Congressional Record, Volume 166 Issue 184 (Sunday, October 25, 2020)

[Congressional Record Volume 166, Number 184 (Sunday, October 25, 2020)]
[Senate]
[Pages S6451-S6458]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Coronavirus

Mr. SCHUMER. Madam President, I want to start today by talking about
some breaking news that may, at first glance, not seem relevant to
today's proceedings but, in fact, is a perfect illustration of how
broken this process is.
We find ourselves in the middle of a pandemic that the Republican
Party has never taken seriously enough, and it is a pandemic that is
worsening by the day.
According to Dr. Fauci, the nomination ceremony for Judge Barrett was
a superspreader event.
Today, the White House Chief of Staff conceded the White House is
``not going to control the pandemic.'' Yet last night we learned that
several aides close to Vice President Pence have tested recently
positive for COVID.
We wish them and their families well. We wish the Vice President and
his family continued health. But a normal response after being close to
several people with COVID-19 would be to follow CDC guidelines and
quarantine for everyone's safety, but this is not the case. In the same
breath with which they announced that Vice President Pence was exposed,
the White House said that he would keep on campaigning, comparing
campaigning work to the work that doctors, nurses, firefighters, and
police officers do. It is a puzzling claim, especially since the Vice
President failed at the most important official duty in his portfolio--
the White House Coronavirus Task Force. Not only has the White House
Coronavirus Task Force failed to keep the American people safe; it has
even failed to keep the White House safe.
Even worse, the Vice President reportedly intends to come to this
Chamber tomorrow to preside over Judge Barrett's confirmation vote. The
Vice President, who has been exposed to five people with COVID-19, will
ignore CDC guidelines to be here tomorrow, putting the health of
everyone who works in this building at risk. It sets a terrible,
terrible example for the American people, and nothing could be a more
apt metaphor for what is going on here.
The Republican Party is willing to ignore the pandemic to rush this
Supreme Court nomination forward, and the Vice President, after being
potentially exposed to COVID, will preside.
The Senate Republicans are willing to ignore the need for economic
relief. They are willing to ignore the Nation's testing needs. They are
willing to ignore election interference--all so they can put someone on
the highest Court who could take healthcare away from millions of
Americans in the middle of a pandemic. God save us.
Now, only a few hours after Justice Ruth Bader Ginsburg passed away,
Leader McConnell announced that the Republican majority would move
quickly to confirm her replacement. At the time, we didn't know exactly
when, but now we do. Republicans are rushing to hold a confirmation
vote tomorrow night, 8 days--8 days--before the election, after more
than 50 million Americans have voted for a President--quite possibly, a
different President--to pick Justices on their behalf; after more than
50 million Americans have voted for Senators--quite possibly, different
Senators than some who are here today--to advise and consent.
Confirming a lifetime appointment this late into a Presidential
election season is outrageous. It is even more galling, of course,
because nearly every Republican in this Chamber, led by the majority
leader 4 years ago, refused to even consider the Supreme Court
nomination of a Democratic President on the grounds of the principle--
the principle--that we should wait until after the Presidential
election because the American people deserved a voice in the selection
of their next Justice.
My colleagues, there is no escaping this glaring hypocrisy. As I said
before, no tit for tat, convoluted, distorted version of history will
wipe away the stain that will exist forever with this Republican
majority and with this Republican leader. No escaping the hypocrisy,
but, oh my, how the Republican leader has almost desperately tried.
Over the past few days and weeks, the majority leader has subjected
the Senate to a long and tortured defense of this cynical power grab.
The Republican leader claims the majority's position all along has been
that it is acceptable to deny Justices in Presidential election years
when there is divided government.
But here is what Leader McConnell said after Justice Scalia died:

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.

He didn't say: The American people should have a voice, but only when
there's a divided government.
He didn't say: The American people deserve a voice, but only when it
serves the political interests of one party, otherwise, we don't mean
it.
No, Republicans all swore this was a ``principle''--their word--not a
mere incident of who controls the Senate

[[Page S6452]]

and the Presidency. And the transparency of this new excuse does not
cover up the hypocrisy. It does not change it one bit, and everyone
knows it--everyone.
And, by the way, if this were about divided government, the senior
Senator from Florida would not have said he would ``say the same thing
if a Republican President were in office.''
The junior Senator from Iowa would not have said:

Precedent set, precedent set. I'm sure come 2020, you'll
remind me of that.

Chairman Graham would not have said:

Hold the tape! Use my words against me! You can say Lindsey
Graham said the next president, whoever it might be--

Whoever it might be, not whatever party it is in--

should make the nomination.

So the flimsiness, the transparency, the dishonesty of the excuse
that they have come up with ex post facto doesn't work. It doesn't
work.
No, this has never been about the orientation of the Senate and the
Presidency. Republicans promised they would follow their own standard
if the situation were reversed--guess not.
Now, the Republican leader claims that the majority's actions today
are rooted in some convoluted precedent. The truth is, the precedent is
clear and similar. The Senate has never--never--confirmed a Supreme
Court Justice so close to a Presidential election. The Senate has never
even confirmed a Justice between July and election day in a
Presidential year. I asked the Presiding Officer to confirm these two
facts, and both were confirmed by the records of the Senate. There is
no precedent--none--for what is going on here.
The Republican leader has claimed that the majority's actions are
justified by all sorts of bad things Democrats did in the past and may
hypothetically do in the future. He said that every escalation of
significance in judicial debates was made by Democrats. Convenient, I
guess. I guess ``significance'' is in the eye of the beholder, because
the Republican leader's history conveniently, and mandatorily to make
his case--his false case--left out a whole lot of chapters--ignored.
He conveniently omitted that Republicans bottled up more than 60
judicial nominees from President Clinton, refusing to give them a
hearing in the 1990s. He made no reference to the decision by
Republican Senators to hold open 14 appellate court seats under
President Clinton so that a Republican President could fill them
instead--a tactic Republicans would revisit under President Obama, when
Republicans used partisan filibusters to block his nominees to the DC
Circuit.
At the time, the Republican leader and Senators from Iowa and Utah
said that President Obama was--get this--trying to ``pack the court.''
Amazing. Pack the court? They held up the nomination so President Obama
couldn't have his rightful appointees to the second highest court in
the land. And they kept a number of seats--I believe it was four--
vacant for such a long time.

