Congressional Record, Senate, October 25, 2020, Page S6554
Summary
A page of the Congressional Record, Senate, dated October 25, 2020, beginning at page S6554, in a very long document. After the opening prayer, Mr. Lee speaks under the heading Nomination of Amy Coney Barrett in support of confirming Judge Barrett to the Supreme Court, citing her Odyssey analogy for the Constitution. A Democratic speaker shares stories of patients with preexisting conditions, says Republicans' lawsuit could affect over 130 million people with preexisting conditions and cost over 20 million people their coverage, and urges Senators to vote no on the nomination. Near the end, Mr. Schumer notes the absence of a quorum, and the clerk reports another nomination.
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“Congressional Record, Senate, October 25, 2020, Page S6554.”
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S6554 CONGRESSIONAL RECORD — SENATE October 25, 2020
was totally her decision; and it was their own. I encourage them to listen liness, and civility, waiting for the day
lifesaving. because I guarantee people across the when You will return to establish Your
But if Judge Barrett were Justice country know what Republicans have Kingdom on Earth. Lord, prepare us all
Barrett, if the right to abortion were a been saying, know exactly what Repub- to stand before You in peace without
thing of the past, Madeline’s pregnancy licans are voting for, and they are spot or blemish.
would have been a death sentence. As speaking up about it. We pray in Your powerful Name.
she put it, ‘‘This isn’t a right vs. left I am here sharing their stories on the Amen.
issue for a lot of us, it’s life or death— Senate floor, and Democrats brought The PRESIDING OFFICER. The Sen-
and knowing [that] is at stake . . . is their stories to the committee room so ator from Utah.
terrifying.’’ that Republicans have no choice but to NOMINATION OF AMY CONEY BARRETT
Madeline isn’t the only person who is hear them. Mr. LEE. Mr. President, it is an
terrified. If Republicans win their law- When we vote, Republicans will have honor and a privilege to speak on be-
suit, over 130 million people with pre- no excuse to pretend they do not know half of the confirmation of Judge Amy
existing conditions like Madeline could exactly what is at stake. Instead, every Coney Barrett to the Supreme Court of
be charged more for their health insur- one of them will have a simple choice. the United States today.
ance, have benefits excluded, or be de- Will you listen to the families who are One of Judge Barrett’s familiar
nied coverage entirely. speaking up, the people who are saying themes, one that she has invoked in
Over 20 million people like Mays and to you, in no uncertain terms, that if speeches when speaking about the Con-
Rhiannon could lose coverage for Med- you put this judge on the Court, if you stitution and about the role of the Fed-
icaid expansion, the exchanges, or their win this partisan lawsuit, it could kill eral judiciary, involves a line from
parents’ plans. Insurance companies me or will you ignore them? Odysseus. It involves a reference to the
could exclude essential health benefits If Republicans truly want to reassure ‘‘Odyssey.’’
She says:
countless other patients rely on, like their constituents and want to show
The Constitution is like when Odysseus
prescription drugs or maternity care or they are listening, the choice is simple: ties himself to the mast to resist the song of
therapy or wheelchairs or much more. Vote no on this nomination. For those the Sirens. And he tells his crew, ‘Don’t
Half the country could be charged who choose to put this President and untie me no matter how much I plead.’
more for health insurance just because the profoundly lost Republican Party That’s what we’ve done as the American peo-
they are a woman. Seniors could face above anything else, to those Repub- ple with the Constitution. We’ve said . . .
thousands more in healthcare costs licans who are capping these brutal it’s the people sober appealing to the people
with the return of the age tax and the last 4 years off with such a staggering drunk, [that when you are tempted to get
Medicare doughnut hole. Lives of peo- untied], that when you are tempted to get
show of fealty and partisanship and
carried away by your passions and trample
ple with disabilities could be upended if callousness, know the consequences of upon the First Amendment rights or minor-
they lose access to home- and commu- this vote will be felt long after this ity rights, this document will hold you back.
nity-based services that help them live President is gone from office, regard- Judge Barrett points out a very crit-
independent lives or if insurance pro- less of the outcome of this election. ical matter here, an absolutely essen-
viders can discriminate on the basis of People of this country will not forget tial matter, which is, first of all, that
disability by denying coverage or and neither will your Democratic col- the whole point of having a Constitu-
charging more. leagues. tion involves restraining and restrict-
And people with expensive healthcare I yield the floor. ing government. As it relates to the ju-
needs—cancer diagnosis, a medically I suggest the absence of a quorum. diciary, it involves acknowledging the
complicated pregnancy, a fight with The PRESIDING OFFICER. The necessarily limited, finite, and con-
COVID–19—could be left with an enor- clerk will call the roll. fined role of the judiciary.
mous bill since insurance companies The bill clerk proceeded to call the Sometimes when people refer to the
won’t have to cap patients’ out-of- roll. three branches of the Federal Govern-
pocket costs but will be able to place Ms. ROSEN. Mr. President, I ask ment, they will get it backward. Some-
annual and lifetime limits on their unanimous consent that the order for times people will refer to the judicial
benefits. the quorum call be rescinded. branch as if it were the most powerful.
And we cannot forget the commu- The PRESIDING OFFICER. Without This gets it exactly backward. It was
nities of color who already face worse objection, it is so ordered. designed to be—and, in fact, is—the
outcomes due to systemic racism in Mrs. SHAHEEN. Mr. President, I ask least dangerous branch of the three
our healthcare system who would be unanimous consent that the order for branches. That is not to say it is not
hit hardest by so much of the damage the quorum call be rescinded. the most dangerous of all. Government,
of the Republicans’ healthcare lawsuit. The PRESIDING OFFICER. Without generally, is something that while nec-
Healthcare isn’t all that is at stake objection, it is so ordered. essary is also dangerous just like water
for families—far from it. Fundamental Pursuant to rule IV, paragraph 2, the or fire or wind or oxygen or any of the
rights and protections and opportuni- hour of 12 noon having arrived, and the things that we depend upon for our
ties for workers are on the line. The Senate having been in continuous ses- day-to-day existence.
fate of immigrants and refugees and sion since yesterday, the Senate will Government, including the power of
asylum seekers—families and Dream- suspend for a prayer from the Senate the judiciary itself, has to be managed
ers who came to our Nation in search Chaplain. carefully, and it has to be channeled. If
of a better life and brighter future are it is not, we become dangerous. So that
on the line. And hard-fought victories PRAYER
is why we have a Constitution. It is to
for the LGBTQIA+ community are on The Chaplain, Dr. Barry C. Black, of- restrain government because govern-
the line. fered the following prayer: ment is force. Government is nothing
Matthew, in my home State of Wash- Let us pray. more or nothing less than the collec-
ington, and his husband were able to Holy God, as our lawmakers strive on tive, coercive use of force. We use it to
marry, to adopt, and fortunate to be this decisive day in history to accom- protect life, liberty, and property. We
able to form a loving family. But that plish Your purposes, show them how to use it to make sure that people don’t
might not be possible for LGBTQIA+ discern Your will. May they renew harm each other and to make sure that
couples like them in the future if the their minds through the nourishment we are protected from our adversaries
highest Court in the land turns back of Your Holy Word. Lord, prepare them
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within and without our borders, our
the clock and refuses to see them as to be sober-minded and filled with Your boundaries. Yet, if we lose sight of
equal under the law. Spirit, accomplishing the tasks that what government does and what it
The bottom line is that this Supreme receive Your approval. Keep them from doesn’t do, what it can and cannot do,
Court fight is not about politics. It is conforming to worldly impulses as they what it may or may not do, or what
about the lives of hundreds of millions strive to ensure that their behavior any branch of the government may do,
of people. If Republicans don’t believe will rightly represent You. May they we find ourselves in troubled, troubled
my constituents, I invite them to ask conduct themselves with holiness, god- waters.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6555
The reason I say that the judicial most part, gets things right. In fact, it This, in my view, was wrong. It was
branch is the least dangerous of the is something that may come as a sur- a problem. It was a political dispute
three is that it doesn’t possess the prise to many Americans that of all of that was becoming increasingly com-
power to say what should be, only what the decisions that the Supreme Court mon as the Progressive Era was gain-
is. The power of the legislative branch, decides in a typical year, in modern ing momentum.
where we serve, is the most dangerous times, it is most common that the Su- Conservatives in the country were
of the three because we have the power preme Court decides those questions ei- losing many of these battles in many
to prohibit conduct. We have the power ther unanimously or with near una- lawmaking bodies, including, appar-
to prescribe policy. We make the law. nimity. Most cases at the Supreme ently, the New York State legislature.
The second most dangerous power is Court are decided with a vote of 9 to 0 They didn’t like it. So these particular
probably that which is held in the exec- or 8 to 1 or 7 to 2—the overwhelming jurists on this particular day chose to
utive branch. It has been made more majority, in fact. exercise their authority as jurists to
dangerous over the last 80 years as Keep in mind, these are cases that strike down that law even though it
Democrats and Republicans alike have with very few exceptions have proven was really a political argument they
ceded more power to the executive difficult for the lower courts. They were making, even though it wasn’t
branch, voluntarily relinquishing the have caused some of the greatest legal within their jurisdiction.
role, which is uniquely, distinctively, minds in our country to address the So they stretched the meaning of the
and by constitutional mandate ours, same finite legal questions and to come law. They stretched out the concept of
over mostly to unelected, unaccount- up with different results. Yet those on due process so that they could declare
able bureaucrats who are, in some the Supreme Court of the United this to be a constitutional violation.
cases, the President of the United States, for the most part, decide these They took debatable matters beyond
States or those who serve under his cases with unanimity or nearly una- debate—not only beyond debate, but
employ. nimity. Why? they took them outside the proper
The judicial branch possesses neither Well, most of the time, they tie realm of State law jurisdiction and
the power of the purse nor the power of themselves to the mast. They remem- outside the context of legislation and
the sword. We have the power of the ber what is their charge. They remem- debate surrounding such legislation
purse. We spend the money. We pre- ber that they are there not to decide within political branches of govern-
scribe the policy. The executive branch matters of policy but to decide ques- ments generally, whether State or Fed-
has the power to implement and force tions of law. They can’t just reach out eral. They said: This is now Federal.
and execute the laws, hence the power and say, I don’t like this type of law. We are going to make it Federal, such
of the sword. The judicial branch pos- Let’s go after this type of law and at- that you can’t legislate in this area be-
sesses only the power to decide what tack it or undermine it or let’s pursue cause we don’t like it, and because we
the law says. In that respect, it is oper- this line of law that should be in place don’t like it, we are going to say that
ating as if through a rearview mirror. and isn’t. it is part of the Constitution; it is part
It is not saying what will come or what They don’t have that authority. They of your due process protection, not-
should be but what already is, what the have to have a case or a controversy, withstanding the fact that due process,
law means as it already exists. meaning one or more parties that can as the name implies, is about process.
In order to do that, the judicial properly invoke the jurisdiction of the It is about making sure that you have
branch has to come to a conclusion Court, and they have to have an actual, your day in court, making sure that
that our laws consist of words; that live, ripe dispute between people who you have access to tools connected to
those words have meaning; and that, in are actively affected by the law. Then fundamental fairness on procedural
order to tie themselves to the constitu- and only then may the Court act. questions, not an outcome.
tional mast in order to make sure that From time to time, however, the So in Lochner v. New York, the Su-
they themselves are able to resist the Court has been tempted to give in to preme Court Justices untied them-
siren call of power and to keep each of the siren call—to make law. It isn’t al- selves, as it were, from the mast of the
the three branches of government in ways with the same political objectives Constitution. They did so in a way that
check insofar as it is their prerogative in mind, and those objectives can was harmful and unsustainable. They
to do so, they have to check back con- change over time. To cite one of many did so notwithstanding the fact that
tinually and check themselves con- examples that we could point to today, there was no logical end point to this.
stantly with the words of the U.S. Con- I am going to refer to a decision made It was very difficult to conceive of any
stitution and the words of the law by the Supreme Court of the United question of public policy that could not
itself. States in 1905 in a case called Lochner and, ultimately, would not come before
Yes, it matters. Yes, these things are v. New York. the Supreme Court of the United
easily ignored. These powers are easily In that case, the State of New York States if you used their standard of
abused. In fact, they often have been had enacted some laws governing min- analysis: This law doesn’t really do
abused. There are a number of reasons imum wage and maximum hour issues anything good. It is not something that
for this. They have to do mostly with for bakery employees in the State of has a legitimate purpose, so we are
human nature itself. Human beings, New York. The Supreme Court of the going to strike it down.
while redeemable, are flawed. They United States decided that those laws Fortunately, the Supreme Court of
crave power. They tend to act toward were bad and that they didn’t like the United States—it took many years
those things that make them more them, and on that basis, it said in es- to do it—eventually saw the error of its
powerful if they are already in posi- sence: These laws are bad, and they are ways and eventually overturned
tions of government authority. That is so bad that they must be unconstitu- Lochner v. New York. In many in-
why it is easy to understand why, from tional. They are so bad, and they lack stances we ought to look back at that
time to time, the courts stray. any legitimate purpose that we can moment and say that we don’t really
Now, I want to be very clear at the see. We are, therefore, going to deem want the Supreme Court taking debat-
outset. The Federal court system, not- this part of the due process protec- able matters beyond debate. That is
withstanding its flaws, is the best of its tions, the due process protections that how political accountability works in
kind in the world. There is no judicial are covered by the 14th Amendment to this country. If you have something
system anywhere in the world that I the Constitution and allow us to im- that you don’t like as a matter of pol-
am aware of that is as respected or as pose our judicial authority on State icy, you ought to try to change it be-
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consistently dedicated to the rule of law and invalidate that State law. fore the legislative body in which it is
law, to interpreting the law consist- Their reasoning essentially amount- properly considered. Now, if it is un-
ently and faithfully as is our Federal ed to that: We don’t see any good rea- constitutional, yes, it should be uncon-
court system. son for this law. We, therefore, deem it stitutional. I am not one who focuses
The Supreme Court of the United incompatible, inconsistent, irreconcil- obsessively on judicial activism for
States, while it has made some very able with due process, and we hereby fear that by focusing obsessively on ju-
bad decisions along the way, for the strike it down as unconstitutional. dicial activism, we will perpetuate the
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S6556 CONGRESSIONAL RECORD — SENATE October 25, 2020
idea that really what we want is judi- We don’t want Judge Barrett on the Look at some of her professional ex-
cial passivity. We don’t want either. It Supreme Court to be our advocate. We perience. This is important.
is just as bad to invalidate as unconsti- want Judge Barrett on the Supreme Judge Barrett is no stranger to the
tutional a law that is, in fact, not un- Court to decide law, to decide cases courtroom. She has decades of exem-
constitutional as it is to leave intact based on what the law says, to keep plary professional legal experience that
an unconstitutional law that is con- herself tethered to that mast because I believe deem her well qualified to sit
stitutionally defective. Both are equal- it is through that mast that our rights as a Supreme Court Justice.
ly repugnant to the Constitution. Both are protected, that we are able to elect Following law school, Judge Barrett
represent an effort by jurists to people who will exercise sound judg- clerked for Justice Laurence Silber-
untether themselves from the mast of ment in deciding what the law should man of the U.S. Court of Appeals for
the Constitution and from the finite ju- be. And, yes, we want them to strike the District of Columbia Circuit. He is
dicial role. down laws when they are unconstitu- a great jurist in his own right, Judge
Justice Scalia was someone who was tional. But, no, we don’t want them Silberman.
nominated to the Supreme Court of the striking them down simply because of One year later, she had clerked at the
United States in 1986. He was con- a policy disagreement. U.S. Supreme Court for Justice Scalia,
firmed overwhelmingly, by a vote of 98 In fact, all of our political, our eco- one of the renowned judges, gaining
to 0, if I recall. nomic, and our civil rights end up fundamental legal experience that
Justice Scalia was someone who, being tied to this very feature within would help shape her future legal ca-
while a law professor, and later, while our government. They are all protected reer.
serving as a judge on the U.S. Court of by the willingness of our jurists to From there, she practiced law and
Appeals for the DC Circuit, had ac- keep themselves tethered to the con- taught as a visiting professor at George
knowledged the need for judges to keep stitutional mast, just as Odysseus in- Washington University Law School
themselves tethered to the mast, had sisted on being tied to his. Notwith- here in Washington.
acknowledged the need for them to standing how hard he might plead upon Judge Barrett went on to serve as a
focus on deciding cases based on the hearing the call of the sirens, he knew law professor for 15 years at her alma
law rather than on the basis of favor- that it was important for him to stay mater, Notre Dame University Law
able policy outcomes. on task, to stay focused on his job. School. In that period of time, she was
This was at once a somewhat revolu- Judge Amy Coney Barrett is an ex- awarded Notre Dame Law School’s Dis-
tionary idea at the time, and yet it ceptionally well qualified and talented tinguished Professor of the Year Award
wasn’t overwhelmingly controversial three separate times.
legal mind and jurist. She is bright.
at the time, given the fact that he was Most recently, in 2017, Judge Barrett
She is articulate. She is, as we have
confirmed by a vote of 98 to 0 to the was confirmed right here in the Senate
seen, unflappable, and she is willing to
Supreme Court of the United States. as a judge for the U.S. Court of Appeals
But over the next three decades or set her mind on that course—to uphold
and protect and defend that document for the Seventh Circuit. And during
so, while he served on the Supreme
that I believe was written by wise men this time on the Seventh Circuit Court
Court of the United States, Justice
raised up by Almighty God for that of Appeals, she authored 79—79—major-
Scalia revived—he restored—this con-
very purpose. ity opinions as a circuit court judge.
cept, this constitutional understanding
That document, insofar as we have Let’s review for a minute the judicial
of the proper role of government and of
followed it, has fostered the greatest philosophy and temperament of Judge
the proper role of each branch of the
development of the greatest civiliza- Barrett. I think that is highly impor-
Federal Government, including and es-
tion the world has ever known. I hope tant. While her education and profes-
pecially the judicial branch of the Fed-
that it ever will be that way because it sional experience are certainly note-
eral Government.
During his service on the Supreme is a strong and sure foundation upon worthy, it is her judicial philosophy
Court of the United States, he was able which we have built, but we need peo- and temperament that really set her
to mentor a number of law clerks, in- ple who believe in that foundation and nomination apart, I believe, from a lot
cluding Judge Amy Coney Barrett. are willing to tie themselves to it. of others.
Judge Barrett has explained that she Thank you. I am a firm believer that any nomi-
believes in the same line of reason. She The PRESIDING OFFICER. The Sen- nee to the Supreme Court must and
believes that judges and Justices need ator from Alabama. should demonstrate that he or she con-
to tether themselves to the mast of the Mr. SHELBY. Mr. President, during sistently and honorably applies the law
Constitution. They need to confine my time in the U.S. Senate, I have had, as it is written, impartially and equal-
their role to that that involves judg- right here, the privilege of being part ly to all individuals.
ing, and they need to not covet and, ul- of the confirmation process for each Judge Barrett has, time and again,
timately, try to overtake the role of Justice currently sitting on the Su- shown through her opinions and her
the elected lawmaker or the role of the preme Court—yes, each one. As such, statements that she will base her deci-
executive. One has the power of policy over the years I have had the oppor- sions on the law and the Constitution,
and the purse; the other, the power of tunity to meet with many of the Na- not on personal policy preferences, as
the sword. tion’s most talented jurists. At this it should be.
But as Alexander Hamilton explained time, I consider Judge Amy Coney Bar- She has also demonstrated a deep
in Federalist 78, there is a profound dif- rett to be the most qualified Supreme commitment to the Constitution and
ference between these powers. The leg- Court nominee I have encountered in its protections established by our
islative branch, he explained, has the my 34 years in the U.S. Senate. Founding Fathers.
power of will. It exercises will when it Let me explain. When considering potential nominees
decides what should and should not be Education—that is important. Judge to the Supreme Court, I find one’s judi-
within the law. Barrett, born and raised in the New Or- cial temperament to be vitally impor-
The power of the judiciary, by con- leans area, is the eldest of seven chil- tant.
trast, involves only the power of judg- dren, as has been spoken of here. And if The American Bar Association
ment, to decide what the law says. you take a look at her scholastic cre- Standing Committee on the Federal
That is the kind of jurist we need dentials, you know she was an excep- Judiciary, which consists of 19 lawyers
today. tional student. Judge Barrett grad- who conduct nonpartisan peer reviews
Now, make no mistake—this is not a uated magnum cum laude from Rhodes of Federal judicial nominees, relies on
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conflict that involves a desire to put on College in Memphis, TN, and was in- confident assessments of judges, law-
the Supreme Court of the United ducted into Phi Beta Kappa. She also yers, law professors and deans, commu-
States people who will wage political graduated summa cum laude from nity leaders, and others with knowl-
warfare within the judicial branch Notre Dame Law School, where she was edge of the nominee.
from the conservative side. It is not the executive editor of the Notre Dame I want to share what some of them
that. It is not anything close to that. Law Review and finished first in her have said about her. For Judge Barrett,
In fact, it is the opposite of that. class. the committee invited 944 people to
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6557
provide input into whether she is quali- which will serve our country well. woman gives birth to may lower risk.
fied for the Supreme Court. I would Today, I would like to speak on a dif- But, again, the primary risk of breast
like to share here in the Senate this ferent topic. cancer is being a woman. So every
afternoon just a few of the comments October is Breast Cancer Awareness woman should take the disease seri-
that the American Bar Association Month, and I rise to pay respect to ously and take steps to reduce her risk
committee provided. those who have lost their lives, to for developing breast cancer, increas-
They said about her, ‘‘whip smart, those who currently have disease, and ing the chances that it is detected if
highly productive, punctual and well- to those who work so hard to save she does develop it, and increasing the
prepared.’’ these patients. chance for a successful treatment if it
‘‘A brilliant writer and thinker.’’ A little personal—my wife, Dr. Laura does develop.
‘‘An intellectual giant with people Cassidy, is a retired breast cancer sur- There are steps you can take to re-
skills and engaging warmth.’’ geon, so it is an issue which has always duce the risk. Regular exercise can re-
‘‘The myth is real. She is a stag- been very near to our house. duce the risk by as much as 20 percent.
gering academic mind.’’ This year, it is estimated there will Breast feeding lowers the risk of breast
Judge Barrett ‘‘has demonstrated be almost 280,000 new cases of invasive cancer. Eating fruits and vegetables,
stellar judicial temperament in all set- breast cancer among women and about especially carotenoids, which are in
tings: She is often described as a ‘good 2,600 among men—often not realized carrots, as you might guess from
listener’ who makes time for people, that men are affected as well. About ‘‘carotenoids,’’ avoiding obesity, mod-
whether they are law students, law 49,000 women are estimated to contract eration in drinking alcohol—all can re-
clerks, colleagues or friends.’’ ductal carcinoma in situ, or so-called duce risk, and all should be practiced.
Of other note here, I have comments DCIS. About 43,000 Americans every Although a cancer diagnosis can be
from Randall Noel, the chair of the year will die from breast cancer. shocking, again, you can do things to
American Bar Association Standing Breast cancer, of course, is hardest detect it at an earlier stage and im-
Committee, and he said Judge Barrett on the patient, but the diagnosis has a prove the chance of a successful out-
‘‘is incredibly honest and forthright.’’ ripple effect through the family. I men- come. The American Cancer Society
Judge Barrett is an ‘‘exemplar of living tioned that my wife Laura is a retired advises women 40 to 44 to consult with
an integrated life in which her intel- breast cancer surgeon, and she would their doctor for regular clinical exams
lect, integrity and compassion weave tell me that when she would deliver the and on guidance as to when it is best to
the different threads of her life to- diagnosis to a patient, she would look have a mammogram. Women who are
gether seamlessly.’’ Think about all at the woman and say: ‘‘You have 45 to 54 should have an annual mammo-
this. He also says: ‘‘All of the experi- breast cancer.’’ The patient would be gram, and those older than 54 and in
enced, dedicated, and knowledgeable stoic, and her husband would cry. It good health should have a mammo-
sitting judges, legal scholars, and law- points to the fact that while cancer is gram every 2 years. But, again, check
yers who have worked with or against a terrible diagnosis for anyone, when with your doctor. All of these need to
Judge Barrett had high praise for her that ‘‘anyone’’ happens to be the cen- be customized for the patient.
intellect and [her] ability to commu- ter of a family, it radiates out from her Patients should also do self-exams
nicate clearly and effectively.’’ diagnosis to touch everybody in her for warning signs. This could be a
It is no surprise that the American immediate family, in the generation change in the look or feel of the breast
Bar Association found Barrett’s profes- above, and perhaps the generation or possible discharge from the nipple.
sional competence to have exceeded below. The presence of a lump, swelling, dis-
their high standards for Supreme Court We have been inspired to make gains coloration, and changes in size and
nominees. against cancer in general but against shape are common signs. If these are
As a country, we should seek, I be- breast cancer in particular for the cen- present, she should consult with her
lieve, to have judges who are thought- trality that women play in our society healthcare provider.
ful, fair-minded, and respectful. Judge and, of course, the deadliness of breast If someone doesn’t know how to do a
Barrett exemplifies all of these traits. cancer. breast self-exam, look on the internet.
In conclusion, I believe that the role So it takes courage to address the There are all kinds of resources that
of the Constitution of advice and con- disease if you have a diagnosis, and re- can help somebody know if they are
sent that we talk about here to the Su- siliency and determination just seem just not sure how to do it.
preme Court nominees to be one of my to develop in those who are so diag- Lastly, the treatments for breast
most important responsibilities here in nosed. cancer continue to improve. The sur-
the Senate. Judge Amy Coney Barrett The support of family and friends gical radiation therapy and medical
is as qualified for the U.S. Supreme means a lot more to the patient than therapies are improving every year. A
Court as any nominee I have encoun- the family will ever know, so I encour- diagnosis of breast cancer is not a
tered in 34 years here, and I have the age those who know somebody with death sentence; it is the beginning of a
utmost confidence that she will serve breast cancer in particular that I am treatment regimen which can cure.
the Court and this country with hon- speaking of but any form of cancer to Now, by the way, let me diverge just
esty and integrity. I look forward later reach out. Simply being there could a second from October being Breast
today to voting to confirm her nomina- make a tremendous difference in the Cancer Awareness Month to the con-
tion and encourage my colleagues to do fight to survive. temporary thing we are speaking of.
the same. Let me say, there is always hope. In My Democratic colleagues on the
I yield the floor. addition to early detection, there are floor have been imagining how a Jus-
I suggest the absence of a quorum. steps that people can take to reduce tice Amy Coney Barrett would rule on
The PRESIDING OFFICER. The their risk of contracting breast cancer. various topics—frankly, saying things
clerk will call the roll. Age is the primary risk—no, the pri- that are designed to cause fear, and
The senior assistant legislative clerk mary risk factor, my wife used to say they are doing it for political gain. But
proceeded to call the roll. when speaking to a crowd, the primary I think everybody on this side of the
Mr. CASSIDY. Mr. President, I ask risk factor for breast cancer is being a aisle—all Republicans have a commit-
unanimous consent that the order for woman, to emphasize that all women ment to make sure that all Americans
the quorum call be rescinded. have a risk for breast cancer. So don’t have healthcare and that they have
The PRESIDING OFFICER. Without just say that because I am not this or coverage for preexisting conditions.
SSpencer on DSK126QN23PROD with SENATE
objection, it is so ordered. that, I am not at risk. Recognize that I am a doctor who worked in the pub-
BREAST CANCER AWARENESS MONTH all women have a risk. lic hospital system for many years, but
Mr. CASSIDY. Mr. President, I had Age would be the next risk factor, some stories particularly stand out.
the privilege to speak on the nomina- being that the older you are the more This is a patient of my wife’s, and she
tion of Amy Coney Barrett a couple of likely that you can develop it. Women was probably about 45 and had three
days ago, for her qualifications and the who have children after age 35 may be children. Her husband had died or they
uniqueness she will bring to the Court, at higher risk. The more children a divorced—I forget which. They lived in
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S6558 CONGRESSIONAL RECORD — SENATE October 25, 2020
a very nice neighborhood in my home- NOMINATION OF AMY CONEY BARRETT the people and that the courts are the
town of Baton Rouge. She drove a nice Mr. President, this morning I come only true guardians—the only true
car. But when her husband left, how- to the floor to talk about the nomina- guardians—of the Constitution; that
ever he left, she had decisions to make, tion of Judge Amy Coney Barrett to be the Constitution is the highest man-
and she made the decision to go with- placed on the U.S. Supreme Court. made law, that any legislative act to
out health insurance so she could af- That will be the third Supreme Court the contrary must be held void by the
ford other things for her family. Justice I have had the honor and privi- court, since ‘‘the interpretation of the
At some point along the way, she felt lege of voting on this Congress and the laws is the proper and peculiar prov-
a lump in her breast, but without previous Congress, including Neil ince of the courts’’—that it was the
health insurance, she didn’t know what Gorsuch, Colorado’s own Neil Gorsuch. guardian of the Constitution.
to do. My wife was a breast cancer sur- We have heard a lot of discussion When Madison was talking about this
geon in private practice, but eventu- about the Federalist Papers and our in the First Congress, he introduced, of
ally someone connected this patient Founding Fathers and the intent and course, the amendments that became
with my wife. When she came to see the role of the Senate. The language of what we call the Bill of Rights today.
my wife, she had waited so long for the Constitution points out that the He said that the courts would ‘‘con-
evaluation that the cancer was growing President shall nominate and, with the sider themselves in a peculiar manner
out of her skin. It is called fungating, advice and consent of the Senate, place the guardians of those rights; they
like a mushroom grows out, except it Justices throughout our judiciary. would be an impenetrable bulwark
wasn’t a mushroom; it was cancer eat- We have heard in Federalist 69 by against every assumption of power in
ing through the skin. She had every- Alexander Hamilton, the President is the legislative or executive; they will
thing otherwise—great house, good car, to nominate and, with the advice and be naturally led to resist every en-
wonderful kids in parochial school. consent of the Senate, to appoint Am- croachment upon rights expressly stip-
It is that sort of example that touch- bassadors and other public ministers, ulated for in the Constitution by the
es us all, that lets us all realize that Justices of the Supreme Court. declaration of rights.’’
there is a personal reason why we all In Federalist 69, Hamilton goes on to That idea of this ‘‘guardian of the
care about everyone having access to compare the power of appointment Constitution’’ that the courts play is a
healthcare, why we all care about folks that the President has or the Chief Ex- hallmark of our democracy today. And
having coverage for preexisting condi- ecutive has to that of the King of Great whether or not a Justice has the sup-
tions. Britain, even comparing the power of port of a Member of this Chamber, I
I give congratulations to my col- appointment to the Governor of New don’t believe that anyone would deny
league sitting in the chair, the Senator York—Alexander Hamilton in Fed- that role that our courts must play,
from North Carolina, who brought a
eralist 69 did—and he stated that both and that is that role as guardian of the
bill up that would address preexisting
the King and the Governor of New York Constitution.
conditions. But on several occasions,
at that time had a greater power of ap- It is clear in the confirmation hear-
my Democratic colleagues have ob-
pointment than the President due to ing for Judge Barrett that some people
jected to your bill being passed that
the requirement of advice and consent believe the guardian of the Constitu-
would protect those with preexisting
and the ability of the Governor of New tion takes on a different hue, that
conditions.
