[Congressional Record Volume 163, Number 176 (Tuesday, October 31, 2017)]
[Senate]
[Pages S6893-S6894]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Stephanos Bibas

  This week, the Senate will also vote on the nomination of Stephanos 
Bibas to sit on the Third Circuit Court of Appeals. Mr. Bibas worked as 
a Federal prosecutor in Manhattan. You would think that there would be 
plenty of work for a Federal prosecutor with oversight of Wall Street 
and all of the other corporate executives in New York City. You would 
think that, but you would be wrong. Mr. Bibas's most famous case 
involved prosecuting a 51-year-old woman who was accused of stealing $7 
from the cash register at her cafeteria job. That is right. While going 
to work every day in the shadow of Wall Street, Mr. Bibas decided that 
it was the best use of his time and Federal Government resources to 
pursue a $7 case. He eventually lost the case but not before the woman 
lost her job.
  Then there is Amy Coney Barrett, President Trump's nominee for the 
Seventh Circuit Court of Appeals. She has also taken a throw-the-book-
at-them approach to crime--at least to not-white-collar crime. She 
believes that the Miranda doctrine, which protects criminal defendants 
from coercive police tactics, is not required by the Constitution, and 
she has criticized efforts to reverse the damage that has been done by 
the sentencing disparity between powder and crack cocaine--a disparity 
that has been rightly criticized by Republicans, Democrats, religious 
leaders, and civic leaders across this country as rooted in our long 
history of racial disparities in law enforcement.
  We have two justice systems in America--one for the rich and powerful 
and one for everyone else. Part of the way we fix that problem is by 
making sure that we put judges on the Federal bench who are fair, 
impartial, and committed to dispensing equal justice under the law. 
Fair and impartial judges are supposed to stand up for justice when 
prosecutors try to ruin someone's life over allegedly grabbing seven 
bucks from the cash register. They are supposed to stand up for justice 
when consumers and workers seek a day in court against giant companies 
that have injured them. But the judges before the Senate this week do 
not stand up for justice; instead, they stand up for the powerful 
against the people who desperately need someone who will be fair even 
to those who do not have money. These nominees are right at home in 
Washington's rigged system. They are judges who will continue to apply 
one set of rules to the rich and powerful and an entirely different set 
of rules to everyone else.
  It is no wonder that Americans are so angry with Washington. They 
have had it up to their eyeballs with bought-and-paid-for politicians 
who spend more time catering to their wealthy benefactors than 
promoting the interests of constituents who are back home. They are 
tired of giant corporations getting a slap on the wrist for massive 
wrongdoing while people from their hometowns linger in prison for minor 
crimes. They know the legal system is deeply unjust and badly broken.
  It is up to us--to every Member of this Chamber--to fix that broken 
system. Rejecting judicial nominees who will make it worse is a really 
good first step. It is not just the right thing to do, it is what the 
American people sent us here to do.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LANKFORD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LANKFORD. Mr. President, I have the opportunity to speak to this 
body today about Amy Barrett. Her nomination is currently pending to be 
a circuit court judge. There is a pretty high standard for those 
individuals because they handle some incredibly difficult 
constitutional cases. What is good about this is that Amy Barrett meets 
the high standard for those qualifications.
  Professor Barrett received her B.A. in English literature magna cum 
laude from Rhodes College and her J.D. summa cum laude from Notre Dame 
University Law School, where she served as executive editor of the 
Notre Dame Law Review.
  She currently serves as a research professor of law at Notre Dame 
University Law School. Professor Barrett teaches and researches in the 
areas of Federal courts, constitutional law, and statutory 
interpretation, publishing scholarship in leading legal journals, such 
as the Columbia, Virginia, and Texas Law Reviews. Those aren't easy 
areas to be able to publish in or an easy professorship to be able to 
land.
  Before joining Notre Dame, Professor Barrett clerked for Justice 
Scalia of the Supreme Court of the United States and for Judge 
Silberman of the U.S. Court of Appeals for the DC Circuit. Following 
her clerkships, she was an associate, where she litigated 
constitutional, criminal, and commercial cases both in trial and 
appellate courts. Professor Barrett also served as a visiting associate 
professor at George Washington University Law School.
  She seems to be eminently qualified. Then what seems to be the issue? 
Interestingly enough, she faced a very odd set of questions during her 
confirmation process--questions not about her legal scholarship, not 
about her qualifications, but, oddly enough, about her Catholic faith. 
It wasn't about her temperament. It wasn't about her fairness. It 
wasn't about scholarship. It was whether her Catholic faith would get 
in the way of her being a good judge. Quite frankly, it wasn't about 
whether she had chosen a faith; it was the problem that she actually 
seemed to live her faith that became a big challenge during the 
questioning time period.