Well, we have heard all of this before. It seems whenever the
Republicans need to scare up some votes, they accuse Democrats of
trying to pack the courts, even when it is a Democratic President
invoking his constitutional authority to appoint judges and the
Republicans are blocking it.
Republicans tried to nullify President Obama's authority to nominate
judges to the circuit court, and then, as soon as Republicans had a
majority, they succeeded in nullifying his prerogative to have a
Supreme Court nomination considered by the Senate. And what did Leader
McConnell say about it? This remark will go down in infamy. He called
it ``one of his proudest moments.''
Apparently, the blame game that Leader McConnell wants us to play
goes all the way back to 1987. That is the reason we are so
hypocritical--what happened back in 1987, says the Republican leader.
It all began with Robert Bork, he says, after Senator Kennedy gave a 3-
minute speech that Republicans considered intemperate. Seriously, that
is, according to our Republican friends, the original sin, according to
the leader--a 3-minute speech.
While we are on the subject of Robert Bork, I would remind my
colleagues that Robert Bork received a hearing and a vote in the
Democratic Senate. His nomination was defeated by a bipartisan majority
of Republicans and Democrats. Republicans helped defeat Bork--left out
conveniently by the leader's recantation of history. His nomination was
defeated and President Reagan's eventual replacement, Anthony Kennedy,
was confirmed unanimously.
For those keeping score, Merrick Garland never even got a hearing.
But because one Democrat gave a speech Republicans didn't like, the
fight was on, according to the Republican leader. According to the
Republican leader, because of that 3-minute speech in 1987, Republicans
can steamroll the minority to confirm a Supreme Court Justice in the
middle of an election.
Imagine trying to explain to someone: Sorry, I have to burn down your
house because of something one of your friends said about one of my
friends 33 years ago. Yes, burn down the house because of a comment 33
years ago--that is what they are doing.
The leader's speech--the Republican leader's speech--was schoolyard
stuff. Here in the U.S. Senate, in order to justify an outrageous power
grab that even some Members of his party don't agree with, the leader's
argument boils down to ``But you started it.'' Any parent with young
children would recognize that argument. It is when you know you have
done something wrong but you don't want the blame. That is exactly what
the leader's speech sounded like to so many Americans.
Let's get serious here. This isn't about the long history of judicial
escalation or a 33-year-old speech. This is about raw political power.
This is about a Senate majority deciding to break faith with the
American people and make a mockery--a mockery--of its own principle to
secure a seat on the Supreme Court.
Let me dispense with one more fiction. The leader keeps claiming that
Supreme Court seats have nothing to do with power or ideology. Judges
and justices only apply the law, they claim. They only call balls and
strikes. My Republican friends have told us over and over again that if
someone is qualified--has good, topnotch qualifications--they should be
confirmed because judges merely apply the law.
Well, if that were true, if Leader McConnell truly believed the only
thing that matters about a judicial candidate is his qualifications,
then Merrick Garland would be sitting on the Court right now. His
qualifications were every bit as good as Amy Coney Barrett's--every bit
as good.
So, all of a sudden, we should only judge by qualifications. I get
it. I get it. If it were true--once again, I will repeat it. If any of
my Republican friends believe that the only thing that matters is the
qualifications of a judicial candidate, Merrick Garland would be
Justice Merrick Garland now.
No one--and I mean no one--said that Judge Garland wasn't qualified.
But Republicans subjected his nomination to an unprecedented partisan
blockade. If qualifications are the only thing that matter, why did
President Trump vow to pick only Justices who would terminate our
healthcare law? Why did he say that his judicial appointments would
``do the right thing'' on healthcare, ``unlike Justice Roberts''? Why
did President Trump say that if he gets to appoint two or three
Justices to the Supreme Court, Roe v. Wade would be overturned
automatically? That is not qualifications.
President Trump doesn't have a problem talking about how judicial
appointments might rule when he is trying to win an election, but,
apparently, Democrats are, in the words of the leader, ``hysterical''
for even questioning how Judge Barrett looks at hugely consequential
issues.
I want the American people to know: The far right is lining up, right
now, to get the Supreme Court to review your fundamental rights because
they think Judge Barrett might provide a certain outcome. President
Trump and Republican attorneys general are suing to eliminate the
Affordable Care Act in a case that will be heard one week after the
election.
Three days ago, the President of the United States said on tape: ``I
hope that they will end it. It'll be so good if they'' did.
Republicans in Pennsylvania have just appealed a split decision by
the

[[Page S6453]]

current Supreme Court that prevented an early cutoff to counting
ballots. Just one vote on the Court could change the outcome.
The attorney general of Mississippi, this week, filed a brief asking
the Supreme Court to review a Mississippi law banning abortions after
15 weeks--an invitation for a new configuration on the Court to revisit
Roe v. Wade.
So don't tell me the issues don't matter, only qualifications. We are
talking about the lives and freedoms of the American people: the right
to affordable healthcare, to make their own private medical decisions,
to join a union, to vote without impediments, to marry whom they love.
And Judge Amy Coney Barrett will play a part in deciding whether those
rights will be sustained or curtailed for the next generation of
Americans.
I want to be very clear with the American people about what is going
on here. The Republican Senate majority, America, is breaking faith
with you--doing the exact opposite of what it promised just 4 years
ago--to cement a majority on the Supreme Court that threatens your
fundamental rights.
Don't forget it, America. Don't forget what is happening here because
it is a travesty--a travesty. It is a travesty for the Senate, a
travesty for the country, and it will be an unerasable stain on this
Republican majority forever more.

