[Congressional Record Volume 166, Number 184 (Sunday, October 25, 2020)]
[Senate]
[Pages S6533-S6554]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Medical care for the uninsured could cost billions more
Doctors and hospitals could lose a crucial source of revenue, as more
people lose insurance during an economic downturn. The Urban Institute
estimated that nationwide, without the A.C.A., the cost of care for
people who cannot pay for it could increase as much as $50.2 billion.
Hospitals and other medical providers, many of whom are already
struggling financially because of the pandemic, would incur losses, as
many now have higher revenues and reduced costs for uncompensated care
in states that expanded Medicaid. A study in 2017 by the Commonwealth
Fund found that for every dollar of uncompensated care costs those
states had in 2013, the health law had erased 40 cents by 2015, or a
total of $6.2 billion.
The health insurance industry would be upended by the elimination of
A.C.A. requirements. Insurers in many markets could again deny coverage
or charge higher premiums to people with pre-existing medical
conditions, and they could charge women higher rates. States could
still regulate insurance, but consumers would see more variation from
state to state. Insurers would also probably see lower revenues and
fewer members in the plans they operate in the individual market and
for state Medicaid programs at a time when millions of people are
losing their job-based coverage.
1,000 Calories
Menu labels are among dozens of the law's provisions that are less well
known
The A.C.A. requires nutrition labeling and calorie counts on menu
items at chain restaurants.
It requires many employers to provide ``reasonable break time'' and a
private space for nursing mothers to pump breast milk.
It created a pathway for federal approval of biosimilars, which are
near-copies of biologic drugs, made from living cells.
These and other measures would have no legal mandate to continue if
the A.C.A. is eliminated.''
The ACA has made significant progress in the ability to expand
women's access to health care. Pushing for its repeal means putting
that progress and women's futures at risk.
I would like to read an article by Jamille Fields Allsbrook from the
Center for American Progress entitled ``Repealing the ACA During the
Coronavirus Pandemic Would Be Devastating for Women's Health and
Economic Security.''
It reads:
The Affordable Care Act (ACA) has been one of the most
significant advancements for women's health and economic
security in a generation. The law expanded coverage to
millions of uninsured people through financial assistance and
public insurance and also improved the quality of existing
coverage, including by expanding access to reproductive and
maternal health services and by prohibiting discrimination
against women and people with preexisting conditions. Yet its
fate remains uncertain. On November 10, the U.S. Supreme
Court will hear oral arguments in California v. Texas, a case
that will determine the constitutionality of the ACA.
Specifically, the high court will determine whether the
individual mandate is unconstitutional and whether the
remainder of the law is inseverable from that provision.
Especially with Justice Ruth Bader Ginsburg's recent passing,
the benefits and consumer protections that women have gained
and
[[Page S6534]]
come to rely on could swiftly be eliminated. In short, if the
ACA is repealed, coverage for more than 20 million people and
the significant benefits and consumer protections that have
been gained under that law are at stake.
Compounding this issue, the ACA repeal would come at a time
when the coronavirus pandemic and resulting economic crisis
have already burdened women. For instance, unprecedented job
losses have resulted in the loss of insurance coverage;
barriers to maternal and reproductive health care have been
erected; the providers women rely on--who were already
underfunded--have been stretched to capacity; and health
disparities that have historically burdened Black and Latina
women have been exacerbated and compounded. Repealing the ACA
during the pandemic would no doubt cost women--especially
women of color, women with disabilities, women with low
incomes, and young women.
First, repealing the ACA would reduce access to treatments
and vaccines during the pandemic and allow COVID-19 survivors
to be discriminated against in the insurance market, thus
lengthening the time that the crisis will likely affect women
and their families. Second, the economic crisis has already
harmed women the most, and eliminating coverage and allowing
gender rating and coverage caps would shift additional costs
on to women. Lastly, existing barriers to maternal and
reproductive health services, both those created during and
before the pandemic, would likely be exacerbated.
1. Repealing the ACA would prolong and worsen the effects of the
pandemic for women and their families.
While a repeal of the ACA would be chaotic and devastating
even in typical times, the current pandemic would only
magnify its effects. Without coverage, women would experience
barriers to a COVID-19 treatment and vaccine--which could
prolong the effects of the pandemic. These barriers would be
most devastating, however, for women of color given the
health inequities associated with COVID-19. Compared with
white, non-Hispanic people, Black people are 2.6 times more
likely to contract the virus, 4.7 times more likely to be
hospitalized, and 2.1 times more likely to die from the
disease. Similarly, American Indian and Alaska Native people
contract the virus at 2.8 times the rate, are hospitalized at
5.3 times the rate, and die at 1.4 times the rate of white,
non-Hispanic people. And Latinx people are 2.8 times more
likely to contract the virus, 4.6 times more likely to be
hospitalized, and 1.1 times more likely to die of COVID-19
than white, non-Hispanic people.
Even worse, if the ACA is repealed, COVID-19 survivors
could be discriminated against when seeking insurance
coverage. Without ACA protections, insurers in the individual
market could once again charge enrollees more or deny them
coverage if they have a preexisting condition. This could
affect the more than 7 million Americans who have been
infected with COVID-19, as it could be deemed a preexisting
condition.
Even before the pandemic, a Center for American Progress
analysis found that nearly 68 million women--more than half
of girls and nonelderly women in the country--had a
preexisting condition. If insurers are able to make the
determination as to whether a person has a preexisting
condition, conditions ranging from HIV/AIDS to breast cancer
to the nearly 6 million annual pregnancies could again be
included in this category. And importantly, Black, Latinx and
American Indian and Alaska Native people have higher rates of
COVID-19 as well as certain chronic conditions such as
cervical cancer and diabetes, so eliminating coverage and
protections for people with preexisting conditions would harm
these communities the most.
2. Women's financial security would be threatened by an ACA
repeal.
Women have lost the majority of jobs since the start of the
pandemic. In fact, multiple studies have pointed to the fact
that the current recession is tougher on women than men. One
U.S. Bureau of Labor Statistics explains that unlike past
recessions, ``the [coronavirus] crisis has battered industry
sectors in which women's employment is more concentrated--
restaurants and other retail establishments, hospitality and
health care.'' Additionally, school closures have forced
women, who are more likely to be primary caregivers for young
children or sick family members, to reduce hours or leave
their jobs--which can also result in coverage loses. In
particular, Black and Latina mothers are more likely than
white mothers to be the sole or primary breadwinners of their
households, so they will be hit hardest by the additional
financial burdens. Before the pandemic, there was already a
wage gap between women and men--a gap that is exacerbated by
race and ethnicity, given that Black, Latinx, and American
Indian and Alaskan Native populations experience poverty
rates that are significantly higher than those of non-
Hispanic, white populations. Perhaps as a result, women were
already more likely than men to forgo or delay accessing
recommended care due to costs.
Yet given the pandemic, losing the financial security
afforded by having insurance coverage would be even more
devastating for women. The ACA provided financial assistance
for private insurance coverage and expanded enrollment in the
Medicaid program, which resulted in the uninsurance rate
reaching a historic low. As a result, the uninsurance rate
among women declined by nearly half from 2010 to 2016. An ACA
repeal would merely undermine safety net programs when people
need them the most. Women comprise 58 percent of Medicaid
enrollees according to 2018 data, and Medicaid expansion
resulted in a 13-percent decrease in the uninsurance rate
of young women of reproductive age--19 to 44 years old--
with low incomes. In particular, Medicaid's no- and low-
cost services afford necessary and preventive health care
access to people with low incomes, a disproportionate
number of whom are women of color due to systemic racism,
sexism, and poverty. From 2013 to 2018, due to the ACA's
coverage expansions, fewer Black women and Latinas
reported delaying care as a result of costs, narrowing the
disparity between white women and women of color.
Women who maintain access to insurance coverage could also
face increased costs. If the ACA's prohibition on gender
rating is repealed, insurers could once again charge women
more for coverage in the individual and small-group markets
simply for being women, reinstating a practice that
collectively cost women $1 billion more than men each year.
Additionally, the ACA created the Health Care Rights Law,
which prohibits discrimination in health care on the basis of
sex, race, color, national origin, age, and disability;
notably, this marks the first time that a federal prohibition
against sex discrimination was applied broadly to health
care. Lastly, if the health care law is repealed, women with
chronic conditions, such as HIV and cancer, could be subject
to annual lifetime limits--a practice prohibited under the
ACA that allowed insurers to require plan enrollees pay out
of pocket for all services after they reach a certain dollar
threshold. These increased costs could easily price many
women out of insurance in the middle of a public health
crisis.
The ACA has also been associated with improving job
opportunities. The majority of people in the United States
access health coverage through their employer, yet by
improving access to coverage that is not job-based, the ACA
has afforded people the ability to leave or switch jobs with
assurance that they won't lose the coverage. Moreover, the
ACA created at least 240,000 jobs in the health care industry
from 2014 to 2016--and women comprise the majority of health
care workers. The chaos that would result from repealing the
ACA would be felt particularly acutely by those employed in
these jobs.
