[Congressional Record Volume 166, Number 183 (Saturday, October 24, 2020)]
[Senate]
[Pages S6432-S6435]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of Amy Coney Barrett
Mr. GRASSLEY. Mr. President, the Senate will soon vote on the
confirmation of Judge Barrett to become Associate Justice of the U.S.
Supreme Court. I will be voting in favor of her nomination, and I urge
my colleagues to do just the same.
As was made clear to millions of Americans who watched her hearing,
Judge Barrett has the temperament, the modesty, and the humility that
we should all expect in a judge. She approaches cases without bias or
personal agenda. She made that very clear to almost every question
asked to her by every member of the Judiciary Committee.
Most importantly, Judge Barrett understands the proper role of
members of the Judiciary and our constitutional system of separated
powers. That is, a judge should interpret--not make--the law. Making
law is, under the Constitution, the responsibility of the Congress, not
the Supreme Court. She also made that very clear in almost every
question that she was asked by members of the Judiciary Committee.
Judge Barrett has an impressive command and, of course, the respect
for the law and the Constitution. Clearly, from her testimony, she
respects precedent, and she practices judicial restraint. In her words:
``A judge who approaches a case as an opportunity for an exercise of
will has . . . betrayed her judicial duty.''
She went on to explain to the committee her legal method, how she
considers statutes and the Constitution and how she interprets and
applies the statutes and the Constitution. Her judicial method is
rigorous and exacting but fair. She testified that she would listen to
both sides in every case. She said: ``We want judges to approach cases
thoughtfully and with an open mind.''
When pressed on how she might rule in a particular case, Judge
Barrett promptly applied what we all know as the Ginsburg rule, and she
did it just like every other recent nominee to the Supreme Court for
the last 30 years when Ginsburg first told the Judiciary Committee that
there would be no hints, no previews, or forecasts, and Judge Barrett
demonstrated her independence by often repeating the Justice Ginsburg
rule.
I specifically asked Judge Barrett if she had made any promises or
guarantees to anyone about how she might rule on a case. She responded
this way to my question:
The answer is no. . . . No one ever talked about any case
with me. . . . I can't make any pre-commitments to this body
either. It would be inconsistent with judicial independence.
To quote further:
I'm not willing to make a deal--not with the committee, not
with the president, not with anyone. I am independent.
That quote or similar words were spoken by Judge Barrett to almost
every suspicious Judiciary member about whom she might have made some
deal ahead of time to get on the Supreme Court.
Contrary to critics' claims about her being biased, Judge Barrett is
evenhanded and has ruled for both plaintiffs and defendants in all
kinds of cases. She believes in justice for all, in accordance with the
law and the Constitution, just like we would expect everybody to say
who is a lifetime appointee to the Judiciary, but we don't see all of
them following that practice.
She went on to tell the committee: ``I am fully committed to equal
justice under the law for all persons.''
When asked if she will follow the law wherever it leads, she said:
``Yes.'' Then she said: ``I have an agenda to stick to the rule of law
and decide cases as they come.'' Yet that wasn't good enough for our
Democratic colleagues and their leftist allies.
However, throughout the hearings, the Democrats and many in the media
deliberately misrepresented Judge Barrett's views on the Affordable
Care
[[Page S6433]]
Act. They claimed her critique of Chief Justice Roberts' reasoning in
the 2012 ACA case will dictate how she will vote in some upcoming
cases. They obviously didn't listen to her when she had no preconceived
notions about any case and had made no promises to anybody.
The Democrats even pushed the story line that Judge Barrett signaled
to President Trump that she would support invalidating the ACA if she
were confirmed to the Supreme Court. That is nonsense. Judge Barrett
made it clear that she didn't have an agenda. She testified: ``I have
no hostility to the ACA.''
Legal scholars critique court decisions all the time even when they
don't disagree with the outcome. For instance, Ruth Bader Ginsburg,
before her nomination, criticized the Court's reasoning in Roe v. Wade,
but no one claimed that Ginsburg didn't support the outcome of Roe v.
Wade.
Judge Barrett's critique of Roberts' reasoning was shared by many
legal commentators across the political spectrum, including by ones on
the other side of the aisle. Even President Obama rejected the notion
that the Affordable Care Act was a tax instead of a penalty. The
question of its being a tax or a penalty and the constitutionality or
the unconstitutionality of the ACA was what they were critiquing based
on Roberts' decision to uphold the constitutionality of the ACA, for it
could be constitutional under the taxing powers of the Congress. Even
Roberts didn't pay any attention to that fact. We even had Democrats
saying that the penalty for the individual mandate was a penalty and
that it wasn't a tax. Moreover, Judge Barrett's critique of Justice
Roberts' reasoning dealt with an interpretation or a provision that is
no longer in effect because we did away with the individual mandate.