I yield the floor.
The PRESIDING OFFICER. The majority whip.
Mr. THUNE. Madam President, the Democratic leader seems to think that
this had something to do with a 3-minute speech 30 years ago. I don't
know where that comes from.
I can tell you that he has been involved in a systematic reversal of
the longstanding precedent when it comes to the consideration of judges
to the Federal bench by the U.S. Senate. I am a beneficiary, I suppose
you could say, in some strange way of that. That was a major issue in
my campaign in 2004. We made it about the blockade that the Democrats
in the Senate at the time, led by the current Democratic leader, had
started against a whole long list of nominees put forward by then-
President George W. Bush.
I remind you of a few names: Janice Rogers Brown, Priscilla Owen,
Miguel Estrada, Judge Charles Pickering. There was a long list of
judges who were blocked at the time by the current Democratic leader.
In fact, as Leader McConnell has pointed out, it wasn't even sort of a
random thing. It was a planned strategy to start playing politics with
the Federal Judiciary instigated by the architect, the current
Democratic leader, who, at the time, was holding workshops and seminars
about how they could politicize the Federal judiciary and figure out
new ways to block consideration of judges put forward to the Federal
bench by then-President George W. Bush. That was a major issue in that
campaign season, and, I would argue, one of the principle reasons that
I am here in the U.S. Senate.
Then, of course, when the chickens came home to roost and the same
tactics were used by the other side in the previous administration, as
was pointed out again yesterday by Leader McConnell, the Democrats
decided to break the rules to change the rules in 2013 to go to a
simple majority to basically get and confirm judges on the Federal
Judiciary.
We are where we are today, notwithstanding all the bluster that you
just heard, because of a long, systematic strategy by the Democratic
leader to block judges put forward by Republican Presidents.
Despite all of what you just heard, tomorrow we are going to get to
vote to confirm one of the most outstanding judicial nominees whom I
have had the pleasure of considering during my time in the Senate.
Judge Amy Coney Barrett is eminently qualified for the Supreme Court.
By now, her accomplishments are well known: first in her class at
Notre Dame Law School, Supreme Court clerk, beloved Notre Dame law
professor, outstanding scholar, circuit court judge.
Americans, of course, got to see Judge Barrett's qualifications for
themselves a couple of weeks ago during her Judiciary Committee
hearing. For 2 days, she answered tough and probing questions from
Democrats and Republicans, displaying a consummate command of the law
and a calm and thoughtfulness that shows she has the kind of judicial
temperament you want in a Supreme Court Justice.
Since Judge Barrett's nomination, the tributes have poured in from
across the political spectrum: ``Barrett is highly qualified to serve
on the Supreme Court,'' said Harvard Law Professor Noah Feldman, one of
the House Democrat's star impeachment witnesses.
Patricia O'Hara, former dean of Notre Dame Law School, sent a glowing
letter to Judiciary Committee Chairman Lindsey Graham and Ranking
Member Dianne Feinstein. The letter says:

I was the dean of Notre Dame Law School at the time that
Judge Barrett first joined our faculty. In that capacity I
was responsible for providing an environment in which she
could flourish as a young faculty member, but also for
evaluating objectively whether she met the University's high
standards for scholarship and teaching required for
advancement. This proved to be the easiest task of my ten
years as a dean. Judge Barrett was (and remains) a stellar
teacher beloved by students, a brilliant and nationally-
recognized scholar, and generous colleague
She went on to say:

I am confident that if she is confirmed by the United
States Senate, she will be an outstanding justice--brilliant,
fair, impartial, and empathetic--and will serve to strengthen
an independent judiciary committed to the rule of law.

Professor O'Hara also took care to note in her letter that she
doesn't write glowing reviews for Federal judiciary nominees on a
regular basis. In fact, she said the only similar letter she has ever
written was in support of Democratic nominee Elena Kagan's nomination
to the Supreme Court.
She went on:

I feel every bit as strongly about Judge Barrett's
qualifications for a position as Associate Justice as I felt
about Justice Kagan.

While I may not always agree with the American Bar Association's
judicial rankings, they certainly got it right with Judge Barrett. That
is I talking, not the professor. I am still struck by the testimony
that the head of the ABA Standing Committee on the Federal Judiciary
submitted to the Senate Judiciary Committee. The ABA's Standing
Committee on the Federal Judiciary is the body that provides the ABA's
evaluations of Federal judicial nominees.
In his testimony detailing the ``well-qualified'' rating that the ABA
gave to Judge Barrett, the head of the ABA committee noted:

Lawyers and judges uniformly praised the nominee's
integrity. Most remarkably, in interviews with individuals in
the legal profession and community who know Judge Barrett,
whether for a few years or decades, not one person uttered a
negative word about her character. Accordingly, the Standing
Committee was not required to consider any negative
criticisms of Judge Barrett.

That is quite a tribute.
But, of course, ratings of ``well-qualified'' do not just depend on
character; they also depend on professional competence. Here is what
the ABA's representative had to say about that:

Given the breadth, diversity, and strength of the positive
feedback we received from judges and lawyers of all political
persuasions and from so many parts of the profession, the
Standing Committee would have been hard-pressed to come to
any conclusion other than that Judge Barrett has demonstrated
professional competence that is exceptional.

Along with her character, competence, and command of the law, Judge
Barrett brings a clear understanding of the proper role of a judge. She
understands that the job of a judge is to interpret the law, not make
the law; to call balls and strikes, not to rewrite the rules of the
game; or, as Judge Barrett said in an answer to a Senator's question,
``I apply the law. I follow the law. You make the policy.''
As Judge Barrett made clear in her hearing, she will be the kind of
Justice who leaves her personal beliefs and political opinions at the
courtroom door. She will look at the facts of each case and judge
accordingly to the law and the Constitution and nothing else.
When I came to the Senate, I hoped to have the opportunity to put
judges like Amy Coney Barrett on the bench. I was proud to vote to
confirm her to the Seventh Circuit Court of Appeals in 2017, and I look
forward to voting to confirm her to the Supreme Court tomorrow.
I yield the floor.
The PRESIDING OFFICER (Mr. Boozman). The Senator from California.

