[Congressional Record Volume 166, Number 166 (Thursday, September 24, 2020)]
[Senate]
[Pages S5855-S5858]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    REAFFIRMING THE SENATE'S COMMITMENT TO THE ORDERLY AND PEACEFUL 
                           TRANSFER OF POWER

  Mr. MANCHIN. Mr. President, I ask unanimous consent that the Senate 
proceed to the consideration of S. Res. 718, submitted earlier today.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The senior assistant legislative clerk read as follows:

       A resolution (S. Res. 718) reaffirming the Senate's 
     commitment to the orderly and peaceful transfer of power 
     called for in the Constitution of the United States, and for 
     other purposes.

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. MANCHIN. Mr. President, I ask unanimous consent that the 
resolution be agreed to, the preamble be agreed to, and the motions to 
reconsider be considered made and laid upon the table with no 
intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 718) was agreed to.
  The preamble was agreed to.
  (The resolution, with its preamble, is printed in today's Record 
under ``Submitted Resolutions.'')
  Mr. MANCHIN. Mr. President, I would like to speak to the resolution.
  It is a shame that we have to come and reaffirm our commitment to our 
country, to our Constitution, and who we are as a people and how we 
became the greatest country on Earth and the freedoms we all take for 
granted many, many times.
  Sometimes we hear things that challenge that. We heard that 
yesterday, and we were very concerned about that.
  As of today, my friend and colleague from Indiana, Senator Braun, 
basically wanted to reaffirm our commitment to the Pledge of 
Allegiance, which is something we should do every day--our Pledge of 
Allegiance to our flag and to our great country.
  What we are doing with this resolution is basically saying that the 
bedrock of democracy is the orderly and peaceful transfer of power when 
a President transitions out. This should not be a question. There 
should not ever be one iota of interruption whatsoever at that peaceful 
demonstration.
  I remember 1960. At that time, it was the race between Senator John 
Kennedy and Vice President Richard Nixon. It was very, very close. 
Everyone was on pins and needles, but there was an orderly transfer. 
Richard Nixon conceded, and to take this out further, he did a peaceful 
and orderly transfer, and away he went.
  Then you had Al Gore--Senator Al Gore at that time, former Vice 
President Al Gore--and George W. Bush in 2000. We know how that turned 
out with the chads and all the hanging chads and the consternation of 
not knowing for so long. Then, basically, for the sake of our country, 
he did the right thing. Again, we expect that to be done.
  We are in the most difficult times right now, and for the President 
to even address the subject of maybe not knowing if he would accept or 
not is beyond all of our comprehension that could ever happen in 
America, that it could ever happen in the discourse and the will of the 
voters, the verification of the votes and being able to protect the 
ballot box. We have come too long in our country, and we continue to be 
challenged.
  I believe that to have the leader of the free world talk as if we are 
an autocracy--authoritarian versus a democracy--is something that 
alarmed me, along with colleagues on both sides of the aisle. Even as 
quiet as some may be, I know they are alarmed with that.
  What we did is affirm who we are in the Senate and what we believe 
in. The resolution is very clear. All it says is that we affirm as the 
Senate our ``commitment to the orderly and peaceful transfer of power 
called for in the Constitution of the United States'' and intend that 
there should be no disruptions by the President or any person in power 
to overturn the will of the people of the United States. It is really 
who we are.
  Mr. President, it is what you defended, what you fought for, why you 
entered the service. I am so proud of all the people who have served. 
Thank you for your service, Mr. President.
  Thank you to all the people in West Virginia, the most patriotic 
people in the world. I have said this many times. I am so proud of my 
State. We have more veterans per capita than most any State; shed more 
blood, lost more lives for the cause of freedom than most any State. We 
never failed to answer the call. We have done the heavy lifting. Our 
people worked hard, including my grandfather and all my relatives. We 
mined the coal that made the steel that built the guns and ships and 
the factories and defended our country and our great Nation. We are 
very proud of all that.
  This is not who we are. This is not who we are, and we must speak 
loudly. This is not politics. This is not Republican or Democrat--make 
no mistake. This is basically saying that if you believe--for the sake 
of the Good Lord and all we believe in and our country, this is about 
maintaining this democracy. That is all this is about--maintaining. We 
will defend that.
  Today, we have just reaffirmed our commitment to the orderly 
transition of power by the President of the United States, whoever that 
should be, whenever that might happen; that they must have an orderly 
transfer that we all will defend and uphold. That is what we affirmed 
today.
  Thank you for giving me the opportunity, and I thank all my 
colleagues on both sides of the aisle. Thank you for standing true for 
who we are and what we believe in and what we have committed ourselves 
to
  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. KAINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Remembering Justice Ruth Bader Ginsburg