So I will end this paragraph where I York to actually cast a vote on the there is more to that role than simply
began it. As I digress a little bit from matter himself. To quote Alexander looking at the law and making a deci-
Breast Cancer Awareness Month in Oc- Hamilton, ‘‘In the national govern- sion based on the law. As some called
tober, I will point out that my Demo- ment, if the Senate should be divided, it—I believe it was Justice Scalia and
cratic fellow Senators raising the issue no appointment could be made.’’ He perhaps paraphrased by Justice
of preexisting conditions in the setting pointed out that the President has a Gorsuch—a judge’s role is to call balls
of Amy Coney Barrett seem to be doing concurrent authority in appointing of- and strikes. I would add to that it is
it more for political gain because the fices and the President is not the sole not their role to call the pitch.
bill that my colleague from North author of these appointments. But what we saw during the Judici-
Carolina offered would have addressed It is clear in Alexander Hamilton’s ary Committee hearings, of course, was
the issue, but they opposed it uni- writings that this power was intended a viewpoint of some that a judge
formly, as if they want an issue to to be diluted; that it was to be bal- should be more than calling balls and
campaign on but not a solution to the anced amongst the Chambers; that the strikes. A judge should be, in effect, a
problem. judicial branch was viewed as the super legislator; that a judge should
So let me conclude. As October weakest of the three branches of gov- accomplish things that this Chamber,
comes to a close, let us reflect on ernment, not because it wasn’t equal in this Congress, has failed to do; that if
breast cancer victims not only in the power but because it didn’t have some there is a shortcoming in a policy, a
final days of Breast Cancer Awareness of the mechanisms that the other two judge or Justice would look the other
Month but throughout the year. Know branches do to protect it. way and fill in that policy or write
the risk factors, know the warning While the President makes that ap- that policy or proactively create that
signs, and screen regularly to catch pointment, it is this Chamber—the sole policy.
early. Doing so saves lives. It is impor- duty of this Chamber, in the Constitu- That is, again, going back to what we
tant for the person who may have tion, to agree or disagree with that have known throughout this country as
breast cancer. It is important for us nomination. the guardians of the Constitution. The
all. We saw that disagreement occur in guardians of the Constitution don’t
I yield the floor. 2016 when this Chamber did not give its make up policy. They don’t fill voids of
The PRESIDING OFFICER. The Sen- consent to a nomination. Later, Neil new policies that the legislators didn’t
ator from Colorado. Gorsuch—Colorado’s Neil Gorsuch— do or couldn’t do because they couldn’t
COLORADO WILDFIRES was confirmed to the Supreme Court. get it through their Chamber. So they
Mr. GARDNER. Mr. President, yes- And just a matter of a little more than decided they would count on a judge to
terday I came to the floor and spoke a month ago, we lost a trailblazing do it somewhere else. That is not the
about the forest fires in Colorado, and leader in Justice Ruth Bader Ginsburg, role of the courts. It is certainly not
luckily we have had a great deal of leaving open another seat on the Su- the role of a guardian of the Constitu-
preme Court that we are now asked to tion.
SSpencer on DSK126QN23PROD with SENATE
snow on some of the most problematic
conflagrations, and it has slowed the fill. A guardian of the Constitution is
fires down tremendously and has given Federalist 78, also written by Alex- somebody who looks at the law and
us a chance to fight back and make ander Hamilton, has been referenced makes decisions on the law and up-
some containment progress. So the many times on the floor this past year, holds and protects that will of the peo-
news on the fire front is generally a and particularly during this debate. He ple, the fundamental law of the people.
good-news story today, with more chal- wrote about the Constitution being And, of course, an activist judge—an
lenges to come down the road. fundamental law, that it is the will of activist Justice—would be reaching
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6559
into the law to fit their own personal We saw it done at the Budget Com- that are required for a Federal judge-
opinion or beliefs to craft something mittee with the nomination of Russ ship—that it provides reassurance to
that they believe is perhaps more in Vought to be the deputy director of the all of us that our ideals of liberty and
line with what they thought somebody Office of Management and Budget, justice are alive and well.
wanted and more in line with their own when a colleague of ours basically said He went on to talk about the most
opinions, instead of looking at that let- that because of his deeply held Chris- important quality that we could have
ter of the law. tian beliefs that he was not qualified to in a judge, and that was wisdom. That
I think it is important that we keep be a public servant in this country. wisdom is the quality that we look for
in mind that that is not the role of the I hope the American people are hear- most, and I think you could sense a
courts. If this Chamber can’t pass a ing what is happening in some of these great deal of wisdom in Amy Coney
policy or a law, if it can’t have its own debates, that Amy Coney Barrett is at- Barrett.
victory in carrying the day in an argu- tacked because of her faith. But it is He went on to say that we demand of
ment, it is not up to a judge or a Jus- not just limited or isolated to her. our judges a wisdom that knows no
tice to fill in the blank. They have to There are others who are more and time, has no prejudice, and wants no
rule and carry out the law. more accustomed, or who feel more and other reward. We entrust judges with
So that is a real key distinction that more empowered, emboldened to use a our ideals and freedom, and our futures
we saw during the Judiciary Com- person’s faith to deny them their vote depend on the way that judge defines
mittee debates—that role of policy- to a position in our government. That them. It requires the lonely courage of
maker that some wish Judge Barrett to is an unconstitutional test that some a patriot. And he went on to say: A
be versus that role of protector, that in this Chamber are starting to rely on, judge is a guardian of freedom for gen-
guardian of the Constitution, calling and I hope the American people will erations yet unborn.
balls and strikes. use this opportunity to see through it, So, I hope that my colleagues will
I look at any nominee for the courts, to reject it, and to get back to the val- support the nomination of Amy Coney
whether it is for district court or ap- ues of our Constitution and the intent Barrett. If you could take the politics
pellate court or the Supreme Court, of that language. out of the place, she would probably
through this lens: Are they going to I had a conversation with Judge Bar- have a unanimous vote. Unfortunately,
protect that Constitution? Are they rett. I had a chance to visit with her, the politicization of this nomination is
going to uphold the Constitution? Are and I talked about those three quali- going to prevent that. But I just urge
they going to fight and defend and be fications to uphold the Constitution. my colleagues to look past the politics,
the guardian of the Constitution? Are Will you fight to protect the Constitu- to look past the partisanship, and to
they going to protect and do the same tion? Will you protect the law? And vote for a truly qualified justice who is
with the law, outside of the Constitu- will you avoid being that activist legis- committed to the law and to the Con-
tion—the laws, the statutes that this lator? Will you avoid legislating from stitution, who is committed against ac-
body enacts and passes and are signed the bench? And I received her commit- tivism on the bench, and who will
into law by the President? Will that ment. That is exactly the kind of judge make sure that our country, for gen-
judge or Justice uphold and defend that that she will be, somebody to be that erations to come, has a protector of
law—not make that law, not change guardian of the Constitution, the pro- that guardian of the Constitution with
that law but uphold the law? And, of tector of law, and to call balls and the wisdom to get the job done.
course, there is that guardian of the I urge my colleagues to support Jus-
strikes.
Constitution role that they will play. I talked to her about the importance tice Amy Coney Barrett, and I am hon-
There is no doubt that Judge that I know that the vote that I cast ored, in just a few hours, to know that
Barrett’s qualifications are immense. for her is something that matters not I will be able to cast a vote in support
Her qualifications as a member of our of soon-to-be Justice Amy Coney Bar-
just next year or the next year but 10
great American community and some- rett.
or 20 years from now, as she is on that
body with a beautiful family is mind- I yield the floor.
Court and that that same view will re- The PRESIDING OFFICER (Mr.
boggling. Jaime and I have a challenge
main, and she assured me that it will GARDNER). The Senator from North
with our three kids, making sure they
because of the same reason that I want Carolina.
get to school on time and making sure
it to. That is the future of our kids and Mr. TILLIS. Mr. President, I thank
they are getting their homework done.
their kids, and she knows it means ev- my staff, Elliott—who is on the floor—
I can’t imagine seven children, while
erything to her children as well—to Brad, Cirilo, Seth, and Brad for all the
also carrying the schedule that their
protect our Nation’s laws and Constitu- work that they have done as we have
family does. But it is a testament to
the incredible power and the leadership tion and to avoid that attempt, that gone through the nomination process.
of their family and their dedication to desire, that pull at the heart to legis- I was reviewing my prepared remarks
being upstanding citizens of this Na- late. Even if you want to come out this morning, and then I reflected back
tion and giving back to this Nation with an opinion that is different than on a very important moment during
with this new pursuit. your own interpretation of the law, you the Judiciary Committee hearing
We know about that key intellect have to follow the law, and that is where Senator CORNYN asked—he said:
that has been shared with this country what she has assured me she has done. You can see, among all of us, we have
over the last several years in the Sev- She has assured me that there are mo- three-ring binders; we have staff behind
enth Circuit Court of Appeals. We ments in rulings that she has issued us; we have taken weeks to prepare;
know of her time as a law professor, that she would have preferred a dif- and you are about to go through some
and we have had the opportunity to ferent outcome personally, but that is 20 hours of questions, would you mind
look over a decade-plus worth of work. not what the law required, and that is sharing with us your notes? She looked
We know that she is a person of faith why she ruled the way that she did. at a blank notepad that was given to
in our community and has come under In talking to my colleagues on the her by the chairman. It had nothing on
incredible attacks because of that Judiciary Committee, they talked it.
faith. We know in this Chamber that about her understanding of the law, She came to that committee fully
our Constitution actually forbids the and in watching the hearings, you prepared to answer any question from
kinds of attacks that we have seen on could sense the deep commitment and the 22 members of the Judiciary Com-
her faith. Our Constitution makes it devotion to the law. There was a time mittee purely from what is up there,
several decades ago, when President
SSpencer on DSK126QN23PROD with SENATE
clear that there is no religious test. and she did an extraordinary job.
Our Constitution actually makes it Ronald Reagan went to introduce Jus- The reason she did an extraordinary
very clear that you cannot vote or tice Sandra Day O’Connor to a group of job is because she has had an extraor-
deny public service appointment to Federal judges at the White House, and dinary career, beginning as a student,
someone because of their religious be- Ronald Reagan in his speech talked then going to Rhodes College, where
liefs. about what it means to be a judge. He she was magna cum laude, then going
We have seen it done. We have seen it talked about the exacting standards of to Notre Dame School of Law, where
tried, especially over the last Congress. integrity and fairness and intellect she graduated first in her class.
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S6560 CONGRESSIONAL RECORD — SENATE October 25, 2020
She went on to be a professor at is going to be thoughtful, who is going the legal community, and after three
Notre Dame, and she was, multiple to be impartial, and who will always days of intense questioning by the Sen-
times, voted the Distinguished Pro- have a concern for both sides of the ar- ate Judiciary Committee, I can see
fessor by a broad spectrum of liberal gument, but at the end of the day, why she is so widely respected and why
and conservative students. know that they have a responsibility all of her former law school colleagues
She has also proven as a judge, with to judge objectively. at Notre Dame Law School support her
some 600 cases going through the Sev- I have had a couple of opportunities nomination.
enth Circuit, that she has an encyclo- to meet with Amy Coney Barrett. In I was especially impressed with her
pedic knowledge of that law. There the last meeting that I had with her in composure and impressive knowledge
were so many times when members on the Capitol, just a few steps away from of the law as she answered unfounded
the other side of the aisle would try to where we are right now, I brought two allegations about her judicial record
trip her up or ask her a question. She pocket Constitutions with me. I said: I from Democratic members of the com-
had no notes to refer to. She got the have two granddaughters—one will be 3 mittee, and shameful smears radical
specifics of the case right. next week; the other one is a little over liberals. The way she handled this
What she demonstrated throughout 2 months old. I said: Would you mind process I am more convinced than ever
the entire hearing process, which I at- signing these Constitutions for Sawyer that she clearly has the judicial tem-
tended, was that she interprets—she and Willow, my granddaughters? She perament required to serve as a Justice
does her job by doing two things: look- said: Certainly. She opened it up, she on the U.S. Supreme Court.
ing at the plain letter of the Constitu- signed her name and just said: ‘‘Dream Her answers made clear that she will
tion, understanding the limits that the big.’’ be unbiased and fair to every party
laws can have within the bounds of the When they get a little bit older—they that comes before her. She made clear
Constitution, and rule accordingly. are not old enough yet—I am going to that she will interpret the law as writ-
Now, our colleagues on the other side get them to understand the signifi- ten, without regard for her personal
of the aisle of the Judiciary Committee cance of that quick note from an in- views or feeling, and will not be a legis-
were constantly—it was clear to me, credible jurist, somebody who dreamed lator from the bench. Legislating is our
after weeks of attacking Amy Coney big and realized her American dream— job, not hers.
Barrett, not directly but through sur- a mother of seven school-aged children, She is truly a textualist in the mold
rogates, that they were trying to de- two adopted from Haiti, one with spe- of Justice Scalia.
monize this person before she ever cial needs. Her commitment to applying the law
came before the committee, like they She is going to be the first Supreme as written, and not legislating from the
did with Justice Kavanaugh. But each Court Justice female on the Supreme Bench, should be the standard for every
and every time they asked her a ques- Court with school-age children. She nominee. I am confident that with
tion, she brought them back to the has seven of them. She is able to man- Judge Barrett on the Court, Americans
boundaries of the Constitution and the age the stresses and the challenges of can rest easy knowing their religious
question of law before, in her case, the being a working mom while she served liberty and second amendment rights
circuit court, and there was just no with distinction on the Seventh Circuit are secure.
way to trip her up. and while her husband worked as well. Soon, I will cast my vote to confirm
So then what happened? Then they She has realized her American dream. I Judge Barrett, as Justice Barrett. But
started talking about how you are believe that she is going to make sure first, I must also address the dangerous
going to go to the Supreme Court, and that everybody else has the freedoms rhetoric from my Democratic col-
you are going to overturn the Afford- to do the same thing. leagues.
able Care Act. They asked her ques- I think Judge Amy Coney Barrett is First, they claim this nomination is
tions that they knew she couldn’t an- going to go down in history as one of somehow illegitimate. That is false. If
swer. Justice Ginsburg, pursuant to the the great Justices on the U.S. Supreme the media wasn’t so biased this claim
Ginsburg rule—they had no intention— Court. would be dismissed outright. As Jus-
no responsible judge would go before It is a shame, as the Presiding Officer tice Ginsburg said, a President is elect-
the Judiciary Committee and tell you just said in his comments a moment ed for 4 years, not 3. President Trump
how they are going to rule on a future ago, that this is even a divided deci- fulfilled the duty he owes to the mil-
case. It is actually a violation of their sion. In a less political time than we lions of Americans who elected him in
code of conduct. find ourselves today, I suspect that she 2016.
So she told them in so many in- would have the unanimous support of Similarly, voters elected a Repub-
stances—and what was interesting with this body, much the same way that lican majority to the U.S. Senate.
some of the members on the other side Justice Ginsburg did when she came Voters expanded that majority in
of the aisle was, on the one hand, they before the Senate. 2018, and now we are fulfilling the duty
would say: You cannot overturn this But, today, I am looking forward to we owe to those voters by voting on
precedent or that precedent, and in the voting for Judge Amy Coney Barrett. I Judge Barrett’s nomination.
same breath, they would say: But we am looking forward to watching her My Democratic colleagues are also
want to make sure you overturn this build on what is already a very strong threatening to pack the Court if they
precedent or that precedent. And every legacy. I am looking forward to mak- take control of the Senate and White
time, Amy Coney Barrett was calm and ing sure that we continue to have a House. Just as Democrats misrepre-
composed and demonstrated to every- Court that is independent, impartial, sented Judge Barrett’s record, they are
body in that committee that she is focuses on protecting all of our con- misrepresenting what it means to pack
going to be objective; she is going to be stitutional rights and freedoms. And I the Court.
fair; and she is going to stay within the know, without a doubt, Amy Coney Packing the Court means adding
lines of the Constitution and the mat- Barrett is going to be one of those more seats to the Supreme Court and
ter of law that is before her. stewards in the U.S. Supreme Court. then immediately nominating and fill-
Now, I think that it is very impor- I rise today to express my strong sup- ing these new seats with radical liberal
tant to have a judge like that on the port for the confirmation of our next activists. They would add seats until
Supreme Court. Our religious freedoms Supreme Court Justice, Judge Amy there is an activist liberal majority on
are at stake. Our Second Amendment Coney Barrett. Over the last few the court. And the reason is simple:
rights are at stake. We do have people they want the Court to legislate from
SSpencer on DSK126QN23PROD with SENATE
weeks, I have heard from thousands of
who want activist judges. I don’t want North Carolinians asking me to vote to the Bench and impose their socialist
an activist judge, period—not for a con- confirm Judge Barrett to the Supreme agenda on the country through fiat, in-
servative cause or a liberal cause. I Court. stead of working through the Demo-
want a judge whom I know that if I Judge Barrett is an incredibly quali- cratic process.
someday go before the Supreme fied nominee. This would wholly undermine and
Court—or any American—that I have a She is a top-notch legal scholar and delegitimize the Court. Justice Gins-
judge there who is going to be fair, who jurist. She is widely respected within burg agreed. She said that ‘‘nine is a
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6561
good number’’ and that packing the hearing, or allow a vote on him for 293 confirm a nominee at this stage of the
Court is a bad idea. days. process. By the way, Senator GRAHAM
Democrats need to be honest with In 2016, the Presidential election was reaffirmed that in 2018.
the American people. The American nearly 9 months away. Four years ago, In the case of Justice Ginsburg’s
people deserve to know where they our Republican colleagues said: 9 death and vacancy in 2020, we are about
stand on Court packing, and they de- months was not time enough. Leave it 40 days away from a general election—
serve to know what liberal activist up to the voters. We will do this wheth- not 9 months. Mail-in voting in record
judges Joe Biden would nominate if he er it is a Democrat or Republican in numbers has already begun in several
were President. the White House. States. And, of course, early voting has
Personally, I am thankful Judge Bar- The Republican leader, MITCH started in many States also. We are
rett was willing to answer the call to MCCONNELL, said: proceeding to a final vote on this nomi-
serve our country. Just like Justice Mr. President, the next Justice could fun- nee for a lifetime appointment just
Ginsburg was an inspiration to so damentally alter the direction of the Su- days before election day. Americans,
many, Justice Barrett will be a role preme Court and have a profound impact on millions of Americans, have already
model for young women, like my two our country, so of course—of course the cast their ballots.
granddaughters, who may one day as- American people should have a say in the Once again, within hours of Justice
pire to go to law school or serve their Court’s direction. . . . The American people
may well elect a President who decides to
Ginsburg’s death, Leader MCCONNELL
country. nominate Judge Garland for Senate consider- unilaterally decreed that the Senate
I look forward to voting soon to con- ation. The next President may also nominate would fill the vacancy before the elec-
firm her, and I would ask all my col- somebody very different. Either way, our tion. Leader MCCONNELL said that
leagues to join me and do the same. view is this: Give the people a voice in filling ‘‘President Trump’s nominee will re-
Thank you. I yield back. this vacancy. . . . The American people are ceive a vote on the floor of the Sen-
The PRESIDING OFFICER. The Sen- perfectly capable of having their say on this ate.’’
ator from Maryland. issue, so [let’s give] them a voice. Let’s let So I implore my Republican col-
Mr. CARDIN. Mr. President, I rise in the American people decide. . . . The Amer-
ican people should have a voice in selection
leagues to stop this blatant hypocrisy
opposition to the pending confirmation now. Let’s follow the McConnell rule
of the next Supreme Court Justice. There-
vote of Amy Coney Barrett to be an As- and let the American people pick the
fore, this vacancy should not be filled until
sociate Justice of the Supreme Court we have a new President. next President and Senate so they can
to fill the vacancy created by the death weigh in on this decision, just as Sen-
That was the Republican leader.
of Justice Ruth Bader Ginsburg, whom ator MCCONNELL argued in 2016, when
Several Judiciary Committee mem-
we lost in September of this year. Jus- President Obama nominated Merrick
bers made similar statements after the
tice Ginsburg was a champion of wom- Garland for Justice Scalia’s seat.
death of Justice Scalia. Senators
en’s rights and civil rights, and she is Let the Senate honor Justice Gins-
GRASSLEY, GRAHAM, CORNYN, LEE, and
going to be sorely missed on that burg’s legacy by continuing to fight for
CRUZ signed a letter to Leader MCCON-
Court. the rights she fought for her entire ca-
NELL, which read, in part as follows:
Article II, section 2 of the Constitu- reer, both as a litigator, a circuit
tion provides that the ‘‘President shall [W]e are in the midst of a great national
debate over the course our country will take judge, and, finally, as a Supreme Court
nominate, and by and with the Advice Justice. Let us honor Justice Gins-
in the coming years. The Presidential elec-
and Consent of the Senate, shall ap- tion is well underway. Americans have al- burg’s dying wish: ‘‘My most fervent
point . . . Judges of the Supreme ready begun to cast their votes. As we mourn wish is that I will not be replaced until
Court.’’ One of a Senator’s most sol- the tragic loss of Justice . . . Scalia and cel- a new President is installed.’’
emn responsibility is to evaluate the ebrate his life’s work, the American people President Trump’s agenda is quite
nominee’s qualifications as well as the are presented with an exceedingly rare op-
clear when it comes to a tragedy for
process the Senate uses to provide portunity to decide, in a very real and con-
crete way, the direction the Court will take the Supreme Court. President Trump
their advice and consent for a lifetime has repeatedly said he would appoint
over the next generation.
appointment to our highest Court. I be- Justices in the mold of Justice Scalia.
lieve, on both substance and process, The letter from my Republican col-
As President Trump said on the cam-
this nomination should be rejected. leagues concluded:
paign trail, when asked what kind of
First, on process. Let’s talk about We believe The People should have the op-
Justice he would nominate, ‘‘We’re
fairness. Let’s talk about the integrity portunity. . . . Because our decision is based
on constitutional principle and born of a ne- going to have a very strong test. We
of the Senate. Let’s talk about living want . . . strong conservative people
cessity to protect the will of the American
up to your own words. Let’s talk about that are extremely smart. Scalia is a
people, this Committee will not hold hear-
using the same rules for Republicans ings on any Supreme Court nominee until terrific judge. Clarence Thomas, you
that you use for Democrats. after our next President is sworn in on Janu- look at him, he’s been a stalwart, he’s
Let me remind my colleagues what ary 20, 2017. been terrific, and we have others.’’
happened in 2016 in the Senate during Current Judiciary Committee Chair- President Trump also talked about
President Obama’s final year of a term man GRAHAM explicitly addressed this the type of Justices he did not like
in office in a Presidential election point in 2016. In March 2016, Senator when on the campaign trail. He said:
year. Justice Scalia died in February of GRAHAM, then a member of the Judici- I’m disappointed in Roberts because he
2016. Within just a few hours after the ary Committee, said: gave us Obamacare. He had two chances to
death of Justice Scalia, Leader MCCON- end Obamacare, he should have ended it by
I want you to use my words against me. If
NELL unilaterally announced that the every single measurement and he didn’t do
there is a Republican President in 2016 and a
Senate would not consider a replace- vacancy occurs in the last year of the first it, so that was a disappointing one. Every-
ment for Justice Scalia until after the term, you can say, LINDSEY GRAHAM said let body thought he was good, he was a Bush ap-
November 2016 Presidential election, the next president, whoever it might be, pointee, he was somebody that should have,
which established a yearlong vacant make that nomination. You can use my frankly, ended Obamacare, and he didn’t.
Supreme Court seat. words against me, and you’d be absolutely When President Trump announced
The Republican leader’s action, right. Judge Amy Coney Barrett’s nomina-
backed by his caucus, set a very clear We are setting precedent here tion to the Supreme Court, Barrett
precedent: Under no circumstances do today—Republicans are—that in the herself highlighted the ideological par-
Senate Republicans consider a Su- last year of a Presidential term, you allels between her and her mentor, Jus-
SSpencer on DSK126QN23PROD with SENATE
preme Court nominee in a Presidential are not going to fill a vacancy on the tice Scalia. She said about Justice
election year. Supreme Court based on what we are Scalia: ‘‘His judicial philosophy is
It did not matter that in March 2016, doing here today. That is going to be mine, too.’’
President Obama appointed Merrick the new rule. Judge Barrett was a Supreme Court
Garland, a respected DC Circuit judge, I have repeatedly stated that the clerk for Justice Scalia. Justice Scalia
with bipartisan support. They would election cycle is well underway, and was one of the most staunchly conserv-
not meet with Judge Garland, hold a the precedent of the Senate is not to ative members of the Supreme Court.
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S6562 CONGRESSIONAL RECORD — SENATE October 25, 2020
Justice Scalia voted to strike down edly stated that he would appoint would try to roll back the clock on
key parts of the Affordable Care Act. judges who would overturn the ACA those rights as a Supreme Court Jus-
He frequently called for overturning and has consistently done so in terms tice.
Roe v. Wade. He opposed marriage of his appellate and trial court nomina- In a 2013 speech she entitled ‘‘Roe at
equality. He voted to gut the protec- tions. Judge Barrett appears to meet 40,’’ Judge Barrett explained that ‘‘Re-
tions for voting rights in the Shelby President Trump’s litmus test. publicans are heavily invested in get-
case. He voted to gut our campaign fi- I mention these cases to underscore ting judges who will overturn Roe.’’
nance laws in the Citizens United case. the importance of the Supreme Court She wrote that the ‘‘framework of Roe
He made it harder for workers dis- Justice in the lives of all Americans. has essentially permitted abortion on
criminated against by their employers So much is at stake in the filling of demand, and Roe recognizes no state
to seek justice in court and further Justice Ginsburg’s vacancy. Your interest in the life of a fetus.’’ In a 2003
stacked the deck in favor of wealthy healthcare is literally on the line. article, Judge Barrett suggested that
business owners and corporations over The Affordable Care Act that Presi- Roe v. Wade was ‘‘an erroneous deci-
working-class individuals. dent Trump has tried to repeal and sion.’’
By nominating Judge Barrett, Presi- that Republicans tried to repeal in this Recall that President Trump has al-
dent Trump is attempting to bring Jus- body but have failed, they are now ready said he would only nominate jus-
tice Scalia’s judicial philosophy back going to take it to the Supreme Court. tices who would ‘‘automatically’’ overturn
to the mainstream in our Nation’s A hearing is scheduled this November Roe v. Wade. Judge Barrett appears to have
highest Court. Placing Judge Barrett 10 in the case of California v. Texas, met this litmus test as well.
on the Supreme Court puts at risk so just 1 week after the general election. Indeed, Judge Barrett may hold an
many of the rights and protections This is a real risk for tens of millions even more extreme record when it
Americans have fought for and gained. of Americans who depend on the law comes to reproductive rights than I
So let’s look at how the law could for their healthcare coverage and other have already stated. She refused to say
change if Judge Barrett is confirmed. benefits. Twenty million Americans at her confirmation hearing whether
That is the second reason to oppose could lose their healthcare, and people Griswold v. Connecticut was rightly de-
this nomination—her judicial philos- with preexisting conditions could lose cided, in which the Court held that the
ophy—in addition to the flawed proc- those protections. That is 133 million Constitution guarantees a right to
ess. Americans, during the coronavirus marital privacy and that a law crim-
You cannot always predict how a Su- pandemic. That is what is at stake. inalizing the use of contraception vio-
preme Court Justice will act after her We are talking about pregnancy, can- lated that right.
confirmation, but Judge Barrett has cer, diabetes, high blood pressure, be- Now, note that Justices Roberts,
given us clear views on her philosophy. havioral health disorders, high choles- Alito, Kagan, and Kavanaugh all dis-
So many American rights are on the terol, asthma, chronic lung disease, cussed the Griswold case at their con-
line, but let me start by talking about heart disease, and numerous others firmation hearing. Yet Judge Barrett
the Affordable Care Act. that have been held to be preexisting said that Griswold’s correctness ‘‘is
Judge Barrett has made her views conditions before the protection in the something I cannot opine on.’’
quite clear about the Affordable Care Affordable Care Act. And you can now
Act. In a 2017 law review article, she Judge Barrett’s views on immigra-
add COVID to those preexisting condi- tion also raise concerns. Our most vul-
concluded that the ACA is unconstitu- tions for 8 million Americans and
tional. She wrote: ‘‘Chief Justice Rob- nerable individuals are at risk as well
counting. That protection is in the Af- with the naming of a new Justice to
erts pushed the Affordable Care Act be- fordable Care Act. This is on the line
yond its plausible meaning to save the the Supreme Court. Let me talk about
before the Supreme Court this Novem- one specific group.
statute.’’ ber.
Judge Barrett argued that Chief Jus- If the Affordable Care Act is struck On June 18 of this year, in a 5–4 deci-
tice Roberts’ approach to NFIB v. down, insurers could bring back annual sion written by Chief Justice Roberts
Sebelius, which was joined by Justice lifetime limits on coverage. Adults and joined by Justice Ginsburg, the Su-
Ginsburg, ‘‘express[ed] a commitment covered by Medicare expansion would preme Court held that the Department
to judicial restraint by creatively in- lose vital health services. Young people of Homeland Security violated law
terpreting ostensibly clear statutory would be kicked off of their parents’ in- when it rescinded the Deferred Action
language’’ and that ‘‘its approach is at surance. And insurers could sell for Childhood Arrival, or DACA, Pro-
odds with the statutory textualism to skimpy plans that don’t even cover es- gram.
which most originalists subscribe.’’ sential health benefits like prescrip- There are approximately 643,000
In another Supreme Court case, King tion drugs, emergency room visits, DACA recipients—these are our Dream-
v. Burwell, the Supreme Court, in the mental health, substance use, and ma- ers—in the United States, and approxi-
6–3 decision joined by Justice Ginsburg, ternity care. mately 29,000 are healthcare workers
affirmed health insurance tax credits The Affordable Care Act increased and essential workers who are serving
for millions of families. Nearly 9 mil- access to care for millions who were us during the COVID–19 pandemic, who
lion Americans depend on these tax previously uninsured or underinsured. have saved lives and eased suffering.
credits for coverage. Through Medicaid expansion, 13 mil- But for the 5–4 decision, those indi-
Barrett criticized the decision, stat- lion low-income Americans now have viduals’ lives could have been totally
ing: dependable, comprehensive health cov- disrupted, and they could have been or-
I think the dissent has the better of the erage. In Maryland alone, over 1.3 mil- dered to leave our country. These are
legal arguments. lion low-income individuals depend on individuals who know no other home
Elsewhere, she wrote: Medicaid, including 512,000 low-income but the United States of America. They
Justice Scalia, criticizing the majority’s children, 107,000 seniors, and 152,000 in- are our neighbors and friends. The next
construction of the Affordable Care Act in dividuals with disabilities. That is just Justice could very well determine the
NFIB v. Sebelius and King v. Burwell, pro- in Maryland. fate of the Dreamers.
tested that the statute known as ObamaCare Unfortunately, Judge Barrett already
We must protect the Medicaid expan-
should be renamed ‘‘SCOTUScare’’ in honor
of the Court’s willingness to ‘‘rewrite’’ the sion population and other uninsured has demonstrated a judicial track
statute in order to keep it afloat. . . . By and underinsured populations from the record which is hostile to immigration.
