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

[Congressional Record Volume 166, Number 184 (Sunday, October 25, 2020)]
[Senate]
[Pages S6518-S6532]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Nomination of Amy Coney Barrett

Mr. President, the Senate used to be a body that valued
bipartisanship, deliberation, and compromise--a body that balanced the
demands for debate with the demands for action. But that was in the
past. The Senate no longer is the body that examines, considers, and
protects our democracy.
The Senate I see now is ruled by partisanship and uncompromising
ideology, and in their rush to jam through a divisive nomination days
before the election and before the American people get a chance to have
their say, the majority leader and the Republican Party are inflicting
procedural violence on the Senate itself and the American people to
achieve their ideological objectives.
In fact, many Republicans bragged that they had the votes to confirm
the President's nominee before the nominee was chosen. The world's
greatest deliberative body, with the constitutional responsibility for
advice and consent and a special responsibility to advise and consent
on the highest Court in the land, decided that they were A-OK with
whatever Donald Trump decided, that their role in advice and consent
was to basically agree in advance and to abdicate their role.
Now, we are not a parliamentary system. We are a separate, coequal
branch of the government, and we are supposed to have our own views.
The Federalist Society is not a branch of government. Donald Trump
should not run the U.S. Senate. Nobody outside of this Chamber should
be in charge of us, and to announce that you are for a nominee, sight
unseen, is an abdication of your role.
Why would you even run for this job? Why would you even run for this
job? Just go be the executive vice president of the Federalist Society.
If you don't believe in the importance of the legislative branch, don't
be a legislator.
We are less than 2 weeks away from the most consequential decision,
election, of our lifetimes. Almost 60 million Americans have already
voted. And there are legitimate concerns around an election dispute,
and that is because of the President. The President has proposed
postponing the election. He has threatened to challenge the results if
he doesn't win. He has called it rigged in advance. He has refused
repeatedly to commit to a peaceful transfer of power.
He has openly admitted that one of the reasons that he wanted to
hurry in confirming this nominee--one of the reasons he wanted to hurry
in confirming this nominee--is, in case there is an election dispute,
to referee which votes get counted.
What is funny about this--not funny like hilarious funny but kind of
weird funny--is that that is the kind of thing that, if I said that you
are just putting this person in to referee an election dispute, I would
have expected the people on the other side to say: How dare you make
that accusation?
But, to the contrary, the junior Senator from Texas actually said
that is the reason they have to hurry: We had better get her in so she
can rule against counting votes--in wherever the Democrats are counting
their votes. That is what he said. This isn't a partisan accusation. It
is literally what Ted Cruz said.
The President of the United States expects his nominee, Judge
Barrett, to be Justice Barrett tomorrow night, to assist him with
ensuring reelection, if necessary. These statements by the President
should alarm every Member of this body--Democrat and Republican. But,
actually, it didn't alarm certain Members. They found that to be a
justification for hurrying.
Disturbingly, in an exchange with the Senator from New Jersey, Judge
Barrett would not say that President Trump should commit to a peaceful
transfer of power. When the Senator from California asked her if the
Constitution gives the President the power to delay an election, Judge
Barrett said that she didn't want to give off-the-cuff answers, even
though the Constitution does not, in fact, give the President that
power.
This is part of a pattern. I will take you through some of this
stuff. Anytime there is a live controversy--and by ``live controversy''
it is, basically, anytime Donald Trump says something--she is unwilling
to cross him. She is unwilling to cross him.
Our judges are supposed to be independent and unbiased interpreters
of the law. That means Judge Barrett should know what the law says and
how to apply it, especially when the President threatens to break it in
order to hold onto political power. But she dodged these important
questions and refused to defend democracy. I have real doubts about her
ability to serve our Nation impartially, especially in the case of an
election dispute.
There was a 4-4 decision which allowed a lower court decision to be
upheld regarding--it is an election dispute in Pennsylvania. I won't
get into great detail. The litigants now, because it was 4-4, are going
right back to the Supreme Court, figuring that Amy Coney Barrett will
rule for them, in the middle of this election.

This isn't some theoretical, wild-eyed, internet-driven paranoia.
This is happening. They went back to the Supreme Court to say: How
about now? And I would be a little surprised if they don't rule 5-4 on
behalf of Republicans who want to restrict the vote.
In moving forward with the confirmation, the Senate Republicans and
the majority leader are going against the precedent they set 4 years
ago.
Look, I understand. I am reasonably good at politics. I know that
hypocrisy abounds. I understand that hypocrisy abounds. I understand
that, if we take our case to the American voter and say, ``They are
hypocrites,'' the American voters are going to shrug their shoulders
and say, ``You're all hypocrites.'' I get that.
But I am a little bit old-school in the following way: I come from a
legislature, and I believe your word should be your bond. Otherwise,
this kind of place won't work.
When Lindsey Graham said, ``Use my words against me,'' I actually
believed him. I have worked with Lindsey before. I have had dinner with
Lindsey. I sort of personally like him. That probably gets me in tons
of trouble politically.
But I just guess I thought that, if I am coming from the Hawaii
Legislature, where your word is your bond, that is the most
foundational rule of politics. I remember when I was first elected in
1998. The National Conference of State Legislatures, this training body
for legislators, used to issue cassette tapes about how to be an
effective legislator.
And I remember this. The first tape, I would stick it in my Nissan
truck, and I listened to it every day--Roz Baker. Your word is your
bond. That is the most important coin of the realm.
And I get that. Look, most of the people in this body are pretty
smart. So they are going to use their ample brains to justify their new
position. But let's be clear: This is the most rank hypocrisy I have
ever seen in anything politically, and it is one of the most important
things that I have ever seen.
It is not a trivial thing that you held up Merrick Garland. Now, do I
go around saying that on the cable shows and whatever? No, because I
know, outside of this body, nobody cares. Inside of this body, we are
supposed to care

[[Page S6519]]

about stuff like that. Inside of this body, your word is supposed to
count for something. It is not supposed to be about the maximal use of
power in tricking each other and tricking the public.
Here is what Mitch McConnell said about Merrick Garland: ``The
American people should have a voice in the selection of their next
Supreme Court Justice. Therefore, this vacancy should not be filled.''
The Senator from South Carolina said:

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 let the next President, whoever it might be, make that
nomination,'' and you could use my words against me and you'd
be absolutely right.

The Senator from Texas said: ``The American people deserve to have a
voice in the selection of the next Supreme Court Justice.''
It is not just my Republican colleagues who have reversed their
position. It is Judge Barrett herself who actually warned against
making changes on the Court in an election year. She said:

We're talking about Justice Scalia, the staunchest
conservative on the Court, and we're talking about him being
replaced by someone who could dramatically flip the balance
of power on the Court. It's not a lateral move.

You know what else isn't a lateral move? Ruth Bader Ginsburg for Amy
Coney Barrett. Our Democratic institutions depend on the trust of the
American people, and we cannot find that bond of trust if we don't have
it amongst ourselves.
It is worth mentioning here that Senate Republicans are also choosing
to confirm Judge Barrett instead of addressing the pandemic. You know,
that is another thing that sort of sounds hypocritical because maybe I
am exaggerating it. But, no, that is actually true.
Mitch McConnell is very clear. He didn't want a COVID bill on the
floor because he is worried that it would push this thing past the
election. So it is really clear, right? He said--I think it was in
May--he didn't feel a sense of urgency. He basically sat back and let
Mnuchin and Pelosi negotiate, even though whatever they come to will be
blown up here because he doesn't have the votes for hardly anything.
But let's be really clear. His priority is judges. His priority is
always judges. It is like a joke here. We fly in. A lot of us fly out
on the weekends. When we arrive, we say, What is on deck for this week?
And everyone says: Nominations. You have a circuit judge. We have a
district judge. We have another district judge. How many is it? Oh, it
is five judges this week, no legislating going on.
That has become the way this place operates. We are not the world's
greatest deliberative body. We are just like a little factory that
approves Federal judges, and that is how Mitch McConnell wants it.
It is especially egregious when so many people need so much help.
This is a world historic event. You have 220,000 people dead. You have
about 1,000 people dying a day. You have businesses closing forever.
You have economic extinction all over the country--red States, blue
States, rural areas, urban areas, suburban areas. The highest priority
for Mitch McConnell is stacking the courts. That is really the game for
them.
It is important to know who Judge Barrett is. I want to be really
clear--she seems super pleasant. She is obviously incredibly
accomplished academically. None of this is personal for me. But she was
groomed by this organization called the Federalist Society.
We need to understand who they are and what they do. They basically
saw that they had an opportunity to start to identify and groom and
place young ideologues. Those are the two key words. You have to be
young, and you have to be pretty ideological, and then you are in the
Federalist Society, and then you can get a district court job. Maybe
you are going to be a prosecutor first, or maybe you are going to be a
district court judge, or maybe you are going to run for office. But the
whole deal is, this is their farm team.
The Federalist Society has very specific views--socially
conservative, anti-LGBTQ, super anti-choice. Importantly, they want to
absolutely gut the regulatory state because where their money comes
from is not primarily people who care about those social issues. The
money comes from polluters. That is what is going on here.
She comes from the Federalist Society. You know, before Trump, nobody
would have ever thought to provide a list to the public of the
potential Supreme Court Justices that you would nominate. That was
unheard of. You are supposed to keep your powder dry and try to be down
the middle, if you can.
Obviously, a Democratic President leans left, and a Republican
President leans right, but that is why you got kind of a mix of
ideologies, even though some of these people who, you know, after 20
years on the bench, you can't even remember whether they were appointed
by a Democrat or Republican. But what has happened in the last 10 years
or so is you can definitely tell who has been appointed by a Democrat
and you can definitely tell who has been appointed by a Republican.
All of these votes are turning into partyline votes in the districts
and the circuits and now on the Supreme Court. Nobody is really making
up their own minds. She came from the Federalist Society. Look, the
Federalist Society doesn't appear to be doing anything illegal. They
are just working the system.
It is worth asking whether this is the way we want to have our
Supreme Court Justices selected. You have a whole political party who
preapproves anybody on a list without even knowing who is in it but
also without even having a hearing. We do know how she is going to
rule, unfortunately.
The reason the Federalist Society pushed so hard for Judge Barrett is
that she is an originalist. This means that she pledges to interpret
the Constitution as she determines the Framers and the public intended
at the time that the Constitution was written nearly two and a half
centuries ago. To do this, she looks at world as it existed in 1787 and
the values from that time.
We are talking about a time when full citizenship was limited to
White men, when most Black people were enslaved and considered
property, when women had no rights protections, being gay was
punishable by the death penalty. That is what she looks to in deciding
how our country should be governed today.
The simple fact is, you cannot be an originalist and believe in full
equality. You cannot look only at the Framers' intent and believe in
protecting the rights of women, people of color, Native-Americans, and
the LGBTQ community.
The two legal views are incompatible. Striving for our Nation's
founding promise of true equality for all or equal justice under the
law requires leaving our outdated prejudices behind. The beauty of our
country is that we have the capacity to improve, to change each
generation since our founding has made this place better. Originalism
ignores all of that.
Precedent is the reason schools are integrated. It is why anybody can
marry the person that they love. It is why 20 million more people have
healthcare. It is why women have the right to access
reproductive freedom. It is why we have cleaner air and cleaner water.

