[Congressional Record Volume 166, Number 179 (Tuesday, October 20, 2020)]
[Extensions of Remarks]
[Pages E970-E972]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




OPPOSITION TO THE NOMINATION OF AMY CONEY BARRETT AS ASSOCIATE JUSTICE 
                            OF SUPREME COURT

                                 ______
                                 

                        HON. SHEILA JACKSON LEE

                                of texas

                    in the house of representatives

                       Tuesday, October 20, 2020

  Ms. JACKSON LEE. Madam Speaker, as senior member of the House 
Committee on the Judiciary, as citizen of the United States, as a 
mother, and as a African American woman I rise in my strong opposition 
to the nomination of Judge Amy Coney Barrett to replace the late 
Justice Ruth Bader Ginsburg on the Supreme Court of the United States.
  I oppose this nomination because Judge Barrett's extreme record on 
the U.S. Court of Appeals for the Seventh Circuit, along with her 
ideologically driven writings and speeches, demonstrate that she is 
incapable of rendering equal justice under law.
  Judge Barrett is hostile to Roe v. Wade, 410 U.S. 113 (1973), and to 
Supreme Court cases upholding the Affordable Care Act (``ACA'') and is 
being nominated to be the decisive vote on the Court to reverse these 
landmark rulings, so that millions of people can be deprived of access 
to essential health care services and abortion access.
  One highly respected legal commentator who has studied her record in 
depth called Judge Barrett's record on the bench ``fundamentally 
cruel'' and said that she ``has either written or joined a remarkable 
number of opinions that harm unpopular and powerless individuals who 
rely on the judiciary to safeguard their rights.''
  The rush to confirm Judge Barrett is a key part of this impeached and 
dissembling president's corrupt scheme effort to avoid a peaceful 
transfer of power and remain in office at any cost.
  Indeed, the President recently admitted that he wanted a ninth 
justice in place because he believes the Supreme Court will end up 
deciding the election winner, and he wants another loyalist on the 
Court to tip the scale in his favor.
  No justice confirmed under these circumstances would have legitimacy 
in a case bearing on the outcome of the presidential election, so it is 
troubling that Judge Barrett has not stated publicly that she will 
recuse herself from participating in any such case.
  By nearly a two-to-one margin, Americans believe that the winner of 
the upcoming presidential election should fill the current Supreme 
Court vacancy.
  In this they are in lockstep agreement with the principle enunciated 
by Senate Majority Leader McConnell on February 13, 2016, when he 
refused to even confirmation hearings, much less a floor vote, for 
President Obama nomination of Judge Merrick Garland to succeed Justice 
Scalia:

       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.

  This principle was echoed by the current Judiciary Chairman Graham 
who stated in 2016:

       I want you to use my words against me. If there's a 
     Republican president in 2016 and a vacancy occurs in the last 
     year of the first term, you can say Lindsey Graham said let's

[[Page E971]]

     let the next president, whoever it might be, make that 
     nomination.

  Before she became the beneficiary of this 180 degree reversal in 
principle, even Judge Barrett herself enthusiastically agreed with 
Majority Leader McConnell and Judiciary Committee Chairman Graham that 
the Senate could and should refuse to advise and consent to a Supreme 
Court nomination made in an election year, especially where the 
nomination would alter the ideological balance of the Court.
  The legitimacy of the federal judiciary stems from the public's faith 
that its decision-making is fair and impartial but the rush to confirm 
Judge Barrett will deeply tarnish the integrity and reputation of the 
Supreme Court.
  As a group of former federal judges counseled in their letter to 
Senate leaders:

       Our nation is on the precipice of a national election and 
     is in the grip of a global pandemic. Our citizenry is sharply 
     polarized--a foreboding sign for the health of any democracy. 
     The judicial confirmation process has increasingly become 
     dangerously politicized. Injecting a Supreme Court 
     confirmation fight into this noxious mix will unalterably 
     change and diminish the public's faith in this vital 
     institution.