3. Repealing the ACA would exacerbate existing barriers to
reproductive and maternal health care services.
According to the Centers for Disease Control and
Prevention, pregnant people with COVID-19 have higher rates
of hospitalization, admission to the intensive care unit, and
mechanical ventilation. And alarmingly, Black pregnant women
are disproportionately contracting COVID-19. Subsequently,
there are concerns that the pandemic will exacerbate existing
health inequities that have led to Black, as well as American
Indian and Alaska Native women, dying from pregnancy-related
complications at around three times the rate of white, non-
Hispanic women. A repeal of the ACA in its entirety would
result in reduced access to pre- and post-natal care for as
many as 13 million people in the individual market because
the individual and small-group health plans would no longer
be required to cover certain basic health care services--
known as essential health benefits--including maternity and
newborn care. Eliminating the expanded eligibility created
under the ACA could also worsen the crisis given that
Medicaid expansion is associated with lower rates of maternal
and infant mortality and covers 50 percent of births in the
United States.
Moreover, due to the many unknowns that remain regarding
how COVID-19 affects pregnant people, some individuals may
want to delay or forgo pregnancy, necessitating access to
comprehensive reproductive health services. The ACA requires
most plans to cover birth control with no out-of-pocket
costs. As a result, women have saved more than $1.4 billion a
year in out-of-pocket costs on birth control pills. According
to data from the National Women's Law Center, 61.4 million
women currently have access to birth control as well as other
preventive services, such as well-woman visits, with no out-
of-pocket costs--thanks to the ACA. Without requirements for
those services to be covered, women would be forced to pay
out of pocket or forgo care if they could not afford to.
Illustratively, without insurance coverage, birth control
pills would cost a woman up to $600 per year, and an
intrauterine device would cost about $1,000 out of pocket.
Additionally, the pandemic has erected barriers that make
it harder for women to access necessary preventive care--both
as a result of job losses and barriers to accessing care
during the pandemic. As a result, women have already delayed
care in recent months. A repeal of the ACA would only lead to
further delays given that plans would no longer be required
to cover preventive screenings, mental and substance abuse
services, rehabilitative services, and a host of other
services.
President Donald Trump and his conservative allies in the
Senate are not only forgoing their responsibility to address
the dueling health and economic crises, they are also rushing
to install a new, conservative justice on the Supreme Court
who would tilt its balance in favor of striking down the ACA.
With November oral arguments quickly approaching, this has
increased the risk
[[Page S6535]]
that the health care law will be repealed. Given the health
benefits, protections against discrimination, and financial
security that the ACA affords women, destroying the law would
be immeasurably harmful to women at any time. But repealing
the law in the midst of a global pandemic that has infected
millions of Americas and killed more than 200,000 people in
the United States would result in even more chaos and
devastation.
One of the newest groups of people with preexisting conditions who
are worried about losing or being able to afford coverage are the COVID
long-haulers. I would like to read this article from PEW Stateline,
written by Michael Ollove, entitled ``COVID-19 `Long-Haulers' Worry
About Coverage Costs.''
It reads:
Andrea Ceresa has been through three gastroenterologists
already and now is moving on to her fourth.
She's seen an infectious disease specialist, a
hematologist, cardiologist, an ear, nose and throat
specialist, a physiatrist and an integrative doctor. She has
an appointment coming up with a neuropsychologist and another
one with a neurologist. She had an endoscopy, colonoscopy, CT
scan, brain MRI, and so many blood tests, she said ``I
feel like a human pin cushion.'' She was planning a trip
soon to an acupuncturist and has a referral for
occupational therapy.
Ceresa, a resident of Branchburg, NJ, relayed this medical litany on
day 164 of her COVID-19 ordeal. So far, she said, nothing much has
helped.
Before COVID-19, Ceresa was a healthy, active 46-year-old who managed
a dental office by day and sang professionally by night, a woman who
enjoyed yoga and jumped on a WaveRunner any chance she got. Now, beset
by a multitude of unshakable symptoms, she said COVID-19 has
transformed her into a ``shell'' of what she was. All parts of her body
are in rebellion. She has severe, persistent diarrhea, constant nausea,
dizziness, paralyzing fatigue, piercing headaches, numbness in her
limbs, blurry vision, ringing in her ears, and a loss of hearing, an
insurmountable deficit for a musician. She gets a rash on her face,
finds light and Sun painful on her eyes--a condition known as
photophobia--and suddenly finds herself feeling uncomfortably cold for
no reason. On top of all that is an alarming brain fog.
``At some point in this conversation,'' she warned, ``I might lose my
train of thought or forget words.''
When this will end--if it will end--none of those doctors and
specialists can tell her, nor can anyone else, not at the Federal
Centers for Disease Control and Prevention, the National Institutes of
Health, the World Health Organization or any other major health
organization. As a result, Ceresa has no idea what life holds for her.
So-called long-haulers like Ceresa pose policy questions that have
yet to command much public attention but daily become more pressing for
those with lingering problems. Unable to work, will they have access to
health insurance, especially if the Trump administration succeeds in
overturning the Affordable Care Act. Will Medicaid be available to
them? Will the Federal Government invest in research and treatment?
Will they be eligible for disability benefits?
Advocates say it is essential to begin grappling with these questions
now as it becomes increasingly clear that for many being ill with
COVID-19 is not a transitory experience.
``As time goes on and infection rates go up, the fallout is an
extraordinary number of people who were previously healthy, working,
and engaged in the economy will now become shadows of their former
selves,'' said Diana Berrent, founder of Survivor Corps, a grassroots
organization connecting those who have been infected with COVID-19.
Berrent said it has 107,000 members.
``People are aging decades in the course of months,'' said Berrent,
who is still experiencing symptoms months after her positive test.
``People in their 20s are suffering heart attacks and strokes months
after their moderate or even mild COVID experiences.''
More attention needs to be paid to those with persistent, serious
COVID-19 symptoms, said Dr. Amesh Adalja, an infectious disease doctor
and senior scholar at the Johns Hopkins University Center for Health
Security.
In this pandemic so far we've thought mainly about the
metrics of deaths and hospitalizations, but now we must think
about people with long-haul symptoms. How will this affect
society as a whole? What happens if people don't go back to
their former level of activities?
For her part, Ceresa has no idea when or if she will be able to
return to work. She lost her employer-sponsored healthcare and recently
got on an ObamaCare policy. But, with uncertainty hanging over the ACA,
she wonders how long she will have it
``I have a plethora of preexisting conditions that I never had
before,'' she said.
Meanwhile, hardly a day goes by that she doesn't have some kind of
medical appointment, including some at Mount Sinai Hospital in New
York, which opened what Berrent said is one of only two centers in the
United States specifically focused on those with ``long COVID-19.''
``I'm doing everything you can imagine to try to get better,'' Ceresa
said. ``If someone says, `Try this,' I'll try. I'll walk on coals. The
list of referrals I have is off the charts.''
Exactly how many people fall into the category of long-haulers is
uncertain, which is part of the problem, Berrent said. There is very
little research yet on the experiences of people who suffer from
persistent COVID-19 symptoms.
``Even if it's a small percentage of people with long-haul
symptoms,'' Adalja said, ``with more than seven million people infected
overall that's still going to be a big number.''
The CDC in late July reported that 35 percent of symptomatic adults
who had tested positive for COVID-19 said they had not returned to
their usual state of health 2 to 3 weeks after their tests. Among those
ages 18-34, 1 in 5 hadn't returned to their normal states of health.
The survey did not include children.
There appears to be no data yet on numbers of people experiencing
serious symptoms over longer periods of time or detailed information
about their circumstances, such as age, gender, medical histories, or
course of their illnesses. Complicating the data collection is that
many of them, even those with debilitating symptoms, were never
hospitalized.
Some researchers are delving into the subject, including Natalie
Lambert, a medical researcher at Indiana University School of Medicine,
who has partnered with Berrent's group to amass a far more extensive
list of COVID-19-related symptoms reported by long-haulers than the 11
symptoms CDC identifies. Lambert's survey lists 98. Respondents
characterize more than a quarter of those symptoms as painful.
Because so little is still known about COVID-19, Lambert said doctors
often dismiss patient concerns that their symptoms are virus related.
``If a provider is updated, things move along and that patient has
access to best care,'' said Lambert. ``But if the provider is not up to
date or is skeptical that the symptoms are COVID-related, they might
think that it's just a case of reflux or anxiety. In those cases,
patients are stuck.''
Kelly Ausiello, a 42-year-old registered nurse in Hendersonville, NV,
has had a constellation of symptoms since April, including severe
migraines, fatigue, nausea, vomiting, and weakness. Ausiello has
stopped going to doctors because none knew what to do for her.
``They keep saying they don't know how to help me,'' she said. ``They
just say, `I don't know,' `I don't know,' `I don't know.' ''
She had to suspend her studies to become a nurse practitioner, which
she was on course to complete in December. She doesn't know if her
health will allow her to ever resume.
``My life is changing maybe forever,'' she said.
Long-term COVID-19 raises several policy issues. For people affected,
none is more urgent than the threat of losing their health insurance.