Trump administration’s effort to elimi- In Cook County v. Wolf, Judge Barrett
SSpencer on DSK126QN23PROD with SENATE
this measure, it is illegitimate for the Court
to distort either the Constitution or a stat- nate their access to affordable care. It authored the dissenting opinion from a
ute to achieve what it deems a preferable re- is at risk. ruling that struck down the Trump ad-
sult. I have similar concerns about wom- ministration’s cruel ‘‘public charge’’
It is clear to me—and it should be en’s healthcare issues. Judge Barrett rule. The rule basically penalized im-
clear to all of us—that Judge Barrett has already gone on record in opposi- migrants for exercising their legal
has a clear bias against the Affordable tion to reproductive rights and free- rights to use benefits that Congress has
Care Act. President Trump has repeat- doms. So it is clear to me that she made available.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6563
And in the case of Yafai v. Pompeo, American workers from discrimination the Court in Heller that ‘‘nothing in
Judge Barrett wrote the majority opin- based on race or age. our opinion should be taken to cast
ion and held that U.S. consular offi- In EEOC v. AutoZone, Judge Barrett doubt on longstanding prohibitions on
cials have virtually unchecked author- voted against rehearing a panel deci- the possession of firearms by felons.’’
ity to deny visa applications to those sion that ruled against an African- Yet Judge Barrett dissented in Kanter
seeking entrance to the United States. American employee whose company in- and concluded that the bar on gun pos-
It was pointed out in the minority voluntarily transferred him to another session should apply only to violent
opinion that the majority has created a store based on race. The EEOC had felons. She argued that the majority
constant ‘‘dangerous abdication of ju- charged that AutoZone had an unlaw- was treating the Second Amendment
dicial responsibility’’ that would lead ful practice of segregating employees like a second-class right. She went on
immigration officials to deny visas on by race when it assigned African-Amer- to note that the government could
the basis of ‘‘impermissible bias.’’ ican employees to stores in African- deny nonviolent felons the right to
So let me turn to the rights of the American neighborhoods and Latino vote but not the right to bear arms be-
LGBTQ community. In the Obergefell employees to Latino neighborhoods. cause ‘‘history does show that felons
v. Hodges case joined by Justice Gins- The dissent argued that the court can be disqualified from exercising cer-
burg, the Supreme Court held that the upheld a ‘‘separate but equal’’ arrange- tain rights—like the rights to vote and
Constitution guarantees same-sex cou- ment that is contrary to the Supreme serve on juries—because these rights
ples the right to marry, in a 5–4 deci- Court’s decision in Brown v. Board of belonged only to virtuous citizens.’’ So
sion. Unfortunately, Judge Barrett has Education when the court interpreted ultimately Judge Barrett bizarrely
demonstrated hostility to marriage the equal protection clause of the 14th seems to treat voting rights as a sec-
equality and to LGBTQ rights more Amendment to find that separate fa- ond-class right compared to gun owner-
generally. In speeches, Judge Barrett cilities can’t really be equal. ship. That is pretty extreme.
seemed to be critical of the Supreme The dissent wrote: I have always expected that in Amer-
This case presents a straightforward ques- ica, we could move forward in pro-
Court’s decisions in Obergefell, indi-
tion under Title VII of the Civil Rights Act tecting individual rights under our
cating that she was worried about the
of 1964: Does a business’s policy of segre- Constitution; that in each Congress, in
‘‘who decides’’ question when it comes
gating employees and intentionally assign- each session, the Supreme Court would
to the courts or legislatures deciding ing members of different races to different advance those rights for individual pro-
who can marry and start a new family. stores ‘‘tend to deprive any individual of em- tection under the Constitution of the
But fundamental rights under the ployment opportunities’’ on the basis of United States. The filling of this Su-
Constitution should not be up for de- race? The panel answered this question ‘‘not
necessarily.’’ I cannot agree with that con-
preme Court vacancy could very well
bate. Every American should have the
clusion. reverse a trend of protecting rights and
same rights, benefits, and obligations
deny many in our community their
of marriage regardless of their gender Once again, Judge Barrett was on the
rights.
or who they love. Notably, Judge Bar- side of denying protection against ra- The Leadership Conference on Civil
rett referred to sexual orientation as cial discrimination. and Human Rights has sent a letter to
‘‘sexual preference’’ in her testimony, In Kleber v. Care Fusion Corporation,
the Senate, signed by a diverse group
implying that sexual orientation is a Judge Barrett sided with the majority of 150 organizations, in opposition to
choice instead of an immutable char- that the Age Discrimination in Em- the confirmation of Judge Barrett. The
acteristic. ployment Act only protects current letter urges the Senate to ‘‘oppose the
As Justice Kennedy concluded in employees from discrimination due to confirmation of Judge Barrett and
Obergefell: disparate impact and not outside job allow the president duly chosen in the
No union is more profound than marriage, applicants—a very narrow view. 2020 general election to fill the existing
for it embodies the highest ideals of love, fi- Then there are Judge Barrett’s views Supreme Court vacancy.’’
delity, devotion, sacrifice, and family. In on gun safety, which I find deeply con- Groups opposing the nomination in-
forming a marital union, two people become cerning. Judge Barrett’s record strong- clude the Alliance for Justice, Human
something greater than once they were. As ly suggests that she would strike down
some of the petitioners in these cases dem-
Rights Campaign, NAACP, NARAL
commonsense gun safety laws, even as Pro-Choice Maryland, National Council
onstrate, marriage embodies a love that may Congress and the States continue to
endure even past death. It would misunder- of Jewish Women, National Employ-
stand these men and women to say they dis-
try to combat gun violence, which kills ment Law Project, National Organiza-
respect the idea of marriage. Their plea is nearly 40,000 Americans every year. tion for Women, People for the Amer-
that they do respect it, respect it so deeply According to the Center for Amer- ican Way, SEIU, United We Dream, and
that they seek to find its fulfillment for ican Progress, from 2008 to 2017, over the Violence Policy Center. The list
themselves. Their hope is not to be con- 6,200 people were killed with guns in goes on and on.
demned to live in loneliness, excluded from Maryland, and from 2014 through 2018, On October 15, 2020, the Leadership
one of civilization’s oldest institutions. They there were 42 mass shootings in Mary- Conference reiterated its opposition to
ask for equal dignity in the eyes of the law. land, killing a total of 45 people and in-
The Constitution grants them that right. the Barrett nomination with a letter
juring 156. That is just in one State. from over 400 State and local officials
I would hope that we agree with Jus- That is just in one State. The next asking the Senate not to confirm a new
tice Ginsburg, but I am afraid that is a Supreme Court Justice could hold the Justice until after Inauguration Day.
view that is not shared by Judge Bar- decisive vote should Congress or the The Leadership Conference ends their
rett. Judge Barrett was critical, as States adopt commonsense gun safety letter by saying: ‘‘It is shameful that,
well, of the extension of civil rights laws to curb gun violence, such as re- instead, the U.S. Senate is rushing
laws to protect transgender people, quiring universal background checks, through a nominee who is likely to
saying at an event that ‘‘it does seem banning assault weapons, or banning eviscerate the Affordable Care Act and
to strain the text of the statute to say high-capacity magazine clips. deprive millions of people of access to
that Title IX demands it.’’ However, In Kanter v. Barr, the Seventh Cir- health care, destroy reproductive free-
the Supreme Court held otherwise in cuit held that a law barring felons from dom by gutting Roe v. Wade, and sup-
Bostock v. Clayton County, where Jus- possessing a firearm did not violate the press our right to vote, making it hard-
tice Gorsuch, joined by Justice Gins- Second Amendment. The Supreme er for Americans to have their voices
burg, held for the Court in a 6–3 deci- Court previously held in the District of heard in our democracy.’’
sion that the prohibition of employ- Columbia v. Heller that the Second
SSpencer on DSK126QN23PROD with SENATE
I am gravely concerned that the
ment discrimination on the basis of Amendment conveyed an individual rushed and sham process the Senate is
‘‘sex’’ should be read to include gender right to bear arms, separate from the using here will undermine the public’s
identity and sexual orientation. right of the militia to do so. faith in the independence and legit-
Judge Barrett has issued several dis- But even Justice Scalia—Judge imacy of the Supreme Court as a fair
turbing findings that indicate a Barrett’s mentor and President and impartial body.
cramped and narrowed view of civil Trump’s role model for an ideal Jus- A group of former Federal judges re-
rights laws designated to protect tice—wrote in his majority opinion for cently wrote to the Senate:
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S6564 CONGRESSIONAL RECORD — SENATE October 25, 2020
Our citizenry is sharply polarized—a fore- had been laid off through no fault of had heard about anything resembling
boding sign for the health of any democracy. their own. Donald Trump’s views on this, she said:
The judicial confirmation process has in- Another example is unfolding right ‘‘I don’t recall hearing about or seeing
creasingly become dangerously politicized.
before our eyes. Until a few weeks ago, such statements . . . that wasn’t some-
Injecting a Supreme Court confirmation
fight into this noxious mix will ultimately Leader MCCONNELL and Chairman GRA- thing that I heard or saw directly by
change and diminish the public’s faith in HAM would have told you it was essen- reading it myself.’’ She also said she
this vital institution. tially the 11th commandment, carved couldn’t recall whether Senators
Public opinion polling does indeed in stone: No election-year Supreme brought it up during their conversa-
show that a supermajority of Ameri- Court appointments. Again, Repub- tions with her.
cans want the winner of the upcoming licans went back on their word. I say to the Senate today, does any-
election to fill the current Supreme If the cure to COVID–19 was partisan- body think that was an authentic an-
Court vacancy. ship and rule-breaking, then Senate swer? Everybody who occasionally
I again reference the Leadership Con- Republicans might be onto something looks at the news knows that Donald
ference letter opposing Judge Barrett, with their low stunt on the high Court, Trump wants to tear down the Afford-
which states ‘‘Judge Barrett’s extreme but it is not. able Care Act. He famously promised
record on the U.S. Court of Appeals for The American people have a much the far right that his judges would take
the Seventh Circuit, along with her more sensitive radar for unfairness all the far-right positions. He routinely
ideologically driven writings and than Senate Republicans. When I was attacks Republican-appointed Justices
speeches, demonstrate that she is in- home during the 2-week period here re- for opinions he dislikes.
capable of rendering equal justice cently, I went to counties that Donald The ‘‘never heard it, never saw it’’
under the law.’’ Trump won decisively and counties argument advanced by Judge Barrett,
After reviewing Judge Barrett’s full that Hillary Clinton won in 2016. Folks that she doesn’t follow the news, ap-
record, statements, and committee tes- I talked to in both communities, in parently, at all; didn’t talk with any-
timony, I am not convinced that Judge both areas, said the person who wins body about the healthcare debate that
Barrett would administer impartial the 2020 election should be the one who has been front and center in American
justice and guarantee equal protection chooses the Court nominee. In this politics for a long, long time, is hard to
of the law and equal justice of the law; case, the American people know what mesh. I understate this with reality.
so therefore I must vote against her is at stake for them because they see You don’t reach the heights of the aca-
nomination. She is certainly not a the consequences of rule-breaking. demic and legal profession by ignoring
mainstream jurist. If Judge Barrett is confirmed and the news of the day for years and years
Let’s follow the McConnell rule and does what Donald Trump has repeat- and years on end.
let the American people pick the next edly said he requires of a nominee— If you watch Judge Barrett’s hearing,
President and Senate so that they can help him throw out the Affordable Care it is clear what this ‘‘never heard it,
weigh in on the decision, just as Sen- Act—here is what will happen: Tens of never saw it’’ argument is all about. It
ator MCCONNELL argued in 2016 with millions of Americans will suddenly is about denying that there is any real
President Obama’s nominee of Merrick lose their healthcare during a pan- threat to the Affordable Care Act to
Garland for Justice Scalia’s seat. Let demic. COVID–19 will become a pre- protections for preexisting conditions,
the Senate honor Justice Ginsburg’s existing condition used by insurance to cheaper medicines for seniors.
legacy by continuing to fight for the companies to once again discriminate Judge Barrett certainly put on a hall
rights she fought for her entire career, against consumers. It will take Amer- of fame performance in ducking and
both as litigator, circuit judge, and fi- ica back to the days when healthcare dodging and weaving her way out of
nally as a Supreme Court Justice. Let’s was for the healthy and wealthy. even the simple routine questions
honor Justice Ginsburg’s dying words: Even the nominee herself shows this about existing law, stuff that is guar-
‘‘My most fervent wish is that I will process on judicial nominees is so dys- anteed to come up in every nomination
not be replaced until a new president is functional and so broken, it doesn’t hearing.
installed.’’ come close to being on the level. Amy For example—this one just stunned
With that, I yield the floor. Coney Barrett may have established me when I heard it. She wouldn’t say
The PRESIDING OFFICER. The Sen- herself as the Babe Ruth of saying whether Griswold v. Connecticut was
ator from Oregon. pretty much nothing. decided correctly. That was the land-
Mr. WYDEN. Mr. President, every- Now, everybody understands that mark 1960s case that affirmed the right
thing that has happened since the un- nominees typically clam up during of married women to have access to
timely passing of the legendary Justice these hearings. I don’t expect Judge contraception. It is one of the key Su-
Ginsburg is a clear reminder that much Barrett to disavow Trump healthcare preme Court decisions that gets di-
of what goes on in Washington, DC, is policy. I wouldn’t expect to agree with rectly to the right of privacy and to
simply not on the level. all of a Trump nominee’s positions. But the rights of women to make decisions
Right now, our country is hurting— unfortunately for our country, this about their own bodies and their own
mass death, mass unemployment, mass hearing was a new low. lives. The decision in Roe v. Wade fol-
hunger, and suffering among children. For example, one of my colleagues lows directly from the decision in Gris-
The two sides in Congress ought to be asked whether Judge Barrett was wold.
addressing those challenges together. aware that the President had com- Even Justices Thomas, Roberts,
Now more than ever, while so many mitted to nominating judges who Alito, and Kavanaugh—not exactly the
are so fearful about tomorrow, the would throw out the Affordable Care leftwing of the American judicial sys-
rules the Senate goes by and the agree- Act—a statement that was part of news tems—said Griswold was decided cor-
ments the Senate makes need to stand accounts all across the country again rectly. Judge Barrett refused. That
for something. That is how I felt when and again and again and again. matters because there is a far-right
I negotiated for the $600-per-week un- Back in 2015, Donald Trump said: ‘‘If campaign working to undo both of
employment insurance boost in March. I win the presidency, my judicial ap- those decisions, which would be dev-
The Treasury Secretary for the Re- pointments will do the right thing, un- astating to a woman’s fundamental
publicans agreed to it, but then, at the like Bush’s appointee John Roberts on freedoms in our country.
last minute, Republican Senators pre- ObamaCare.’’ She dodged serious questions on the
tended otherwise and tried to vote it The day after Judge Barrett’s nomi- legality of in vitro fertilization, which
SSpencer on DSK126QN23PROD with SENATE
out of the bill. Think about that. There nation, Donald Trump tweeted: has helped millions of parents achieve
was an agreement between both sides, ‘‘ObamaCare will be replaced with a their one dream: having a family.
and the one thing that Senate Repub- much better and far cheaper alter- She refused to say whether she be-
licans wanted to do was to break the native, if it is terminated in the Su- lieves the landmark decision on mar-
agreement and keep workers from get- preme Court.’’ riage equality was decided correctly.
ting that extra money to pay the rent But Judge Barrett answered, when The one case she was asked about en-
and the food bill at a time when they my colleague asked about whether she shrined marriage equality.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6565
She dodged a question on whether respecting the original meaning of the ple’s healthcare, disenfranchising vot-
U.S. Presidents should even commit to Constitution. What happens when they ers and entrenching minority rule, giv-
a peaceful transfer of power. She went join the Bench? They throw out long- ing corporations more power over their
on to say on the issue of voter intimi- standing precedents, restrict individual employees, legalizing discrimination
dation that she wouldn’t answer wheth- rights, push forward with an agenda against the LGBTQ community and
er it was illegal. That is not an open that favors special interests and the against Black, Hispanic, Asian, and
question. It is a case of black-letter powerful. other groups of Americans. It is about
law. For example, Judge Barrett gutted a cementing government control over
She was given what I thought was a consumer protection law from the women’s bodies. Republicans could
slam-dunk opportunity to confirm that bench by essentially ignoring the text never enact these deeply unpopular
a President cannot unilaterally change of the law itself, making it easier for policies through legislation, so they
the date of the election. That one is debt collectors to prey on the vulner- want the Supreme Court to enact their
not open to interpretation. The law is able. agenda for them.
clear that he cannot. Judge Barrett Judge Barrett threw out precedent to I want to close by way of saying that
wouldn’t say so. deny $332 in damages to a woman who all of this is contrary to what Justice
It is not like this nominee has been was injured in a medical procedure. Ginsburg spent her career fighting for.
shy about sharing her views. For exam- The woman was actually unable to af- It is exactly what the big rush to fill
ple, she bashed the opinion by Chief ford a lawyer, and she mistakenly used the Ginsburg seat is all about and how
Justice Roberts that upheld the Afford- the wrong word to describe the money this process torpedoes any opportunity
able Care Act. She said it ‘‘pushed the she was owed. Judge Barrett used that for the Senate to come together on
Affordable Care Act beyond its plau- mistake against her. other big issues.
sible meaning to save the statute.’’ She ignored another existing prece- My Democratic colleagues and I have
That decision is the reason that 130 dent, taking away a jury award from a been pleading with the majority, essen-
million Americans with preexisting teenager who was repeatedly raped by tially going and saying, Look, let’s
conditions are protected today, why in- a prison guard. work together on a major COVID pack-
surance companies can’t impose caps She sided with a company that seg- age—virtually pleading that we work
on people who need costly healthcare, regated employees by race. in a bipartisan way to help people on
why seniors no longer get stuck in the In another case, she came up with a what I have heard again and again at
prescription drug doughnut hole bank- twisted interpretation of the Age Dis- home is their No. 1 concern. MITCH
rupting their savings. crimination in Employment Act to MCCONNELL said, however, that it was
Judge Barrett put her name on a let- allow discrimination against older job too complicated to get done.
ter that talked about overturning Roe applicants. None of that had anything Last week, I brought forward a bill
v. Wade because of what it called its to do with ‘‘calling balls and strikes’’ on enhanced unemployment insurance,
‘‘barbaric legacy.’’ She also lectured on or respecting the laws as written. a lifeline for jobless workers. It was
the subject. She failed to disclose the Those rulings favor the powerful and blocked. Two days ago, Democrats
letter and some of her lectures in her corporations over people who don’t brought forth a series of bills, includ-
disclosure to the Judiciary Committee. have clout and don’t have vast sums of ing proposals addressing domestic vio-
Again, I understand that nominees money to protect themselves. lence, election security, and
are always careful in these hearings, The President and Senate Repub- childcare—all blocked. This nomina-
but nomination hearings are providing licans have packed the courts from the tion to Senate Republicans comes first,
less and less substance. That has been top on down with far-right judges who and absolutely everything else is on
the case for a long time. Over the last excuse these kinds of ideological rul- hold, has to wait. We see, really, no
few weeks, Judge Barrett set a new ings. They blocked Democratic judicial genuine interest to do the hard work of
low. Years ago, Chief Justice Roberts nominees for years. They had a plan to putting it together.
talked about the job of the Supreme remove seats from the DC court rather This nomination and this process are
Court Justice and said it was about than considering the sitting Demo- not on the level. Republicans are,
‘‘calling balls and strikes.’’ My ques- cratic President’s nominees. again, breaking their word to hand the
tion is, How can you be trusted to call Now, this President has pushed Supreme Court to the far right. I know
‘‘balls and strikes’’ if you spend your through an immense number of nomi- that because I have heard from so
nomination hearing playing ‘‘hide the nees, given how many seats Repub- many Oregonians about it, Oregonians
ball?’’ licans left open through obstruction. who are worried about losing their
This rush job doesn’t qualify as ad- Some of these judges have been deemed healthcare, their vote, and so many of
vice and consent. In my view, you look not competent for the job by non- their fundamental freedoms. They are
at Donald Trump and Republicans partisan legal groups. It has done in- worried about what this means for the
rushing this confirmation, you look at credible damage to the legitimacy and future of the country.
all the ducking and dodging of basic the independence of the judiciary. Vir- This debate is about the Ginsburg
questions, and it is not hard to see the tually all of them tell the same story seat. Justice Ginsburg was not just an
politics behind it. At a moment when about originalism and sticking to the iconic fighter for the rights of the pow-
there are millions of Americans across text in the tradition of Justice Scalia. erless and the vulnerable. She always
the country wondering how they are Justice Scalia is considered to be the said what she meant, and she meant
going to pay their rent, how they are ultimate example of what is considered what she said. We did not get that from
going to afford medicine, whether they originalism. Judge Barrett recently Judge Barrett.
are going to be able to safely hug their said ‘‘his judicial philosophy is mine, I oppose this nomination.
elderly parents again, Senate Repub- too.’’ Judge Scalia, in fact, packed his The PRESIDING OFFICER. The Sen-
licans are laser-focused on locking in opinions with ideology. He wrote that ator from New Hampshire.
political power over the courts. That is the decision granting same-sex couples Mrs. SHAHEEN. Mr. President, I
what this is all about. the right to marry was a ‘‘threat to come to the floor today in opposition
Senate Republicans somehow think American democracy,’’ that ‘‘robs the to the nomination of Judge Amy Coney
this is a Houdini act, suddenly making People of . . . the freedom to govern Barrett to the Supreme Court. I am
the threat of the Affordable Care Act themselves.’’ He wanted to throw out truly disappointed that my Republican
disappear. It is not working. My view is the Affordable Care Act. He helped gut colleagues have chosen to ram through
SSpencer on DSK126QN23PROD with SENATE
the American people understand that the Voting Rights Act in a ruling that this partisan nominee in the middle of
the rush to fill the Ginsburg seat is led to massive voter disenfranchise- a pandemic when an election is under-
about a lot more than healthcare. ment. way and tens of millions of Americans
Republican nominees for the Court What is behind all this talk about have already cast their ballots.
always come before the Senate and originalism and sticking to the text of The Senate should be focused on a bi-
talk about how it is the text of the the laws as written is a political agen- partisan COVID–19 relief package to
laws as written, respecting precedent, da, plain and simple, taking away peo- help Granite Staters and Americans
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S6566 CONGRESSIONAL RECORD — SENATE October 25, 2020
across this country who are struggling the sadness, pain and fear that has been this public health crisis. In New Hamp-
to pay the bills and put food on the sowed by this administration and which con- shire, if we lose Medicaid expansion, we
table during this pandemic. Instead, tinues to be sown with this confirmation will also lose our most important tool
process. It has been a rushed, politically mo-
Leader MCCONNELL’s only priority has for combating the opioid epidemic.
tivated and politically charged Supreme
been to push through a nominee who Without the ACA, we will go back to
Court nomination being transacted while the
will fundamentally alter the balance of American people are voting RIGHT NOW to a time when insurance companies had
the Court and affect the lives of gen- steer the course of this country . . . this sweeping power to undercut coverage.
erations of Americans, all just days be- Senate chamber . . . and this country’s high- They will be allowed to charge women
fore ballots will be counted to decide est court. higher premiums than men for the
the next President of the United States Step up and do what is right. same coverage. The health insurers
and the makeup of this very body. The Thank you, will be able to remove essential health
DAVID J CUMMINS, benefits like prescription drugs or ma-
stakes in this nomination could not be Portsmouth, NH.
higher. ternity care. They will also be allowed
I want to read an excerpt from an Mrs. SHAHEEN. The President and to jack up premiums or deny coverage
email I received from a constituent. his allies here on Capitol Hill are try- altogether for individuals with pre-
This is from Dave in Portsmouth, NH. ing to tear down the healthcare law existing conditions.
Dave writes: that has helped provide millions of More than 8 million Americans, in-
What is at stake with the Supreme Court
Americans with coverage in the middle cluding nearly 10,000 Granite Staters,
nomination . . . among the topics that have of the greatest public health crisis in a could be denied coverage because they
stricken the deepest sadness, pain, and fear century. They pressed forward with have previously contracted COVID–19,
in eyes, minds and hearts are the goals of this reckless attempt, even though which could now count as a preexisting
this administration to dismantle . . . the Af- they don’t have a plan for what to do condition, and without the ACA, sen-
fordable Care Act . . . A woman’s right (and when as many as 23 million Ameri- iors could, once again, find themselves
only her right) to make decisions about her cans—and in New Hampshire, more stuck in Medicare’s doughnut hole for
body and her life . . . and the rights of the than 100,000 Granite Staters—would prescription drug coverage at a time
LGBTQ community.
lose their healthcare coverage. when we are seeing drug prices soar.
Mr. President, I ask unanimous con- I want to repeat that. In her confirmation hearing, Judge
sent for the full text of this email to be This administration and congres- Barrett even refused to say whether
printed in the RECORD. sional Republicans have no plan for the Medicare Program was constitu-
There being no objection, the mate- what to do if millions of Americans tional. With Judge Barrett on the Su-
rial was ordered to be printed in the lose their healthcare coverage if the preme Court, the health coverage that
RECORD, as follows: Affordable Care Act is overturned. the ACA, Medicare, and other Federal
HELLO SENATOR SHAHEEN, For the last 6 years, we have seen programs provide will be under a con-
These past months I have looked into the congressional Republicans try to repeal stant threat.
eyes of many of my friends and family and Sadly, women’s reproductive rights
have seen extreme sadness, pain and fear. To
the ACA numerous times, and they
have failed every time because the are also on the line with Judge
enumerate the many causes would be redun- Barrett’s nomination. When he ran for
dant . . . but with express concern is what is American people have raised their
at stake with this Supreme Court nomina- voices and made it clear that they President in 2016, Donald Trump said
tion. Among the topics that have stricken want to keep the Affordable Care Act that he would appoint judges who
the deepest sadness, pain and fear in eyes, and strengthen it, not repeal it. Now would overturn Roe v. Wade. Well, we
minds and hearts are the goals of this admin- we are seeing the administration and are seeing that very clearly with Judge
istration to dismantle . . . The Affordable congressional Republicans try to do in Barrett’s record. It shows that Presi-
Care Act . . . A woman’s right (and only her dent Trump is trying to do just that—
right) to make decisions about her body and
the courts what they were not able to
get done in Congress—to overturn the overturn Roe v. Wade.
her life . . . and the rights of the LGBTQ Amy Coney Barrett’s dissenting opin-
community. Affordable Care Act.
ions, while serving on the Seventh Cir-
Before you cast your vote for this nominee, We have also seen with Judge Barrett
cuit, show that she is comfortable with
try to distinguish between her legal pedigree that she has made her feelings very
and her crystal clear biases for which she has laws that make it difficult or nearly
clear about the ACA. She disagreed
often been on record. Her evasiveness during impossible for a woman to exercise her
with decisions to uphold the ACA the
questioning before the Judiciary Committee right to make her own reproductive
last two times it went before the Su-
played perfectly into her chosen role of po- health decisions. Judge Barrett has
preme Court, and she wouldn’t answer
litical pawn of the Trump administration. even publicly supported an organiza-
This Supreme Court . . . my Supreme Court questions about the healthcare law
tion that is opposed to in vitro fer-
. . . your Supreme Court . . . The Supreme during her confirmation hearing. tilization, which is a procedure that
Court of the United States of America must Striking down the ACA would deal a has helped millions of American cou-
remain untainted from the rampant political crushing blow to our most vulnerable ples start families.
posturing of this 2020 election cycle. populations during this pandemic. If
What will be your legacy? In recent days Almost 50 years of precedent of up-
the Court strikes down the Affordable holding a woman’s right to control her
some of the GOP members of the Senate Care Act in its entirety, Granite
have . . . through short public statements own body are in jeopardy because the
. . . been trying to distance themselves from
Staters and Americans across the Republicans are playing politics with
Donald Trump. With this vote . . . you have country will lose access to Medicaid the Supreme Court and packing the
the power to actually do it. To turn away expansion. Medicaid expansion is a Court with extreme Justices.
from hypocrisy and years of blatant lack of critical source of coverage for millions There are nearly 20 abortion-related
integrity. You owe it to America, to your- of Americans and, in New Hampshire, cases that are currently one step away
self, to your family, to my family . . . to for thousands of Granite Staters who from reaching the Supreme Court. A
take a moment to look at the sadness, pain have lost their jobs during this pan- partisan Court would likely disregard
and fear in the eyes of America today. demic. In fact, since the start of this
And yes . . . I am speaking to you all . . . longstanding precedent in these cases
including some who have tried to push pandemic, what we have seen is that and put a woman’s health and well-
through this quagmire with an eye toward enrollment in Medicaid expansion in being at risk. Let’s be very clear: Re-
how the world and history will judge us all New Hampshire has increased by more pealing Roe v. Wade is not going to re-
. . . including you Sen. Romney . . . and yes than 11,000 enrollees as we have seen duce the number of abortions. If his-
. . . you Sen. Sasse . . . and Senators . . . job losses mount.
SSpencer on DSK126QN23PROD with SENATE
tory is any indication, what it will do
Collins, Murkowski, Gardner, McSally, Fish- For these individuals and all of the is increase the number of abortions in
er and so on. I am pleading with you . . . im- more than 60,000 Granite Staters who the country.
ploring you to do the right and just thing
are covered through Medicaid expan- Unfortunately, the Affordable Care
and vote NO on this confirmation.
