[Congressional Record Volume 166, Number 164 (Tuesday, September 22, 2020)]
[Senate]
[Pages S5743-S5745]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Supreme Court Nominations

  Mr. MENENDEZ. Madam President, our Nation has suffered a historic 
loss in the passing of legal giant Justice Ruth Bader Ginsburg, and I 
fear the rush to replace her with just 44 days left before the next 
Presidential election will have grave consequences for the lives of 
millions of Americans.
  As tempting as it is, I am not here to talk about the stunning 
hypocrisy of my Republican colleagues who once opposed filling any 
Supreme Court vacancy during a Presidential election year now changing 
the reasons for doing so like a willow in the wind.
  Well, make no mistake, their willingness to abandon their word in the 
naked pursuit of power and deny the American people a voice in this 
process is truly stunning. Today, I want to talk about the consequences 
of their hypocrisy, not for our process here in the Senate but, rather, 
for the lives and livelihoods of millions of families across this 
Nation.
  Everything Americans care about and depend on is on the line, 
starting first and foremost with their healthcare. President Trump has 
already declared that whoever his nominee is, his nominee to the Court 
will vote to ``terminate'' the Affordable Care Act and reverse Roe v. 
Wade.
  The Trump administration is closer than ever to tearing healthcare 
away from millions of people by overturning the law that gave it to 
them in the first place. It is especially outrageous to see the 
administration threaten the healthcare of millions of Americans at this 
perilous moment in our history--with nothing, by the way, to replace 
it.
  Since the passage of the Affordable Care Act, they have said they 
have a better plan. Well, now 11 years later or so, maybe almost 12 
years, we have yet to see what that plan is.
  We are in the midst of a deadly, once-in-a-century pandemic. A 
staggering 200,000 Americans--fathers and mothers, sisters and 
brothers, dear friends and beloved grandparents--are gone forever. 
Meanwhile, millions of people nationwide are infected with the 
coronavirus. To this day, many survivors of COVID-19 are grappling with 
lasting healthcare challenges, from chronic shortness of breath to 
lifelong scar tissue in their lungs.
  We are still learning about the long-term health impacts of 
contracting COVID-19, but here is one thing we do know: Every single 
one of these survivors now has a preexisting condition that makes them 
vulnerable to insurance company discrimination without the protections 
guaranteed by the Affordable Care Act. That is in addition to the 
estimated 135 million Americans who already live with common 
preexisting conditions like chronic asthma, diabetes, and high blood 
pressure, to mention a few.
  Remember what it was like before the Affordable Care Act? A health 
insurance company could refuse to cover you or provide your care or 
even kick you off your plan due to your medical history. A child born 
at birth with a birth defect couldn't get health insurance. The husband 
who had a heart attack couldn't get health insurance. A woman with 
cervical cancer couldn't get health insurance afterward--a preexisting 
condition. We don't want to go back to those days, but that is exactly 
where the Trump administration will take us should they prevail at the 
Supreme Court, as this case is pending before the Supreme Court.
  Now, despite what they say, the Republican mission has been clear for 
a decade: to kill the Affordable Care Act, to strip away healthcare 
from millions of Americans, all the while lying about how they will 
protect individuals with preexisting conditions. It is shameless.
  Just as dangerous is the prospect of a Supreme Court that will 
overturn Roe v. Wade and roll back the reproductive rights of women. 
That is what is at stake with this Supreme Court seat--the basic 
principle that women have a