[[Page S6454]]

Mrs. FEINSTEIN. Mr. President, I rise today in opposition to the
nomination of Judge Amy Coney Barrett to the U.S. Supreme Court.
Just over a month ago, our country lost Justice Ruth Bader Ginsburg,
a leading voice for equality and fundamental rights.
Judge Ginsburg's nomination was the first that I participated in when
I came to the Senate 28 years ago. At her hearing, I had the
opportunity to thank her for all she had done and for all she had yet
to do. Before she was confirmed to the Bench, Justice Ginsburg played a
critical role in breaking down barriers for women.
During her confirmation hearing, she staunchly and forthrightly
defended her positions as an advocate for equality, including her own
support for a woman's fundamental right to control her own body, the
core holding of Roe v. Wade.
Once confirmed to the Court, Justice Ginsburg worked tirelessly to
ensure that the opening words of our Constitution, ``We the People of
the United States,'' included all people, not just the elite few.
The stakes are extraordinarily high in confirming a replacement for
Justice Ginsburg in the best of circumstances, but for Republicans to
proceed now, just 8 days before an election, undermines, I think, the
integrity and independence of the vote.
Senate Republicans are breaking their own statements and promises by
proceeding. In February of 2016, Republicans refused to consider a
replacement for Justice Antonin Scalia because it was an election year.
They blocked all consideration of President Obama's nominee, Judge
Merrick Garland, claiming that the American people should have the
opportunity to weigh in on a Supreme Court vacancy. Leader McConnell,
at the time, clearly stated the Republicans' position: ``My view, and I
can now confidently say, the view shared by virtually everyone in my
conference, is that the nomination should be made by the President that
the people elect in the election that is now underway.'
Well, that is clearly not going to happen.
Chairman Graham, in 2018, reiterated this standard, promising that
``if an opening comes up in the last year of President Trump's term and
the primary process has started, we'll wait till the next election.''
But when Justice Ginsburg passed away just 46 days before election
day, Senate Republicans did not hesitate to go back on their word. On
the night of Justice Ginsburg's death, Leader McConnell announced that
President Trump's nominee for the vacancy would receive a vote on the
Senate floor. Chairman Graham immediately set committee hearings for
October 12, giving the committee just 2 weeks to review Judge Amy Coney
Barrett's record. This proved to be insufficient, as evidenced by Judge
Barrett's failure to identify and disclose significant amounts of
material.
Then, before Judge Barrett's hearing had even concluded, Chairman
Graham held a markup on her nomination, and more rules were broken by
setting a committee vote on her nomination for 1 p.m. the following
week. I, along with the Democratic side, refused to take part in that
committee vote. This was not a decision that we made lightly. We were
not willing to participate any further in a process that was used to
rush this nominee forward in the middle of this election.
Despite our objections to proceeding, Democrats demonstrated through
the course of Judge Barrett's nomination hearings what is at stake with
her nomination, starting with Republican statements to use the Supreme
Court to dismantle the Affordable Care Act and strip away healthcare
coverage for millions of Americans.
On November 10, the Supreme Court will actually hear oral arguments
in a case titled ``California v. Texas.'' That is a case challenging
the validity of the Affordable Care Act. President Trump promised to
appoint Justices who will vote to dismantle this landmark law. In 2015,
he stated: ``If I win the Presidency, my judicial appointments will do
the right thing, unlike Bush's appointee John Roberts on ObamaCare.''
When he nominated Judge Barrett to fill Justice Ginsburg's seat,
President Trump stated that eliminating the ACA would be a ``big win in
the USA.'' Even more recently, in an interview with 60 minutes,
President Trump said he ``hopes'' the Supreme Court will strike down
the ACA, and he believes ``it'll be so good if they end it.''
Let us not forget, after all, that Justice Ginsburg joined a 5-to-4
majority when the Supreme Court upheld the ACA against Republican-led
challenges in NFIB v. Sebelius and King v. Burwell.
Like President Trump, Judge Barrett has criticized the upholding of
the Affordable Care Act. In NFIB v. Sebelius, she stated that Chief
Justice Roberts ``pushed the Affordable Care Act beyond its plausible
meaning to save the statute.''
She also cast doubt on the Chief Justice's opinion in King v. Burwell
and said that he departed from the ``clear text'' of the statute to
avoid gutting it. She likewise claimed that the dissent had the
``better of the legal argument.''
At her confirmation hearing, Judge Barrett did not answer questions
about her view on the ACA and did not meaningfully walk back her
criticism of these two 5-to-4 Supreme Court decisions upholding the
law.
She also implied that coverage of preexisting conditions is not at
issue in California v. Texas. However, the Trump administration is
directly asking the Court to strike down the entire Affordable Care
Act, including its protections for patients with preexisting
conditions.
Let me be perfectly clear. I believe, if Judge Barrett is confirmed,
Americans could well lose the significant benefits that the Affordable
Care Act provides. More than 130 million Americans have preexisting
conditions, like cancer, asthma, or even COVID-19, and they could then
be denied coverage.
At Judge Barrett's hearing, we heard the stories of real Americans
who will be harmed and who illustrate what is at stake. This included a
constituent of mine, Krystyna Munro Garcia, who, because of the
Affordable Care Act, received cataract surgery that saved her eyesight.
It included North Carolina mom Stacy Staggs, who testified that the
Affordable Care Act had ensured her twin girls received the lifesaving
treatments they needed.
It also included Dr. Farhan Bhatti, a family physician, working with
low-income patients in Lansing, MI, who told the committee that
opposition to the ACA ``endangers a lifeline that [his] patients count
on to stay healthy, and in many cases, to stay alive.''
I deeply believe that Senate Republicans should not be moving forward
on a Justice who will likely help strip healthcare from millions of
Americans, particularly in the middle of a global pandemic that has
already taken more than 225,000 American lives.
Judge Barrett also represents a threat to women's reproductive
rights. President Trump told us so when he promised to appoint Justices
who will ``automatically'' overturn Roe v. Wade.
Judge Barrett has made clear that she would likely be the Court's
most extreme member on reproductive rights. At her hearing, she refused
to state whether she agreed with the landmark case Griswold v.
Connecticut, which established the right to use contraceptives. In
addition, she would not affirm whether Planned Parenthood v. Casey,
which upheld the constitutional right to abortion established in Roe,
was settled law. She stated outright that Roe is not a superprecedent,
indicating time and again that continued efforts by anti-abortion
activists would provide the Supreme Court ample future opportunity to
further limit or overturn Roe entirely.
Now, this was a surprising departure from the last four Republican
nominees, who acknowledged at their hearings that Griswold was, in
fact, settled law and that Roe and Casey were, in fact, important
precedents of the Court.
Beyond these specific examples, Judge Barrett's view of precedent
itself poses a continued threat to countless rights that Americans rely
on and cherish.
As an academic, she wrote that it is ``more legitimate'' for a
Justice to ``enforce her best understanding of the Constitution rather
than a precedent she thinks clearly in conflict with it.'' Essentially,
what that states is that she will feel free to overrule precedent that
she believes conflicts with her interpretation of the Constitution.
Judge Barrett's record also raises grave concern about how she would