You know what is right. You will know it sion, the loss of the ACA in the Su- Act and women’s reproductive rights
when . . . as I have . . . you look in the eyes preme Court—the Supreme Court’s are just two of the many areas of
of good and decent Americans . . . who are overturning the ACA—would eliminate American life that a partisan Supreme
desperate for real leadership . . . and you see a critical lifeline for coverage during Court could dramatically alter.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6567
Equality for LGBTQ Americans is an- our Nation’s healthcare law, but, if worried about his own continued
other major concern. Millions of gay confirmed, she could very well be the healthcare without the protections the
and lesbian Americans have been mar- deciding vote to undo the Affordable ACA provides:
ried since the Supreme Court legalized Care Act and take healthcare away I have had asthma my whole life and it’s
same-sex marriage, but in a recent dis- from millions of Americans. Judge severe. I finally have good insurance and
sent penned by Justices Thomas and Barrett’s hostility toward the Afford- need it desperately. This will affect millions
Alito, these Justices challenged the able Care Act is on the record, and we of us. I have lived through not having insur-
ance and it almost killed me. The insurance
constitutionality of that decision and have seen a long and extensive paper companies at that time were asking for pre-
called for it to be revisited. When trail outlining her opposition to the miums higher than what I made.
asked in her confirmation hearing ACA. Her past comments, well, they Nevadans across the State are abso-
about the precedent of the Supreme paint a bleak picture of what the Af- lutely terrified about the possibility of
Court decision to legalize same-sex fordable Care Act’s future would look losing care because of this nomination.
marriage, Judge Barrett was evasive. like with a Justice Barrett on the I received a letter from a brave Ne-
So you can understand the anxiety and Bench. vadan who lives in Minden, which is a
fear that same-sex families are experi- To put it simply, this administra- small town in the western part of our
encing as they watch the Republican- tion’s attempt to use the Court to take State. She wanted to share with me her
led Senate rush this nomination. away Americans’ health insurance and health struggles and her fears for the
The stakes are also incredibly high raise the cost of care, especially at this future. She said this:
for voting rights, for worker protec- moment—during a global pandemic—is I have been fighting a rare, aggressive form
tions, for commonsense gun laws, and not only cruel and reckless, it is dead- of breast cancer for the past 4 years and still
for so many other issues that are in ly. have numerous surgeries to undergo as part
jeopardy with the appointment of I have met many Nevada families, of my ongoing battle against this dev-
Judge Barrett. and I have heard stories from men, astating disease. I worry about how the loss
Now, I know the die has been cast. women, and children whose lives would of the preexisting conditions protection
We saw that yesterday with the 51-to-48 be just devastated without the Afford- would adversely affect my treatment plan,
my everyday financial security, and my abil-
cloture vote, but I believe this effort to able Care Act: cancer survivors, people
ity to get health insurance in the future
politicize the Supreme Court is a deci- with diabetes, asthma, cystic fibrosis, should I lose what I currently have.
sion that those who care about our and countless other preexisting condi-
The Affordable Care Act has opened
democratic institutions will come to tions that affect families. These are
the door to healthcare for Nevadans all
regret for many decades to come. If to- real Nevadans whose healthcare would
over my State, in communities big and
day’s vote is the same as yesterday’s— be jeopardized if the ACA were no
small. These are real people with real
51 to 48—this will be the closest vote longer the law of the land. struggles and real families who des-
for a Supreme Court Justice in our Na- I always tell my constituents that I
perately want the best possible care for
tion’s entire history. We should not be carry their stories with me to Wash-
their loved ones. That is all. They want
doing this today. We should be focusing ington. They inform the actions that I
the best care for their loved ones.
on what the American public is most take and the decisions that I make. I
Don’t we all want that?
concerned about—help with the want to take some time to share some What is at stake here is life or death
coronavirus. of the stories that I have heard—sto- for far too many Nevadans and too
I yield the floor. ries from Nevadans whose lives have many Americans across this country.
The PRESIDING OFFICER (Mr. been saved and who enjoy the quality Assuring the health of our loved ones
HAWLEY). The Senator from Nevada. of life because of the Affordable Care
Ms. ROSEN. Mr. President, I rise be- should be an essential, basic, human
Act; stories from Nevadans who are right.
cause the healthcare of millions of Ne- outraged about what is happening and It is thanks to the Affordable Care
vadans and tens of millions of Ameri- have reached out to my office to make Act that more than 200,000 Nevadans
cans is in danger. Their healthcare is their voices heard; and countless sto- get coverage through the ACA’s ex-
in danger because, in just a few weeks, ries of how allowing the ACA to be dis- panded Medicaid Program. It is thanks
the Supreme Court will consider a case mantled would impact their lives. to the Affordable Care Act that over
that could overturn the Affordable First, I want to share a letter from 77,000 Nevadans have coverage through
Care Act completely. This means that Jen, who lives in Henderson, NV. Jen’s the Nevada Health Link insurance ex-
the next Supreme Court Justice will husband is one of the 1.2 million Nevad- change, and it is thanks to the Afford-
decide whether individuals with pre- ans who is estimated to be living with able Care Act that over 19,000 Nevadans
existing conditions could, once again, a preexisting condition. Like many under the age of 26 get to remain cov-
be denied healthcare coverage. people, Jen is worried about the health
The fact is, this administration has ered through their parents’ health in-
of her husband and the future of her surance plans.
tried for years to overturn the Afford- family if the Affordable Care Act is All of these people—that is 1 in 10 Ne-
able Care Act. First, it attempted to eliminated. vadans—could lose their health insur-
repeal the ACA through legislation. It Here is what Jen wrote: ance if the Supreme Court overturns
failed repeatedly because Congress and Dear Senator Rosen, I am watching the the ACA.
the American people do not support its confirmation hearing for Amy Coney Bar- All of them could face overwhelming
schemes to take away our healthcare. rett, and listening to the conversation
costs and denials of the care they both
Then it changed its strategy and is try- around the ACA. I’m scared to death that it
will be overturned, and what that means for need and deserve.
ing to use the Court to dismantle our Not to mention, it is thanks to the
Nation’s healthcare system. me and my husband. In February 2019, at
only 38, he had a devastating stroke, and had ACA that there are an untold number
Now, with an election just 1 week of people who can still get coverage be-
to stay in the hospital for four months. If he
away, the Senate Republicans are hadn’t had insurance, we would never have cause insurance companies can no
scrambling to confirm a new Supreme been able to afford his care. I’m scared of los- longer put lifetime caps on their
Court Justice in order to tip the bal- ing that protection from pre-existing condi- healthcare coverage. Before the ACA,
ance of the Court in favor of their law- tions. He will need specialists for the rest of an insurance company could limit how
suit that aims to destroy the Afford- his life, as well as physical, occupational, much they would pay for your medical
able Care Act. Rather than waiting for and speech therapy. We cannot afford his
bills over your lifetime.
the outcome of the election, which is care otherwise. I am so scared. Please help.
One constituent from Las Vegas
SSpencer on DSK126QN23PROD with SENATE
already underway, and follow the Unfortunately, Jen’s situation and voiced her concerns that without ACA
precedent that they themselves estab- concerns are far too common. Many protections, we would see a return of
lished in 2016, the McConnell rule, my Nevadans and Americans across our lifetime caps on coverage.
Republican colleagues are rushing to country are worried about a future She said this:
put Judge Amy Coney Barrett on the where they could lose their lifesaving I am concerned about the potential elimi-
Bench. coverage. nation of the Affordable Care Act. In addi-
Not only does Judge Barrett support Here is another letter from a Ne- tion to the potential elimination of pre-
the President’s position on dismantling vadan who lives in Spring Creek who is existing conditions, no one seems to address
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S6568 CONGRESSIONAL RECORD — SENATE October 25, 2020
the issue of lifetime limits, which were dition—COVID–19. Just imagine being shared today, and I truly hope that my
eliminated under the ACA. someone who suffered through even a colleagues really listen to them; that
For those with long-term illnesses, they mild case of COVID–19, only to have they really hear the pain, the anguish,
stand to risk loss of medical insurance while
battling catastrophic illnesses.
their coverage taken away because of and the anxiety that so many Ameri-
My husband has been battling colon cancer this new preexisting condition. cans are feeling right here in this mo-
for several years. If the lifetime limit were Just this week, we are seeing the ment. Their lives, their healthcare—
to be reinstated, we would no longer be cov- highest positivity rates across the they are going to be directly impacted
ered for any of his chemo or other cancer-re- country we have seen thus far. Instead by our decisions.
lated treatments. of developing a clear, national strategy I will not support the nomination of
I am sure that the insurance companies for combating the coronavirus or a Supreme Court Justice who does not
would jump at the chance to stop coverage support the Affordable Care Act. I will
crafting comprehensive legislation to
for those with extraordinarily high medical vote against Judge Barrett’s nomina-
expenses. assist Americans in need of a lifeline
during this difficult time, this adminis- tion.
The American people? Well, they I yield the floor.
tration and Senator MCCONNELL seem
want us to protect their care. The The PRESIDING OFFICER. The Sen-
to be preoccupied with rushing through
American people want us to protect ator from Oklahoma.
a Supreme Court nominee who is out-
them. They do not want to see the Af- Mr. LANKFORD. Mr. President, for
wardly hostile to the Affordable Care
fordable Care Act eliminated. the past several years, I have heard
Act.
The fact is, our healthcare coverage some pretty remarkable stories from
Since coming to Congress, I have
is better now than it was before the the other side of the aisle and from the
made it my mission not only to pre-
ACA was enacted. Insurance plans now national media.
serve the Affordable Care Act but to We heard from an Atlantic article
have to cover those 10 essential health
expand care for all Americans. I have that the President called servicemem-
benefits, and we have fought hard
worked to increase access, lower costs, bers killed in action ‘‘losers.’’ It was
against junk plans that claim to pro-
and improve quality of care. In fact, spread all over the place until it was
vide coverage but aren’t there when
one of my first actions as a Senator refuted flatly by 14 different officials
you need them the most.
was to join my colleague Senator JOE who were on the trip.
In addition to that, many middle-in-
MANCHIN in introducing legislation to We heard claims that the Trump ad-
come Nevadans can access affordable
demand that the Senate intervene to ministration has deployed Federal
care because of the much needed tax
defend the Affordable Care Act in troops to Portland, and they were tak-
credits that the ACA provides.
court. ing over the streets of Portland, until
I have spoken with and heard from
Instead of joining me and my col- leadership of ICE and of DHS came to
countless Nevadans, and I can say with
leagues and working to protect Ameri- Congress and reported what actually
certainty that no issue matters more
cans’ health, this administration is too happened, starting with, there were no
to people of my State than their health
busy playing politics with people’s Federal troops that went. There was
and safety and the health of their loved
lives and is singularly focused on tak- Federal law enforcement there, but it
ones.
The Affordable Care Act has not only ing away your care, my care, our care. is because it is a Federal building that
Our healthcare is at stake. Our lives was under attack. And they weren’t
given families the peace of mind that
are at stake. just aimlessly roaming the streets ar-
comes with quality health coverage,
Before the Senate confirms a lifetime resting people, although they did ar-
but it has literally saved lives.
appointment to our Nation’s highest rest the people who threw Molotov
Without the critical protections the
court, the American people’s vote cocktails at the building.
ACA provides, we risk going back to
should be counted and their voices I have heard that the post office can-
the days when big insurance companies
should be heard. This is how the Amer- not handle the increased volume of
could deny insurance coverage based on
ican people feel. mail, and the Trump administration is
preexisting conditions. Repealing the
A constituent who lives in Reno intentionally trying to slow down the
Affordable Care Act would have dire
wrote to me saying that ‘‘President post office so mail can’t come in, say-
consequences for hard-working Nevada
Trump has promised to appoint jus- ing with frantic, breathless voices: It
families and families across our coun-
tices who will overturn Roe v. Wade could be 100 million ballots coming in
try.
Healthcare shouldn’t be a partisan and undermine access to healthcare— the mail. Can the post office handle it?
issue. We have an obligation to protect certainly not what I want. And not Until you find out that 2 weeks before
the health of our constituents. We need what the majority of your constituents Christmas last year, the post office
access to healthcare more now than want.’’ handled 2.5 billion pieces of first class
He continues: mail just that 1 week—certainly they
ever, and taking critical protections
The election is already underway and we can handle 100 million ballots coming
away from Nevadans would be a dis-
should be given the power to decide which in over a month.
aster for our State, and it would be a President nominates someone for this seat. I heard last summer that the Presi-
disaster for our country. The Senate should be focused on addressing dent had taken away toothbrushes
I heard from another constituent, the COVID–19 crisis, not fast-tracking a Su- from children at the border—until a
Carol, who lives in Pahrump, who high- preme Court nominee. group of us were actually at the border
lighted the risk of this nomination dur- We are only 9 days away from an the very next week and went into that
ing the current challenges our Nation election, but let’s be clear. The elec- exact facility saying there are no
faces due to the pandemic. tion has already started, and millions toothbrushes there available for the
Carol wrote to me, saying this: of Americans all across our country children and saw a storeroom full of
Our country is in a public health crisis have already cast their ballot. They toiletries—yes, including toothbrushes.
right now, one that gets worse by the day. have mailed in their ballots, and early
In this moment, we need our legislators to
I read the story and followed up with
protect our families, to provide relief and voting is happening in many places as the ICE leadership about Muslims in
support, to do the job we elected them to do. we speak, including my home State of our ICE detention facilities being
We do not need to rush through the nomi- Nevada. forced to eat pork—tormenting them
nation of a Supreme Court Justice who is on We should allow the American people by feeding them pork, against their
the record as hostile to the law that provides to have their say at the ballot box be- faith—until we actually followed up on
our healthcare protections. fore the Senate considers a lifetime ap-
SSpencer on DSK126QN23PROD with SENATE
the facts of it and found that story was
Well, Carol is right to point out that pointment to the Supreme Court—one completely false.
we are in the middle of a catastrophic that will determine the future of access It seems every day—sometimes mul-
pandemic that has left more than to quality, affordable healthcare in the tiple times a day—there is a new accu-
225,000 Americans dead. Not only that, United States for everyone. sation that comes out to attack the
but this pandemic could put millions of I am sure that other Senators—well, Trump administration and to challenge
Americans at risk of being denied cov- they are hearing the same stories from them on every angle of every direction
erage because of a new preexisting con- their constituents like the ones I have you can possibly do it.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6569
And then for the Presiding Officer— It is interesting to me how things attempt to terrify the American people
you know this full well because I sat in seem to get twisted around in some of that this mother of seven is to be
that same chair for 2 hours last night this debate. I heard last night during feared because she will take away your
during our 30 hours of continuous de- the debate time that Amy Coney Bar- healthcare; she will take away your
bate, following Senate rules to con- rett refused to answer the questions— rights; she will remove every option
clude a confirmation of a Supreme the most basic questions about what that protects the rights of individuals
Court Justice, and I was quite amazed she believes about things. The shock- in a free society; and, as was stated
at some of the things I heard while I ing thing is, Amy Coney Barrett did last night, she is afraid of ‘‘we the peo-
sat in the chair. the exact same thing that Ruth Bader ple.’’
I heard things like, well, Amy Coney Ginsburg did during her nomination We have a responsibility in this body
Barrett should have never even come and that every nominee has said. They to set the tone for the debate. We dis-
out of the Judiciary because Demo- said: I am a judge. I can’t tell you how agree on things strongly, and so do the
crats boycotted coming, actually, to I am going to rule on it because it has American people. But this should not
the hearing. If they don’t come to the to be based on the facts of the case. It be a place of smears and personal at-
hearing, the nominee cannot come out; not something I can just make up on tacks and disdain for each other and
the Republicans have broken the rules. the spot. for labeling people—something that if
In fact, some of my colleagues went In fact, this is what was quoted from we were to sit down face-to-face and I
dangerously close to say: Because they Justice Ginsburg when she was Judge were to ask the Members on the other
broke that rule, we are going to break Ginsburg at the time and going side of this Chamber ‘‘Do you really
the next rule and pack the Court. Ex- through the nomination process. This think that Judge Barrett is a segrega-
cept they leave out one little thing: is from Judge Ginsburg: tionist?’’ I have every confidence that
That has happened multiple times be- Members on the other side would say
I come to this proceeding to be judged as a
fore. They did follow the rules. There judge, not as an advocate. Because I am and ‘‘No, but it plays well to the base.’’
wasn’t a breaking of the rule in the hope to continue to be a judge, it would be What have we become?
committee. In fact, one of the Members wrong for me to say or to preview in this leg- Future Justice Barrett, now Judge
speaking last night even said so far as, islative chamber how I would cast my vote Barrett, was labeled over and over
they broke the rules, except the Parlia- on questions the Supreme Court may be again as a person who doesn’t have her
mentarian ruled them in order. And so called upon to decide. Were I to rehearse
here what I would say and how I would rea-
own mind, who is running big-dollar
the Parliamentarian was wrong as donors from the Federalist Society and
well. son on such questions, I would act injudi-
ciously. is just a puppet of the right, someone
At least seven times since 2006—most
Judges in our system are bound to decide who actually was labeled to be
recently in 2014 when Democratic concrete cases, not abstract issues. Each groomed by the right for this position,
Chairman LEAHY sent a circuit court case comes to the court based on particular as if that judge has not studied,
judge and two district judges to the facts and its decision should turn on those worked, and prepared her entire life to
floor, out of committee, when only one facts and the governing law, stated and ex-
serve.
member of the minority was present— plained in light of the particular arguments
the parties or their representatives present.
She has her own mind. She is well
not fulfilling ‘‘the rule.’’
Republicans did not break the rule as A judge sworn to decide impartially can offer prepared. She is eminently qualified,
they came out of committee with Amy no forecasts, no hints, for that would show and she is not a secret racist segrega-
Coney Barrett. not only disregard for the specifics of the tionist coming to take away healthcare
I heard over and over again that particular case, it would display disdain for from Americans. She is a judge who
the entire judicial process. has heard 600 cases, graduated first in
there has never been a time like this
that anyone has brought a Supreme For some reason Justice Ginsburg her law school class, taught law for 15
Court nominee during an election year was celebrated by the left for not say- years at Notre Dame University, is
like this—except when you actually go ing how she would rule, but Amy Coney well prepared, and, yes, does have this
back and look at the history, which I Barrett has been shown disdain for say- originalist view of the Constitution,
have recounted on this floor before, ing she is not telling exactly how she meaning you can’t just look at it and
and multiple of my colleagues have re- will rule on every single issue. make it say what you want to. People
counted the actual history. But then The most painful thing I heard last on this floor can try to put words in
last night I heard once again: Even night when I was in the Chair and that her mouth which she has not said, as I
Abraham Lincoln, the month before I have heard over and over again in the heard over and over again, like her de-
the election, could have put in a nomi- dialogue has been a sad, personal de- sire is to suppress voters. You cannot
nee for the Supreme Court, and he struction and deception, pushing Amy change how well prepared she is for
chose not to, to wait for the election. Coney Barrett over and over again as a this task and this moment.
All I could do was sit with my mask- closet racist and segregationist. I am I am grateful that America continues
covered face in the presiding chair and disappointed that even this candidate to produce great leaders and great indi-
smile and think about the Washington is being challenged as a racist, quiet viduals who work hard in their per-
Post article that came out just a few segregationist. It is the firebomb sonal lives, who study and prepare
weeks ago when Senator HARRIS gave thrown into the middle of a dialogue. themselves to be ready to do whatever
the same lesson about Abraham Lin- Over and over again, she was chal- God calls them to do, and who are in-
coln and the Supreme Court. The lenged by saying what would she do tently focused on serving their fellow
Washington Post, the day after, wrote with Brown v. Board of Education, as if Americans in the best way they pos-
an article titled ‘‘KAMALA HARRIS’s ‘lit- quietly she is a segregationist. sibly can.
tle history lesson’ about Lincoln’s Su- Over and over again, her concept on We ask of Justices one thing—at
preme Court vacancy wasn’t exactly originalism was pushed, and here is least I do: Follow the law. It seems my
true.’’ how it was framed on the debate on colleagues on the other side of the aisle
No, Abraham Lincoln didn’t hold this floor: She is an originalist. That are terrified that someone may just
back and say: I will wait until after the means she is backward-looking. That come follow the law and that policy ar-
election. That is not how that oc- means she is supportive of those White guments may have to be debated back
curred. The Senate was not even in ses- men who supported slavery and would in Congress again. Well, I hope that is
sion during that time period. And not allow women to be able to vote be- true because there are policy argu-
cause, in their perspective, that is ments we need to resolve as a country,
SSpencer on DSK126QN23PROD with SENATE
Abraham Lincoln, in the middle of the
Civil War, was waiting it out, trying to what an originalist is. They want to go but let’s resolve them in this Chamber,
keep his fractured Republican coalition back to slavery and segregation and re- not in the one across the street. The
together and not fracture it by naming moving the rights of women to vote— one across the street, let’s keep it non-
someone. In fact, he shrewdly ended up even saying last night that originalists political, focus on just helping Ameri-
naming one of his opponents in the Re- go back to the time of child labor. cans follow the law.
publican Party as the nominee who It is a smear. It is a personal attack, I look forward to voting for Amy
would come after he was reelected. and it is an act of desperation. It is an Coney Barrett later on tonight, and I
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S6570 CONGRESSIONAL RECORD — SENATE October 25, 2020
look forward to the day when false ac- The President and my Republican done. We should not be considering a
cusations are seen for what they really colleagues here in Congress have al- Supreme Court nomination before In-
are. Let’s do the right thing, and let’s ready tried—and tried again and tried auguration Day. Yet the majority lead-
do it the right way. again—and failed to repeal the Afford- er is continuing forward with votes on
With that, I yield the floor. able Care Act through Congress. Now Judge Barrett’s nomination.
The PRESIDING OFFICER. The Sen- they have turned to our Nation’s Su- Judge Barrett’s record is clear, and
ator from Virginia. preme Court in a purely political effort so is my vote. I am voting no. There is
Mr. WARNER. Mr. President, I rise that could devastate our Nation’s too much at stake.
today out of grave concern with the di- healthcare system. Thank you.
rection of the Senate as an institution They have offered no replacement With that, I suggest the absence of a
and with the choices being made on be- plan that would adequately protect in- quorum.
half of the American people. dividuals with preexisting conditions, The PRESIDING OFFICER. The
By almost every account, our econ- and millions of Americans will then be clerk will call the roll.
omy remains severely wounded by the set to lose their healthcare coverage The legislative clerk proceeded to
effects of the COVID–19 pandemic. should the ACA be overturned. call the roll.
Cases are still rising. In fact, a record I have come to this floor many times Mr. MARKEY. Mr. President, I ask
was set just in the last couple of days. and acknowledged that the ACA is not unanimous consent that the order for
Small businesses are, unfortunately, perfect. There are places where it could the quorum call be rescinded.
closing at an accelerating rate. Fore- be improved. But in the years since its The PRESIDING OFFICER. Without
closures and evictions are on the rise. passage, I have heard from countless objection, it is so ordered.
Jobless benefits for many have run out. Virginians who have benefited from the Mr. MARKEY. Mr. President, I rise
And our State and local governments law—individuals who have gained ac- to speak in opposition to the nomina-
are running dangerously low on re- cess to healthcare coverage for the tion of Amy Coney Barrett to serve as
sources to assist teachers, first re- first time, cancer patients who can no an Associate Justice on the U.S. Su-
sponders, firefighters, and so many preme Court.
longer be kicked off their plans and de-
others. This is no ordinary nomination, and
nied coverage, 8 million Americans
But rather than focusing on the im- it comes at no ordinary time in the life
mediate needs of the American people who now have COVID and who now
have a preexisting condition. I have of our Nation. We are in the midst of a
and acting to remove the uncertainty global pandemic that has already
being felt by families across this coun- talked to small business owners and
entrepreneurs who are now able to get claimed more than 225,000 American
try and in the Commonwealth of Vir- lives. We are a mere 8 days away from
ginia, the Senate is preparing to pursue coverage on the individual exchange
and consequently start that business a Presidential election.
a partisan exercise to fundamentally Donald Trump announced his nomi-
alter the composition of our Supreme that otherwise they couldn’t take the
risk of starting and so many of Vir- nation of Judge Barrett even before we
Court. could fully mourn the death of the
This comes as we are just a week ginia’s seniors who have seen their
drug costs go down thanks to impor- great Justice Ruth Bader Ginsburg,
away from November 3, when Ameri-
tant reforms in the ACA. and Senate Republicans then rushed
cans will go to the polls to cast their
ballots in a Presidential election. In That, in and of itself, being consid- this nomination to the Supreme Court.
my State, the Commonwealth of Vir- ered by the Supreme Court a week In doing so, they violated the rule that
ginia, literally almost 2 million Vir- after election, would be more than their leader, MITCH MCCONNELL, im-
ginians have already voted. enough reason to wait and delay and posed in 2016, which kept Merrick Gar-
President Trump and the majority let the American people first have land off the Supreme Court after Presi-
leader are jamming through, at this their say. But that is not all that is at dent Obama nominated him in Feb-
moment, a divisive nominee to fill Jus- stake in future cases before the Su- ruary of that year to fill the vacancy
tice Ginsburg’s seat on the Supreme preme Court. that arose with the death of Justice
Court—Judge Amy Coney Barrett. This Court—the Court that would Antonin Scalia.
The Senate has never confirmed a disproportionately be moved out of the That rule was clear. That rule was
Supreme Court nominee this close to mainstream—will be looking at every- concise. That rule was definitive: The
election day. The election is in a week. thing from reproductive rights to vot- Senate would not consider a nomina-
Nearly 60 million people have already ing rights, to rights for LGBTQ people. tion to fill a vacancy on the Supreme
voted. And while they eviscerate Sen- All of these hang in the balance. Given Court during a Presidential election
ate precedent and rush toward a Su- those stakes, the American people have year.
preme Court nomination, they delay a right to have their voices heard be- Many of my Republican colleagues
passing the kind of critical legislation fore the confirmation of a new Justice. echoed Leader MCCONNELL’s pledge. In
in terms of additional COVID relief In 2016, Majority Leader MITCH fact, my colleague, Senator LINDSEY
that would help millions of Americans MCCONNELL set a standard when he re- GRAHAM, who chairs the Judiciary
make it through the economic crisis. fused to consider President Obama’s Committee, admonished us to use his
Think about that. Every day we wait Supreme Court nominee 10 months own words against him if he went back
to pass a comprehensive COVID stim- prior to the election. I strongly ob- on his promise: ‘‘If there is a Repub-
ulus bill, more people than necessary jected to the majority leader’s actions lican President in 2016 and a vacancy
will get sick, some will die, businesses in 2016, but he is the majority leader. occurs in the last year of that term,
will be lost. Families will lose their He had the votes. And now that is the you can say that LINDSEY GRAHAM said,
homes, and millions of unemployed precedent by which we should govern let’s let the next president, whoever it
workers will continue to wonder how this Supreme Court nomination, be- might be, make that nomination.’’
they are going to make ends meet. cause the truth is, we can’t have one But the majority has ignored the
So why has the President rushed set of rules for Democratic Presidents McConnell rule and broken their prom-
Judge Barrett’s nomination through and a different set of rules for Repub- ises to follow it as they engage in the
the Senate? The President is jamming lican Presidents. outright theft of yet another seat on
through this nomination because there Our system of checks and balances the U.S. Supreme Court.
is so much on the line with this Su- has held strong and lasting for more You can’t spell ‘‘shameful’’ without
than 200 years, and it was simply not ‘‘sham,’’ and that is what Senate Re-
SSpencer on DSK126QN23PROD with SENATE
preme Court vacancy.
On November 10, just 1 week after the meant to bear the brunt of such cyni- publicans have turned this Supreme
election, the Supreme Court will hear a cism and hypocrisy. Court nomination process into—a
case that could invalidate the Afford- The Senate should get to the real sham.
able Care Act and rip healthcare cov- needs of the American people—a deal What else is unprecedented about the
erage away from more than 20 million that I know Secretary Mnuchin and circumstances surrounding the Barrett
Americans—20 million Americans—in Speaker PELOSI are quite close to. nomination? Well, in Donald Trump,
the middle of a pandemic. Let’s split the difference and get it who made the Barrett nomination, we
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6571
have a President who has repeatedly and without the funding to provide it What about her application of it and
refused to commit to a peaceful transi- to those kids. Right now, at the height her views? Well, in early 2017, 4 months
tion of power, should he lose the up- of the pandemic, there are going to be before Donald Trump nominated her to
coming election. millions of children who do not have serve on the U.S. Court of Appeals for
In Donald Trump, we have a Presi- access to the tools they need to be in the Seventh Circuit, she wrote a law
dent who has openly stated that he the third grade, to be in the fifth grade. review article in which she criticized
needs Judge Barrett on the Supreme And even today our nurses go without Chief Justice John Roberts’ majority
Court to cast a crucial vote if cases the masks they need. Yet, when it opinion in NFIB v. Sebelius, which
arising out of a disputed election reach comes to filling a vacancy on the Su- upheld the Affordable Care Act. She
the Court, like Bush v. Gore did after preme Court and confirming a far-right made clear she didn’t think much of
the 2000 Presidential election. Justice, these same Republicans made Justice Roberts’ opinion, arguing that
In Donald Trump, we have a Presi- the Senate move with speed that would he ‘‘pushed the Affordable Care Act be-
dent who has vowed to appoint to the make Usain Bolt jealous. yond its plausible meaning to save the
Supreme Court a Justice who would Jamming through this nomination in statute.’’
vote to overturn Roe v. Wade and take this fashion is unprecedented. It ren- We know from another law review ar-
away a woman’s reproductive rights ders this process and this nomination ticle that Judge Barrett, like many
and freedom. Even before he was elect- illegitimate, period. If Judge Barrett is originalists, does not give precedent
ed in 2016, he pledged: ‘‘I will appoint confirmed, it will only serve to further the respect that it deserves. In 2013, she
judges that will be pro-life, yes.’’ erode the stature and the legitimacy of wrote that because a Justice’s duty is
In Donald Trump, we have a Presi- the Supreme Court in the eyes of the to the Constitution, there is ‘‘more le-
dent who has expressly promised that American people. gitimacy in enforcing her best under-
he would only nominate a Justice who Now, everything to which I have just standing of the Constitution rather
would vote to get rid of the Affordable pointed—the pandemic, the election, than a precedent she thinks clearly is
Care Act—ObamaCare—and coverage the corruption—is just the place set- in conflict with it.’’ In other words, she
for preexisting conditions, and Presi- tings. It is the table onto which Donald believes that her own interpretation of
dent Trump made that another bright- Trump has served up the nomination of the Constitution is more important
line litmus test for this nomination. Amy Coney Barrett. and more legitimate than precedent
In Donald Trump, we have a Presi- Judge Barrett is a proud originalist such as Roe v. Wade.
dent who has told us that he needs We know from her dissenting opinion
and textualist in the mold of her men-
Judge Barrett on the Bench to rule in in Kanter v. Barr that she believes a
tor, the late Justice Antonin Scalia,
felony conviction shouldn’t necessarily
the Affordable Care Act case the Su- one of the staunchest and most arch-
result in losing the right to own a gun,
preme Court is scheduled to hear on conservatives ever to serve on the U.S.
but she is OK with felony convictions
November 10, 1 week after the elec- Supreme Court. As Judge Barrett put
taking away the right to vote. She
tion—a case that will decide the fate of it at her own confirmation hearing,
would make it easier for a felon to own
that law and the availability of health ‘‘Justice Scalia’s judicial philosophy is a gun than to vote. That is the kind of
insurance for millions of Americans mine, too.’’ result that Judge Barrett’s originalism
suffering during a pandemic and well As Judge Barrett describes so-called
gets us into.
afterward. originalism, it means she is supposed So, on many of these issues, Amy
If Amy Coney Barrett is confirmed to to interpret the Constitution’s text and Coney Barrett has shown us that she
the Supreme Court and votes the way understand it to have the meaning it couldn’t be further in spirit from Ruth
Republicans expect, nearly 3 million had when the Constitution was rati- Bader Ginsburg, the late, great Justice
people in Massachusetts with pre- fied, but interpreting the Constitution whose seat on the Nation’s highest
existing conditions could face higher in that manner has been used over and Court she will fill. While Justice Gins-
costs, fewer benefits, and could have over to deny rights to women, to com- burg always had us looking forward,
trouble finding insurance coverage. munities of color, and to LGBTQ indi- Amy Coney Barrett and her
Massachusetts was the model for the viduals—members of our society who originalism will always have us look-
Affordable Care Act, but if Donald had no rights when the Constitution ing backwards—and backwards is pre-
Trump and his Supreme Court nominee was ratified. cisely the direction in which this Na-
have their way, more than 335,000 Bay Originalism is racist. Originalism is tion should not be going.