The question before the Supreme Court this fall, then, will be
entirely separate, and it is pointless to speculate. Yet the Democrats
wasted much time on that type of speculation--question after question,
Democrat after Democrat, on that side--when they were questioning her.
Senate Democrats want to portray Judge Barrett as a threat to
healthcare. They want to distract from the fact that they recently
filibustered a COVID relief bill that would have protected preexisting
conditions. This all is just a Democratic election year scare tactic,
and they are using it almost totally as a reason to vote against Judge
Barrett.
It happens, though, that the voters aren't buying it, that the public
is not buying it. A recent Politico poll shows a majority of Americans
wants the Senate to confirm Judge Barrett, and a recent Huffington Post
poll says: ``Voters favor the confirmation of the Supreme Court nominee
Amy Coney Barrett by a 9-point margin.''
She will be confirmed. That is what we are going to do on Sunday into
Monday. Maybe our Democratic colleagues will finally show up for work,
do their job, and give Judge Barrett an up-or-down vote on the merits
because I think the public knows now, if it were listening in to the
Judiciary Committee as it was voting her out, that the Democrats
boycotted the committee's deliberation. Let's not forget that, just 4
years ago, the same Senate Democrats declared that the Court needed
nine to function properly. Judge Barrett is that ninth. Only 4 years
later, they don't seem to think so.
Judge Barrett is a jurist of honor, of integrity, and of great
principle. The Judiciary Committee received a number of letters in
support of her nomination. They all praised her intellect, her
judgment, her collegiality, and her kindness. We all saw that kindness
as she testified over a 3-day period of time.
Judge Barrett won't be a politician on the Bench. She will make
decisions as they should be decided--in an impartial manner and in
accordance with the law and the Constitution. I am pleased to vote in
favor of Judge Barrett's confirmation to be an Associate Justice of the
Supreme Court, and I urge my colleagues to support her as well.
The PRESIDING OFFICER. The Senator from Ohio
Mr. BROWN. Mr. President, that sounded really good.
Senator Grassley knows, of course, she was a good witness. Of course,
she didn't take positions. Of course, she said she made no promises. Of
course, Judge Barrett said she was openminded. Cut through it all. I am
not a lawyer, and I don't serve on the Judiciary Committee. I don't
think Senator Grassley is a lawyer, but I am not really sure. Maybe he
is. I might be mistaken, and I apologize if he is.
Yet we all know why she was nominated. President Trump said why she
was nominated. President Trump has been very explicit in saying that he
wants a judge who will overturn the Affordable Care Act and that he
wants her there quickly because the Affordable Care Act hearings begin
soon after the election. He wants a judge who will undermine women's
rights to make their own decisions about their own healthcare. He is
putting her on because he knows she will oppose workers' rights. He is
putting her on because he knows she will oppose marriage equality. He
also wants her on quickly because he said: I want her there when the
election is contested after the election.
So, of course, Senator McConnell always does the bidding. Senator
McConnell comes out of his office. I assume he gets many of his
marching orders from the President of the United States. He comes down
here, and 51 spineless Senators--and then there is the Senator sitting
in the Presiding Officer's chair, and I appreciate his courage--do
whatever the President tells McConnell to tell them on issue after
issue after issue. I mean, that is the way this place works. That is
the corruption of this place. The President of the United States has
said: I want her confirmed now because I want her there to decide the
election that I am going to be involved in, and I want her there now so
she can overturn the Affordable Care Act.
Of course, Judge Barrett said to the committee: Well, I have made no
promises. I have made no commitments. I have not cut deals with
anybody. Of course, she says that, but the fact is that this is why the
President nominated her. We know that.
As a result, in my State, I know what the Affordable Care Act has
done for the last decade. There are 900,000 people who have insurance
who didn't have insurance before the Affordable Care Act. More than
100,000 people under the age of 26 have been able to get health
insurance because they have been able to stay on their parents'
healthcare plans. There are a million seniors in Ohio who have gotten
free preventive care--screenings for osteoporosis, physicals. More than
100,000 Ohio seniors have saved an average of $1,100 on their
prescription drugs because of the Affordable Care Act. Maybe, most
importantly, 5 million Ohioans have preexisting conditions. This was
before the coronavirus. Now that number is higher. There are 5 million
Ohioans who have had their preexisting conditions covered over the last
decade. Why? Because of the Affordable Care Act, those people with
preexisting conditions have been protected. Insurance companies can't
raise their rates because of preexisting conditions, and they can't
cancel their insurance because of their preexisting conditions. Those
will be gone. The protections for preexisting conditions will be gone
if the Affordable Care Act is gone. Protections for people under 26--
their staying on their parents' plans--will be gone if the Affordable
Care Act is overturned by the Supreme Court.