Those principles are not written into the Constitution, but the
progress we have made in statutory law and in jurisprudence is
protected over time. Originalists are willing to throw those things
out. That is why originalism is so dangerous in a courtroom, especially
the Supreme Court in 2020. We should be very wary of those who wish to
take us back to a place where only some are free. As we struggle to
perfect our Union, her nomination cements a conservative majority and
puts a lot of our hard-fought progress in jeopardy.
The Court will hear cases that test our values and test our
commitment to equality. Subscribing to originalism is just another way
to say that Judge Barrett will prioritize a handful of elite and
wealthy Americans. Just like other jurists handpicked by the Federalist
Society, it is all but guaranteed that she will decide in favor of
corporate power and the wealthy most of the time.
What we need is a Justice who is committed to protecting and
upholding the rights of every American, regardless of race, religion,
gender, national

[[Page S6520]]

origin, or sexual orientation. While Judge Barrett has been evasive in
the hearings, her record is not unclear.
I would like to walk through her record on civil rights, LGBTQ
rights, reproductive rights, and climate. Let's start with civil and
voting rights. Being named a Supreme Court Justice is an honor. A
Justice should be a defender of human rights and civil rights, and a
Justice must have an unbreakable commitment to fight for what is right
and to lead the pursuit in making America more free.
Judge Barrett has written that the entire 14th Amendment is
``possibly illegitimate.'' Yes, you heard that correctly. Judge Barrett
questions the legitimacy of the very amendment that is the cornerstone
of civil rights and equal protections in this country.
The 14th Amendment was proposed during Reconstruction following the
Civil War when the Union was deciding how to readmit Confederate States
and restore their representation to Congress. One of the conditions for
allowing them to reenter was passing and ratifying the 14th Amendment.
The theory that she uses to challenge its validity is that the South
was strong-armed in the supporting it, so the amendment never truly
earned the support of the American people.
That is crazy. There is nothing in the law to justify this position,
and there never has been. The Southern Poverty Law Center calls this a
White supremacist myth, perpetrated by Confederate sympathizers, the
KKK, and other extreme rightwing groups.
It is unfathomable to think that anybody in the year 2020 would be
opposed to the simple concept that every American should be treated
equally under the law. It really should disqualify Judge Barrett from
the Supreme Court seat.
At the same time, she has repeatedly overlooked discrimination in the
workplace, concluding that separate can be equal. I mean, this is basic
civics. I have two teenagers. This is the stuff we learned as bedrock
foundational American history in civics. She is saying separate can be
equal. I read this opinion. She said that using a racial slur in the
workplace does not necessarily create a hostile work environment for
the object of that slur.
Try to fathom a situation where someone is calling someone a racial
epithet but that is not hostility in the workplace. Her brain is big; I
don't doubt it. But it is a pretty extraordinary stretch of a pretty
extraordinary brain to try to assert that saying something racist to
someone in the workplace is not a hostile act. It is definitely a
hostile act. Maybe I just lack the educational attainment to understand
how you get so smart that you lose all of your common sense and all of
your decency and all of your humanity and you forget what you learned
in 6th grade and 9th grade and 12th grade.
During the hearing this week, Judge Barrett declined to agree that
intimidating voters is illegal. I mean, this isn't a matter of
interpreting constitutional law. This is Federal statute. She also
refused to say whether she believes voter discrimination still exists.
She refused to say whether voter discrimination still exists. It is
like worse than I thought. Right? I am a Democrat. I didn't want
anybody who didn't share Ruth Bader Ginsburg's views to replace her.
But I am alarmed. And because of her extraordinary skill and because
she comported herself well in the hearings, I don't think people really
know how dangerous this is about to be. I think people are in for a
rude awakening in terms of what this Court is about to do to roll back
the clock on some stuff that we pretty much think we already agree on:
gay rights, 70 percent of the public, like we have moved on;
reproductive choice, 70 percent of the public, we moved on; the
Affordable Care Act, after 15 years or whatever it is, 12 years of
fighting about it, we kind of moved on. Now, you have Republicans
making ads saying, I am going to protect your preexisting conditions.
The American public has a consensus on a number of things. I think
all of these people are prepared to undo that consensus. Here is what
is so alarming--maybe it was this morning or maybe it was yesterday--
the majority leader, Leader McConnell, after giving, to me, what was a
weird speech--not substantively. I knew the speech he was going to
give, essentially blaming Harry Reid for everything. Fine. I mean, I
disagree with it, but I don't begrudge him a partisan speech in this
context.
But the way he did it, he turned his back--I mean, you are supposed
to address the Chair, right? Some of us move around. But this was
weird. He turned his back on the Democratic side of the aisle and just
stared at his caucus and gave them a pep talk and said--I am going to
paraphrase right now, but it was basically, The stuff we have done over
the last 4 years is going to be undone in legislative terms as a result
of coming elections, but what we are doing on the Court will last a
lifetime.
I get the point that he is making because he is just measuring his
power. But everybody should listen to what he is saying. He is
promising that it doesn't matter what we do over here because they are
going to undo it over there.
This man who presents himself as an institutionalist is deciding that
the U.S. Senate's role is to just stack the judiciary and stop
legislating, and that is alarming.
I want to make one sort of final point. I really worry about the
Senate itself.
I was so thrilled to be here. The circumstances of my entering the
Senate were tragic, actually, because of the death of my predecessor.
But I am not going to lie--I was being sent to the world's greatest
deliberative body. It is like a promising high school basketball
player, like being the 12th man on the LA Lakers. That is how I felt. I
walked in, and I thought: This is the big show. This is the place where
we solve America's problems.
I have seen the inexorable destruction of this institution because of
a lack of restraint on the Republican side. I actually would love it if
the blame were equally shared. It would be easier for me because I
don't want to sound like that. I don't get anything out of that.
I imagined these groups of people--and it wasn't always the moderates
right in the middle. Nowadays, the only people who are kind of cutting
deals in the middle are the moderates. But back in the day, it was
Teddy Kennedy and Orrin Hatch. It was Danny Inouye and Ted Stevens. And
now there is not even a desire to do big things here. There is a total
lack of ambition to solve America's problems here, and there is a total
lack of restraint when it comes to the exercise of power.
So the old Senate is gone. The old Senate is gone, and this body has
reinvented itself over and over and over again, and it is going to have
to do it again. But that old Senate where you could pour a scotch after
yelling at each other on the floor, it is gone.
I can't tell you the number of times I have invited my Republican
colleagues to come down to the floor and have a debate. We don't even
argue anymore. They go on FOX News. We go on MSNBC. We line up. We
smash helmets. They win 52 to 48.
So what is happening in this time period, which is to say in the next
24 hours, is sort of the culmination of Leader McConnell's philosophy
about what this place should do, which is, we do judges. We don't do
big things, we don't even try to do big things, and we never fail to
maximally use our power. That is a different model for our legislature.
Frankly, it is how a lot of legislatures work; it is just not the way
this place used to work. But if that is the model, then Democrats are
going to have to wrap their minds around what has happened because we
can't be the only ones showing any restraint, right, because that is
just a recipe for getting rolled and rolled and rolled, and that is a
recipe for entrenching minority rule.
I understand that the structure of the Senate is what it is. It is
enshrined in the Constitution, and far be it from me to argue that
small States shouldn't get two Senators. Small States should get two
Senators. Whether you have 1.5 million people or 50 million people in
your State, you should get two Senators. I am for that. But the way
this is starting to work is that elected representatives who
collectively have gathered 10 million, maybe 12 million, maybe by the
year 2030, 30 million fewer votes than the minority party, are going to
stack the judiciary and entrench minority rule.
So something has to give. Yes, I know there are elections that can
resolve this, and sometimes when things

[[Page S6521]]

feel stuck, maybe they are not as stuck as they feel, but the shoe is
going to be on the other foot.
As my good friend Claire McCaskill, the former Senator from Missouri,
says, you know, the door swings both ways in Washington.
So I just think it is important for every Member of this body to
understand that the door swings both ways in Washington. If we are
going to rebuild this institution and rebuild the trust that the public
has in their elected representatives and the judiciary and public
leaders, then we are going to have to be trustworthy with each other.
I feel betrayed. One of the most pleasurable aspects of working in
this place when I first got here, coming from an almost entirely
Democratic State, was my ability to work with Republicans. It was a
unique professional challenge for me. I am looking at the Presiding
Officer, and we did some pretty good work together, and it was a
pleasure. That was fun, and that was the way this place should work.
I worry about how frayed those relationships are, and I worry about
the fact that there is this kind of principle that all is fair in love
and war. These guys are about to do something even worse, so you might
as well punch them in the mouth preemptively, and the kind of rah-rah
speeches that I believe go on in the Republican conference
characterizing us as promising to do unusually aggressive things, and
therefore they might as well get it over with in advance. By the way,
Harry Reid did X, Y, and Z, and what about Robert Byrd? And they get
told a story about how awful we are, and then that justifies their
breaking their bond with us.
I understand that a lot of what happens here is a result of
polarization across the country--I would argue asymmetric
polarization--but people matter, relationships matter, and trust
matters. I have never felt so clear that we as Members have been
betrayed; that the arguments that were made in favor of holding up
Merrick Garland were BS, and we have a long way to go to rebuild this
institution.
I yield the floor.
The PRESIDING OFFICER (Mrs. Capito). The Senator from Connecticut.
Mr. MURPHY. Madam President, first, let me thank the Presiding
Officer, the staff on the floor, and the staff in both caucus rooms,
for putting up with a very, very late night to take the floor just past
3:30 in the morning. I thank my friend Senator Schatz for picking up
about an hour and a half, from 2 until 3:30, and I know that Senator
Kaine will be joining the floor shortly.
This is an exceptional night because we are living in exceptional
times. We are likely to see tomorrow a record number of COVID cases
diagnosed in this country. I know that it now feels like the new normal
7, 8 months into this pandemic, but this is unthinkable that our
country has been ravaged by a virus that less than a year ago no one
had ever heard of.
Sometime in November or December of last year, COVID-19 started
popping onto the international public health radar screen in China, and
a few months later, it was here in the United States. Most countries
were able to come up with a plan to control, contain, or essentially
eliminate the threat of COVID-19 in a matter of months. The United
States was not, because of an abysmal failure by this administration.
We are now living with a third wave of COVID. As we speak on the
floor tonight, we are looking down the barrel of 300,000 Americans dead
by the end of this year. No one is safe. There are millions of kids who
can't go back to school, businesses that have gone under, and 10
percent of our workforce that is out of work.
This is an exceptional night because we are living in an exceptional
moment, and I will talk over the course of my remarks about the
President's failure to meet the moment and to be able to rescue this
country from this pandemic--in fact, his daily actions now to actively
spread the disease. There is no one who is doing more to spread COVID-
19 across the country today than the President of the United States,
who is holding daily superspreader events, who is shaming individuals
who wear masks, and who is deliberately trying to reduce the number of
tests that are done in this country.
I also want to acknowledge that the vote that we have pending, ready
for action tomorrow, is directly connected to the question as to
whether this country is going to be able to turn the corner on COVID,
because the first case Amy Coney Barrett will likely hear after she is
confirmed by this body, as it looks like will happen tomorrow, will be
a case on the Affordable Care Act--a case that asks the Supreme Court
to invalidate the entirety of the ACA.
It draws issue with one specific provision in the ACA, but the remedy
it seeks--the remedy the President of the United States is asking for--
is the complete invalidation of the Affordable Care Act. That is 23
million people losing healthcare. That is 130 million people all across
this country who have preexisting conditions potentially losing
protections that, under the ACA, prohibit insurance companies from
charging them more.
I have heard my Republican colleagues come down to this floor and go
on television and give press conferences in which they suggest that
those of us who say the Affordable Care Act is about to be struck down
due to the confirmation of Amy Coney Barrett are engaging in hyperbole,
that we are exaggerating. Well, I have been in the Congress for the
last 10 years, the House and the Senate. My eyes haven't been closed. I
have watched an unrelenting campaign from the Republicans to try to
repeal the Affordable Care Act.
When I was in the House of Representatives, the call from the
Republicans was to repeal and replace. The Presiding Officer will
remember this because I think we served together during that period of
time. The idea was, of course, that the Republicans didn't like the
Affordable Care Act, but they acknowledged that they couldn't get rid
of it with nothing else to replace it. Now, that in and of itself was
an acknowledgment of the merits of the Affordable Care Act. The
Republicans may not have liked the details, but given the fact that
they were not supporting repealing it but supporting repealing it and
replacing it with something else, they knew the American public would
not allow for the Affordable Care Act to disappear and have nothing
else to stand in its place.
We waited month after month and year after year for a replacement
plan to be offered by the Republicans. We waited month after month and
year after year. That replacement plan never arrived. The closest we
came to seeing a replacement plan was in the summer of 2017. As we were
debating its repeal here in the Senate shortly after the election of
Donald Trump, Speaker Ryan, then still in charge of the House of
Representatives, presented a replacement.
The problem is the replacement was worse than simple repeal. The
Affordable Care Act covers around 23 million individuals, and the
Congressional Budget Office said that Speaker Ryan's replacement plan
would have resulted in 24 million people losing healthcare, going
backward from the status quo ante.
Seventy different times Republicans, either in the House or the
Senate, tried to repeal all or part of the Affordable Care Act. You may
say: Well, that sounds unfair. It is not fair to create an equivalency
between efforts to repeal all of the Affordable Care Act and efforts to
repeal just some of the Affordable Care Act.
OK, on 31 different occasions, Republicans tried to repeal the
entirety of the Affordable Care Act--31 times, which is a lot--with no
replacement that would have covered everyone that receives coverage
under the Affordable Care Act, with no meaningful effort to protect
those who have preexisting conditions.
My eyes were open to that. My constituents were watching all of that.
We saw how Republicans, 31 times, tried to repeal the Affordable Care
Act.
I have listened to Republicans out on the campaign trail. I have
watched what Republicans have said to the press and to their
constituents. We are not blind. We know that Republicans, for 10 years,
have been trying to repeal the Affordable Care Act. We know that for 10
years Republicans have not had a replacement that would insure anywhere
close to the number of people insured by the Affordable Care Act or