Staters enrolled through the Medicaid sexist. Originalism is homophobic. For What we know from Amy Coney
expansion could lose their coverage. originalists like Judge Barrett, Barrett’s own words is very troubling.
As we experience the highest number ‘‘LGBT’’ stands for ‘‘let’s go back in Yet then, at her confirmation hearing,
of 1-day coronavirus deaths since the time’’—a time when you couldn’t we learned that there are many basic,
spring, we have a Republican-led Sen- marry whom you love; a time when you fundamental legal issues on which she
ate that has been unwilling and unable couldn’t serve in the military if you would not say a word and she would
to work with their party’s own Presi- were trans; a time when rights were keep her views hidden.
dent to craft desperately needed legis- not extended to gay, lesbian, bisexual, At her confirmation hearing, Judge
lation that would provide relief to the transgender, queer, questioning, or Barrett declined to answer questions
hundreds of millions of Americans who intersex individuals. about such important propositions as
are suffering during this pandemic— ‘‘Originalism’’ is just a fancy word whether it is unlawful to engage in
Americans who are out of work for ‘‘discrimination.’’ It has become a voter intimidation—spoiler alert: it is;
through no fault of their own; Ameri- hazy smokescreen for judicial activism questions about whether the President
cans whose small businesses, the en- by so-called conservatives to achieve can delay a Presidential election—news
gine of our economy, are struggling or from the bench what they cannot ac- flash: he can’t; questions about wheth-
going under; Americans who can’t get complish through the ballot box and an er Presidents should commit to a
the medicines, the testing, the protec- elected Congress. As a result, they roll peaceful transition of power—listen up:
tive equipment, or the medical care back individual rights through judicial they should; questions about whether
they need; Americans who right now decisions. Obergefell v. Hodges, the landmark Su-
are lacking access to online learning The activist originalist Justices on preme Court decision recognizing the
and the promise of an education. the Supreme Court and lawyers in its right to gay marriage and making mar-
For weeks and weeks, Senate Repub- legal community are poised to repeal
SSpencer on DSK126QN23PROD with SENATE
riage equality the law of the land was
licans would not lift a finger to help the Affordable Care Act, deny repro- correctly decided—no doubt about it, it
our workers and our families during ductive freedom, and repeal same-sex was; questions about whether the non-
this crisis. They would rather our marriage. They will welcome a Justice discrimination provisions of the Af-
States and our cities go bankrupt; that Barrett and a 6-to-3 conservative ma- fordable Care Act protect LGBTQ peo-
our students go without Wi-Fi—Black, jority with open arms. ple from discriminatory treatment in
Brown, and poor children in our coun- We know a lot about Judge Barrett’s healthcare—of course they do; ques-
try go without the internet at home judicial philosophy of originalism. tions about whether Roe v. Wade was
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S6572 CONGRESSIONAL RECORD — SENATE October 25, 2020
correctly decided and is a superprece- I yield back. reason for personal bankruptcy. People
dent—it was and it is; questions about The PRESIDING OFFICER. The Sen- faced financial devastation simply be-
whether Medicare is constitutional—of ator from Michigan. cause they got sick. Women could
course it is; questions about whether Mr. PETERS. Mr. President, I would again be charged more for being a
climate change is real and whether like to start by giving a quick history woman because a potential pregnancy
human beings cause it—it is and we do. lesson, and I will begin with just two is a preexisting condition.
On these and so many important numbers. These two numbers speak to We have come way too far to be turn-
issues and questions, Judge Barrett re- how extraordinary it is that we are ing the clock backward. For the Trump
fused to give the obvious and indis- here today debating and voting on a administration to be pushing this law-
putably correct answers, but based on nominee for the U.S. Supreme Court. suit is reckless and dangerous, espe-
her judicial philosophy, her writings, The first number is four. Four. That cially during the worst public health
and her record, I have little doubt is how many Supreme Court vacancies and economic crisis in generations.
where she really stands, and that is in have arisen after July 1 and before But that is not all that is at stake. A
the same corner with rightwing, reac- election day in a Presidential election woman’s right to make her own
tionary jurists who are far outside the year. Only four times in the history of healthcare decisions and reproductive
mainstream of American jurispru- this country has a Supreme Court va- freedom is at stake. Workers’ rights
dence. cancy arisen within 4 months of a Pres- against corporate special interests are
Finally, there is another question idential election. at stake. Environmental justice is at
that Judge Barrett would not answer: The next number I think is very im- stake. Access to the ballot box is at
whether, if confirmed, she will recuse portant to remember, and that number stake. Attempts to end the corrosive
herself from the Affordable Care Act is zero. Zero. That is how many times effect of money in campaigns and elec-
case and any election cases that reach these vacancies were filled. In fact, tions is at stake. And LGBTQ rights
the Supreme Court. similar to this vacancy, President Lin- are at stake. Those are just some of the
There is a Federal statute that gov- coln had a Senate majority when a va- many issues that a Supreme Court Jus-
erns the recusal decision. It requires cancy arose just weeks before election tice with a lifetime appointment will
recusal in situations where a judge’s day in 1864. What did he do? He chose be ruling on for decades to come.
impartiality might reasonably be ques- to wait. President Lincoln thought Judge Amy Coney Barrett’s nomina-
tioned. President Trump himself put nominating a Justice so close to an tion has extremely far-reaching con-
Judge Barrett’s impartiality at issue election would delegitimize our insti- sequences.
when he confessed that he needed tutions and harm the Republic that he We are just a few days from election
Judge Barrett on the Supreme Court to was fighting so hard to preserve. day. Already over 2 million
decide any election disputes. He did it That is the precedent that President Michiganders have voted, and many
when he said he would only appoint a Trump and Senate Republicans have more are voting as I speak here today.
Justice who would help to overturn the disregarded as they quickly plotted to With all that is at stake, Michiganders
healthcare law. fill the seat just hours, if not minutes, deserve a say in who nominates and
After reviewing Judge Barrett’s after Justice Ginsburg’s passing. confirms the next Justice to our Na-
record and listening to her testimony In addition to breaking with this his- tion’s highest Court. And the fact that
before the Judiciary Committee, it is torical precedent, Republicans are also Michiganders are being denied this op-
becoming clear that we have a binary jamming through their nomination in portunity is simply unacceptable.
choice: We can have the Affordable the middle of a pandemic that is grip- Therefore, I cannot support this nom-
Care Act, or we can have Amy Coney ping our country. ination process. It should wait until a
Barrett on the Supreme Court. We can Instead of prioritizing Michigan first new President and Senate take office
have the ACA, or we can have ACB, but responders, small businesses, workers, following an election to take place in
we can’t have both. teachers, families, and healthcare pro- only a few days. For this reason and
Judge Barrett needs to do the right fessionals who are still suffering many others, I will not be voting for
thing and recuse herself. through the effects of the coronavirus Judge Barrett’s confirmation. I will
I will conclude by noting the irony pandemic, Senate Republicans and the cast a ‘‘no’’ vote.
that Ruth Bader Ginsburg and MITCH President are instead laser-focused on Here we are. Instead of bringing folks
MCCONNELL were both on the same jamming through a Supreme Court together to find common ground on
page as to this nomination. In 2016, nominee for a lifetime appointment. coronavirus relief, our country is being
Senator MCCONNELL gave us his prom- This is more than just political forced to go through a divisive Su-
ise that the Senate would not fill a va- gamesmanship. This nominee will sig- preme Court nomination process. It
cancy on the Supreme Court in a Presi- nificantly impact the lives of simply did not have to be this way.
dential election year. After she passed, Michiganians and folks all across our I continue to stand ready to roll up
we learned that it was Justice Gins- country. my sleeves and put together a com-
burg’s dying wish that she not be re- We know that the Supreme Court is prehensive, bipartisan, and meaningful
placed until a new President is in- set to shortly consider a case that has COVID relief package. Ask any Michi-
stalled. So let’s hold MITCH MCCONNELL far-reaching ramifications for people’s gander what they are worried about
and LINDSEY GRAHAM to their words healthcare. The Trump administration today, and you are going to get the
and honor Justice Ginsburg’s fervent is arguing in Court that the Affordable same answers from them. They are
wish: no confirmation before inaugura- Care Act should be overturned in a case worried about being able to put food on
tion. that will come before the Supreme the table or a roof over their head.
But if Republicans succeed here Court in November, just 7 days after They are worried about getting or
today in their effort to confirm yet an- election day. keeping a job to support their families.
other conservative Supreme Court Jus- If the Trump administration gets its They are worried about catching a
tice just days before the Presidential way in this lawsuit, we could go back virus that has killed over 7,000 of their
election, as soon as the Democrats to the days when insurance companies fellow Michiganders and over 220,000
take back control of the Senate in Jan- once again call the shots on people’s people all across our Nation. They are
uary, we must abolish the filibuster healthcare. Over 4 million worried that, if they survive a COVID
and expand the Supreme Court. We Michiganders with preexisting infection, it will compromise their
cannot allow such corrupt partisanship healthcare conditions could be denied health for the rest of their lives. They
SSpencer on DSK126QN23PROD with SENATE
to take precedence over justice and lib- coverage. Seniors could be charged will have a preexisting condition.
erty in our country. more for prescription drugs. Lifetime So I ask: Why isn’t this pandemic the
I will vote against the confirmation and annual limits on coverage could Senate’s top priority right now? When
of Judge Amy Coney Barrett to the make costs unaffordable and, as a re- we passed the CARES Act, we came to-
U.S. Supreme Court and urge my col- sult, force families into bankruptcy. gether. We put politics aside and
leagues—all of my colleagues—to do Before the passage of the Affordable passed a real comprehensive package
the same. Care Act, medical debt was the No. 1 that helped keep millions of people
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6573
stay afloat. We need to summon that Obama’s final term, Senate Repub- For all the talk of activist judges, it
spirit again. Michiganders are counting licans refused to even hold hearings on is my Republican colleagues who are
on us. Americans across this country Merrick Garland, the nominee to re- right now attempting to add one whop-
are counting on us. place the late justice Antonin Scalia. per of an activist to the Supreme
I implore my colleagues to drop what Then, they dismantled the rules that Court.
we are doing, and let’s come together had ensured that both parties would Next month, the Supreme Court will
and pass a meaningful, bipartisan have a seat at the table on Supreme take up President Trump’s case to
COVID relief package, and let’s get Court nominations. Then, they bull- eliminate the Affordable Care Act in
that done now. rushed the vetting process for Justice its entirety. That is right. In the mid-
I yield the floor. Kavanaugh’s lifetime appointment to dle of this pandemic that has now
The PRESIDING OFFICER. The Sen- the Court, despite multiple, credible al- killed more than 220,000 Americans and
ator from New Mexico. legations of sexual misconduct. infected millions more, the Supreme
Mr. HEINRICH. Mr. President, I rise After all of that, I suppose it should Court is taking up a case that could
today as more than 220,000 Americans have come as no real surprise that Ma- eliminate healthcare coverage for mil-
are dead from the coronavirus. There jority Leader MCCONNELL waited less lions of Americans.
are more than 4 million fewer jobs than than an hour after the announcement Judge Barrett refused to answer
when Donald Trump took office. We are of Justice Ruth Bader Ginsburg’s death questions about the Affordable Care
still squarely in the middle of this pan- to say that he was going to push the Act during her confirmation hearing
demic and an economic crisis, the likes envelope even further. last week. But her views on the
of which we have not seen since the So here we are. Leader MCCONNELL healthcare law are clear and they are
Great Depression. and Republicans are now forcing the exposed in the public record. Judge
In recent weeks, cases of the Senate to rush through another par- Barrett has repeatedly and publicly
coronavirus have risen dramatically. In tisan Supreme Court confirmation bat- criticized the Affordable Care Act. She
my home State of New Mexico—and, tle in mere weeks—and now mere days has said that the Supreme Court
frankly, across the entire country—ev- before election day. should have already invalidated it. If
eryone is rightly worried about wheth- They are shamelessly discarding Senate Republicans have their way, she
er our schools, our childcare centers, their own precedents, breaking their will have the opportunity to do just
and our small businesses can acquire own rules, abandoning their own words, that.
the resources and the equipment they and they are trampling on the legacy What would it mean if the Supreme
need to reopen safely. of Justice Ruth Bader Ginsburg. Before Court overturns the Affordable Care
We still don’t have enough resources her death, Justice Ginsburg told her Act? It means bringing back discrimi-
or even a national plan for testing and granddaughter that her ‘‘most fervent nation, higher costs, and even outright
contact tracing, much less for treat- wish’’ was that her seat wouldn’t be denial of coverage for more than 800,000
ments and the eventual nationwide dis- filled until after the next President is New Mexicans living with preexisting
tribution of an FDA-approved vaccine inaugurated. conditions like heart disease, diabetes,
that would allow us to finally get a Justice Ginsburg served on our Na- cancer, and now COVID–19.
handle on this virus. tion’s highest Court for nearly three I am particularly worried about what
If we don’t pass real economic relief decades and worked for decades before this would mean for the people in In-
in the coming weeks, many families in that to move our country’s laws toward dian Country, who have been dispropor-
New Mexico will face desperate greater equality. She understood that tionately impacted by this pandemic.
choices—between paying their bills, the American people must trust that In New Mexico, Tribal nations have ex-
keeping a roof over their heads, and the Supreme Court Justices are acting perienced heartbreaking losses, and
putting food on the table. Yet here we above the partisan politics of the mo- healthcare resources in Tribal commu-
are, using valuable time on a Supreme ment. nities have been incredibly strained.
Court confirmation process that should The next Presidential election is now I have lost friends and mentors in In-
never have been taken up before the less than two weeks away. Millions of dian Country, and I know others who
election. Americans have already voted for their are still struggling to recover from this
Senate Republicans say they aren’t next President and their next Senators. virus. I can’t even imagine how much
going to negotiate another coronavirus I believe that these Americans deserve worse this situation could become if
relief package. They say it is more im- a voice in this process. the health coverage provided by the Af-
portant to ram a Supreme Court nomi- In the words of Majority Leader fordable Care Act were ripped away.
nee through a broken and nakedly po- MCCONNELL himself, as was reported in When we passed the Affordable Care
litical process than it is to help the the Washington Post on February 18, Act, I fought hard to include a perma-
people that we were all elected to 2016, ‘‘Given that we are in the midst of nent reauthorization of the entire In-
serve. a presidential election process . . . the dian Health Care Improvement Act,
Clearly, nothing—not even the lives American people should seize the op- which supports the care provided to
or livelihoods of the American people— portunity to weigh in on whom they Native Americans through the Indian
will get in the way of their power-grab trust to nominate the next person for a Health Service.
design to reward their biggest donors lifetime appointment to the Supreme An estimated 290,000 American Indi-
and the most extreme interests. Court.’’ ans and Alaskan Natives also gained
Let me say this clearly: I disagree. The Senate should follow that prece- health coverage through the Affordable
There is still so much that we need to dent and should allow voters to decide Care Act’s Medicaid expansion. All of
do to stop the spread of the who should fill this Supreme Court that is at risk if the Supreme Court
coronavirus and to support families, seat. What has changed for Majority overturns the Affordable Care Act.
workers, and businesses that are strug- Leader MCCONNELL? Well, over the last If Judge Barrett is confirmed, she
gling and to rebuild our communities. decade, the Court has made razor-thin will also attack other important Su-
Let’s move to that urgent action. 5-to-4 rulings on women’s rights, preme Court precedents, from Roe v.
But with Senate Republicans refus- LGBTQ rights, workers’ rights, immi- Wade to the recent marriage equality
ing to do that, let’s discuss in real gration, voting rights, civil rights, cli- decisions. She dodged questions on
terms what they are doing instead. mate change, and so much else. My Re- these issues during her hearing.
Considering and confirming Supreme publican colleagues will say that these But her academic and judicial record
SSpencer on DSK126QN23PROD with SENATE
Court nominees is one of a Senator’s decisions were made by activist judges made clear Judge Barrett’s extreme be-
most solemn duties under the Constitu- and that all they want are judges who liefs and philosophy. In her hearing
tion. We are supposed to take it seri- will call balls and strikes. But what last week, Judge Barrett also refused
ously and deliberately, but Senate Re- they really want are judges who will to take a firm view on climate change.
publicans have thrown out the rule make those calls consistently biased We have major wildfires burning right
book. It started when, with nearly a toward wealth and power, rather than now in Northern New Mexico—in Octo-
full year remaining in President toward people. ber—Colorado and California are seeing
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S6574 CONGRESSIONAL RECORD — SENATE October 25, 2020
much of the same. We don’t have time concerns of religious conservatives and lating from the Bench and actually ad-
to debate the undisputed facts and re- faithful Americans and who had hering to the Constitution and the
alities of climate change, especially watched the Supreme Court legislate laws.
with a judge who would strip us of the and depart from the text of written I am proud to support the nomina-
tools needed to address it. laws with barely any concern for the tion and confirmation of Judge Amy
Tellingly, Judge Barrett also refused effects on religious liberties. In fact, it Barrett because her record makes
to agree to recuse herself from any de- tossed aside concerns about religious abundantly clear that she understands
cisions related to the upcoming Presi- liberty, religious freedom, and in one the role of a judge and that she under-
dential election. Given that President or two lines of opinions, the effect on stands the role that the Constitution
Trump considers Judge Barrett ‘‘his’’ religious institutions. This is what we assigns to the judiciary. It is not the
Justice, this creates a dangerous con- have been seeing from the U.S. Su- role of legislating. It is not the role of
flict of interest. It is also a very real preme Court. imposing policy preferences or personal
threat to the foundation of the Su- Religious conservatives have come to views. It is the role of following the
preme Court as an equal and inde- a place of asking: What is it that we law. Her record indicates that she un-
pendent branch of government. are fighting for? What is it that we derstands that and is committed to fol-
Meanwhile, instead of attempting to have been working for and voting for lowing that role and committed to re-
tear down our democracy, the House of all of these years? Is anybody actually viving that approach, that constitu-
Representatives has passed multiple listening to us? Do our votes really tional approach to judgment—that she
coronavirus relief bills over the last 6 matter? will fight for it and revive it on the Su-
months that would help workers and Those are the questions that reli- preme Court of the United States.
gious conservatives were asking in So I am delighted to support her
families. And they are already willing
nomination. I am delighted to have
and able to negotiate with the Presi- July of this year, and that is why the
someone of her convictions. I am de-
dent, to negotiate with Leader MCCON- nomination of Amy Coney Barrett to
lighted to have someone who has taken
NELL to come to some sort of bipar- the Supreme Court of the United
the stances that she has taken as a
tisan agreement. Majority Leader States comes as such historic and wel-
legal practitioner, as an academic, and
MCCONNELL and Senate Republicans comed news to people of faith in this as a judge. Yes, that includes her posi-
have walked away from the negotiating country, to religious conservatives, tion on life, and, yes, that includes her
table, leaving us with nothing but false and to all who believe in the rule of law position on Roe.
promises and sham bills to provide in America. We will set a precedent tonight that
themselves a little political cover be- The nomination of Amy Coney Bar- people of faith and people of the con-
fore an election. rett is truly historic. This is the most victions that Judge Barrett has and
We all know the real story here. Be- openly pro-life judicial nominee to the shares are welcomed in this country in
hind closed doors, Majority Leader Supreme Court in my lifetime. This is every office. They are welcomed on the
MCCONNELL is actively discouraging an individual who has been open in her highest Court in the land, and we need
negotiations on a bipartisan relief bill. criticism of that illegitimate decision not ask people of convictions to give up
Let me say this to Majority Leader Roe v. Wade. those convictions in order to serve on
MCCONNELL and all of my Republican She is a nominee who has been open the Supreme Court of the United
colleagues: If voters reelect your Re- about her faith and her faith commit- States. We need not say: Oh, you have
publican majority and President ments and the way she and her husband to scrub your personal views. Oh, you
Trump, there will be plenty of time to live their lives—immersed in their have to pretend that you don’t have re-
move forward with a real and legiti- Catholic faith—and raise their children ligious faith or you have to pretend
mate Supreme Court confirmation in their Catholic faith and want others that it doesn’t matter to you. You have
process. to have the freedom to be able to do to renounce your past record. We do
Right now, we should be focusing all the same. Her nomination and, I antici- not have to do any of that.
of our energy on delivering the aid that pate, her confirmation tonight, in just What we have to ask them to do is to
Americans so desperately need, pro- a few hours on this floor, will show understand the difference between
tecting the health and the economic that there is nothing wrong with any of judging and lawmaking. What we have
well-being of Americans. That is what that. to ask them to do is to understand
our country expects of us. That is our In fact, people of faith should be wel- their role that the Constitution assigns
duty. Let’s get to it. comed on the Supreme Court of the them. We have to ask them to be com-
I yield the floor. United States, and people of Judge mitted to following the law. I am con-
The PRESIDING OFFICER (Ms. Barrett’s convictions should be wel- vinced, based on her record, that Judge
ERNST). The Senator from Missouri. comed on the Supreme Court of the Barrett will do exactly that.
Mr. HAWLEY. Madam President, United States. In just a few hours, with For those reasons, I am delighted to
some months ago, in July of this year, the vote of this body, we will confirm support her confirmation, and I look
I came to this floor shortly after the that this is, indeed, the case. forward to this historic vote in just a
conclusion of the Supreme Court’s I have to say that Judge Barrett’s few hours’ time.
most recent term to lament the ongo- own positions and her convictions give I yield the floor.
ing judicial activism—the judicial im- me great confidence that she under- The PRESIDING OFFICER. The Sen-
perialism—that we have seen from this stands the difference between judging ator from Missouri.
and legislating—that she will not be a Mr. HAWLEY. Madam President, I
Court over this past term and from the
judicial imperialist as I have talked suggest the absence of a quorum.
Supreme Court for years on end. The PRESIDING OFFICER. The
I quote the late Justice Scalia who about on this floor in months past.
Now, I said earlier this year that I clerk will call the roll.
said: ‘‘The imperial judiciary lives.’’ The senior assistant legislative clerk
I said on the floor of this Senate— would not vote for a Supreme Court
proceeded to call the roll.
and it was a shame to say but was un- nominee who did not understand the Mr. BOOKER. Madam President, I
deniable—that the imperial judiciary difference between judging, on the one ask unanimous consent that the order
continued to live in this country—a ju- hand, and legislating on the other and for the quorum call be rescinded.
diciary intent and a Supreme Court in- that I would not vote for a judicial im- The PRESIDING OFFICER. Without
tent on legislating from the Bench, on perialist. I specifically singled out Roe objection, it is so ordered.
making up laws that went along with v. Wade and said that I would not vote
SSpencer on DSK126QN23PROD with SENATE
Mr. BOOKER. Thank you, Madam
no regard for what the people actually for a Supreme Court nominee who did President, my colleague from Iowa. I
wrote in their statutes or in their laws. not understand that Roe was an act of am grateful.
I particularly lamented the position judicial imperialism and that, indeed, I Madam President, I rise today to
of religious conservatives, of people of wanted to see record evidence that the speak on the nomination of Amy Coney
faith, who had seen in this past term nominee understood that Roe was an Barrett. I rise in the midst of a pan-
from the U.S. Supreme Court decision act of judicial imperialism and under- demic, in the midst of an election proc-
after decision that tossed aside the stood the difference between legis- ess in which over 50 million Americans
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6575
have already voted, to speak with a floor, has spent years trying to over- Michelle lost her husband John sud-
simple call that we should wait. We turn the Affordable Care Act. In fact, denly last year, she also lost the health
should not be doing this as a body. between the House and the Senate, coverage she had through his job. But
Now, that is not a radical statement. there have been over 70 votes to over- she was able to get coverage through
It is a statement that has been said by turn the Affordable Care Act. the Affordable Care Act’s marketplace
pretty much every Member of the We know there is a case that will and qualify for a subsidy that made it
Democratic side, but it is also a state- come before the Supreme Court on No- more affordable for her. Today, she is
ment that was made by many people in vember 10 that could very well deter- insured, and she can manage her diabe-
the Republican Party before we got to mine whether over 600,000 people in my tes and her heart disease and her auto-
this juncture. State and 20 million people across the immune disease because of her cov-
It was said around the time that country can keep their health cov- erage. She said that if she lost her af-
Merrick Garland was up for nomina- erage. fordable healthcare, she would have to
tion by President Barack Obama 269 So this is not a secret. The American sell her home and would be in financial
days before an election, and people said people know what is going on. They see crisis.
that we were in an election season; what is happening here. Many of them, Losing the ACA for Merritt Bowman,
that we should wait. I believe, are going to the polls to who is a 49-year-old dad with twin boys
But this is not a typical election sea- speak about the issue of healthcare, and a football coach from New Jersey—
son. This is an election that is going on and instead of waiting and trusting to he said that before the ACA was
where the people are coming out to hear and listen to the will of the peo- passed, he didn’t even go to the doctor
speak on an array of issues. There is a ple, we are here right now. because he was afraid he couldn’t af-
profound urgency in the air—not a par- Folk are scared. We are, in a sense, ford it, putting his own health in dan-
tisan urgency. America has seen record walking through the valley of the shad- ger. After the ACA, he was able to get
turnout because they know what is at ow of death—the fourth largest mass affordable coverage. When he felt sick
stake in this election. casualty event in the history of our a few years back, he made a doctor’s
There are issues that are driving peo- country, and the death rate is rising appointment and was diagnosed with
ple to the polls, and in this context,
every single day. That is why so many diabetes. Today, thank God, his condi-
our President is doing what has never
Americans have been speaking out and tion has improved, but, he said: Now I
been done before. The only time this
calling out, because they know what have a preexisting condition. My insur-
had a chance to be done before was
this nomination could very well mean ance covers my medication and my
when Abraham Lincoln had a vacancy
for their lives and for the lives of their equipment to monitor my diabetes. If
on the Supreme Court in the midst of
family members. They know what a that is taken away from me, what is
an election—this close to an election.
world without the ACA would be like. going to happen? I can’t afford those
Abraham Lincoln—one of our greatest
For a President to nominate some- things on my own.
Presidents of all time—made a power-
one—a President hostile to the ACA—a I know this reality. We must know
ful choice. He had the power to move,
Supreme Court Justice who has spoken this reality. We must listen to Ameri-
and he had the power to nominate, but
to this, they know what this might cans right now who are saying openly:
he showed a restraint on power. He
mean. We know that for 3.8 million I am going to the polls because of my
showed, in a sense, what we would call
New Jerseyans and 130 million Ameri- fears on healthcare.
an act of grace. He knew that in the
cans who have preexisting conditions— Yet we are going through—instead of
midst of an election, when people were
people with diabetes; cancer survivors; waiting to listen to our fellow Ameri-
coming out to speak, that it was better
to wait. people with diseases like my dad had, cans, showing that grace that they
This grace is also what was called for Parkinson’s—it could mean being should decide, we are rushing forward.
by Ruth Bader Ginsburg on her death- charged more or being denied coverage What about protections that are
bed. She didn’t know who would win completely. This is a terrifying reality. granted people like those under Roe v.
this election, but she thought it was Folk who are going to the polls, wait- Wade? What about that? Those are de-
best to call to the better angels of our ing hours in a line, know what it could cisions that we should let voters de-
nature; that sometimes the greatest mean—that once again more people are cide. We should listen to the American
demonstration of power is when we do going to be bankrupted by outrageous people. What about protections for
not use it; that this precious democ- medical bills. workers? What about protections for
racy, this great experiment that has They know what it could mean for organizers? What about voting rights?
endured for this period of time, has lifetime caps on care for children with All of these issues in the midst of an
sustained itself on acts of decency and complex medical conditions. election deserve to be decided by the
grace and most importantly on trust— They know what it could mean for a people.
trusting people, trusting Americans, family with a child who survived a The American people know what is at
and trusting voters. medical procedure and another medical stake right now because we know that
We haven’t always gotten it right, procedure and another medical proce- Donald Trump nominated Judge Bar-
but this fundamental ideal that when dure, surgery after surgery, being told: rett with a very specific agenda in
people are exercising their voice, the If you want your child to live, pay for mind. He told us very clearly. We know
people in this body should listen. Over it yourself. that Donald Trump wants the Afford-
50 million Americans. We are days—in So many Americans know what it able Care Act to be overturned, and he
fact, hours—away from the actual elec- would mean for seniors not being able would appoint judges he believes would
tion day, but the process has started to afford lifesaving prescriptions, mak- do that. We know that Donald Trump
already. People are speaking, but we ing the dangerous decision to cut pills wants Roe v. Wade overturned. He has
are refusing to listen. in half or ration their insulin. explicitly told us that. We know that
I fear that what is driving many peo- So many Americans know that losing Donald Trump wants us to question the
ple to the polls are some of the very the ACA could mean real tragedy. validity of an election because he has
issues that this Supreme Court Justice In New Jersey, over 600,000 people are questioned the validity of an election
will be in a position to hear. We know losing their healthcare in the middle of that is ongoing right now.
that Donald Trump spent the last 4 a pandemic that in my State has al- I never imagined I would have a day
years trying to overturn the Affordable ready killed 16,000 of our first respond- in my life as an American citizen—I
ers, our neighbors, and in many cases have watched other countries, but I
SSpencer on DSK126QN23PROD with SENATE
Care Act. He made a promise to only
appoint Justices who would overturn our friends and our family members. never thought in my own we would
it. He promised that he would nomi- These are numbers, these are data, and have a leader who would question the
nate a judge who would ‘‘do the right these are statistics, but each one is a validity of an election, going as far as
thing unlike Bush’s appointee John human life. Each one has dignity, and to say: If I lose, this election was
Roberts on ObamaCare.’’ This is clear. each one has family. rigged, and it was illegitimate.
