Congressional Record — Senate, S6483 (October 25, 2020)
Summary
Page S6483 of the Senate section of the Congressional Record for October 25, 2020, in interleaved columns. Mr. Bennet opens under the heading Colorado Wildfires, acknowledging fires burning that night. Other speakers say they will vote against the nomination of Judge Amy Coney Barrett to be an Associate Justice of the Supreme Court, arguing that a vacancy this close to an election turns a bipartisan confirmation process into a partisan exercise that risks the credibility of the courts, which are their views. Statements of absence give how Senators would have voted on rollcall votes 207 and 220, including a motion to table an appeal of a ruling of the Chair.
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“Congressional Record — Senate, S6483 (October 25, 2020).”
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6483
special interests that tend to challenge The senior assistant legislative clerk whelming bipartisan confirmation of a
these agency regulations in the first proceeded to call the roll. qualified nominee and a bipartisan
place. Mr. BENNET. Mr. President, I ask ratification of the independence of the
One of reasons that the agencies were unanimous consent that the order for judiciary into an entirely partisan ex-
given the authority to implement our the quorum call be rescinded. ercise that has destroyed the Senate’s
laws—given by Congress to the agen- The PRESIDING OFFICER. Without constitutional responsibility to advise
cies—was their expertise, an expertise objection, it is so ordered. and consent and is now at risk of de-
that in most cases far exceeds that of COLORADO WILDFIRES stroying the credibility of the Supreme
the U.S. Supreme Court. Mr. BENNET. Mr. President, before I Court and the lower courts as well.
Now, I intend to vote against the begin my remarks about the nomina- This may not matter much, I sup-
nomination of Judge Amy Coney Bar- tion, I want to acknowledge that to- pose, to the Senators on this floor. It
rett to be an Associate Justice of the night, as we are here, there are fires in matters to the American people who
U.S. Supreme Court because I am con- many places across the State of Colo- have not consented to the destruction
vinced that she will not guard core rado. There are people who are out of of their constitutional right to an inde-
constitutional principles, that she will their homes and out of their commu- pendent judiciary free from the par-
not interpret the law to protect the nities, who have had to evacuate their tisan insanity of elected politicians.
rights of the vulnerable, and that she towns, and there are first responders on In this confirmation proceeding, the
will read the law with a backward- the ground in Colorado who are fight- majority renounced its duty to advise
looking perspective, not consistent ing these fires bravely every single and consent by giving their consent be-
with the realities of our time and the day. fore the President ever chose the nomi-
growing dangers that we face in the fu- They have been stretched all summer nee. I don’t believe that has ever hap-
ture. through a fire season that has lasted pened in the history of America.
As my Republican colleagues accel- into the fall because of our inability to Ours is a Senate where words have
erate this nomination at a breakneck deal with our forests and because of cli- lost their meaning. Party advantage
pace, it speaks to the deeply misplaced mate change. My hope tonight, as we dictates every action. Shameless hy-
priorities of this body. We simply are here, is that the snow that has fall- pocrisy is the stuff of proud triumph.
should be not be undertaking a Su- en is going to be more of a benefit than Deliberation is no longer necessary be-
preme Court nomination at this time, a curse to everybody who is out there. cause conclusions are all foregone, and
especially when it should rightfully So, with that, I thank the Presiding a decision like that affirming Judge
take place during the next Presidential Officer for recognizing me, and I will Barrett to a lifetime appointment to
term after the voters have made their now give my remarks about this con- the most powerful Court in the Nation
decision. firmation. is anything you have the power to
The Senate’s foremost priority right NOMINATION OF AMY CONEY BARRETT cram down the throats of your political
now should be to provide additional Mr. President, when I was in law opponents.
pandemic relief. My colleagues have school, which wasn’t really that long The truth is, this confirmation proc-
displayed a profound lack of urgency to ago, the confirmation of a Supreme ess has never been a debate about what
address the many challenges Ameri- Court Justice was a chance for the the Senate should do, what the Senate
cans face due to the pandemic. This is American people to learn about our ought to do, and what the right thing
despite the repeated warnings from system of checks and balances, our to do for this Senate is. It has always
public health experts and economists commitment to the rule of law, and, in been a demonstration of what the ma-
about what will happen if we do not particular, the independence of judges. jority can get away with and of how
enact additional fiscal aid. And whenever the Senate confirmed a they can exercise their power in order
However, my Republican colleagues Justice with an overwhelming bipar- to entrench their power.
continue to turn a blind eye, even as tisan vote, as it did almost every time, I have no expectation that my words
COVID–19 cases spike, businesses close, it reaffirmed that independence and re- are going to change the result tomor-
unemployment remains high, and assured the American people that our row. My hope is that we can mark this
States consider deeper budget cuts. courts were protected from political in- as the moment that the American peo-
Under these extraordinary cir- fluence and that they stood apart from ple said ‘‘Enough’’ and began to re-
cumstances, I cannot support Judge the partisanship of the other two claim their exercise in self-government
Barrett’s nomination to the Supreme branches of government. from those who have worked relent-
the Court of the United States. As we meet here tonight, after 20 lessly to deprive them of it.
I urge my Republican colleagues to years of descending into intensifying To do that, we have to be very clear
stop this shortsighted rush. Let’s put partisanship in the confirmation of about what this moment means and
the best interests of the country first. judges, the Senate is now about to drag what it calls on each of us to do in the
Let’s wait a few more days and let the the Supreme Court down to its own days, months, and years ahead. The
American people have a say. Let’s decadent level by turning it into just truth is, this confirmation is the latest
focus on the COVID–19 crisis, which de- another politicized body that is dis- victory for an unpatriotic project that
mands our immediate attention. Just trusted, for good reason, by the people traces back to the earliest days of our
because you can do something doesn’t it is meant to serve. country.
mean you are doing the right thing. I It is common these days to observe Since our founding, there have al-
strongly believe my Republican col- that our institutions are failing. I have ways been factions working toward an
leagues are making a major mistake said it myself. But institutions don’t insidious purpose: to so degrade and
that will be doing lasting damage to fail on their own. They can’t destroy discredit our national exercise in self-
both this institution and the Supreme themselves. It takes people to destroy government that when the American
Court, and I urge them to reconsider. them. It particularly takes leaders who people finally throw up their hands in
Instead of pushing forward with this have no inclusive, long-range vision for disgust, these factions can distort it
ill-suited nominee, let’s get to the busi- our country or our democracy; leaders into an instrument for their interests
ness at hand: addressing the great chal- who can’t or won’t think beyond nar- instead of the public interest.
lenges we face due to the pandemic and row, short-term interests; and leaders, Today, the Senate majority leader,
beyond, as well as working together to I am sorry to say, like Leader MCCON- MITCH MCCONNELL, represents one such
fix the Senate so that we no longer NELL. faction, joined by the Freedom Caucus
break faith with the people who sent us He may imagine, as he claims, that in the House of Representatives, Presi-
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here, the people we represent. he is simply restoring the judicial cal- dent Trump, and the legion of deep-
With that, I yield the floor. endar to a prefilibuster era. That is pocketed donors and PACs assembled
Mr. BENNET. Mr. President, I sug- what he tells his colleagues here when behind them. Because factions like this
gest the absence of a quorum. he recounts the story. The majority one have a tough time winning broad
The PRESIDING OFFICER (Mr. leader, more than any other actor, has support from the American people for
LANKFORD). The clerk will call the roll. transformed what used to be the over- their agenda, they seek other less
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S6484 CONGRESSIONAL RECORD — SENATE October 25, 2020
democratic means to secure their cific aims of these factions have partisan gerrymandering corrupting
power—gerrymandering, voter suppres- changed over time, their project has re- our democracy.
sion, and, in this case, cramming a mained the same: to protect their Finally, I worry that she will cast
nominee onto the Supreme Court dur- power and call it freedom—freedom to the deciding vote to destroy the Afford-
ing the fleeting days of a failing, un- enslave, freedom to segregate, freedom able Care Act and strip healthcare
popular administration. to pay workers less than they can live from millions of people in Colorado and
Over the years, earlier versions of on, to work them to death, to fire them across the country for whom this is lit-
these factions have obscured their because of what they believe or whom erally a matter of life and death.
project with terms like ‘‘States’ they love, to redline our neighbor- Justice Barrett’s confirmation will
rights,’’ ‘‘originalism,’’ ‘‘freedom,’’ and hoods, poison our skies, defund our cement a 6-to-3 majority on the Court
with dubious claims like ‘‘separate but schools, and buy our elections. that will allow the powerful to do what
equal,’’ essentially turning American At all times, though, their goal has they want, while standing against the
words against the American people. been to preserve, as Professor Jefferson American people’s efforts to protect
We saw it in the 1890s, when the Su- Cowie puts it, the freedom to dominate one another, to support one another,
preme Court invoked freedom to strike others—not only to cement their power and to invest in each other through our
down laws that would have let workers but to demolish the economic oppor- democracy. That is where we are. That
unionize, establish a minimum wage, tunity and civil rights that would oth- is where we are.
prohibit child labor, and create a pro- erwise empower their fellow Ameri- As dispiriting as this moment may
gressive income tax. We saw it most in- cans. be, we have been here before as a coun-
famously in Plessy v. Ferguson, when Why would they do this? Because, in try. We are not the first generation of
the same Court hid behind equality to truth, the original promise of Amer- Americans to face the Senate or a Su-
justify segregation. ica—that it would be a society in which preme Court that will stand with the
We saw it in 1905, when the Supreme all people would be created equal and powerful against the people. We are not
Court perverted the 14th Amendment, endowed with equal rights—terrifies the first citizens to run into a wall of
the amendment meant to guarantee them. obstruction as we work to make this
the protection of the law for those The consequences for our country country more democratic, more fair,
most vulnerable in our society, to in- and for its citizens who do not benefit and more free.
vent a ‘‘liberty to contract’’ so that from this project are plain. It batters We have to learn from the examples
bakeries could freely force people to our political and economic equity, se- of those who came before us, those who
work more than 60 hours a week. Just curity, and opportunity. It degrades answered slavery with emancipation
a few years after that ruling, 145 work- our democracy. It robs from future and reconstruction; a Gilded Age with
ers were burned alive at the Triangle American generations by hoarding a Progressive Era; a Great Depression
Shirtwaist Factory after their em- wealth today. This confirmation is with a New Deal; Jim Crow with civil
ployer took the liberty of locking them their latest ill-gotten victory. rights. As it was for them, so it is for
inside. Judge Barrett’s nomination comes to us to meet the challenges of our time.
We saw it in the 1930s, when the Su- this floor on a path cleared by the And unlike the forces that have
preme Court rewrote the commerce same deep-pocketed donors and cor- brought us to this low point, we have a
clause in a failed attempt to eviscerate porations that have worked for decades much harder job because we have a far
the New Deal, FDR’s historic effort to to protect their power, regardless of greater purpose.
build an economy that lifted everyone the cost to the American people and Theirs has been to grind our democ-
up, not just those at the very top. their security, well-being, and civil racy into rubble; ours is to build a
We see it in our time, in Citizens rights. And based on everything I have strong foundation for the American
United, Shelby, and other rulings when learned about Judge Barrett’s record, I people and the next generation.
the Supreme Court has asserted the fear she will become one more predict- The American people need us to
right of billionaires and other privi- able vote for that agenda. begin building that foundation now.
leged interests to corrupt our democ- In her tenure on the Seventh Circuit, They have already paid enough for a
racy, while denying the American peo- Judge Barrett sided with corporations government that fails to fight on their
ple’s right to defend it. in 85 percent of her business-related behalf—50 years, when 90 percent of
And we see it in Judge Barrett’s ad- cases. She sided with employers ac- families haven’t had a pay raise; the
herence to originalism, the spurious cused of discriminating by race. She worst income inequality since 1928;
legal doctrine that has been knocking sided with employers accused of dis- people working harder and harder than
around in the Federalist Society and criminating by age. She sided with ever before but whose families are slid-
other circles of far-right lawyers since debt collectors over consumers. She ing farther away from the middle class,
the 1970s. By claiming to stick to an voted to block compensation for vic- and now—and now—a national govern-
18th century understanding of the Con- tims of a compensation fund. She voted ment paralyzed by ineptitude, incom-
stitution, originalism deceptively im- against workers’ fight for overtime. petence, indifference, and basic sci-
plicates Madison, Hamilton, and the The pattern is clear: When consumers entific ignorance that has led to thou-
rest of the Framers in any number of and workers sought the protection of sands of needless deaths of our fellow
legal arguments, as if they intended the law or the government, she stood citizens and pushed millions of families
the Second Amendment to permit in the way. I worry that, once con- and businesses over the brink.
bump stocks or the interstate com- firmed, she will continue that pattern We must end this era and replace it
merce clause to forbid environmental with rulings to destroy hard-won pro- with more honorable commitment to
protections while foreclosing on legis- tections for the American people—rul- competent and imaginative self-gov-
lative innovation here and now in the ings to cripple agencies to keep our air ernment responsive to the American
present because the men who gathered and water clean, our food and drugs people’s needs.
in Philadelphia to draft the Constitu- safe, and our families protected from Their wishes are more than fair.
tion, who could not recognize that scammers trying to rip them off; rul- They want a wage they can live on, a
slavery should be outlawed or that ings to make it harder for Americans healthcare system that no longer rou-
women should have the right to vote, to choose how and when to raise a fam- tinely reduces families to tears, with
could also not foresee the need to pro- ily or marry the person they love; rul- options they can actually afford and
hibit child labor or require food labels ings to make it easier for felons to buy count on when they need them, schools
to tell the truth. guns and harder for us to hold that create possibility and opportunity
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It is no surprise to me that the gunmakers accountable when their and colleges that leave students with
originalists and the tea party-right weapons kill and maim our children in more than just crippling debt; the
have embraced shared hagiographies. their schools and on our streets; rul- chance to care for a new child or a sick
They are stealing the authority of the ings to block any effort by the Amer- family member without having to quit
Founders in an effort to conceal their ican people to fight the voter suppres- a job or lose their pay, safe commu-
reactionary project. And while the spe- sion, to fight the dark money, and the nities where parents no longer have to
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6485
worry about their kids being shot, that Americans will fight for them to achieved yet today but that we work
criminal justice and law enforcement make a real difference in their lives. toward, we strive toward, generation
and immigration systems that don’t As always, our march won’t begin in after generation, knowing that, in our
treat people differently because of the the Chamber of the Senate. But when hearts, that is what we wish to
color of their skin, roads and bridges Dr. King, John Lewis, and the many achieve—a nation where everyone is
and airports that weren’t built by their who joined them, crossed their genera- created equal, in which everyone is af-
grandparents, broadband that works at tion’s bridge, the Senate eventually forded the same rights and privileges,
home so kids don’t have to go to school followed and broke the segregationist they are all treated equally, have the
in Walmart parking lots in this coun- stranglehold on this body. full measure of opportunity to pursue
try tonight, an urgent and durable an- Rather than turn his back on what their life ambitions.
swer for climate change so the next was obviously right, the Republican Today, this evening, we are consid-
generation doesn’t inherit a planet leader, joined his Democratic counter- ering, in this final 30 hours of debate, a
hurtling toward incineration. part, Mike Mansfield, to lock arms in nomination for the U.S. Supreme Court
None of this is unreasonable; all of it support of the Voting Rights Act of for a person who will wear one of those
is achievable; and we can start with 1965. The segregationist filibuster with- nine black robes and sit in that Su-
the coming elections. But that is only ered in the face of noble, bipartisan preme Court Chamber across the plaza
the beginning of the fight. majorities. from where we now stand, a person who
I can assure you that the same fac- When our time comes once again in will sit in a Chamber behind the doors
tion that was willing to enlist every the Senate to cross the Edmund Pettus with ‘‘Equal Justice Under Law’’ in-
parliamentary gimmick or deploy any Bridge, we will have to muster the dis- scribed.
oratorical sleight of hand or commit cipline to stand behind an agenda that But instead of making a stride to-
any act of institutional arson in serv- will endure, one sturdy enough for a ward that vision of ‘‘equal justice
ice of someone like Donald Trump will project of our own. And if we do our under law,’’ instead of making a stride
continue to do whatever they can get job, my hope is that 50 years from now, toward that vision of government of,
away with in this body. our kids and grandkids will look back by, and for the people, this nomination
They are not going to stop. They with gratitude that we built on this imperils that vision. This nominee, if
have spent decades and billions in dark foundation a house that they and their confirmed, will damage that vision.
money, exercising their power to en- children love to live in—an America We have a decades-long scheme by a
trench their power. that is more democratic, more fair, and powerful and privileged minority to de-
They will not abandon this project in
more free. stroy the ‘‘we the people’’ vision of
a single election. And we are going to
I yield the floor. equality and opportunity in our Con-
have to overcome that, just as we are
I suggest the absence of a quorum. stitution, to erode the foundation of
going to have to overcome the Supreme
The PRESIDING OFFICER. The our institutions so that they can rig
Court. It won’t be easy. It won’t be
clerk will call the roll. the system in their favor.
easy, but anyone who studied the his-
The senior assistant legislative clerk This has always been a dynamic of
tory of our country, our democracy,
proceeded to call the roll. republics—those who love that vision
knows how hard it is to make progress. Mr. MERKLEY. Mr. President, I ask of a government ‘‘of, by, and for the
It is never easy.