The ACA, which passed in 2010, barred health insurers from denying
coverage to people with serious or chronic health conditions prior to
enrollment, adding significant surcharges to their premiums, curtailing
their benefits, or imposing extended waiting periods on them.
Such protections would vanish if the Supreme Court invalidates the
ACA, as the Trump administration and Republican Governors or attorney
generals in
[[Page S6536]]
20 States are urging it to do. The Court is scheduled to hear arguments
in the case next month, possibly with a new, decisive, Trump-nominated
Justice on the bench.
A 2017 Federal study found that up to 133 million Americans under age
65 had preexisting conditions. COVID-19 could add substantial numbers
of people to that total.
Without the ACA's protections, people who had a positive test for
COVID-19 could be denied coverage. More than 7.5 million cases have
been reported in the United States. Because the virus has been linked
to damage to the heart, lungs, and brain, a positive COVID-19 test
could be used to argue that a patient had had a preexisting condition--
COVID-19--to refuse claims to a patient who later developed a disease
related to one of those organs.
But even those with negative tests could get caught in the same net,
according to a paper published late last month by the Kaiser Family
Foundation. The paper notes, for example, that rideshare drivers who
get tested because they worry they have been exposed could be refused
coverage if an insurer determines that those seeking tests have higher
odds of infection.
``If ACA protections are invalidated, such people might be turned
down, charged more, or offered a policy that temporarily or permanently
excludes coverage for COVID-19,'' the paper said.
Karen Pollitz, one of the authors, described insurers as ruthless
when it came to medical underwriting in the days before the ACA.
``The individual health insurance market pre-ACA was a competitive
market,'' she said. ``It did not pay for one insurer to be more
generous than another. It was a race to the bottom.''
Without explaining how they would do it without the ACA, President
Donald Trump and some congressional Republicans have promised they
would continue to protect those with preexisting conditions.
At least 17 States have adopted laws preserving preexisting condition
protections should the ACA be overturned, but the effectiveness of
those laws is questionable.
The ACA also helps stabilize health insurance premiums through
Federal tax credits it provides to low-income policyholders. Those
dollars would be eliminated without the ACA, probably putting health
insurance out of reach for many Americans, particularly those facing
high surcharges for preexisting conditions.
Even if some States tried to preserve the protections within their
borders, insurers could simply refuse to offer coverage to residents of
those states.
The elimination of the ACA also might scrap the Medicaid expansion
that was part of the law. That alone could deprive more than 12 million
low-income, adult Americans, some of them no doubt long-haulers, of
health insurance coverage.
The dearth of testing, especially early in the pandemic, could become
a problem for long-haulers if Congress eventually creates a fund to
help pay for COVID-19 treatment, as it eventually did for first
responders affected by their work at Ground Zero after 9/11.
``People are going to need to prove they had COVID, but how do you do
that when tests weren't available or were faulty?'' said Berrent.
``That's going to put people in a pickle.''
Without firm, black-and-white results, patients with lingering
symptoms could find it impossible to make their case that their
illnesses were coronavirus-related.
``There may come a period in which people are going to have to prove
that COVID is the reason for their heart issue or lung disease and not
just that they're getting older,'' said Nathan Boucher, an assistant
research professor at Duke University's Sanford School of Public
Policy.
Berrent said many of those in her group complain of doctors not
believing them. ``People are being gaslit by doctors,'' she said. ``And
it's more women than men. I call it a modern-day version of what they
used to call female hysteria.''
Joy Wu, a 37-year-old engineer in the San Francisco Bay area, has had
firsthand experience with that medical skepticism. She contracted what
she believes was COVID-19 after returning in March from a vacation on
the Galapagos Islands.
She experienced dizziness, nausea, fatigue, back pain, confusion,
excruciating headaches, and such weakness that she has repeatedly
fallen. Sometimes her heart races so fast, she said, ``It feels like
it's going to explode.'' She has episodes of tingling in her limbs and
brain fog.
Because she didn't have the respiratory symptoms most often
associated with COVID-19, she didn't have a diagnostic test until day
43, too late to know if she was infected, as she thinks she was, weeks
earlier. She tested negative.
She said an ER doctor diagnosed her with COVID-19, although three
medical doctors have attributed her symptoms to anxiety. But Wu said
that both a psychiatrist and a psychologist who examined her told her
that mental illness doesn't explain her symptoms. It was through a
COVID-19 support Facebook group that she found others with similar
symptoms.
Apart from ensuring that long-haulers can get health insurance,
Berrent believes policymakers need to ensure that COVID-19 patients
will not be barred from receiving disability benefits. Many, such as
Ceresa and Wu, will not return to the workforce anytime soon.
``Disability wasn't meant for people when they're 30 or 40, but
that's what we are going to be facing,'' she said.
Beyond finding a way to pay for COVID-19 treatment, Berrent said, the
Federal Government should invest heavily in understanding the medical
experience of long-haulers with an eye toward developing effective
treatments. She wants to see more post-COVID-19 centers established for
research and treatment.
``We need a warp speed race for a therapeutic for people suffering
from post-COVID-19 that parallels what we're seeing for the development
of a vaccine,'' she said.''
The Affordable Care Act has helped millions of Americans access the
health coverage they need, and it has worked to address racial
disparities in health coverage. Overturning it threatens to undo that
progress.
I would like to read an article from the Kaiser Family Foundation by
Samantha Artiga, entitled ``Loss of the Affordable Care Act Would Widen
Racial Disparities in Health Coverage.''
It reads: ``In November, the Supreme Court is scheduled to hear
arguments on a legal challenge, supported by the Trump administration,
that seeks to overturn the Affordable Care Act (ACA). As noted in a
previous KFF analysis, the outcome will have major effects throughout
the health care system as the law's provisions have affected nearly all
Americans in some way.
One of the most significant aspects of the ACA has been its expansion
of health coverage options through the Medicaid expansion to low-income
adults and the creation of the health insurance marketplaces with
subsidies to help people purchase coverage.
This analysis shows that these new coverage options have contributed
to large gains in coverage, particularly among people of color, helping
to narrow longstanding racial disparities in health coverage. The loss
of these coverage pathways, particularly the Medicaid expansion, would
likely lead to disproportionate coverage losses among people of color,
which would widen disparities in coverage, access to care, and health
outcomes.
Prior to the ACA, people of color were significantly more likely to
be uninsured than White people. The higher uninsured rates among groups
of color reflected limited access to affordable health coverage
options.
Although the majority of individuals have at least one full-time
worker in the family across racial and ethnic groups, people of color
are more likely to live in low-income families that do not have
coverage offered by an employer or to have difficulty affording private
coverage when it is available.
While Medicaid helped fill some of this gap in private coverage for
groups of color, before the ACA, Medicaid eligibility for parents was
limited to those with very low incomes (often below 50% of the poverty
level), and adults without dependent children--regardless of how poor--
were ineligible under federal rules.
People of color experienced large coverage gains under the ACA that
helped to narrow but did not eliminate disparities in health coverage.
Coverage
[[Page S6537]]
rates increased for all racial/ethnic groups between 2010 and 2016,
with the largest increases occurring after implementation of the ACA
Medicaid and Marketplace coverage expansions in 2014. Overall, nearly
20 million nonelderly people gained coverage over this period,
including nearly 3 million Black people, over 5 million Hispanic
people, and over 1 million Asian people.
Among the nonelderly population, Hispanic individuals had the largest
percentage point decrease in their uninsured rate, which fell from
32.6% to 19.1% between 2010 and 2016.
Black, Asian, American Indian and Alaska Native (AIAN), and Native
Hawaiian or Other Pacific Islander (NHOPI) people also had larger
percentage point decreases in their uninsured rates compared to their
White counterparts over that period. These coverage gains reduced
percentage point differences in uninsured rates between some groups of
color and White people, but disparities persisted.
Most groups of color remained more likely to be uninsured compared to
White people. Moreover, the relative risk of being uninsured compared
to White people did not improve for some groups. For example, Black
people remained 1.5 times more likely to be uninsured than White
people, and the uninsured rate among Hispanic people remained over 2.5
times higher than the rate for White people.
Between 2016 and 2017, and continuing in 2018, coverage gains stalled
and began reversing for some groups. Over this period there were small
but statistically significant increases in the uninsured rates for
White and Black people among the nonelderly population, which rose from
7.1% to 7.5% and from 10.7% to 11.5% respectively. Among children,
there was also a statistically significant increase in the uninsured
rate for Hispanic children, which rose from 7.6% to 8.0% between 2016
and 2018.
Recent data further show that the number of uninsured continued to
grow in 2019 despite improvements in household economic measures, and
indicate the largest increases between 2018 and 2019 were among
Hispanic people.
The growth in the uninsured likely reflects a combination of factors,
including rollback of outreach and enrollment efforts for ACA coverage,
changes to Medicaid renewal processes, public charge policies, and
elimination of the individual mandate penalty for health coverage.