  Mr. KAINE. Mr. President, I want to rise just briefly to pay tribute 
to Ruth Bader Ginsburg.
  I saw a statement about her in the aftermath of her passing that said 
she will probably go down in history as one of the greatest women 
lawyers in the history of the United States. I don't think that does 
her justice. I want to take the floor to say that Ruth Bader Ginsburg, 
in my view, will probably go down in history as one of the top three 
judges and lawyers ever in the history of the United States, male or 
female. I want to describe why. Before I do, I just want to notice the 
outpouring of support for her.
  In the 4 days after she passed, from Friday night until Tuesday 
night, my office received 37,000 pieces of correspondence about Justice 
Ginsburg, praising her, lifting her up as a role model, expressing 
concern about what the Court would be without her. In my 8 years in the 
Senate, I have never seen an outpouring of support for an individual 
like that. That is just an example of how highly we hold her in regard.
  Justice Ginsburg is well known and particularly well known in 
Virginia. One of the opinions she authored that is one of her real 
pivotal opinions was an opinion that ruled that a public university--
the Virginia Military Institute--could not deny access to women

[[Page S5856]]

students. That was a very controversial case in Virginia. Justice 
Ginsburg's opinion was courteous and recognized the great virtue of VMI 
as an institution but held up its many virtues and values and said 
women students at this public university should be able to have the 
same access.
  Justice Ginsburg as a Justice has left her mark on our society in 
such an amazing way.
  I want to talk about Ruth Bader Ginsburg the lawyer because I assert 
that if Ruth Bader Ginsburg had never been on the Supreme Court, she 
still would have earned her way into one of the greatest American 
lawyers or jurists of all time. Ruth Bader Ginsburg.
  It was a Virginian who wrote into the Declaration of Independence the 
words that are maybe among some of the most known words in the English 
language: ``We hold these truths to be self-evident, that all men are 
created equal.'' Those words are so powerful. They set out a powerful 
North Star for our country in equality and principle but had ambiguity 
wrapped up in them.
  Jefferson, although he believed in equality, knew and was deeply 
troubled by the fact that slaves and other even freed African Americans 
at the time were not treated equally. Jefferson wasn't particularly 
troubled by the fact that women were not treated equally at that time. 
He had an ability to see what the principle should be but not 
necessarily to apply it to his own life, which is, frankly, a weakness 
that I think we all have suffered from during our life at times, but at 
least he set out the right principle and said that it applied to men.
  I think you can look at the history of our country as a North Star 
was set for us in 1776, and over time, we sort of progressively 
realized, wow, that is what equality means. We have to orient closer to 
the star. A sailor can steer by a star without ever reaching it, and 
maybe, because we are imperfect people, we can orient by the star of 
equality and never get fully there because we are imperfect. When we 
orient by it, we do pretty well.
  In the aftermath of the Civil War, the Constitution was dramatically 
rewritten with the addition of the 13th Amendment, banning slavery; the 
14th Amendment, creating due process and equal protection of the laws; 
and the 15th Amendment, blocking limitations of voting based on race.
  I want to talk for a minute the 14th Amendment. The 14th Amendment 
might be the longest amendment in the Constitution. It is power-packed.
  Every citizen is entitled to the privileges and immunities of 
citizenship. No one can be ``deprived of life, liberty or property 
without due process of law,'' but especially--that echoing of what 
Jefferson said--all persons are entitled to the ``equal protection of 
the laws.''
  The 14th Amendment is interesting because in other parts of the 
amendment, it talks about what you get if you are a citizen, but on the 
equal protection side, you don't have to be a citizen. All persons are 
entitled to ``equal protection of the laws.''
  When that was passed by Congress and ratified by States in 1870, the 
Constitution fundamentally changed. One of the fascinating things is, 
as soon as the Constitution had this 14th Amendment with this 
particular clause in it guaranteeing equal protection of the laws--let 
me tell you about one of the first cases that came to the Supreme 
Court.
  A woman by the name of Myra Bradwell, living in Illinois, wanted to 
be licensed to practice law. She wanted to be a lawyer, just like Ruth 
Bader Ginsburg. Illinois would not allow her to practice law because 
she was a woman. She said: Wait a minute. We have a 14th Amendment, and 
it guarantees me the privileges and immunities of being a U.S. citizen, 
guarantees me equal protection of the laws.
  She took her case all the way up to the U.S. Supreme Court after 
Illinois denied her a law license. In 1871, 1 year after the 
Constitution had been amended to guarantee the equality of every 
person, by an 8-to-1 decision, the Supreme Court ruled that Myra 
Bradwell could not practice law and Illinois could limit law practice 
to men if that is what they chose.
  Let me read from that opinion. Justice Bradley wrote an opinion then 
on the Court. Here is what he said:

       The natural and proper timidity and delicacy which belongs 
     to the female sex evidently unfits it for many of the oc-
     cupations of civil life. . . . The paramount destiny and 
     mission of women are to fulfill the noble and benign offices 
     of wife and mother. This is the law of the Creator.

