[Congressional Record Volume 166, Number 163 (Monday, September 21, 2020)]
[Senate]
[Pages S5726-S5728]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Supreme Court Nominations

  Madam President, Americans across the Nation were shocked and 
devastated when they heard the news of Justice Ginsburg's passing. It 
was a moment we will not forget. The gravity of that announcement hit 
hard not just because of the loss of a national icon but also because 
of the sense of foreboding of what would happen next, right here in 
this Chamber, in the U.S. Senate.
  The year 2020 has already brought us so much pain and anguish. The 
pandemic has killed 200,000 Americans, sickened over 6 million; 
devastating job losses and economic damage; a long overdue national 
reckoning over racial injustice; deadly wildfires and natural disasters 
destroying communities; and a President, sadly, who seeks to divide and 
inflame instead of uniting America and bringing us together in common 
purpose.
  Justice Ginsburg saw the tension that her absence from the Court 
would cause. Shortly before she passed away, Justice Ginsburg said: 
``My most fervent wish is that I will not be replaced until a new 
President is installed.''
  Unfortunately, Justice Ginsburg's last request is falling on deaf 
ears in the Senate Chamber. Shortly after the news of her death, 
Senator McConnell announced that he would hold the Supreme Court vote 
this year. Here is what Senator McConnell, then leader of the Senate, 
said:

       The American people should have a voice in the selection of 
     their next Supreme Court justice. Therefore, this vacancy 
     should not be filled until we have a new president.

  These are the words of Senator Mitch McConnell. That statement is 
very clear and unambiguous. Senator McConnell made it 269 days before 
the Presidential election, the so-called McConnell rule. This was a 
firm precedent establishing that Senate Republicans would not consider 
a Supreme Court nominee in an election year.
  President Barack Obama sent the name of Judge Merrick Garland from 
the DC Circuit to the Senate for a hearing and a vote. The treatment he 
received from the Senate was disgraceful. Senator McConnell announced 
he would not even give him the time of day, nor meet with him in his 
office, and he admonished those Republican Senators who did. Merrick 
Garland was being shunned by Senator McConnell because of his rule, the 
McConnell rule: No ``vacancy should be filled until we have a new 
president.''
  In his determination to show that this principle would prevail, he 
shunned Merrick Garland. Well, it turns out that this rule of law, this 
McConnell rule that guided the Senate 4 years ago, was not as 
sacrosanct as one might think. A nation guided by a rule of law cannot 
have one set of rules under Democratic Presidents and another set under 
Republican Presidents. That is just what Senator McConnell called for 
on Friday.
  Shortly after the news--a short time after the news of Justice 
Ginsburg's

[[Page S5727]]

passing, Senator McConnell said: ``President Trump's nominee will 
receive a vote on the floor of the United States Senate.'' In direct 
violation of his own statement 4 years ago, Senator McConnell said that 
within hours after the announcement of the death of Justice Ginsburg. 
When Senator McConnell made that statement, we were only 46 days from 
the election. People in many States had already started casting their 
votes.
  Senator McConnell's justifications for breaking his own rule simply 
don't stand up to scrutiny--distinctions without any difference--and 
they have never stood up to common sense.
  Senator McConnell clearly said, when he laid down the McConnell rule 
on February 13, 2016, that the American people should have the last 
word and that election-year Supreme Court vacancies should be filled in 
the next Presidential term. There were no caveats, no exceptions, and 
no amendments. He stated it clearly in just a handful of words.
  Now Senator McConnell claims that whether or not the American people 
have a voice should depend on which party controls the Senate. Now his 
party controls the Senate, and his party has the President. And the 
rule--the so-called McConnell rule--that we were to live by apparently 
is being rejected by Senator McConnell himself. He says that what 
Republicans did in 2016 was acceptable because the Senate at that time 
was controlled by Republicans and a different party was in the White 
House that year--a distinction without a difference. Why should the 
composition of the Senate dictate whether the American people should 
have a voice in the selection of the next Supreme Court Justice? You 
could just as easily point out that 2016 was different because we had a 
President, Barack Obama, who actually had won the popular vote, unlike 
the current President. Should that fact resolve whether the American 
people get a voice in the Court's future?
  Either the American people do get an election-year voice regarding 
the future of the Court or they don't. In 2016, Senator McConnell said 
they do. Now he says they don't. It is a flip-flop, plain and simple, 
because it is to his personal political advantage to reverse this 
stated principle.
  The Republican effort to point to Senator Harry Reid for changing the 
Senate rules for lower court nominations is no justification. The 
reality is that Senator Reid was responding to an unprecedented 
Republican obstruction of President Obama's nominees, and Senator Reid 
made a point of not changing the rule--the 60-vote requirement--when it 
came to Supreme Court confirmations. It was Senator McConnell who did 
that in 2017.
  While Senate rules do change from time to time, you certainly can't 
have rules that depend on whether it is a Republican or a Democratic 
President or a Republican or Democratic Senate. That is exactly what 
Senator McConnell is calling for.
  So here is what it comes down to: In 2016, Senator McConnell said the 
people should get the voice through an upcoming election because that 
outcome at the moment was better for his Republican agenda of 
controlling the Court. In 2020, Senator McConnell reversed himself and 
said the people should not get a voice through the upcoming election 
because that outcome is better for the Republicans today.
  Let's be clear. This is not about rules or principle or comity; this 
is about raw partisan power. The hypocrisy is bad enough; what makes it 
worse is that it is hypocrisy which is so evident to the American 
people at this moment in history.

