[Congressional Record Volume 166, Number 165 (Wednesday, September 23, 2020)]
[Senate]
[Pages S5838-S5841]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Supreme Court Nominations

  Mr. BENNET. Madam President, I want to say how much I appreciate your 
staying late this evening for this.
  Last night, I had the chance to speak about the late Justice Ruth 
Bader Ginsburg, somebody who, as much as anyone in our history, 
advanced the cause of equality between men and women. When President 
Clinton named

[[Page S5839]]

her to the Supreme Court, she had already transformed American law 
through her trailblazing work as a professor and litigator. It is why 
her nomination sailed through this body with 96 votes--a reminder of a 
time not so very long ago when the Senate understood its constitutional 
duty to advise and consent, when a qualified judge would get the vast 
majority of Senators to vote for that person. Every single time we did 
that, we reestablished the idea that the judiciary is independent--
independent from what hopefully are temporary, insane partisan battles.
  After earning that 96 votes, for more than a quarter century on the 
Court, Justice Ginsburg authored rulings that promoted fairness, 
advanced equality, and secured hard-won rights. They upheld affirmative 
action and protected a woman's right to choose. At the same time, she 
could never accept a decision that nullified our right to vote or 
otherwise limited our democratic values, even when it was hard for some 
of her colleagues on the highest Court in the land to perceive the 
systemic racism in our country.
  As I said last night, because the young Joan Ruth Bader knew America 
would be worse off without her, without her talent, Justice Ginsburg 
fought hard to make America more democratic, more fair, and more 
free. Unfortunately, the same cannot be said of the majority leader of 
this body who now seeks to ram a replacement through the Senate. As a 
Senator and as a majority leader, he dedicated his career to undo the 
work of Justice Ginsburg and those who have fought beside her for a 
better America.

  Pick almost any issue--from the degradation of our courts and our 
democracy to the sorry state of our government's fiscal condition--and 
for decades, you will find the majority leader's fingerprints all over 
the crime scene.
  Let's start with the courts; that seems an appropriate place to start 
today. Justice Ginsburg cared deeply about what she called public 
respect for a confidence in the judiciary. No one in America has done 
more to destroy that confidence and respect than the Senator from 
Kentucky.
  I first came to Washington as Colorado's Senator during President 
Obama's first term. The majority leader, who was then the minority 
leader, Mitch McConnell from Kentucky, led the blockade against 
virtually all of President Obama's nominees. He filibustered the 
nominee for Secretary of Defense who was a Republican. In the history 
of the country, no nominee to be Secretary of Defense was filibustered. 
From George Washington to George W. Bush, Senators had used the 
filibuster against 68 Presidential nominees; from Washington to Bush, 
that entire period, there were 68 filibusters of Presidential nominees.
  During President Obama's first 5 years, Republican Senators, led by 
Mitch McConnell, used it against 79 nominees. In 5 years of a brand-new 
President, they used the filibuster more times than in our history 
going back to George Washington.
  The obstruction was relentless. It finally led Senate Democrats to 
change the rules in 2013 with the so-called nuclear option, allowing us 
to confirm judicial nominees, except for the Supreme Court and other 
executive appointments, with 51 votes instead of 60 votes. I am sorry 
about that vote.
  I have apologized on this floor before about that vote. It has led us 
partly to where we are today. After Republicans won a majority in this 
body, Senator McConnell made his prior obstruction look like a game of 
beanbag. He wasn't in the minority anymore. Now, he was in the 
majority.
  The next low point came on February 13, 2016. I will never forget it. 
I was speaking at the Jefferson-Jackson Day dinner in Colorado when I 
saw the crawl come on CNN announcing the death of Justice Scalia. It 
was a Presidential election year, and there were 342 days to go before 
the end of President Obama's second term--a term made possible by the 
American people deciding, once again, to hire, to give him the power to 
appoint people to the Supreme Court. Let the people decide.
  One hour after Chief Justice Roberts confirmed Scalia's death, 
Senator McConnell declared 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. That is not 
what the Constitution says. When there is a vacancy, the President 
shall nominate, and the Senate shall advise and consent. Today, we have 
a Senate with this majority that is not even interested in advising. As 
we stand here tonight, they have given their consent without even 
knowing who the nominee is going to be.
  Hoping cooler heads would prevail, President Obama nominated Merrick 
Garland, someone a Republican Senate had previously confirmed with 76 
votes and whom the former Republican Senator from Utah, my friend Orrin 
Hatch, once called ``a consensus nominee for the Supreme Court.''
  I have known Merrick Garland for a quarter of a century. I worked for 
him fresh out of law school when both of us served in the Deputy 
Attorney General's office at the Department of Justice. I have never 
heard another lawyer or anyone, for that matter, refer to Garland 
without the highest admiration. He set the standard for excellence. He 
was a lawyer's lawyer.
  Senate Republicans, led by the majority leader, refused to even meet 
with Judge Garland, let alone give him the courtesy of a hearing so the 
American people could see what an outstanding person he was, how 
brilliant and fair-minded he was. The majority leader would go on to 
say about this disgraceful moment in our democracy's history that ``One 
of my proudest moments was when I looked Barack Obama in the eye and 
said, `Mr. President, you will not fill this Supreme Court vacancy.' ''
  We know what happened next. We are still living in ``next.'' For the 
rest of 2016, the majority leader held the seat open all year, 342 days 
with no hearings, no meetings, no vote. One of the Senators in this 
body went home--I was proud they went home and said:

       I am never going to vote for Merrick Garland, but I think 
     it is wrong for us not to have a vote. We should have a vote. 
     I should go home and explain why I voted the way I voted and 
     have to defend my vote
  Two days later, a super PAC run by a former clerk of Justice Scalia 
started to threaten they would run a primary against him if he didn't 
change his mind, and he did. We know what happened.
  Majority Leader McConnell kept the seat open. He helped elect Donald 
Trump who ran for office waving around a list of judges that he would 
appoint to the court and made Donald Trump, of all people, the first 
President in American history with the power to fill every judicial 
vacancy with a simple majority vote because Senator McConnell later 
used the nuclear option to change the rules again without really having 
any debate here. As a result, he has used that power to confirm 217 
judges. Nearly a quarter of the Federal bench are now Trump appointees.
  In 2017, Senator McConnell detonated his own nuclear option to lower 
the required votes for Supreme Court Justices from 60 to 51, as he 
warned--in fairness to him--as he warned he would do. He installed Neil 
Gorsuch in what should have been Garland's seat. In 2018, he jammed 
through the nomination of Judge Kavanaugh under his new regime, 
delivering the confirmation by a margin of two votes, the narrowest 
margin for a Supreme Court nominee since 1881.
  Throughout it all, he seated a roster of judges across the Federal 
bench who otherwise could not make the ``B'' team. The Senate confirmed 
a judge who opposed the State proclamation honoring an association of 
professional women because it had dared to talk about glass ceilings 
and pay equity. The Senate confirmed a lawyer who wrote blog posts 
peddling conspiracies about Barack Obama and comparing abortion to 
slavery; an attorney who suggested judges can ignore judicial 
precedence they deem incorrect and who justified denying habeas corpus 
to enemy combatants with the brutal ancient dictum: In times of war, 
the laws are silent.
  Then the Senate confirmed its first-ever nominee rated ``Not 
Qualified'' by the American Bar Association. It had never happened 
before in American history. But once was not enough. The Senate went on 
to approve six more Trump nominees rated ``Not Qualified'' by the ABA. 
You can't find qualified lawyers? You can't find a lawyer who can 
just--not even exceeds--just