The ACA provides coverage options for people losing jobs amid the
economic downturn associated with the pandemic. The economic fallout of
the coronavirus pandemic has led to historic levels of job loss. As
people lose jobs, many may face disruptions in their health coverage
since most people in the U.S. get their insurance through their job.
Early KFF estimates of the implications of job loss found that nearly
27 million people were at risk of losing employer-sponsored health
coverage due to job loss. Many of these people may have retained their
coverage, at least in the short term, under furlough agreements or
employers continuing benefits after layoffs. However, the health
coverage options made available through the ACA have provided options
for people losing employer-sponsored coverage who might otherwise
become uninsured.
Following enrollment declines in 2018 and 2019, recent data indicate
Medicaid enrollment increased by 2.3 million or 3.2% from February 2020
to May 2020. Additionally, as of May 2020, enrollment data reveal
nearly 500,000 people had gained Marketplace coverage through a special
enrollment period (SEP), in most cases due to the loss of job-based
coverage.
The number of people gaining Marketplace coverage through a SEP in
April 2020 was up 139% compared to April 2019 and up 43% in May 2020
compared to May 2019.
People of color would likely experience the largest coverage losses
if the ACA coverage options were eliminated. In the absence of the ACA,
states would lose a pathway to cover adults without dependent children
through Medicaid under federal rules. They also would lose access to
the enhanced federal funding provided to cover expansion adults.
As such, states would face challenges to maintain coverage for adults
without dependent children and parents and many would likely roll back
this coverage, eliminating a coverage option for millions of low-income
parents and childless adults who do not have access to other affordable
coverage.
Moreover, without the federal subsidies, many people would not be
able to afford private coverage. Since people of color experienced
larger gains in coverage under the ACA compared to their White
counterparts, they would likely also experience larger coverage losses
if these coverage options were eliminated.
Loss of the Medicaid expansion, in particular, would likely lead to
disproportionate coverage losses among people of color, contributing to
widening disparities in coverage, access to and use of care, and health
outcomes. Overall, among the nonelderly population, roughly one in
three Black, Hispanic, and AIAN people are covered by Medicaid compared
to 15% of White people.
Further, research shows that the ACA Medicaid expansion to low-income
adults has helped to narrow racial disparities in health coverage,
contributed to improvements in access to and use of care across groups,
and narrowed disparities in health outcomes for Black and Hispanic
individuals, particularly for measures of maternal health.
In sum, the outcome of the pending legal challenge to overturn the
ACA will have effects that extend broadly across the health care system
and touch nearly all Americans. These effects could include widening
racial disparities in health coverage and health care, at a time when
there is a growing focus on prioritizing and advancing health equity
and in the middle of a pandemic that has disproportionately affected
people of color in the U.S.
Without the ACA coverage expansions, people of color would likely
face widening gaps in health insurance coverage, which would contribute
to greater barriers to health care and worse health outcomes and leave
them at increased risk for medical debt and financial challenges due to
health care costs.''
The PRESIDING OFFICER (Mr. Barrasso). The Senator from Nebraska.
Mr. SASSE. Mr. President, Senators have worked through the weekend
and the clock is obviously winding down later today. Tonight after
final confirmation vote, Judge Amy Coney Barrett is going to become
Justice Amy Coney Barrett. For those of us who have been advocating for
her--in my case it has been since the summer of 2017--that is welcome
news. She is an unparalleled nominee and will be a dazzling originalist
on the Supreme Court.
None of the baseless allegations that have been leveled against Judge
Barrett have swayed any votes. Democrats didn't lay a glove on Judge
Barrett in her confirmation hearing, and I think she ran circles around
career politicians who want to outsource more lawmaking to unelected
judges. Some folks are upset about that, and even though many of my
male colleagues on the Judiciary Committee also complimented the
Judiciary Committee chairman on a very well-run hearing, tragically,
the minority leader--it seems that he has decided to make Dianne
Feinstein a scapegoat for the unforgiveable sin of being unwilling to
turn more of Judge Barrett's hearing into another Michael Avenatti
clown show. I think that is just a painful moment in this institution's
history, and it speaks volumes about how low some people are willing to
sink in response to outside activists who would like to see bare-
knuckle politics be the only thing that happens in the Senate.
Judge Barrett's opponents know that they don't have the votes. They
know they don't actually have public support. They have seen the
polling rise steadily week after week after week over the last month as
the American public has gotten to know Judge Barrett better and learn
more about her. They are more and more comfortable with her and less
and less open to some of this sort of hyperbolic rhetoric that we have
seen leveled against her.
This is actually my fourth consecutive hour on the floor this
morning. I have heard a series of speeches and one of the things that
is obvious is that there are a whole bunch of phrases that were written
up. I don't know who wrote them up. I don't know how this process
happens, but speech after speech after speech uses really similar
[[Page S6538]]
phrasing to try to alarm and disturb and unsettle the American people,
and I think the cynicism is just really tragic. I have heard now, I
think, four speeches in a row implying that when Judge Barrett becomes
Justice Barrett later tonight, that obviously means the end of
healthcare in America. The last speech, actually, included this phrase:
A vote for Amy Barrett is a vote to end healthcare. The speech said:
``A vote for Amy Coney Barrett is a vote to end healthcare.''
That isn't just preposterous, it is so destructive of the public good
and of public trust, and I don't want this body to continue its
decline, but I hope that next April, May or June, when the Supreme
Court rules and when ObamaCare doesn't die--as no expert thinks this
case is actually going to do. There are no Court watchers who really
believe that the Supreme Court is going to end ObamaCare this year.
Severability is a pretty important legal concept that those of us who
serve as public servants for a time should be helping the American
people understand. And yet nobody on the other side of the aisle is
talking about severability, even though everybody watching the court
case knows that even if the opponents of ObamaCare prevail in this
case, that severability is what everyone expects will actually happen.
And yet we hear again and again and again this rhetoric just motivated
by the cynical desire to get people to vote out of fear and panic in
the November elections. Nobody really believes this stuff. So I hope
the Democrats that are making these speeches, staying here all night to
say again and again things like ``a vote for Amy Coney Barrett is a
vote to end healthcare,'' please have the courage to come back next
April, May, and June and say you lied to the American people, you were
just trying to scare them into voting, and say what you were saying was
BS.
Whoever writes these outside talking points, it is really
destructive, and the Senators know better than to parrot this pap.
So they are out of arguments, but they are not out of sound bites,
and one of the things that is true in American life is that with
freedom of speech, even if your sound bite is nonsense, you have the
right to be wrong, and you have the right to say it. So given that we
are going to be here all day--it is all over but the shouting--it seems
like we don't have to play the same speeches on repeat over and over
again. We can actually do two things, and I think we should spend a
little bit of time reviewing how we got here and a little bit of time
talking about where we go next.
First, we should explicitly name the Senate's most valuable player.
As somebody who is a junior member of this body, I don't want to cross
``Cocaine Mitch,'' the gentleman from Kentucky, but the truth of the
matter is, the Senator most responsible for the confirmation
proceedings we have happening on the floor today is not from Kentucky.
The Senator most responsible for the fact that Amy Coney Barrett is
going to be confirmed tonight, the Senator most responsible for the
confirmation of Neil Gorsuch and Brett Kavanaugh is the former
Democratic leader from Nevada, Senator Harry Reid. It was Senator Harry
Reid who blew up the filibuster for judicial appointments in November
of 2013, and the rest of how we got here is just a footnote on that
history.
Leader McConnell walked through some of this history on Friday and
Saturday, how at every turn, from Robert Bork to Brett Kavanaugh, many
progressives have, in an effort to try to secure policy outcomes in the
Supreme Court, been escalating the confirmation wars. I won't repeat
all of that history from Friday and Saturday here, but when Harry Reid
went nuclear, he set the Senate on a path to this day.
So here we are with more than 200 Federal judges confirmed in the
last 4 years. Again, I have been on the floor for the last 4 hours, so
I have heard multiple people lament the pace of judicial confirmations
on the floor. Some people love it; some people hate it, but whether you
got hate mail or you got love letters, your destination address should
be Las Vegas, NV. There is simply no equivalent or comparable event in
the confirmation escalation wars since they were created with the
``Borking'' of Robert Bork in 1987. There is simply no comparable event
with November of 2013 when Harry Reid decided to make this body simply
majoritarian on confirmations.
So where do we go next? It is no secret that some of my colleagues on
the left are itching to blow up the legislative filibuster. It is a
slightly better kept secret that a whole bunch of Democrats in the
Senate think this is a really bad idea, but they are scared to death of
the activist groups that have decided to go after Dianne Feinstein in
the last 3 weeks as a sort of trial run to show what happens to people
who would resist trying to turn the Senate into a simple majoritarian
body. But I still want to at least compliment those folks in this body
who started to talk openly about their desire to blow up the filibuster
for the legislative process as well around here. I think it would be a
very destructive thing to do, but I appreciate the people who are at
least talking about it explicitly.
I have been fighting about some of this with my friend Chris Coons.