We know that the majority leader, I know, for example, Michelle Lewris That does real damage to not just
MITCH MCCONNELL, controlling this from Palisades Park, NJ. When this moment in time; it does damage to
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S6576 CONGRESSIONAL RECORD — SENATE October 25, 2020
our very institutions and our processes down near the Presiding Officer and the Illinois Department of Transpor-
that are essential for this democracy. raised my hand, like so many of us tation. This employee claimed that he
It is dangerous language. have—like all of us have—to protect had been the subject of a hostile work
The behavior of this President is so and defend the Constitution of the environment and that his supervisor
dangerous that his own Cabinet mem- United States. had called him the N-word. Judge Bar-
bers—former Cabinet members—have To not see us right now, in the midst rett ruled against him saying that de-
called it out. of a potential constitutional convul- spite documenting being called the N-
I know the strength of our Nation, sion; in the midst of a potential con- word by his supervisor, the employee
but our institutions must be protected, stitutional crisis where a President had failed to make the case that he had
and they must be preserved. The proc- himself is not committing to the been fired in retaliation for complaints
esses that ensure this democracy con- peaceful transfer of power; where there about race discrimination.
tinues to go on so that our truth goes are people organizing to do harm to When I asked Judge Barrett why she
marching on—all have to be protected. elected leaders, kidnap them; when you ruled that a supervisor using a vial and
When you have a President who calls could go online right now and look at derogatory term, one that carries with
into question our very election proc- groups calling out to people with Spe- it a history of racial subjugation and
esses and literally says ‘‘If I lose, it is cial Forces training to go to polls and violence like the ‘‘N-word,’’ did not
illegitimate’’ and then says ‘‘I won’t perhaps cause mayhem—I don’t under- constitute a hostile work environ-
even commit to a peaceful transfer of stand why we don’t share a bipartisan, ment—I mentioned that Judge
power,’’ that should raise alarms. That deep concern for what is happening Kavanaugh, in a similar case, ruled
is why people within his own party, right now in our country and how this that it did—I was surprised after her
people who served in his own Cabinet, moment in American history fits into answers to go back and read the case.
people respected in this entire body, the concern that moving forward right She had muddied the facts in the case.
like General Mattis, former Secretary now causes danger and causes harm. In fact, she blatantly mischaracterized
of Defense, have said that Donald I would be remiss to not mention a key fact in the case.
Trump is a threat to our democracy. that in the midst of it all, we are also Judge Barrett said: ‘‘He didn’t tie the
It is in that context, in the middle of in the midst of a racial awakening in use of the N-word into the evidence
a national crisis, that we are in the our country. We saw what are perhaps that he introduced for his hostile work
midst of an election, and we can’t even the largest demonstrations in our Na- environment claim.’’ When, in fact, the
get a Supreme Court nominee to com- tion around issues of racial justice—all employee’s reply brief states: ‘‘Appel-
mit themselves to the idea of the 50 States, towns and communities from lant’s position is that the combination
peaceful transfer of power, who the all backgrounds, people marching and of the N-word and the acts identified
President himself has said he is rush- protesting around race issues. It has immediately above did create a hostile
ing to the highest Court in the land be- led millions of Americans to learn work environment.’’
cause he believes that this election more about our own history, discov- She mischaracterized her own ruling
may be decided by that judge. That ering things like the Tulsa massacre, claiming, ‘‘So the panel very carefully
judge won’t even commit to being discovering things like the Colfax mas- wrote the opinion to make clear that it
recused under these circumstances. Is sacre, going to the incredible museum was possible for one use of the N-word
that strengthening our democracy? Is in Alabama for lynching, where thou- to be enough to establish a hostile
that girding trust in our country’s sands of Americans were lynched in our work environment claim if overplayed
processes, or is it weakening them? Be- country, discovering our history and that way,’’ when, in fact, her opinion
cause it clearly is doing damage to how it ties directly to the President. stated something different:
what is necessary for the endurance of In the midst of all of this, we know The N-word is an egregious epitaph. That
our country and our ideas. that issues of race and the law will said, Smith can’t win simply by providing
These aren’t just my words; these are continuously come up before the Court that the N-word was uttered.
the words of people on both sides of until we have justice rolling down like Again, even Justice Kavanaugh stat-
America’s political divide. Yet we are water and righteousness like a mighty ed that being called the N-word by a
not showing restraint in this moment. stream. supervisor suffices in itself to establish
We are not showing that grace. We are In the midst of all of this, even in my a racially hostile work environment.
rushing for short-term gain for one po- conversations with this nominee, I was Again, in this context, at a moment
litical party and long-term damage to surprised that they could not speak to that our country is moving in numbers
our Nation. one article, one Law Review article, we have not seen before, we have a Jus-
I don’t understand why this is not one column, or one book they have tice that mischaracterizes a case,
something that raises worry and con- read about issues of race in the law, doesn’t speak directly to the facts, as
cern—a President who so easily trashes when we are still in a nation that has plain as they were, and can’t engage in
some of our most valued and sac- such bias in its outcome, where just by a substantive conversation about any
rosanct ideas. the color of their skin they are directly scholarship whatsoever around race in
I remember the hurt I felt when correlated with longer sentences, more America.
peaceful protesters in Lafayette Park likely to get the mandatory minimum, I would like to read an excerpt of the
were turned upon. I remember a note I more likely to get the death penalty, letter from Derrick Johnson, President
was forwarded from a college class- where we see no difference between and CEO of the NAACP. He writes: ‘‘It
mate—if I have it correct—about her Blacks and Whites in America for using is disturbing enough that Judge Bar-
son being hit with a rubber bullet. I re- marijuana or selling marijuana, but rett declined to rule that use of this
member journalists whom I had gotten Blacks are almost four times more vial epitaph constituted a racially hos-
to know in these very hallways telling likely to be arrested for possession of tile work environment, but her mis-
me about the horror of seeing the panic marijuana, getting criminal convic- representation to the Judiciary Com-
and the screams and the running as the tions for doing things that two of the mittee about the basis for her ruling
gas and the rubber bullets hit. I saw last three Presidents admitted to raises serious questions about her
how a President seemed to utilize the doing. truthfulness and candor under oath
military to menace what is one of our And in the midst of all of this that that extended far beyond this par-
most important constitutional protec- has activated so many Americans and ticular case.’’
tions—the right to protest peacefully. many even in the polls today, I I ask unanimous consent that a let-
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I have seen 4 years now of too many couldn’t get even a dialogue going ter from the Black Lives Matter Global
people who have remained silent in the about issues of race. Network Foundation signed by 18,000
face of erosions to our constitutional When I specifically asked about a Americans in opposition to the nomi-
norms as the President has so willingly case, Judge Barrett’s case in Smith v. nation of Amy Coney Barrett to serve
trashed that which people on both sides Illinois Department of Transpor- as Associate Justice on the Supreme
of our political divide have worked so tation—this case involved a Black traf- Court of the United States be printed
hard to build up. I stood right there fic patrol driver who had been fired by in the RECORD.
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6577
There being no objection, the mate- voting and voting by mail. Their voices must in this. They look at the own words of
rial was ordered to be printed in the be heard and honored. Republican Senators and don’t under-
RECORD, as follows: Black Lives Matter wants a Supreme Court stand how hypocrisy like that can
that works for all of us. We will fight for
BLACK LIVES MATTER, stand—one standard for one President,
that Court. Corporate interests like insur-
October 21, 2020. ance companies, drug companies, and the another standard for another.
Hon. LINDSEY GRAHAM, gun industry have worked for years to pack But I want to tell everyone who is
Chairman, Senate Judiciary Committee, the courts to ensure that they work for hurting right now, everyone who is
Washington, DC. them, not for the rest of us. To have courts worried about our Republic, everyone
Hon. DIANNE FEINSTEIN, that protect equal justice for everyone, we who is concerned in this moment about
Ranking Member, Senate Judiciary Committee, need a nominee who will fight against these
Washington, DC. their healthcare and their voting
corporations and protect the rights of every- rights and their Nation that this is not
Re Opposition to the Nomination of Amy day working people. We need a Justice who
Coney Barrett to the Supreme Court of a time to give up. There will be dif-
won’t pick and choose whose rights to de-
the United States. fend, but one who will work to protect equal
ficult days ahead, but it is not a time
DEAR CHAIRMAN GRAHAM AND RANKING justice for all. Amy Coney Barrett is not to give up.
MEMBER FEINSTEIN: On behalf of Black Lives that nominee. She will not be that Justice. We know that healthcare is at risk,
Matter Global Network Foundation, Inc. the Our rights and the future of our democracy but it is not a time to give up. We
umbrella organization for our global move- is at stake. Because Amy Coney Barrett puts know that women controlling their
ment, I strongly urge you to oppose the nom- the wealthy and powerful first, the Court own bodies, sacrosanct as that idea is
ination of Amy Coney Barrett to serve as As- will continue making decisions that deny and as under threat as it now is—it is
sociate Justice on the Supreme Court of the Americans’ voting rights, put corporations
United States. not a time to give up. LGBTQ rights
ahead of people, refuse to recognize and re-
The New York Times recently recognized are under threat, but it is not a time to
mediate discrimination, and limit access to
Black Lives Matter as the largest, most di- health care. give up. We cannot give up in the cause
verse civil and human rights movement in Black Lives Matter must also note that of our country. It is not a right cause
the history of both our country and the Amy Coney Barrett currently occupies a ju- or a left cause. It is a right and wrong
world. We cannot stand back nor stand by as dicial seat meant for a Black woman. She as- cause.
partisan political games threaten irreparable cended over Black women with greater quali- We can be a nation that builds for
harm to the last branch of government fications and more professional experience.
where Black Americans can turn for protec-
posterity a functioning republic that
In 2017, Donald Trump appointed Barrett to can elevate the best of human ideals
tion and justice. an Indiana seat in the U.S. Court of Appeals
As imperfect as our American judicial sys- like grace. We cannot give up in this
for the Seventh Circuit, which covers Indi-
tem has been, it has traditionally had at
ana, Illinois, and Wisconsin. This is the same
moment. We cannot meet darkness
least the veneer of an avenue for recourse for with darkness. We cannot surrender to
seat to which President Obama nominated
marginalized groups. This political hijacking cynicism about our systems. We have
Myra Selby, a Black woman, in 2016. But Re-
of the nominating process to the highest to keep pressing forward.
publican Senators blocked Myra Selby’s con-
court in the land goes against the purpose I still believe that our Nation’s his-
firmation and saved the seat for Donald
and intent of the Constitution you are sworn
to uphold.
Trump. After Trump was elected, the Sev- tory, as speckled as it is with wretch-
enth Circuit lost its only judge of color to re- edness and pain, is still a story that is
The U.S. Supreme Court has always been
tirement. In total, Trump had four vacancies a testimony to the overcoming of in-
crucial to the progress of African Americans.
to fill on this circuit. Instead of nominating
Our rights to fully participate in democracy justice and the better securing of it. I
a person of color to restore diversity to the
and in every facet of social and economic still believe that we do live in a nation
court, Trump appointed four white judges,
life, on an equal basis, lie in the balance. where the truth does prevail in the end.
including Amy Barrett, making the Seventh
From Brown v. Board of Education to Shelby I still believe that even when wrongs
Circuit the only all white federal appellate
County v. Holder, we have seen the power of
court in the country. are done, they can be righted. I still be-
the Supreme Court to both advance and un-
dermine civil rights and equal justice under
The judicial oath for the Supreme Court lieve that though this may become,
states ‘‘I solemnly swear (or affirm) that I today, a moment of shame, we can re-
law. Each year, the Court decides critical
will administer justice without respect to claim in this Nation the ideals of our
cases involving voting rights, equal edu-
persons, and do equal right to the poor and
cational opportunity, fair employment, fair Founders—those testimonies to grace,
to the rich, and that I will faithfully and im-
housing, women’s rights, access to the commitment to each other of their
partially discharge and perform all the du-
healthcare, immigration, consumer rights, sacred honor—that we still can take a
ties incumbent upon me’’. Judge Barrett has
environmental justice, and criminal justice. body politic, wounded and injured, and
failed to show she is capable of holding true
These decisions directly impact our lives,
to those principles. We take her at her in our country find healing, find re-
our families, and our communities for gen-
erations.
opined word and believe she is who she has demption, and find grace.
Placing someone like Barrett who has a shown us to be. I yield the floor.
record of flagrant disregard for established For these reasons, Black Lives Matter The PRESIDING OFFICER (Mr.
precedent, especially on issues related to strongly opposes the nomination of Judge BOOZMAN). The minority leader.
race, on the Court is dangerous for Barrett to the Supreme Court. Thank you
COMPOUND MOTION
marginalized people. Smith v. Illinois De- for your consideration of our position.
Respectfully, Mr. SCHUMER. Mr. President, as we
partment of Transportation, is only one ex-
PATRISSE CULLERS, speak, over 60 million Americans have
ample of her dangerous jurisprudence. In the
aforementioned case, Barrett ruled that Co-Founder and Exec- voted. The Republican majority is ig-
being called the n-word by a supervisor does utive Director, Black noring—even laughing—at their wish-
not constitute a hostile work environment. Lives Matter Global es.
So extreme is this ruling, that it places Bar- Network Founda- Despite what the American people
rett to the right of Justice Kavanaugh, who tion, Inc. want and whom they will vote for, this
in 2013 wrote that a single use of this epithet Mr. BOOKER. So I appeal, again, one Republican majority is ramming this
‘‘suffices by itself to establish a racially hos- last time to the conscience of the Sen- nomination through only because they
tile work environment.’’ The means by ate. This is not a time to proceed. This can. Might makes right, in their view.
which Judge Barrett reached this extraor- is a time for grace. It is not a time to
dinary conclusion, by relying on grounds
That is so wrong. That is so against the
that neither the trial court nor either party
proceed. It is a time to firm up the American principle of democracy and
had raised, reveals the jurisprudential gym- foundations of our Republic. It is not a rule of law.
nastics to which she was willing to undergo time to proceed. It is a time to listen So I will move to adjourn so that we
in order to reach this disturbing conclusion. to the American people. It is a time to consider this nomination after the
The nomination of Amy Coney Barrett in listen to the voters lined up now. It is election that is now ongoing—not be-
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the middle of a presidential election poses a a time to listen and wait. fore it, not 8 days before it.
grave threat to the integrity and legitimacy I know there are a lot of Americans Therefore, Mr. President, I move to
of the bastion of the Judicial Branch of gov-
who are concerned right now, not with adjourn and to then convene for pro
ernment. Justice Ginsburg passed away on
September 17. Thirteen days after, voting the one nominee but with how this forma sessions only, with no business
began. At least 31.4 million people have al- process has gone. It is a process that is being conducted, at 12 noon on the fol-
ready voted for President and for their Sen- eroding people’s trust and their faith in lowing dates and that, following each
ators in this election, both through early the institution. They don’t see fairness pro forma session, the Senate adjourn
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S6578 CONGRESSIONAL RECORD — SENATE October 25, 2020
until the next pro forma session: Tues- NOMINATION OF AMY CONEY BARRETT about knowing the American people
day, October 27; Friday, October 30; Mr. COONS. Mr. President, I ask the have turned against the President, es-
Tuesday, November 3; Friday, Novem- question, as I have for several weeks pecially because of his failed, flawed,
ber 6; further, that if there is an agree- now: Why are we here? What I hear and ultimately disastrous response to
ment on legislation in relation to the from my constituents in Delaware, as I this pandemic. We are not turning the
COVID pandemic, the Senate may con- heard earlier today at an event at corner as he declared just this week.
vene under the authority of S. Res. 296 Westside Health: Why is this Senate in We have a record-high number of cases
of the 108th Congress; finally, that session now in the midst of a nation- in dozens of States, an outbreak uncon-
when the Senate adjourns on Friday, wide pandemic, focusing on rushing trolled, unmanaged, and leadership
November 6, it next convene at 4:30 through a nominee for the U.S. Su- that is uncaring.
p.m., Monday, November 9, and that preme Court rather than doing every- My colleagues know the election is
following the prayer and pledge, the thing we can to work across the aisle upon us. Many are up for reelection.
morning hour be deemed expired, the to craft a solution to the problems, the So, when Justice Ginsburg tragically
Journal of proceedings be approved to crises facing our Nation—tens of mil- passed away just a few weeks ago,
date, the time for the two leaders be lions of Americans unemployed, hun- President Trump and my colleagues
reserved for their use later in the day, dreds of thousands of businesses perma- saw one last opportunity—one last
and morning business be closed. nently closed? There are schools all chance—to decide the balance of the
The PRESIDING OFFICER. That mo- over the country that are either not Supreme Court not just for a year or a
tion would require unanimous consent yet open or are just barely open, and term but for decades and to come and
and is not in order. thousands upon thousands of Ameri- entrench a hard-right majority, whose
Mr. SCHUMER. I appeal the ruling of cans have died alone, in pain, views are far outside the American
the Chair and ask for the yeas and uncomforted by family and uncertain mainstream.
nays. of how they came to be in this place, As my Democratic colleagues and I
The PRESIDING OFFICER. Is there a uncared-for by their country. There have been laying out in the Judiciary
sufficient second? have been 81⁄2 million infected and Committee and in speeches here on this
There appears to be a sufficient sec- 220,000 or more who are dead. floor, that hard-right turn will have
ond. We are in the middle of a tragic pan- lasting, serious, significant, even dev-
The yeas and nays are ordered. demic and a recession made worse by astating consequences for the Amer-
The question is, Shall the decision of our President’s bungled mishandling of ican people.
the Chair stand as the judgment of the that pandemic, and instead of coming After digging into and studying
Senate? together and providing the relief that Judge Barrett’s record as a law pro-
The clerk will call the roll. all of our States and all of our people fessor and as a judge—her writings, her
The legislative clerk called the roll. are calling for, we are doing this. We speeches, her opinions—I am convinced
Mr. DURBIN. I announce that the are doing this. Instead, my Republican that she will come to the Supreme
Senator from California (Ms. HARRIS) is colleagues are walking over a dan- Court with both a deeply conservative,
necessarily absent. gerous precipice. They are doing some- originalist philosophy in the style of
The PRESIDING OFFICER. Are there thing that was, according to Chairman Justice Scalia and a judicial activism
any other Senators in the Chamber de- GRAHAM of the Senate Judiciary Com- even further to the right that will put
siring to vote? mittee, unthinkable just 2 years ago. at risk longstanding rights the Amer-
The result was announced—yeas 53, In the last 10 days before a Presi- ican people hold dear in nearly every
nays 46, as follows: dential election—in the last month be- aspect of our modern lives. Simply put,
[Rollcall Vote No. 223 Ex.] fore a Presidential election—they are Judge Barrett as Justice Barrett, I am
YEAS—53 ramming through for a lifetime ap- convinced, will open a new chapter of
Alexander Fischer Perdue pointment to the Supreme Court Presi- conservative judicial activism unlike
Barrasso Gardner Portman
Blackburn Graham
dent Trump’s nominee. This is a rushed anything we have seen.
Risch
Blunt Grassley Roberts and partisan process in the midst of an Why would I think this?
Boozman Hawley Romney ongoing Presidential election. Why? First, Judge Barrett was handpicked
Braun Hoeven Rounds Why are we here, and why are they by President Trump after he made
Burr Hyde-Smith
Capito Inhofe
Rubio doing this? clear he wanted a new Justice to over-
Sasse I have heard a lot of talk from my turn the Affordable Care Act, with
Cassidy Johnson
Scott (FL)
Collins Kennedy
Scott (SC)
colleagues on the Judiciary Committee there being potentially catastrophic
Cornyn Lankford and here on the floor about Justices consequences for a majority of Ameri-
Cotton Shelby
Lee
Cramer Loeffler Sullivan and how they are not policymakers; cans protected by the ACA.
Crapo McConnell Thune about how they are distinct from poli- Everyone watching at home has
Cruz McSally Tillis heard my colleagues say for the last
tics; about abstract methodological
Daines Moran Toomey
Wicker terms and ideas like originalism and decade that their top priority was to
Enzi Murkowski
Ernst Paul Young textualism; about judges and Justices repeal the Affordable Care Act. All of
as neutral arbiters whose decisions the Republican Senators on the com-
NAYS—46
couldn’t possibly be predictable. mittee talked publicly, repeatedly,
Baldwin Heinrich Sanders
Bennet Hirono
But you don’t work this hard to con- about their desires to get rid of the
Schatz
Blumenthal Jones Schumer firm a Supreme Court Justice in the law, and they voted that way. So did
Booker Kaine Shaheen middle of a pandemic while the major- our President. Yet, despite their best
Brown King Sinema ity of American States is voting—tens efforts, he and my Republican col-
Cantwell Klobuchar Smith
Cardin Leahy of millions have voted—and while elec- leagues failed to get the vote here on
Stabenow
Carper Manchin Tester
tion day is just 8 days away and a third the floor of the U.S. Senate. So now
Casey Markey
Udall of us are up for reelection because you they are taking their last and best shot
Coons Menendez
Cortez Masto Merkley
Van Hollen care most about abstract ideas or neu- at overturning the ACA, and they are
Duckworth Murphy
Warner tral principles. You don’t go against trying to do it through the Supreme
Durbin Murray Warren your own promise—your own promise— Court.
Feinstein Peters Whitehouse
Wyden after you have claimed, as a matter of This is where Judge Barrett comes
Gillibrand Reed
high principles, that Justices shouldn’t in. As she admitted during my ques-
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Hassan Rosen
be confirmed during Presidential elec- tioning, Judge Barrett has written in
NOT VOTING—1 no uncertain terms that she thinks
tions and after you blocked a highly
Harris qualified nominee for exactly that rea- Chief Justice Roberts got it wrong in
The PRESIDING OFFICER. The Sen- son—because you care most about neu- his ruling 8 years ago that upheld the
ate sustains the decision of the Chair. tral arbiters and judicial methodology. ACA against a constitutional chal-
The PRESIDING OFFICER. The Sen- No. This race to fill this seat is about lenge. She wrote this article just 3
ator from Delaware. power. It is about political power. It is years ago, in 2017. Soon thereafter, she
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6579
found herself on President Trump’s Court, would be even more willing than from any case involving an election
short list for the Supreme Court. Justice Scalia to overturn those prece- dispute. President Trump is the reason
Meanwhile, the Justice Department, dents with which she disagrees. This is I ask that question.
under President Trump’s leadership, rooted in things that she has written President Trump himself is actively
has joined the challenge to the ACA, and said as a law professor and as a undermining the integrity of our elec-
which is now back in front of the Su- judge. She has made clear that judges tion. He is spreading baseless rumors
preme Court. That will be heard by the and Justices should feel free to over- about voter fraud, encouraging voter
Court just 1 week from the election and turn cases they believe have been suppression, and engaging in a
2 weeks from tomorrow. President wrongly decided regardless of how disinformation campaign so egregious
Trump and his administration are ar- many people have ordered their lives it is hard to believe it could be coming
guing in no uncertain terms that the around those decisions and have come from an American, let alone an Amer-
Court must get rid of the entire ACA. to rely on them. She even said that ican President.
My Republican colleagues have said those with her conservative, originalist His statements have been so indefen-
this is fearmongering in that this is a philosophy have abandoned a commit- sible that, when my colleagues asked
different case and a different issue, but ment to judicial restraint. Judge Barrett whether the President
to anyone who thinks the characteriza- As I made clear in my questioning, should commit to conducting a peace-
tion of this challenge is farfetched, just the cases that could be in jeopardy ful transition of power if he loses the
read the brief. Read the brief that has with a Justice Barrett on the Supreme election—a question that is an obvious
been filed by the Solicitor General of Court cover a vast range of issues, no-brainer and a matter of basic
the United States or the brief that has issues which together affect hundreds civics—Judge Barrett said she couldn’t
been signed and cosigned by 18 Repub- of millions Americans’ lives from respond because President Trump’s
lican State attorneys general. healthcare to education, to consumer statements have turned this funda-
President Trump himself lashed out protection, to marriage equality, to mental tenet of our democracy into a
at Chief Justice Roberts over and over criminal Justice. Over the past several partisan, political question.
again for upholding the Affordable Care decades, the Supreme Court has de- Before now, to my knowledge, no
Act and its protections for a majority President has ever demanded that his
cided more than 120 cases by a 5-to-4
of Americans, and he pledged as Can- nominee to a Supreme Court seat be
margin, with Justice Ginsburg in the
didate Trump that his nominees would rushed through so that this Justice,
majority and Justice Scalia in the dis-
do the right thing and overturn the that ninth Justice, could look at the
sent.
law. So here, in the last minute of the Just as a matter of analysis to help ballots, as he has said, and hand him
last act of the Trump show, he may at folks see the scope and the reach and an election. Never in our history has
long last have his chance. the consequences of the decision being the U.S. Senate confirmed a Supreme
Yet it isn’t just the Affordable Care Court Justice in circumstances like
made here tonight, we look at what
Act that is on President Trump’s Su- these—just 8 days before the final elec-
would happen if Justice Ginsburg in
preme Court agenda. He made clear he tion day in an ongoing Presidential
the majority were replaced by some-
wants a nominee to do three things: election.
body with Justice Scalia’s philosophy At the very, very least, given Presi-
overturn the ACA, overturn Roe v.
or with one further right. dent Trump’s unprecedented over-
Wade, and perhaps most chillingly for These cases include not only the key
the future of our democracy, hand him reaching, inappropriate comments
ruling on the Affordable Care Act—
the election if there is a dispute in the about the election and her nomination,
NFIB v. Sebelius—but also on
courts that makes its way to the Su- I asked Judge Barrett if she would
Obergefell v. Hodges, which, based on
preme Court. recuse herself in the event of an elec-
that privacy jurisprudence that started
On that second point about over- tion dispute. To be clear, nothing is
turning Roe, Judge Barrett steadfastly all the way back in Griswold, upheld
stopping her from making that com-
refused to say whether she thought Roe the idea that marriage equality was mitment, and she would not do so.
had been correctly decided, because it the rule of the land; on Grutter v. Recent events have made it clear
is the subject of legislation and litiga- Bollinger, which upheld race conscious that this issue is anything but hypo-
tion that is currently being contested. admission policies at universities; on thetical. Just last week, the U.S. Su-
She refused to say, as well, whether the Tennessee v. Lane, which held that preme Court was divided 4 to 4 on a
foundational case of Griswold v. Con- State governments must comply with question arising from Pennsylvania,
necticut was right, which was decided the Americans with Disabilities Act; and it came to the brink of adopting a
55 years ago and protects the right to on Arizona State Legislature v. Ari- novel—even radical—theory advanced
privacy and the right to use contracep- zona Independent Redistricting Com- by the Republicans in Pennsylvania
tives by a married family in the pri- mission, which upheld the constitu- that would empower the Supreme
vacy of their own home. tionality of nonpartisan redistricting; Court to override a State supreme
In the recent past, even indisputably on Massachusetts v. EPA, which allows court’s interpretation of its own State
conservative nominees—nominees cho- the EPA to regulate greenhouse gases; laws and constitution in a way that
sen by Republican Presidents, such as and on Roper v. Simmons, which pro- would disenfranchise thousands of vot-
Chief Justice Roberts and Justices hibits executing people for crimes they ers.
Alito and Kavanaugh—have said that committed while they were children. A new Justice Barrett joining that
of course Griswold was rightly decided Think about the scope and reach of Court could well provide the fifth vote
and is settled precedent. So I found the cases that touch labor rights to Na- in support of this outrageous theory,
Judge Barrett’s hesitation—even re- tive American rights and consumer which her mentor, Justice Scalia, ac-
fusal—to say so to be chilling. rights to environmental protection. cepted in Bush v. Gore. And to no one’s
More broadly—and this is impor- Yes, our comments on the floor and in surprise, the Pennsylvania Republican
tant—Judge Barrett’s approach to committee focused on the Affordable Party is again preparing to file in the
precedent itself suggests she will lead Care Act, and they focused on repro- Supreme Court a renewed claim.
the way in reversing longstanding ductive rights and privacy, but the In light of this conflict of interest, in
cases upon which our rights rely. scope and reach of the consequences light of the appearance of bias, her in-
Precedent has been called the founda- are breathtaking. Even to this day, I volvement in this case could have last-
tion stone of law. Precedent protects fear that we as a nation have not fully ing, negative, devastating con-
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the rights and freedoms that many reckoned with the impact that a 6-to-3 sequences for the independence of the
Americans rely on today—the right to conservative Court will have on so Court and for our democracy. So I urge
be safe in your home from government many aspects of our lives. my Republican colleagues to consider,
intrusion, the right to marry whom- As to President Trump’s third de- before voting to confirm tonight, the
ever you love, the right to control your mand that a Justice chosen by him will very real impacts their actions will
own body. help to decide the election, I was deep- have, not only on millions of our con-
Yet I have come away convinced that ly dismayed to hear Judge Barrett stituents but on our democracy and
Judge Barrett, if confirmed to the refuse to commit to recusing herself this institution itself.
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S6580 CONGRESSIONAL RECORD — SENATE October 25, 2020
As for me, I will be voting no on the tends to function not by what the law lost the vote or lost an election. That
confirmation of Judge Barrett to the says but through a lens of personal and is why our Democratic colleagues have
U.S. Supreme Court. political bias. It is polarizing. We know repeatedly pressed her to commit to an
I yield the floor. that people are highly agitated, includ- outcome in cases before the Court. She
The PRESIDING OFFICER. The Sen- ing my friend from Delaware, and try- won’t do it, and she shouldn’t do it, and
ator from Texas. ing to stoke the turnout of their par- she didn’t do it.
