[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.
____________________