[[Page S6455]]

rule on cases involving voting rights and core democratic norms.
In her dissent in the Seventh Circuit case Kanter v. Barr, Judge
Barrett suggested that voting rights were entitled to less protection
under the Constitution than the right to own a gun. She distinguished
between the ``individual right'' to own a gun and the ``civic right''
to vote. She argued that a felony conviction should not necessarily
result in the loss of the right to own a gun but emphasized that it may
result in the loss of the right to vote.
She even refused to say whether voting discrimination exists even
after being informed that Chief Justice Roberts wrote, ``Voting
discrimination still exists; no one doubts that.''
Despite President Trump's statement that he plans to challenge the
results of the election in the courts if he loses--and that he wants
his Justice seated in time to hear those challenges--Judge Barrett
would not commit to recuse from cases related to the upcoming election.
In addition, Judge Barrett's evasiveness at her hearing was deeply
concerning. She refused to answer over 100 questions--not 10 or 20 or
30 or 40 but 100 questions--including basic legal and factual
questions. Let me give you an example.
Judge Barrett refused to confirm that the Constitution prevents a
President from delaying an election. That is a hint. She declined to
answer whether Federal law prohibits voter intimidation. She would not
affirm that Medicare is constitutional. She even hedged on whether
Presidents should commit to peaceful transfers of power, and she would
not acknowledge the existence of climate change.
Judge Barrett's silence on these major questions really speaks
volumes. It demonstrates that a Justice Barrett will not be willing to
stand up for core American values and rights, and it raises additional
concerns about her willingness to act independently of President Trump.
In closing, it is my belief that Judge Barrett represents a threat to
the very rights--including reproductive rights, the rights of LGBT
individuals, and voting rights--that Justice Ginsburg worked so hard to
protect, and for those reasons, I oppose her nomination and urge my
colleagues to do the same.
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. DURBIN. 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. DURBIN. Mr. President, if you went across America and just picked
a random person and said ``Did you know the Senate is in session this
weekend?'' they, of course, wouldn't know. You would say to them
``Well, why do you think the Senate is in this rare 5-day session?''
and they would say, I am sure, ``Well, of course they are in a rare 5-
day session. We are in the midst of a deadly pandemic.'' You would
guess that would be the answer of most Americans.
Why would they say that? Well, I know why they would say it in
Illinois--because the coronavirus in Illinois has spiked to a newly
confirmed daily COVID-19 State record as of yesterday, and 63 more
deaths have been reported. Our positivity rate is over 6 percent now,
and the Governor and mayor are taking steps that they didn't want to
take but have no choice. They are closing restaurants and bars and
imposing a curfew on the city of Chicago.
You can imagine how they feel as more and more infections come
rolling in and more and more people are dying. We have had almost 9,600
deaths so far in Illinois and, as we know, nationwide, over 225,000
deaths.
But don't believe for a second that this is a big-city problem
because the New York Times reports this morning in its edition the
names of the 50 counties across America with the worst per capita
outbreaks of COVID virus with fewer than 10,000 people in the county.
Senator Thune was here earlier. His State of South Dakota has really
been devastated when it comes to small counties, these counties--Bon
Homme, Faulk, Harding, Miner, Buffalo, Oglala Lakota, Sully, Campbell,
Brule, Turner, Jackson, Todd. Small counties. Rural areas. Smalltown
America that used to say: It is a big-city problem. But now, sadly, it
is a smalltown problem too.
I am sure the Presiding Officer knows that on this list of 50 is
Izard County--I hope I am pronouncing it correctly--in Arkansas and
Lincoln County as well.
Following me speaking will be a Senator from Colorado, and
unfortunately Sedgwick County is included on this list.
The point I am trying to make is this: This is a pandemic that is the
worst we have seen in a century. More people are getting sick and more
people are dying than we ever imagined. We face this not just in big
cities like Chicago but in small towns and small counties in my State
of Illinois and everywhere.
I pointed out the Senators who have been recently on the floor, but,
trust me, this list includes a lot of other States even with Democratic
Senators. It makes no difference. The virus could care less.
With facing this at this moment in time, the American people would
rightly think that we would be doing everything imaginable, everything
within our power to address this pandemic in this rare 5-day session
leading up to a national election, but they would be wrong. They would
be wrong because that is not our priority in the Senate. The priority
in the Republican-controlled Senate is the filling of a vacancy on the
Supreme Court, and the nominee, Amy Coney Barrett, comes before us for
a vote on confirmation tomorrow after 5 days.
The reason it is controversial, the reason it has to be rushed from
the Republican point of view, the reason they are hell-bent to get this
done before the election is directly related to the pandemic. It seems
like an odd coupling. How did that happen? Well, it came down to this:
The filling of this vacancy in an extraordinary way, since we have
never--underline the word ``never''--in the history of the United
States filled a Supreme Court vacancy this close to an election--
actually, in the midst of an election--it has never been done--the
reason they are breaking all the rules, including the sacred McConnell
rule, which was announced 4 years ago, that lameduck Presidents--by his
definition, Presidents in their last year--should have no authority to
fill a Supreme Court vacancy--the reason they have decided to ignore
that sacred McConnell rule and go forward with this is because of one
day that is coming up: November 10.
You see, on November 10, the Supreme Court of the United States
considers the case of California v. Texas. It is a big deal on the
Republican side. The purpose of that case is for attorneys general in
Republican States and the Attorney General of the United States to
strike down the Affordable Care Act. They want to make sure that Amy
Coney Barrett has black robes on and is sitting in the Supreme Court
when it is argued so she can be there when the critical vote to
eliminate the Affordable Care Act occurs just a few weeks from now. If
they don't get this done by November 3, they are afraid of what might
happen. Something might get complicated and they couldn't get her on
the Bench on time.
If you think I am making this up, we have as a source for that
information none other than the President of the United States of
America--a President who never suffered an unuttered thought; a
President who generates dozens of tweets every day and tells us exactly
what is on his mind every waking moment. He made it clear to us that
when it came to Amy Coney Barrett, she was a priority. He promised long
ago: I won't put a Supreme Court Justice on the Court unless they will
join me in eliminating the Affordable Care Act.