Mr. CORNYN. Mr. President, that tisans in the runup to the election. It They asked her everything from
was quite a speech from our friend should go without saying—but I will healthcare to abortion to climate
from Delaware. If I had to categorize say it anyway—that judges don’t do change. They want to know right
it, I would say this is really the Chick- that. They can’t do that and still be now—before she is even on the Court,
en Little argument: The sky is falling. judges. before she has even heard the case—
Amy Coney Barrett—this is the end of In order for the High Court to serve how she would rule.
civilization. This is the end of the the proper role under our Constitution, Well, Judge Barrett rightly declined.
world as we know it. it has to be made up of men and women She invoked what is known as the
The irony to me and, frankly, the hy- of great integrity, restraint, and self- Ginsburg rule from the 1993 confirma-
pocrisy of the argument is that if the discipline, who will discharge their du- tion hearing—presided over by Joe
shoe were on the other foot, Senator ties on the Bench free from bias, which Biden when he was chairman of the Ju-
SCHUMER, who has said everything is means you don’t announce the decision diciary Committee—of Ruth Bader
on the table ‘‘if we win the majority’’— in a case before you have even heard it. Ginsburg. Ruth Bader Ginsburg had
Court packing, making DC, making You don’t offer predictions or promises been a lawyer with the American Civil
Puerto Rico States—they would some- of how you will decide these conten- Liberties Union and had been known
how show this superhuman self-re- tious matters, which I know frustrates for her pioneering work on behalf of
straint and not fill this seat. our friend from Delaware and others, women’s rights, but she held some per-
This is entirely consistent with the but Judge Barrett has not only com- sonally pretty radical views. So the
practice, given the fact that President mitted to doing this, not clouding her Senators, out of curiosity if nothing
Trump’s first term doesn’t run out decisions by personal or political moti- else, wanted to ask her about those,
until January 20 of next year. All of vation or favor for any party; she has a and she declined, as she should have,
the Senators elected are serving record to back it up. because she said: It is inappropriate to
through the end of this year, at least. During her time on the Seventh Cir- make predictions or provide hints of
So it is somewhat entertaining but be- cuit, she has joined with her colleagues how I might decide cases in the future.
side the point to suggest that this good in 95 percent of the 600 cases she has This is the most basic principle of
judge, this really extraordinarily de- decided—95 percent consensus on a our judicial system. Judges are not leg-
cent human being is part of some vast three-judge panel. That is no record of islators. They shouldn’t advocate for
conspiracy to subvert the Constitution an outlaw or a radical or somebody policy outcomes or promote a specific
and overrule all these precedents that who is going to disregard their judicial agenda. They certainly shouldn’t com-
the Senator from Delaware considers oath. She has consistently shown in mit to an outcome on a hypothetical
sacrosanct. each of these decisions a fidelity to the case during the confirmation process.
Well, I am happy with the fact that law and an impartiality, which are es- How would you feel if the judge you
tonight the Senate is set to confirm an sential qualities for a Supreme Court came before had previously said: Well,
exceptionally well-qualified nominee to Justice. if I hear a case like that, I am going to
the Supreme Court. Judge Amy Coney But despite the judge’s unassailable decide against this litigant, this party
Barrett is as impressive as they come. qualifications, our Democratic col- for the lawsuit. That would be out-
America saw it. Initially they didn’t leagues have repeatedly tried and rageous, and she shouldn’t and didn’t
know her, but when they came to know failed to make this nominee out to be do that. Neither did Justice Ginsburg.
her through her testimony on the Judi- a radical, suggesting that she would Chief Justice Roberts reminded us
ciary Committee, she became very pop- violate her oath—the same oath to up- last year: ‘‘We do not have Obama
ular. In my State, 59 percent of the hold and defend the Constitution that judges or Trump judges, Bush judges or
people in a recent poll said they want- we take as Senators. But there is noth- Clinton judges.’’ And I agree that is the
ed us to confirm Judge Barrett now be- ing in her background or her character ideal.
fore the election—59 percent. which would suggest she would do Men and women in black robes can’t
It is no wonder why. She graduated something so brazen and so wrong. stick their thumbs on the scales of jus-
first in her class from Notre Dame Law Some folks on the left have attacked tice and supply wins to any cause, any
School. She clerked for the District of her because of her Catholic faith. They individual, or any party. It is antithet-
Columbia Court of Appeals and on the have also tried to convince the Amer- ical to our constitutional system.
Supreme Court and practiced law be- ican people she is on some sort of cru- So I hope this process will help begin
fore transitioning to academia, where sade to take healthcare away from a way to guide our courts back to their
she has written and taught constitu- American families—How ridiculous is proper function in our Constitution
tional law, Federal courts, and statu- that?—or that she would slowly chip and to remind all of us of what has
tory interpretation for nearly two dec- away at our freedoms and our liberties. rightly been called the crown jewels of
ades. And, of course, for the last 3 The reason we have seen such our Constitution, and that is an inde-
years, she has served with distinction hysterical attacks that are completely pendent judiciary—judges whose pay
on the Seventh Circuit Court of Ap- out of touch with reality is that this is can’t be cut during their tenure in of-
peals. all they have. They have nothing else. fice, and they serve for life if they want
Her time in both the classroom and There is no legitimate reason to op- to. That is the ultimate in political
the courtroom have given her under- pose the nomination of Judge Barrett. independence. Those are the crown jew-
standing of the law that few can rival. Her stellar credentials and deliberate els because judges apply the law that
Over her confirmation hearing, she body of work prove that she under- Congress writes, interpret the prece-
skillfully answered questions about stands the role of a judge—as impor- dents of other courts, and interpret the
legal doctrine, constitutional issues, tant as it is but as limited as it is Constitution. To give an unelected in-
and a myriad of precedents without so under our constitutional system—and I dividual the power to make policy and
much as having a page of notes in front think that is part of what terrifies our to have an agenda to accomplish their
SSpencer on DSK126QN23PROD with SENATE
of her. colleagues on the other side of the personal or political goals would be the
As impressive as Judge Barrett’s aisle. opposite of what our Constitution com-
deep knowledge of the law is, it is only You see, they have become accus- prehends.
part of what I believe makes her an tomed to a Supreme Court that is more There is no question that Judge Bar-
ideal candidate for the Supreme Court. political than judicial, that feels free rett has a brilliant legal mind, a deep
Now, more than ever, the judiciary, to make policy judgments to bail out respect for the Constitution, and an
along with our other elected officials, the Congress or those who have either unwavering commitment to the rule of
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6581
law. Her resume and her record are of this pandemic at all. Instead we are Well, let me tell you the ones that I
spotless. consumed with a political mission. presented from Illinois represent real-
How do I know that? Well, if it How did we reach this point where we life stories of real-life families who de-
wasn’t, you would have heard about it. are taking up this Supreme Court nom- pend on the Affordable Care Act. Why
It is spotless. Her character is beyond ination in the midst of a Presidential do we raise the Affordable Care Act in
reproach, and virtually everyone who election for the first time in the his- the midst of this hearing for filling this
has worked with or learned from Judge tory of the United States, in the midst Supreme Court vacancy? For one sim-
Barrett has offered their full-throated of an election we are taking this up? ple reason—that is what the President
endorsement of her nomination. All the Well, because of the determination of did. It was the President who told us
evidence—all the evidence—points to the Republican majority leader of the far in advance: I am going to fill Su-
one simple fact: Amy Coney Barrett is Senate, Senator MCCONNELL of Ken- preme Court vacancies to eliminate the
exceptionally qualified to serve on the tucky. Affordable Care Act. So is this a leap of
Supreme Court. I have faith in Judge Four years ago, you will remember faith on our part to take the President
Barrett’s ability to fairly interpret the the Antonin Scalia vacancy. President at his word? Would the President even
law and apply it to cases before her— Obama decided that he was still Presi- consider lying to the American people?
nothing more and nothing less. dent of the United States in the 8th If you take him at his word, then
I believe Amy Coney Barrett will be year of his Presidency, but Senator Amy Coney Barrett is part of an agen-
an outstanding Supreme Court Justice, MCCONNELL said: No, you are not. You da—a political agenda to eliminate the
and I am proud to support her nomina- do not have the Presidential authority Affordable Care Act. And in the past
tion. to fill a Supreme Court vacancy be- the President has said Roe v. Wade
The PRESIDING OFFICER. The Sen- cause it is the last year of your Presi- while you are at it and also to move
ator from Illinois. dency. You are a lameduck. There is an forward when it comes to protecting
Mr. DURBIN. Mr. President, we are election coming. Let the American him if there is an election contest after
faced with three basic questions, and people decide who will fill this va- the November 3 election. He said as
the first question couldn’t be more cancy. That was the McConnell rule 4 much. As I mentioned earlier, he
basic: Why are we here? years ago, and the Republican Senators doesn’t have an unuttered thought. He
If you told the American people that marched in lockstep behind him with tweets it 25 times a day, whatever
the U.S. Senate was in session 5 days in his logic. crosses his fertile mind, and that is his
a row and meeting through the week- Fast forward 4 years, the vacancy agenda when it comes to filling the Su-
end and asked them what they think with the death of Ruth Bader Ginsburg preme Court vacancy. When we asked
the order of business was before the and Senator MCCONNELL has changed Judge Barrett, she denies any promises
Senate, they would say: Silly question. his story completely and his troops are have been made. But there is some evi-
It is obvious. It has to be the pandemic still marching obediently behind him. dence, obviously, along the way that
facing America. It has to be the fact Now, under President Trump, he can convinced the President and the people
that 225,150 Americans have died from fill a vacancy even in the midst of a in the White House that she would ful-
the coronavirus, 8.7 million infected, Presidential election, and that is why fill his mission if she came to the Su-
and most certainly because the United we are here today. This determination preme Court.
States has recorded more than 85,000 by Senator MCCONNELL that this polit- When you look at the issues involved,
COVID–19 cases just this last Friday, ical errand that he is running for Presi- it is not just her compassion when it
the highest number of cases recorded dent Trump is more important than comes to the Affordable Care Act and
within a 24-hour period since the begin- the COVID–19 pandemic, more impor- 23 million Americans covered by insur-
ning of the pandemic and Saturday was tant than the runaway infection rates ance under that law, 600,000 of them in
the same. in 20 States across the United States, Illinois. It is not just a question of her
So they would guess that the Senate more important than trying to deal courage to stand up to this President if
was in session to do something about with the unemployment and the dys- there is an election-year contest that
this deadly epidemic that is affecting functions of this economy under this comes before the Supreme Court. It is
the United States of America in a more President. really whether she is committed to pre-
serious way than any country in the Yes, we asked basic questions to be serving the pillars of modern law—the
world. They would wonder what we are answered by the Judiciary Com- rights of women. Ruth Bader Gins-
doing to try to provide more testing, mittee—questions that were posed to burg’s death created this vacancy.
more protection for people. They cer- Amy Coney Barrett, once a law school There is hardly a person in our modern
tainly would question the statement by professor at Notre Dame Law School, history who spent more of her life dedi-
the Chief of Staff of the President of now on the Seventh Circuit Court of cated to the rights of women. Is Amy
the United States, Mark Meadows, who Appeals. Coney Barrett going to follow in that
said just yesterday that the Trump ad- People say: Is she qualified? Well, if tradition? I think it is a legitimate
ministration ‘‘is not going to control you are asking whether she is studied question.
the pandemic.’’ It would trouble them, in the law and has a head full of law, When it came to racism, are we going
I am sure. there is no question about it. It has to deal with racism in an honest way?
They would expect this Congress rep- been many years since I faced a law And I will get to that in a moment
resenting them—up for reelection, school professor, and I will give it to when I speak to her originalism moti-
many of us—to be responsive to their you that she certainly knows a lot vation.
needs to protect their families or they about the law. There is no doubt about Marriage equality, privacy, voting—
might ask us: Are you doing anything it. But the questions that I asked of all these issues are on the table. And I
to help the people, the 23 million un- her really went beyond that basic ques- do have to disagree with my colleague
employed in America? Certainly, you tion. I really wanted to know what was from Texas who preceded me. I just
must be working on that, too, because not just in her head when it came to don’t believe the law is robotic, nor do
these families were cut off from their the law but I want to know what she I believe that there is a simple formula
Federal unemployment supplemental has in her heart when it comes to the to use that can guarantee an outcome
on July 31. So for the months of August law. of a case. As I said to Judge Barrett in
and September and now into October, One of the Senators who spoke to us our private conversation before the
the amount of money coming in to a few minutes ago chided us because we
SSpencer on DSK126QN23PROD with SENATE
hearing, there wouldn’t be 5-to-4 cases
keep their homes together, their fami- kept bringing color photographs to the if we could count on people to always
lies together has been dramatically di- floor and to the committee hearings of look at the facts and the law and come
minished. people whose lives depended on the Af- to the same conclusion. People reach
If they assumed that, they are wrong, fordable Care Act. He characterized it different conclusions.
because for the last 5 days here in the as ‘‘theater’’ and likened these images, That takes me to the third point
U.S. Senate we have not been con- these photographs, to cutouts at sport- here. We asked Amy Coney Barrett
sumed with those life-and-death issues ing events. during the course of this hearing so
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S6582 CONGRESSIONAL RECORD — SENATE October 25, 2020
many questions about basic, basic law restraint on the Court, self-discipline with progress in this country when it
that went right to the heart of this on the Court—we have heard all those comes to human rights and civil rights.
Constitution. These weren’t trick ques- words—and making sure that Justices Under originalist theory, we may
tions. They weren’t the subject of don’t pursue policy, think about all of never have had Brown v. Board of Edu-
pending litigation or litigation. Ques- those things in terms of what happened cation and the other cases I mentioned.
tions like, Can this President or any in Brown v. Board of Education and What a loss for this great Nation. That
President unilaterally decide to change when they overruled Plessy v. Fer- is not what we need on the Court. We
the date of a Presidential election? guson decades before, and said: Moving need people on the Court who are real-
That is pretty basic. I think it is cov- forward, we believe this Constitution ists and who will look at the law and
ered by three different sections in this guarantees to every child the right to the Constitution in real terms and not
Constitution. She refused to answer be- an education, regardless of their race. ideological terms.
cause of the possibility that there Dr. Chemerinsky is with the Univer- The notion that this Justice is being
would be litigation before the Court on sity of California School of Law in hurried before us in the hopes that she
that subject. Berkeley. He wrote a recent article in will eliminate the Affordable Care Act
Well, what about intimidation the New York Times on this in the midst of a pandemic certainly is
against voters, trying to cast their originalism theory. And he noted the worth noting. It is one of the reasons—
votes in an election? Couldn’t answer fact that it was Antonin Scalia who one of many of reasons—that I will be
that one either—same reason. gave it great popularity, and a lot of voting no on Amy Coney Barrett with
This was asked by Senator KENNEDY, people followed Scalia because he was her nomination to the Supreme Court.
a Republican from Louisiana: What cerebral, jocular, and fun to be with. I yield the floor.
about climate change? Well, it turns He spoke to a luncheon of Democratic The PRESIDING OFFICER (Mr. SUL-
out Judge Barrett told us she really Senators that I was able to attend. But LIVAN). The Senator from South Caro-
hadn’t developed any thoughts on cli- when it came down to it, his views on lina.
mate change. Really? Forty-eight the law were pretty strict and pretty Mr. GRAHAM. Mr. President, as
years old, lawyer, law school professor, chairman of the Judiciary Committee,
rigid pursuing this idea that, for exam-
mother of seven—no thoughts on cli- it is my honor to speak on the floor
ple, under this view, the First Amend-
mate change? about this nomination, which I think is
When it was all over, you had to ask ment means the same thing as when it
was adopted in 1791; the Fourteenth historic in many facets and all positive
yourself, what was the purpose of that
Amendment means the same thing as from my point of view.
hearing if those were the kinds of an- We have before the committee the
swers we faced? Certainly, we wouldn’t it was ratified in 1868. It turns out that
the circumstances in all those cases nomination of Judge Barrett, who cur-
ask her about pending litigation.
have changed so dramatically in Amer- rently sits on the Seventh Judicial Cir-
But the one thing that she was very
ica. cuit. She is one of the most impressive
proud of and stated over and over again
is that she was an originalist when it Judge Amy Coney Barrett argued she people I have ever met. Two days of
came to her thinking on the law and is an originalist. She would be joining hearings; answering every question
the Constitution. As I said, originalism that other originalist on the Court, thrown to her with grace and judicial
is not some foreign language you pick Clarence Thomas, with her legal think- demeanor. I think it should be the gold
up on Babbel. It is a mindset. It is a ing, and that gives me pause and con- standard for every other nominee.
mission statement. It is the belief that cern when it comes to what she is I want to thank my staff, beginning
the original text in our Constitution bringing to the Court—a head full of with Lee Holmes, the director. Lee has
reveals all the answers. I doubt that law, for sure, but an approach to it done such a great job on the Judiciary
very much. That is kind of MAGA ju- that I think is a pose. It is a way to Committee and has done a lot of
risprudence—‘‘take us back to the good argue against change and evolution in things—some contentious and some
old days’’ jurisprudence because, you America that is inevitable and, in fact, not. I want to thank Lee for shep-
see, what really launched originalism necessary. herding this nomination and the fine
occurred in the 1950s in a case called The professor says under the original work he has done.
Brown v. Board of Education. The public meaning of the Constitution, it Mike Fragoso—Mike, I got your first
Southern States were not ready for in- would be unconstitutional to elect a name right anyway. He is just out-
tegration, and many of the Northern woman as President or Vice President standing. He has done a terrific job.
States weren’t either, for that matter. until the Constitution is amended be- The permanent nominations unit for
The critics of that Supreme Court deci- cause article II refers to the pronoun the Judiciary Committee includes
sion said it was judicial activism to in- ‘‘he.’’ When you get stuck with the lan- Lauren Mehler, Raija Churchill, Tim
tegrate the public schools of America. guage in the original Constitution in Rodriguez, Watson Horner, and Akhil
They were critical of a Court that they the extreme, you find yourself reaching R-A-J-A-S-E-K-A-R—I don’t want to
thought went too far under Earl War- conclusions that are not in the best in- butcher your name. They all worked
ren. They called for his impeachment terest or consistent with American incredibly hard for 135 article III
and more and started saying: You mores or values today. judges, not just this one.
should have stuck with the original So this is more than just another In addition, Lucas Croslow joined my
Constitution. Well, the original Con- nomination to fill a vacancy on the Su- staff to lead the team of special coun-
stitution didn’t give African Americans preme Court. It comes at a moment in sels assisting with the Barrett nomina-
the right to vote; in fact, considered time when we should be focusing on the tion. That included Sidd Dadhich, D-A-
them under the law to be three-fifths of deadly pandemic facing America. We D-H-I-C-H, Joe Falvey, Abby
an American citizen. So those so-called should have spent 5 straight days com- Hollenstein, Eric Palmer, and Robert
originalists criticized that activist ing up with a COVID relief bill for the Smith. They went through the entire
Court, and it didn’t end with Brown v. millions of Americans desperate for record presented by Judge Barrett to
Board of Education. help today and desperate for peace of make sure we would be prepared for the
The same criticism was launched mind when it comes to this public confirmation process.
when it came to Griswold v. Con- health tragedy which we are facing. The law clerks were Matt Simpson,
necticut, a case that really argued that It is a nomination which comes be- Emily Hall, Megan Cairn, and Peter
we have a right of privacy in our mar- fore us when the rules of Senate and Singhal. I would like to thank the Ju-
the rules of the Senate Judiciary Com- diciary Committee’s press secretary,
SSpencer on DSK126QN23PROD with SENATE
ried lives that can’t be overcome by
the State; Loving v. Virginia, that mittee are being twisted and turned to Taylor Reidy. They did a great job,
interracial marriage was permissible; create a political opportunity for Sen- along with George Hartmann, as well
and then, of course, the case of Roe v. ator MCCONNELL and his side of the as our deputy staff director, Joe
Wade, the ultimate case when it came aisle. Sadly, it is a moment in time Keeley.
to privacy and liberty. when a nominee for the Supreme Court The bottom line is, all of them
So those who come before us and tell wants to bring to us a legal way of worked really hard. They made his-
us that what is really at stake here is thinking which I believe is inconsistent tory. They should be proud and tell
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6583
their grandkids about all this. Well of the Court most every case but not and who was there. The people who
done. all. I am not surprised the way they de- were said to have been there said they
To my Democratic colleagues, I know cided cases. I think they are tremen- don’t remember anything like it hap-
you didn’t like what we did, but I do dously well-qualified women and pened.
appreciate the way you conducted should be sitting on the Court. That is Judge Kavanaugh hasn’t lived a life
yourselves in the hearing. It wasn’t a exactly who you would expect a Demo- like what was being described. He was
circus. I think you challenged the cratic President to pick—Sotomayor accused by four or five people. Three of
judge appropriately during your time. and Kagan. them actually made it up. I hope some
We had 4 days of hearings. We heard So now we come back. Trump wins. of them go to jail for lying to the com-
from a variety of people about Judge Nobody thought he would win, includ- mittee and the country. They were try-
Barrett. ing me. I voted for somebody in 2016 I ing to make him a rapist and drugging
In terms of the process, it was well wouldn’t know if he walked through women in high school, and what was
within what we have done in the past. the door—Evan McMullin. I think I his annual all about? It was the most
In every Judiciary Committee markup met him once. I had my challenge for sickening episode in my time in the
regarding a Supreme Court Justice, we President Trump during the 2016 pri- Senate. They were hell-bent on de-
have done the same thing. The first mary. He beat me like a drum. I ac- stroying this guy’s life based on a
day is opening statements, then 2 days cepted my defeat. I have been trying to bunch of manufactured lies and evi-
of questions, and the final day is input help him ever since, and I think he has dence that wouldn’t get you out of the
from outside groups. That is what we done a really good job of sending to the batter’s box in any court of law in the
were able to do here. So she went Senate highly qualified judges. He has land.
through the process like every other gotten input from a lot of different And here we are, 50 to 48. What I saw
nominee since I have been here. people—the Federalist Society, you there was a turning point for me. We
But let me just say this to my Demo- name it—a lot of different people. cannot continue to do this. You are
cratic colleagues. It is not about the Gorsuch and Kavanaugh had one going to drive good people away. And I
process. You will find ways to make thing in common: They were in my top am hoping that the Barrett hearings,
sure that most of you can’t vote for three recommendations. Any Repub- which were far more civil and far more
anybody we nominate. It really does lican President looking to nominate traditional, will be a turning point be-
break my heart. somebody to the Supreme Court would cause I don’t know who the next Presi-
With Roberts, 78 to 22, that was sort be looking at Gorsuch and Kavanaugh. dent will be, but there will be an open-
of the norm. I think Alito got 96 and These are not exotic picks. They are in ing, I am sure, on the Court. I am hop-
Ginsburg got 97. Maybe I got the num- the mold of Sotomayor and Kagan in ing that the next hearing is more like
bers right. I can’t remember who got terms of qualifications. Barrett’s and less like Kavanaugh’s, no
what, but one got 96 and one got 97. It So what happened? Gorsuch was the matter who wins.
used to not be this way. It used to be first attempt at a partisan filibuster. Now, Barrett. I understand the con-
different. We had three votes to get 60, and we cern about the process. This is the lat-
We looked at the qualifications and couldn’t, so we changed the rules for est we have ever confirmed somebody.
said: OK, you are good to go. You are a the Supreme Court like they changed You heard all the arguments about
person of integrity. You are smart. You the rules in 2013 for the district court when the President is of one party and
are well rounded. You are knowledge- and court of appeals. If we had not, the Senate of a different party; you
able in the law. You may have a dif- Gorsuch wouldn’t be on the Court. And have had one confirmation in 100-some
ferent philosophy than I have, but we years; that most of the time, when the
to say he is not qualified is a joke. It
understand elections matter. And ev- President is of the same party as the
is an insult to him and says more about
erybody accepted the election out- Senate, they go through. I understand.
you than it does Judge Gorsuch. If you
The bottom line is, we gave her the
come. Those days are over, absolutely can’t see he is qualified, you are blind- same type hearing that Alito,
completely over and destroyed. There ed by your hatred of Trump. So he Sotomayor, Kagan, Gorsuch, and
is nobody any Republican President made it, but we had to change the Kavanaugh had. My Democratic col-
can ever nominate, I think, who is not rules. We hated to do it but had to do leagues showed up at the hearing, they
going to face a hard time. That is too it because in any other time, Gorsuch participated, they pushed her hard, but
bad. That is the way it is. would have gotten the same type votes I don’t think they went across the line.
Alito, 58 to 42—Judge Alito was well as Roberts because he is just highly They decided not to show up for mark-
known on our side of the aisle. He was qualified. up. I hate that, but that is the way it
the kind of person you would be look- Then comes along Kavanaugh. Noth- is.
ing at to promote to the Supreme ing about process there. There was no I would like to spend a few minutes
Court. President Bush nominated him. process argument. Right at the very talking about the person who is going
Well within the mainstream. Roberts end, the last day of the hearing when onto the Court in about an hour.
and Alito were well known in the con- we thought it was all over, you give us If you are looking for somebody a Re-
servative world, being very bright a letter that you had for weeks, an al- publican would be picking, regardless
court of appeals judges whom any Re- legation against the judge. It would of the process, it would be Judge Bar-
publican President would be looking at have been nice to share it with him so rett. She would be on anybody’s list.
to put on the Court if they ever had an he could tell his side of the story, but I listened to Senator DURBIN, who is
opportunity. There is no difference be- you chose not to do that. You had it a good friend, and we will work on
tween Alito and Roberts, but Alito precooked with the press outlets, and whatever comes our way after the elec-
went through hell. But he made it, and everything blew up. tion. I find that he is somebody you
he got 58 votes. So all of us on the committee had to can work on hard things like immigra-
So then along comes President decide what to do. I sat down with Sen- tion with. But his description of Judge
Obama. He gets two picks—Sotomayor, ator Flake and Senator COLLINS, and Barrett simply doesn’t pass scrutiny.
68 votes to 31. I think she deserved we felt like the allegations had to be He is trying to make a character of
more, but 68 is pretty darn good. I was heard. They are made. I know a lot of this person that doesn’t exist. There is
glad to vote for her. I saw that she was people on our side thought it was un- nothing exotic about Judge Barrett.
qualified. Then we had Elena Kagan, 63 fair, dirty pool, but we had the oppor- She is very mainstream in our world.
votes. You can see the trend here. Both tunity to have the hearing, and the
SSpencer on DSK126QN23PROD with SENATE
All I can say is that after 2 days of
of them were Obama nominees, 68 and rest is history. It was high drama. hearings, the American people, by 51
63, and I thought Elena Kagan was All I can say is that something hap- percent—it is pretty hard to figure
highly qualified. She had a different ju- pened to the person who accused Judge that in this country, you get 51 percent
dicial philosophy. She was a dean of Kavanaugh, but I don’t believe Judge agreement on anything—felt like she
the law school at Harvard but worked Kavanaugh had anything to do with it. should be going onto the Court.
for the Solicitor General’s Office. Both This was a party in high school. Ms. Here is what Dean O’Hara said, the
of them had been with the liberal side Ford couldn’t remember where it was dean of Notre Dame Law School, who
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S6584 CONGRESSIONAL RECORD — SENATE October 25, 2020
hired Amy Barrett to be a professor at around here now. This, too, shall pass. of two seats on the Supreme Court
Notre Dame: But this is about Judge Barrett. This is using completely contradictory ration-
I have only communicated with this au- about her time, her moment. She has ales.
gust committee on two occasions. The first done everything you would expect of And let the record show that the
was ten years ago when I wrote a strong let- her. She has exceeded every challenge American people—their lives and rights
ter in support of now-Justice Elena Kagan, put in her way. She has impressed ev- and freedoms—will suffer the con-
whose term as dean of Harvard Law School sequences of this nomination for a gen-
erybody she has worked with. She has
overlapped with my own. The second is today
introducing and endorsing Amy Coney Bar- impressed the country. She is going eration.
rett in equally strong terms. Some might onto the Court because that is where This entire debate can be summed up
find these recommendations to be in jux- she deserves to be. in three lies propagated by the Repub-
taposition, but I find them entirely con- As to us in the Senate, maybe down lican majority and one great terrible
sistent. the road we can get back to the way we truth. The first lie is that the Repub-
To anybody wondering about Judge used to be. I don’t know. But I do know lican majority is being consistent in
Barrett, I would highly recommend this. There is nothing exotic about following its own standard—what rub-
that you look at the ABA’s rec- Judge Barrett. She is as mainstream as bish. After refusing a Democratic
ommendations and the process they it gets from our side of the aisle. nominee to the Supreme Court because
used to find her ‘‘well qualified.’’ Not When it comes to people outside of an election was 8 months away, they
one person uttered a negative word politics looking at her, it was uni- will confirm a Republican nominee be-
about her character, according to the versal: ‘‘highly qualified,’’ ‘‘highly fore an election that is 8 days away.
ABA. Someone said to the ABA: The competent,’’ ‘‘ready to serve this coun- What is Leader MCCONNELL’s excuse?
myth is real. She is a staggering aca- try as Associate Justice of the Su- He claims that the principle of not con-
demic mind. She is incredibly honest preme Court.’’ firming Justices in Presidential years
and forthright. She is exactly who you My last thought: It is hard to be a only applies when there is divided gov-
think she is. Nothing about her is fake. conservative person of color. That is a ernment. But this is what Leader
She is good, she is decent, she is self- very difficult road to hoe in modern MCCONNELL said after Justice Scalia
less, and she is sincere. She is an exem- American politics. My good friend TIM died: ‘‘The American people should
plar of living an integrated life. SCOTT is a great voice for conserv- have a voice in the selection of their
The Standing Committee would have atism. And TIM—a lot of things were next Supreme Court Justice.’’
been hard-pressed to come up with any said about TIM that were said about no- That is all he said. He didn’t say that
conclusion other than that Judge Bar- body else on our side of the aisle. He is the American people should have a
rett has demonstrated professional tough. He can handle it. The same for voice but only when there is divided
competence that is exceptional. Then conservative women. government. No, the last bit is ex post
they had a committee to look at her Judge Barrett did not abandon her facto.
writings—all of her writings. They ac- faith. She embraces it. But she said: I If this were really about divided gov-
cepted input from 944 people she has embrace my faith. But as a judge, it ernment all along, Republican Sen-
interacted with in her professional life. will not be the rule of Amy. It will be ators would not have promised on the
Not one negative comment. the rule of law. It will be the facts. It record to follow their own standard if
So forget about what politicians say will be the law and the outcome dic- the situation was reversed. ‘‘I want you
about Judge Barrett. Forget about tated by the law, not by anything I per- to use my words against me,’’ said the
what people who don’t recognize Presi- sonally believe. chairman of the Judiciary Committee.
dent Trump as being a legitimate I will say this. For the young, con- ‘‘If there is a Republican President in
President say about Judge Barrett. servative women out there who are 2016 and a vacancy occurs in the last
Forget about what I say if you want to. pro-life and embrace your faith, there year of the first term, you can say
Look at what people who worked with is a seat at the table for you. This is LINDSEY GRAHAM said, let the next
her said, who are in the law business, historic. This nomination is different. president, whoever it might be, make
who know her individually and have This is a breakthrough for conservative that nomination.’’
worked with her as a judge, as a pro- young women. So the claim by the leader that this
fessor, and they conclude without any I was honored to be the chair of the is consistent with their own principle—
doubt that she is one of the most gifted committee that reported out Judge please. Rather than accept the con-
people to ever be nominated to the Su- Barrett to the floor of the Senate, and sequences of its own words and deeds,
preme Court. I am going to be honored to cast my the Republican majority is lighting its
There is nothing exotic about Judge vote to put her on the Supreme Court, credibility on fire.