[[Page S5840]]

meets? These people are unqualified. What qualifies them is many of 
them are in their thirties and are going to be on the courts for my 
lifetime.
  I thought that was all rock bottom. Then last Friday, 1 hour after we 
learned of Justice Ginsburg's passing, the majority leader issued a 
press release saying: ``President Trump's nominee will receive a vote 
on the floor of the United States Senate.'' That is the opposite of 
what he sent out when Justice Scalia died.
  When the majority leader blocked Judge Garland, when he said the 
American people should have a voice in the selection of their next 
Supreme Court Justice, there were 342 days left in President Obama's 
term--342. There are 119 days left in President Trump's term, and there 
are 41 days left before this election.
  Here is what the history really is, not the masquerade that the 
majority leader has been engaging in with the American people: From the 
founding of this country until today, we have had nine Supreme Court 
vacancies arise in the first 6 months of a Presidential election year. 
Nine vacancies have arisen in the first 6 months of a Presidential 
election year. The Senate confirmed every single one of them, except 
Merrick Garland. The Senate has never confirmed a Supreme Court nominee 
this close to a Presidential election, never in the history of America.
  Now, we have given our consent, apparently, before we even know who 
the nominee is. Because of Donald Trump's magical powers, we are 
willing to somehow take it on faith. But these traditions make no 
difference to the majority leader. Thanks to him, we now live in a 
world where confirming judges has become one more vicious partisan 
exercise, where confirmation votes will now break on party lines for 
the foreseeable future--and, perhaps, forever--and where every ruling a 
Justice makes is going to be viewed as that is what we would expect 
from an Obama judge, that is what we would expect from a Trump-
appointed judge. It is the opposite of the way this worked when I was 
in law school.
  The majority leader says: I am just putting it back to the days 
before we had a filibuster of circuit court judges because now there is 
no filibuster when it comes to Justices or judges. It is not accurate, 
and it is not right because, in those days, if you were qualified, you 
would get 96 votes like Ruth Bader Ginsburg got and like Justice Scalia 
got. I think he got 95 votes. Yet now we have exported the vicious 
partisanship out of this Chamber and into the highest Court of the 
land.

  Senator McConnell has not only damaged the integrity of our courts--
something the late Justice Ginsburg cared deeply about--but he has also 
worked to sabotage her legacy of an America that is more democratic, 
more fair, and more free.
  Over his 36 years in office, the majority leader has voted against 
nearly every piece of legislation that has promoted equality and 
advanced civil rights. Again and again, he has voted against banning 
discrimination based on someone's sexual orientation, prosecuting hate 
crimes, and improving equity in the workplace. He even voted against 
reauthorizing the Violence Against Women Act. More than anyone in 
America--and I say he is actually proud of this--he is responsible for 
exposing our democracy to a deluge of money, special interests, and 
foreign interference.
  The majority leader has voted against every major campaign finance 
reform bill that has come to this floor. In fact, he led the fight 
against the bipartisan reform bill that was written by the late Senator 
John McCain, and when he failed to stop it in the Senate, Senator 