unanimous consent that the order for people’’ and those who fear that vision
Time and again, Americans have
the quorum call be rescinded. of government ‘‘of, by, and for the peo-
breached the ramparts of undemocratic
The PRESIDING OFFICER. Without ple’’ because they want to rig the rules
power. It happened in 1848 in Seneca
objection, it is so ordered. in their favor. They want to rig the
Falls, when 100 people—mostly
The Senator from Oregon. rules with a vision that would never
women—signed the Declaration of Sen-
Mr. MERKLEY. Mr. President, two have a chance at the ballot box, that
timents. It happened outside the
powerful phrases we often hear in would never be embraced by the major-
Stonewall Inn in 1969, when thousands
America: one is ‘‘We the People,’’ an- ity. They want to pull the levers of
stood up to police abuse of the city’s
other is ‘‘equal justice under law.’’ power from behind the scenes in their
LGBT citizens. It happened when Cesar
‘‘We the People,’’ the first three own favor, to accentuate income in-
Chavez lifted the plight of America’s
words of the Constitution, written in equality, to accentuate wealth inequal-
farmworkers and Corky Gonzalez gave
supersized script so that everyone ity, to prevent those people from vot-
voice to the history and stifled pride of
could have no doubt that that is what ing who disagree with them with every
a people. It happened in 1965, when 2,500
that Constitution—our Constitution— type of contrivance to suppress and in-
citizens crossed the Edmund Pettus
Bridge on the way to the Alabama cap- was all about. You can see those words timidate voters.
ital city of Montgomery. from across the room. They echo so If there is anything in which freedom
Each time a few brave citizens have often, how can we possibly forget the of speech has meaning, isn’t it that
advanced upon the work of despotism, soul of our Constitution is, as Presi- speech that you make when you mark
their fellow Americans joining them, dent Lincoln described, ‘‘of, by, and for your ballot for whom you wish to be
because they, too, longed for a better the people’’—‘‘of, by, and for the peo- your representative—perhaps the most
country. ple.’’ powerful moment of expression in a re-
Perhaps this summer we crossed this That second phrase, ‘‘equal justice public.
generation’s Edmund Pettus Bridge, under law’’—a phrase so important to Judge Amy Coney Barrett, the nomi-
when fatigued by still unending our system that it is carved above the nee, is certainly not the architect of
months of disease, ashamed by Donald doors of the Supreme Court. Just the this scheme, but she is certainly a full-
Trump’s embrace of White supremacy across the hallway here from the fledged partner, enthusiastically em-
and his failing efforts to make the Chamber in which I now stand, the bracing The Federalist Society and its
United States look like a police state, Senate Chamber, you can go into the mission to thwart the will of the people
forced to reckon again with the brutal Johnson Room. It served, when John- of the United States of America.
and systemic racism of our justice and son was the majority leader of this She doesn’t read those first three
law enforcement system, Americans Chamber, as his office. And you look words of the Constitution—‘‘We the
decided they could no longer stand a out the window, you can see the Su- People’’—as meaning government of,
country on such terrible terms, or per- preme Court Building with that phrase by, and for the people; she reads it as
haps this generation’s Edmund Pettus carved into it: ‘‘Equal Justice Under we, the powerful, will decide what is
Bridge is still before us, unknown but Law’’—two powerful phrases that, best for ourselves and everyone else;
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there for those who will do their part taken together, lay out the foundation thank you very much. Boy, talk about
to bend the moral arc of the universe. for our democratic Republic. a philosophy that undermines the in-
But we must cross this bridge I hope They also represent a vision that is tegrity of our Constitution. That is it.
sooner rather than later. aspirational—one that we had not And she is just one of a stream of ju-
Like our forebearers, we will cross it achieved when our Constitution was rists rushed through in the last 4 years,
only by pursuing ideas so compelling first written, one that we have not organized by the Federalist Society, to
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S6486 CONGRESSIONAL RECORD — SENATE October 25, 2020
further undermine the rights of the occurred 10 months before the election governments, certainly not because
worker, to undermine the civil rights and this year it occurred just a few there is a precedent for this action.
of Americans, to undermine healthcare weeks before the election. Oh, wait. I was standing here the
rights, to undermine environmental We all recognize that, if one was real- other day, and I heard a Member say:
laws. It is an agenda that is the exact ly disturbed that this was a conflict, We stand on precedent.
opposite of the vision of our Constitu- that disturbance would be much great- Well, we are under our 45th Presi-
tion. er this year when there is no time, so dent, although some say it is the 44th
And here we have the Members of the little time—just weeks. In fact, it is because Cleveland was elected twice—
majority of this Chamber, facilitating not really weeks before the election be- in 1884 and then out of office and back
this scheme. They stand determined to cause the election is underway. Fifty in 1892. But anyway, we are under—we
shatter any norm, to destroy any million Americans have already voted. say it is our 45th President—President
precedent, to break any rule that So it is not just a year of an election; Trump.
stands in the way, to abandon any prin- it is during an election. Under our first 43 Presidents, this
ciple they so recently passionately pro- I would love to see an outbreak of in- Senate never once—never once—not a
claimed in their single-minded grab for tegrity in this Chamber, an outbreak of single time, refused to debate and vote
power, this single-minded mission of principle in defense of our Constitu- on a nominee from the President of the
stacking the court with extreme right- tion. It is so often that we admire char- United States for the Supreme Court—
wing jurists for the powerful over the acter. We admire it when someone says not once. But 4 years ago, under our
people—jurists who, rather than stand- ‘‘That person is as good as their word.’’ 44th President, the Republican major-
ing firm in defense of the Constitution, I would like to be able to say that, ity said: We are breaking that prece-
will use those black robes for the dark, when I heard my colleagues say they dent, and for the first time in U.S. his-
dark deed of destroying any pretense of had a passionately, deeply held prin- tory, we are refusing to debate and
government of, by, and for the people. ciple 4 years ago that there should be vote.
Just 4 years ago the majority of this no debate in an election year, they Now, I would have had some respect
Chamber, the same majority, the Re- were as good as their word. for saying that we will debate and we
publican majority, said they had dis- That is what we admire: character,
will vote, because that is our responsi-
covered a new principle that they felt principle. We all have heard the quote:
bility under the Constitution. In fact,
with all their hearts was the right ‘‘I disapprove of what you say, but I
many times in our history we have de-
thing to do; that never, under any con- will defend to the death your right to
bated here in the Senate, and we have
dition, under any set of circumstances say it.’’ It is a quote attributed to Vol-
voted, and we have struck down the
should this Chamber ever debate or taire by Beatrice Evelyn Hall. It was
nominee.
vote on a nominee for the Supreme actually more a description of
Voltaire’s character, that he believed I was surprised to see that almost a
Court during an election year.
in a principle so firmly that, even when quarter of the time—almost one out of
They made that argument though
it disadvantaged him, to his point of four nominees has been turned down by
the election was far away. The vacancy
death, he would defend it. this Chamber for the Supreme Court.
occurred early in the year. The nomi-
Who in this Chamber argued 4 years That would have involved actually
nee was named by the President, Presi-
ago that during an election year there being here on the floor and making ar-
dent Obama, in March. But that dis-
should be no debate or vote on a nomi- guments. That would involve actually
tant election on the horizon, we have
nee and has that Voltairean character taking a vote so you could be evalu-
to protect it, and we should hear from
to defend it when it is inconvenient ated, so your position could be evalu-
the people before we decide to debate
today—not even inconvenient to the ated by your constituents. That would
and vote.
You know, it is disturbing to see a point of death, just inconvenient be- have involved fulfilling your respon-
so-called deeply held principle vaporize cause of some pressure you might re- sibilities and having the accountability
like light rain on hot summer asphalt. ceive politically? Who will stand up that goes with fulfillment of those re-
It is disturbing to see a so-called deep- and be that voice of character in this sponsibilities.
ly held principle be so easily acquired Chamber? But there was no fulfillment of re-
when it violates the precedents of this We all await to see just a few people sponsibilities 4 years ago. There was no
Nation and so easily abandoned when it stand up and be a voice of principle in accountability because there was no
is convenient to do so. this Chamber. We all stand here and vote taken—the first time in U.S. his-
There is just one principle here. It is wait for just a few people to be a voice tory. So don’t tell me—don’t tell me,
the principle of power. It is the prin- of integrity in this Chamber. The coun- colleagues—that you stand on prece-
ciple of ‘‘we will because we can.’’ It is try waits for a position that can be ad- dent.
the principle that we have no principle; mired, of principle, of character, and of Or we can look back in history to a
we will toss our integrity to the winds; integrity. Republican President, President Lin-
we will trash our arguments of yester- It is not just that passionate argu- coln. President Lincoln was concerned
year; we will forget the speeches in ment 4 years ago; it is also about about filling a Supreme Court position
which we so passionately proclaimed breaking the rules. Just the other day, during an election, so what did Presi-
our positions because we have a mo- the chairman of the Judiciary Com- dent Lincoln do? He delayed the nomi-
ment of opportunity to advance power mittee broke the committee rule that nation until after the election. How
for the powerful, and we will seize it. at least 2 members of the minority about that precedent? How about the
What is different between this year needed to be present for a quorum to Republican majority follow the prece-
and 4 years ago when the majority said advance Judge Barrett’s nomination. dent from President Lincoln?
there should never, under any cir- And he broke another rule to close de- And then there is the McConnell
cumstances, ever be a debate on a Pres- bate that says there has to be a minor- precedent. What is the McConnell
idential nominee during an election ity member present. precedent that he put forward 4 years
year? What is different? Well, why don’t you just stand up and ago? We never vote or debate a nomi-
Well, 4 years ago there was a va- tear up the rules of the committee? nee during an election year. How about
cancy. This year there is a vacancy. The Parliamentarian of this body said that precedent?
Four years ago it was an election year, that is OK—that is OK. So apparently So precedent after precedent after
a Presidential election year. This year there are no real rules to what happens precedent: The historical, centuries-
it is a Presidential election year. here under this majority. long precedent of never failing to de-
ctelli on DSK11ZRN23PROD with SENATE
It is the same choice of whether to What is the end goal of this effort to bate and vote—broken. The Lincoln
debate or whether to hear from the break the norms, break the rules, precedent of not asking the Senate to
voice of the people before deciding how break the passionate principles pro- do a nominee’s hearing, debate, and
to fill this vacancy. It is the same nounced 4 years ago? Certainly not to vote during an election—broken. The
choice, with one difference. That dif- ensure equal justice under law, cer- McConnell precedent put forward with
ference is that 4 years ago the vacancy tainly not to embody ‘‘We the People’’ great passion 4 years ago—broken.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6487
The goal is to transform the Supreme tives in the Chamber down the hall, the all the restrictions, regulations—the
Court into a supermajority, a super- House of Representatives, political sci- freedom to pollute—even though they
legislature for the superelite—a 6-to-3 entists estimate that it creates a 15- to know the people of this country really
supermajority and a nine-member 20-seat bias in favor of the Repub- value clean air and clean water. So
superlegislature operating for the licans—15 to 20 seats. That is a big deal control the courts so they can strike
superelite. in the House of Representatives. down those rules to protect our air and
That whole vision in our Constitu- It certainly, in terms of equal rep- our water.
tion of having a Supreme Court that resentation, is simply wrong because it There are many challenges involved
defends the rights of Americans from is unequal representation. But the Su- in the revenue to support our country.
the excesses of law written by Congress preme Court decided it was OK. They I mention this because it is another
or the excesses of the executive branch decided it was all right. reason the superelite want a super-
not following the laws, that is gone. Or we can talk about the Voting majority in the nine-member super-
This is not about nine referees in black Rights Act, designed specifically to legislature. It is because the rich don’t
robes. This is about having a super- stop tactics to suppress voting or to in- want to pay for the infrastructure of
majority in Republican robes for the timidate voters, because isn’t voting this country.
superelite of this country. the foundation of our electoral system? Leona Helmsley once said that only
Why is that such an important strat- Isn’t it the foundation of our demo- the little people pay taxes. President
egy for my Republican colleagues? Be- cratic republic? Trump has said things very close to
cause the superelite understands some- But in 2013, in a 5-to-4 decision, the that. Very wealthy people have a lot of
thing fundamental, which is that some- five Justices in red robes gutted the enterprises going on. Corporations
times the people of the United States Voting Rights Act to unleash voting have a lot of enterprises going on. They
have a grassroots movement, and they, suppression and intimidation across are using our legal system continu-
holding the Constitution near and dear our country, and we see the results in ously, but they don’t want to pay for
in their heart, holding their freedoms county after county after county. it. They are using our transportation
near and dear to their heart, rise up We see it in State after State after system continuously, but they don’t
against this manipulation by the State. Here is the thing: Before the Su- want to pay for it. They are benefiting
superelite, and they pass laws to pro- preme Court struck down the protec- by hiring the products of our education
tect civil rights. They put forward a vi- tion of the integrity of voting, we had system, but they don’t want to pay for
sion of protecting the environment. a bipartisan majority—a large, exten- it.
They say workers have to be treated sive, huge bipartisan majority—in de- Leona Helmsley said it well: For the
fairly—a fair day’s wage for a fair day’s fense of election integrity in this superelite, only the little people pay
work. And the superelite doesn’t like Chamber. But once the Court struck it taxes. That is the philosophy supported
that. down and it massively favored one in this effort to control the courts.
But do you know what? If they can party over the other, the Republicans Big banks like this. They want to
turn the Supreme Court into a super- abandoned their principles on this and make sure that there is not an uprising
legislature they control, they don’t have blocked every effort to restore in the people that says you have to
have to worry about it because they protection of voting integrity in our shut down that Wall Street casino that
can have the laws written by that nine- Nation. prevents us from putting the entire
member Court. They can pull the le- We can look at the impact of money American economy at risk. They want
vers of power through the Court. And from corporations on elections. In Citi- to keep that casino in place. Compa-
the Court doesn’t have to stand for zens United, 10 years ago, the Court de- nies that are trying to maximize prof-
election ever—lifetime. It is done. It is cided that we need to give the ultimate its and stock values certainly don’t
locked in. That is the strategy, the source of massive power, ultimate in- like laws that protect workers’ rights
very successful strategy, to undermine fluence on elections by freeing them up and protections.
the vision of our Constitution. to put as much money into campaigns There are many ways the superelite
That superelite, with their super- as they should like. So if a corpora- can pull the levers of power from be-
majority of the nine-member super- tion—if I offend them, and I offend hind the scene. Hundreds of lawyers—
legislature, they can stand in the way them all the time—chooses that they that is very valuable. Hundreds of lob-
of efforts to save our planet from cli- can put $100 million into campaigning byists work on Capitol Hill. There are
mate chaos. They can stand in the way against me in my State, it is like a sta- far more lobbyists for the drug indus-
of tackling rampant economic inequal- dium sound system designed to drown try up here than there are Members of
ity. They can stand in the way of tak- out the voice of the people. Congress. Media campaigns to influ-
ing on systemic racism and oppor- Imagine you are at a ball game. You ence public opinion cost a lot of
tunity for everyone, regardless of the are there in the stadium, with all your money; that is another power. Think
color of their skin. They can stand in community members, and you are try- tanks generate ideas that can move the
the way of equality of opportunity for ing to make your voice heard. Every- conversation in their direction. Of
LGBTQ communities. They can stand one should get a fair chance to have course, the money in elections is abso-
in the way of security and integrity for their voice heard. But the big speakers lutely key. But the courts—the courts
our elections. above you drown you out. That is Citi- are the final defense against the peo-
They can tear down the work done. zens United. It doesn’t facilitate speech ple. If you can control the courts—who
When these two Chambers, the House in the town square; it suppresses aren’t elected, who are invulnerable to
and the Senate, are mobilized to fight speech in the town square. It drowns the people—that is your final defense.
for the vision of our Constitution—pur- out speech in the town square. At the heart of this court strategy is
suit of happiness, fair opportunity— It is as if our Founders had said: We the Federalist Society, organized in
they can strike it down. They can want everyone to have a chance to the 1980s. They put high ideals on their
strike down healthcare. They can stand up and take their position, make website, saying they are ‘‘founded on
strike down reproductive rights. it known in the town square, before the the principles that the state exists to
Perhaps the most diabolical part is election is held for the mayor but preserve freedom, that the separation
their effort to destroy the integrity of thought it would be OK if a corporation of governmental powers is central to
our election system. Now, one form of bought the town square and prevented our Constitution.’’
assault on the integrity is gerry- anyone else from speaking. That is It sounds pretty good. ‘‘Preserve free-
mandering, where States draw the lines Citizens United. That is the grotesque dom.’’ It is innocuous. But it is not
ctelli on DSK11ZRN23PROD with SENATE
in order to favor a particular party. violation of free speech in America about preserving freedom. That is the
This has been done in States controlled done by five jurists in red robes for the media strategy. It is about crushing
by Democrats as well as States con- superelite. the freedom of ordinary people to par-
trolled by Republicans. That is a pretty good deal for the fos- ticipate in our elections. It is about
When the analysis is done across the sil fuel megapolluters. Our entire plan- crushing the ability of ordinary people
country, when it comes to Representa- et is at risk. They want to eliminate to get a fair day’s pay. It is not about
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S6488 CONGRESSIONAL RECORD — SENATE October 25, 2020
the separation of powers. They want gether and say: I can accept that. We But Hamilton read that as allowing
the majority in the Senate to work to will argue later over what it meant. something that is relevant and useful
create a majority in the Court, closely This originalist philosophy is saying: to facilitate an enumerated power. It
connected to each other in this web of Well, here is the secret. There were a would serve the purpose of that enu-
the powerful pulling the levers behind bunch of people who had different merated power. And Madison and Jef-
the scenes—the opposite of separation views at the time it was written, but I ferson said: No, no, no, it only means
of powers. will choose the one meaning that bene- something can be done if it is abso-
As described in the book, ‘‘The Lie fits the powerful in America, that fits lutely essential—not that it is rel-
that Binds,’’ the Federalist Society the ‘‘we the powerful’’ vision of our evant, not that it is useful, but it is ab-
sprang up to implement an anti-demo- Constitution, not the ‘‘We the People.’’ solutely essential to implement the
cratic policy agenda and political phi- That is pretty clever—pretty clever enumerated power.
losophy—a court system impervious to and pretty diabolical if, in your heart,
So one is a very expansive view of
the will of the voters. That superelite— you care about this Nation, you care
what is allowed by the Constitution,
they realized long ago the powers and about the beautiful, extraordinary vi-
and one is a very constricted view. All
initiatives they wanted were not going sion that we will be a government not
these men were involved in writing the
to be popular—and thus this strategy, dedicated to those who are the elite,
Constitution, all to my point about the
this strategy relevant to this confirma- like the kingdoms of Europe, but will
differing views that were held about
tion. draw its power from the opinion of the
each clause of the Constitution.