He is now open to blowing up the legislative filibuster, even though he
was the leader of the Senate letter in--I think it was January of
2017--in defense of the filibuster. The position he had then, when
there was a new administration of a different party, is the position I
had then, and it is still the position that I have now. And regardless
of what party holds power around here in 2021 or 2025, I am still going
to be defending the Senate as a supermajoritarian body that tries to
actually have a deliberative process.
So I think that my friend Chris is wrong about being open to blowing
up the legislative filibuster, but I don't think he is wrong because he
is a Democrat. I think a whole bunch of Republicans were wrong about
this issue in January of 2017, and so I fought with them as well. I got
lots of angry calls and texts from Republican Members of the House of
Representatives in early 2017 for defending the legislative filibuster
because the House and Senate are supposed to be different kinds of
bodies. We have different purposes. So my argument to Democrats now or
in January is the same as the argument I made to Republicans in January
of 2017, and that is that blowing up the filibuster would be to
functionally kill the Senate. It would dramatically change not just
this institution but the structure of governance in our Republic.
Because without the filibuster, the Senate becomes just another
majoritarian body, and we already have one of those. It is called the
House of Representatives.
The House and the Senate are supposed to have different complementary
functions, and if we kill the filibuster in the Senate, we will have
simple 51-to-49 votes radically changing the direction of the country.
We would see governance swings on a pendulum where big chunks of
American life could be rewritten every 2 years with simple 51-to-49 or
49-to-51 majority changes and therefore new majority votes. We would
become more like a parliamentary European system. It is a system that
has some virtues, but we don't have that system, and our Founders
didn't pick that system on purpose. In the age of declining trust and
increasing cynicism, the answer is surely not more instability. This
would deplete, not replenish, our declining reservoirs of public trust.
Killing the deliberative structure of the Senate would accelerate
Congress's ongoing slow and bipartisan suicide where fewer and fewer
decisions are made by the people's elected representatives and more and
more decisions would be made by an unelected bureaucracy that the
people back home whom we represent in Nebraska or New York or Rhode
Island or Virginia--the speeches that I have been hearing this
morning--where those folks don't have any power to hire or fire the
people who work in the administrative state, and accountability of
governance to the people means that we want the elected representatives
to be making most of those decisions, not the unelectable bureaucracy.
Even though lots of those people are well-meaning servants, they are
simply not accountable to the public.
Senators like Joe Manchin, Jon Tester, and Kyrsten Sinema would see
diminished influence as the people of West Virginia, Montana, and
Arizona got increasingly sidelined for even
[[Page S6539]]
more representation of New York and California.
Some of my colleagues apparently want to finish the work that Senator
Reid began. This would be to double-down on the division, the cynicism,
and the partisanship, and they would pretend that that is a day that
they would never regret. But I think it would be really useful for more
of the folks who are thinking now of whether they are in favor of
ending the legislative filibuster or whether they are too scared to
stand up to the activist groups demanding they end the legislative
filibuster, it would be useful for a lot more of them to go on the
record with the things they say to me in private about the regrets
about November of 2013.
I have only been here since January of 2015, and I have had either
seven or eight different Democrats currently serving in this body tell
me how much they regret the vote that they took at Harry Reid's urging
in 2013 to end the filibuster for confirmations to the judiciary.
And I understand that a junior Republican Senator from Nebraska
doesn't have a lot of sway in the Democratic conference, but maybe they
would listen to the quote of a different, more influential Senator:
[I]f the right of free and open debate is taken away from
the minority party and the millions of Americans who ask us
to be their voice, [then] I fear [that] the partisan
atmosphere in Washington will be poisoned to the point where
no one will be able to agree on anything. That does not serve
anybody's best interest, and it certainly is not what the
patriots who founded this democracy had in mind. We owe the
people who sent us here much [better] than that. We owe them
much [much] more.
I will repeat the quote:
[I]f the right of free and open debate is taken away from
the minority party and the millions of Americans who ask us
to be their voice, [then] I fear the partisan atmosphere in
Washington will be poisoned to the point where no one will be
able to agree on anything. That does not serve anybody's . .
. interest, and it certainly is not what the patriots who
founded this democracy had in mind. We owe the people who
sent us here more than that. We owe them much [much] more.
That quote was from the junior Senator from Illinois in 2005, Senator
Barack Obama, speaking passionately to this body about why it was
different, why it is different, and why we have a stewardship
obligation to defend the deliberative structure of the Senate. Senator,
then President Obama was right then; he is right now; and I fear that
he will sadly be right in the future, if partisan tribalists decide to
blow up the Senate and pack the Supreme Court.
The debate over Amy Coney Barrett is over. We will be voting soon,
but in the coming months, the debate for a critical piece of American
governance will start. I beg my colleagues to heed Senator Obama's
advice. Protect America's structure of three branches of government.
You lost this vote, but please don't burn down this institution. Again,
you lost this vote under the rules that Harry Reid created in 2013.
Please don't burn down this institution.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, good morning to you. You stand watches
everywhere.
We are here, in part, because of a Supreme Court nomination, but we
are here also because of a Supreme Court process that has turned foul
in a considerable number of ways.
I would like to spend the time that I have with you this morning
walking through some of the history that got us there.
With respect to the now-standard Republican talking points that the
only reason that we are here today in this partisan wrangle is because
of Harry Reid, I would submit that the spectacle of procedural wreckage
that surrounds all three of the last Supreme Court nominees completely
belies any suggestion that Senator McConnell would have respected the
filibuster of a Supreme Court Justice. They have broken essentially
every rule that got in their way--it didn't matter what it was--over
and over again. And the idea that they would break every rule but that
one simply makes no sense.
So I can see that it is sort of a cute and clever argument to go back
and point out that Harry Reid broke the effort to stonewall all of
President Obama's appointees to the DC Circuit Court, which was what
was going on at the time, but the rest of the wreckage belies that this
would have been protected by Leader McConnell in the mad, headlong rush
to load up the Supreme Court with nominees who have been through this
very, very peculiar Supreme Court process.
To those who wonder why it is that we talk a lot about healthcare in
the context of this nominee, look no further than the Republican Party
platform that my colleagues supported, which says that Republican
Presidents will appoint judges to reverse the ObamaCare cases. That is
the language from their own party platform. So expect some skepticism
about the sincerity of Republican expressions that they are shocked--
shocked--that we would try to tie the fate of the Affordable Care Act
to this nominee when they have put that in their party platform.
One of the unpleasant aspects of the process that I am about to
describe has been that the handoff to special interests of control over
who gets appointed to the Supreme Court means that there is an audience
for auditioning. Over and over again, we have seen judges audition to
that audience in order to get onto that all-important Federalist
Society list or, in the case of Judge Kavanaugh, to get escorted by
Leonard Leo, the operative of that operation, right around the list and
onto its very top. Nobody auditioned like Brett Kavanaugh.
But Judge Barrett made her own effort, and that was to make it very
publicly clear that she disagreed with Justice Roberts, the swing vote
who protected ObamaCare. That mattered because the outrage in the
rightwing that their Supreme Court they thought they had claimed
actually made one decision against their political interests--a sense
of betrayal by Justice Roberts. That was very acute.
It was into that environment that Judge Barrett added her unsolicited
opinion--just threw it out there--that Roberts was wrong; that the
dissent had it right. Obviously that allows us--in fact, requires us--
to draw the logical conclusion that when she is the swing vote, she is
going to go with the minority. So she telegraphed how she would rule in
this matter. She became the nominee. It was on the Republican Party
platform that she should reverse the ObamaCare cases. How are we not
supposed to notice this when you say this in all caps?
So, please, let's not pretend that we are making up a connection
between this appointment and the persistent Republican attack on our
present healthcare system.
The first thing you have to understand in looking at the Republican
judicial selection process is that we are now looking at three--we are
now looking at three nominees who have come through this process. It
began when I was in Munich on a trip with Senator McCain and Judiciary
Chairman Graham. He wasn't the chairman then, I don't believe. But we
had gone to the Munich Security Conference together, and word came--in
fact, I believe Senator Barrasso was there as well, who is now
presiding. Word came that Justice Scalia had died on a hunting vacation
and that there was a vacancy.
It became quickly evident that Merrick Garland, the chief judge of
the DC Circuit Court of Appeals--a very widely respected judge, someone
about whom Republican members of the Senate Judiciary Committee had
said very good things in the past, presumably a consensus nominee--was
likely to be the nominee of President Obama, a man who very often tried
for consensus and very often was spurned.
In this case, it did not take long for someone to decide that was not
going to happen and, indeed, that no Obama nominee was going to be
brought forward. It happened quickly but not so quickly that a few
Members of the Senate said that they would, of course, meet with the
nominee. That would be standard practice; of course, they would.
In any event, my recollection is that no one did--no Republican
Senator did. That was a very sudden pivot by an entire body of people
to go from a normal process to something very new and abnormal. In my
experience, when a whole lot of people all pivot together to go from
what is normal to something that is new and abnormal, you look for a
reason.
[[Page S6540]]
If you see all the branches blowing in one direction on a tree, you
may be indoors. You may not actually be able to feel the wind blowing.