[[Page S6522]]

provide protections to people with preexisting conditions.
So don't tell us that we are overhyping this desire by Republicans to
take steps in this body that would lead to the repeal of the Affordable
Care Act because that is the lion's share of what Republicans have been
doing for the last 10 years.
In the summer of 2017, Republicans mounted their last stand to get
rid of the Affordable Care Act. They had control of the House, the
Senate, and the Presidency. This was the moment to do it.
In fact, most of us expected that it was a foregone conclusion,
having told the American public in the runup to 2016 that, If you elect
us, we will repeal the Affordable Care Act, and having won the House
and the Senate and the Presidency, despite, by the way, getting less
votes than Democratic candidates for the Senate and the House and their
President having gotten less votes than the Democratic candidate for
President, by virtue of the way in which we select representatives
through gerrymandered districts, through the way in which States with
smaller populations have greater representation in the Senate and
through the mechanism of the electoral college. Despite getting less
votes than Democrats all across the country in 2016, Republicans did
take control of the House, the Senate, and the Presidency. And those
are the rules. Those are the rules. Republicans played by the rules in
running for office in 2016. I am not begrudging the fact that they did
in fact win control of all three lawmaking chambers of U.S. democracy--
the Presidency, the House, and the Senate. It was to be expected that
Republicans would repeal the Affordable Care Act in 2017.
But, curiously, they could not, and the reason they could not is
pretty simple. Democracy took hold. The people of this country didn't
allow this Congress to repeal the Affordable Care Act. They rose up in
record numbers. Thousands of people turned out to townhalls all across
the country. The phone lines here were lit up. There were protests that
spring and summer outside this building on a near daily basis. It was
100 percent clear that if Republicans voted to repeal the Affordable
Care Act and replaced it with nothing or made our healthcare system
worse, as Speaker Ryan's plan would have done, there was going to be
hell to pay from the American electorate.
Now, it turned out that there was, anyway, because Americans watched
the attempts to repeal the Affordable Care Act and were just slightly
less infuriated than they would have been if repeal had actually gone
forward.
But repeal failed. On this floor, late one night in the summer of
2017, the bill went down, and Republicans at that point had figured it
out. Having tried 31 times--70 times, whatever your number is--to
repeal all or part of the Affordable Care Act, Republicans figured out
that they weren't going to be able to get it done through Congress,
that the American people weren't going to let them.
So they decided to try another way. Later that year, the Republican
tax bill passed the U.S. Senate and the House of Representatives and
was signed into law by the President of the United States, and inside
that tax bill was a curious provision, a provision that eliminated the
tax penalty for individuals who don't have insurance. That was a really
important part of the Affordable Care Act, not a super popular part of
the Affordable Care Act. Nobody likes putting a financial penalty on
individuals who don't have insurance, but it was really critical to
protecting people with preexisting conditions.
I won't go into the details of it, but I actually sat in the
Presiding Officer's chair during Senator Cruz's filibuster overnight,
on a late night like this one. I was probably presiding as a freshman
Member of the Senate at about this hour, and in that filibuster--I
wouldn't recommend going back and looking at it on tape, but you
could--you would listen to Senator Cruz explain that, in fact, the
individual mandate and the tax penalty are critical to protecting
people with preexisting conditions. Because if you don't require people
to get insurance but you also require insurance companies to rate folks
who are really sick the same as they rate healthy patients, the whole
insurance system falls apart. Because if you aren't required to get
insurance but you are not penalized if you wait to get insurance until
you are really sick, then that is exactly what you will do. You won't
get insurance until you are really sick. You won't have to pay any more
once you have that expensive cancer diagnosis, for instance. Then,
without any healthy people buying into the system and with only sick
people part of our insurance pools, the insurance system collapses.
So Republicans went into this 2017 tax bill, and they removed the
provision that would provide a financial penalty. But it really wasn't
actually that curious. It wasn't that difficult to figure out why they
were doing that.
Republicans were doing that because, a few years before, the Supreme
Court had ruled that the Affordable Care Act was constitutional because
of the existence of that tax penalty. It was an interesting decision,
one that I disagree with, but Justice Roberts ruled for five of nine
members that the Affordable Care Act could stand as constitutional
because of the existence of that tax provision.
So you didn't have to be a rocket scientist to figure out why
Republicans had inserted this provision into the tax bill--because they
believed that they had a new route, a new pathway, to invalidate the
entirety of the Affordable Care Act.
Now, having failed to be able to get the elected branch of government
to undo the Affordable Care Act, they could essentially plant a
constitutional landmine in the Affordable Care Act and attempt to get
it invalidated through the courts.
Now, again, let me tell you, I don't agree with the Supreme Court
decision--I think it was in 2012--that suggested the Affordable Care
Act would be invalid if you removed this tax penalty. But that decision
stands, the NFIB decision, and Republicans figured out that they could
sabotage the Affordable Care Act and run a case through the court
system that would end up getting done what they had been trying to do
for 10 years--take insurance from 23 million people and the preexisting
conditions protection.
And that is exactly what they did. That is exactly what Republicans
did. Twenty Republican attorneys general, joined by a whole host of
conservative political organizations, launched a court case claiming
that because of the change made in the 2017 tax bill, the Affordable
Care Act was now, all of a sudden, unconstitutional. It had to be
struck down.

The case went before the district court, and a Republican-appointed
judge ruled in favor of the Republican attorneys general. The case then
went to the circuit court, and in a 2-to-1 decision, with a Trump-
appointed, Senate-confirmed judge making the difference, they ruled in
favor of the plaintiffs, and now that case sits before the Supreme
Court, and it is to be heard by the Supreme Court in 2 weeks--in 2
weeks.
So now you might be starting to figure out why we are here. Why are
we rushing through Amy Coney Barrett's nomination in record time? You
never had a Supreme Court Justice confirmed this close to the election.
In my political lifetime, I have never seen a Supreme Court Justice
rushed through in this amount of time.
We have been here all weekend. It is 3:30 in the morning. We took a
vote on Saturday. It is now becoming apparent why we are rushing this
through.
It is probably partially because Republicans are worried they are
going to lose their Senate majority in this election and the President
is going to lose, and it will be much harder to push through a nominee
in a lameduck session. It is probably because there are potentially
cases to come before the Supreme Court regarding this election, and
this President wants to make sure he has as many of his nominees
stocked on the bench as possible if there are any questions that arise
before the Court regarding the validity of the election.
But I think mostly the reason that we are here, rushing through Amy
Coney Barrett's nomination, in the dead of night, in record time, 1
week before an election, is because the Affordable Care Act case is up
before the Supreme Court in 2 weeks, and it is likely--in fact, almost
certain--that without Amy Coney Barrett on the

[[Page S6523]]

Court, that case brought by Donald Trump and Republicans across the
country will not succeed, and that only by rushing through Amy Coney
Barrett's nomination 2 weeks before this case is to be heard by the
Supreme Court can Republicans finally get done what they have been
trying to do for 10 years--repeal the Affordable Care Act and end
insurance for 23 million Americans and strip away protections for
everybody who has a preexisting condition.
Now, I know my Republican friends get really angry when they hear us
suggest that their goal is to end insurance for 23 million Americans or
to strip protections away from people with preexisting conditions, and
they will stand up here and say: No, of course, that is not what we
want to do. We are going to protect people with preexisting conditions.
We will find a way to insure all those people.
And I truly do believe that my Republican colleagues do, in a perfect
world, want people with preexisting conditions to be covered. The
problem is they have worked themselves into a trap that they can't get
out of and that they know they can't get out of.
They say they want to cover people with preexisting conditions, but
they have never been able to put on the table a plan that would do
that. They have made this promise that they will repeal the Affordable
Care Act, and they have put themselves on this path that they can't get
off of to repeal the Affordable Care Act through legislation or through
the court system, such that, even though they say they want to protect
people with preexisting conditions, they are acting in a way that does
the opposite.
So you have to forgive us when we say that you want to strip
protections for people with preexisting conditions. Because despite the
fact that you say you don't want to do it, everything you are doing
ends up in that result. So at some point, we have to watch what you do,
not what you say.
Your President had the chance to go to court. Well, first of all,
your President didn't have to go to court at all on behalf of the
plaintiffs. In fact, 99 percent of the time, a President will defend
the statute that is being attacked, even if that President doesn't
agree with the statute. That is generally seen as the responsibility of
the executive branch, to defend the statutes of the United States,
whether or not you agree with them. That doesn't happen in every case,
but that is generally how it works.
In this case, not surprisingly, the President went to court and said:
I am going to join with the plaintiffs. I am going to ask for the court
to invalidate the Affordable Care Act.
But President Trump could have asked for only part of the act to be
invalidated. He could have asked for the part of the act that protects
people with preexisting conditions to remain, but he didn't, and,
frankly, Republicans in this Chamber didn't pressure him to do so.
Republicans here could have begged the President, privately or
publicly, to go to the court and ask for the portions of the act that
protect people with preexisting conditions to remain, but the President
didn't do that. He sent his lawyers to court. His lawyers will be in
Court in 2 weeks arguing that the entire Affordable Care Act be struck
down--the whole thing.
So let me say it again. Don't blame us for watching what you do,
rather than what you say. Republicans say they want to protect people
with preexisting conditions, but then everything they do and everything
this President does seeks to destroy those protections.
That is why we are here. We are here because Republicans have gotten
themselves on this train that they cannot stop--this effort that has
been underway for a decade to strip away the Affordable Care Act
protections. Two weeks from now, the Republicans will get a little bit
closer to what they have been asking for, for 10 years, when this case
comes before the Supreme Court and Amy Coney Barrett sits on it as the
deciding fifth vote to invalidate the Affordable Care Act.
And why this matters more now and why I led my remarks referencing
the COVID epidemic is because it is unthinkable in ordinary times for
23 million people to lose health insurance or for folks that have a
history of heart disease to all of a sudden not be able to buy
insurance.
In my State, that is about 260,000 people who get their insurance
through the Affordable Care Act who would lose it. We are a small
State, about 3.5 million. A quarter million people losing healthcare
insurance in our State--that is a humanitarian catastrophe at any time,
but in the middle of a pandemic, that is a nightmarish, cataclysmic
dystopian future to wish for. In the middle of a pandemic, to take
health insurance away from 23 million people, to go back to the days in
which insurance companies could discriminate against you because you
had a preexisting condition?
COVID is going to be a preexisting condition. Let me just level with
you. There are 8 million people in this country who know that they have
had COVID. But, eventually, if people start taking antibody tests,
there will be five times that many who have a medical history that
includes COVID. All those people will have a preexisting condition, and
insurance companies, if the Affordable Care Act disappears, can either
decide to not insure those individuals or can jack up their rates. That
is on top of the 130 million people who have other preexisting
conditions.
So think about both of those things happening. Think about, in the
middle of a pandemic, when there are over 1,000 people dying every day
in this country, where we are seeing reports of hospitals literally
being filled to total capacity in parts of our country, for over 20
million Americans to all of a sudden not have the ability to pay for
healthcare.
We are in the middle of a pandemic, but we are also in the middle of
a giant depression; right? I mean, 10 percent of America is out of
work. Guess how those individuals get health insurance when they are
out of work--through the Affordable Care Act. People that lose their
job, many of them get insurance through the Affordable Care Act. They
qualify for the Medicaid expansion in the Affordable Care Act, or they
end up buying insurance through these exchanges.