The Federalist Society has been people. That is the view I hold. That is
funded by that same group and ex- the view our Founders aspired to. That We have the greatest minds of the
panded into a behemoth, with some is the view that is being undermined age, including two who had worked to-
70,000 attorneys. It started in no small day in and day out by the Federalist gether to not only write the Constitu-
part by a grant received from the Olin Society. tion but also the Federalist Papers
Foundation, a conservative grant-mak- Madison wrote: ‘‘No language is so that had completely different interpre-
ing foundation that was the force be- copious as to supply words and phrases tations.
hind business friendly law and econom- for every complex idea, or so correct as It takes a lot of chutzpah to say: I
ics at law schools throughout the coun- to not include many equivocally denot- know exactly what the universal view
try. ing different ideas.’’ was of a clause in the Constitution and
I have heard people say: Do you know He is speaking directly to my point: to do so to get the end result you want,
what? I joined because they had the The Founders had many different ideas which is government for the powerful.
money to buy us dinner, and I was a about what each clause of the Con- That is a powerfully corruptive assault
poor law student. stitution meant and what it would on the core vision of our Constitution.
According to the New York Observer, mean to be applied.
the Olin Foundation gave out hundreds He went on to write: ‘‘All new laws, Let’s take a look at another piece of
of millions of dollars in grants ‘‘to con- though penned with the greatest tech- the so-called Federalist pro-business
servative think tanks and intellec- nical skill . . . are considered as more viewpoint, which is that corporations
tuals—the architects of today’s sprawl- or less obscure and equivocal, until are people, and they have full freedom
ing right-wing movement—for a quar- their meaning be liquidated and of speech. The originalists say: Isn’t
ter century.’’ ascertained by a series of particular that obvious from the Constitution?
The crown jewel of the Olin Founda- discussions.’’ Well, no, actually, it is not at all obvi-
tion’s work? The Federalist Society. The words are ‘‘more or less obscure ous because corporations in their cur-
The Olin Foundation wrote to its trust- and equivocal, until their meaning be rent form did not exist when the Con-
ees in 2003: ‘‘All in all, the Federalist . . . ascertained by a series of par- stitution was written. So it is not only
Society has been one of the best invest- ticular discussions’’—again, noting not obvious; it is completely wrong.
ments the foundation ever made.’’ that the right philosophy is to seek to Corporations were created for very spe-
Since its founding, the Federalist So- understand the motivation, the prin- cific purposes in our early years.
ciety has put forward extreme, right- ciple in which those ideas were infused, Professor Brian Murphy, a history
wing legal theories. And as their influ- not to cherry-pick one of the many professor at Baruch College in New
ence and power have grown, they have conflicting positions in order to sus- York, wrote the following: ‘‘Americans
worked hard to bring those theories tain power by the powerful. inherited the legal form of the corpora-
into the mainstream—mainstream ar- We can see this in one of the early tion from Britain, where it was be-
guments, like originalism, which Judge fights in the history of our United stowed as a royal privilege on certain
Barrett, the late Justice Antonin States, of our Constitution. The year institutions . . . used to organize mu-
Scalia, Justices Kavanaugh and was 1791, just 4 years after the Con- nicipal governments.’’
Gorsuch all claim to hold. stitution was written. Treasury Sec-
This is how Judge Barrett explained retary Alexander Hamilton was work- Well, that is quite different from the
her philosophy during her confirmation ing on his financial plan to build up the corporations we have. Americans won-
hearings: ‘‘I interpret the Constitution country’s credit, and he wanted Con- dered if they should abolish them en-
as a law, that I interpret its text as gress to charter a national bank. Ham- tirely or find a way to democratize
text, and I understand it to have the ilton had that goal in position. Madi- them and make them compatible with
meaning that it had at the time people son and Jefferson did not like the idea the spirit of independence. They chose
ratified it. So that meaning doesn’t of a national bank. They argued about the latter, so the first American cor-
change over time.’’ the Constitution. porations ended up being cities and
It is a great cover story. It is a great Hamilton said that as long as the schools and charitable organizations.
cover story, but it is a cover story. It Constitution didn’t specifically say We don’t really begin to see economic
is a cover story for the superelite to that the government couldn’t do some- enterprises chartered as corporations
manipulate America. And it dissolves thing, it then could do something. And until the 1790s.
upon any detailed examination. We the opposite position held by Jefferson The work being done on our current
know, if we bother to read history, that and Madison was, no, the Constitution Constitution was being done when we
virtually every clause of the Constitu- only allows something to be done if it were under the Articles of Confed-
tion had Founders who disagreed on is absolutely necessary to implement eration. They were in place from 1781
what it meant. Yes, you had a pretty the enumerated power. to 1787, a 6-year period. And during
ctelli on DSK11ZRN23PROD with SENATE
homogenous group—39 White, edu- This argument is over a clause of the that period, corporations were not eco-
cated, wealthy men, signing that piece Constitution called the Necessary and nomic enterprises. As the professor
of parchment in Philadelphia, but they Proper Clause. It says that government points out, they became economic en-
had multitudinous views of the clauses. has the ability to enact laws for the terprises in the 1790s. Yet, somehow,
There is a lot of ambiguity in those necessary and proper fulfillment of the these Justices of the Supreme Court
clauses that enabled them to come to- enumerated responsibilities. and their red robes of the superelite
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6489
say that the Constitution makes it ab- from a single anonymous donor. It gave How about tax credits to enable mid-
solutely clear that these massive busi- $3 million to two other groups, one of dle-class Americans to be able to buy
ness corporations have the same free- which, America Engaged, passed on $1 healthcare? No, no, no. We like that.
dom of speech and the ability to par- million of that money to the lobbying How about comparing policies on the
ticipate in elections as if they are peo- arm of the NRA that went on to carry website so you can pick a policy that is
ple, because they are people. But they on a $1 million ad campaign in sup- right for your family? No, no, no. That
are not people. And these economic en- porting Neil Gorsuch. This is vast is a step forward.
terprises did not exist when our Con- money in a vast web being deployed to But the Federalist Society, the Presi-
stitution was written. influence Americans in every possible dent, and the Republicans in this
If you want a single example of the way because these folks hate the vision Chamber have decided that they are
complete corruption of the basic argu- of government of, by, and for the peo- going to tear down healthcare for 20
ment made by the Federalists, this is ple. million Americans. So it is hardly a
certainly an example to put forward. The Federalists don’t just carry out scare tactic because there are very
Murphy continues: public relations campaigns. They don’t powerful forces at work on that mis-
The Founders did not confuse Boston’s just recruit law students. They proceed sion.
Sons of Liberty with the British East India to be in the very center of things pre- One of the healthcare bill of rights
Company. They could distinguish among dif- senting oral arguments. They pre- that people really love in my State,
ferent varieties of association—and they un- sented every oral argument on every and actually in all States across this
derstood that corporate personhood was a single abortion case that has come be- country, is the protection to get a pol-
legal fiction that was limited to a court-
fore the Supreme Court since 1992. icy at the same price, even if you have
room.
They are involved in issue after issue a preexisting condition.
Corporations could not vote. Cor- after issue. They have been invested in I was at a fundraiser—a walkathon
porations could not hold office. Early litigation efforts against the ACA, the for multiple sclerosis, for MS, when a
Americans had a far, more comprehen- Affordable Care Act, by trying to woman came up to me, and she said:
sive understanding of corporations strike down healthcare for millions of Things are so much different this year.
than the Court gives credit for. Americans well before the act was even I said: What do you mean? The
Well, this is indeed the challenge signed into law and before there was weather is different? The turnout is
that we have because we have a power- even anything to litigate against. A different?
ful elite that has created a system Federalist Society member, Randy She said: No, no, no. A year ago, if
completely alien to the core philos- Barnett, coauthored a 16-page legal someone was diagnosed with MS, we
ophy of our Constitution of govern- memo against the law, which became a knew they would have a very hard
ment of, by, and for the people. They source of talking points during con- time, if they didn’t have good
have the money to create those hun- gressional debate and laid the frame- healthcare, getting the help they need-
dreds of lawyers working day and night work for subsequent court challenges. ed and then they might face lifetime
for their vision. They have the money Is it any wonder that so many of us limits or annual limits that would pre-
to create the hundreds of lobbyists up across the Nation are terrified of Judge vent them from actually getting care,
here on Capitol Hill working for their Barrett’s confirmation and what it even though they had insurance. But
vision. They have the money to create could mean for the health of our citi- now we can get the care we need.
the media campaigns that flood the zens? I was interested to hear a col- So that is the goal. That is the goal
airwaves for their vision. They have league on this floor—a Republican col- of the Federalist Society: tear down
the money to create the Federalist So- league say these are scare tactics. healthcare for millions of Americans.
ciety chapters to recruit people when These are scare tactics to say that the You may wonder if when I noted that
they first start law school and indoc- Court might strike down healthcare. the Court was against the foundation
trinate them in this particular vision, These are scare tactics. of our democracy—the former five Jus-
promising them great support and re- Does that colleague not believe the tices, soon to be six Justices in red
ward in their careers to support this President of the United States when he robes want to tear down the basic foun-
mission of government by and for the said he will nominate someone who dation of our democratic Republic.
powerful. will strike down the ACA and its Well, let’s look a little more closely at
The network is extensive in ways healthcare bill of rights? It is not a that.
that need to be completely understood scare tactic to say the individual who Perhaps I can persuade you because
across the country, a network of affili- chose the nominee said he intended to the Court decided that corporations are
ated groups. Take the case of the Free- strike down Roe v. Wade and pick people and that they can spend their
dom and Opportunity Fund, a nonprofit somebody who would strike down the unlimited concentrated assets in cam-
that Mr. Leo, who was very involved in Affordable Care Act. paigns—the case, Citizens United. And
the Federalist Society, launched in Now, the Affordable Care Act, in my why do we call it dark money? Well,
2016. For over 2 years, the Freedom and home State, has meant 400,000 people because corporations can give their
Opportunity Fund gave $4 million to gained access to Medicaid under the ex- money to a 501(c)(4), so-called non-
another group, the Independent Wom- pansion of Medicaid. One of the ironies profit, and the nonprofit gives their
en’s Voice. In fact, about half of that is, the largest percentage of bene- money to a super PAC, which runs an
group’s revenue came in that manner. ficiaries are in the reddest parts of the independent campaign, and the super
In an indepth report from the Wash- State, and the biggest beneficiaries in PAC discloses the nonprofit as the
ington Post, when Kavanaugh’s con- terms of providing healthcare are rural donor but not the original donor, so it
firmation was running into trouble, hospitals and rural clinics because the is laundered. Nobody knows who fund-
leaders from the Independent Women’s people who previously came couldn’t ed that super PAC that is attacking
Voice sprang into action, mobilized to pay the bill, so they didn’t have the re- you with millions of dollars of ads.
speak at rallies, wrote online com- sources to expand their operation, but So that certainly is the Court weigh-
mentaries, and appeared on FOX News. now they do. ing in for the absolute suppression of
They went to extraordinary lengths to When I do my townhalls and people the voice of the people and a voice
make sure the Federalist Society’s say: ‘‘I just don’t like this ACA’’ be- drowned out by unlimited corporations
nominee did not get the full examina- cause they have been hearing that from from the largest, most powerful finan-
tion by the people of this country. the rightwing media, I say: Well, let’s cial organizations that exist in the
Now, Mr. Leo is listed as president of have a vote of everyone here. You can world.
ctelli on DSK11ZRN23PROD with SENATE
three other groups: The BH Fund, Free- step forward or step backward. Do you Let’s take a closer look at Shelby
dom and Opportunity Fund, and Amer- like the idea of children being on your County. Shelby County, which gutted
ica Engaged. These aren’t groups that policy until age 26 because that is in the Voting Rights Act, protecting the
have employees. They don’t have office the bill of rights—the healthcare bill of foundations for the citizens to fully
space. They don’t have a website. And rights of the ACA. No, no, no. We like participate, but the Court strikes it
yet the BH Fund received $24 million that. Overwhelmingly, we like that. down—strikes it down. And, last year,
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S6490 CONGRESSIONAL RECORD — SENATE October 25, 2020
in Rucho v. Common Cause, the Court Oral arguments in California v. ing out of pocket for his care would
said that gerrymandering is just fine. Texas, the legal challenge brought by likely lead to medical bankruptcy, and
They knew that it violates the very Republican-led States with the Trump that burden weighs heavily on him
premise of equal representation, and administration’s support are on the every day as he thinks of his wife and
they decided that unequal representa- Court’s docket November 10. We know children’s future, as well as his own.
tion was just fine. Instead of defending full well that a 6-to-3 conservative ma- Finally, I want to share the story of
the vision of our Constitution, they jority of the Supreme Court is likely to Daria Caldwell of Flemington, NJ, be-
supported it being struck down. overturn it or maybe just gut the ACA cause her situation really speaks to the
And we know the courts have a huge so deeply it will effectively be dead, as challenges that so many of our con-
ability to legislate from the bench for if that is somehow any better. stituents across the Nation are going
the powerful. We see it time and time At least 20 million people are at risk through right now. Daria lost her job
and time again. And, by the way, on of losing their healthcare coverage, and and her health insurance as a result of
that decision, Elena Kagan and Gins- 135 million may lose protections for the economic fallout of this pandemic,
burg and Breyer and Sotomayor noted: preexisting conditions. The fact that and this happened at the very time she
‘‘[T]he most fundamental of . . . con- you are even willing to roll the dice was diagnosed with multiple myeloma,
stitutional rights: the rights to partici- with their healthcare in the middle of a treatable but incurable type of blood
pate equally in the political process, to a global pandemic that has already af- cancer.
join with others to advance political fected more than 8 million Americans Daria is 62 years old. She is not old
beliefs, and to choose their political and killed over 224,000 of your country- enough to enroll in Medicare. She is
representatives,’’ is assaulted by this men is reckless and cruel. Don’t you paying for COBRA right now, but it
decision. see you are playing with fire? And you will soon run out, and she will need to
Colleagues, we are in dark and dan- don’t seem to care that hundreds of find new coverage. Before the Afford-
gerous, tumultuous times. It is exactly millions of Americans, Americans you able Care Act, someone like Daria,
those times that require us to stand on represent, are going to get burned. It is with expensive preexisting conditions,
principle, with integrity, to defend our not as if you aren’t hearing from peo- would basically be blacklisted from the
institutions. This process, which has ple in your States who fear a future individual health insurance market. An
violated precedent after precedent without access to healthcare; it is that insurer would take one look at her
after precedent—a 200-year precedent you are not listening. medical history, and the fact that some
in which always a nominee is debated Yesterday, I spent some time with of her cancer drugs, like Revlimid, cost
and voted on, violated 4 years ago to New Jerseyans for whom the Afford- hundreds of thousands dollars a month,
steal a Supreme Court seat; the Lin- able Care Act—in their words, not and they would simply turn her away.
coln precedent of not putting forward a mine—is a matter of life or death. For She said:
nominee during election; the McCon- several of them, going without quality Dissolving the ACA would cost me my life.
nell precedent of saying we never de- healthcare coverage is, in their words,
bate and vote in an election year enun- She says:
a death sentence. That sounds dramatic because it is. I don’t
ciated just 4 years ago; and the rules I wonder how many of you would want to die, but I feel like a price tag has
broken in the Judiciary Committee— have the courage to listen to their sto- been put on my head and the constant threat
all of this about one position, and that ries, look them in the eye, and tell is beyond anything I thought I would ever
one position is power but not power for have to endure. It’s nearly as devastating as
them you have no plan to protect their
the vision of government of, by, and for the diagnosis itself.
care. I suspect not many. So I am going
the people but power for the powerful Now, I am not telling this body these
to share just a few of their stories.
to undermine the ability of the people Stephanie Vigario is a 31-year-old es- stories just to pull at your
to have government of, by, and for the heartstrings, though, believe me, lis-
sential worker, a pharmacy technician
people. tening to these men and women as I did
from Newark, NJ, who caught COVID–
Let us honor our oath to the Con-
19. She spent 2 months—2 months— yesterday moved me beyond tears. I am
stitution; let us defend the integrity of
fighting for her life in a hospital, in- sharing their stories, their incredibly
the Court; and let us strike down this
cluding 35 days on a ventilator. By the personal struggles, to remind my col-
nominee to defend the integrity of the
grace of God, she survived, but her life leagues on both sides of the aisle that
Court.