But when you see all the branches lean, you can draw the reasonable
conclusion--in fact, you can draw perhaps the only reasonable
conclusion--that there is a wind blowing those branches, which begs the
question: What was the wind blowing all those branches to so
immediately step out of the norms of the Senate--not just 1 or 2 or 10
but as an entire caucus--and pivot to this new abnormal response to a
Presidential nominee? To me, that is a sign. That is a sign that
political force is being applied, that a strong wind is blowing, and
that all the branches have to lean in the same direction.
On we went through that process with very, very strong statements
being made by judges about this newly found principle that, during an
election year, you don't confirm Supreme Court Justices. They invented
that new principle--highly convenient to that moment, but they
described it as a principle.
Here is Senator Daines in 2016: ``I don't think it's right to bring a
nominee forward in an election year.'' He put it in about the strongest
moral terms that one could use. He used terms of principle. He used the
distinction between right and wrong. ``I don't think it's right to
bring a nominee forward in an election year.'' Why? So that the
people's voice--the people who have already begun voting had their
voice reflected.
So that was probably--I don't know--maybe 8 months before the
election. Here we are closer to 8 days before the election, and we are
going through this process, and there has been this extraordinarily
abrupt reversal of that supposed principle from 2016. ``I don't think
it's right.'' If it is not right, why are we doing it right now?
Suddenly, it is right in 2020.
Senator Daines wasn't alone. Mitch McConnell was the Senate floor
orchestrator of all of this. He said: ``Of course, of course, the
American people should have a say in the court's direction.'' That is
why we can't take up Judge Garland now--because the American people
should have their say months before the election. Here we are days
before the election--flips-o, change-o. What could that mean?
Senator Grassley: ``The American people shouldn't be denied a
voice.'' That was then; this is now.
Lindsey Graham: ``Hold the tape.'' ``Hold my words against me,'' the
chairman said. If an opening--here was his rule: ``If an opening comes
in the last year of President Trump's term, we'll wait till the next
election.'' Could you get clearer than that? ``If an opening comes in
the last year of President Trump's term, we'll wait till the next
election.'' ``Hold the tape.''
Ted Cruz: ``You don't do this in an election year.''
So what does it signal when people take a stand assertively on
principle that it wouldn't be right--Steve Daines; that ``you don't do
this''--Ted Cruz; that ``of course, of course, the American people
should have their say''--Mitch McConnell and Chuck Grassley--what does
it say when people take a stand on principle on one occasion and then
on the very next occasion, in the very next election, at the first
opportunity, they completely reverse themselves on their supposed
principle?
Well, one possibility is that there has been a minipandemic in the
Senate of hypocrisy; that somehow there is a little germ here, and
somebody brought hypocrisy into the Republican caucus, and everybody
caught it, and they feel an unhealthy desire to go out and violate
principles that they espoused on the previous occasion. That doesn't
seem very credible to me.
What seems more credible is that something is blowing in the
branches; that there is a force--a political force--at work that causes
Republican Senators to take a firm stand on principle, albeit a novel
one, a peculiar one, an unprecedented one, but in their words, a firm
stand on principle in the 2016 election, and exactly in the very next
case, in the 2020 election, completely reverse that supposed principle.
My experience in politics is that when you see people forced to engage
in hypocrisy in broad daylight, look for power in the shadows.
So we began with the Garland-Gorsuch switcheroo based on this ``you
don't do this in an election year'' principle. Then we went on to Judge
Kavanaugh, and the narrative has developed on the Republican side that
Judge Kavanaugh was treated very unfairly, as if no witness came
forward to testify in the Senate Judiciary Committee that she had been
assaulted by a young Brett Kavanaugh. I don't know what we were
supposed to do with that information. Were we supposed to tell the good
professor: Go away. We don't want to hear from you. Sorry, it is a
little late. The chance that a person headed for the Supreme Court
might have committed sexual assault is something we don't take at all
seriously. We don't want to get to the bottom of it. We don't want to
know.
This was a woman who was willing to come and testify in front of all
of America, subject herself to the hostile questioning of a
professional prosecutor hired by the Republicans just for that
occasion. She stuck to her guns and, in my view, was credible. To this
day, I still believe her. The nature of her testimony was very
consistent with the testimony of sexual assault victims who have been
through that kind of an ordeal.
Do I know what happened? No. But she was a credible witness. She was
willing to come into the Senate Judiciary Committee and claim that
Brett Kavanaugh assaulted her. Of course, we had to hear from her.
Republicans want to blame Democrats for that, but seriously, would you
not have let her testify? Really? That does not seem very credible.
So she came. She testified. She was credible. Despite the rightwing
having launched their flying monkeys at her in such vehemence, she had
to leave her house, hire private security, go into hiding, she
nevertheless came; she nevertheless was credible.
All we asked for was an investigation to find out what had happened,
to do our best to get to the bottom of it. It was going to be difficult
because it happened years ago, but it would seem to me that we owed
this institution and the Supreme Court our best effort. Did we get a
best effort? No, we got a slipshod, truncated decision that, to this
day, the FBI refuses to answer questions about. Why? Why not give Dr.
Blasey Ford, why not give the American people, why not give the Supreme
Court a best effort from the FBI to get to the bottom of whatever
happened?
There is every indication that the tip line the FBI set up was never
reviewed and followed up on. I have been a prosecutor. I have run the
attorney general's office in Rhode Island, which is the lead
prosecutorial office for the State. I have been the U.S. attorney for
Rhode Island, running Federal prosecutions. The whole purpose of a tip
line is to bring in evidence from the public and sort through it
because every tip line has bonkers evidence in it. But you sort through
the chaff to see if there is any wheat there, if there is anything that
needs to be looked into.
It does not appear that the FBI looked into anything that came in
through the tip line. It looks like the tip line--if you could imagine
the comments box, it looks like they attached the comments box directly
to the dumpster so that the tips went straight into the waste bin. I
know of no ``tip'' that got followed up on.
Once again, why? Why would the FBI allow itself to be associated with
a truncated, incomplete investigation? Well, they said why. They said
it was because they are not operating like an FBI when they do this.
They are operating as an agent of the White House. They are operating
at the White House's bidding when they are doing these confirmation
investigations. They don't behave like the FBI then and follow their
procedures. They do as they are told. That is a pretty strong clue and,
once again, a signal of powerful political forces at work to try to
cram nominees, even very troubled ones, onto the Supreme Court.
Then we come to Judge Barrett, who had to be the subject of this
massive flips-o, change-o of what was right for our traditional
nominees in an election year and enumerable minor broken rules along
the way.
As I said, in all three of these recent nominations, there is a trail
of procedural wreckage through the Senate. I don't think my colleagues
hate Senate procedure. I don't think they get a form of malicious glee
out of smashing
[[Page S6541]]
Senate procedure. When you see a lot of procedural wreckage in the
Senate, look for a motive. Look for a force. Look for a force.
Three for three, we have seen powerful signals of a motive force at
work. Sure enough, when you look at the process itself, you see some
real peculiarities.
First of all, when these judges got selected, they had something in
common. They all went through a process hosted at the Federalist
Society and run by a person named Leonard Leo. The Wall Street Journal
editorial page editor described this relationship as a subcontractor.
The judicial selection got subcontracted out to this private
organization and its operative--subcontracted out. The White House
counsel said this organization was insourced to the White House.
Leonard Leo was put on temporary leave from the Federalist Society--
like that is a big deal--to supervise the process.
Can we just stop for a minute and accept that it is weird that any
private organization would be made the subcontractor for the selection
of Supreme Court Justices? I don't care if it is the Girl Scouts of
America. It is weird and it is wrong that a private organization should
be the subcontractor for selecting judges.
And it gets weirder and wronger when you see the big anonymous money
pouring into that organization. The Washington Post took a pretty good,
thorough look into this scheme, and they said that the whole scheme was
$250 million worth of dark money--$250 million. They described it as
``a conservative activist's behind-the-scenes campaign to remake the
Nation's courts.'' On whose behalf, one wonders. But you don't know
because of the $250 million, most of it is anonymous money, what we
call around here ``dark money.''
You have the last three nominees selected by a private organization,
secretively, which is also taking huge donations from anonymous donors.
The whole scheme runs up to $250 million, according to the Washington
Post. That is a pretty big deal. If you can't see that that is a recipe
for corruption, you are wearing blinders, because the idea that a
private organization becomes designated to pick who is on the Supreme
Court and then takes big anonymous donations is a prescription for
disaster.
But it does produce nominees. At the end, you get your selection--
one, two, three. Then, those nominees get TV campaigns run for them.
There is a big PR effort, a political effort, and that is run by
something called the Judicial Crisis Network, which has as its
operative Carrie Severino. Judicial Crisis Network gets boatloads of
anonymous money also. You have the same problem--a private
organization, a secret organization that takes boatloads of anonymous
money having a central role in campaigning for these nominees. That is
also abnormal. This is new, this is peculiar, and this is wrong, in my
view.
By the way, when that Washington Post article came out, Leonard Leo
got blown like an agent in a covert operation. And to protect the
Federalist Society, he had to jump out, go do something else. So he
went out to go do dark money-funded voter suppression. Guess who jumped
into his role for Judge Barrett? Well, well, well, none other than Ms.