I have story after story from my constituents in Connecticut of
people who lost their jobs in the middle of a pandemic and were able to
get health insurance because of the Affordable Care Act.
It is not just that you have all these sick people who are going to
lose insurance when the Affordable Care Act is repealed but also all
these folks who are out of work and have no other way to get insurance
at an affordable rate other than the Affordable Care Act. Stripping it
away in the middle of a pandemic is just inhumane. On top of that are
all of the people who will have COVID as a preexisting condition.
Wayne lives in Rocky Hill, CT. Rocky Hill is a small town south of
Hartford. I wish his story were exceptional, but you have all heard
these stories, my Republican and Democratic friends:

Thank you for your continued support of the Affordable Care
Act. Our family has extensive medical needs, and we rely on
the preexisting conditions and no lifetime cap coverage
provisions that the ACA provides. Both of our sons have
serious health issues. Harrison is developmentally impaired.
Has a rare genetic disorder, cerebral palsy, hearing loss,
and a rare form of intractable Epilepsy, characterized by
multiple, uncontrolled daily seizures.

Imagine having a son like that.

Jacob, who just turned 15, has Hemophilia A with an
Inhibitor. If you are unfamiliar with this disease, it means
his body not only lacks the protein needed to clot his blood
in case of an injury, but it also rejects the typical
medicine used to treat his bleeding disorder. This means his
only alternative for treating his often spontaneous internal
bleeds is a very expensive synthetic clotting factor, which
costs around $9,000 a dose. When he has been injured in the
past, he has to receive doses every 2 hours for the course of
several days. This happened on over six occasions since he
was first diagnosed in 2011.

Think about how lucky you are if you have healthy kids. I am lucky. I
have two young boys who are healthy. Harrison has cerebral palsy,
hearing loss, epilepsy, daily seizures. Jacob has hemophilia--medicine
that costs $9,000 a dose.
Wayne writes:

We have had to maintain double insurance coverage through
both my wife's and my employers as well as Medicaid in
Harrison's case. We would have easily been dropped by any
number of insurance companies for exceeding both boys
lifetime expense caps--

[[Page S6524]]

Well over 1 million each--

and might not have been able to obtain insurance in the first
place due to their preexisting conditions. If these
provisions were not made law by the ACA, there would be no
way we would have obtained or ever afforded health insurance.
We would not have been able to keep our home and would likely
have had to file for bankruptcy by now. Both boys together
have been hospitalized on over 36 separate occasions, with
Harrison having spent almost his entire first 6 months of
life in the NICU . . . at a cost of over $1,000 a day.

Remember, the ACA says insurance companies can't deny you coverage
because you have a preexisting condition. They can't deny your family
coverage because your child has a preexisting condition, but the
Affordable Care Act also says insurance companies can't cap your
insurance. They can't say: Hey, if you have an expensive disease, we
are going to insure you for up to this amount of money, and then we are
going to stop paying for healthcare.
They can't do that on an annual basis either. The Affordable Care Act
says they can't, as an insurance company, give a dollar amount of
coverage over the course of the year and then cut you off, because that
is not really insurance, right? The whole idea of insurance is that you
pay in whether you are healthy or you are unhealthy, but you are
banking money and you are using other people's banked money in case you
get really sick, in case your family member gets really sick.
If your insurance plan doesn't cover you in the case that you have
kids like Harrison and Jacob, then it is not really insurance in the
traditional form of insurance. That is why the Affordable Care Act
said: No, listen, health insurance is going to have to cover you if you
are really sick or your children are really sick, and they can't pull
that coverage after a certain dollar amount on an annual basis or a
lifetime basis.
That is why Wayne talks about the importance of the Affordable Care
Act for his family. He says: We would have had to sell our home. We
likely would be bankrupt if not for the Affordable Care Act.
He says:

If these key provisions are removed--

Which seems entirely likely--

millions of individuals and families with loved ones having
serious illnesses will be adversely affected.

That is a kind way of explaining what would happen to Wayne's family.
They would be adversely affected. Wayne would lose everything if
insurance companies were able to go back to discriminating against
people with preexisting conditions and placing back on insurance plans
these annual caps and these lifetime caps.
Again, the President of the United States had the choice to go to
court and ask for the entire act to be invalidated or for specific
provisions to be invalidated. He asked for the entire act to be
invalidated, which means these provisions which protect Wayne and his
family will be gone if Amy Coney Barrett and four other Justices decide
to rule for President Trump on his request to invalidate the entire
Affordable Care Act.
Don't tell us that we are overhyping this threat, that we are making
up this idea that Republicans want the Affordable Care Act to
disappear. It is much of what Republicans have been doing for the last
10 years. There has been no viable replacement plan that protects Wayne
in the way that he needs and Wayne's children in the way that he needs
While no one can be guaranteed as to what the Supreme Court is going
to do, Donald Trump himself told you that he is only going to put
people on the Supreme Court who will invalidate the Affordable Care
Act. He criticized John Roberts over and over again as a Republican
appointee for upholding the Affordable Care Act. He signaled to you
that he was not going to appoint someone to the Supreme Court like John
Roberts--someone who would find a way to uphold the Affordable Care
Act. He told you that was John Roberts' primary sin and that he
wouldn't make that mistake again.
He, in fact, told you once again just a few days ago that he hoped
the Supreme Court would strike down the Affordable Care Act. If that is
his hope, then I don't know that we can rely on the idea that he would
have then coincidentally been picking Justices to serve on the Supreme
Court who would follow through on that request.
Julie is from Sandy Hook. Julie says:

On March 25, 1994, I received a lifesaving kidney
transplant at Hartford Hospital. At the time I was working at
a job that was not fulfilling, and I was trying to complete
my Master's degree in Education to get my job in teaching. I
finished my degree, got married, had two children, and got a
dog. Later, I finally landed a full time teaching position at
Newtown, CT. I know if the law were overturned today, I would
not have been able to transfer to my husband's health
insurance plan and ultimately would not have been able to
achieve my dream of becoming a teacher.

Now, that is a different story than Wayne's, right? It is not equally
important, but it is important. What Julie is telling you is that she
had a dream to become a teacher, and she needed to take the time out of
the workforce in order to pursue that dream, and she needed health
insurance during that time.
What the Affordable Care Act has allowed for--and this was back in
1990s that Julie is telling the story. Why she is telling it is because
the Affordable Care Act gives you the opportunity to maintain health
insurance while you are out of work or while you are transitioning from
one job to another. It provides a nimbleness, a flexibility in the
workforce that didn't exist without the Affordable Care Act
protections.
Julie goes on to write:

In August of this year, I was diagnosed with B-cell Non-
Hodgkin's Lymphoma. I am currently receiving chemotherapy
treatments. . . . I am scared to death [she writes] to
imagine what would happen if I am not able to return to work
and I lose my benefits. While my husband does have the
opportunity to get health insurance benefits through his
employer, if the ACA were overturned I might not be eligible
for benefits because of my multiple pre-existing conditions.
This could mean financial ruin for my family since I need
continued follow up care even after I finish my chemotherapy
treatments.

Julie is now in this sort of classic situation in which she has a
preexisting condition. She is currently receiving treatment, and she is
living in fear about what will happen to her and her family if all of a
sudden the days of discrimination against people with preexisting
conditions come back. She is also telling the story about what happened
to her earlier in life when she went out and got herself reeducated to
become a teacher but had fear about what was going to happen to her
insurance benefits because of that. That fear doesn't exist for
Americans any longer because they have access to these private
healthcare exchanges when they lose their coverage, perhaps even
voluntarily because they want to go get another job. Now she is in this
classic situation in which she has a serious, serious illness. She
talks about the fear that she has about what will happen if the
Affordable Care Act is struck down.
I think that is important to recognize, as well, because there is a
generation of young adults who, frankly, don't even remember the days
in which you could be discriminated against by insurance companies
because of a preexisting condition, who don't know what it is like to
obsess and obsess and obsess over that question. There are folks who
are 30 years old today who during their entire adult lives lived under
the ACA, who are having kids now--kids who may have complicated medical
conditions--and don't have to worry about that child living a life in
which they are constantly chasing insurance. It just doesn't happen any
longer.
Now that prospect has returned because of this case before the
Supreme Court. Now those parents are starting to worry. What will
happen if Amy Coney Barrett provides the fifth vote to invalidate the
Affordable Care Act as President Trump is asking the Supreme Court to
do? What will happen?
Well, what likely will happen is those protections for people with
preexisting conditions will be struck down, and once again, parents of
children with complicated illnesses will spend their lives worrying
about how this illness will define their child's future. Now, if you
have a serious illness, it is going to define your future no matter
what, but on top of the daily search for treatment and the daily search
for wellness, there is the worry of whether you are going to be able to
pay for that. It is a nightmare that we don't have to choose to endure
as a nation because right now we have a law that protects against it.

[[Page S6525]]

I always remember this very simple story from a few years after the
Affordable Care Act was passed. I was at a community pool in Cheshire,
CT, with my son, who was then 4 or 5 years old. This young guy--maybe a
few years younger than I--sheepishly approached me in the pool as I was
playing with my son. He said: Thank you.
I asked: For what?
He said: I want to say thank you for the Affordable Care Act. I am
here with my son. My son has a rare heart condition. I used to stay up
nights worrying about what his life was going to be like. I still have
lots of worries, but now I have one less because of the Affordable Care
Act. Now I know we are not going to go bankrupt paying for him. Now,
more than anything else, I know his future is not going to be dependent
on whether or not he can find a job that provides him healthcare
benefits. He can pursue his dream without the constant worry of how he
is going to pay for health insurance.

That sounds like a simple thing, but it is not. For any parent here,
the idea that your child can be whomever they want to be or at least
their life won't be dictated by whether they can afford healthcare for
their expensive disease that they have through no fault of their own,
through no choice of their own--that is a big deal as a parent. The
Affordable Care Act relieves much of that worry. That is why people are
so concerned about what Amy Coney Barrett's nomination to the Court
will result in.
Malaine from Branford says:

In 2015, my husband co-founded a Biotechnology company,
which is located at the UCONN Incubator in Farmington.

That is exciting. That was an incubator that I helped conceive as a
State legislator and then as a Congressman.
She writes:

He did this because the ACA made it possible for our family
and the company employees to have healthcare. The company now
has 10 employees, all high-paying, Connecticut based jobs.
This entrepreneurship would absolutely, positively not have
been possible without the ACA. In 2018, the company
transitioned to employer healthcare. Now through the Trump
administration's incompetence in the handling of the
coronavirus pandemic, sales of the company's product--

They sell to other companies that are still closed because of
coronavirus--

have plummeted and so our company, like so many, is
struggling. If we lose our livelihood, we also lose the
company health insurance, which means we co-founders . . .
would need to depend on the ACA's health insurance, if it
still exists.

