s future potential. Our federal district court in Alaska, with no discernable judicial philosophy recognizing its own limited powers or those of federal agencies, frequently decides cases in favor of Lower 48 environmental plaintiffs. Such decisions by life-tenured judges are having devastating, real-life consequences for Alaskans.

“This is the perspective and area of focus from which I have examined the qualifications of all of the Supreme Court nominees I have considered, including Judge Jackson. And on these critical issues, I found her views and record to be very concerning.

“First, despite attempts in my personal meeting with her and during her confirmation hearing, Judge Jackson repeatedly stated that she had no judicial philosophy that grounded her approach to the law. She testified that her role as a district judge did not provide her with opportunities to think about constitutional interpretation, which I found puzzling to say the least. And while she demonstrated that she understood approaches to the law that emphasize systemic limitations on a federal judge’s power—such as originalism or textualism—she refused to embrace any judicial philosophy that places limits on the role of the judiciary in our constitutional system.

“Much more troubling than this lack of a coherent approach to constitutional and statutory interpretation is Judge Jackson’s actual record on the few cases on which she ruled as a district court judge that involved these important issues.

“In Make the Road N.Y. v. McAleenan and in American Federation of Government Employees v. Trump, Judge Jackson ignored clear congressional restraints on her powers as a district judge to make decisions with broad, nationwide consequences in high-profile, politically-charged cases.

“Judge Jackson described these opinions as two of her most important decisions, which is both curious and troubling, because both were reversed by the left-leaning D.C. Circuit Court of Appeals. The D.C. Circuit unanimously held, in both cases, that Judge Jackson had significantly exceeded the powers granted to her by Congress to review actions taken by other branches of the federal government. These are exactly the kinds of judicial activist decisions that I believe judges must refrain from making in our constitutional system of government.

“Similarly, in Committee on the Judiciary v. McGhan, a case that involved a novel constitutional question impacting the separation of powers, Judge Jackson found an implied constitutional right to sue based on the vague notion of ‘constitutional values.’ The D.C. Circuit reversed, then later reinstated this decision, which ultimately ended up being mooted by subsequent federal government actions. Nevertheless, this decision by Judge Jackson stands out for analysis that is unanchored from a rigorous reading of the text of the U.S. Constitution—which is a core function of a federal judge. 

“In my meeting with Judge Jackson, I found her to be engaging and extremely intelligent. Her personal and professional accomplishments are very impressive and inspiring, and the historic nature of her nomination and confirmation is important to our nation. While I voted against her confirmation for the reasons stated above, I congratulate Judge Jackson on this achievement.”