Severino.
The Judicial Crisis Network offices are next to the Federal Society's
offices--same building, same floor.
How big is the money? Well, here is a little filing from the Judicial
Crisis Network. This is from IRS Form 990. Look at this, a contribution
for $17.9 million--$17.9 million. Do we know who gave them $17.9
million to put on TV ads for a judicial nominee who had been selected
by the dark money group behind the Federalist Society? We do not. We do
not. But somebody wrote a $17 million check to support a PR campaign
for a Supreme Court nominee. How do we know they didn't have business
before the Supreme Court? How do we know that when they are anonymous?
By the way, they did it again. Somebody gave $17 million to push off
Garland and help Gorsuch. And then another 17-plus million dollars came
in for the troubled Kavanaugh nomination. Do we know that it is not the
same donor? No, we don't. It could be the same donor, in which case
somebody gave $35 million anonymously to influence the makeup of our
U.S. Supreme Court.
And they may have business before the Court. There is a case called
the Caperton case in which the Supreme Court said you had a due process
right not to have Judges who had big money spent on their behalf to get
the office rule in your case. This looks like a Caperton problem--$35
million spent by conceivably one donor who may very well have business
before the Court.
Why would you do this? Why would you do this? Why would you ever
allow judicial nominees to be selected this way, funded by dark money,
anonymously, controlled by private, secretive organizations? Why would
you do that? Why is that acceptable at all? I submit that were the shoe
on the other foot, the other side would have its hair on fire about
such a performance.
The fact that this seems OK is yet another indication of the branches
blowing in the wind here because it is not OK by any objective or
reasonable standard. The only thing that makes this OK is if that
political force makes this OK in the same way they made it OK to
reverse the 2016 principle on the very next occasion in 2020.
When you see hypocrisy in the daylight, look for power in the
shadows.
It doesn't end once their judges are selected and once the judges
have their campaigns paid for by $17-million check writers. When they
are on the Court, guess who shows up in orchestrated choruses. Groups
funded by dark money. In some cases, they are the litigating lawyer
group. In some cases, they come on afterward as what are called friends
of the court, amici curiae--friends of the court.
We had one case that I looked at about the Consumer Financial
Protection Bureau, where it turned out that a whole bunch of amici
curiae showed up--friends of the court, a whole bunch of them. So I did
this graphic in the brief that I filed. It showed 1, 2, 3, 4, 5, 6, 7,
8, 9, 10, 11 briefs filed in that case by nominally separate groups,
all funded by the same organization, Donors Trust, 8 out of 11 funded
by the Bradley Foundation, and more overlapping donors throughout. This
was just my work.
The Center for Media and Democracy went back and did an even more
thorough drill down and came to even more astonishing conclusions about
the overlap between the funding of these groups showing up in these
orchestrated choruses.
By the way, they don't tell the Court that they are all funded by the
same groups. They don't tell the other parties that they are all funded
by the same groups. There is actually a disclosure in the briefing rule
that says you are supposed to disclose who paid for your briefing. They
use that to mean who paid for the printing of the brief.
So you can take a million-dollar contribution from somebody or, who
knows, a $17-million contribution from somebody, and then pay a couple
of thousand bucks yourself to have the brief published and disclose
nothing to the Court, nothing to the parties about who is really behind
these phony-baloney, trumped-up, front-group friends of the court. But
they do provide an educating chorus for the judges and tell them how to
rule.
By the way, the Center for Media and Democracy showed that not only
is the funding going to these groups, but the same funding is going
over there to the Federalist Society to support this judicial selection
operation. And from Judicial Crisis Network, you have the
interchangeable Leonard Leo and Carrie Severino. This looks like a
single scheme--a single scheme through which a small group of very
secretive, big money donors, donors capable of writing a $17-million
check to help influence who is on the Supreme Court, get together and
control the selection of Supreme Court Justices, fund the PR campaigns
and the TV advertisements for those Supreme Court Justices, and then
show up through front groups to pitch the Justices on what they want
from them.
That is about as unhealthy a situation for a Court as one could have.
Again, we are like the frog--the alleged frog in the pot. It has gotten
worse and worse. It has stunk more and more, but it happened kind of
gradually and we, for some reason, acted as if this is somehow normal.
There is nothing normal about this.
[[Page S6542]]
As a lawyer, I spent a good deal of my life in appellate courts. I
have argued in the U.S. Supreme Court. I have argued in several circuit
courts of appeals. I argued over and over before our State supreme
court. To the extent I had a specialty, it was appellate law. As the
Governor's legal counsel in Rhode Island, I was involved in picking
judges for the State courts on the Judiciary Committee. I have been
involved in picking judges for the Federal courts.
Folks, this is weird. This is not right. Nobody behaves this way.
Nobody farms out the selection of judges to private interest groups
that don't disclose their donors and take up to $250 million into the
scheme, which is according to the Washington Post. It is weird enough
that people feel the need to run TV ads for judicial nominees, but when
they are taking a check for $17 million or two checks for $17 million
from an anonymous donor or, maybe, two anonymous donors, if you think
that is weird, it is because it is. That shouldn't happen anywhere
around a court.
There are a lot of high-minded speeches about the importance of the
judiciary and its independence and all of that. The most important
standard that a court must meet is that it is not a pantomime court, a
pantomime court in which the rituals of adjudication get acted out.
People come to the bench, wearing their robes. They hear the arguments,
render decisions, read the briefs, but at the end of the day, the
decision is cooked by big special interest influence that has
insinuated its way into the Court by controlling the selection of
judges, by funding the PR campaigns for those judges, and by being the
orchestrating force behind the amicus curiae.
You might think that I am being a little aggressive in suggesting
that they are orchestrated. Well, do you remember this group, the
Bradley Foundation, that I showed you from my Supreme Court checklist
that funded 8 out of the 11 groups in that case? Here is a memo of a
grant it is giving to something called the Judicial Education Project,
which is a sister organization to that same Judicial Crisis Network.
This is a little bit of a pea in a shell game, so forgive me, but they
are directly related groups. The staff recommendation says that, at
this highest of legal levels, it is a request for funding for amicus
curiae in a case--in several cases--at the Supreme Court. It is very
important to orchestrate high-caliber amicus efforts--orchestrate.
For Pete's sake, the secret funders themselves use the word
``orchestrate.'' So something is up. Something is not right. Something
is rotten in Denmark. If the American people are good enough to entrust
us with the ability to answer their questions about this mess, we will
answer their questions about this mess. I will tell you that I cannot
get my questions answered, not without gavels, not in this Senate, not
in these committees. Yet I think it matters if an individual wrote $35
million worth of checks to influence the makeup of our U.S. Supreme
Court to know whether they have business before the Court, to know who
they were, and to be able to even do the Caperton analysis of whether
somebody's due process rights have been infringed by influence.
So, in some respects, this is the end of things. This is the third of
three nominees who have all had the same characteristics. They have
been selected through this scheme. They have been campaigned for
through this scheme. They have generated bizarre procedural behavior in
this Senate--all three, three for three. It is like the triple
trifecta--three judges, three characteristics: selected, campaigned
for, bizarre procedural anomalies.
When you see that kind of behavior, that means there are a lot of
branches leaning the same way, and if that doesn't mean the wind is
blowing, then give me a better explanation. I think there is a foul
wind blowing, and we need to find out who is behind it, and we need to
find out what it means for our treasured Supreme Court.
I will close by saying that the results are already coming in. Even
before Judge Barrett gets to the Court, the results have already been
coming in from this effort.
I did an article some time ago that we had pretty thoroughly fact-
checked, red-teamed, and reviewed that at the time said there were 72
decisions by the U.S. Supreme Court, under Chief Justice Roberts, that
had the following characteristics: One, they were 5-to-4 decisions--the
narrowest, barest majority. Ordinarily, a Supreme Court likes to see
bigger majorities than that because it is conducive to the integrity
and strength and credibility of the Court. There were 72 5-to-4
decisions.
They had an additional characteristic in that they were not just 5 to
4 but a partisan 5 to 4. No Democratic appointee joined the 5. So,
again, if you are an institutionalist, you look at that, and you think,
hmm, maybe that is not the Court putting its best foot forward. That is
an awful lot of partisan 5-to-4 decisions.
Then the third characteristic is that you can identify quite readily
in those cases a big Republican donor's interest--something that one
would want by way of an outcome. What we calculated at the time in that
article is that the score in those 72 5-to-4 partisan decisions with a
big Republican donor's interest implicated was 72 to 0--some pitching
balls and calling balls and strikes. It was 72 to 0. That is a route,
and we have been tracking it since then. I put the number now to 80 to
0 because the article was written some time ago. So now we are at 80
partisan 5-to-4 cases in which a big Republican donor's interest was
implicated and in which, by 80 to 0, the Big Interests won.
Now, some of these are pretty flagrant. I think Citizens United is
going to go down in history as a disgraceful decision of the U.S.
Supreme Court, sort of the political equivalent of Lochner.