[[Page S5744]]

right to make their own private medical decisions. The American people 
overwhelmingly believe that women, not the government, should be 
allowed to decide when they have children.
  There is no question that the right to choose is inseparable from the 
past half-century of progress achieved for women's equality in the 
United States. It is that progress that Justice Ruth Bader Ginsburg 
devoted her entire life's work to advancing--the right to pursue their 
own destinies with full equality under the law.
  It is not just healthcare that is on the line; it is our voting 
rights, our civil rights, workers' rights, immigrant rights, and LGBTQ 
rights as well. More than that, it is the right of the American people 
to see their elected representatives enact the kinds of policies they 
support, like bold action on climate change without corporate-backed 
challenges at the Supreme Court undoing their wishes.
  A Supreme Court nominee has never been confirmed this close to a 
Presidential election. Americans are already voting as we speak. Should 
my colleagues in the majority abandon all their prior commitments and 
deny the American people the opportunity to make their voices heard, I 
fear we could do lasting damage to the legitimacy of the Supreme Court.
  This is an institution that rests on the trust and reverence of the 
American people. Losing that trust and reverence is dangerous. It is 
dangerous. It is dangerous for millions of people who will lose the 
Affordable Care Act's protections. It is dangerous for women who could 
lose their right to choose and all of us who do not want to turn back a 
half-century of progress. It is dangerous for our economy at a time 
when American workers and consumers find themselves at the mercy of 
corporations that have grown larger and more powerful than at any other 
time since the Gilded Age. It is dangerous for the future of our planet 
and safety of our climate at a time when the West is burning, seas are 
rising, and the Earth is warming faster than ever before. Quite 
frankly, it is dangerous for our democracy.
  We owe the American people a voice and a decision that will shape the 
course of history for generations. We owe the memory of Ruth Bader 
Ginsburg and her seat on the Supreme Court more than just another 
political power grab
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. VAN HOLLEN. Madam President, last Friday, our country lost a 
trailblazer for equality, a moral giant, and a lover of justice--the 
great Justice Ruth Bader Ginsburg, affectionately known as RBG. While 
physically small, she had a towering impact on American jurisprudence. 
While the volume of her voice was not high, her words carried farther 
and had a greater impact than the louder voices that were often around 
her.
  She famously observed that many of the laws on the books that 
pretended to put women on a pedestal actually put them in cages, and 
then she proceeded to bring cases to strike down those discriminatory 
walls. She transformed America's legal landscape, especially in the 
area of gender equality, and that was before she was even appointed and 
confirmed to the Supreme Court.
  On the Supreme Court, with intelligence and persuasion, she was often 
able to bring others to her point of view, and when she couldn't, she 
could write a stinging dissent, which she viewed as a conversation with 
the future. She had optimism in our Nation's pursuit of justice--that 
her dissents would be vindicated in time, and I dare say that they 
already have in so many cases, including her dissent in the voting 
rights case with the reprehensible 2013 decision where, on a 5-to-4 
vote, the Supreme Court took a bite out of the Voting Rights Act. She 
predicted that as soon as that happened, many of the States that had 
been subject to the preclearance provisions would begin to put up 
barriers to voting, and that is exactly what happened.
  Speaking of the future, her deathbed wish communicated to her 
granddaughter--her most fervent wish--was that she not be replaced 
until a new President is installed, whoever that President may be.
  She died last Friday on Rosh Hashanah. It was a moment when the 
country needed to come together to celebrate her life and honor her 
legacy, and that is what so many people did around the country. We saw 
an outpouring of support from coast to coast, north to south, east to 
west. We saw large crowds gathering at the Supreme Court. But here in 
the U.S. Senate, the majority leader didn't have the decency to even 
provide a respectful pause, a respectful timeout to honor that legacy. 
Just over 1 hour after her death was announced, he put out a statement 
announcing his power play--a statement saying that President Trump's 
nominee, whoever it may be to replace her, would get a vote. The 
majority leader rushed to do that despite taking the opposite position 
in March of 2016 when Justice Scalia passed away and President Obama 
nominated Merrick Garland.
  The majority leader rushed to commit to that vote on President 
Trump's nominee even though, in the middle of this COVID-19 pandemic, 
we have not even had a chance to vote here in the Senate on the Heroes 
Act, which passed the House of Representatives over 4 months ago, 
providing emergency comprehensive relief to families and workers and 
small and medium-sized businesses that are hurting from this pandemic. 
We haven't had a vote on that in 4 months. Yet, within 1 hour of 
Justice Ginsburg's death, the Republican leader announced: ``We will 
have a vote'' on President Trump's Supreme Court nominee.
  Our country just reached the grim total of 200,000 Americans dead 
from COVID-19. More Americans have died from COVID-19 than in any other 
country on the planet, and a big share of those dead are the direct 
result of President Trump's calculated indifference--what he describes 
as ``downplaying'' the threat. Well, downplaying a known threat led to 
inaction, and inaction led to thousands more Americans dying than would 
have been the case. That inaction has led to far more economic pain and 
fallout from COVID-19 than had to be the case.