I yield the floor. may never be the same. Even after all to the American people this is not ideo-
The PRESIDING OFFICER. The Sen- the intensive rehabilitation she went logical. This is not abstract. It is per-
ator from New Jersey. through, she is still working on her re- sonal. These are matters of life and
Mr. MENENDEZ. Mr. President, I covery. death.
rise to speak in opposition to the con- There are hundreds of thousands of Of course, the Affordable Care Act
firmation of Judge Barrett to the Su- COVID–19 survivors like her grappling isn’t the only issue at stake here. The
preme Court. We should not be holding with the long-term health con- very reason we are here considering a
this vote. sequences of a disease we don’t yet Supreme Court nominee in the final
We are in the eleventh hour of a fully understand—organ tissue damage, days of a Presidential election is, I be-
Presidential election, and 56 million weakness and fatigue, chronic short- lieve, because my Republican col-
Americans have already voted. The ness of breath. These Americans now leagues fear the will of the American
American people are sending a mes- have a preexisting condition. Without people.
sage, and we ought to hear what they the Affordable Care Act, health insur- The number of Americans who sup-
have to say. ance companies could once again begin port the most far-right positions of the
Instead, what is happening in the pricing them out of coverage or deny- Republican Party is shrinking, and so
Senate is an obscene power grab by my ing it altogether. stacking the Supreme Court is their
Republican colleagues to bypass de- I also had the privilege of speaking only path to advancing their unpopular
mocracy and force the least popular with Scott Chesney of Verona, NJ. agenda, and they know it.
and most extreme views of their party Scott is a married father of two who at They know that most Americans—
onto the American people with no re- the tender age of 15 was paralyzed from nearly 80 percent according to the last
gard for the life-and-death con- the waist down. He faces a lifetime of decade of Gallup polling—oppose crim-
sequences of their actions. expensive medical needs. To quote him: inalizing abortion. The overwhelming
So, my friends in the majority, you Aging with a disability—a preexisting con- majority believe in the right of a
had a decade to create an alternative dition—is tough. Your body breaks down. woman to decide when she has chil-
ctelli on DSK11ZRN23PROD with SENATE
to the Affordable Care Act. You still Thankfully, my wife has health insurance dren, and they know it is none of the
have no viable plan. And after failing because if I don’t get the medications and government’s damn business.
to repeal it in 2017 and suffering an un- therapy I need, I don’t live. They know that most Americans sup-
precedented electoral rebuke in 2018, But without the Affordable Care Act, port action on climate change and lim-
you are relying on the Supreme Court Scott will likely face annual caps and its on how much poisonous pollutants
to do your dirty work. lifetime limits on his healthcare. Pay- companies can pump into the air.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6491
They know that most Americans, in- have twisted and distorted every rule One of the reasons we shouldn’t be
cluding responsible gun owners, sup- and broken every norm to get your way here is that the Judiciary Committee
port lifesaving background checks and just because you currently have the broke its own rules in order to vote
tougher gun safety laws. power to do so. That does not make it this nomination out. Here is rule 1
And they know that most Americans right. under ‘‘Quorums,’’ section III, of the
believe that their LGBTQ sons and You are poisoning the well of the Judiciary Committee rules: ‘‘Seven
daughters and friends and neighbors Senate and flooding our Nation with Members of the Committee, actually
should be able to marry the people bad blood, and you have revealed your- present, shall constitute a quorum for
they love and live their lives free of selves to be so fearful of the demo- the purpose of discussing business.
discrimination. cratic will of the American people that Nine Members of the Committee, in-
My colleagues seem to have forgotten you will confirm a Justice to the Su- cluding at least two Members of the
that as elected representatives of the preme Court whose views are far out- minority, shall constitute a quorum for
American people, they are supposed to side the mainstream just days before the purpose of transacting business.’’
reflect the will of the American people. the conclusion of the Presidential elec- What an inconvenient rule. But I
And guess what. The will of the people tion. have to presume that that rule, which
changes. This isn’t the 1950s anymore. I urge you not to go through with has been there for years, was put there
But rather than adjust your sails to this vote. This is a craven abuse of for a reason: in order to preserve the
the winds of change, rather than meet power that will ultimately inflict great tradition of comity and respect for the
the American people where they are on harm on the American people. His- minority that this body has often stood
issues of life and death, you would in- tory—history—is not going to forget it. for.
stead prefer to sink the whole ship. And I think someday—probably sooner ‘‘Nine Members of the Committee, in-
Those of my colleagues who know me than you think—you are likely to re- cluding at least two Members of the
know that I try to see the best of my gret it. minority, shall constitute a quorum for
colleagues on the other side of the With that, I yield the floor. the purpose of transacting business.’’
aisle. I really do. I pride myself on my The PRESIDING OFFICER. The Sen- That quorum wasn’t there when this
working relationships with so many of ator from Maine. nomination was reported out.
you, and some of you, I even consider Mr. KING. Mr. President, ‘‘The So we have trampled precedent. We
dear friends. But I was stunned—just American people should have a voice in have trampled history. We have even
stunned—by the hypocrisy. Where are the selection of their next Supreme trampled the rules.
your principles? Court Justice. Therefore, this vacancy And I know that my colleagues say:
When you blocked Merrick Garland’s should not be filled until we have a new But it is in good cause. We need to get
nomination, you didn’t say it was be- President’’—Senator MITCH MCCON- this conservative Justice on the Court.
cause President Obama was a Demo- NELL, February 13, 2016. I don’t always It is for a good cause.
crat and the Senate was held by Repub- agree with Senator MCCONNELL, but I I am reminded of that wonderful
licans. You said very clearly at the agree with him on that one. This is a play: ‘‘A Man for All Seasons,’’ about
time it was because a Supreme Court violation of our rules, of our history. the ends justifying the means. Roper
vacancy should not—not—be filled dur- There have been 13 vacancies within says: ‘‘So now you’d give the Devil ben-
ing a Presidential election year. You the last 10 months of a Presidential efit of law’’—the rules?
said the American people should have a election year in American history. Sir Thomas More said: ‘‘Yes. What
voice. Now, it is clear you didn’t even Nine of them were before July 1. Of would you do? Cut a great road the law
believe the words you were saying at those nine, seven were confirmed by to get after the Devil?’’
that time. the Senate, two were not: one under Roper said: ‘‘I’d cut down every law
You were determined to deprive a President John Tyler and the other in England to do that!’’
democratically elected two-term Presi- was Merrick Garland. Then here is the point. This is what
dent of his constitutional prerogative There have been only four vacancies More responds:
in order to fundamentally alter the in the Supreme Court that have oc- Oh? And, when the last law was down, and
makeup of the Supreme Court. You did curred after July 1 of an election year; the Devil turned around on you—where
zero of them have been confirmed: would you hide, Roper, the laws all being
it in order to tip the scales of justice
flat? This country’s planted thick with laws
against women, workers, voters, three in three cases, including Abra- for coast to coast—man’s laws, not God’s—
LGBTQ Americans, patients, con- ham Lincoln. They weren’t even nomi- and, if you cut them down—and you’re just
sumers, and immigrants for genera- nees; the President waited until after the man to do it—d’you really think you
tions to come. the election. In one, there was a nomi- could stand upright with the winds that
Judge Barrett is the culmination of a nee; the Senate tabled the nomination. would blow then? Yes, I’d give the Devil the
30-year fever dreamed up and cooked up So all of this talk that we have had benefit of the law, for my own safety’s sake.
by the Federalist Society and its cor- about history and precedent, those are That is why we have rules, for all of
porate benefit factors. They will fi- the facts: 13 in the last 10 months, 9 of our safety’s sake. But we are going to
nally have enough Justices to do their them before July 1—all were confirmed violate those rules. We are in the proc-
bidding, and the American people are except one 150 years ago and Merrick ess of violating those rules.
the ones who will have to deal with the Garland. I have heard a great deal of pearl
real-world consequences of this shame- I agree with MITCH MCCONNELL on clutching around here about packing
less hypocrisy. the 13th of February 2016: ‘‘The Amer- the Court. Oh, no, somebody is talking
We have to remember what this is all ican people should have a voice in the about breaking the rules and packing
about. This is about the right of an selection of their next Supreme Court the Court. Well, of course, article III of
LGBTQ American to be by the bedside Justice. Therefore this vacancy should the Constitution doesn’t establish how
of their loved one as they take their not be filled until we have a new Presi- many members of the Supreme Court
last breath. This is about the ability of dent.’’ He said that 8 months before the there should be. The number of the Su-
a rape or incest survivor to terminate election. preme Court has been changed seven
an unwanted pregnancy without gov- This confirmation, if it takes place times in our history. It has ranged
ernment intrusion. This is about the tomorrow, will be 8 days before the from 4 to 10.
ability of a cancer patient to afford her election. It doesn’t pass the straight- I don’t want to pack the Court. I
treatment and a baby with a heart de- face test. If there is a concern about don’t want to change the number. I
fect to get treated without a lifetime the will of the American people, about don’t want to have to do that, but if all
ctelli on DSK11ZRN23PROD with SENATE
limit within weeks of being born. one-third of the voters have already of this rule-breaking is taking place,
So I am urging you—no, I am plead- voted. This election is already one- what does the majority expect? What
ing with you—to think long and hard third over, and yet we are barrelling do they expect? They expect that they
about the consequences of your actions forward with this nomination. We are going to be able to break the rules
for both the American future and for shouldn’t even be here. We shouldn’t with impunity, and when the shoe,
the future comity of this body. You even be having this discussion. maybe, is on the other foot, nothing is
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S6492 CONGRESSIONAL RECORD — SENATE October 25, 2020
going to happen, that the people over a lifetime appointment to the Court— izes the Congress to raise and support
here are just going to say: Oh, well, we and in the middle of one of your dates, an Army and a Navy. What about the
can’t change these rules? you say: Well, I really like to travel. Air Force? What about the Air Force?
One of the things that has amazed me Do you like traveling? And she says: It doesn’t say Armed Services; it says
since I have come here is how people Well, I don’t know. I can’t tell you Army and Navy.
feel that they can do things to one an- until after we are married. I am not So we look to the text, Army, Navy—
other and never have it have any con- sure. I couldn’t give you a definitive doesn’t mention the Air Force—so let’s
sequences, never have it come back on answer to that. look at the intent. Do we think that
them. The shoe may be on the other And then you say: Well, I love opera. those guys in Philadelphia looked
foot. We don’t know what is going to Now, my favorite thing is to go to ahead 115 years to the Wright brothers?
happen next week. opera. How about you? Of course not.
The other piece of this nomination Well, I can’t answer that question. I That is ridiculous. That is a ridicu-
that bothers me in this process is that can’t tell you because that is hypo- lous interpretation. Well, so how do
there has been all this talk about thetical, and I will tell you when you you decide that the Air Force and,
qualifications. I would argue that invite me to an opera after we are mar- more recently, the Space Force is con-
qualifications isn’t the question; it is ried. stitutional? Well, you do a reasonable
what kind of judge they will be. There Then you say: Well, how about kids? interpretation. What was the broad in-
are thousands of people in this country I really want to have a big family. tent? To protect the country. And,
who are qualified to be a judge. There No, I am sorry. I can’t answer that therefore, the Air Force and the Space
are 1,700 Federal judges—almost 2,000. question. Force are constitutional.
There are 30,000 State judges. There are That is exactly what is going on in But by an originalist’s standard, nei-
lots of people who are qualified, who these hearings. ther one passed the test—not in the
have been to law school, who have been Judge Barrett didn’t answer much of text, not in the intent. That is sup-
judges, who are smart, who can write anything. ‘‘I can’t answer that.’’ I posed to be the test. It is nonsense. It
opinions. That is not the issue here. think that is nonsense. is a nonsense theory.
The issue is, what kind of judge will She can say: Here is how I think The provision of the Air Force is
this person make? That is what is im- about that issue now, but I reserve my pretty easy. The President has to be 35.
portant. What is their philosophy? This right to change my mind in a par- That is easy. There are two Senators
is a lifetime appointment. How are ticular case with particular facts after from every State—not three, not one—
they going to decide important cases? I have read the briefs and heard the ar- two. Those are easy.
These are important decisions. gument, but here is how I think about But what about a term like ‘‘due
One week after the election, on No- that now. process’’? What about due process and
vember 10, we are going to have an ar- But no. These hearings are a waste of the Fifth Amendment? What does that
gument in the Supreme Court about time. We learned whether or not she mean in a real case? Can you be thrown
the future of the Affordable Care Act. did her laundry, but we didn’t learn in jail for life and not have access to a
Literally, tens of millions of people’s anything about how she is going to de- lawyer? Is that due process? It was for
insurances depend upon that, not to cide these cases for the next 30 years. about 150 years. It wasn’t until the six-
mention the requirement in the Afford- This isn’t something abstract. This is ties that right to counsel in the Gideon
able Care Act, which is the only legal going to affect individual Americans’ case became a constitutional right.
requirement in the country to protect lives; yet we are not allowed to find Did the courts invent that? No. They
people with preexisting conditions. out what she really believes. were trying to put some life into this
I am tired of people around here say- But do you know what? For these concept of due process. There is no way
ing, ‘‘I am for protecting preexisting last three nominees, the dark money to determine exactly what a broad
conditions,’’ when they voted to gut folks have spent about $250 million to term like ‘‘due process’’ meant in 1787
the Affordable Care Act 35, 40, 50 times. put them over the finish line; a quarter or in 1868 or in 2021. It takes a court to
The President of the United States of $1 billion have been spent by peo- think about it and to apply some
signs an Executive order saying, ‘‘We ple—we don’t know who they are—to growth in morality, ethics, law, poli-
are going to protect preexisting condi- push these nominations. These folks tics, culture, to put life into a provi-
tions.’’ It means nothing. It is not aren’t investing that money on spec. sion like that.
worth the paper it is printed on. They know what they are getting. We There are other ones. Let’s see: Due
The only way you can protect people may not know what they are getting, process, equal protection of the laws. It
with preexisting conditions is to pass a but they damn well know what they took about 100 years to get from the
law that you can do that, and we did it are getting. 14th Amendment to Brown v. Board of
with the Affordable Care Act. If that They didn’t spend a quarter of $1 bil- Education. So the fact that segregated
law is struck down, 130 million Ameri- lion in the hopes that they knew what schools were a violation of equal pro-
cans are at risk. They are at risk. So I the results were going to be; they tection of the law wasn’t very obvious
want to know what kind of decisions is know. They know, but we don’t. They in 1868. It took 100 years for us to get
this person going to make? are investing; they are not contrib- to the place where, yes, everybody real-
The Affordable Care Act is on the uting. izes that that was wrong.
chopping block. A woman’s right to We do have some indication of what This is one of the fallacies in the
choose is on the chopping block. The her philosophy is in the abstract of she originalist theory, and Judge Barrett
scope of government action, what can won’t answer questions about par- was asked about this: What about
we do here in this body, in this Con- ticular cases, but in the abstract, we Brown v. Board of Education? What
gress, in this government, that is on know that she says she is an about Loving v. Virginia? I was in law
the chopping block. Election disputes originalist. She says Antonin Scalia school when Loving was decided. It was
are on the chopping block. I am going was her mentor. She was his clerk, so illegal in Virginia to have an inter-
to talk a little about that later. she is an originalist. racial marriage. It was illegal in a lot
But we have this bizarre current What does that mean? Well, it means of States. I venture to say it was prob-
practice, where we have a so-called if you have a provision of the Constitu- ably illegal everywhere in 1868.
hearing and there are all these ques- tion, in order to interpret what it But the Court, in 1967, decided that
tions, and the witness, the prospective means, you look at two places: You marriage was a fundamental right,
Justice, says: Well, I can’t answer that look at the text, what does it say, and that it was part of the equal protection
ctelli on DSK11ZRN23PROD with SENATE
because that might come up when I am then you look at the intent, the under- of the laws, and that it was wrong to
on the Court. I can’t tell you what I standing of the text of those 55 men in tell people of different races that they
think about any of these things. Philadelphia in 1787. That is it, period. couldn’t marry one another.
It is as if you were courting someone, That is the analysis. So how does the originalist handle
you are thinking about getting mar- Well, there are a couple of problems that case? They don’t dare say that
ried—a lifetime commitment, just like with that. Article I, section 8, author- Brown was wrongly decided or Loving
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6493
was wrongly decided. Do you know Listen to this. He concludes this: We create a Constitution to give
what they say? Do you know what she We might as well require a man to wear power to people over our lives, and
said? It is a superprecedent. Well, come still the coat which fitted him as a boy as then how do we control them from
on. That is a label. It doesn’t mean civilized society to remain ever under the abusing us? History tells us it will al-
anything. That is a dodge. That is in- regimen of their barbarous ancestors. ways happen. Lord Acton, in the 19th
tellectual dishonesty. Now, I don’t think our ancestors, the century, said power corrupts and abso-
If your theory works, it works. If you Framers, were barbarous, but they lute power corrupts absolutely. Power
have to say that Brown or Loving or hadn’t really thought about things like corrupts. Absolute power corrupts ab-
dozens of other cases—Miranda, Gid- right to counsel, right to be aware of solutely.
eon—are all superprecedents, it doesn’t what your rights were under the Con- And the Framers knew this. They
speak very well for your theory. It is a stitution as a criminal defendant. They were geniuses in terms of under-
copout. certainly weren’t aware of the awful, standing human nature, so they cre-
Now, if Antonin Scalia were here— awful impacts of racial segregation and ated this elaborate Rube Goldberg
whom I knew in law school, by the racial segregation in the schools. They scheme to make it hard to make laws.
way. I knew him as Nino. If he were weren’t aware of those things. And, boy, did they succeed, as we well
here, he would say: Well, Angus, if the Jefferson is right. We have to be able know. But even after they created this
Constitution needs amending and to allow our institutions to change as scheme with two houses and vetoes and
changing, you don’t do it by the courts; we become more developed, more en- conference committees and two-thirds
you do it through the amendment proc- lightened. As new discoveries are made, and treaties and all of this complex in-
ess. That is why they wrote it. new truths disclosed, and manners and stitution to make laws, they were still
Well, the problem with that is we opinions change, with the change of scared. They were still afraid of the
would be amending the Constitution circumstances, institutions must ad- powers of a rampant majority. They
about every 2 weeks around here. Can vance also to keep pace with the times. were still afraid of what their govern-
you imagine, if we had to do an amend- Now, I understand the problem with
ment would do to them.
ment to the Constitution, going judicial legislation. I don’t want to
So they passed the Bill of Rights—
through Congress by two-thirds and convert the Supreme Court into an
the Bill of Rights. I have always
three-quarters of the States to legalize unelected third branch of the Congress
thought of the Bill of Rights as a kind
the Air Force or to say that due proc- that has lifetime tenure. I get that.
of force field around us as individuals,
ess means that you don’t have to give The Supreme Court, in its interpreta-
things that they can’t do to us. They
evidence against yourself; that you tion of the Constitution, can’t be to-
can’t take away our freedom of reli-
have a right to a lawyer; that you have tally unmoored from the text of the
gion. They can’t take away our free-
a right to be told what your rights are, Constitution or the intent of the Fram-
ers, but it has got to take a broader dom of speech. They can’t go after the
as is the case in the Miranda decision? press. The government can’t do these
The Space Force. We passed the view of what these vague terms like
‘‘due process,’’ ‘‘equal protection of the things.