Once again, this is another story about how the ACA allows for
financial innovation, allows for economic innovation. This is a company
that was started in Connecticut, a biotechnology company. Because the
ACA allowed in the early days for those entrepreneurs to insure
themselves, their families, and their early employees through the
Affordable Care Act before they had enough money in the company, they
were able to provide employer-based insurance. All of that goes away.
That cushion for entrepreneurs will disappear if this act is
invalidated.
These stories go on and on and on, individuals who will have their
lives ruined and changed if the Affordable Care Act disappears. Again,
we might be months away from that occurring--months away from that
occurring--in the middle of a pandemic, people losing their insurance
right at the moment when they need it the most because of the costs of
confronting COVID, because of the fact that they lost their insurance
because of the recession or are at risk of losing insurance, like
Malaine's family is. What a nightmare.
That is not my only worry, though, when I think about Amy Coney
Barrett's confirmation. Frankly, I nor my constituents have had enough
time to really understand the consequences of Amy Coney Barrett's
nomination because of how rushed this process has been. In the middle
of a pandemic, when it is abnormally difficult to be able to
communicate with your constituents, we rushed this nomination through,
which has made it almost impossible for people to figure out who she
is, what she believes, and communicate that in time to their Members of
Congress. I have a feeling there is a reason for that as well.
The rush job is because Republicans need to get her on the Court in
time for the ACA case, because Republicans want to get her on the Court
in time to hear election disputes, because Republicans want to get her
on the Court before a lameduck session makes it harder if the election
goes against Republicans. But I have a feeling it is because they also
don't want people to figure out what she stands for.
One of the other areas of law in which Amy Coney Barrett is likely
pretty radical--certainly is radical--is on the question of America's
gun laws. Obviously I care about this deeply. I have borne witness to
one of the country's worst gun homicides in Newtown, CT. Right now, on
the streets of Hartford, CT, as in many other cities, gun violence is
spiking.
It is not shocking. Gun violence tends to attract poverty when people
are desperate economically. Whether we like it or not, they often
resort to violence, and we are in a moment of economic desperation. You
should see the food lines at food pantries and food banks in
Connecticut. It is not coincidental to that economic desperation that
we are seeing an increase in gun violence.
Yet gun violence is made a lot easier in the Nation because of the
ease of access to weapons. Our Nation is just flooded with weapons and
many of them illegal weapons, many of them in the hands of felons--
dangerous people who shouldn't have them.
We are attempting to pass a universal background checks bill here in
Congress that would make it harder for felons--dangerous individuals--
and people with serious mental illness to get their hands on guns. It
is probably the most popular policy intervention in the country. I
don't know that there is any other major piece of legislation that we
have proposed that is more popular than universal background checks. It
gets about 90 to 95 percent of support in most polls. The majority of
non-gun owners, gun owners, NRA members, non-NRA members--everybody--
wants universal background checks.
It makes a difference. The States that have universal background
checks have lower rates of gun homicides, suicides, and domestic
violence crimes on average. It is maddening to me that we haven't been
able to pass universal background checks here, but that is a political
problem. That is a problem of political power. The gun lobby has had
much more political power. Despite the fact that 90 percent of
Americans want universal background checks, it is just a question of
one side having more political power than the other. That is changing.
Witness the House of Representatives' passage of universal background
checks last year. I think that we will be able to pass that in the
Senate if the elections go a certain way.
Yet Amy Coney Barrett has a different idea as to what the barrier
should be to universal background checks. Amy Coney Barrett believes
there is a constitutional prohibition against preventing all felons
from owning guns. Amy Coney Barrett wants to take away the choice from
Congress of who can own a gun and who can't own a gun. Now, that is not
hyperbole. She will tell you that this is her belief. She wrote it down
in an opinion. She didn't serve on the appellate court for very long,
but while she was there, a case on a State gun law came before her, and
she wrote a dissenting opinion which is a major outlier in Second
Amendment jurisprudence, and it contains in it some pretty dangerous
ideas that, frankly, people haven't had the time to consider because of
how rushed this nomination has been.
In this case, the Kanter case, Amy Coney Barrett says that this
felon--I think, in this case, it was a nonviolent felon--should be able
to own a weapon. This is notwithstanding the State law that says all
felons can't own weapons. Amy Coney Barrett comes to the personal
opinion, in this case, that this individual is not dangerous. What she
says is that it is not for the legislature to decide who is dangerous
and who isn't. It is for the courts to decide who is dangerous and who
isn't, and if the legislature can't prove to me, Amy Coney Barrett,
that this person is dangerous, then I will declare that the
Constitution doesn't allow for that person to own a weapon. The court
now becomes the trier of fact.
This isn't unfamiliar because this has been a sort of interesting
strain of jurisprudence among this new Federalist Society-vetted,
conservative judicial crowd.

[[Page S6526]]

That is sort of the issue in Shelby County as well. This voting
rights case comes before the Court, and the Supreme Court essentially
says: We are going to be the trier of fact with respect to whether
there is discrimination in this country. We are going to determine
whether discrimination against people of color exists such that they
need these voting protections. That traditionally would be a function
of the legislature to decide whether discrimination exists so that it
is necessary to require these protections, but in Shelby County, the
Supreme Court says: No, we will make the decision as to whether
discrimination is a problem, and if it is not, we will constitutionally
invalidate these provisions of the Voting Rights Act.
Well, in Kanter, what Coney Barrett says is that courts now will
decide who is dangerous and who isn't because I believe the Second
Amendment to only allow for guns to be prohibited to individuals who
are dangerous.
The second thing she says in that case is equally as dangerous. She
says she also would require a State or the Federal Government to prove
that the law is efficacious in promoting public safety. Now, that might
not sound to you unreasonable, but that is not what the Second
Amendment says. The Second Amendment doesn't say anything in there
about gun laws only being constitutional if they can be proven to be
efficacious, and there is always going to be a study funded by the NRA
that will tell you that, if you take guns away from people, you make a
community more dangerous. The NRA is really good at telling you that
the only way to solve crime is with more guns.
So, conveniently, under Amy Coney Barrett's conception of the Second
Amendment, so long as she or others on the Court can find a plausible
argument that a gun law is not effective in promoting public safety, it
can thus be ruled unconstitutional.
There are a hundred other courts out there with Republican judges who
have not found the Second Amendment to say what Amy Coney Barrett says
the Second Amendment says, and for courts to, all of a sudden,
micromanage decisions about who is dangerous and who is not dangerous
and what laws are effective and what laws are not effective sounds to
me like the kind of judicial activism that many of my conservative
friends have been warning against. I think the natural consequence of
that would be to invalidate a whole host of background checks laws,
perhaps to make it impossible--indeed, likely, to make it impossible
for us to be able to expand background checks in a universal fashion as
90 percent of Americans want us to do.
So, while we are certainly spending most of our time talking about
the threat to Americans' healthcare--because we are in the middle of a
healthcare epidemic and because the consequences are so serious--it is
important to note that it is not only on the question of healthcare
that Amy Coney Barrett is going to, potentially, fundamentally change
this country. Whether it be her likely vote to overturn Roe v. Wade or
the same-sex marriage decision or her radical, out-of-the-box
conception of American gun laws and the constitutionality of them, her
views are not in the American mainstream.
Of course, that makes sense because, increasingly, the Republicans
aren't using the legislature to try to mold this country into their
world view, into their political view, because their conception of how
this country should be is deeply unpopular. It is unpopular to repeal
the Affordable Care Act. It is unpopular to make it harder for the
legislature to put into place universal background checks. It is
unpopular to allow States to criminalize abortion. It is unpopular to
allow for more dark money to be spent in elections. It is unpopular to
provide less regulation on the pollution--oil and gas--industry.

So, increasingly, the Republicans don't really try to push that
agenda through Congress because they have this other way now--because
the Supreme Court will get all of that done. The Supreme Court will
eviscerate the civil jury to make it easier for corporations to prevail
in their cases against consumers. The Supreme Court will declare that a
woman's right to a safe and legal abortion is not protected by the
Constitution. The Supreme Court will invalidate the Affordable Care
Act. The Supreme Court will stop legislatures from passing universal
background checks.
As the Republicans' political agenda has become less aligned with
that of the broad American public's, it makes sense that the Senate has
stopped legislating. It makes sense that the Senate has just become
this confirmation simple machine.
I have been here for the last 2 years. We haven't debated any
legislation of substance here. All we have done is just confirm judges.
I checked, and we have done 20 pieces of legislation. That is half as
many as a normal Senate would do. Most of the bills we have passed have
been--or not most of them, but, as I checked, one-third of the bills
that we have passed have been of post office renamings or commemorative
coins, and we have passed half as many bills overall as we would in a
normal legislative session. Legislation is just kind of grinding to a
halt here.
Yes, some of that is because the House is of a different party, and
it is difficult to pass a law when you have different parties in charge
of the House and the Senate, but there aren't a lot of conference
committees happening, and there aren't a lot of attempts to reconcile
our differences. In part, this is because the Senate is just confirming
judges--a record numbers of judges because, in part, there were record
numbers of vacancies because Mitch McConnell and the Senate Republicans
refused to confirm almost anybody over the last 2 years of Obama's term
in office.
They essentially nullified that portion of his Presidency--his right
under the Constitution to nominate and have considered judges to the
Federal bench. So, when Trump won and the Republicans maintained
control of the Senate, all of a sudden, they had more vacancies than
ever before. They have spent the last 2 years populating the bench,
filling those vacancies. That is their right to do so, I guess, but it
is also part of the strategy to push a conservative political agenda
through the courts rather than through the legislature. Because that
agenda is so unpopular, if it were pushed through the legislature, it
would jeopardize the Republicans' chances of reelection. This has been
an unusually activist Court, but it is likely to get more so with Amy
Coney Barrett on the Court.
I want to do two more things before I yield the floor, and I know
Senator Kaine will be here shortly. I want to spend a few more minutes
on why this pandemic is so intimately intertwined into this
conversation about this nomination and then finally say a word on
process.
There are 220,000 Americans who have died, and millions of others
have had their lives changed forever by this pandemic. The number of
people who have been laid off is just sort of unfathomable to think
about. The President tried a feckless travel ban in February and March.
It didn't work. It was not going to work. He, effectively, gave up
after that. He just put the States in charge and then refused to
resource the States in a way that would allow them to adequately and
effectively confront the virus. One example is the President's refusal
to stand up a national supply chain so that we have been in constant
crisis--first, with respect to masks and face shields and hand
sanitizer and then, throughout the crisis, with respect to tests and
testing equipment and cartridges.
I was visiting testing sites in Connecticut just last week. I mean,
we are in--what?--month 8 of the pandemic, and still these testing
sites in Connecticut have no idea, from day to day, how many tests they
are going to have.
I was visiting a hospital that is right in the middle of a historic
hot zone in Connecticut. I did a roundtable, and there were a bunch of
people there. On my way out, one of the participants in the roundtable
kind of followed me out. It happens often, as my colleagues know, and
she wanted to have a private word with me. She was the purchasing agent
for that hospital who wanted to tell me before I left exactly how
nightmarish her life was for not knowing, from day to day, how many
tests they were going to be able to do and how she had to scramble
every single day to figure out how to get the components for the tests
and how there was no way to plan, how there was no way to say, ``OK,
this week, I am going to go to