Now, they couldn't do it democratically. They couldn't do it because
the citizens of this country didn't want it repealed. So President
Trump has gone to the courts to legislate so they can overturn it. We
know all of that.
That is why the comments of my friend from Iowa are just
disingenuous. He knows that. Of course, she didn't sit in front of the
committee and say: Yes, I made a deal. Of course, she didn't sit in
front of those on the committee and say: I have strong feelings about
the Affordable Care Act and gay rights and women's health. She is not
going to say that. I am not a lawyer, but I know enough to know that
she is not going to go to the committee and say that.
We know what it is about. It is about repealing the Affordable Care
Act. It is about taking rights away from LGBTQ citizens in this
country. It is about taking rights away from women. Maybe it is also
about fixing the election. Deep down, the President and Senator
McConnell know they are not
[[Page S6434]]
going to win the election this year, so they want that ninth vote in
the Court just in case the President brings a lawsuit. If it ends up in
the Supreme Court, he and the Republicans will have appointed six of
the nine Justices. That is the game in town. That is what we know is
rigged.
So many millions of Americans are frustrated and angry with the way
the President has failed the country during this pandemic. We know we
have 4 percent of the world's population but that 22 percent of the
deaths in the world are of Americans. It is not because we don't have
good doctors in Utah or in Wisconsin or in Ohio; it is because of
terrible Presidential leadership.
President Trump and Senator McConnell have essentially left the
country to fend for itself during this pandemic. The stock market is
up, so Trump and McConnell seem to think everything is fine. The stock
market is up. What the heck? They are oblivious to the families staring
at stacks of bills. They are oblivious to the small businesses that are
watching years and, in some cases, often decades of hard work and
investment--or they are family businesses going back many, many
decades--evaporate in a few short minutes, but the stock market is up,
so Trump and McConnell seem to think everything is fine.
It is the same story over and over again. Corporate lobbyists, their
allies in Washington do whatever it takes to make sure Wall Street
recovers, and then they say: Oh, no, we really can't afford to help
anyone else.
I hear from small, family-owned businesses all the time, how they are
struggling. They are under incredible stress. They are worried about
whether they can make rent or make payroll. They have waited on the
phone for hours and couldn't get answers about loans. These folks
aren't lounging in a C-suite corner office. They don't have high-priced
lawyers and accountants who can do all the paperwork. They don't have
the lobbyists who line up outside Mitch McConnell's office helping
them. They are fighting for their dreams.
We know why they are struggling. We know why some of them still can't
open their doors 7 months--7 months--into this crisis because the
President and this Senate have so botched this crisis.
Again, 4 percent of the world's population, 22 percent of the world's
deaths, and the President said: I take no responsibility. The President
said: Not my fault. The President said: I get a 10 out of 10 for how I
have managed this.
President Trump has no plan, never has, to control the virus. He has
not even tried. Imagine if President Trump, back in March, instead of
lying to the American people--he knew how serious it was. He told his
Wall Street friends, and he told that reporter from the Post. I can't
remember his name. He told them it was serious, but he didn't tell the
American people. He lied to us.
Imagine, instead, if the President had worn a mask and stood up and
treated us like adults and said to the American public: You know, this
is really serious. This could turn from an epidemic into a pandemic. We
have to fight back. I am wearing a mask. I ask every American to wear a
mask, just like we ask people to wear seat belts and stop at stop
signs. I want every American to wear a mask. I want people to socially
distance so we can get this--but he didn't do any of that. Of course he
didn't do any of that.
And he also came up with no national testing, contact tracing
strategy. He didn't invoke the Defense Production Act so that we could
make cotton swabs and gloves and masks and gowns and all the things we
needed to do to stay safe. He had none of that.
He has no guidance on how businesses are supposed to protect their
customers, no investment of our vast resources to help them do it.
And we see the results. We saw them in April and May, in June and
July, in August, in September, and now October. In fact, in my State,
as in many States, there are more coronavirus diagnoses every day--
almost every day--than there were a month ago, 2 months ago, 6 months
ago.
Local restaurants are closed for good. The big chains may recover.
Communities that already didn't get a lot of investment--Brown and
Black neighborhoods, rural communities, places you can't see from Trump
Tower--those places are seeing their homegrown businesses shut their
doors and lay off workers.