Space Force last year. We would have The originalists have a narrow view
had to also do a constitutional amend- laws,’’ ‘‘privilege and immunities’’—
of what the Federal Government can do
ment. No. If that were the case, if we what those things meant and what
they mean today as we have grown and to help us, but they have a broad view
had to do a constitutional amendment of what the States can do to trample
every time there is a change in some- learned—as we have grown and learned.
The other piece of this originalist on those individual rights. They want
thing in the Constitution, in the mean- to throw us back to a time when every
ing of a term in the Constitution, the philosophy and the one that I think
may have the greatest effect as it State has its own rules on these funda-
Constitution would be as long as the mental rights.
United States Code. It just doesn’t takes root on the current Supreme
Court is not necessarily in the cases I don’t think individual Americans’
make sense. rights should depend on geography.
The real problem with the originalist that we are talking about like Roe v.
Wade. It is more cases like the Afford- They shouldn’t depend on where they
theory—and this is Judge Barrett, and live. Fundamental human rights that
I know she is intelligent, capable, law able Care Act or the Environmental
Protection Agency or the FDA or any are in the jurisprudence of the U.S. Su-
professor, judge—for only 3 years, by preme Court over the last 150, 200 years
the way, but 3 years. The real problem effort whatsoever around here to do
something about climate change. should not be kicked back to the
is, the originalist theory to which she States to be compromised or mini-
subscribes—and she says she subscribes This is a straightjacket for the pow-
ers of the Federal Government. That is mized.
to it—allows no room for moral or eth- Finally, what is going on here is an
really what it is all about. That is why
ical growth. Everything is frozen in undermining of confidence. We take
those guys invested $250 million. They
1787—or 1868 if you are talking about this whole thing for granted—these
want to cripple, strangle, and squeeze
the 14th Amendment. magnificent halls, the marble columns,
Jefferson got this. Jefferson wasn’t the Federal Government so that it
can’t act on behalf of the American the speeches, the votes. It has always
one of the Framers. He was in France happened; therefore, it always will.
at the time the Constitution was writ- people. That is what is going on here.
They don’t like the regulatory state. No. We are an experiment. We are an
ten, but he certainly is one of the experiment that has been going on for
Founders of the country, the author of They want to repeal the new deal.
Some originalists even question So- a little over 200 years. In human his-
the Declaration of Independence, and a tory, we are a blip. We are an anomaly.
cial Security and Medicare, beyond the
successful President. Democracy is very unusual and very
powers of the Federal Government.
He wrote an interesting letter in 1816
That is what is going on here. hard, and it depends on trust. If you
on exactly this point, exactly this Yet, they have a narrow, crabbed stop and think about it, it depends on
point. Here is what Jefferson said: view of the powers of the Federal Gov- trust.
I am certainly not an advocate for frequent When my town clerk in Brunswick,
ernment, but these originalist folks
and untried changes in laws and constitu-
tions. have a broad view of the powers of the ME, says ‘‘Here are the votes—Trump
State government to impose on your 87, Biden 104,’’ I trust that those are
That is the way I feel.
personal rights. the right numbers. I trust. If I don’t,
But . . . laws and institutions must go I have always thought of the Con- then that way lies chaos.
hand in hand with the progress of the human
mind. As that becomes more developed, more
stitution as being an elaborate What this Senate is doing right now
enlightened, as new discoveries are made, Vegematic which slices up power so is one more drip in the undermining of
ctelli on DSK11ZRN23PROD with SENATE
new truths discovered and manners and opin- that it isn’t concentrated in any one confidence in this institution. It is no
ions change, with the change of cir- place. That is what the Constitution is secret that confidence in Congress has
cumstances, institutions— all about. The fundamental issue of all plummeted over the last 25 or 30 years,
That means us. political science is quis custodes ipsos and we are doing it. We are adding one
—must advance also to keep pace with the custodiet, an ancient Roman question: more brick to that wall of lack of con-
times. Who will guard the guardians? fidence in this process by violating our
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S6494 CONGRESSIONAL RECORD — SENATE October 25, 2020
history and our rules to barrel through these circumstances, who we are pretty Justice Ginsburg made justice cool
to a confirmation that I think is incon- sure is going to take positions anti- because Justice Ginsburg understood
sistent with the rules and principles of thetical to those of the majority of that justice is supposed to be about
this body and our own personal obliga- Americans and could take positions people, and it is supposed to be about
tions. that will be profoundly damaging to a the Constitution. She started when no
This is a blow to the Senate. What majority of Americans is an abdication one gave her a chance, going to law
this process says is that anything goes of our responsibility. school when there were hardly any
as long as you have the votes. We don’t I understand that the majority has girls going to law school. In fact, they
care about the rules of the Judiciary the votes. I deeply hope that, tonight told her not to, and she ends up grad-
Committee. We don’t care about the or tomorrow morning, some Members uating first in her class. She then
history and traditions of the Senate. If of the majority will wake up and have comes up with landmark theories on
you have the votes, ram it through. an attack of conscience and say: I can’t equal protection, and she is told maybe
This body is built on some restraint, do this. It is not right. It is not right. a man should argue these cases because
on some rules of comity and restraint I can’t sacrifice the reputation of the they are so important and a man would
and responsibility and thinking of Senate, compromise the reputation of have a better chance of winning them.
what happens next. the Supreme Court, undermine the pro- She said: No, I will do them myself.
You are going to win this. You have cedures and history of this body. I And she wins five out of six cases. She
the votes. You are going to put this can’t do it. ends up on the Supreme Court, writing
judge through—but at the cost of just I hope four Members of the majority landmark opinions and infamous dis-
pulling one more support out from un- will find it in their hearts and minds to sents.
derneath the edifice of this magnifi- take that position. I am not optimistic, At her memorial in the Capitol, it
cent government. It is not only a blow but I think we all need to go into this was the rabbi—and I was so honored to
to this institution; it is a blow to the decision, and I think all those who vote be there, a moment I will never for-
Court. It is a blow to the Court, and tomorrow have to understand what get—and the rabbi said: You know,
here is why. they are doing and what it means and those dissents, those weren’t cries for
Of all the things that Judge Barrett what it will mean to the people of this defeat, they were blueprints for the fu-
said and didn’t say in her hearing, the country. ture.
one that disturbed me the most was We could have done better. We should That is how I must think of this mo-
her failure to commit to recusing her- have done better. We owe it to the ment in time, as we are in the middle
self if a matter comes before the Court American people to do better than this. of voting, as over 50 million Americans
shortly after her confirmation involv- I yield the floor. have already cast their ballots, making
ing this election of her patron, Donald The PRESIDING OFFICER (Mrs. their voices heard, that you can’t take
J. Trump. HYDE-SMITH). The Senator from Min- away the fact that this nomination was
That is a gimme. Do you know why? nesota. plopped down in the middle of an elec-
Because all the Court has is its credi- Ms. KLOBUCHAR. Madam President, tion, which is what I have argued from
bility. The Court doesn’t have an army. I come to the floor today following my the beginning.
It doesn’t have the power of the purse. friend, the Senator from Maine, at a This will not be a cry of defeat for
All it has is its integrity, its reputa- critical moment for our country and the people of this country who care
tion for fairness. If you go out that for the United States. Americans, as about Justice Ginsburg’s legacy—her
door and look up, it says ‘‘Equal Jus- we know, are facing an unprecedented legacy on protecting women’s rights,
tice Under Law.’’ That is what it is all health and economic crisis that has her legacy on voting rights, her legacy
about. gripped our country for over 9 months. on so many other fundamental issues
The judicial canons speak to this But, sadly, that is not what brings us to the people of this country.
issue very directly. Often in our lives to the Senate floor today. It is not why We know what her last fervent wish
we all want to avoid impropriety, but the Republican leader has called the was. Those were her words, ‘‘fervent
the judicial canons go even further: 2A Senate into session. wish.’’ Only Justice Ginsburg would
of the judicial canon says that a judge Is it to pass the legislation that we use those words at the end of her life,
must avoid the appearance of impro- need to pass, to carry on the work of but she did. She said that her last fer-
priety. What could appear to be more the CARES Act, to help people out in vent wish was that the next Presi-
improper than a judge appointed by a our country right now when nearly dent—the President who wins this elec-
President of the United States, and 10 every State is starting to see increases tion—should be able to pick the person
days later she votes on a matter that in this virus again? That is not why we to take her place.
will involve his election? are here. On this rainy, cold Sunday in That is what she asked for. That is
He has already told us he wants this October, instead of meeting to debate what so many Americans—the major-
election to go to the Supreme Court, and vote on a comprehensive bill to ity of Americans—think should happen
and he has already told us he wants his provide relief to the American people there. But that is not what is hap-
Justice there. That is corruption in during this soul-crunching pandemic, pening. We are not doing what we
realtime. That is impropriety right in we are instead here today because our should be doing, and people are watch-
front of our eyes. That answer alone Republican colleagues insist on rushing ing.
should have disqualified her if she through the nomination of Judge Amy More than 220,000 Americans have
didn’t have the integrity to say: Of Coney Barrett to be an Associate Jus- lost their lives. So many families have
course I won’t vote on an election mat- tice on the U.S. Supreme Court, to fill lost loved ones. Millions more have
ter involving this President. Of course the vacancy left by Justice Ruth Bader gotten sick or no longer have jobs. Peo-
I won’t. Ginsburg. ple are scared for themselves and their
But she didn’t. As far as I’m con- Let me start with Justice Ginsburg families. Moms are trying to balance
cerned, that is a disqualification. Now, because that is really where it all their toddlers on their knees and their
I am not a Supreme Court Justice. I starts. Justice Ginsburg was an icon. laptops on their desks. They are having
wasn’t on the law review. I am an old She was celebrated well into her to teach first graders how to use the
country lawyer from Brunswick, ME. eighties by people young and old. I will mute button. But instead of working to
But I know impropriety when I see it, never forget my own daughter when we pass a relief package—something that
and this is it. This is it. were at an event and got a photo with 74 percent of the people want us to be
The Constitution is a wonderful doc- Justice Ginsburg. My daughter was doing right now—that is right, when
ctelli on DSK11ZRN23PROD with SENATE
ument. It has served this country well. just in college. We had that nice photo they were asked, Do you think we
The evolution of jurisprudence through of the three of us, and she said to me: should be pushing through a judge or
the U.S. Supreme Court, with fits and Mom, I am going to cut you out of this working on pandemic relief, 74 percent
starts, has generally served this coun- because I want to put it on Facebook, of the people said: You should be work-
try well. But to put a Justice on this and the ‘‘Notorious RBG’’ is just so ing on pandemic relief. But instead, we
Court under these procedures, under cool. are here, not in a rush to justice but a
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6495
rush to put in a Justice on the U.S. Su- mom or dad or grandparent with them Senator McCain, actually whispered to
preme Court. at the table, with them at the table me what he was going to do before he
The President has made his intent this Thanksgiving—if the President did it. But he came in, and he put a big
clear. In fact, he, in his inimitable way, had done what we needed to get testing thumbs down while he himself strug-
sent out a tweet on his intent. He said: in place, to do contact tracing, to lis- gled—struggled—with his own life.
If I win the Presidency, my judicial ap- ten to the experts. What did the Affordable Care Act
pointments will do the right thing, un- And, no, it is not just the Big Ten mean to people? Millions of people got
like Bush’s appointee, John Roberts, football, as much as we love Big Ten coverage and millions of people who
on ObamaCare. football in Minnesota. It is not just weren’t able to get coverage before—
This is no surprise, I guess. The Af- those players who should be able to and then for everyone, even people who
fordable Care Act is something my Re- have that testing. It is not just the had coverage before, they got some-
publican colleagues have been trying people in the White House who should thing that they so badly needed, and
to repeal for 10 years. Just 1 week after be able to have that testing. There are that is, protection from being kicked
election day, the Court will hear a consequences of this failed leadership. off your health insurance for pre-
challenge to the law coming out of the The American people who are dealing existing conditions.
State of Texas that millions of people with this pandemic are not concerned What else did it mean? Young people
are depending on for healthcare—espe- about the false claims in the Presi- can stay on their parents’ insurance
cially during this pandemic, after we dent’s 3 a.m. rants or his attempts to until the age of 26. What a difference
learn more and more about people who relitigate the 2016 election right now. that makes. It makes a difference for
have gotten COVID, who then end up They are just trying to make it people like Evelyn and Maraya, iden-
struggling later. Of course, what would through the day. They need help. But tical twins from Cambridge, MN, honor
that be called? That would be called a instead of giving them that help, here roll students and star athletes. They
preexisting condition. Yet this is what we are, once again, jamming through a play basketball, and they also play
this President and my Republican col- nominee. softball. One is a pitcher and one is a
leagues are focused on. In fact, according to reports, Senator catcher. One of them was born and
The American people—Democrats, MCCONNELL is actively telling the early on got severe diabetes when she
Republicans, and Independents—are White House not to negotiate on a bi- was very young. Does it matter which
continuing to face reality—not this re- partisan package, just so the Senate one, the pitcher or the catcher? They
ality in this Chamber tonight, but the would do this. They have broken prom- both deserve good healthcare, espe-
reality in their lives—once again, mis- ise after promise. They have blown cially now when they both know they
placed priorities in a rush to do what every precedent. They have ignored all have diabetes. But early on, did it mat-
the President wants. logic and taken on every risk, just to ter which one? They both deserve good
The coronavirus is, in fact, still rag- push this nomination through. healthcare.
ing across our country because of the Why the rush? Well, I can give you There are people like Steve, a senior
President’s failed leadership. That is some ideas. One, as I mentioned, just 1 from Tower, MN, who has a heart con-
true. His lies, his refusal to listen to week after the election, just 2 weeks dition and relies on his prescription
science—cases have been up, as I noted, from now, the Supreme Court will con- medication to stay alive; like Elijah
in about two-thirds of the States in sider the future of the Affordable Care from St. Paul, who was born with cere-
just the last few weeks. Act. We also know—and this is coming bral palsy, and because of the Afford-
The President was first told about directly from the President, via able Care Act, is now 16 and a proud
the potential for this virus in January. tweet—that he wants the Justices to Boy Scout; or Christie, a mom from
He was telling people he knew, behind potentially count the ballots—those Bloomington whose daughter had a
closed doors, that it was airborne and are his words, not mine—and that he tumor; like Casie, whose brother lives
it was deadly. He knew that back in wants nine Justices on that Court. in Alexandria and has chronic kidney
February. He said it would go away, No, I will not concede that this elec- failure and needs a transplant. Without
though. To the public, he said: This tion will end up in Court, not the way the ACA, her brother will die waiting
will go away by Easter. He said: People people are voting, not the numbers we for a transplant. And then, like Emily,
will be back in church by Easter. are seeing out there, not the reality from Minneapolis, whose mom was di-
There are people who went to church that people are facing, but that is what agnosed with breast cancer; or
around that time in Minnesota who he wants in place. Burnette from the suburbs of St. Paul,
died. He said it would go away with Everything is on the ballot, but whose daughter has multiple sclerosis
warmer weather. We all know that many of these things end up in Court. and depends on the ACA; or Janet from
these things did not happen. We know that. And during the Judici- Rochester, whose brother has a mental
For me, this is personal, like it is for ary hearing, many of my colleagues illness; or Liliana from Fridley, who
so many Americans. My husband got would act like the Supreme Court was has a 21-year-old son with autism and
sick with coronavirus. He got really some far away, distant ivory tower in- needs her children to be able to stay on
sick. He ended up with pneumonia in stitution, debating things and talking her insurance until they are 26; or
the hospital, on oxygen, for over a about things, and in their words, like Melanie, a senior from Duluth, who is
week. Why is this so personal for me, the Dormant Commerce Clause. That is treated for ovarian cancer and needs
what the President says about this? Be- true, they decide cases on the Dormant access to healthcare.
cause back then, we were just cleaning Commerce Clause. Repeal after repeal after repeal at-
off every surface in our house, which, What else do they decide? They de- tempt, that is what has been happening
of course, is still important now. But cide who you can marry. They decide here. And none of that worked. So what
we thought, oh, that is good. We will where you can go to school. They de- happened? A case was brought in
just clean off everything, wash every- cide if you can use contraception. They Texas, and the administration is now
thing. But the President, we now decide all kinds of things. They decide before the Supreme Court arguing that
know—we found out about a month or if you can vote. They decide if you can the entire Affordable Care Act, not just
two ago—back in March, he knew it have healthcare. All those things are one provision, they are arguing—and
was airborne, but he said he didn’t decided in the Supreme Court. let me be clear about this—that the en-
want to tell the American people be- What is on the ballot when it comes tire Affordable Care Act, all those pro-
cause—well, he thought it might panic to healthcare? What is before us with visions and all the coverage I just men-
people. He didn’t tell you the truth. this Justice? The Affordable Care Act. tioned, should be thrown out.
ctelli on DSK11ZRN23PROD with SENATE
Now, we know that at least 130,000 What is this about? During Judge Barrett’s hearing,
American lives could have been saved I still remember the day that we there was a lot of talk from my col-
if the President had taken real action passed the bill. I was here early in the leagues on the other side about the
early on. That comes out of a new morning on Christmas Eve. And I also doctrine of severability, which the Su-
study from Columbia. That is 130,000 remember the day when our colleagues preme Court has said includes the pre-
families who would still have their tried to repeal the bill, and my friend, sumption in favor of throwing out part
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S6496 CONGRESSIONAL RECORD — SENATE October 25, 2020
of a statute in order to save the rest. wrote for the University of Minnesota she instead called it, well, it is a mat-
Their point, I suppose, was that the Law School journal called ‘‘Constitu- ter of policy. When I asked her, she
American people shouldn’t actually be tional Commentary,’’ in 2017—the same would not say that voter intimidation
worried about the case pending before year that she became a judge this was is illegal, even though in Minnesota, an
the Supreme Court. It is OK. published—she wrote that Chief Justice outside contractor was recruiting poll
So I asked Judge Barrett whether the Roberts—these are her words—‘‘pushed watchers with Special Forces experi-
brief that was filed by the Trump Jus- the Affordable Care Act beyond its ence during the judge’s hearing. That
tice Department, which argued that plausible meaning to save the statute.’’ is clear voter intimidation. I was not
the entire Affordable Care Act must That was a case called NFIB v. asking her about an ongoing case. I
fall, represented the President’s posi- Sebelius that she was writing about— was actually asking her just if it is
tion before the Supreme Court. She ‘‘pushed the Affordable Care Act be- against the law. It is. It violates 18
confirmed, as a former clerk of the Su- yond its plausible meaning to save the U.S.C. section 549.
preme Court to Justice Scalia—she statute.’’ That is direct criticism of the And while in the case of Minnesota,
confirmed that it did, and she con- Chief Justice’s decision to allow the the company has now agreed to cancel
firmed that if the President believed Affordable Care Act to stand. its plans after Minnesota Attorney
that the Court should throw out just And in a 2015 NPR interview on King General Ellison opened an investiga-
part of the Affordable Care Act and v. Burwell—this is a different case, but tion, we are seeing threats to the right
save the rest, well, he could direct the it involves the Affordable Care Act; an- to vote in States across the country.
