Republicans promised that during Judge Ketanji Brown Jackson’s Supreme Court confirmation hearing they would go after Jackson’s record, which is exactly what Sen. Lindsey Graham, R-S.C., did Wednesday when he accused Jackson of being an activist judge when she ruled against the Trump administration in a 2019 immigration case.
The case, Make the Road New York v. McAleenan, involved whether the Department of Homeland Security acted properly in expanding the eligibility of expedited removal from the U.S. to illegal immigrants who had been in the country from up to two years, when it had previously only been for those in the country for 14 days or less and who were found near the border.
Graham noted that the statute in question clearly gave the administration the discretion to set the length of time when a person would be eligible for expedited authority, calling into question Jackson’s ruling, which was ultimately overturned by the D.C. Circuit Court of Appeals.
"Here's what the D.C. Circuit Court said about your ruling: ‘There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgment,’" Graham quoted from the D.C. Circuit’s 2020 ruling.
"To those of us in the law-writing business, I don't know how you could tell a judge more clearly that the administration, the agency in question, has discretion to do certain things within the statute," Graham continued. "So this is an example to me – and you may not agree -- where the plain language of the statute was completely wiped out by you."
Graham then accused Jackson of ruling the way she did because she did not like the administration’s policies.
"You reached a conclusion because you disagree with the Trump administration," Graham said, again citing the D.C. Circuit Court’s language that stated how clearly the statute gave the administration discretion.
"That, to me, is Exhibit A of activism," he said.
Jackson, responding to Graham’s criticism before the conversation moved on to a different topic, defended her ruling, arguing that while Graham’s citation of the statute was accurate, it did not tell the whole story.
"It doesn't describe the designation process that I was trying to articulate. And it doesn't address the fact that Congress has another statute that is presumptively applied in agency cases to tell agencies how to exercise discretion," Jackson said. She also stated that there is case law from the D.C. Circuit that says that "very clear designations of authority to an agency" can "still be subject to Congress’ other directions regarding how to exercise the discretion."