[[Page S6894]]

  It is odd for us as Americans because this seems to be an issue we 
resolved 200-plus years ago. We resolved it in article VI of the 
Constitution, which says that there is no religious test for any 
officer of the United States. There is no requirement to be of a 
certain faith or, if you are of a certain faith, to take that faith off 
if you are going to serve in the United States. We have in our 
Constitution a protection not of freedom of worship, which I hear some 
people say--they are free to worship as they choose--that is not our 
constitutional protection. Our constitutional protection is the free 
exercise of your religion--not just that you can have a faith, but you 
can both have a faith and live your faith according to your own 
principles. That is consistent with who we are as Americans, that we 
allow any individual to have a faith and to live their faith both in 
their private and public life or to have no faith at all if they choose 
to have no faith at all. That is a decision for each American.
  But we don't ask individuals--as has been asked of this individual--
whether faith will be the big issue and whether faith becomes a 
question in whether they are capable to serve other fellow Americans.
  What is so dangerous, quite frankly, about her Catholic faith and her 
Christian beliefs as far as her being a judge? Are people afraid that 
she will actually live out what the Book of Proverbs says--to speak up 
for those who cannot speak for themselves, speak for the rights of all 
who are destitute, speak up and judge fairly, defend the rights of the 
poor and the needy? Is that what everyone is afraid of, that she will 
actually live out that Biblical principle?
  I am a little confused why comments, such as ``The dogma lives loudly 
within you,'' were said during her questioning in the committee, and 
there were other questions to challenge her Catholic faith. Faith is a 
choice that each individual has, and it is an extremely personal but 
also extremely important choice.
  Some individuals in America--myself included--choose to look past the 
mundane, day-to-day events and to think there is someone and something 
higher than us. We don't just look at the creation around us; we wonder 
about the Creator who made it. We don't just wonder about cosmic dust 
smashing into each other; we ask a logical question: If cosmic dust 
were to smash into each other in space and create all there is, who 
made space and who made the cosmic dust that smashed into each other, 
and how did that happen? Faith drives us to ask harder questions and to 
look a little longer at things that other people just see as plain in 
front of them. We ask what is behind it. A lot of Americans do. It is 
not irrational; it is a part of who we are and a part of how we are 
made.
  It is a challenge to us as Americans to be able to challenge an 
individual and to say: That person is so radical that they believe in 
things like do not murder, do not steal, do not covet, honor your 
father and mother, or even things as radical as, in whatever you do, do 
unto others as you would have them do unto you.
  It doesn't seem that radical of a belief that we would have to 
challenge and wonder whether one was able to be a judge if they believe 
in those things. We dare to believe in something beyond us, as do 
millions of other Americans.
  I really thought that our Nation was past this, that our Nation that 
speaks so much of diversity and of being open to other ideas is somehow 
closing to people of faith. People who say they want to demand that 
everyone be included are afraid of people who have faith and live their 
faith. Why would that be? If we are going to be an open society, is it 
not open as well to people of faith to not only have a faith but to 
live their faith?
  We hit a moment like this in the 1960s, and I thought we had moved 
past it. There was a Senator at that time who was running to be 
President of the United States. We know him as John Kennedy.
  Senator Kennedy was speaking to a group of ministers in Houston, TX, 
in the 1960s, and he had to stand before them and explain his Catholic 
faith because, quite frankly, there was this buzz: Could someone be a 
Catholic and be President? What would that mean? Would you have 
difficulties with that?
  The questions that were asked of Professor Barrett were strikingly 
similar to the questions that were asked of Senator Kennedy when he was 
running to be President of the United States. Here is how Senator 
Kennedy responded:

       For while this year it may be a Catholic against whom the 
     finger of suspicion is pointed, in other years it has been, 
     and may some day be again, a Jew--or a Quaker or a Unitarian 
     or a Baptist. It was Virginia's harassment of Baptist 
     preachers, for example, that helped lead to Jefferson's 
     statute of religious freedom. Today I may be the victim, but 
     tomorrow it may be you--until the whole fabric of our 
     harmonious society is ripped at a time of great national 
     peril. . . . And in fact, this is the kind of America for 
     which our forefathers died, when they fled here to escape 
     religious test oaths that denied office to members of less 
     favored churches; when they fought for the Constitution, the 
     Bill of Rights, and the Virginia Statute of Religious 
     Freedom; and when they fought at the shrine I visited today, 
     the Alamo.

  JFK had visited the Alamo that day.

       For side by side with Bowie and Crockett died McCafferty 
     and Bailey and Carey. But no one knows whether they were 
     Catholic or not, for there was no religious test at the 
     Alamo.

  Then he made this closing statement:

       If I should lose on the real issues [of the Presidential 
     race], I shall return to my seat in the Senate, satisfied 
     that I had tried my best and was fairly judged. But if this 
     election is decided on the basis that 40 million Americans 
     lost their chance of being president on the day they were 
     baptized, then it is the whole nation that will be the loser, 
     in the eyes of Catholics and non-Catholics around the world, 
     in the eyes of history, and in the eyes of our own people.

  This should be a settled issue for us, not a divisive one. We are a 
diverse nation--diverse in backgrounds, perspectives, attitudes, and 
yes, diverse in faith.
  I look forward to supporting Professor Barrett in this position, and 
I look forward to seeing her decisions as they come out of that court, 
consistent with the law--as she is well trained to be able to do--and 
consistent with our convictions as Americans.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.