Justice Department to withdraw the other case where Chief Justice Roberts And when I asked, Judge Barrett even
brief. That has not happened. That is cited in favor of the Affordable Care refused to acknowledge that the Con-
not the position of this administration. Act—there, Judge Barrett acknowl- stitution empowers Congress to protect
They have told the Court that they edged that the majority’s holding is the right to vote.
want to throw the whole thing out, and good because millions of people won’t So the inescapable conclusion from
now they are rushing to confirm the lose their healthcare subsidies. Yet she these tracks is that Judge Barrett,
President’s nominee with the hope that praised the dissent by Justice Scalia again, would be very different than
she will cast a deciding vote to strike saying it had the better of the legal ar- Justice Ginsburg. Justice Ginsburg was
down the ACA. gument. a champion of voting rights.
For me, as I noted at the hearing, it Now, remember, she spent all her When a 5-to-4 Court gutted a key pro-
is about following the tracks. No, the time in the hearing saying: Whatever vision of the Voting Rights Act in
nominee didn’t give us a sense of pend- the policies are don’t matter. What Shelby County v. Holder, Justice Gins-
ing cases. We know that. But she didn’t matters is the legal argument. What burg wrote in her famous dissent that
even give a sense of what she thought matters is the law. And her position, the Constitution uses the words ‘‘right
about existing laws that are on the which I don’t agree with, but her posi- to vote’’ in five separate places, and in
book or about certain fundamental each place, it reaffirms—these are her
tion was that Justice Scalia had the
rights that other nominees have dis- words, Justice Ginsburg—‘‘Congress
better of the legal argument. That is
cussed. So I followed the tracks, just holds the lead rein in making the right
one big track to see where she is com-
like we do when we go hiking. to vote equally real for all U.S. citi-
When we would go hiking in North- ing down.
When she accepted the President’s zens.’’ Justice Ginsburg understood
ern Minnesota when I was growing up,
nomination at the White House, she that voting—you don’t just say it is a
my mom would always say: OK. That is
made clear that she considers Justice fundamental right. It is how you pro-
a deer track or that is an elk or, if we
Scalia, one of the most conservative tect it.
were really lucky, that is a bear. And
judges in our Nation’s history, as a How do we do that? By standing up to
you would follow those tracks down
mentor. Those are our tracks. voter intimidation and voter suppres-
the trail or down the road, and then
But it is not just on healthcare. What sion, by protecting our democracy from
you would get to the corner and maybe
other tracks do we have to follow? a President who tries to undermine
you would see that deer. Every so
Well, she signed her name to a public free and fair elections, by protecting
often, you did. We would follow the
statement featured in an ad calling for the millions of people who are going to
tracks.
So that is what we must do—ordinary an end to what the ad called the ‘‘bar- the polls right now during this pan-
citizens and U.S. Senators—to try to baric legacy’’ of Roe v. Wade, which demic, some risking their lives to cast
figure out where this Justice is going ran on the anniversary of the 1973 Su- a ballot. And during her hearing, Judge
to be on these fundamental cases that preme Court decision. There is your Barrett did not make these simple
are in front of the Court. You have got track. commitments.
to follow the tracks. She wrote her own dissent dis- So I am very concerned about this
So what do we have? Well, we have agreeing with longstanding Court rul- fundamental issue of voting rights. The
got the fact that President Trump ings on gun safety, expressing her legal stakes have never been higher than
promised that his judicial appoint- opinions that some felons should get they are right now. Look at what is
ments would do the right thing and guns. happening. In Texas, they are trying to
overturn the Affordable Care Act. He She once discussed the dissent in the force each county to have only one bal-
tweeted that it would be a big win if marriage equality case of Obergefell v. lot drop box, including Harris County,
the Supreme Court strikes down the Hodges, asking whether it was really which has 4.7 million people, one box. A
healthcare law. And if that wasn’t the Supreme Court’s job to make that judge stepped in and said: No, this is
clear, he just went on ‘‘60 Minutes’’—he decision. wrong, and then three Trump-ap-
released the tape himself on Thursday, Those are the tracks that lead all of pointed judges on the Fifth Circuit va-
and then it was on tonight—and he said us down that path to the point where cated the district court’s order. No
it will be so good if the Supreme Court you go around the curve, and you real- matter what the size of your county,
overturns the Affordable Care Act. OK. ize at least one thing for sure, and that you just get one box.
So this isn’t something from 3 years is that Judge Coney Barrett’s judicial In Tennessee, Republicans have tried
ago. No, no, no. This is something that philosophy is the polar opposite of Jus- to prevent ballot drop boxes, and they
we all saw tonight. tice Ginsburg’s. have argued in court that COVID–19 is
Then, on September 18, when the Na- Voting rights. Here is another exam- not a valid excuse to vote by mail.
tion was mourning the loss of a judicial ple. Given the timing of this nomina- In South Carolina, the U.S. Supreme
giant, President Trump saw his mo- tion and the fact that we are just over Court earlier this month reinstated a
ctelli on DSK11ZRN23PROD with SENATE
ment, and on September 26, at what be- 1 week from election day, when I asked South Carolina requirement that mail-
came a superspreader party at the Judge Barrett would she say that mail- in ballots must have a witness signa-
White House, he announced his nomi- in voting is essential right now, even ture, so voters in South Carolina are
nee. though the coronavirus continues to going to be forced to go out in the mid-
So here is what we know as we follow spread and people are having to choose dle of a pandemic and find someone to
the tracks. In an article Judge Barrett between their health and their vote, witness their ballot.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6497
And as we saw last Monday, in a case employees to just 48. His guest res- ahead with a corrupt and illegitimate
that went to the Supreme Court from taurants closed entirely and revenue process to fill her seat on the Supreme
Pennsylvania, Judge Amy Coney Bar- from catering is down 90 percent. In his Court. Just 8 days—8 days—before the
rett could in fact be the swing vote on words, the business, which he has been election, when tens of millions of
a case like this. This is a case where running with his sisters, aunts, nieces, Americans have already cast their bal-
last week the Supreme Court issued a and a few remaining staff, was his lots and just 15 days before the Su-
split 4-to-4 decision that let stand the ‘‘whole life . . . and it [has] come to a preme Court will hear a case that could
Pennsylvania Supreme Court’s ruling standstill.’’ overturn the Affordable Care Act, Don-
allowing election officials to count This is happening all over the coun- ald Trump, MITCH MCCONNELL, and
mail-in ballots received within 3 days try. On October 6, Federal Reserve their Republican buddies are shoving
of the election even if they are not Chair Jerome Powell made clear that it aside the wishes of the American peo-
postmarked. would be tragic if Congress fails to pass ple in order to steal the Supreme Court
And just last Wednesday, the Su- an economic relief package. We have seat.
preme Court blocked curbside voting in startups that were already in a slump MITCH MCCONNELL and the Senate
Alabama, which was intended to help before this and numbers are plum- Republicans violated the long-estab-
whom? Voters with disabilities. In dis- meting more. Small businesses are lished rules of the Judiciary Com-
sent, Justice Sotomayor quoted How- closing. A conservative Supreme Court mittee to rush their nominee through,
ard Porter, Jr., a Black man in his sev- that has done nothing when it comes to giving each other a wink and a nod be-
enties with asthma and Parkinson’s, antitrust—nothing—yet Justice Gins- fore they turned a blind eye to their
who said this: burg, she always dissented. She made own rulebreaking. They even violated
So many of my [ancestors] even died to the cases for those small businesses. the rule MITCH MCCONNELL made up in
vote. And while I don’t mind dying to vote, But the Trump Justices, they have order to keep one of President Obama’s
I think we’re past that—we’re past that gone the opposite way. nominees off the Court long before any-
time.
I want to end with this. America, you one was voting: no confirmations of
That is how I feel a lot about what deserve better. You deserve leaders Justices in an election year. So they
this judge who is before us now, her who will put you first. You deserve made up the rules, then they broke
views on originalism, her views on not leaders who will protect your jobs, those same rules. They cheated.
changing with the times, like so many your families, and your healthcare. Why? Why was it so important that
other Justices interpret the Constitu- You deserve a Supreme Court nominee they were willing to turn their backs
tion to mean, so that it matters to ev- who will speak truth to power or at on the very rules that they had put in
eryday people—but not this judge. least acknowledge when basic prece- place? Why rush through this nomina-
Some of my Republican colleagues, dent exists, even if it is inconvenient tion?
as I noted, think that this is something to the President who nominated her. Why? Because the Republican Party
distant and far away. As I noted, we There may be nothing we can do any is scared that they can’t win through
cannot divorce this nominee and her longer to stop this confirmation, but the democratic process, scared that
views from the election we are in now. there is one thing you can do to deter- they can’t win by playing by the rules,
The last time we had a vacancy so mine the future of this Nation—those that they can’t win when the American
close to a Presidential election was in blueprints for the future that Justice people decide the outcome, that they
1864. Then President Abraham Lincoln Ginsburg would refer to—you can vote. can’t win when elections matter.
did the wise thing, the right thing, and And when you cast your ballot, remem- What we are seeing today is the last
he waited until after the election to fill ber where those tracks lead. gasp of a desperate party—a party
the vacancy. There is another way other than this working to undermine our democracy
And in 2016, when Justice Scalia died administration and this hypocrisy we so that they can keep pushing their ex-
about 9 months before the election, are seeing and this gridlock that has tremist agenda just a little longer, a
Senator MCCONNELL said this: taken over this U.S. Senate. It is party that doesn’t reflect the views of
The American people should have a voice spelled out right there in the first a majority of Americans or the values
in the selection of their next Supreme Court three words of the Constitution. We that we hold dear.
Justice. Therefore, this vacancy should not can be a nation in which ‘‘We the Peo- This is a party beholden to billion-
be filled until we have a new President. ple’’ truly means all the people—a na- aires and extremists that is desperate
That is what we are talking about tion in which the people have a say and to keep its grasp on power and willing
with the unfairness of this, with the in which the people determine the fu- to break any rule, any precedent, or
sham of this proceeding, and I laid out ture. any principle to hold on to that power
for you tonight the reasons I believe Remember, this isn’t Donald Trump’s just a little longer. The Republican
that this has become such a high pri- country. It is yours. This shouldn’t be Senators bat down every concern.
ority instead of passing pandemic re- Donald Trump’s Justice. It should be No Supreme Court nominee has been
lief. yours. confirmed this close to a Presidential
During the week of Judge Barrett’s The PRESIDING OFFICER. The Sen- election. They say: No problem. Repub-
hearing, more than 220,000 more people ator from Massachusetts. lican Senators plunge ahead with an il-
got COVID–19. At least 2,700 more peo- Ms. WARREN. Madam President, a legitimate nomination made by a mor-
ple died from it. Nearly 800,000 people little over a month ago I came to the ally bankrupt President.
filed for unemployment. More small floor to honor the late Justice Ruth The Rose Garden ceremony to cele-
businesses closed too. According to one Bader Ginsburg, a trailblazer, an icon, brate the nomination turns into a
study, actually, recently, around 800 and a friend. I shared what she meant coronavirus superspreader event. Re-
small businesses are closing every day. as a personal hero for me and as a role publican Senators brush it off. Repub-
In my home State, one in five small model to millions of other women. I lican Senators will press ahead with
businesses say they will be forced to discussed her groundbreaking work and hearings while members of the Judici-
close if we don’t do something about it. how much of what she fought for is now ary Committee are in quarantine, and
Let me give you an example. Jose on the line. some of them refused to get tested.
Frias from St. Paul is one of them. He I talked about the message Ruth left Hundreds of thousands of Americans
is a third-generation business owner before she died, stating her ‘‘most fer- are dead and millions are waiting for
who owns Boca Chica Mexican family vent wish’’ that her replacement not be the Federal Government to finally
restaurant, which includes a fast-food named ‘‘until a new President is in- show up and fight this pandemic. Re-
ctelli on DSK11ZRN23PROD with SENATE
taco house, restaurant, and catering stalled.’’ publican Senators say: Sorry, no time.
service. He started as a manager at 20 It has been 37 days since Ruth died. I Senate Republicans have better things
years old and worked his way up, tak- miss her. America misses her. It has to do than pass a relief package—
ing over 2 years ago—his dream. The also been 37 days since MITCH MCCON- things like steal a Supreme Court seat.
future looked bright, but then the NELL declared he would disregard Here is the ugly truth: Donald Trump
virus hit. Jose was forced to go from 98 Ruth’s ‘‘most fervent’’ wish and move and his Republican buddies know that
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S6498 CONGRESSIONAL RECORD — SENATE October 25, 2020
confirming Amy Coney Barrett to the state it plainly, Barrett believes Trump wants a Supreme Court Jus-
Nation’s highest Court is their path to women cannot be trusted to make deci- tice who will help undermine our de-
advance an extremist agenda long after sions about their own bodies. She is a mocracy. We know this because Trump
the country is fed up and disgusted clear and present danger to Roe. already told us his game plan to do it.
with their failures. In the middle of an When it comes to the Affordable Care Trump and his Republican enablers are
election, in the depths of a pandemic, Act, again, listen to Trump himself. He working to make voting as difficult,
their extremist agenda is all that mat- said he would only nominate judges confusing, and scary as possible, and
ters, and that is why they are so des- who will end the ACA law, judges who they are using every tool in order to do
perate to ram her nomination through would take away healthcare coverage it.
the Senate. from millions of Americans. He picked Trump has lied repeatedly about
The confirmation hearings were a Barrett. mail-in voting. He has falsely claimed
sham. The conclusion was foregone, Barrett’s record indicates that is ex- it is a source of rampant fraud.
and the nominee spent days ducking actly what she will do—work to gut Trump’s lawyers have sued States that
and dodging legitimate questions about key provisions that protect millions of have taken action to try to help Amer-
where she stands on issues of crucial Americans. She criticized Chief Justice icans vote safely during this pandemic
importance to the American people. It Roberts’ opinion in 2012 upholding a by expanding vote-by-mail. And at the
was little more than a PR stunt. critical part of the ACA, saying that he same time, Trump and his cronies are
But what the nominee refused to say ‘‘pushed the Affordable Care Act be- working to dismantle the U.S. Postal
was actually very informative. She re- yond its plausible meaning to save the Service, slowing down mail delivery
fused to say whether the ruling uphold- statute.’’ and creating even more barriers to the
ing the right to contraception was cor- In a media interview in 2015, she said ballot at a critical moment in this
rect. She refused to say whether the that in another Supreme Court deci- election.
government can criminalize a same-sex sion that upheld the ACA, the dis- We have all seen the President’s
relationship. She refused to say wheth- senting Justices who wanted to over- reckless, dangerous statements over
er it is wrong to separate children from turn the ACA had the ‘‘better of the the past few months casting down on
their parents in order to deter immi- legal argument.’’ the election itself, peddling the fact-
gration. She even refused to say wheth- While claiming just to follow the free claim that this election will be
er climate change is happening and text of the law, Barrett’s record shows ‘‘the most rigged’’ in American history
whether it poses a threat to human that her purported ‘‘textualist’’ ap- and that he is ‘‘not sure’’ that the elec-
beings. proach is nothing but a facade, merely tion results will be accurate.
This was no hearing. This was a a cover for her to reach a result that Most alarming of all, Trump has re-
farce. will further the interests of those with peatedly refused to commit to a peace-
Their attempt to remain silent on money and power. ful transfer of power, and he said that
key issues spoke volumes. It shows Barrett’s record isn’t just he would not accept the election re-
that she believes these critical rights, cringeworthy; it is downright alarm- sults if he doesn’t win.
protections, and values are debatable, ing. On November 10, just 1 week after And as her confirmation hearing
up for grabs. And Barrett’s refusal to election day, the Supreme Court will shows, Barrett is just the Justice Don-
embrace these commonsense values hear a case that will determine the fate ald Trump is looking for. In her hear-
shows just how out of step, how ex- of the Affordable Care Act. And right ing, Barrett refused to recuse herself in
treme, Barrett is and will continue to now, 17 cases that could undermine the a case that might decide the outcome
be if she is confirmed. right to abortion care are one step of the election, and she refused to say
Let’s be real. We already know what away from the Supreme Court. Twen- whether she believes that a President
Barrett is all about. We know why cor- ty-one States are ready to go. They should commit to the peaceful transfer
porate interests and rightwing zealots have already drafted laws they can of power.
are so excited about her, why so many pass immediately—laws that could be She also refused to say whether voter
Republicans will vote to confirm her, used to restrict abortion in case Roe is intimidation is illegal, which it is;
and why Trump, who has handed the overturned. whether the President can unilaterally
judiciary over to the Federalist Soci- And it is not just reproductive rights delay an election, which he cannot; and
ety, has nominated her. It is because and access to healthcare that are on whether the Constitution empowers
she will advance their extremist, con- the line. Trump and his Republican Congress to protect the right to vote,
servative agenda. enablers want a Justice who will which it does.