  What is at stake here? Is this just a matter of the battle of the 
giants in Washington, the big shots screaming at one another in the 
news through the media, or is there more to it? It turns out there is 
much more.
  Let's start with healthcare. This November, the Supreme Court will 
hold arguments in a case in which the Trump administration and 
Republicans are arguing that the Affordable Care Act should be struck 
down in its entirety. There are 20 million Americans who have health 
insurance under the Affordable Care Act, and every health insurance 
policy sold in America is subject to the law of the Affordable Care 
Act. If the Supreme Court does what the Trump administration and the 
Republicans are asking it to do, 20 million Americans could lose their 
healthcare coverage--600,000 of them in my State of Illinois--and tens 
of millions of Americans with preexisting conditions, including 5 
million in Illinois, would lose protections the Affordable Care Act 
currently gives them.
  There have been 6 million Americans, remember, who have been 
diagnosed with positive results from COVID-19. Sadly, many more will be 
diagnosed in the years ahead, and they, of course, now must answer the 
question: Have you ever tested positive for COVID-19? If they answer 
it, they will have a preexisting condition, which the insurance company 
used to jump on to either raise your premiums or to deny you coverage.
  If Republicans have their way before the Supreme Court, young adults 
up to the age of 26 will no longer be able to stay on their parents' 
health insurance. Hospitals--especially in rural areas--will see a 
significant loss of revenue from the elimination of Medicaid expansion.
  At this moment, in the middle of a raging pandemic, it is 
unimaginable that the Republicans are trying to wipe out the critical 
healthcare protections in the Affordable Care Act, but that is what 
they are fighting for in the case before the Supreme Court.
  Here, Republicans were never able to repeal the Affordable Care Act 
on the floor of the Senate. I will never forget that early morning 
vote. It was about 2 or 2:30 a.m. when John McCain came through those 
doors and stood right by that table, and as much as he could lift that 
right arm, because it had been broken when he was a prisoner of war--
something which I honor him for and never will ridicule him for--he 
lifted that arm as much as he could and said no. No. That ``no'' vote 
saved the Affordable Care Act.
  Why did he do it? He explained afterwards: The Republicans don't have 
an alternative. They don't have a substitute. They want to eliminate an 
Obama law, and they have nothing to replace it with. That is still the 
case today.
  The Republicans are no longer fighting this battle on the floor of 
the Senate; they are fighting it across the street in the Supreme Court 
building. So the deciding vote on the Supreme Court--is it important to 
America? For 20 million Americans, it is deadly important as to whether 
they have affordable, quality healthcare.
  Republicans were never able to repeal the Affordable Care Act because 
of John McCain's courage, so Republicans are now trying to accomplish 
in the Supreme Court what they couldn't accomplish on the floor of the 
Senate. In fact, on many issues where the Republican Party's position 
is not popular, Republicans are trying to get the courts to do what 
they can't do legislatively, issues like restricting the right to vote 
and other civil rights; rolling back environmental protections; 
dictating what women can and cannot do with their own health; wiping 
gun safety laws off the books; deporting Dreamers; and undermining 
worker protections. The Supreme Court was created by the Founders of 
our Nation to be the arbiter of equal justice under the law, not as a 
tool for one party's political agenda.
  Well, the American people can smell a rat. They know when the game is 
rigged. They look at the McConnell rule that he announced in 2016, and 
now they look at what he is actually doing in 2020. They know this 
isn't on the level.
  Sadly, in many ways, Senate Majority Leader McConnell has broken the 
Senate down in recent years, and I fear that if we go down the path 
President Trump and Senator McConnell has set us on, the Supreme Court 
may end up broken too.
  It will take only four Republican Senators to stop this travesty--
four. Four Republican Senators can say ``enough.'' We lived by the 
McConnell rule 4 years ago. We publicly stated that it was the right 
thing to do then. We would be hypocrites to an extreme if we turn our 
backs on it now. I hope--I just hope--there will be four Republican 
Senators with the courage--and it will take courage--to say that.
  We should honor Justice Ginsburg's fervent last wish and let the 
American people have a voice in filling this vacancy. That is what 
Senator McConnell insisted on 38 weeks before the

[[Page S5728]]

election in 2016. That should also be our standard in 2020, 6 weeks 
before the election. There should be no confirmation before 
inauguration.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. COONS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Boozman). Without objection, it is so 
ordered.