  Let me now turn to the specific harm to the American people that will 
result if this nominee were to be confirmed as an Associate Justice of 
the Supreme Court.
  Judge Barrett is expected to be the deciding vote to strike down the 
constitutionality of the Affordable Care Act, or ``ObamaCare,'' 
depriving millions of people with access to health care amidst the 
worst public health crisis this nation has witnessed in over a hundred 
years.
  The ACA provides critical health care protections to millions of 
people, including an estimated 130 million Americans with pre-existing 
conditions such as the seven million Americans who have tested positive 
for COVID-19.
  If this crucial health care access is stripped away, it would have a 
particularly devastating impact on communities of color and people with 
disabilities; the rate of Black people who are uninsured would 
dramatically increase 20 percent, and an estimated 5.4 million Latinos, 
2 million Asian Americans, Native Hawaiians, and Pacific Islanders, and 
300,000 Native Americans could lose coverage, and Americans with 
disabilities would be particularly impacted, with the uninsured rate 
for people with disabilities rising by up to 42 percent.
  Invalidation of the ACA would not only remove critical health care 
protections for people with pre-existing conditions and people with 
disabilities, it would disproportionately harm people of color and 
potentially jeopardize access to a COVID-19 vaccine, the Medicaid 
expansion that has brought health care to tens of millions of people, 
critical nondiscrimination provisions, coverage for those under 26 who 
are currently on their parents' health care insurance plan, insurance 
coverage for substance abuse treatment including opioid addition, and 
the removal of caps that insurance companies previously placed on 
expensive medical treatment.
  The Supreme Court is set to decide the fate of the ACA and its 
protections for people with pre-existing conditions this term and will 
hear oral arguments in California v. Texas. __ U.S. __, No. 19-840 
(2020)--the legal challenge to this vital law--on November 10, just one 
week after Election Day, and that is why the President and his Senate 
acolytes are rushing forward with this nomination to try to install 
Judge Barrett on the Court in time to kill the ACA, a feat they have 
tried but failed to accomplish 70 times through the legislative 
process.
  In Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019), Judge 
Barrett wrote an opinion that allowed a male student--who was credibly 
accused of committing multiple sexual assaults and suspended from the 
university--to advance a Title IX lawsuit against the university 
alleging he was discriminated against because he was a man.
  Judge Barrett's ruling turned a sex discrimination statute on its 
head, using a law meant to prevent and address sexual assault to 
promote impunity for that very same behavior and will discourage 
universities from disciplining male perpetrators of sexual violence 
since doing so may result in their being sued for sex discrimination.
  Judge Barrett's opinion in this case intimated erroneously and 
intentionally that the U.S. Department of Education's Obama-era 2011 
Title IX guidance calling on schools to take sexual harassment 
seriously resulted in discrimination against men--even though this 
guidance prohibited the unfair procedures the male student alleged he 
experienced.
  It is unconscionable that we are even considering replacing Justice 
Ginsburg's legacy with a judge who is willing to allow sex 
discrimination laws to be used as a sword for men rather than a shield 
to protect women.
  In the field of criminal justice and procedure, Judge Barrett's 
judicial record raises serious questions about whether she would be 
fair to victims of law enforcement misconduct; she has regularly ruled 
for law enforcement and against defendants in criminal cases and people 
in prison, often in dissent, reflecting her extreme views.
  For example, Judge Barrett dissented in United States v. Uriarte, No. 
19-2092, 2020 WL 5525119 (7th Cir. Sept. 15, 2020), where the Seventh 
Circuit, sitting en banc, applied the reduced mandatory minimum 
sentencing requirements of the First Step Act, an important, bipartisan 
criminal justice reform measure passed by Congress and signed into law 
in 2018.
  In a 9-3 opinion, the Seventh Circuit held that at the time of the 
enactment of the First Step Act, Hector Uriarte, a federal defendant, 
was convicted but not yet sentenced, and therefore eligible for the 
First Step Act's reduced sentencing procedure.
  Mr. Uriarte was resentenced under the First Step Act to a term of 20 
years, and the Trump administration challenged that new sentence, and 
predictably Judge Barrett authored the dissent, siding with the Trump 
administration that the First Step Act did not apply to the defendant.
  In another case, McCottrell v. White, 933 F.3d 651 (7th Cir. 2019), 
the majority reversed the district judge's finding that the guards had 
fired ``reasonable'' warning shots and remanded the case but Judge 
Barrett dissented, siding with prison guards who fired buckshot from 
their shotguns, significantly injuring two inmates, and opining that 
the inmates should be denied the opportunity to prove at trial that 
excessive force was used against them in violation of the Eighth 
Amendment.
  Judge Barrett's reasoning was so unreasonable that the majority was 
moved to note that ``the dissent suggests that firing two shotguns 
loaded with buckshot into the ceiling of a crowded dining hall cannot 
be deemed to be malicious and sadistic or even characterized as an 
intentional application of force without a showing that a guard 
`intended to hit or harm someone with his application of force.' That 
standard is met here.''
  The scourge of gun violence kills nearly 40,000 Americans every year 
but Judge Barrett's record indicates she would likely be a pivotal vote 
on the Court to support the gun lobby and strike down common-sense gun 
safety laws.
  In Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), a Seventh Circuit 
panel majority consisting of Reagan held that a law barring felons from 
possessing a firearm did not violate the Second Amendment but 
unsurprisingly Judge Barrett dissented, accusing the majority of 
treating the Second Amendment as a ``second-class right'' and stating 
that she believed the ban on gun possession should only apply to 
violent felons.
  And outrageously, Judge Barrett also concluded that it was 
appropriate to deny nonviolent felons the right to vote but not the 
right to bear arm, writing ``history does show that felons could be 
disqualified from exercising certain rights--like the rights to vote 
and serve on juries--because these rights belonged only to virtuous 
citizens.''
  We do not need a Supreme Court Justice whose world view is that the 
right to own an AR-15 is more precious and valued than the fundamental 
right to vote.
  Upon Judge Barrett's nomination to the Supreme Court, the Giffords 
Law Center stated:

       Judge Barrett holds Second Amendment views that are far 
     more extreme than conservatives like Justice Antonin Scalia. 
     Her willingness to disregard established precedent and strike 
     down gun safety laws is too radical for this country and even 
     past Republican administrations.