[[Page S6527]]

this site and this site to do tests,'' because I don't know where I am
getting them from.
That is just one of the ways in which this President has just
fundamentally let us down, but now it is something different. Now, the
President isn't trying to stop the virus. He is actively trying to
spread the virus. The President is holding these political rallies at
which nobody is wearing masks and where people are standing shoulder to
shoulder. He knows what he is doing. He knows that the effect of those
rallies is going to be to spread the virus. He is shaming people who
wear masks and is chiding the Vice President for always wearing one.
He is now actively engaged in an effort to test people less because
he thinks that makes the country look bad. He is at war with his own
scientists and regularly undermines his own officials at the CDC and
the NIH. There is nobody who is doing more today to help this virus
spread than Donald Trump. Then, on top of that, to rush through a
nominee who may end up invalidating the Affordable Care Act and leaving
people with no insurance in the middle of a pandemic that you are
responsible for as President, that is cruelty built on top of cruelty.
Some of my other colleagues have done this as well, and I want to do
it just so that some of these people's names end up as part of history,
as part of some record other than of lonely obituaries. I am just going
to read into the Record the names of a handful of the people who have
died due to COVID-19 during this epidemic. I know it sounds like a
futile exercise, given the fact that I will read 20 names and that
220,000 have died, but I don't really know what else to do at this
point to try to convince this President to stop spreading the virus--to
act in a responsible way, like an adult--other than to at least put
some names to the numbers: Avigdor and Rachel Farin, Adam Russo,
Maurice Berger, Robert Herman, Mary Margaret Smith, Ingrid Kisliuk,
Johnny G. Gonzales, Anne Martinez, Amelia Michels, Giomar Fuentes,
Carmen Carlo. By the way, those last four were related--a mother, an
aunt, another aunt, and a grandmother in law. Dr. John Marvin Brown,
Sr.; Sylvia Livings; Howard Kramer; Robert Patrick Perry, Jr.; Hing S.
Yee; Frank Small III; Steven D. Silverman, MD; Alexander Malcolm
MacMillan, Jr.; Dean Pryor Perkins; Mary Castro; Alfonso Ye, Jr.;
Michelle Lee Carter; Jerome Mark Spector; John Robert Hicken; Frederick
Harris; Bill Huening; Jim Sheehan; Barry Downes; Mark Blum; Florence
Warshawsky Harris; Kenneth Glover; Terrence Neil Thompson, Jr.; Gordon
Pickering; Robert M. Flanders; Carlos Llamas; Juan Gilbert ``Tito''
Dominguez; Sarah Ann Staffa Scholin; Anne Morreale; Roberta M.
Pepitone; Barbara Ross; Jacqueline Hoover; Kerman Hain; Mario Mendoza;
John Pizzetti; and William Charles Edward Prince.
These are just two pages of names of individuals who have died due to
the coronavirus.
The numbers are, obviously, absolutely overwhelming, and it is, of
course, not just those who have died. It is those who have lost their
jobs. It is all those people who have had the illness. Eight million
people have been diagnosed with COVID. Who knows what the overall
number is--individuals who had it who didn't know it, thought it was
something else, or people who were asymptomatic. But is that number 100
million? Is that number 50 million? It is big, and all those
individuals now have a preexisting condition. All those individuals now
could be discriminated against by an insurance company if the
Affordable Care Act was to be invalidated, and that is the ask of the
Supreme Court--a Supreme Court on which Amy Coney Barrett will be
sitting if this nomination is pushed through.
That is why these two questions--of the Supreme Court nomination
which is before us today and the question of how we adequately confront
the coronavirus pandemic--are connected and why we talk about them
together.
Finally, let me say a word about process. This is not the most
compelling argument to the American people. I don't think they really
care too much about the processes by which we choose to conduct
business here in the Senate, but we do. We should. We chose to serve in
this body.
I have thought a lot over the course of the last few weeks about the
idea of restraint--the idea of restraint, the idea of temperance. It
has been a sort of seminal idea that humans have been considering for
millennia--the idea of deciding not to do something that you have the
ability to do, the decision to restrain one's self, to not use the
minimum powers available to you because of the downstream consequences
of your decision to operate at maximum power, your decision to use all
of the facilities available to you. It is an idea that humans have
considered, as I said, for thousands of years.
It is generally applied to this body. It is generally a very
important facet of democracy because the Constitution says very little
about how the Senate will conduct business. It doesn't micromanage our
proceedings.
Certainly, if you read our constitutional history, there was a belief
that the Senate was supposed to be different than the House of
Representatives. Obviously, we are chosen very differently. At the
outset, we were given different term lengths. The idea was that the
Senate was supposed to be able to look out for the long-term health of
the country in a way that was different from the House of
Representatives, given their requirement to answer to the people every
2 years.
So, over time, there was this understanding that the Senate would
have, at its foundation, some concept of fairness, some ability for the
minority to participate. So, over time, there have been different rules
about how many votes are required for cloture or different practices of
how cloture was used, how often it was used. But always there was an
idea that this place would be a shared experience; minority and
majority would work together.
Senator McConnell has his version of history. I think Democrats have
a different version of it. But I don't think anybody can disagree that
the changes to the way in which the Senate operates have come faster
and more furious during the years in which Mitch McConnell has been
majority leader than at any time before.
I mean, just while I have been here, we have seen the eradication of
the filibuster for Supreme Court Justices. We have seen the time that
we have to debate Justices dramatically shrunken. I think it is now
down to 2 hours. We have seen the elimination of the blue slip--the
ability for Senators from a particular State to have a say in the
judges that are selected to serve in their State's appellate courts.
But we also saw this exceptional thing happen in 2016, in which Mitch
McConnell, as majority leader, decided that he would not even consider
Barack Obama's choice for a vacancy in the Supreme Court, despite the
fact that the vacancy came about 11 months before the next President
was to be sworn in.
In retrospect, Democrats didn't make a big enough deal out of it, I
think, because we thought that Hillary Clinton was going to win, and,
thus, ultimately, while it would be a dangerous precedent to live with,
it might not have a practical effect on the country. We just couldn't
imagine in the winter and spring of 2016 that Donald Trump was going to
be the President of the United States.
In retrospect we should have made a bigger deal out of what was
happening in 2016, because this idea that Republicans weren't going to
even consider--even do a courtesy meeting, have a hearing on--Merrick
Garland was and still is truly exceptional, and it fits into this
pattern we have seen under Senator McConnell during the past few years,
this pattern of forsaking restraint and using every conceivable power.
Or let me back that up: using more powers available to the majority
than ever before in order to effectuate a political agenda.
What Republicans did in 2016 was unprecedented--to just say: Forget
it, President Obama. We are not considering your choice for the Supreme
Court because you are a Democrat and we are Republicans.
Now, at the time, as we remember, Republicans said that it wasn't
political. It was because there was an important rule they were
enforcing--this rule that you couldn't consider a Presidential nominee
to the Supreme Court in the last year of his or her term.

[[Page S6528]]

Now, I didn't hear my colleagues say at the time that the rule was
only applied when the President and the Senate were of different
parties. In fact, I heard many of my Republican colleagues, including
the chairman of the Judiciary Committee, say that the rule was simply
that, in the last year of a President's term, you don't consider a
Supreme Court Justice. Famously, Senator Graham said: Write down my
words. Hold them against me.
And, at the time, we all knew that Republicans probably weren't
telling the truth. We knew that it was probably just because it was
President Obama and they did not want Justice Scalia, a conservative
Justice, to be replaced by someone who was more liberal in their views.
We suspected that this idea that they were enforcing a rule was just a
ruse to paper over what was simply a political decision not to give
President Obama a seat on the Supreme Court.
Well, now we know it was a ruse because, all of a sudden, when
presented with the exact same circumstance--well, in fact, a different
circumstance in that this vacancy occurred weeks before the election
rather than 9 months before the election--Republicans have now changed
their tune because it is just about politics. Right? It is just about
politics. It is just about getting your guys on the Supreme Court and
stopping the other guy's folks from getting on the Supreme Court.
And what Mitch McConnell has said is that we are going to use any
power at our disposal in order to effectuate our agenda, especially
when it concerns the Supreme Court.

Restraint, which is a predicate for the effective operation of
democracy, is disappearing. And, again, I know that it sounds
ridiculous to make this suggestion, but there is really no logical end
to how you can maximize your powers as a majority body in the U.S.
Senate. There is no constitutional prohibition on the Senate majority
saying that Members of the majority are going to get twice as much
staff as Members of the minority. There is nothing stopping the
majority from eliminating our speaking rights in committees, on the
floor of the Senate.
There are a lot of things that the majority can do to make it
increasingly impossible for the minority to have any role here--to be
able to protest, to be able to carry out our agenda. And I know that
there is a lot of speculation--much of it driven by the Republican
majority--about what Democrats will do if Democrats are given control
of the Senate. Will Democrats go to new extraordinary lengths to
maximize their power, given the extraordinary lengths Republicans have
gone to maximize their power?
That is not a conversation that is sort of ripe enough yet, but what
do Republicans expect? I mean, what you did in 2016 is really wild. You
basically invalidated the last year of a President's term, at least
with respect to that core function of appointing Justices. And what is
wild was that you didn't have to go to the lengths that you did.
Republicans could have voted Merrick Garland down and, at least, have
recognized the legitimacy of the nomination--voted Merrick Garland down
and perhaps forcing a conversation about another nominee that might be
more amenable to the Republican majority. That wouldn't be the first
time that that has occurred.
One of the statues here in the U.S. Congress is of Oliver Ellsworth
from Connecticut, who was elevated to the Supreme Court because George
Washington believed his first pick couldn't be confirmed by the Senate.
So, instead, he chose one of Connecticut's two U.S. Senators, who was
beloved in this body when it operated not far away. And Oliver
Ellsworth went to the Court because of a quiet negotiation with the
Senate.
Republicans, under Mitch McConnell, didn't even engage in a process
with Merrick Garland. They just declared that the President's choice
was illegitimate. And I can't argue that they didn't--well, I can argue
they didn't have the power, but certainly there was a colorable
argument that Republicans in the Senate could just refuse to consider
Merrick Garland's nomination.
But now having practiced that exercise of maximum power, using the
majority to delegitimize a President in that way, you put Democrats, if
they win control of the Senate, in a really unenviable position. Do we
just unilaterally stand down and not choose to use the same tools that
Republicans did in the majority? Would we expect, if we did that, that
if Republicans regain the majority, they would follow our lead? Or
would that be wildly naive?
No, in fact, I think there are now new rules in the Senate, and I
think Republicans have set them. I get it that you can claim Harry
Reid's rule change as the original sin that legitimizes everything that
you have done since then, but the changes Republicans have made have
come at a dizzying pace--far more changes made, far more precedents
shattered than anything that happened when Democrats were in control.
And, of course, as to Senator Reid, many of us would argue that the
reason that that change was made was because Senator McConnell doubled
the number of cloture motions that were required in order to move
legislation to a final vote. The change in the use of the filibuster by
Republicans during their time in the minority was what forced that
change.
But setting that aside, there is no question that changes have come
much faster and much more furious, and it just doesn't bode well for
the future of our democracy when everyone uses the maximum power
available to them, with no concern for the minority party, in order to
get what they want.
And it is not just the Republican majority that has done this. So has
the executive branch. I listened to the Presiding Officer give his
maiden speech on this floor about the overuse of Executive power, and
there were legitimate complaints about ways in which the Obama
administration had used maximum Executive power when the legislature
would not act.
But, again, it doesn't compare with the ways in which this President
has used maximum Executive power in the absence of authorization from
Congress. Both in the executive branch and in the legislative branch,
under Republicans, restraint as a practice inside democracy is
disappearing. Maximum power becomes the ethos, and that is a danger to
democracy--maybe not today, but soon enough.
I don't know how this body gets back into a conversation about
comity. I don't know how we get back into a conversation about how we
govern together.
I have, frankly, voted for more of this President's nominees to the
executive branch, to political offices, and to the bench than almost
all of my colleagues, maybe, on this side of the aisle, maybe with the
exception of a few, because I generally have believed that if the
nominee is in the conservative mainstream and if the nominee is
generally qualified, they should get their post, especially for
executive appointments, for nominations to Secretary positions and
Undersecretary positions. I do that, in part, because I think that it
is important to not use maximum power and maximum leverage, for me not
to vote against every single nominee that the President puts forward
just because I disagree with that nominee.
That conversation about how we restore some comity and some restraint
is an important one, but it is likely to be impossible in the next
Congress because of how fundamentally broken this body will be after
what happened to Merrick Garland and then, on top of it, what is
happening right now.
We are 8 days before an election. We are 8 days before an election.
We are jamming through Amy Coney Barrett's nomination in record time,
not because it is good for the country, just because you can--just
because Republicans can--and, likely, because it is really important to
effectuate your deeply unpopular agenda through the Supreme Court.
We don't legislate here anymore because Republicans have found out a
way to get their agenda done through the court system. Amy Coney
Barrett will likely be the fifth vote to invalidate the Affordable Care
Act, a political project for the Republicans for the last decade,
unfulfilled through the legislative branch, now achievable in the next
several months through the judicial branch, but only if Amy Coney
Barrett's nomination is rammed through right now.
The rewriting of the Second Amendment is not available to Republicans