So her question-dodging isn’t a prob- rubberstamp Trump’s racist and The stakes have never been higher
lem for them. It is part of their strat- xenophobic attacks on immigrants, for our democracy. On one issue after
egy to get her onto the Court. from ripping away protections for our another, on one right after another,
They know where she stands, and so Dreamers to rewriting the census. Once Trump and his Republican enablers
do the American people. We already again, this is exactly what Donald have made it clear that they want a
know because her record is clear. Trump told us he would do after he lost Court that will bend over backward
Take reproductive rights. President earlier court cases. even further for the wealthy and well-
Trump pledged to nominate Supreme Trump and his Republican enablers connected while running roughshod
Court Justices who would overturn also want a Justice who will turn back over everyone else. They want a Court
Roe. Listen to him. He said he would the clock even more on workers’ that will keep them in power, even
only appoint someone who would over- rights. Trump wants a Justice who will when voters have had enough of their
turn Roe, and then he picked Barrett. erode workers’ ability to join together fearmongering and division and graft,
In 2006, Barrett signed a newspaper ad and fight for fair pay and working con- and Barrett is their choice to do just
calling for the end of Roe and describ- ditions and to push back against em- that. That is why this vote is so crit-
ing Roe as ‘‘barbaric.’’ She was a mem- ployment discrimination. We know this ical.
ber of an anti-choice group while on is what they want because those are A vote for Barrett is a vote to strip
the University of Notre Dame faculty. the policies the Trump administration healthcare from millions of people. It
And how would she overturn Roe? has pursued and what Barrett’s anti- is a vote to turn back the clock on re-
After all, Roe is the current law of the worker record tells us that she will do. productive freedom, to endanger
land. But Barrett has that all worked There is another thing about Dreamers and immigrants, to let cli-
out. She holds a dangerously radical Barrett’s record that deserves special mate change rampage unchecked, to
ctelli on DSK11ZRN23PROD with SENATE
view on legal precedent. attention just 8 days before the elec- imperil efforts to address systemic rac-
In a 2013 Law Review article, she sug- tion. Trump and his Republican ism, to support workers’ rights, voting
gested that the Supreme Court is not enablers want a Justice who will strip rights, LGBTQ rights, gun violence
strictly bound by precedent and that away voting rights, especially from prevention—all at risk.
public debate about Roe leaves open communities of color and marginalized Ultimately, it is also a vote to
the possibility of overruling it. To communities. rubberstamp an illegitimate process
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6499
carried out against the wishes of much sions led to progress toward equity, with the ConnectorCare, she couldn’t pay her
of the Nation and against the backdrop gap with insurance coverage rate for Black rent and bring food to the table for her
of a deadly crisis that Senate Repub- and white adults dropping by 4 percentage kids.
points and the difference between Hispanic You know, the Affordable Care Act
licans have ignored as Americans have
and white adults falling by 9.4 points. In-
died. stead of building on these important steps,
helped Massachusetts expand Medicaid
Let’s be very clear: If Trump and Re- overturning the ACA would further exacer- and more affordable insurance plans
publicans succeed in ramming this bate inequities in access to health care. like the ones Marleny uses. But if
nomination through, the American The elimination of the ACA would also be Trump’s Supreme Court nominee over-
people will expect us to use every tool devastating for people with specific health turns the ACA, Massachusetts could
we have to undo the damage and re- care needs, including 1.8 million people liv- lose $2.4 billion in Federal funding.
store the Court’s integrity. ing with substance use disorders and mental Over 375,000 people like Marleny and
illness. Protections would also be stripped
I am under no illusions here. Demo- her children could lose their coverage.
away from 135 million people who have pre-
crats have fought tooth and nail, but existing conditions like diabetes, cancer,
Deb from Greenfield knows what it is
the Republicans control the Senate. asthma, and those now who have had COVID– like not to be able to pay for
The reason the Republicans are willing 19. Insurance companies could once again healthcare. She told me: ‘‘I was an
to break every rule to jam through an charge women 50 percent more than men for American whom ObamaCare saved at
illegitimate nomination 8 days before coverage and impose lifetime caps on bene- the very moment I lost my career and
the election is that they have realized fits. It would strip a popular feature for fam- my health.’’ She writes: ‘‘You must
a truth that shakes them down to their ilies: coverage for those up to age 26 who step in and take action. We cannot sit
have sought coverage on their parents’ plans idly by while our access to affordable
core: The American people are not on at a time when youth unemployment has
their side. doubled due to the COVID–19 pandemic.
healthcare hangs in the balance.’’
People all over this country are In Massachusetts, where our state’s health Deb is right, and there are millions of
fighting to reclaim our democracy. reform law served as a model for the ACA, people across this country who have
They are registering to vote, and they many falsely believe we would be protected lost their jobs during this pandemic
are voting. They are voting like never if the ACA were struck down. This is not the and economic crisis and could be in the
before. They are speaking out and tell- case. Thanks to the ACA, a number of new exact same position that Deb was in.
protections were implemented in the Com- And, finally, I checked back in with
ing their stories. They are fighting for
monwealth: the provision allowing young my friend Charlie and her mom, Re-
a democracy that works for all of us, people to stay on their parents’ plan and the
not just for the privileged few. And becca, who live in Revere. Charlie and
reduction of prescription drug costs for sen-
they will continue to fight until they iors caught in the Medicare ‘‘donut-hole.’’ I fought side by side at the Capitol dur-
have taken our democracy back from These protections could be gone overnight if ing the healthcare fights in 2017.
those who have worked around the the ACA were invalidated. Her mom reminded me: ‘‘Due to se-
clock to undermine it. In addition, an ACA repeal would impact vere preeclampsia, Charlie was deliv-
Now, I want to spend some time drill- access to health coverage and healthcare for ered at 26 weeks gestation and weighed
hundreds of thousands of Massachusetts con- 790 [grams]—about 1 pound 12 ounces.
ing down on what is at stake with this
sumers. The state’s health insurance cov- She was in the NICU for 3 months.
vote, starting with the impact that dis- erage expansions were only possible with the
mantling the Affordable Care Act will Without the ACA, she would have ex-
partnership and funding from the federal
have on my constituents in Massachu- government. This is especially true for the ceeded a lifetime cap before ever com-
setts. expansion of MassHealth, our Medicaid pro- ing home from the hospital. Addition-
I will start with an op-ed that I wrote gram, as well as the availability of afford- ally, she would have been uninsurable
with Amy Rosenthal, the executive di- able coverage through ConnectorCare. Over because her birth was a preexisting
rector of Health Care for All, and Kate 375,000 Massachusetts residents could lose condition. With access to health care,
their health coverage and the state stands to Charlie was able to thrive despite some
Walsh. She is the president and CEO of
lose up to $2.4 billion in federal funds. These pretty significant diagnoses. Now, at
Boston Medical Center. It was pub- immense cuts would create a funding gap
lished in the Boston Globe, and it was the age of 8, Charlie lives a very much
that would be impossible to fill even during
entitled ‘‘The Affordable Care Act and normal times. The challenge is even greater typical life.’’
coverage for Massachusetts residents is now: According to some estimates, Massa- Repealing the Affordable Care Act
at risk.’’ chusetts may face a deficit of up to $6 billion now would be devastating for Rebecca
Here is what we wrote: as a result of the pandemic. These funding and Charlie. They can’t go back to life-
Dave was laid off from his hotel job in
shortfalls could have devastating implica- time caps or sky-high rates and denied
tions for the health care safety net in Massa- coverage because of preexisting condi-
March due to the coronavirus pandemic, and
chusetts. tions. None of these families can.
he lost his health insurance too. A week
Taking coverage away from people during And, like so many policies, Black and
later, he was rushed to the emergency room
the worst pandemic we have experienced in
with a lung problem. With support from an
the last century is simply despicable, and we
Brown communities will be dispropor-
enrollment assister, he was able to enroll in tionately affected if the ACA is de-
should all be outraged. Massachusetts de-
MassHealth coverage that was made possible stroyed.
serves more from its President and from its
because of the Affordable Care Act, better I want to read another op-ed I wrote
government. All of us must speak up, speak
known as ObamaCare. He is just one of the
out, and make it abundantly clear that the recently that was published in
hundreds of thousands of Massachusetts resi-
ACA cannot be repealed. Shondaland. It discusses the harm of
dents given a lifeline by the ACA.
Yet, the multi-year effort to repeal the law Speaking up includes speaking up stripping away healthcare for commu-
is coming to a head at the worst possible about how the ACA has transformed nities of color, and here is what it says:
time. Just days after the November election, people’s lives. So many folks in Massa- Over ten years ago, President Barack
the US Supreme Court will hear oral argu- chusetts reached out to my office to Obama signed the Patient Protection and Af-
ments in a case seeking to overturn the share their stories and how they would fordable Care Act (ACA) into law. Since
ACA. And Supreme Court nominee Amy then, we’ve made progress. Millions of Amer-
be harmed if healthcare were ripped
Coney Barrett has a clear record on the icans now have high-quality, affordable
issue. She has openly questioned the con- away, so I want to introduce you to a health insurance. We no longer have to
stitutionality of the ACA, arguing the Su- few of those people: Marleny, Deb, and worry about being denied coverage because
preme Court’s ruling upholding the ACA’s in- Charlie. of preexisting conditions. Millions of young
dividual mandate was ‘‘illegitimate.’’ If she Marleny is a single mom from Fra- adults can stay on their parents’ plans until
is confirmed to the court, she may provide mingham. She receives her healthcare age 26. States were given the option to ex-
the decisive vote to strike it down. For peo- through ConnectorCare, the plans we pand Medicaid eligibility—providing cov-
ple like Dave, and more than 23 million oth- have in Massachusetts for low-income erage to more than 12 million low-income
ctelli on DSK11ZRN23PROD with SENATE
ers nationwide, access to health care hangs families who don’t qualify for any Americans.
in the balance. But now, the ACA is at risk because Re-
The need for health care coverage has
other program. Her children use publicans are trying to ram through Amy
never been more dire than during the MassHealth Family Assistance, which Coney Barrett’s nomination to serve as the
COVID–19 pandemic. It has laid bare dev- is our CHIP program. next Associate Justice of the Supreme Court.
astating racial disparities in health care ac- She says that, without the help she They are trying to push her confirmation
cess and outcomes. The ACA coverage expan- gets from MassHealth and from through at breakneck speed because just one
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S6500 CONGRESSIONAL RECORD — SENATE October 25, 2020
week after the November elections, a case to son to uphold the legislation. [Justice Gins- are clear: She believes women cannot be
overturn the ACA will be in front of the Su- burg] was right. Health care is a basic trusted to make decisions about their own
preme Court, and Republicans want Barrett human right. We fight for basic human bodies.
to have their back, cast the deciding vote, rights. We fight against this nomination. If Barrett’s nomination makes you scared
and deliver a deathblow to the law. And we fight any attempt to rip away and angry, you are right to be: 17 abortion-
Republicans have railed against the ACA healthcare from families. We do this to- related cases are already one step away from
from the day it was passed, making its re- gether. the Supreme Court. Twenty-one States have
peal a tenet of their platform in every presi- laws that could be used to restrict abortion
It is not just healthcare for tens of
dential and congressional race. They’ve tried in the case that Roe is overturned. And if
dozens and dozens of times to tear it down millions of people that is on the line. A Barrett’s confirmation is rammed through
piece by piece—all while ignoring the pleth- woman’s right to make her own quickly, she’ll have the opportunity—on No-
ora of data that demonstrates the good it has healthcare decisions is also in jeop- vember 10—to hear a case about overturning
done for the American people. Among the ardy. Roe v. Wade is a landmark case the Affordable Care Act and a lifetime on the
chorus of ACA detractors is Judge Barrett. that protects a woman’s right to abor- nation’s highest court to undermine the
While she tried to claim during her Supreme tion care. A few weeks ago, I published rights and the values we hold dear.
Court hearing that she is ‘‘not hostile to the Access to birth control has changed the
an op-ed in The Cut that discusses economic futures of millions of women, and
ACA,’’ her record says otherwise. She criti-
cized Chief Justice Roberts’ vote in 2012 to
what this nomination means for the access to safe abortion care is an economic
uphold the ACA and wrote reviews ques- right to abortion care, and I want to issue, too. For a young couple with modest
tioning the law’s constitutionality. Her nom- read it now for you. This is what I wages and piles of student loan debt, the de-
ination is just the latest Republican attack wrote: cision to start or expand a family is a power-
on the ACA—and if she is confirmed, MITCH The decision whether or not to bear a child ful economic [one]. For a woman working
MCCONNELL and Donald Trump might get ‘‘is central to a woman’s life, to her dignity. two jobs with two kids already in day care,
their wish and succeed in ripping healthcare It is a decision she must make for herself. an unplanned pregnancy can upend budgets
away from tens of millions of people during When government controls that decision for already stretched too far. For a student still
a global pandemic. her, she is being treated as less than a fully in high school or working toward a college
Here’s what that would mean: In the mid- adult human responsible for her own degree, it can derail the most careful plans
dle of the Covid-19 crisis, insurance compa- choices.’’ for financial independence. Indeed, one of the
nies would instantly be able to enforce caps Justice Ruth Bader Ginsburg said that 30 most common reasons that women decide to
on coverage or deny coverage to the 133 mil- years ago, at her Supreme Court confirma- have an abortion is because they cannot af-
lion Americans with preexisting conditions tion hearing. She understood that reproduc- ford to raise a child.
like asthma, diabetes, and even pregnancy. tive freedom is foundational to equality and And let’s be explicitly clear: If these at-
Covid-19 itself could be considered a pre- critical to women’s health and to their eco- tacks succeed, they will have disproportion-
existing condition for the millions of Ameri- nomic security. Without access to high-qual- ately negative consequences for women of
cans who have survived the virus. The 12 mil- ity reproductive healthcare—including con- color who are already facing some of the
lion low-income Americans now covered by traception and safe, legal abortion—we can- most insurmountable barriers to abortion
Medicaid expansions would lose their cov- not have true equality. care.
erage, including more than 850,000 Americans But President Trump, Senate Republicans, Rich women will still have access to
struggling with opioid use disorder, [people and their extremist allies just don’t care. abortion and reproductive care, but it
who] rely on Medicaid for life-saving medica- They’ve spent almost 4 years of the Trump will be Black and Brown women—
tion assisted treatment and counseling serv- administration—and . . . many years before women with low incomes, women who
ices. Millions of young adults would be [that]—undermining health care and turning can’t afford to take time off from
thrown off of their parents’ insurance, forc- back the clock on reproductive rights. That’s work, and young women who were
ing them to pay out of their own pockets why they nominated Amy Coney Barrett to raped or molested by a family mem-
even as many struggle under a mountain of sit on the Supreme Court. She’s the ticket
ber—who will be the most vulnerable.
student loan debt, stagnant wages, and high for a desperate, right-wing party that wants
to hold onto power a little longer in order to
This is not a moment to back down.
unemployment rates due to the pandemic.
And the damage won’t stop there. Repeal impose its extremist agenda on the entire Already, it is inspiring to see so many
of the ACA would have devastating con- country. women and friends of women coming
sequences for Black and brown communities President Trump and his Republican off the sidelines in this fight, and we
that disproportionately benefit from its cov- enablers have tried to deny this obvious fact. must continue to speak up. Call your
erage. The ACA helped narrow disparities in The President recently said that he ‘‘didn’t Senators and make sure this conversa-
access to healthcare in the United States know’’ how Barrett would rule on reproduc- tion is grounded in our real experi-
and provided millions of Black and brown tive rights, and Republicans in the Senate ences. Men must speak up, too, because
families affordable options for care. Without have fallen in line. The Republican Party
reproductive freedom affects us all.
the ACA, one in every five Black Americans, knows the large majority of Americans do
not support overturning Roe v. Wade. They
Voting is already underway across
and one in three Hispanic Americans would
be uninsured. If the ACA is dismantled, benefit when we stay on the sidelines—and the country, and there are only 26 days
Black and brown communities that benefit they want us to sit back and stay quiet while before the election is completed. And
from Medicaid expansions would be kicked our fundamental freedoms are on the line. the data shows that most Americans
off their insurance. In the midst of a mater- But we see right through their radical want to wait until after the election
nal mortality crisis that disproportionately play. for a new Justice to be confirmed. Jus-
impacts mothers of color, moms across this President Trump picked Barrett as his Su- tice Ginsburg gave us our marching or-
country could lose access to the well woman preme Court nominee to take us back in
ders: Do not fill this Supreme Court
visits and the maternity coverage currently time. Roe v. Wade established the constitu-
tional right to safe and legal abortion and seat until after the election when the
required by the ACA.