  By an 8-to-1 decision, the U.S. Supreme Court, on which Ruth Bader 
Ginsburg would later sit after a distinguished career as an attorney, 
said that Illinois could deprive women of the ability to practice the 
profession of lawyer.
  When did the Supreme Court change that ruling? It is still kind of 
shocking to me that it was not until 1971--100 years later, in a case 
called Reed v. Reed, a case that came out of the State court system in 
Idaho--that Chief Justice Warren Burger, for a unanimous Court, said: 
Wait a minute. The 14th Amendment says all persons are entitled to the 
equal protection of the laws. Guess what. That applies to women.
  How the Court in 1871 could have read those words and said it didn't 
apply to women is kind of hard to imagine, but it should make us humble 
because it should suggest that even educated, smart people could get 
things wrong.
  Yet, 100 years later, in 1971, there was Reed v. Reed, which was a 
technical, quirky case about Idaho law that preferred men over women to 
be executors of estates so that, if there were two with equal claims in 
terms of being a relation of somebody who died intestate, they would 
prefer a man over a woman. That was a quirky, technical case that came 
to the Supreme Court. After 101 years, following the passage of the 
14th Amendment, the Supreme Court said: Wait a minute. Women are 
citizens. Women are people. Women are entitled to equality.
  Who wrote the brief in that case?
  The brief in that case was written by a talented, young lawyer who 
had been one of nine in her class at Harvard Law School, who had often 
been told she couldn't do this or she couldn't do that, and who hadn't 
often been offered jobs along the way. The brief in that case was 
written by Ruth Bader Ginsburg. In very, very characteristic humility, 
she was the brains behind the case, but she allowed the case to be 
argued in the Supreme Court by the Idaho attorney who was very close to 
Mrs. Reed, who was pursuing the appeal in the Supreme Court.
  When Reed v. Reed was decided, it was an earthquake. After 100 years, 
to finally say that, of course, women are equal, and, of course, women 
can make claims under the 14th Amendment, it was an earthquake, and it 
affected all aspects of American law.
  Immediately after Reed v. Reed, Congress went through the entire 
United States Code. There were dozens--possibly hundreds--of 
distinctions in the code that gave preference to men over women or made 
some distinction between men and women. Yet, after Reed v. Reed, 
Congress scrubbed the laws of this country to eliminate second-class 
status for women, at least in law. We haven't completely gotten there 
but maybe in practice.
  The State legislatures of all 50 States also did the same. There were 
all kinds of quirky and archaic rules that held women back in property 
and in civil matters--laws that, for example, said that a married 
woman, because of being married, couldn't prosecute a rape charge 
against her husband or that it was a defense to rape if the man married 
the woman--that this could be a complete defense and could wipe out 
criminal offenses.
  All of these weird distinctions in law that had been allowed since 
the beginning of our country, even with a Constitution that guaranteed 
women's equality, were suddenly under the microscope with a new way of 
looking at our society, and it changed because of this tiny giant, Ruth 
Bader Ginsburg.
  That is the only point that I really want to make today on the floor. 
As a Justice, Ruth Bader Ginsburg changed our country and had a big 
impact in Virginia in the decision about the Virginia Military 
Institute. That decision was about one institution, but it became a 
decision that applied to all institutions--that public educational 
institutions cannot deprive women of equal access to the educational 
experience.
  I will just conclude where I started.
  If Ruth Bader Ginsburg had never been a Supreme Court Justice, the 
work that she had done as an architect of helping the American legal 
system

