[Congressional Record Volume 166, Number 44 (Thursday, March 5, 2020)]
[Senate]
[Pages S1509-S1510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             SUPREME COURT

  Mr. McCONNELL. Madam President, I planned to spend my remarks today 
discussing our bipartisan, bicameral agreement to fund the fight 
against the new coronavirus. I was looking forward to congratulating 
all my colleagues and discussing all the ways this funding will help 
our public health experts, frontline healthcare professionals, and 
State and local officials combat the spread of this virus and mitigate 
its effects. It is a serious agreement to meet a serious challenge, and 
today we will send it to President Trump's desk.
  So today will be an important day for the country, and it was going 
to be a proud day for the Senate, but instead the Nation's eyes are on 
this body for an entirely different reason.
  A few weeks ago, I spoke on this floor about a dangerous trend that 
threatens our self-governance. I explained how some in the Democratic 
Party appear more interested in attacking the institutions of our 
government than in working within them, how Democrats increasingly 
respond to political disappointments with extreme claims that our 
system of government itself must be broken. The failure can't be their 
own. It can't be that the left needs better arguments or ideas. No. No, 
the fault must lie with the Constitution itself.
  Democrats have tried to cloak their anger at President Trump in 
rhetoric about protecting norms and institutions, but, in reality, it 
is their own side of the aisle where anti-institutionalism is rampant. 
Rampant. We can talk about attacks on the office of the Presidency, on 
the Electoral College, on the First Amendment, on the Senate itself, 
but most striking of all has been the shameless efforts to bully our 
Nation's independent judiciary, and yesterday those efforts took a 
dangerous and disturbing turn.
  By now many already know what the Democratic leader shouted outside 
the Supreme Court yesterday morning. I am sorry to have to read it into 
the Record. First, he prompted a crowd of leftwing activists to boo two 
of the Associate Justices--as though Supreme Court Justices were 
professional athletes and Senator Schumer were jeering from the stands. 
Then the senior Senator from New York said this:

       I want to tell you, Gorsuch! I want to tell you, Kavanaugh! 
     You have released the whirlwind, and you will pay the price. 
     You won't know what hit you if you go forward with these 
     awful decisions.

  I am not sure where to start.
  There is nothing to call this except a threat, and there is 
absolutely no question to whom--to whom it was directed.
  Contrary to what the Democratic leader has since tried to claim, he 
very, very clearly was not addressing Republican lawmakers or anyone 
else. He literally directed the statement to the Justices by name. He 
said: ``[I]f you go forward with these awful decisions,''

[[Page S1510]]

which could only apply to the Court itself. The minority leader of the 
United States Senate threatened two Associate Justices of the U.S. 
Supreme Court. Period. There is no other way to interpret that.
  Even worse, the threat was not clearly political or institutional. As 
I will discuss in a moment, these kinds of threats are sadly nothing 
new from Senate Democrats. This was much broader--much broader.
  The Democratic leader traveled to the workplace of the two Justices, 
and in front of a crowd of activists, he told those Justices ``you will 
pay the price'' right in front of the Supreme Court building and ``you 
won't know what hit you.'' He said this right in front of the Supreme 
Court building.
  If any American had these words shouted at them from a sidewalk 
outside their office, they would hear those threats as personal, and 
most likely they would hear them as threatening or inciting violence. 
That is how any American would interpret those words if they were 
directed at them. That is certainly how the press and leading Democrats 
would have characterized them if President Trump or any senior 
Republican had said anything even remotely--remotely--similar. We have 
seen much more hay made out of much less.
  Perhaps our colleague thinks this is absurd. Perhaps he would like 
the most generous possible interpretation; that he got carried away and 
he didn't mean what he said, but if he cannot even admit to saying what 
he said, we certainly cannot know what he meant.
  At the very best, his comments were astonishingly reckless and 
completely irresponsible. Clearly, as the Chief Justice stated in a 
rare and extraordinary rebuke, they were ``dangerous'' because no 
matter the intention, words carrying the apparent threat of violence 
can have horrific, unintended consequences.
  In the most recent year on record, the U.S. Marshal Service tracked 
thousands of threats and inappropriate communications against the 
judiciary--thousands of threats against the judiciary.
  Less than 3 years ago, of course, an unhinged and unstable leftwing 
activist attempted a mass murder of congressional Republicans at a 
baseball field right across the river.
  A Senate leader appearing to threaten or incite violence on the steps 
of the Supreme Court could literally be a matter of deadly seriousness.
  So I fully anticipate our colleague would quickly withdraw his 
comments and apologize. That is what even reliably liberal legal 
experts like Laurence Tribe and Neal Katyal have publicly urged.
  Instead, our colleague doubled down--doubled down. He tried to 
gaslight the entire country and stated that he was actually threatening 
fellow Senators, as though that would be much better, but that is a 
fiction. A few hours later, the Democratic leader tripled down. Instead 
of taking Chief Justice Roberts' sober and appropriate statement to 
heart, he lashed out, yet again, and tried to imply the Chief Justice 
was biased--biased--for doing his job and defending the Court. Let me 
say that again. He tripled down, and he lashed out, yet again, and 
tried to imply that the Chief Justice was biased for doing his job and 
defending the Court. Our colleague therefore succeeded in attacking 33 
percent of the Supreme Court in a space of a few hours.
  Throughout the impeachment and the Senate trial, for months, 
Washington Democrats preached sermons about the separation of powers 
and respect among equal branches.
  So much for all of that. And sadly, this attack was not some isolated 
incident. The leftwing campaign against the Federal Judiciary did not 
begin yesterday--not yesterday. My colleagues will recall that during 
the impeachment trial the senior Senator from Massachusetts and outside 
pressure groups tried to attack the Chief Justice, sitting right in 
that chair, for staying neutral instead of delivering the outcomes that 
they wanted. These same groups came to Senator Schumer's defense 
yesterday with gratuitous attacks against the Chief Justice for 
condemning the threats against his colleagues.
  Last summer--last summer a number of Senate Democrats sent an 
extraordinary brief to the Supreme Court. It threatened to inflict 
institutional change on the Court if it did not rule the way the 
Democrats wanted. In other words, give us the ruling we want or we will 
change the numbers of the Court. Here is what they wrote: ``The Supreme 
Court is not well. . . . ''
  Really?