Black-owned businesses have closed at twice the rate of White-owned
businesses. We know Latino- and Asian-owned businesses are getting
disproportionately hurt.
Our office hears from so many of these Ohio businesses. We have done
a series of virtual roundtables with Ohio restaurants.
One Ohioan in Zanesville talked about taking over the family business
his dad first started 67 years ago. Business is down significantly. He
tries to pay his employees a living wage and give them time off for
vacations and family needs. He is a really good employer. He is afraid
of letting his employees down.
Another, a bar owner in Bellefontaine, told us his sales are down and
he is worried about his own businesses. When he wrote to me, he didn't
just talk about himself. He said that he is worried about the ripple
effects on the farmers and suppliers, the truckdrivers, and so many
others.
Now he is dreading the winter, when he won't even be able to use the
patio. He wonders what he is going to do, what the suppliers are going
to do.
And it is not just restaurants. The media reported on a newsstand in
downtown Cleveland, owned by Mr. Patel, an Indian immigrant who came to
Ohio and has lived the American Dream. He built a better life, started
his own business, was employing other Clevelanders. Now the office
building is empty. The food court is closed. His sales have dropped
from $700 a day to just $200 a day. He is looking at impossible choices
unless the government helps.
We know we can. We did it in the spring when we passed payroll
protection. There were all kinds of implementation problems. The
Secretary of the Treasury and the President seemed more interested in
the big guys than the little guys. Too many businesses went to the
front of the line, but despite all that, we hear from businesses that
are open today only because of PPP.
I heard from Spangler Candy in Bryan, OH, a family-owned union
company. I have toured their plant and seen the great work this, I
believe, fourth generation management team has done.
They have seen business drop 70 percent. They had to take their first
Federal support in their 114-year history, using PPP to prevent
layoffs. They kept their doors open, and they provided pandemic premium
pay for their Teamster employees.
A music and arts venue in Youngstown, the Westside Bowl, talked at
one roundtable about how they how had zero dollars in revenue in the
past 6 months. PPP kept their office staff and stagehands on payroll,
but as it runs out, so will their ability to pay employees.
Ohio Star Forge, a parts manufacturer in Warren, just north of
Youngstown, represented by the Steelworkers, lost 90 percent of their
business when auto plants shut down. PPP made a difference. They are
now back to about 70 percent of their capacity.
Polter's Berry Farm is a family farm in Fremont. One of their crops
is pumpkins. The major pumpkin buyers are amusement parks and fall
festivals. Pumpkin sales were down. PPP was helpful, but now they are
worried about whether they can repay it.
A+ Cleaners in Dayton has seen demand plummet. People don't need much
dry cleaning when they are working from home. They were able to stay
open with an EIDL loan and a CARES Act grant from the county. They are
terrified of what happens when the money runs out.
We have a bill to get more help to these businesses--the Small
Business Lifeline Act. It would extend PPP through at least next
spring. It would get more funding to the program so they can get more
money out the door to these businesses. It would specifically target
help to the truly small businesses that need it the most, including
minority-owned businesses. It would extend the debt relief program. It
would get help to nonprofits that we know are hurting just like
businesses are.
As important as these steps are, we can't just give businesses loans
and think that will take care of it when the
[[Page S6435]]
virus is still raging and the customers don't have jobs.
That is why we need a comprehensive bill that actually meets the
magnitude of this crisis. This visceral, decades-long opposition from
my colleagues to unemployment insurance--I don't know how they don't
realize that when 600,000 Ohioans are getting $600 a week, they are
spending that money at local businesses. They are keeping the economy
going from just a total crevasse. They are helping the economy. They
are helping local businesses. They are giving those businesses revenue,
but when the $600 just stops, not only are those 600,000 Ohioans' lives
just so, so difficult, but it makes the businesses of which they are
patrons, the businesses that they patronize--it obviously hurts them at
their bottom line.
I think the stories from these businesses really get to the
fundamental question of what sort of country we want to live in. When
we invest in small business, we invest in people and communities, not
stock buybacks, not executive bonuses.
I know that Senator McConnell and his colleagues here always are
looking out for the stock market, always are looking out for Wall
Street, always want to hear about stock buybacks and executive bonuses.
I know that is their thing. But during a pandemic, I wish it were less
their thing.
The stakeholders in these businesses are not nameless, faceless
shareholders. They are the owners' neighbors. They are family members.
They are the people we see or used to see at our kids' schools, in the
grocery store, and at church.
A year from now, do we want to be left with only the biggest
companies that follow the Wall Street business model that treats
workers as expendable?