McConnell went to the courts to have it overturned, paving the way 
years later for the disastrous ruling in Citizens United, which has 
allowed billionaires to flood our political system in the name of free 
speech when average working people are being drowned out.
  He voted against the bipartisan National Voter Registration Act, 
which allowed people to register to vote when they got their driver's 
licenses.
  Ahead of the 2016 elections, he refused to join President Obama and 
issue a bipartisan statement to alert the American people to the threat 
of Russian interference in our elections. He refused to do it, and the 
American people didn't know until after the election was over that 
Vladimir Putin was putting his thumb on the scale. To this day, he 
refuses to let us vote on bipartisan bills to protect our elections 
from foreign interference or even bills to fully fund our elections so 
that people can vote safely in the middle of a pandemic.
  There is only one person who gets to decide whether we vote on 
something around here, and he is the majority leader. I would like to 
see which Senators would vote against protecting our elections from 
Russian interference. I would like to see it, but we can't know because 
he won't allow it to come here for a vote. I would like to see who in 
this Chamber actually is against universal background checks, something 
we haven't been able to take a vote on because the majority leader 
won't allow a vote.
  Come out and vote.
  It has been over 570 days since the House passed the For the People 
Act, a bill that would ban gerrymandering, expand early voting, create 
automatic voter registration, and make election day a national holiday, 
among other reforms. The majority leader refuses to bring it to a vote. 
He called it a power grab. That is the Orwellian language that he uses. 
The only power grab that is, is a power grab by the American people to 
try to pry a little bit of power away from the majority leader from 
Kentucky on behalf of himself.
  I am not sure any majority leader in our history has had this low of 
regard for our democracy and for our institutions than the Senator and, 
I would say, less regard for the American people as well, because every 
time he has taken a knife to our institutions, he is in front of the 
cameras, talking about what an institutionalist he is.
  When he became majority leader, he said his first priority would be 
to ``restore the Senate to the place our Founders, in their wisdom, had 
intended, not the hollow shell''----
  The PRESIDING OFFICER. The Senator will suspend
  Rule XIX, paragraph 2, provides that no Senator in debate shall, 
directly or indirectly, by any form of words impute to another Senator 
or to other Senators any conduct or motive unworthy or unbecoming a 
Senator.
  The Senator may proceed.
  Mr. BENNET. Madam President, I was interrupted, but let me go back.
  When he became majority leader, he said the first priority would be 
to ``restore the Senate to the place the Founders, in their wisdom, had 
intended, not the hollow shell of the institution [Harry Reid had 
created].''
  Harry Reid was his predecessor. I think I remember him being on the 
floor, calling Harry Reid the worst majority leader that had ever 
existed in history. I don't think he was sanctioned for that.
  He promised ``to open up the legislative process in a way that allows 
more amendments from both sides.''
  Last year, we voted on 26 amendments. In the entire year last year, 
we voted on 26 amendments. Only eight of those amendments passed, and I 
think Senator Paul, of Kentucky, had four of those amendments.