  We wouldn't have all of these schools closed right now if the 
President had taken more rapid action and if we had comprehensive 
universal and rapid testing. But here we are because Trump wanted to 
``downplay'' the threat.
  The President has opposed the Heroes Act, which passed the House of 
Representatives, and there is still no vote here in the Senate on that 
important legislation to help a country in need--so no vote on that. 
But, my goodness, they just couldn't wait to announce, within 1 hour of 
the Justice's passing away, that this Senate would vote on Trump's 
Supreme Court nomination.
  That is despite what Majority Leader McConnell said in 2016. When 
Justice Scalia passed away and President Obama nominated Merrick 
Garland to fill the seat, you heard Senator McConnell and many 
Republicans say: Can't do it. We are in the middle of an election year.
  In fact, the majority leader went so far as to instruct his 
Republican Members not even to meet with Merrick Garland. They didn't 
even have a hearing for Merrick Garland. The majority leader and so 
many Republican Senators said: Oh, we can't do that because primary 
voting has begun in this 2016 Presidential election year. Primary 
voting has begun. It is underway. It is important to let the American 
people weigh in on the Presidential election and then allow whoever 
wins that Presidential election to make their nomination to the Supreme 
Court.
  That is what we heard from Senator McConnell and so many of our 
Republican Senate colleagues back in 2016--that democracy required that 
the people's will be heard in the Presidential election year.
  Well, it turns out that all of that was just a pure political ploy; 
that we are going to see one set of rules for Democratic Presidents 
like Barack Obama and another set of rules from the Republican majority 
for Republican Presidents like Donald Trump. The dishonesty and rank 
hypocrisy is obscene, and the American people, regardless of party, see 
it for what it is.
  But as bad as the hypocrisy and the dishonesty is, this is about even 
more than that. In fact, it is about much more than that. It is about 
the future direction of our country and the direction of justice in our 
Nation. It is about whether we have a Supreme

[[Page S5745]]

