[Congressional Record Volume 166, Number 169 (Tuesday, September 29, 2020)]
[Senate]
[Page S5931]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                    Nomination of Amy Coney Barrett

  Mr. PORTMAN. Mr. President, I would like to talk tonight about the 
nomination of Amy Coney Barrett for the vacant Supreme Court Associate 
Justice seat.
  I think the President made a great pick. From all indications, she is 
an impressive lawyer, judge, and person. We have already begun the 
process of looking at Judge Barrett. She has been meeting with Members 
of the Senate, and I look forward to my meeting with her.
  The precedent for moving forward with this nomination at this time is 
crystal clear. During an election year, when one party holds the 
Presidency and the Senate, in the entire history of our country, the 
Senate has confirmed the nominee in every single case except one. That 
one exception, by the way, was somebody who withdrew because of ethics 
concerns that both Republicans and Democrats had. So the precedent is 
very clear. When you have the President and the Senate of the same 
party, we confirm.
  In contrast, when power is divided and a Supreme Court vacancy arises 
during an election year, Senate precedent is not to confirm the 
nominee. In fact, the last time a confirmation occurred with the 
President and the Senate of different parties was in the 1880s. That 
distinction is what separates now from 2016.
  Back then, I wrote an op-ed:

       Some argue that the American people have already spoken. 
     And I agree they have. Both the president and the Senate 
     majority were fairly and legitimately elected. The last time 
     we spoke as a nation, two years ago, the American people 
     elected a Republican majority in the U.S. Senate in an 
     election that was widely viewed as an expression that people 
     wanted a check on the power of the president. The president 
     has every right to nominate a Supreme Court Justice. . . . 
     But the founders also gave the Senate the exclusive right to 
     decide whether to move forward on that nominee.

  In other words, in keeping with the precedent that I laid out 
earlier, the Republican Senate did what Democratic Senates had 
traditionally done with a Republican President's nominee. The comments 
I made in 2016 were all in that context of divided government.
  In fact, in that same op-ed, I warned that divided government is not 
``the time to go through what would be a highly contentious process 
with a very high likelihood the nominee would not be confirmed.'' I did 
not believe that Judge Garland would have been confirmed. I thought it 
was not a good result to have that kind of highly contentious process 
for the institution of the Supreme Court or for the Senate.
  Now, of course, we have a very different situation. We have a 
President and a Senate of the same party. In fact, we have a Republican 
Senate that was elected in 2016 and reelected in 2018, in part, to 
support well-qualified judges nominated by the President.
  No one can disagree that Judge Barrett has an impressive legal 
background. As I have looked into her background both as a law 
professor at Notre Dame, where three times she won the Distinguished 
Teaching Award and, of course, in her record as a judge on the U.S. 
Court of Appeals for the Seventh Circuit, Judge Barrett has been highly 
regarded for her work in the legal world.
  By the way, she has been highly regarded from folks across a wide 
variety of legal philosophies. They say she is smart. They say she 
understands the law. They say she is well qualified. In fact, the 
American Bar Association said that about her when she was nominated and 
successfully confirmed here in the U.S. Senate to the circuit court, 
which, of course, is the second level, right below the Supreme Court. 
So she has already gone through the process here. She has been 
confirmed here. The American Bar Association looked at her and said she 
is well qualified, which is their highest rating. So my hope is that 
there will not be any argument about whether she is well qualified or 
not, because she clearly is. She has an impressive legal background.
  To me, though, her personal story is as impressive as her legal 
career. After earning a full ride to Notre Dame Law and graduating 
first in her class, she earned a prestigious clerkship on the Supreme 
Court for Justice Antonin Scalia. She then married Jesse Barrett, a 
classmate of hers at Notre Dame, and is raising seven wonderful 
children--two adopted from Haiti--all while advancing her own 
extraordinary career in the law. Frankly, I think she is a great model 
for working parents everywhere.
  As we heard during her last confirmation to the circuit court, when 
we talked about her right here on the floor of the U.S. Senate, she was 
admired as a good person. Colleagues at Notre Dame, her students at 
Notre Dame, and others from across the political spectrum have called 
her fair. They have called her compassionate. They have said she is a 
good person.
  Apart from those legal qualifications and the character, I think it 
is fair for the Senate to insist on knowing a judge's judicial 
philosophy. My view is that it is the role of Supreme Court Justices to 
fairly and impartially apply the law and protect our rights guaranteed 
by the Constitution but not to advance their personal preferences or 
even their policy goals. That is not the job of judges. They are not 
supposed to be like us, legislators. They are not supposed to legislate 
from the bench. They are supposed to follow the Constitution, follow 
precedent.
  It is no understatement to say that Judge Barrett is being 
interviewed for one of the most important jobs in the country. That is 
why it is important we do get a fair and accurate picture of her 
judicial philosophy. Do you know what? Her judicial philosophy lines up 
with what I think is right for the Court but, more importantly, what 
most Americans think is right for the Court.
  As an opinion piece in the Wall Street Journal put it recently, Judge 
Barrett's body of work puts her ``at the center of the mainstream 
consensus on the judge's role as an arbiter, not a lawmaker, who abides 
by the duty to enforce the law as written.'' That is her record. That 
is the philosophy she talked about as she was confirmed by this body 
just a couple of years ago.
  While I know that judicial nominations have become incredibly 
partisan around here, my hope is that Judge Barrett will be given a 
thorough and a fair evaluation from both sides of the aisle. To that 
end, I hope my Democratic colleagues will at least meet with Judge 
Barrett and engage with her on any concerns they might have rather than 
dismiss her nomination out of hand, and I hope that those who end up 
opposing her will be able to do so without resorting to the kind of 
character assassination we saw with Judge Kavanaugh.
  I look forward to the 4 days of Judiciary Committee hearings that 
have already been announced by Chairman Graham. This will give all 
members of the committee plenty of time to ask questions, to express 
their views, and to have the dialogue that they are looking for. I will 
be joining millions of Americans in watching those proceedings.
  I will also look forward to my one-on-one meeting with her. This will 
give me a chance to further assess Judge Barrett's character, 
temperament, and legal philosophy.
  My hope is that my colleagues on both sides of the aisle will also 
take the opportunity to fairly review her character, her judicial 
temperament, and her legal qualifications, which are so impressive, and 
do so in a respectful manner.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.

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