Ohioans know all too well what happens when you let Wall Street run
things and you ignore Main Street. Our communities have watched for
decades as factories closed and investment dried up and storefronts
were boarded over in towns and cities that once were thriving.
When people in those towns wake up, they realize the only jobs you
can get are at a big-box chain for rock-bottom wages with no
healthcare, no paid sick leave, no power over your schedule. Is that
what we want for our future?
We have the resources to fix this. We are the greatest, richest
country in the world. Let's rise to meet the moment. Let's pass a
comprehensive bill that gets help to our businesses, our workers, and
their customers. And let's get the communities the support they need.
Mr. President, in order to proceed to the consideration of H.R. 986,
the Protecting Americans with Preexisting Conditions Act, which the
House passed with bipartisan support, I ask unanimous consent that the
Senate proceed to legislative business.
The PRESIDING OFFICER. Is there objection?
The Senator from Wisconsin.
Mr. JOHNSON. Mr. President, reserving the right to object, where do
you begin? That was quite the statement.
At some point in time, it just becomes galling to listen to the
tactics--the scare tactics and false allegations, particularly from the
other side that gave us the Affordable Care Act, an Orwellian-named
bill if there ever were one.
One of the promises made to promote that bill was, in the end,
determined to be the PolitiFact Lie of the Year--I think in the year
2013: If you like your healthcare plan, you can keep your plan. If you
like your doctor, you can keep your doctor.
Millions of Americans lost their healthcare plans. They lost their
doctors. Premiums didn't decline by $2,500 per family; they actually
skyrocketed--sometimes two, three, four times the price because of the
faulty design of healthcare, of the Affordable Care Act, ObamaCare.
Probably the greatest false allegation that is just offensive--and,
by the way, to call every Member on this side spineless is offensive.
We have different views. You know, you try to respect the different
views if you actually want to accomplish something.
But one of the greatest false allegations--and they go back to the
well time and time and time and time again about this--is the
Republicans don't want to protect the coverage for people with
preexisting conditions. Nothing could be further from the truth.
That was an argument made back in 2010, and the American people
decided that we should do that. Republicans agreed with the American
people that we wanted to protect everybody's coverage, covering people
with preexisting conditions.
We just want to do it where it doesn't cost Americans an arm and a
leg. The faulty architecture of ObamaCare caused premiums to double,
triple, and quadruple because they actually made a very small slice of
the American public--5 to 7 percent of the people who had to buy
coverage on the individual market, who don't have the employer coverage
plans that cover people with preexisting conditions--they made that
small percentage of the American public bear the full cost and brunt of
covering people with preexisting conditions. It was not smart. It was a
faulty design.
The way you fix it is, yes, you require insurance carriers to cover
people with preexisting conditions, not deny them coverage, but you
spread that cost over everybody.
Just as I mentioned earlier to the Democratic leader when I objected
to his bill, our friends on the other side of the aisle are far more
interested in an issue rather than getting a result.
How do I know this? Well, particularly on this issue, covering people
with preexisting conditions, four times in just the last few days and
weeks, they have voted no, first on two COVID relief packages--the ones
I was referring to earlier--the target package that does provide
financial relief to the unemployed, to small businesses, to schools, to
parents with childcare and provides funding for agriculture and testing
and vaccines--that also included language to protect coverage for
people with preexisting conditions.
Twice in the last few days or weeks, they have also voted no on
Senator Tillis's bill that does exactly that--protect the insurance
coverage of people with preexisting conditions.
Now, if they were really serious about protecting the coverage of
people with preexisting conditions, they would have voted yes. But they
voted no.
So I could go on and on. I have jotted down all kinds of points that
I would like to refute, but it is really not worth the time and effort.
Again, let me emphasize that Republicans agreed with the American
people. This debate is over. We have offered proposals to do just this.
We want to protect the insurance coverage of every American with
preexisting conditions. We just want to do it in a way that doesn't
cost them an arm and a leg like ObamaCare did.
So I personally am just getting sick of the false allegations, and
that is only one of them. I could drone on and on about the false
allegations made by the other side against Republicans and
conservatives, but I will focus on this: This is a false charge. It is
canard. It is a scare tactic. I am begging the American people not to
listen to it or believe it. Republicans want to protect the insurance
coverage of people with preexisting conditions. If they were serious
about it, they would have voted yes on what we have already proposed;
and for that and many other reasons, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. BROWN. Mr. President, before offering another unanimous consent,
I just point out there were 10 years of protections for people with
preexisting conditions under ObamaCare and 10 years of speeches from
Republicans about repeal and replace, with no real proposal to replace
the Affordable Care Act. The President has promised it about every
couple of weeks through 4 years, and he still hasn't put a real bill
forward.