Court that truly stands for equal justice under law, as Justice 
Ginsburg did. It is about whether we will protect women's rights, as 
Justice Ginsburg did throughout her career before and after being on 
the Supreme Court.
  We know where President Trump stands on that. We know he was asked 
during his Presidential campaign on national television about a woman's 
right to reproductive freedom. He said that women who would choose to 
have an abortion should be punished--should be punished. And he has 
said that he will appoint a Justice who will make sure that is what 
happens. That is what he said.
  We are going to see a Justice who wants to strike down workers' 
rights and protections, and we are going to see a Justice who wants to 
destroy the Affordable Care Act.
  The Affordable Care Act provides important protections to the 
American people during ordinary times. It is especially important now, 
as we face this COVID-19 pandemic. We know it has been the goal of 
President Trump and Republicans for years to destroy and overturn the 
Affordable Care Act. After all, I think many of us remember being right 
here on the Senate floor in the summer of 2017. The Speaker of the 
House, Paul Ryan, and a majority of Republicans in the House at that 
time had passed a law to overturn the Affordable Care Act. President 
Trump was itching to sign it. But here in the Senate, we defeated that 
effort by one vote--one vote in the U.S. Senate.
  Why did that happen at the time? A lot of people thought it was a 
forgone conclusion that this Republican majority Senate would vote to 
strike down the Affordable Care Act. It is because the American people 
rose up and said: Hell no. People with diabetes, cancer, heart disease, 
and other preexisting health conditions, and so many other Americans 
said: Do you know what? This isn't a partisan issue. It is not a 
partisan issue if I have cancer or diabetes or asthma or other 
preexisting conditions. Don't take it away.
  Guess what. COVID-19 is not a partisan disease either. It will strike 
people, of course, regardless of political party.
  So the American people got to the phones, got to social media, 
occupied people's offices, and they said: Hell no. And by one vote, we 
protected the Affordable Care Act here in the U.S. Senate
  That should have been the end of the story, but it wasn't because 
what Republicans could not do through the democratic process here in 
the U.S. Senate, they decided to take to the courts. President Trump 
and his Attorney General Barr are in court right now, trying to do 
there what they could not succeed in doing here in the U.S. Senate--
trying to destroy and overturn the Affordable Care Act.
  Guess when the Supreme Court hearing on that Affordable Care Act case 
is scheduled to take place: November 10--November 10, 1 week--1 week--
after the November 3 election.
  So we see the power play here: Jam through a Supreme Court nominee. 
Put them on the Court in time for that hearing so they can hear the 
case and be part of overturning it.
  Make no mistake, President Trump has pledged to appoint a Supreme 
Court Justice who will knock down the Affordable Care Act. We don't 
know who it is going to be, but we know it is going to be somebody who 
the President believes will strike down the Affordable Care Act.
  How do we know that? Here is what Candidate Trump said: ``If I win 
the presidency, my judicial appointments will do the right thing unlike 
Bush's appointee John Roberts on ObamaCare.'' That is Candidate Trump 
in June of 2015.
  Here is what Candidate Trump said on another occasion:

       I'm disappointed in [Justice] Roberts because he gave us 
     ObamaCare. He had two chances to end ObamaCare. He could have 
     ended it by every single measure and he didn't do it, so [it 
     is] disappointing.

  He says this on numerous occasions--numerous occasions.
  He also tweeted out that in 2012, he supported--this is 2012 when 
now-Senator Romney was running for President. Donald Trump tweeted out 
then: I am 100 percent supporting Mitt Romney's position that we need a 
Justice on the Court to strike down ObamaCare.
  So nobody should be playing any games. The President has told us he 
is going to nominate somebody to strike down the Affordable Care Act. 
That hearing is scheduled 1 week after the November 3 election.
  All of those issues are at stake right now. It appears that we have 
enough Republican Senators who have said that we will proceed to 
consider the nomination. They have abandoned the position that Mitch 
McConnell, the Republican leader, and so many Senators took in 2016 
with Barack Obama--President Obama--when they refused to provide a 
hearing. So we are going to proceed. But let's remember the President 
has pledged that he will nominate somebody who will get rid of the 
Affordable Care Act and who will strike down a woman's right to choose. 
That is what the President has said.
  Just as the American people began to get to the phones and on social 
media and to contact their Senators in the summer of 2017 when 
healthcare was at risk, when the Affordable Care Act was at risk, we 
need to make sure that the word gets out again. Back in 2017, we 
stopped that from happening by one vote in the U.S. Senate because the 
American people understood what was at stake.
  Here we are now, in a global pandemic. Instead of focusing on the 
pain the American people are feeling at the moment, instead of allowing 
us to vote on the Heroes Act, we have this Republican majority trying 
to power through a Supreme Court nominee to strike down the Affordable 
Care Act, to do through the courts what they were unsuccessful doing 
here on the Senate floor in the summer of 2017.
  Let's recognize the consequences of this abuse of power and the 
impact and harm it will do to the American people. Let's take the 
advice and dying wish of Justice Ginsburg: Allow the American people to 
speak on November 3 and then allow whoever is sworn in on inauguration 
day in January to put forward a nominee to be considered by the U.S. 
Senate.
  Thank you.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cassidy). The Senator from Mississippi.