[[Page S6529]]

any longer in the legislative branch. The NRA's priority list couldn't
even get a vote in the Senate with Republican control--now available
through the judicial branch if Amy Coney Barrett is nominated. The
consequences for the country are serious if the source of power in this
town, the source of policymaking and rule setting, moves from this body
across the street to the Supreme Court.
And not equally as dangerous to the Nation, but still perilous, is
what will happen to this body, if all that matters political power,
when restraint vanishes and whoever is in the majority uses every lever
available to them to try to get what they want, to try to stop the
other side from getting what they want.
It is 1 week before an election. We are here all night, ramming
through a Supreme Court nominee in record time simply because you can.
That is not a good enough reason.
I yield the floor.
The PRESIDING OFFICER (Mr. Sasse). The Senator from Virginia.
Mr. KAINE. Mr. President, I rise in opposition to the nomination of
Judge Barrett to the U.S. Supreme Court. This process shows how
misplaced the priorities of the Senate are at a critical moment in
time.
There is an epic national crisis that we should be addressing--a
pandemic that is raging and causing unprecedented death and economic
distress at a massive scale. Yet the Senate has been sitting on its
hands since late April when we passed our fourth and final piece of
COVID legislation then, reinfusing dollars into the small business
protection program. The death toll in the United States was approaching
63,000. We have done nothing since, and the death toll is now
approaching 230,000.
Here are a few of the many Americans we tragically lost to COVID-19:
Benigno Hurtado-Andrade, Amalia Pasqua, James Shanley, Verna and
Clarence Cuyler, Betty Damato, Keith Mitchell Jacobs, Ward H. Harlow,
Jr., Kyong He Park, James Norton, Charlotte Marie Sims, Guus Smeets,
Charles Krebbs, Dr. Gaye Griffin-Snyder, Hugh Freyer, Marcel Borg,
Nancy Standage Borbon, Albert Garcia, Helen Flores, Dean Pryor Perkins,
Darrell William Jones, Paul Abramson, Everett Pike, Grant D. Ross,
Isabelle Papadimitriou, James Hughston, Jose Antoniao Reyes, William D.
Shilling, Jr., Ronnie ``Bro'' Baldwin, Larry Singer, Leone (Kitty)
Harriman, Sarah Roth, Sara Rose Varela, Kenneth E. Zwick, Sr., Pik Chi
Chan, Melinda ``Nina'' Wernick, Roger Diethelm, Alan Zundl, Irvin
Umberger, Dr. Kirk Barnett, Danielita Brown, Jose Sanchez.
The number of new coronavirus cases is now reaching record peaks. The
Saturday headline from the Washington Post, which is the most-read
daily newspaper in Virginia, says it all: ``U.S. hits highest daily
number of cases since pandemic began.'' Papers all around the country
carry similar headlines.
Ten months into this crisis, there is no national plan or strategy
for dealing with it. The Chief of Staff to President Trump admitted
defeat yesterday, claiming that we are not going to control the
pandemic. It can be controlled with testing, contact tracing,
isolation, and a commitment to mask-wearing, hand-washing, and social
distancing. That is how other nations are controlling the pandemic. But
the Trump administration is admitting surrender.
They now tell us that we will just have to wait for vaccines and
treatments, but Americans cannot afford to wait. The economic
devastation accompanying this healthcare crisis is catastrophic. The
unemployment rate is 7.9 percent, which is 65 percent higher than when
President Trump took office. And that number actually understates the
magnitude of employment losses as millions have dropped out of the
labor market to care for children or their parents or other loved ones
affected by this tragedy. Women have been hit disproportionately hard
in this forced exodus from the job market. President Trump's job losses
are now the worst of any American President on record. Yet the Senate
is doing nothing.
The largest public health crisis in 100 years, the most significant
economic collapse since the Great Depression, and the Senate has done
nothing to provide Americans relief for 6 months. This is inexcusable.
The House acted by passing the Heroes Act in May. I knew that the
Senate majority would not simply embrace a Democratic bill from the
House, but I believed they would do something. But the Senate majority
would not even surface a proposal until the very end of July, just days
before many CARES Act benefits expired and the Senate went into a
month-long recess. It was not until mid-September that the Senate GOP
finally brought up a vote on what we all called a skinny bill--one-
seventh the size of the House proposal and dramatically less than what
even the White House said was necessary to deal with the crisis. That
bill contained no rent assistance as millions face eviction, no
mortgage assistance as millions face default or foreclosure, no food
assistance as millions face hunger, and no aid for State and local
governments, whose falling revenues jeopardize their ability to employ
so many of the health and public safety workers who we know to be
essential right now.
Democrats opposed the skinny bill in the hopes that rejecting a
partisan proposal would lead to a bipartisan breakthrough. That is just
what happened in March with the CARES Act. We voted down a paltry
partisan package and days later found a robust bipartisan bill to help
all Americans. Our ``no'' vote on the skinny bill in September did
jump-start serious negotiations between the White House and Democratic
leaders, and the negotiations saw the two sides growing closer and
closer.
But there was a problem. The Senate majority does not want a COVID
relief bill. We could get there, but last week the New York Times and
other publications made it plain that no deal was forthcoming. Why?
``McConnell moves to head off stimulus deal as Pelosi reports
progress.''
``U.S. hits highest daily number of cases since pandemic began.''
``McConnell moves to head off stimulus deal.''
This is what we should be working on right now, but the Senate
majority abandoned their commitment to helping Americans through this
emergency on September 18--the day that Ruth Bader Ginsburg died. Since
then, rushing Judge Barrett to confirmation has been all that matters
to them--no matter that Americans deeply need COVID relief; no matter
that the rush to complete a confirmation in 1 month from nomination to
vote is unprecedented in modern times; no matter that the Senate
majority broke its word to their colleagues and the American public
that a Supreme Court vacancy occurring in a Presidential election year
would not be filled until after the election to ``let the people
decide''; no matter that the rushed nomination jeopardized the health
of attendees at the President's superspreading White House announcement
and even staff and Members of this Senate
My question is, Why? Why rush this nomination, ignoring Senate
precedent to do so, breaking your own word to do so, violating health
protocols to do so, rather than spending our time providing comfort to
families who are hurting and businesses that are struggling and
closing? There could be no good answer to this question, but the actual
answer is particularly heartless. The effort to rush the Barrett
nomination is driven by the Republican desire to destroy the Affordable
Care Act. That has been the goal for 10 years. I have seen it here on
the floor virtually every day during the time I have been in the Senate
since January of 2013.
The Republican majority--particularly during the Trump Presidency--
has done everything they can in Congress, in administrative sabotage,
and in the courts to destroy the ACA and take healthcare away from tens
of millions of Americans. Congressional Republicans even engineered a
complete shutdown of the American Government in October of 2013 to try
to achieve their goal, but they failed.
More States, even Republican States, have embraced the ACA. It has
grown more popular every day with the American public. But by rushing
the Barrett nomination, President Trump and the Senate majority see one
last chance. In 2 weeks, the Supreme Court will hear

[[Page S6530]]

the case of California v. Texas, a coordinated effort by Republican
attorneys general, the Trump Justice Department, and many in Congress
to destroy the Affordable Care Act.
The death of Justice Ginsburg on September 18--who had often voted to
uphold provisions of the ACA as an appropriate exercise of
congressional legislative power--offered a tantalizing chance to select
as her successor someone who has written critically of the act and of
the Supreme Court's 2012 opinion upholding the law. If she can be
rushed to the Court by November 10, she can participate in the
resolution of the case.
Getting her there quickly matters more to the Senate majority than
helping the millions who are suffering during this crisis. If they are
suffering now, imagine how the suffering would have been magnified
without the ACA--millions without insurance to help them through the
health crisis; millions of young people not able to be on family
policies; millions turned away from coverage because of preexisting
health conditions and now having COVID as an additional preexisting
condition that will potentially disqualify millions more; millions
facing termination of insurance as COVID-related health expenses run
them up against lifetime coverage limits.
This rushed Supreme Court nomination not only ignores Americans'
demand for help at a time of maximum need, it is done in a way that
will likely increase their suffering, with full knowledge that is the
case.
I will not play any part in an effort of such calculated cruelty.
This vote will hurt the body, hurt the Supreme Court, and hurt millions
of people in crisis who are struggling, and even dying, as the Senate
ignores their needs.
Many of our Republican leaders won't even wear masks. They refuse to
cover their noses and mouths to protect themselves and those around
them. But this soulless process shows that they are glad to cover their
eyes and their ears to block out the pleas of our suffering citizenry.
I will oppose this nomination.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Johnson). Without objection, it is so
ordered.
Mrs. GILLIBRAND. I rise today to speak about the future of the
Supreme Court, the future of our country, and the responsibility this
body has to the people of our Nation.
It seems that my Republican colleagues have lost sight of what the
people of our States have sent us here to do. They sent us here to
raise their voices, represent their interests, and provide them with
the help they need.
The American people are truly struggling, and they are calling upon
us to provide them with real relief during this public health and
economic crisis. That should be our No. 1 priority.
Eight million Americans have fallen into poverty during this
pandemic, including an outsized number of people of color and children.
The proportion of American children who sometimes do not have enough to
eat is now 14 times higher than it was last year. Parents are now
joining food lines for food banks because they cannot feed their
children. Cases of COVID are on the rise as we head toward our third
peak. Small businesses and their employees don't see a rebound on the
horizon. People are sick. They are struggling and scared about the
future.
For months, my fellow Democrats and I have been calling for a vote on
the relief package the House put forward to address these concerns, and
we have been met with silence. Then, after dragging their feet,
Republicans put forward a totally inadequate $500 billion package that
puts the needs of big businesses ahead of working families. What is
worse is that they know it has absolutely no chance of becoming law.
Their only aim is to score political points, all the while the American
people keep suffering.
The weeks we should have dedicated to negotiating a real relief
package have instead been spent rushing through the confirmation of a
Supreme Court Justice. The hypocrisy is truly stunning. The same people
who denied Merrick Garland a hearing months before an election are now
trying to ram this process through while an election is already
happening. Millions of ballots have already been cast. Millions of
Americans are already voting. Their futures are on the line. They
should have a say in this outcome.
We know why Republicans are rushing. They are rushing because they
know it is their last chance to impose a very extreme conservative view
on this country. They are rushing because they see a clock ticking
toward November, when the Supreme Court will hear arguments on whether
129 million Americans with preexisting conditions will continue to have
access to affordable healthcare. They are rushing to seat Judge Barrett
in time for her to rule on that case--a case that could strip millions
of Americans of healthcare in the middle of a pandemic, at the very
moment they need it the most. It is simply inhumane.
The Affordable Care Act is a matter of life or death. I recently
spoke to a New Yorker named Allie Marotta, who has been living with
type 1 diabetes since 2006. Last December, she turned 26 and aged off
her parents' insurance. Because her work is contract-based, she
couldn't enroll with an employer. She made too much to qualify for
Medicaid but not enough to afford $400 monthly premiums. She was
uninsured from December to March and had to ration her insulin, putting
her life at risk. It was only when the pandemic started and she lost
all of her income that she was able to qualify for the essential plan
in New York's ACA marketplace and access her life-sustaining
medication. If the ACA is repealed, Allie will have nowhere to turn.
She is not alone. My friend Kyle lives with Down syndrome. His father
Bill has multiple preexisting conditions. Right now, Bill works part
time in order to help Kyle, who needs to be with somebody 24/7. They
are worried about cuts to Medicaid, which could affect the job-coaching
Kyle receives at the pizza parlor where he works, and about the repeal
of the ACA, which provides them the only care they can afford.
Rushing to seat this nominee means rushing to put Allie's life and
Kyle's life and millions of Americans in danger. My colleagues are
putting them all at risk only to further a very conservative agenda. It
is extreme.
Their agenda is to seat a nominee who has called Roe v. Wade
``barbaric,'' when nearly 8 in 10 Americans believe that it is a
fundamental, human, and civil right for women to make decisions about
their bodies, including when or if or under what circumstances they
will have children; a nominee who referred to sexual orientation as a
preference--language that is not just outdated but truly harmful when
two in three Americans believe love is love, believe in marriage
equality, believe in the right to marry the person they love; a nominee
who refused to admit climate change is settled science and not a
controversial issue, when 99 percent of scientists and 81 percent of
Americans believe that humans are drivers of global warming.
So whose views does she represent? Certainly not those of the people
who sent us here. They believe in access to reproductive care. They
believe in equal rights for the LGBTQ community. They believe in
science. They believe that this seat should be filled by the next
President and confirmed by the next Senate. They have made it clear and
don't want the process of a lifetime appointment rushed.
This is the wrong judge for this seat, and this is the wrong process
for a lifetime appointment. It is hypocritical. It is dangerous. It is
not what the American people want.
I ask my colleagues to stop ignoring the people who sent us here and
to remember that it is our job to look out for their best interests--no
one else's. If we don't do that, we don't have the right to be here at
all.
I also want to express my condolences to the families and loved ones
who have experienced the human toll of the coronavirus pandemic. Over
220,000 Americans have died, and millions of others have been changed
forever. I am going to read some of the names of the people we have
lost. The