[[Page S5857]]

but also the American citizens understand that equal protection of the 
laws applies to women just like they apply to men would have entitled 
her to have been viewed as one of the most impactful lawyers of all 
time.
  I would put her up with John Marshall, the first great Chief Justice 
of the Court, who really had to form so many of the doctrines that we 
now sort of take for granted about our American jurisprudence, and 
Thurgood Marshall, who, in many ways, carried the same fight for 
equality to make us realize that it applied to people regardless of the 
color of their skin and then served on the Supreme Court. They are the 
two lawyers of whom I think when I think of Ruth Bader Ginsburg, and I 
am not sure that anyone else is in the same class with her other than 
those two.
  It is a sad time when someone of such magnitude passes, but I can 
tell from the 37,000 pieces of correspondence that my office received 
in the first 4 days after she left that, if you measure a life not by 
the day that it ends but by the influence that it has and the example 
that it sets, it is also a time in which we can just admire, be in awe 
of, and celebrate the accomplishments of a wonderful American.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Braun). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. UDALL. 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. UDALL. Mr. President, last Friday, as the Jewish New Year began, 
Rosh Hashanah, our Nation lost a titan of justice and an unmatched 
force for good--Justice Ruth Bader Ginsburg.
  According to Jewish tradition, a person who dies on Rosh Hashanah is 
a tzaddik--a person of great righteousness. Justice Ginsburg, who was 
only the seventh Jewish Supreme Court Justice and the first female 
Jewish Justice, was, indeed, righteous.
  I and Jill, my wife, were proud to call Ruth a friend, and like all 
Santa Feans, we are proud that Ruth graced our city at the Santa Fe 
Opera every summer. She loved New Mexico, and New Mexico loved her. Our 
hearts are with Justice Ginsburg's family.
  You shared a great national treasure with all of us, and we are 
eternally grateful.
  Ruth Bader Ginsburg was 1 of only 12 women who graduated from 
Columbia Law School in 1959. With a young child in tow, she tied for 
first in her class. Talk about a trailblazer. Indeed, RBG, as she is so 
affectionately called, blazed so many trails--too many to list. She was 
the first woman to serve on two major law reviews and one of the first 
female law professors in the Nation. She cofounded the first law 
journal on women's rights, and coauthored the first casebook on gender 
discrimination.
  Ruth Bader Ginsburg had to push open those doors because no one 
opened them for her. She was no stranger to gender discrimination. She 
was demoted at work when she became pregnant with her first child. She 
was refused a U.S. Supreme Court clerkship because she was a woman. She 
was also paid less than her male counterparts as a law professor.
  Always driven toward justice, RBG became the leading legal mind 
behind incrementally dismantling gender discrimination laws in the 
United States. She spearheaded the strategy to apply the 14th 
Amendment--requiring equal protection under the law--to women, and she 
won in the Supreme Court five times. Her victories helped to take down 
the mass of legal structures relegating women to second-class status. 
She accomplished what was nearly impossible and expanded who is 
included in ``We the People,'' and her quest for justice never ended.
  As a jurist, she authored groundbreaking opinions--striking down 
strict requirements on abortion clinics that were designed to put them 
out of business, establishing the right of persons with mental illness 
to be treated in the community instead of in institutions, and opening 
up the Virginia Military Institute to female cadets, which, I think, 
Senator Kaine talked about a little bit earlier.
  She was also as well known for her forceful dissents. ``I dissent'' 
has become a rallying cry against an activist conservative Court.
  In 2013, when the Court struck down the preclearance provisions of 
the Voting Rights Act, Justice Ginsburg declared: ``'Hubris' is a fit 
word for today's demolition of the VRA.'' She observed that striking 
down voting protections because they worked too well was like 
``throwing away your umbrella in a rainstorm because you are not 
getting wet.''
  Justice Ginsburg was brilliant, determined, and courageous.
  Now, as her long and well-lived life has come to an end and as the 
Nation mourns, it is only fitting that she continue making firsts--as 
the first woman to lie in state in the Capitol. All of us--women and 
men alike--owe a debt of gratitude to Justice Ginsburg and to her 
righteous and unwavering commitment to justice and equality under the 
law.
  As you have now heard many times, Justice Ginsburg's last words to 
the American public were ``My most fervent wish is that I will not be 
replaced until a new president is installed.''
  Yet, mere hours after the Supreme Court announced Justice Ginsburg's 
passing, while the Nation was in mourning, Leader McConnell announced 
he would replace her before the current Presidency ends.
  Let me say this: While my heart is broken, my soul is on fire.
  Not only are Senate Republicans disregarding Justice Ginsburg's last 
request, they are turning their back on the principle that they claimed 
was pure just 4 years ago.
  In February 2016, Justice Scalia passed away a full 9 months before a 
Presidential election. At that time, the majority leader refused to 
hold hearings on President Obama's highly qualified nominee, 
proclaiming:

       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.