So we knew that as a starter, and then he added as a grace note: And
I want to make sure this Justice is on the Court so if there are any
election contests, I will have nine Justices there.
Not subtle, is it?
That is why I said in the hearing and since that there is an orange
cloud over this nomination--an orange cloud that emanates from the
White House. And that is why we come here today, just hours before the
final vote, understanding what is at stake if the President has his
way, if the Republicans have their way.

[[Page S6456]]

If Amy Coney Barrett is on the Bench by November 10, then she will be
in a position to strike down a law which provides health insurance for
23 million Americans. There is the linkage I mentioned earlier.
In the midst of a pandemic, with 8 million Americans having been
infected; in the midst of a pandemic with over 225,000 American lives
lost; in the midst of a pandemic setting new records as this COVID-19
virus invades our towns and cities and counties and States again; in
the midst of this, the Republican leader, Mitch McConnell, says we have
no time to discuss COVID-19--no, but we have all the time we need to
make sure we have our Supreme Court Justice on the Bench when the
future of the Affordable Care Act is decided.
There have been a lot of questions as to whether Amy Coney Barrett is
qualified. She is impressive in her answers to questions, if she gets
around to answering them. I am sure that she has a head full of law.
You can tell it when she answers, which is rare. You can tell why she
was a law school professor and now a circuit judge.
But the purpose of our hearing was not just to figure out if she was
smart, properly educated, licensed to practice law. All of that aside,
the purpose of the hearing, from my point of view, was to try to
determine not what was in her head but what is in her heart when it
comes down to basic questions, because, you see, at the bottom of all
this is the Affordable Care Act and its fate and the fact that she has
published on more than one occasion her opinion of that law, and, not
surprisingly, it is negative.
I want to tell you in a moment--I want to get personal for a moment
about this Affordable Care Act before I talk about Amy Coney Barrett
and her philosophy.
I want to introduce you to a young man from the State of Illinois.
His name is Alex Echols. He is from Chicago. I met with him recently.
Big smile, right? Well, when he was 9 years old, two of his mother's
best friends were diagnosed with breast cancer and passed away before
they reached the age of 50. As Alex moved into high school, his mother
was diagnosed with breast cancer. Thankfully, she got treatment, and
today, 20 years later, she is still in remission. Later, in high
school, Alex lost his young cousin to leukemia. Shortly after that, his
aunt passed away from lung cancer.
Alex emphasized that all of these Black relatives and friends had
their cancer discovered at a late stage, demonstrating a discrepancy in
early screening for communities of color. The Affordable Care Act
helped to address this disparity by ensuring free preventive
screenings, including in private insurance.
Hear that. Ten years ago, when we passed this law, we ensured that
people could get private screenings--early private screenings for the
detection of a cancer in its earliest stage when it could still be
treated.
As fate would have it, when Alex turned 29, he was diagnosed with
non-Hodgkin's lymphoma. He was uninsured at the time, but thanks to the
Affordable Care Act, he was able to get enrolled and access the care he
needed. He received treatment at several hospitals in Chicago and
ultimately chemotherapy and a lifesaving bone-marrow transplant at the
University of Chicago Hospital. Today he is in complete remission. How
about that. He lives in Chicago with his wife and is active in
leadership training programs and advocacy.
He wrote me a note and he said: Senator, ``if it were not for the
Affordable Care Act and being able to gain access to healthcare at that
time, then I am not sure I would be alive right now to share my
story.''
Why do I tell you that story? Because the future of his healthcare
depends on filling this nomination to the Supreme Court and whether the
person who fills it is going to eliminate this law and protection or
protect it.
Here is another fellow I met. His name is Paul Marshilonus. I
remember meeting Paul because, like me, he has Lithuanian heritage. We
talked about it. I met him during an immigration event.
Due to complications of a knee condition, Paul Marshilonus was no
longer able to work at the Sears store, and he lost his employer-based
insurance when he was in his early sixties
Paul's wife used to worry about relatives who had cancer, and she
said to him: ``I hope that doesn't happen to me, because we can't get
insurance and we have nowhere to go.''
Then Paul received a prostate cancer diagnosis when he was 63--
unfortunately, 2 years too young for Medicaid. Thanks to the Affordable
Care Act, he got enrolled in the Cook County CountyCare Medicaid
expansion coverage.
I am happy to say that because I joined with Toni Preckwinkle, the
president of the Cook County Board, to ask then-President Obama to give
us a waiver so we could extend Medicare coverage early on under the
Affordable Care Act. He gave us the waiver. We covered 120,000 people
with Medicaid protection, and one of them was Paul. He was able to
access the care he needed, including 45 radiation treatments, totaling
an insurance cost of $175,000.
Today, Paul is cancer-free. He still depends on the Affordable Care
Act for preventive screenings under Medicare. He currently takes seven
medications--blood thinners, allergies, blood pressure, metformin. If
the ACA were to be eliminated, he would be charged more for those
prescription drugs.
That is another thing we did with the Affordable Care Act. We reduced
the cost of prescription drugs for people under Medicare. When it is
eliminated, that reduction will disappear.
If Republicans succeed in terminating the Affordable Care Act at the
Supreme Court, Americans like Paul will pay the price.
So you wonder why we are coming to the floor with these speeches late
on a Sunday afternoon. Because these people asked us to. They asked us
to come up and stand up for them and say what they can't say on the
floor of the Senate. That is why we are here in the midst of a
pandemic. That is why we are here--a nation that values healthcare as
much as anything else we have as American citizens.
That is why, when we asked Amy Coney Barrett some basic questions, we
expected to at least get some indication of an answer. She wouldn't
answer basic questions. Senator Leahy was there; he was following it.
What we saw was practiced avoidance of ever telling us the basics.
You know, she styles herself as an originalist, and I will talk about
that in a moment. An originalist supposedly values the Constitution--in
fact, depends on it; finds guidance in it that other people can't see
in the words, they find in the words; really delves into the
Constitution; honors it; swears by it. Yet when we asked about basic
constitutional principles--basics, written in the words of the document
itself--time and again, she would say: I really wish I could answer,
but, you know, a case may come before the Supreme Court someday on
that, and I am just going to have to duck that question. She wouldn't
tell us whether the President of the United States could unilaterally--
unilaterally--delay the Presidential election. How about that?