[[Page S6531]]

families of these individuals have given permission for their names to
be read on the Senate floor, adding them and their stories to the
Congressional Record:
Mark Anthony Urquiza, Paul Osterman, Frederick Harold Quinn, Richard
Rosenberg, Charles Mahoney, Felix Chidinma Oruh, Margaret R. Hogan,
Mahmooda Shaheen, Alan Kaplan, William W. Boyd, Breda C. Meadows, Jose
Morales Ramirez, David Benfield, John A. Alexiades, Michael F. Hughes,
Bob McDonald, Richard Proia, Rashonne Smith, Jose ``Joe'' Ramirez,
Steve Petras, Sr., Fareeda Kadwani, Jean Yettito, Abby Spitzer, Robert
``Bobby'' McCoskey, Jose A. Matias, Erick B. Chavez, Anastasia
Koiveroglou, Shafqat Rasul Khan, Lynette Scullen and Joan Scullen,
Marue Santini, Buck McKinney, Christina Danielo, Cal Schoenfeld, Gregg
Pappadake, Sarah ``Sally'' Bielen, Rolando Castillo, Nais Coque, David
Tashman, Joseph LoBianco, Ramash Quasba, Edward Alonzo.
I would also like to share some concerns of the people of New York
over what a future without the Affordable Care Act would look like.
While my colleagues try to rush this confirmation so Judge Barrett
can be seated in time to rule on a case that could cause millions of
Americans to lose access to their healthcare, I think it is important
that we remember how that case will affect the people we are here to
serve.
In New York, there are more than 8 million people with preexisting
conditions who could face higher costs, fewer benefits, and more
trouble finding the coverage they need if the ACA is repealed. There
are more than 3 million people who could be denied coverage altogether
over preexisting conditions that are deemed uninsurable. There are more
than 470,000 people who have been diagnosed with COVID, each of whom
could find themselves paying higher premiums for worse coverage.
My mailbox has been flooded with letters from New Yorkers who are
cancer survivors and parents and people with disabilities who are all
worried about their families not being able to access the care that
they need. Working to take away their care, especially in the middle of
a pandemic, is inhumane.
Jane from West Islip wrote:

As a cancer survivor, I am very concerned about healthcare
and pre-existing conditions. We're facing a healthcare
meltdown. This next Justice could be the deciding vote that
determines whether health care for tens of millions of
people, protections for pre-existing conditions, and other
provisions of the ACA that benefit almost everyone, will stay
or go. Judge Barrett's documented hostility towards the ACA
disqualifies her from a lifetime appointment to the Supreme
Court. A vote for Judge Barrett is a vote to end healthcare.
Oppose her nomination.

Jane is not alone in her concerns.
Candice from Brooklyn wrote:

I am writing to urge you to oppose the nomination of Judge
Amy Coney Barrett to the Supreme Court. I am worried that
Judge Barrett's statements on the Affordable Care Act mean
that, if confirmed, she would vote to overturn the ACA.
Millions of Americans with disabilities rely on the ACA to
protect our right to healthcare. If the ACA is overturned,
especially during a pandemic, millions of lives could be at
risk.

This is a concern I have heard over and over and over and over again.
Meredith from New York City wrote to me about Stacy Staggs, the
mother of two young children who both have complex medical needs and
disabilities, who shared powerful testimony during the Supreme Court
confirmation hearings.
Meredith wrote:

When she spoke, she spoke for me. The ACA and disability
rights are at stake. This confirmation should wait until
after the American people have chosen who should pick the
next justice.

Parents across the State are also worried about what the Court with
Justice Barrett would mean for their children.
Susan from Amherst wrote to me about her daughter. She wrote:

My daughter is an amazing young woman--and a lesbian--and
an individual with preexisting conditions. Her depression has
worsened because she sees what a confirmation of Amy Coney
Barrett's confirmation would mean to her and many of her
friends. Even Pope Francis believes members of the LGBTQ+
community deserve to be part of a family and should be able
to participate in civil unions. Please help! She needs to
have hope! The rush to confirm Amy Coney Barrett to the
Supreme Court is concerning. Not only have Senators not had
enough time to duly vet her, but we are in the middle of a
highly consequential election in which millions have already
cast their ballots. Further, Judge Barrett's LGBTQ rights
record suggests she cannot be an impartial jurist on these
matters. I'm deeply concerned about the future of rights for
the LGBTQ community.

These letters also send dire reminders of what life was like for too
many New Yorkers before the Affordable Care Act--a history we should
never repeat.
Jan from Ridgewood wrote:

I am 61 years old and have been self-employed for most of
my working life. This circumstance has made me a healthcare
voter! For decades I thought I was the only one complaining
about impossibly high health care costs. The cheapest plan
that I could find had a monthly premium of $692. For me as an
individual, with my husband--[who was] also self-employed--
and daughter it was about 1,250. After my divorce, I went
job-hunting for health insurance. I was willing to work for
free if I could be put on a health insurance plan. I didn't
find any.
The ACA put an end to that demeaning search. My income
fluctuates, so my premium goes up-and-down, but it has never
been as expensive as it was before ObamaCare. There is ample
evidence to suggest that Judge Barrett would overturn the
Affordable Care Act. Confirming such a justice during what is
perhaps the worst public health crisis in American history,
and while the Senate refuses to act to address the
coronavirus economic and health crisis, is unconscionable.

Let me say that again: Healthcare is so important that she was
willing to work for free just to have it. That is what is on the line
here.
Repealing the ACA would also mean an end to the rules preventing
insurance companies from charging women higher premiums than men and
requiring them to cover essential health benefits for women. That means
women would not only have to pay more, but it would also be harder for
the more than 4 million New York women who are covered by private
insurance to find coverage for maternity care, contraception, and cost-
free screenings for breast cancer, cervical cancer, and bone density.
It would return us to the days when uninsured women could be denied
coverage altogether if they are pregnant or have a health problem.
It would also put our older adults at risk. Striking down the ACA
would reopen the prescription drug coverage cap--the so-called doughnut
hole--and could leave nearly 350,000 seniors in our State paying
thousands of dollars in out-of-pocket costs for the medications they
need.
Thomas is one of those seniors. He writes:

The price for the family insurance is high and with our
present administration will go higher and millions of
Americans will not be able to have insurance. And this is the
time it is needed with the lack of the virus control. Many
Americans are out of work and will never be able to get a job
that paid as much as the previous job. . . . Many Americans
have died because the administration would not treat the
virus when it was starting. Many homes now have less people
bringing in money to pay bills because of this. The
administration has no plan to replace ObamaCare. . . . And
with the second and third round of virus and flu, many more
may die. . . . Seniors are on a fixed income and seldom get
any breaks when it comes to bills. Part D of Medicare
prescriptions really went up this year. At the end of the
year, we fall in the doughnut hole and have to pay two to
three or more times for our medicine than we were paying. And
then at the beginning of the year, we must pay the deductible
which, on the average, is 400 plus dollars. But remember we
are on a fixed income, so that means going without something
else. Again, a zero-deductible plan does not cover much
unless you pay above 70 dollars a month. Do not expect the
average American to have much extra money. A lot of people
live on Social Security alone, and the present administration
wants to stop that income.

The American people do not want to lose their healthcare, not in the
middle of a pandemic, not ever, and they certainly don't believe we
should be prioritizing this nomination over providing them with real
relief.
Christine from Beacon wrote:

I find it appalling and horrific that instead of a humane
relief bill for the people who have lost family members,
jobs, homes, the stability of their children's shelter, food
security and education--not to mention the social cost of
interrupting normal childhood social development and just the
terrible grief and fear [people are dealing with] . . . that
instead of working on a relief bill, we have another judge
infuriatingly and unfairly jammed in to the court. The
Supreme Court! My god . . . the lack of respect and audacity
of beginning this process. There is wrong and right. And to
quote a great patriot: ``This is America. And here, right
matters.''

[[Page S6532]]

Christine is right. Doing the right thing for the American people
matters. It is actually our job. New Yorkers and people across this
country who have lost their jobs and their employer-based healthcare
are calling on the Senate to provide them with the relief they need to
survive this health and economic crisis.
Instead, the Republicans are pouring salt in their wounds by rushing
this process in order to eliminate the Medicaid expansions and
marketplaces these newly jobless Americans have turned to for coverage.
Overturning the ACA would immediately end the Medicaid coverage nearly
1.9 million beneficiaries in New York are relying on.
These stories I have shared represent the fears and concerns of the
people who sent us here to represent them. They are people with
debilitating illnesses, parents who are worried about sick children,
adults who are worried about elderly parents, and young men and women
who live with conditions like diabetes and are already struggling to
find insurance that will help them access the insulin they need.
They are struggling, and it is our job to get them the help they
need. The American people oppose this nomination. They are watching,
and one way or another, they will be heard.
I would like to read from an article in the New York Times by Reed
Abelson and Abby Goodnough, entitled: ``If the Supreme Court Ends
ObamaCare, Here's What It Would Mean.''
``The Affordable Care Act touches the lives of most Americans, and
its abolition could have a significant effect on many millions more
people than those who get their health coverage through it.
What would happen if the Supreme Court struck down the Affordable
Care Act?
The fate of the sprawling, decade-old health law known as Obamacare
was already in question, with the high court expected to hear arguments
a week after the presidential election in the latest case seeking to
overturn it. But now, the death of Justice Ruth Bader Ginsburg
increases the possibility that the court could abolish it, even as
millions of people are losing job-based health coverage during the
coronavirus pandemic.
A federal judge in Texas invalidated the entire law in 2018. The
Trump administration, which had initially supported eliminating only
some parts of the law, then changed its position and agreed with the
judge's ruling. Earlier this year the Supreme Court agreed to take the
case.
Mr. Trump has vowed to replace Justice Ginsburg, a stalwart defender
of the law, before the election. If he is successful in placing a sixth
conservative on the court, its new composition could provide the
necessary five votes to uphold the Texas decision.
Many millions more people would be affected by such a ruling than
those who rely on the law for health insurance. Its many provisions
touch the lives of most Americans, from nursing mothers to people who
eat at chain restaurants.
Here are some potential consequences, based on estimates by various
groups.

133 Million