So let’s call out the Supreme Court nomi- has been the law of the land for over 47 next President is installed. We will
nation for what it is—Donald Trump and the years. But over, and over, and over again, fight hard together to honor her wish.
entire Republican Party’s big chance to com- President Trump has bragged about his plans There are countless powerful stories
plete a decade-long partisan attack on the to appoint justices who would ‘‘automati- that demonstrate why abortion rights
ACA and on Americans’ rights to health cally’’ overturn Roe. The Affordable Care are so important. I am going to read a
care. It’s the big chance for a desperate Act expanded access to reproductive health few of them. The first is from my
party to impose its extreme views on the care—like no-co-pay birth control—for mil- friend and colleague from Michigan,
people of this country because they couldn’t lions [of people]. But President Trump has Senator PETERS, who became the first
actually get it done through Congress. promised to overturn the Affordable Care
The majority of Americans want the Sen- Act in its entirety, and sent his Justice De-
sitting U.S. Senator to share his abor-
ate to wait until after the election to choose partment to ask the Supreme Court to do ex- tion story. I will just read an excerpt of
a new justice. It’s because this is a life or actly that. that powerful piece that was published
death situation for their friends, their fami- Barrett is Trump’s ideal candidate to ac- in Elle magazine.
lies, and for tens of millions of their fellow complish his plans. In 2006, she signed a In the late 1980s in Detroit, Peters and his
Americans. newspaper ad calling for the end of Roe and then wife, Heidi, were pregnant with their
ctelli on DSK11ZRN23PROD with SENATE
In 2012, after yet another attack on the describing the decision as ‘‘barbaric.’’ She second child, a baby they very much wanted.
ACA was defeated in the Supreme Court, was a member of an anti-choice group while Heidi was four months along when her water
Justice Ginsburg wrote that ‘‘the crisis cre- on the University of Notre Dame faculty. broke, leaving the fetus without amniotic
ated by the large number of U.S. residents She’s also been critical of the Affordable fluid—a condition it could not possibly sur-
who lack health insurance is one of national Care Act and the Supreme Court’s past deci- vive. The doctor told the Peters to go home
dimension’’ and cited the ‘‘inevitable yet un- sion to uphold the law in court. Her position and wait for a miscarriage to happen natu-
predictable need for medical care’’ as a rea- on abortion and other reproductive rights rally.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6501
But it didn’t happen. They went back to tant. A late bloomer, I barely dated until I I met Dr. Hern and his excellent team with
the hospital the next day, and the doctor de- was in my 20s, then quickly met and married great relief. They explained the procedure.
tected a faint heartbeat. He recommended an my wonderful husband. Our birth control al- My third trimester abortion was humane,
abortion because the fetus still had no ways worked perfectly. Anyway, we are both gentle, safe—safer, even in the 36th week,
chance of survival, but it wasn’t an option family-minded, and dreamed of building our than full term live birth. We laid my daugh-
due to a hospital policy banning the proce- family big with lots of kids. ter to rest in my womb that first day, a
dure. So he sent the couple home again to My husband and I had one daughter, Tuesday. Friday morning, after brief labor, I
wait for a miscarriage. ‘‘The mental anguish planned and loved. But the second child was delivered her whole and still, into the hands
someone goes through is intense,’’ Peters not so easy. I suffered three miscarriages in of my savior. He brought her to me after.
says, ‘‘trying to have a miscarriage for a two years before a baby finally stuck. Preg- She was still warm, but not quite warm
child that was wanted.’’ nancy brought months of crushing nausea. enough.
As they waited, Heidi’s health deterio- But the sicker I felt the better, the doctors Dr. Hern saved my daughter from immeas-
rated. When she returned to the hospital on said, things must be going [well]. Healthy, urable suffering. He saved my family from
the third day, after another night without a healthy, healthy, they told me, time after having to go against our deepest held values.
natural miscarriage, the doctor told her the time. Dr. Hern saved me from my own desperation.
situation was dire. She could lose her uterus By late may, the end was in sight. Big and And every step of the way, he saved my dig-
in a matter of hours if she wasn’t able to ripe and swollen, I bundled myself into the nity.
have an abortion, and if she became septic hospital for an ultrasound. I brought a tiny I want to share one more story. This
from the uterine infection, she could die. sweater to knit while I waited. After an hour one is from Wendy in Greenfield, MA. I
The doctor appealed to the hospital’s board of examination, a doctor entered the dark will just read a part of what Wendy
for an exception to their anti-abortion policy room. She saw the sweater and asked, ‘‘Is it
and was denied. ‘‘I still vividly remember he for the baby?’’ I nodded proudly and showed
wrote. She said:
left a message on the answering machine her how all the pieces would line up, just so, I know firsthand that overturning Roe—
saying, ‘They refused to give me permission, to fit my newborn daughter. A month was whether overtly or by chipping away at ac-
not based on good medical practice, simply plenty long to finish such a small project. cess to abortion until Roe becomes meaning-
based on politics. I recommend you imme- ‘‘It’s beautiful’’. She told me, her eyes filling less—will not stop women from seeking abor-
diately find another physician who can do with tears. tions. It will, however, deny women access to
this procedure quickly,’ ’’ Peters recalls. Then she turned the monitor toward me so safe abortions. Abortion has been with us
The Peters were able to get into another that I could see the big, black fluid-filled since women have been getting pregnant,
hospital right away because they were holes in my baby’s brain. and will continue to be with us no matter
friends with its chief administrator. Heidi There was so little that I knew that day. I what the politicians and judges decide. In
was rushed into an emergency abortion that didn’t know about Dandy Walker Malforma- 1961, I was 17 and abortion was not yet legal,
saved her uterus and possibly her life. The tion or Agenesis of the corpus callosum. I but I was pregnant and did not want to be. I
whole experience was ‘‘painful and trau- knew love. I knew fear. I knew my values. was fortunate because I was able to tell my
matic,’’ Heidi shared in a statement. ‘‘If it And I knew that I was in Boston, medical parents, and they helped me find a doctor—
weren’t for urgent and critical medical care, mecca, hub of the universe. but finding a safe, compassionate doctor
I could have lost my life.’’ I learned more about brains in general and turned out to be a different story.
my baby’s brain in particular. MRI revealed We knew an illegal abortion could be ex-
Reflecting on the experience now, pensive and my parents didn’t have much
poor prognosis. My daughter would not like-
Senator PETERS says it ‘‘enacted an in- ly ever walk, talk, support the weight of her money, so we made a plan together that I
credible emotional toll.’’ So why go own head, or swallow. I learned that infant would go by myself in the hopes that he
public with it? ‘‘Well, it’s important hospice was out of the question, and that I would take mercy on me and charge me less.
for folks to understand that these I know there were many heroic doctors
could not refuse a feeding tube for my baby.
Dumbfounded, I asked the neurologist, who helped women back then at great risk to
things happen to folks every day,’’ he themselves, but this doctor, who I’m sure
explains. ‘‘I’ve always considered my- ‘‘What does a baby like mine do? Just . . .
sleep all day?’’ He winced. ‘‘Babies like had seen other young women who were alone
self pro-choice and believe women and without support, thought he could take
yours,’’ he explained, ‘‘are not often com-
should be able to make these decisions fortable enough to sleep.’’ I knew what I
advantage instead. I remember finding the
themselves, but when you live it in real somewhat rundown building and walking up
needed to do. 35 weeks pregnant, and I was
life, you realize the significant impact a dark flight of stairs to his office. There was
afraid, even, to tell my husband, my mother,
it can have on a family.’’ nobody else there, just the two of us, the of-
my doctor, my genetic counselor, but I
PETERS decided to share his story at fice was untidy and dimly lit with the win-
talked to my family, and I called the hos-
dow blinds down. And the doctor himself ap-
this moment because the right to make pital. It was a Friday afternoon. My doctor
peared unkempt and unprofessional. His
such decisions as a family, free of poli- was busy delivering triplets. I left a message.
clothes were rumpled, he sat too close to me
tics, has never been more at stake. He ‘‘I want to know all my options,’’ I said. ‘‘All and put his hand on my knee and said ‘‘we
is alarmed by the threat of Donald of them.’’ don’t have to use the word abortion, dear.’’
She called me back at 6:30 p.m. and talked I knew immediately that I did not want
Trump’s Supreme Court nominee, Amy fast. She gave me the number of an adoption
Coney Barrett—the threat she poses to this man to touch me, let alone perform an
agency in upstate New York that specializes abortion, so I did what many young women
women’s reproductive rights. The very in medically complex children. in my situation back then weren’t able to do:
conservative nominee once signed her ‘‘I’m so sorry,’’ she said. ‘‘But if you want
I walked out. I went back down that flight of
name onto a newspaper ad calling Roe an abortion, you have to decide right away.
stairs and out into the light of the street. I
v. Wade, the landmark decision that le- You have to call before the end of the work felt—and still feel—it was a narrow escape.
day, mountain time. You have to be on an So we found a second doctor—and in fact
galized abortion, ‘‘barbaric.’’ If Repub-
airplane on Monday, you have to show up this time it was my younger sister who had
licans successfully confirm her to fill Tuesday with $25,000 up front. I’m so sorry,’’
Ruth Bader Ginsburg’s seat, she could a guitar teacher who knew someone, because
she said again. I did not have $25,000. I didn’t that’s how it worked back then—and this
reverse legal abortion in America or know if the number led to a safe, legal doc- time my mother came with me. We had to go
significantly curtail it. ‘‘It’s important tor, or if it led to some back-alley quack. I at night to the back door, and though there
for folks who are willing to tell these knew only my desperation. I called the num- was no nurse or assistant, this office was
stories to tell them, especially now,’’ ber right away. The woman on the phone was clean and it looked like a real medical office,
PETERS says. ‘‘The new Supreme Court very kind. She, too, apologized. ‘‘But Dr. and the doctor looked like a real doctor. But
Hern does not practice after 36 weeks, and he was not a compassionate man. As I lay
nominee could make a decision that you’ll be 36 weeks on the last day of your
will have major ramifications for re- there on the exam table with my mother in
procedure.’’ ‘‘Yes,’’ of course, I said. ‘‘Of the next room, the doctor lectured me the
productive health for women for dec- course. I understand. We’ll be there. We’ll whole time, telling me I was a sinner, that
ades to come. This is a pivotal moment find the money.’’ the abortion was the ‘‘wages of sin,’’ that he
for reproductive freedom.’’ And we did. There wasn’t one day of open hoped I would learn my lesson, and he
Senator PETERS is right: This is a banking before our trip, so a loan was out of threatened that if I made any noise, he
pivotal moment for reproductive free- the question. We had to rely on my family. would stop the procedure, I would have to
dom. I have heard from so many of my They were able to increase their credit while have the baby, and everyone would ‘‘know
we flew across the country and withdraw my shame.’’
constituents about the importance of
ctelli on DSK11ZRN23PROD with SENATE
funds from their retirement account to cover Although my experience was scary and
Roe and reproductive freedom. I am the bill later in the month. Without them, I humiliating, my story is not as horrific as
just going to share two of their stories. don’t know what would have happened. I many from that time—I survived, without
The first is from Kate, who lives in know, now, about the abortion funds. But injury, as many women did not—but that’s
Medford, MA. Here is what Kate wrote: just as I didn’t risk asking if what I was because I was lucky. I was lucky to have sup-
Most of my life, my strong support for doing was safe and legal, I didn’t want to ask portive parents, I was lucky they could af-
abortion was as impersonal as it was impor- for financial help. Everything felt so fragile. ford to pay, I was lucky to have a precocious
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S6502 CONGRESSIONAL RECORD — SENATE October 25, 2020
sister, and I was lucky her guitar teacher Prior to Justice Ruth Bader Gins- House Amendment to S. 178 with
had contacts, and lucky he knew of a medi- burg’s death, I stated that, should a va- Amendment No. 2652; a bill to condemn
cally competent doctor. But nobody should cancy on the Supreme Court arise, the gross human rights violations of ethnic
have to depend on luck to get a safe abor-
Senate should follow the precedent set Turkic Muslims in Xinjiang, and call-
tion.
Although that doctor tried to shame me, I 4 years ago and not vote on a nominee ing for an end to arbitrary detention,
am not ashamed. I don’t think abortion is prior to the Presidential election. torture, and harassment of these com-
shameful and I have never had a moment’s Since her passing, I have reiterated munities inside and outside China.
regret. My abortion allowed me to live the that in fairness to the American peo- I was necessarily absent but had I
life I wanted and to become a parent when I ple—who will either be reelecting the been present would have voted no on
was able to raise a child properly and respon- President or selecting a new one—the rollcall vote 208, on the Motion to
sibly. This was good for me and my life, but Table the Appealing of the Ruling of
decision on the nominee to fill the Su-
it is also a social and public health good. the Chair; nomination or Michael Jay
Abortion is a necessary part of family plan- preme Court vacancy should be made
by whoever is elected on November 3. Newman, of Ohio, to be United States
ning and women’s healthcare and denying or
restricting access to it means that women Because this vote is occurring prior District Judge for the Southern Dis-
can not safely control their reproduction and to the election, I will vote against the trict of Ohio.
therefore can’t really control their lives, nomination of Judge Amy Coney Bar- I was necessarily absent but had I
which means they can’t participate fully and rett. To be clear, my vote does not re- been present would have voted no on
equally in society. It is bad social policy to flect any conclusion that I have rollcall vote 209, on the Motion to
hobble half of the population. reached about Judge Barrett’s quali- Table the Appealing of the Ruling of
Women of my generation already know the Chair; nomination of Michael Jay
what pain and hardship results from abor- fications to serve on the Supreme
Court. What I have concentrated on is Newman, of Ohio, to be United States
tion bans, but younger women have grown up
being fair and consistent, and I do not District Judge for the Southern Dis-
taking abortion access for granted as a right,
and I urge them to speak out and tell their think it is fair nor consistent to have a trict of Ohio.
stories. And not only women, but men, and Senate confirmation vote prior to the I was necessarily absent but had I
other family members and friends who have been present would have voted yes on
election.
been involved and who have been affected. rollcall vote 210, on the motion to pro-
f ceed to legislative session.
Bring up your experiences in conversation,
contact your legislators and tell them. They VOTE EXPLANATION I was necessarily absent but had I
are the ones in immediate danger and whose
Ms. SINEMA. Mr. President, I was been present would have voted yes on
lives and whose families’ lives will be af- rollcall vote 211, on the motion to in-
fected. necessarily absent but had I been
present would have voted yes on roll- voke cloture on the nomination Mi-
Senator PETERS’ story, Kate’s story, chael Jay Newman to be U.S. District
call vote 201 on the Motion to Proceed
Wendy’s story are just about how gut- Judge for the Southern District of
to H.J. Res. 90, a joint resolution pro-
wrenching these decisions are. These Ohio.
viding for congressional disapproval
are personal decisions that women I was necessarily absent but had I
under chapter 8 of title 5, United
should make for themselves. been present would have voted no on
The Senate has no business taking up States Code, of the rule submitted by rollcall vote 212, on the Decision of the
a vote on a Supreme Court Justice who the Office of the Comptroller of the Chair; Shall the Decision of the Chair
is already committed to taking away Currency relating to ‘‘Community Re- Stand as the Judgment of the Senate.
healthcare from millions of people and investment Act Regulations’’. I was necessarily absent but had I
I was necessarily absent but had I been present would have voted yes on
to take away Roe v. Wade and this pro-
been present would have voted no on rollcall vote 213, on the Confirmation
tection from millions of women.
We may not have the votes to stop rollcall vote 202, on the Motion to of Michael Jay Newman, of Ohio, to be
them, but that does not change the Table the Appealing of the Ruling of U.S. District Judge for the Southern
fact that what the Senate Republicans the Chair; a bill to condemn gross District of Ohio.
are doing is wrong. We will continue to human rights violations of ethnic I was necessarily absent but had I
fight it. We will fight it now in the Turkic Muslims in Xinjiang, and call- been present would have voted no on
Senate, and we will fight it come elec- ing for an end to arbitrary detention, rollcall vote 214, on the motion to re-
tion day November 3. torture, and harassment of these com- cess.
I yield the floor. munities inside and outside China I was necessarily absent but had I
I was necessarily absent but had I been present would have voted no on
f
been present would have voted no on rollcall vote 215, on the motion to pro-
MORNING BUSINESS rollcall vote 203, on the Motion to ceed to legislative session.
Table McConnell Amdt. No. 2680; to im- I was necessarily absent but had I
prove the small business programs. been present would have voted no on
NOMINATION OF AMY CONEY I was necessarily absent but had I rollcall vote 217, on the motion to pro-
BARRETT been present would have voted yes on ceed to executive session to Consider
Ms. COLLINS. Mr. President, when rollcall vote 204, on the Motion to the Nomination of Amy Coney Barrett
the Senate considers nominees to the Table the Motion to Proceed to S. 4675; to be an Associate Justice of the Su-
U.S. Supreme Court, it is particularly a bill to amend the Health Insurance preme Court of the United States.
important that we act fairly and con- Portability and Accountability Act. I was necessarily absent but had I
sistently, using the same set of rules, I was necessarily absent but had I been present would have voted no on
no matter which political party is in been present would have voted no on rollcall vote 218, on the Motion to
power. rollcall vote 205, on the Motion to Pro- Table the Motion to Indefinitely Post-
When President Obama nominated ceed to Executive Session to Consider pone the Barrett Nomination.
Judge Garland 8 months before the 2016 Michael Newman to be U.S. District I was necessarily absent but had I
Presidential election, I met with him Judge for the Southern District of been present would have voted no on
and maintained that he was entitled to Ohio. rollcall vote 219, on the On the Motion
a hearing. Others argued that the win- I was necessarily absent but had I to Table the Motion to Recommit the
ner of that year’s Presidential election been present would have voted no on Barrett Nomination to the Committee
should be allowed to choose the nomi- rollcall vote 206, on the Motion to on the Judiciary.
nee, and that is what happened. My Table the Appealing of the Ruling of I was necessarily absent but had I
views did not prevail, and the standard the Chair; nomination of Michael New- been present would have voted no on
ctelli on DSK11ZRN23PROD with SENATE
was established that a nominee to the man to be U.S. District Judge for the rollcall vote 220, on the Motion to
Court would not be voted on prior to Southern District of Ohio. Table the Appealing of the Ruling of
the election in a Presidential election I was necessarily absent but had I the Chair; nomination of Coney Bar-
year. This year, a vacancy has also oc- been present would have no on rollcall rett, of Indiana, to be an Associate Jus-
curred, notably much closer to the vote 207, on the Motion to Invoke Clo- tice of the Supreme Court of the
election. ture on the Motion to Concur in the United States.
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