There are only three separate references in the Constitution to that
deadline and date for a Presidential election, and she couldn't answer
that question: Can the President unilaterally delay an election?
She couldn't tell us whether there should be a peaceful transfer of
power from one President to the next.
Please, Professor, Judge, you know in your heart of hearts that
without a peaceful transfer of power, you don't have democracy.
When it came to the issue of voter intimidation--why did we raise
that? Because there was a call to arms from some of the militia groups
and others in this country to harass voters.
She wouldn't tell us whether she thought voter intimidation was
unlawful. She wouldn't even answer a question I asked her in writing as
to whether President Trump was legally accurate in saying: ``I have an
Article II, where I have the right to do whatever I want as
president.''
``Whatever I want as president.''
Three separate branches, balance of power--I thought that was in the
Constitution the originalists venerate. It was not enough for Amy Coney
Barrett to answer the question. She just said: It wouldn't be
appropriate. You know, a case may come before us someday--you never
know.
That is troubling. It is not a question of respecting her
prerogatives as a future Justice; it is a question of dodging

[[Page S6457]]

a question over and over and over again.
At one point, Senator Kennedy, who will be speaking here shortly,
asked her about climate change. She said: I really don't have a view on
that. You know, I hadn't really thought about climate change.
She is 48 years old, a lawyer, a law school professor, a circuit
judge, a mother of seven, and it never crossed her mind about climate
change, as to even whether it exists?
Judge Barrett refused to comment on the landmark Supreme Court
decision in Griswold v. Connecticut. That is the case in which the
Supreme Court confirmed that there is a right to marital privacy and
that criminalizing contraception violated that right. It was a
fundamental decision that led ultimately to Roe v. Wade. She wouldn't
even opine as to whether or not that was properly decided.
She wouldn't commit herself--to recuse herself from election disputes
involving President Trump even though his comments at a minimum have
created an appearance of partiality that warrants her recusal under the
judicial recusal statute.
I asked her in the 30 minutes initially that we were given to explain
a 37-page dissent in Kanter v. Barr. This was a case where a fellow
named Rickey Kanter ended up defrauding the Federal Government of
millions of dollars. He was convicted of mail fraud. He ended up
advertising that the cushions he had for shoes had been approved by
Medicare. They had not. He then started selling them in volume across
the United States, and he was caught at it red-handed. He ended up with
a massive, multimillion-dollar civil settlement, with a substantial
fine and penalty and 1 year in Federal prison.
He came out after his year in Federal prison and said: I will tell
you what is unfair. After all I have been through, I can't buy an AK-
47. What is wrong with my Second Amendment rights?
That was the case--Rickey Kanter's Second Amendment rights to buy a
gun.
So he brought this case before a three-judge panel on the Seventh
Circuit, where Amy Coney Barrett was presiding with two other judges,
and said: I want to assert my Second Amendment rights. It is just not
fair, after what I have been convicted of, to say that I should be
denied the right to buy a gun.
Amy Coney Barrett spent 37 pages explaining why he was right, and the
other two judges on the case went the other way in a hurry--both
Republican appointees, I might add. But she stuck to her guns, so to
speak, and said that as far as Rickey Kanter was concerned, it was just
fundamentally unfair, you see, because he was just convicted of a
felony, not a violent felony. Really?
Then she went a step further in the issue of voting rights. She
really got down to the basic question: Could you be denied to buy a gun
if you ``just committed a felony,'' or could you be denied the right to
vote if you just committed a felony--not a violent felony in either
case.
Well, she reached the conclusion that the right to bear arms and the
right to vote were two different kinds of rights; that the right to
bear arms was individual, so Rickey Kanter, even if he committed a
felony, could not be denied a gun. But she went on to say that when it
came to the right to vote, that was a ``civic'' right and that as a
consequence of it, if you committed a felony--not even a violent
felony--you could lose your right to vote. What an amazing conclusion.
That is the originalist's mind at work
I had to remind her that she lives in the State of Indiana. Guns flow
across the border from Indiana into Illinois and the city of Chicago.
We have a violence problem in that city that is serious and deadly
every single darn weekend. Many of those guns--they trace them,
incidentally, the Federal agencies do--20 percent of those guns come
from her State of Indiana and why many of them--criminals go to
Indiana, and many come from gun shows where there are no background
checks. So you know what happens. The gang bangers and thugs drive over
to Indiana to a gun show, fill up the trunk of a car with guns, and
head to the streets of Chicago.
I said to her, she had to know this, living in South Bend, IN, with
her kids growing up there. If she knew that, how could she be on the
side of making it easier for anybody to buy a gun who has been
convicted of a felony? But she did. Her originalism was at work.
I want to say a word about originalism. Originalism is not just some
foreign language you pick up on Babbel. It is a mindset. It is a
mission statement. It is the belief that original text in the
Constitution reveals all the answers to today's challenges.
Now, all of us here have taken an oath to support and defend the
Constitution. I don't take an oath lightly, and I am sure none of my
colleagues do either. But the question is about that document itself.
Does it have in its entirety what we need to know about our rights
today in dealing with the constitutional issues that come before us?
Let me mention to you what the mayor of Chicago said a week ago when
she was asked about originalism.
Lori Lightfoot said: ``Since the Constitution didn't consider me a
person in any way, shape or form because I'm a woman, because I'm
Black, because I'm gay, I am not an originalist.'' Lightfoot said, ``I
believe in the Constitution. I believe that it's a document that the
founders intended to evolve, and what they did was set the framework
for how our country was going to be different than any other, and
whatever was there in the original language. But originalists say that,
`Let's go back to 1776 and whatever was there in the original language,
that's it.' That language excluded, now, over 50 percent of the
country. So, no I'm not an originalist.''
So let's be very honest about that Constitution. Women could not vote
in that original Constitution. African-Americans were not even counted
as whole people; they were three-fifths of a citizen. And the list goes
on.
I still venerate it for creating the democracy we enjoy today, but I
don't believe that the Founding Fathers could possibly intuit where we
are in America at this moment. What is at stake with originalism is
this battle with judicial activism. What is behind this battle with
judicial activism goes back to this moment.
Here are the words of historian Heather Cox Richardson: ``After World
War II, under Chief Justice Earl Warren, a Republican appointed by
President Dwight Eisenhower, and Chief Justice Warren Burger, a
Republican appointed by Richard Nixon, the Supreme Court set out to
make all Americans equal before the law. 1950s, they tried to end
segregation through Brown v. Board of Education, prohibiting racial
segregation in public schools. In 1965, they protected the rights of
married couples to use contraception. In 1967, they legalized
interracial marriage. In 1973, with the Roe v. Wade decision, they
tried to give women control over their own reproduction by legalizing
abortion.
``The Justices based their decisions on the due process clause of the
14th Amendment, passed by Congress in 1866 and ratified in 1868 in the
wake of the Civil War. Congress developed this after the legislatures
in former Confederate States passed `Black Codes' severely limiting the
rights and protections for formerly enslaved people. Congress intended
for the 14th Amendment to enable the Federal Government to guarantee
that African Americans had the same rights as White Americans, even in
States where legislatures want to keep them in some form of quasi-
slavery. Justices in the Warren and Burger Courts used that same
amendment to protect civil rights a century later. They argued that the
14th Amendment required that the bill of rights apply to state
governments as well as the federal government. This is known as the
incorporation doctrine, but the name matters less than the concept:
states cannot abridge the individual rights any more than the federal
government. This doctrine dramatically expanded civil rights.
``But from the beginning, there was a backlash against New Deal
government by businesses who objected to the idea of federal regulation
and the bureaucracy it would require. As early as 1937, they were
demanding to end the active government--active government--and return
to the world of the 1920s where businessmen could do as they wished,
family and churches managed social welfare and private interests
profited from infrastructure projects. They gained little traction; the
vast majority of Americans liked the new system.