  Those words meant nothing. They were deceitful tricks in pursuit of 
raw power, and they have brought shame upon this body.
  Election day is only 40 days away, but it is more accurate to say 
that the election ends in 40 days, because the election is actually 
underway today. Voters are already voting in 29 States. More than half 
of the States are voting. Tens of millions of Americans will cast their 
votes before election day. The leader's vow to vote to replace Justice 
Ginsburg is a slap in the face to these voters and runs roughshod over 
the Constitution.
  Senator McConnell is moving at lightning speed to steal the second 
Supreme Court seat because he knows this President faces an uncertain 
electoral future. He is scared to let the American people, as he put 
it, ``have a voice in the selection of their next Supreme Court 
Justice.''
  This hypocrisy is only outmatched by the utter disdain for American 
voters--disdain for their intelligence, disdain for their will.
  But the real scandal will be what this means to the American people. 
On November 10, 7 days after election day, the Supreme Court will hear 
argument on the legality of the Affordable Care Act, or what many call 
the ACA. After failing to repeal the ACA in Congress, now the 
Republicans are trying to destroy it in the courts, and they are 
rushing to fill this vacancy with a judge who will do that work for 
them.
  The Trump administration is standing with 20 Republican Governors and 
attorneys general who are asking the Supreme Court to strike down the 
ACA. Republicans are trying to take away Americans' healthcare in the 
middle of the worst pandemic in a century. It is unforgivable.
  By overwhelming numbers, the American people support the ACA. Before 
the ACA, insurance companies could deny healthcare insurance to people 
with preexisting conditions. Up to 129 million Americans under age 65 
have preexisting conditions. The millions of people who have been 
infected by COVID-19 now have a preexisting condition for the rest of 
their lives. In my home State of New Mexico, more than 840,000 people 
live with a preexisting condition. Because of the ACA, 23 million more 
Americans have healthcare insurance, and millions more have Medicaid 
expansion. This includes hundreds of thousands of New Mexicans.

[[Page S5858]]

  When the ACA was challenged years ago, the Supreme Court upheld it by 
a 5-to-4 vote. We are one vote away from the decimation of our 
healthcare rights at a time when nearly 7 million Americans have 
contracted COVID-19.
  The threat is not only to the ACA but also to women's reproductive 
healthcare, our environmental protections, and what is left of our 
campaign finance limits. So we know why they are moving at a record 
pace to fill this seat.
  But while the President and the majority leader want to rush through 
a lifetime Justice in just a few weeks, COVID relief has languished on 
Senator McConnell's desk for months. Millions of Americans are out of 
work. Small businesses are closing their doors. Schools can't reopen 
safely. Parents are burning the candle at both ends, working and caring 
for kids at home. State, local, and Tribal governments can't meet 
budgets for essential services.
  The American people desperately need another relief package, but the 
Senate Republicans and the President don't think there is any urgency. 
Leader McConnell said that himself.
  According to the President, COVID-19 ``affects virtually nobody.'' 
The President said that--``affects virtually nobody.''
  This virus that ``affects virtually nobody'' is the third leading 
cause of death in the United States, has taken more lives in 8 short 
months than the Vietnam and Middle East wars combined, and has sent our 
economy into a nosedive not seen since the Great Depression.
  We talk a lot about priorities here in the Senate. Right now you are 
seeing Senate Republican priorities in stark relief. They will rush a 
lifetime Supreme Court pick in weeks--violating every principle they 
established themselves--to please their far-right donors. But they will 
neglect relief for you--for struggling families, for people out of 
work, for people sick and dying--for months.
  Finally, we cannot ignore the fact that the President has explicitly 
said he wants to fill this vacancy to help decide the 2020 election in 
his favor. He has repeatedly lied that absentee ballots, votes from 
Democratic areas, or votes that are tabulated after election day are 
somehow fraudulent.
  And like an authoritarian, he does not even try to correct himself 
when his lies are debunked. Instead, he openly admits he wants the 
Supreme Court to decide the election by disqualifying votes he does not 
like and even refuses to commit to a peaceful transfer of power.
  The Senate should not become an accomplice to this corrupt scheme 
that threatens the future of our democracy, and every Senate Republican 
should condemn the President's refusal to commit to give up power 
peacefully.
  I would note that several of my Republican friends have stood up and 
have said that there should be a peaceful transition of power, and I 
applaud them for that.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


               Executive Calendar--Motions to Reconsider

  Mr. McCONNELL. Mr. President, I ask unanimous consent that with 
respect to the nominations confirmed this week, the motions to 
reconsider be considered made and laid upon the table and the President 
be immediately notified of the Senate's actions.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              The Journal

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the 
Journal of proceedings be approved to date.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________