       Sometimes it's going to mean [actually] working more often. 
     Sometimes it's going to mean working late, but restoring the 
     Senate is the right thing to do.

  We are not working late around here. He said we were going to work on 
Fridays. Half the time, when Harry Reid was the majority leader, I 
couldn't go home until Friday. Since the majority leader has been here, 
I have been home for dinner every Thursday night.
  He said we need to recommit to what he called a rational, functioning 
appropriations process. This year, we haven't passed a single 
appropriations bill in the Senate. Last year, we had the longest 
government shutdown in American history.
  ``We need to return to regular order,'' he said. This is from the 
majority leader who put a bill on the floor to strip healthcare from 16 
million Americans, a bill we didn't even see until a few hours before 
the vote. There are so many of these things that we don't even remember 
them anymore. He claims to be an institutionalist, but he has brought 
this institution to the lowest it has been.
  It is no different than his claim to being a fiscal conservative. I 
have heard him say over and over again that our debt and deficits are 
the single biggest threat to America's future. He

[[Page S5841]]

called it ``the transcendent issue of our era.''
  He said, ``Until we fix that problem [the deficit], we can't fix 
America.''
  He said Americans are ``tired of the spending, debt and government 
takeovers'' and complained that our debt ``makes us look a lot like 
Greece.''
  He claims to be a fiscal hawk--he has done it his entire career--but 
the truth is there is not an American, living or dead, who has put more 
debt on the balance sheet of this country than Mitch McConnell--$17 
trillion--and that is just over the last 20 years. And for what--to 
invest in education? to build our roads and bridges? to do something 
about mental health in the country or water infrastructure? For what? 
It has been to cut taxes for the richest people in the country and to 
borrow it all from China, which is the opposite of what he said he was 
doing, the opposite of what he promised.
  He said the tax cuts would pay for themselves. They never have. He 
said they would benefit the middle class, but two-thirds have gone to 
the top 20 percent at a time when we have had the worst income 
inequality that we have had since 1928, when we have had an economy 
that, for 50 years, 90 percent of the American people haven't seen a 
pay raise. That means, in the first 25 years of this century, we are on 
track to spend $6.8 trillion on tax cuts for the richest 20 percent of 
Americans.
  It is exactly the same thing as if a mayor in any one of our 
communities in our States had said to their neighbors and to their city 
councils and to the press: I am going to borrow more money than we have 
ever borrowed before
  You would say: Well, that worries me a little bit. What are you going 
to spend the money on? Are you going to spend it on our roads?
  No.
  Are you going to spend it on our bridges?
  No.
  On our water system?
  No.
  On mental health? On COVID? On our public health infrastructure?
  I am going to take that money that I am borrowing from the Chinese, 
and I am going to give it to the two richest neighborhoods in town.
  That is the majority leader's tax policy, and that is what it has 
been since 2001.
  This speech isn't about spending, but while I have the microphone, 
here is what we could have done for $6.8 trillion: We could have 
created universal preschool for every child in America. These are not 
either/or by the way. That is how big a number $6.8 trillion is. We 
could have invested in the 70 percent of Americans who don't graduate 
from college so that they can earn a living wage when they graduate 
from high school, not the minimum wage. We could have made public 
college affordable for every middle-class American, given every teacher 
in America a 50-percent pay raise and paid them like the professionals 
that they are.
  We could have cut child poverty by 40 percent in this country. We 
could have protected Social Security so that we would know it would be 
there for our children and our grandchildren. We could have rebuilt 
America's roads, bridges, tunnels, and airports. We could have laid 
high-speed broadband in every community, lowered the cost of 
prescription drugs, covered everyone with high-quality healthcare by 
creating a public option. We could have passed paid family and medical 
leave, invested in science and public health so that we could have been 
more prepared for the global pandemic. We might have even paid down 
some of our debt and actually acted fiscally responsible.
  In other words, we could have changed the destiny of America. We 
could have added to Justice Ginsburg's legacy by making this country 
more democratic, more fair, and more free. We still can, but we can't 
do it as long as the majority leader is continuing to pursue these 
policies.
  We have to choose leaders in the Senate who will build this country 
better than we found it, not leave it in tatters for our children and 
grandchildren to pick through the rubble.
  Instead of making the Senate work on behalf of the American people, 
the Senator from Kentucky has run roughshod over this institution, 
doing whatever he can get away with politically. We are at a point at 
which what you can get away with here is the only rule that is left.
  As I said last night in this Senate, words have lost their meaning, 
and when words lose their meaning and when promises mean nothing and 
when commitments mean nothing, that is when institutions fail. It is 
moments like this that I remind my colleagues that this is not the 
first Republic to risk failure because of all of this--the Senate, the 
Supreme Court, the centuries of rules, written and unwritten, that have 
guided this Republic.
  We are not preserving them for us. We are preserving them for the 
American people because, without our institutions, we can't do what we 
need to do in this democracy, whether it is regarding climate change or 
healthcare or education or any issue that the American people care 
about, no matter what side of the political aisle they are on.
  Justice Ginsburg appreciated this. She described her philosophy this 
way:

       I think I am an originalist in the sense of what these 
     great men meant--a Constitution that would govern through the 
     ages. At least, they hoped it would provide an instrument of 
     government that would endure.

  That is what is at stake in this election--whether we will accept 
this sorry chapter in our history as the new normal or insist on a 
government that can actually govern and is focused on the needs and 
desires of the American people.
  I hope deeply that we are going to put this era behind us, and I am 
not for going back to some old era but to build a democracy that is 
worthy of the 21st century, worthy of the example Ruth Bader Ginsburg 
set, worthy of the expectations that our kids and grandkids reasonably 
have of us and that most of us have for America in this world.
  That is the choice in this election, and to borrow a phrase from the 
majority leader, the ``American people should have a voice'' in the 
outcome. It is my hope that in 41 days they will.
  Madam President, I thank you for your patience and thank the staff 
for their patience.
  I yield the floor.

                          ____________________