       The Supreme Court is not well. . . . Perhaps the Court can 
     heal itself before the public demands it be ``restructured . 
     . . ''

  What that means is, you rule the way we want or we are going to 
expand the numbers and change the outcome--a political threat, plain as 
day. As you read the document, you half expected it to end by saying: 
That is some nice judicial independence you got over there. It would be 
a shame if something happened to it.
  It couldn't have been more clear. Independence from political 
passions is the cornerstone of our judiciary in our country. Judicial 
independence is what enables courts to do justice even when it is 
unpopular, to protect constitutional rights even when powerful 
interests want them infringed. Judicial independence is what makes the 
United States of America a republic of laws rather than of men.
  It has been almost a century since the last time Democrats threatened 
to pack the Supreme Court because they wanted different rulings. 
History still judges that disgraceful episode to this day.
  I would suggest that my Democratic colleagues spend less time trying 
to threaten impartial judges and more time coming up with ideas that 
are actually constitutional.
  Fortunately, this extraordinary display contains one ironic silver 
lining. These clumsy efforts to erode a pillar of American governance 
have just reminded everyone why that pillar is so crucial. These 
efforts to attack judicial independence remind us that independence is 
essential. Every time Democrats try to threaten sitting judges, we are 
reminded exactly--exactly--why the Framers gave them life tenure and 
salary protection, precisely why they did it. Every time Democrats toy 
with packing new seats onto the Court, we are reminded exactly why, as 
Justice Ginsburg recently said, ``Nine seems to be a good number.'' 
Justice Ginsburg said, ``Nine seems to be a good number.''
  The distinguished men and women of the Supreme Court do not and must 
not serve at the pleasure of angry partisans--must not serve at the 
pleasure of angry partisans. They do not need to pay any mind to 
unhinged threats, as shameful as they may be. In fact, as the Chief 
Justice reminded us yesterday, they are duty-bound to pay such things 
no attention at all. Their job description is simple: to apply the law 
to the facts, as the Chief Justice put it, ``without fear or favor from 
whatever quarter.'' I have great confidence the Court will do just 
that. I am confident that if the facts and the Constitution would have 
led the Court to disappoint Democrats the day before yesterday, they 
would still feel free to do so today, tomorrow, and beyond, 
notwithstanding these shameful tactics.
  I had hoped I would not need to reiterate what every Republican 
Senator told the Court in August after Senate Democrats sent their 
threatening brief, but today I have no choice but to say it again: 
Republicans are absolutely and unshakably committed to the core 
constitutional principle of an independent Federal judiciary--the core 
constitutional principle of an independent Federal judiciary.
  As long as this majority holds the gavel, we will never let the 
minority leader's dangerous views become policy. This majority will 
ensure that the only casualties of this recklessness are the 
reputations of those who engage in it.

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