Barrett. She is going onto the Court in exactly where she deserves to be. This hypocritical, 180-degree turn, is
about an hour. That is exactly where I yield the floor. spectacularly obvious to the American
she needs to be. She is the type of per- The PRESIDING OFFICER. The mi- people.
son who has lived a life worthy of being nority leader. The second lie is that the Republican
nominated. She is the type of person Mr. SCHUMER. Mr. President, today, majority is justified because of Demo-
who is worthy of receiving a large vote Monday, October 26, 2020, will go down cratic actions on judicial nominations
in the Senate, but she won’t get it. as one of the darkest days in the 231- in the past. The Republican leader
She is not going to get one Demo- year history of the U.S. Senate. claims that his majority’s actions are
cratic vote. Write her out of the proc- Let the record show that tonight the justified by all the bad things Demo-
ess if you want to. That is fine. But Republican Senate majority decided to crats did years ago. He claims that
what about the others? All I can say is thwart the will of the people and con- every escalation of significance in judi-
that we are going to have an election firm a lifetime appointment to the Su- cial debates was made by Democrats.
here in about a week, and whatever preme Court in the middle of a Presi- But in his tortured, convoluted history
happens, I am going to acknowledge dential election, after more than 60 lesson, Leader MCCONNELL left out a
the winner when it is all said and done. million Americans have voted. whole bunch of chapters. He omitted
It may go to the Supreme Court. I Let the record show that tonight the that Republicans bottled up more than
don’t know. But there will be a day Republican majority will break 231 60 judicial nominees by President Clin-
that we know who won, and I am going years of precedent and become the first ton, refusing them even a hearing.
majority to confirm a Supreme Court He made no reference to the decision
SSpencer on DSK126QN23PROD with SENATE
to accept those results, and I am going
to do with the next President what I Justice this close to election day. by Republican Senators to hold open 14
have tried to do with this one and Let the record show that tonight the appellate court seats in the 1990s so
every other one—try to find a way for- Republican majority will make a that a Republican President could fill
ward on things that are hard to keep mockery of its own stated principle them. Instead, a tactic Republicans
the country moving forward. that the American people deserve a would revisit under President Obama,
To the majority leader and the mi- voice in the selection of Supreme Court when Republicans used partisan filibus-
nority leader, it is a tough place Justices, completing the partisan theft ters to block his nominees to the DC
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6585
Circuit, at the time, Republican Sen- that. We all know that. Healthcare, a would not answer questions about
ators, including my colleague from woman’s rights, a woman’s right to healthcare. She would not say whether
Kentucky, amazingly accused Presi- choose, gun safety—you name it. It is voter intimidation is illegal. She would
dent Obama of trying to pack the court not because the far right wants Judge not say if she thought Medicare and
by the mere act of nominating judges Barrett’s views on the Court, but it is Social Security were unconstitutional.
to vacancies of the Second Circuit. because the far right wants Judge She could not even offer platitudes in
What a hypocritical double standard, Barrett’s views on the Court but not responses to questions about the peace-
which appears to be endemic in Leader Judge Garland’s. ful transfer of power, and refused to
MCCONNELL’s recounting of history. The truth is, this nomination is part say if climate change was real.
And on top of it all, the leader has of a decades-long effort to tilt the judi- It is not because Judge Barrett isn’t
asked the Senate to play a blame game ciary to the far right, to accomplish allowed to answer these questions. It is
that dates all the way back to 1987, through the courts what the radical because she knows how unfavorable her
pointing to a 3-minute speech by Sen- right and their allies—Senate Repub- views on the issues might sound to the
ator Kennedy about Robert Bork as the licans—could never accomplish American people.
original sin in the judicial wars. Seri- through Congress. But the thing is, we do know how
ously, that is what he said. Because Senate Republicans failed to repeal Judge Barrett thinks. She views cer-
one Democrat give one 3-minute speech the Affordable Care Act, so President tain rights, like the right to privacy,
that Republicans didn’t like, Leader Trump and Republican attorneys gen- through a pinhole. She was closely af-
MCCONNELL can steamroll the minority eral are suing to eliminate the law in filiated with organizations who advo-
to confirm a Justice in the middle of court. cated the outright repeal of Roe v.
an election. Republicans would never dare to at- Wade.
Imagine trying to explain to some- tempt to repeal Roe v. Wade in Con- But she views other rights, like the
one: Sorry, I have to burn down your gress. So they pass onerous laws in right to keep and bear arms, as almost
house because of something one of your State legislatures that they control to infinitely expansive. She once authored
friends said about one of my friends 33 drive that right to the point of near ex- a dissent arguing the Federal Govern-
years ago. That is how absurd and ob- tinction and then provoke the Supreme ment does not have the authority to
noxious this game has gotten. That is Court to review Roe v. Wade. ban all felons—felons—from owning
how unjustifiable the majority’s ac- The far right has never held the ma- guns.
tions are, how flimsy their excuses jority on the court to limit Roe v. Only a few hours ago, the Republican
have become. Wade or Griswold, but if Judge Barrett Senator from Missouri proudly de-
The leader’s final argument boils becomes Justice Barrett, it very well clared from the Senate floor that
down to: But you started it—a declara- might. Judge Barrett is the most openly pro-
tion you would sooner hear in the And if you are looking for some hard life judicial nominee to the Supreme
schoolyard than on the floor of the numbers to prove that the political Court in his lifetime: ‘‘This is an indi-
U.S. Senate. right considers ideology and not just vidual,’’ he said of Judge Barrett, ‘‘who
The third and perhaps the greatest qualifications, consider this. Under has been open in her criticism of that
lie is that the Republican majority is Justice Roberts, there have been 80 illegitimate decision, Roe v. Wade.’’ He
confirming Judge Barrett solely on the cases—80—decided by a 5-to-4 majority, was being more honest than most of
basis of her qualifications, not based on in which the five Justices nominated the talk around here, which says it is
her views on the issues. My colleagues by Republican Presidents came down only about qualifications.
insist that Judge Barrett should be one side and the four Justices nomi- Judge Barrett has proudly fashioned
confirmed on her credentials alone. nated by Democratic Presidents came herself in the mold of her mentor, Jus-
That is all they talk about. They don’t down on the other. Eighty cases—ex- tice Scalia, who, before his death, ap-
talk about her views on the issues, actly the same majority—calling balls peared set to declare union fees to be
only qualifications. Well, this canard is and strikes. And in an amazing coinci- unconstitutional, driving a stake into
about as apparent as a glass door. Ev- dence, all the Republican-nominated the heart of the American labor move-
eryone can see right through it. Justices think it is a strike and all the ment. While American workers break
What is the real reason Republicans Democratic ones think it is a ball, or their backs to make ends meet and
are so desperate to rush Judge Barrett vice versa. It would be the most re- earn ever less of ever growing cor-
onto the Supreme Court? Of course, it markable coincidence in the history of porate profits, what might Justice
is not because of her qualifications. If mathematics if nine Justices, simply Scalia’s former clerk portend for the
my Republican friends truly believed calling balls and strikes, exhibited the future of labor rights?
that the only thing that mattered same split in the exact same configura- What about voting rights? Judge Bar-
about a judicial candidate is their tion 80 times. rett has suggested that certain rights
qualifications, then Merrick Garland We all know what the game is here. are civic rights, including voting
would be sitting on the Supreme Court So stop pretending. Stop pretending rights, and can be restrained by the
right now. there aren’t entire organizations dedi- government, but other rights, like the
If the Republican leader truly be- cated to advancing far-right judges. right to keep and bear arms, are indi-
lieved that judicial appointments were Stop pretending that the political right vidual rights that cannot be subject to
about qualifications, and qualifications doesn’t spend millions of dollars to even the most commonsense restric-
alone, Judge Garland would be Justice prop up the far-right Federalist Soci- tions.
Garland right now. ety and support certain judicial can- And, of course, what about
Judge Garland was among the most didates because they only want ‘‘quali- healthcare? Judge Barrett has argued
qualified candidates ever—ever—to be fied’’ judges. No, they want to system- that Justice Roberts got it wrong when
nominated to the Supreme Court. No atically and permanently tilt the he upheld the Affordable Care Act. She
Republican Senator has disputed that. courts to the far right. said that, if Justice Roberts read the
But they didn’t want Judge Garland on So does Judge Barrett have views on statute properly, the Supreme Court
the Bench. They do want Judge Bar- legal issues? You bet she does. That would have had to invalidate—her
rett. They subjected Judge Garland to brings me to the one great and terrible words—the law.
an unprecedented partisan blockade, truth about this nomination. The That is the same thing, by the way,
but they are erecting a monument to American people will suffer the con- that Donald Trump said about Justice
SSpencer on DSK126QN23PROD with SENATE
hypocrisy to rush Judge Barrett on the sequences of Judge Barrett’s far-right, Roberts and the ACA. That is the great
bench. out-of-the-mainstream views for gen- and terrible truth about this nomina-
Why? It is not because she is more erations. tion.
qualified than Judge Garland was. Judge Barrett came before the Judi- Judge Barrett holds far-right views,
What is the difference between Barrett ciary Committee and refused to answer well outside the American mainstream,
and Garland? The difference is not nearly any question of substance. That and those views matter to the vast ma-
qualifications but views. We know is the new game at the hearings. She jority of Americans. They matter to
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S6586 CONGRESSIONAL RECORD — SENATE October 25, 2020
women facing the hardest decision of majority’s action. ‘‘You’ll regret this,’’ judicial role. She has pledged to ‘‘apply
their lives. They matter to LGBTQ he told Democrats once, ‘‘and you may the law as written, not as she wishes it
Americans like my daughter, who only regret it a lot sooner than you think.’’ were.’’ Her testimony, her writings,
5 years ago won the legal right to Listen to those words: ‘‘You’ll regret and her reputation confirm a total and
marry who she loves and could lose it this, and you may regret it a lot sooner complete commitment to impartiality,
just as fast. They matter to little girls than you think.’’ and the nominee’s personal integrity
like 7-year-old Penny Fyman from I would change just one word. My and strength of character are literally
West Hempstead, Long Island, born colleagues may regret this for a lot beyond reproach.
with a neurological disorder, bound to longer than they think. She earned the highest rating from
a wheelchair, attached to a feeding Here, at this late hour, at the end of the left-leaning American Bar Associa-
tube, who is alive today—alive today— this sordid chapter in the history of tion. They marveled at the ‘‘breadth,
because of the Affordable Care Act. the Senate, the history of the Supreme diversity, and strength of the positive
We are talking about the rights and Court, my deepest and greatest sadness feedback [they] received from judges
freedoms of the American people: their is for the American people. Genera- and lawyers of all political persua-
right to affordable healthcare, to make tions yet unborn will suffer the con- sions.’’
private medical decisions with their sequences of this nomination. As the If confirmed, this daughter of Lou-
doctors, to join a union, to vote with- globe gets warmer, as workers continue isiana and Indiana will become the
out impediment, to marry whom they to fall behind, as unlimited dark only current Justice with a law degree
love and not be fired because of who money floods our politics, as reac- from any school not named Harvard or
they are. tionary State legislatures curtail a Yale—any school not named Harvard
Judge Amy Coney Barrett will decide woman’s right to choose, gerrymander or Yale. She will be the first mother of
whether all of those rights will be sus- districts, and limit the rights of mi- school-aged children to ever sit on the
tained or be curtailed for generations. norities to vote, my deepest, greatest, Court.
And, based on her views on the issues— and most abiding sadness tonight is for By every account, the Supreme Court
not on her qualifications but her views the American people and what this is getting not just a talented lawyer
on the issues—Judge Barrett puts nomination will mean for their lives, but a fantastic person. We have heard
every single one of those fundamental their freedoms, their fundamental moving testimony from former stu-
rights—American rights—at risk. rights. dents whom Judge Barrett went out of
So I want to be clear with the Amer- Monday, October 26, 2020—it will go her way to help and to mentor. Her
ican people. The Senate majority, this down as one of the darkest days in the past clerks describe an exemplary boss.
Republican Senate majority, is break- 231-year history of the U.S. Senate. Her fellow scholars describe a winsome,
I yield the floor.
ing faith with you, doing the exact op- The PRESIDING OFFICER. The ma- respectful colleague who is tailor-made
posite of what it promised 4 years ago, jority leader. for the collaborative atmosphere of the
because they wish to cement a major- Mr. MCCONNELL. Mr. President, I Court.
ity on the Supreme Court that threat- think my remarks may encroach some- By any objective standard, col-
ens your fundamental rights. what on the time previously set for be- leagues, Judge Barrett deserves to be
And I want to be very clear with my ginning the vote. I ask consent that I confirmed to the Supreme Court. The
Republican colleagues. You may win be allowed to finish. American people agree. In just a few
this vote, and Amy Coney Barrett may The PRESIDING OFFICER. Without minutes, she will be on the Supreme
become the next Associate Justice of objection, it is so ordered. Court.
the Supreme Court, but you will never, Mr. MCCONNELL. Mr. President, this Two weeks ago, a CNN journalist
never get your credibility back. And evening the Senate will render one of made this observation that I found par-
the next time the American people give the most consequential judgments it ticularly interesting. This is what he
Democrats a majority in this Chamber, can ever deliver. We will approve a life- said: ‘‘Let’s be honest . . . in another
you will have forfeited the right to tell time appointment to our Nation’s high- [political] age . . . Judge Amy Coney
us how to run that majority. est Court. Barrett would be getting 70 votes or
You may win this vote, but in the Since the ink dried on the Constitu- more in the United States Senate . . .
process you will speed the precipitous tion, only 114 men and women have because of her qualifications’’—in a dif-
decline of faith in our institution, our been entrusted to uphold the separa- ferent era.
politics, the Senate, and the Supreme tion of powers, protect people’s rights, Now, we know that is not going to
Court. You will give an already divided and dispense impartial justice on the happen. These are not the days when
and angry Nation a fresh outrage, an Supreme Court. In a few minutes, Justice Scalia was confirmed 98 to 0
open wound in this Chamber that will Judge Amy Coney Barrett of Indiana and Justice Ginsburg was confirmed 96
take a very long time to heal. You will join their ranks. to 3. By the way, I voted for both Gins-
walk a perilous road. This body has spent weeks studying burg and Breyer. It seems like a long
I know you think that this will even- the nominee’s record. We have exam- time ago now.
tually blow over, but you are wrong. ined 15 years of scholarly writings, We spent a lot of energy in recent
The American people will never forget about 100 opinions from the Seventh weeks debating this matter. I think we
this blatant act of bad faith. They will Circuit, and testimonials from legal ex- can all acknowledge that both sides in
never forget your complete disregard perts running the gamut from close the Senate have sort of parallel oral
for their voices, for the people standing colleagues to total strangers. histories about the last 30 or so years.
in line right now and voting their There have been one-on-one meetings Each side feels the other side struck
choice, not your choice. They will for every Senator who wanted one and first and struck worst and has done
never forget the lack of consistency, a week of intensive hearings. All of it— more to electrify the atmosphere
honor, decency, fairness, and principle. all of it—has pointed to one conclusion: around here about confirmations.
They will never forget the rights that This is one of the most brilliant, ad- Now, predictably enough, I think our
are limited, constrained, or taken away mired, and well-qualified nominees in account is based on what actually hap-
by a far-right majority on the Supreme our lifetime. pened, what actually occurred—factu-
Court, and history will record that, by Intellectually, Judge Barrett is an ally accurate. I was there. I know what
brute political force, in contradiction absolute all-star. She graduated No. 1 happened.
to its stated principles, this Republican I had laid it out earlier, and I will
SSpencer on DSK126QN23PROD with SENATE
in her class at Notre Dame Law School.
majority confirmed a lifetime appoint- She clerked on the second highest Fed- talk about some of it again so the peo-
ment on the eve of an election, a Jus- eral court and the Supreme Court. ple may understand how we got to
tice who will alter the lives and free- Then she returned to her alma mater where we are. It was the Senate Demo-
doms of the American people, while and became an award-winning aca- crats—our colleagues over here, who
they stood in line to vote. demic. amazingly enough don’t seem to be on
Leader MCCONNELL has lectured the Judge Barrett’s mastery of the Con- the floor at the moment—who spent
Senate before on the consequences of a stitution gives her a firm grasp on the the early 2000s boasting about their
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October 25, 2020 CONGRESSIONAL RECORD — SENATE S6587
brand-new strategy of filibustering changed forever when a Republican Across a wide variety of social, moral,
qualified nominees from a Republican President makes a Supreme Court and policy matters like a healthy soci-
President. They were proud of it. They nomination. ety would lead to democratic debate,
found a new way to halt the process, They have hauled out the very same the personal opinion of judges have su-
stop those crazy rightwing judges that tactics for 50 years. Some of the oppo- perseded the will of the people.
Bush 43 was going to send up. sition is more intense, but the dooms- They call that a success, and they
They pioneered it because they knew day predictions about the outcome of want more of it. President Obama actu-
what the precedent was at that point. nominating these extremists like John ally was refreshingly honest about
At that point, as we discussed before, it Paul Stephens, David Souter—I mean, this. He said he wanted to appoint
just wasn’t done. You could do it—you the country was hanging in the bal- judges who had empathy. Well, think
could—but you didn’t. The best evi- ance. Really? about that for a minute, colleagues.
dence that you shouldn’t do it was the Well, somehow, everyone knows in What if you are the litigant before the
Clarence Thomas nomination, con- advance that nominations like Bork, judge for whom the judge does not have
firmed 52 to 48. All of us know that any Thomas, Alito, Gorsuch, Kavanaugh, empathy? You are in tough shape. You
one of us in this body has a lot of power and Barrett are certain to whip up na- are in tough shape. So you give him
to object. If any one of the 100 Senators tional frenzies, while nominations like credit for being pretty honest about
at that time, including people who Ginsburg, Breyer, Sotomayor, and this.
were vehemently opposed to Justice Kagan are just calm events by com- That is what they are looking for—
Thomas—like Joe Biden and Ted Ken- parison. the smartest, leftish people they can
nedy—could have made us get to 60 This glaring asymmetry predates our put to make all the decisions for the
votes and Thomas Clarence would not recent disputes. It comes, my col- rest of us, rather than leaving it to the
have been on the Supreme Court. That leagues, from a fundamental disagree- messy democratic process to sort these
is how strong the tradition was, until ment on the role of a judge in our Re- things out, the way the Framers in-
the Democratic leader led the effort in public. We just have a fundamental dif- tended.
the early 2000s to establish the new ference of opinion. We just heard the It is clearly why we have taken on
standard. Democratic leader name all of these such an outsized, combative atmos-
Well, after establishing the new things that are threatened by this phere with regard to these confirma-
standard, they got kind of weary of it. nominee. It sounds very similar to the tions. That is why they have become so
In 2013, the so-called nuclear option tunes we have heard before. We, like contentious, because they want to con-
was implemented because Republicans many Americans, want judges to fulfill trol not only the legislative body but
were holding President Obama’s nomi- the limited role the Constitution as- the judicial decisions as well.
nees to the same standard that they, signs to them: stick to text, resolve Let me just say this. There is noth-
themselves, had created. When the shoe cases impartially, and leave policy- ing innate about legal training that
got on the other foot, they didn’t like making to the people and their rep- equips people to be moral philosophers.
it too much. It was too tight. resentatives, which is what we do here. There is just nothing inherent in legal
Senate Democrats, both in 1992 and We just spent 4 years confirming bril- training that equips people to be moral
2007, helpfully volunteered how they liant, qualified constitutionalists to philosophers.
would have dealt with a nominee like the Supreme Court and lower courts Incidentally, as I just said, that is
we did in 2016. The then-chairman of who understand their roles—53 circuit why these confirmations have taken on
the Judiciary Committee, Joe Biden, judges, over 200 judges in total—and we such an outsized, unhealthy signifi-
helpfully volunteered in 1992 when are about to confirm the third Supreme cance. The remarks we just heard from
Bush 41 was running for reelection Court Justice—what they all have in across the aisle show exactly why the
that, had a vacancy occurred, they common: brilliant, smart, and know Framers wanted to stop the courts
wouldn’t fill it. There wasn’t a va- what a judge is supposed to be. from becoming clumsy, indirect battle-
cancy, but he helpfully volunteered The left thinks the Framers of our fields for subjective debates that be-
how they would deal with it if they had country got this all wrong. They long in this Chamber and over in the
one. ‘‘If there is a vacancy, we won’t botched the job—the people who wrote House and in State legislatures around
fill it.’’ the Constitution, they didn’t under- the country.
Well, to one-up him, Leader Harry stand what a judge ought to be. The left does not rage and panic at
Reid and his friend—now the Demo- Several Senate Democrats have re- every constitutional judge because
cratic leader—CHUCK SCHUMER said: 18 affirmed in recent days during this dis- they will simply enact our party’s pol-
months—18 months—before the end of cussion that they actually find it icy preferences. Any number of recent
the Bush 43 period, if a vacancy on the quaint or naive to think the judge rulings make that very clear. The prob-
Supreme Court occurred, they wouldn’t would simply follow the law. Quaint or lem that every judicial seat occupied
fill it. That is a fact. What we are talk- naive? by a constitutionalist is one fewer op-
ing about here are the facts about how Scalia used to say: If you want to portunity for the left to go on offense.
we got to where we are. make policy, why don’t you run for of- At the end of the day, this is a valid
I understand my Democratic friends fice? That is not what we do here. debate. The difference of opinion on
seem to be terribly persuaded by their Gorsuch said: We don’t wear red the judicial role is something the Sen-
version of all of this. All I can tell you robes or blue robes, we wear black ate and our system are built to handle.
is, I was there, I know what happened, robes. But there is something else, colleagues,
and my version is totally accurate. The What they want is activist judges. our system cannot bear. As you heard
truth is, on all of this, we owe the They have made it quite clear. The tonight, we now have one political fac-
country a broader discussion. Com- Democratic leader just a few minutes tion essentially claiming they now see
peting claims about Senate customs ago made it quite clear: What they are legitimate defeat as an oxymoron.
cannot fully explain where we are. Pro- looking for here is a small panel of They now see legitimate defeat as an
cedural finger-pointing does not ex- lawyers with elite educations to reason oxymoron.
plain the torrent of outrage and backward from outcomes and enlighten Our colleagues cannot point to a sin-
threats which this nomination and all of the rest of us with their moral gle Senate rule that has been broken—
many previous ones had provoked from and political judgment, whether the not one. They made one false claim
the political left. Constitution speaks to the issue or not. about committee procedure, which the
SSpencer on DSK126QN23PROD with SENATE
There are deeper reasons why these They know what is best for us, no Parliamentarian dismissed. The proc-
loud voices insist it is a national crisis. matter what the Constitution or the ess comports entirely with the Con-
You just heard it: It is a national crisis law may say. For the last several dec- stitution. We don’t have any doubt, do
when a Republican President makes a ades in many cases, that is what they we, that if the shoe was on the other
nominee for the Supreme Court. Catas- have done—one activist decision after foot, they would be confirming this
trophe looms right around the corner. another, giving the subjective pref- nominee? Have no doubt, if the shoe
The country will be fundamentally erences of one side the force of law. was on the other foot in 2016, they
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S6588 CONGRESSIONAL RECORD — SENATE October 25, 2020
would have done the same thing. Why? the discredited concept of Court pack- The PRESIDENT pro tempore. A
Because they had the elections that ing. Every high school student in quorum is present.
made those decisions possible. America learns about Franklin Roo- All postcloture time has expired.
The reason we were able to make the sevelt’s unprincipled assault on judi- The question is, Will the Senate ad-
decision we did in 2016 is because we cial independence, so now they are vise and consent to the nomination of
had become the majority in 2014. The thinking about repeating it. Former Amy Coney Barrett, of Indiana, to be
reason we were able to do what we did Vice President Biden, who spent dec- Associate Justice of the Supreme Court
in 2016, 2018, and 2020 is because we had ades condemning the idea here in the of the United States?
the majority. No rules were broken Senate, obediently says he will look Mr. MCCONNELL. I ask for the yeas
whatsoever. into it. and nays.
All of these outlandish claims are ut- Most importantly, the late Ruth The PRESIDENT pro tempore. Is
terly absurd. The louder they scream, Bader Ginsburg said last year, when there a sufficient second?
the more inaccurate they are. You can asked about this, she said nine is the There appears to be a sufficient sec-
always tell—just check the decibel right number. That is the vacancy we ond.
level on the other side. The higher it are filling right now. I don’t think any The clerk will call the roll.
goes up, the less accurate they are. of them quoted her on this issue, have The legislative clerk called the roll.
Our Democratic colleagues keep re- they? Ruth Bader Ginsburg said nine is The result was announced—yeas 52,
peating the word ‘‘illegitimate’’ as if the right number. nays 48, as follows:
repetition would make it true. If you These latest threats follow decades of [Rollcall Vote No. 224 Ex.]
just say it often enough, does it make subtler attempts to take independent YEAS—52
it true? I don’t think so. We are a con- judges and essentially put them on po- Alexander Gardner Portman
stitutional Republic. Legitimacy does litical probation: You don’t rule the Barrasso Graham Risch
way I want, something dire might hap- Blackburn Grassley Roberts
not flow from their feelings. Legit- Blunt Hawley Romney
imacy is not the result of how they feel pen. Boozman Hoeven Rounds
about it. You can’t win them all. Elec- How many consecutive nominees Braun Hyde-Smith Rubio
tions have consequences. have Democrats and the media insisted Burr Inhofe Sasse
would ‘‘tip the balance’’ of the Court? Capito Johnson Scott (FL)
What this administration and this Cassidy Kennedy
Republican Senate has done is exercise How often do we hear that—‘‘tip the Cornyn Lankford
Scott (SC)
balance’’ of the Court? Has anyone tal- Shelby
the power that was given to us by the Cotton Lee
Sullivan
American people in a manner that is lied up how many ‘‘hard right turns’’ Cramer Loeffler
Thune
the courts have supposedly taken in Crapo McConnell
entirely within the rules of the Senate Cruz McSally Tillis
and the Constitution of the United our lifetimes? All this ominous talk is Daines Moran Toomey
States. a transparent attempt to apply im- Enzi Murkowski Wicker
proper pressure to impartial judges. Ernst Paul Young
Irony, indeed. Think about how many Fischer Perdue
times our Democratic friends have Rule how we want or we are coming
said—berating President Trump for al- after the Court. Rule how we want or NAYS—48
legedly refusing to accept legitimate we are coming after the Court. Vote Baldwin Harris Reed
how we want or we will destroy the Bennet Hassan Rosen
outcomes he does not like. How many Blumenthal Heinrich Sanders
times have we heard that: President Senate by adding new States. These Booker Hirono Schatz
Trump won’t accept outcomes he does have been the Democratic demands. Brown Jones Schumer
not like. They are flunking that very This is not about separation of powers. Cantwell Kaine Shaheen
It is a hostage situation—a hostage sit- Cardin King Sinema
test right before our eyes. Carper Klobuchar Smith
That is their problem. They don’t uation. Casey Leahy Stabenow
Elections come and go. Political Collins Manchin Tester
like the outcome.
power is never permanent. But the con- Coons Markey Udall
Well, the reason this outcome came Cortez Masto Menendez Van Hollen
sequences could be cataclysmic if our
about is because we had a series of suc- Duckworth Merkley Warner
colleagues across the aisle let partisan Durbin Murphy Warren
cessful elections. One of our two major
passion boil over and scorch—scorch Feinstein Murray Whitehouse
political parties increasingly claims Gillibrand Peters Wyden
the ground rules of our government.
that any—any political system that
The Framers built the Senate to be The PRESIDENT pro tempore. The
deals them a setback is somehow ille-
the Nation’s firewall. Over and over, nomination of Amy Coney Barrett, of
gitimate. And this started actually
this institution—our institution—has Indiana, to be an Associate Justice of
long before this vacancy, as we all
stood up to stop recklessness that the Supreme Court of the United
know.
could have damaged our country for- States is confirmed.
One year ago, Senate Democrats sent
ever. (Applause.)
the Court—the Court, directly, an ami- So tonight, colleagues, we are called The PRESIDING OFFICER (Ms. MUR-
cus brief that read like a note from a on to do that again. Tonight, we can KOWSKI). The majority leader.
gangster film. They wrote: ‘‘The Su- place a woman of unparalleled ability
preme Court is not well’’ in their ami- f
and temperament on the Supreme
cus brief. ‘‘The Supreme Court is not Court. We can take another historic LEGISLATIVE SESSION
well. . . . Perhaps the Court can heal step toward a Judiciary that fulfills its Mr. MCCONNELL. Madam President,
itself [heal itself] before the public de- role with excellence but does not grasp I move to proceed to legislative ses-
mands it be ‘restructured.’ ’’ after power that our constitutional sion.
In March of this year, the Demo- system intentionally assigns some- The PRESIDING OFFICER. The
cratic leader stood outside the Court. where else. question is on agreeing to the motion.
He went over in front of the Court and And we can state loud and clear that The motion was agreed to.
threatened multiple Justices by name. the U.S. Senate does not bow to intem- f
Here is what he said: ‘‘You won’t know perate threats.
what hit you if you go forward with EXECUTIVE CALENDAR
Voting to confirm this nominee
these awful decisions.’’ should make every single Senator Mr. MCCONNELL. Madam President,
‘‘You will pay the price!’’ proud. I move to proceed to executive session
That is the Democratic leader of the
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So I urge my colleagues to do just to consider Calendar No. 865.
Senate in front of the Supreme Court that. The PRESIDING OFFICER. The
mentioning Justices by name and, in Mr. SCHUMER. Mr. President, I note question is on agreeing to the motion.
effect, saying: If you rule the wrong the absence of a quorum. The motion was agreed to.
way, bad things are going to happen. The PRESIDENT pro tempore. The The PRESIDING OFFICER. The
For multiple years now, Democrats clerk will call the roll. clerk will report the nomination.
in this body and on the Presidential The senior assistant legislative clerk The senior assistant legislative clerk
campaign stump have sought to revive called the roll. read the nomination of James Ray
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