  Moreover, it is clear that based on her statements and judicial 
record, Judge Barrett is incapable of serving as a fair and neutral 
arbiter in reproductive rights cases, including those involving 
abortion, contraception, and perhaps even fertility care.
  In 2006, Judge Barrett signed her name to a two-page advertisement in 
a South Bend, Indiana newspaper calling for the end of the legal right 
to abortion--which, under her extremist views, includes some forms of 
birth control and in vitro fertilization but she failed to disclose 
this document in her Senate Judiciary Committee questionnaire.
  In 2012, Judge Barrett signed a letter entitled ``Unacceptable'' that 
protested the Obama administration's good faith effort to create a 
compromise in carrying out the ACA's requirement ensuring comprehensive 
birth control coverage, an accommodation permitted eligible employers 
and schools to opt out of covering birth control but still ensure that 
the workers and students had access to seamless coverage of essential 
care.
  As a signatory to this letter, Judge Barrett demonstrated that she is 
willing to eschew science in favor of her own personal biases and 
thinks employers can deny their workers birth control coverage.
  And unsurprisingly, Judge Barrett's judicial record reflects her deep 
hostility to reproductive freedom.
  In Planned Planned Parenthood of Ind. & Ky., Inc. v. Adams, 937 F.3d 
973, 981 (7th

[[Page E972]]

Cir. 2019), Judge Barrett voted to rehear a case involving an Indiana 
abortion restriction that judges already deemed likely 
unconstitutional.
  The Indiana law put minors in dangerous situations by requiring them 
to notify their parents even if a judge already found the minor to be 
mature enough to make this decision without involving a parent, which 
the district court noted that ``the requirement of providing parental 
notification before obtaining an abortion carries with it the threat of 
domestic abuse, intimidation, coercion, and actual physical 
obstruction.''
  The Indiana law was in clear violation of longstanding Supreme Court 
precedent, and the three-judge Seventh Circuit panel that blocked the 
Indiana law found that it would likely impose ``an undue burden for the 
unemancipated minors who seek to obtain an abortion without parental 
involvement via the judicial bypass.''
  Yet Judge Barrett joined a dissent that questioned whether the 
plaintiffs could even challenge the law before it went into effect, 
arguing erroneously that the status of pre-enforcement challenges in 
the abortion context'' was ``unsettled'' and deserved full court 
review.
  In another case, Planned Parenthood of Indiana & Kentucky v. 
Commissioner of Indiana State Department of Health, 917 F.3d 532 (7th 
Cir. 2018), Judge Barrett voted in dissent to rehear a case already 
deemed unconstitutional and joined a dissent that argued that a state 
should be able to restrict abortion when the reason for that choice is 
the fetus's gender, race, sex, or fetal diagnosis (often known as 
``reason bans''), even though that provision was not being considered 
in the decision before the court.
  President Trump has bragged repeatedly that he would only nominate 
justices who would ``automatically'' overturn Roe v. Wade, 410 U.S. 113 
(1973); it is clear that Judge Barrett has passed his litmus test.
  Justice Ruth Bader Ginsburg was a fearless champion of justice and 
the conscience of the Court so it is doubly outrageous that the Senate 
majority is attempting to rush through Judge Barrett's nomination 
rather than addressing the many urgent challenges that are gripping our 
nation at this moment--from the devastating impact of the worst public 
health crisis in a hundred years, to the racial reckoning over police 
brutality and violence, to the need to safeguard our democracy by 
helping fund the election and U.S. Postal Service.
  At a time when more than 215,000 Americans have lost their lives to 
COVID-19 and the need for health care access is more acute than ever, 
this President and this temporary Republican Senate majority has chosen 
to subordinate passing legislation to aid an ailing nation to stealing 
and filling a Supreme Court vacancy with a nominee hostile to health 
care access, hostile to women's rights, and indifferent to the plea for 
equal justice being voiced across the country by Americans of every 
race, creed, color, religion, and region.
  Madam Speaker, I end where I began: Judge Barrett's extreme record on 
the U.S. Court of Appeals for the Seventh Circuit, along with her 
ideologically driven writings and speeches, demonstrate that she is 
incapable of rendering equal justice under law.
  I urge this nomination be defeated and that this vacancy not be 
filled until after the election of the next President of the United 
States.

                          ____________________