[[Page S6458]]

But the expansion of civil rights under the Warren and Burger Courts
was a whole new kettle of fish.''

What I am sharing with you here is an amazing summary of Heather Cox
Richardson. ``Opponents of the new decisions insisted the court was
engaging in''--hold on tight--``'judicial activism''' in trying to
strike down discrimination and bigotry--``taking away from voters the
right to make the decisions about how society should work.'' They said
Justices were ``legislating from the bench.''
Heard that before?
``They insisted the Constitution is limited by the views of its
framers, that the government can do nothing not explicitly written in
that 1787 document. Faced with confusion over the exact meaning of the
Constitution, some revised their position in a few ways. One was to
rely on textualism or originalism, the idea that a law says exactly
what it says and nothing else. This is the foundation for today's
`originalists' like [Amy Coney] Barrett.''
When you hear this debate, ``I am just following the Constitution. I
am just following the text. I want to go to the original document. I
don't want to see judges who are activists,'' it had its origin in the
1950s when two Justices on the Supreme Court appointed by Republicans
stepped up and said: It is time for us to be serious about civil rights
in America. Some politicians and those who support them have never
gotten over it, and we are still debating it today.
Let me conclude. I see my colleagues waiting patiently. I am sorry it
took a long time, but this is as serious as it gets, as far as I am
concerned.
Let me conclude by saying this: There are so many issues of critical
importance at risk in what we are about to do. The 6-to-3 conservative
majority in the Supreme Court will challenge not only the future of the
Affordable Care Act but voting rights and the outcome of an election,
the right of privacy and choice, civil rights, environmental
protections, marriage equality, worker protections, the fate of
Dreamers, gun safety laws, and so much more.
We asked Amy Coney Barrett repeatedly, many of us did: Because the
President has said he put you on the Court with a mission, and you are
denying that took place, will you at least promise us that you will
recuse yourself from cases directly relating to these issues? And she
said she might, she might not; there was a process she might follow.
There is something else she could do. You see, if this Senate goes
forward and approves the nomination of Amy Coney Barrett, she has one
last decision before she becomes a Supreme Court Justice. She gets to
choose the day when she is sworn in. I would like to suggest to her,
for the integrity of the Court and to remove any possible cloud over
her nomination created by the President's tweets and promises, I would
like to ask her to pledge to the American people that whatever the
Senate does, she will not take the oath of office until a new President
is sworn in. If it is a reelection of President Trump, so be it. If it
is Joe Biden, so be it. But if she will wait and absent herself from
any election contest or debate on the Affordable Care Act, it will
start to remove this cloud of doubt, this orange cloud of doubt which
is over her nomination.
I am going to stand up for the constituents I have talked about today
and so many others whose futures hang in the balance, and I will vote
no on Judge Amy Coney Barrett.
I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.