Shelby County, in which the Court made up facts in order to strip a
section out of the Voting Rights Act, in turn, unleashed voter
suppression laws across the States that had been held back by the
preclearance provisions that the Court summarily decided 5 to 4 that it
didn't like any longer.
Janus, which is the case that took down a 40-year-old precedent
involving labor law in which legal groups had an astonishing role,
actually went through four cases along the way. It is a long saga, and
I won't burden this speech with that now. At the end of the day, the
lawyers for the labor movement, while walking up to the Supreme Court
for argument that day, knew perfectly well how the Court was going to
rule. That is not how courts should operate
Heller, the gun case, was 5 to 4. A former Supreme Court Justice had
described the theory that Heller had adopted as a fraud on the public,
but Heller turned a fraud on the public into the law of the land. Guess
what--the NRA is very active as a donor in these fights. The NRA was
all over the Kavanaugh nomination in particular.
So you had these flagrant decisions, and I just mentioned those 4,
but there are 80. That leaves 76 others. They are usually--often, I
should say--about power. They are often about moving power into
corporations, expanding corporate power, allowing unlimited money into
elections--allowing dark, anonymous, unlimited money to operate in
elections.
Who benefits from that? Entities with unlimited money and a motive to
spend it like, say, the fossil fuel industry.
As for intervening in elections and allowing bulk gerrymandering to
proceed, multiple courts have figured out how to stop that nefarious
practice. It is, actually, not complicated when you are dealing with
bulk gerrymandering and how to stop it and, over and over again, the
bulk gerrymandering efforts to take an entire delegation and try to
cook it so that it doesn't represent the popular vote in that State.
Over and over again, courts have seen through that. They figured out
how to respond to it until it got to the Supreme Court. Then, with 5 to
4, sorry, folks, we are not going to take an interest in that. Keep at
it. Voter suppression will tear down the preclearance provisions of the
Voting Rights Act. All of this election mischief that leans heavily to
supporting the Republican side has been supported.
With deregulation, if you are a big polluter and if you are a big
donor, you probably don't like regulatory agencies. You probably would
like to have some more freedom from regulatory agencies. Over and over
again, these decisions try to hurt the independence
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and strength of regulatory agencies--over and over.
Then the last is the civil jury. My God, the civil jury is in the
Constitution, for Pete's sake. We fought so hard over the civil jury
that people didn't want to adopt the Constitution until there was a
Seventh Amendment that protected it in the Bill of Rights. Protecting
the civil jury was in the Declaration of Independence. Interference of
the civil jury by the Crown was a cause of war in the Revolutionary
Era.
The civil jury is an institution of governance in this country. It is
a big deal. Yet these supposed originalists on the Court keep tearing
down, whittling away, diminishing, and degrading the civil jury
because--guess what--if you are a big, powerful, well-funded lobbyist,
greased corporation, or interest group, you can march around this place
like a King, throwing your money around, getting everybody to bow and
scrape for you, with lobbyists smoothing the path for you. You can
wander into the executive branch if you have the right control and get
your stooges appointed to the regulatory agencies. You can be powerful.
You can get your way.
Then you have to suffer the indignity of showing up in a courtroom
where you have to be treated equally before the law, where what you say
has to be put to the test of perjury, where you have to turn over your
real documents and not phonied-up position papers, where, if you tamper
with the jury, it is a crime.
No wonder big special interests don't like civil juries, and no
wonder this Court, 5 to 4, over and over again, chops away at the
institution of the civil jury, but don't tell me that you are being an
institutionalist or an originalist when you are attacking an
institution in the Constitution--in the Seventh Amendment, the Bill of
Rights. That is the work that these 80 5-to-4 partisan decisions have
been doing. It has been to turn this Court, more and more, into the
servant of big corporations. Guess what. Americans are paying
attention.
There was a poll a little while ago that asked whether the Supreme
Court favors corporations more than people or people more than
corporations. The poll showed, 49 to 7, that 7 times as many Americans
think the Supreme Court views corporations more favorably than people
than say the Court views people more favorably than corporations. So
something is out. Something is up. A foul wind is blowing. There is way
too much anonymous money in and around this Court process.
It is, by the way, at the same time, the only Court that does not
have a code of ethics in the Federal system. When Judge Barrett is
elevated from her circuit court to the Supreme Court, she will go from
a court that has a judicial code of conduct to a Court that does not.
She will go from a court that requires the transparent disclosure of
gifts, travel, and hospitality to a Court that requires less disclosure
not only than circuit courts but less disclosure than Cabinet officials
and less disclosure than Members of Congress. The highest Court has the
lowest standards for ethics and transparency.
So, to all of my colleagues who have given speeches about the
integrity and value of the Supreme Court and our judicial branch, I
hope you will help us as we try to look at what on Earth is exactly
going on over there--why amici curiae show up in Court without
disclosing who they are really there for; why $17-plus million checks
are being written by anonymous individuals, what the relationship is
between the $250 million that poured into Leonard Leo's effort and who
got chosen, and what the expectations were of the people who spent $250
million to influence the makeup of the Supreme Court; and why the
highest Court has the lowest standards for ethics and for transparency.
We are not in a good place right now with this Court. The things that
are happening are truly bizarre, unprecedented. It is bad enough that
there should be dark money in elections--but dark money in judicial
selections? Please defend that if you think that is right. If you think
that big special interests should be able to write big, anonymous
checks and, thereby, gain a voice in the composition of the U.S.
Supreme Court, please come and defend that proposition, because I don't
think you can.
It has never been the case in the Supreme Court before. It has never
been the case in the circuit courts of appeal before. It has never been
the case in State supreme courts, in my experience.
The dark-money influence in and around the Court is unprecedented,
and it is wrong, and the American people are entitled to the truth
about it.
I see I have gone into my next speaker's time a bit. So I will yield
the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Daines). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Ms. BALDWIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. BALDWIN. Mr. President, last Tuesday, in my home State of
Wisconsin, in-person early voting started. Over the past week, people
have showed up to vote in record numbers, as they have across our
entire country, because they want to make sure their voices are heard.
Why? Because they know how high the stakes are for them in this
election, an election that will determine our next President and
control of the U.S. Senate, an election that is just 1 week away.
My position on President Trump's Supreme Court nomination has been
very clear since the tragic passing of Justice Ruth Bader Ginsburg.
Voters across America should be allowed to cast their ballots first and
have their votes counted before this Senate votes on a lifetime
appointment to our Nation's highest Court. The people should be heard
first, but it is clear that the majority leader and a majority of my
colleagues on the other side of the aisle have no interest in listening
to the people. That is why they are rushing and ramming President
Trump's Supreme Court nomination forward just days before the election.
This rigged and illegitimate process is wrong, and it follows a
pattern of the majority leader and Senate Republicans abusing their
power to break their own standards on Supreme Court nominations.
Back in 2016, 8 months before the election, President Obama nominated
Merrick Garland to a seat on the U.S. Supreme Court after the passing
of Justice Antonin Scalia. Judge Garland is a highly experienced and
qualified judge, and I have no doubt that had he been given the
opportunity, he would have earned more than 60 votes in the U.S.
Senate. But he was never given that opportunity because the majority
leader decided to deny Judge Garland a hearing and a vote in the
Senate.
With the standards broken on the Garland nomination, the majority
leader established a new one: no Supreme Court nominations by the
Senate during an election year. Here we are in an election year.
However, Majority Leader McConnell has broken his own rule and created
yet another new one. Instead of applying the same standard that he
imposed on President Obama with the Garland nomination in March of
2016, 8 months before an election, he created a new standard now for
President Trump with his nomination of Judge Amy Coney Barrett made 39
days before an election. The majority leader is rushing President
Trump's nominee forward, with a Senate vote as people are voting, as we
stand 1 week--1 week--before election day.
What is the rush? My home State is a national red zone for COVID-19.
We are experiencing our worst outbreak of infections since the pandemic
began, breaking records for new cases, hospitalizations, and deaths.
Right now, people want action, support, and relief from Washington.
The House passed the Heroes Act over 5 months ago. Was there a rush
for the Senate majority to take action to confront the public health
and economic crisis that has only gotten worse since then? No, this
legislation has been sitting on the majority leader's desk since May,
while businesses have closed, millions have lost their jobs, and
hundreds of thousands of Americans have died.
At the beginning of this month, the House, once again, passed an
updated version of the Heroes Act to provide local communities and
frontline healthcare workers with the support they need to stop the
spread of this
[[Page S6544]]
deadly virus. This legislation provides support to workers, families,
schools, local governments, and small businesses.
Was there a rush from the Senate majority to take action? No,
instead, the majority leader told the White House not to support this
legislation because it would divide the other side of the aisle and
they needed to focus on pushing this Supreme Court nomination forward
before the election.
What is the hurry? My colleagues on the other side of the aisle have
been trying to repeal the Affordable Care Act and take away people's
healthcare since I came to the Senate back in 2013. I remember that
vote to repeal the Affordable Care Act well. It was 2017, right here on
the Senate floor. As President Trump and Senate Republicans sought to
repeal the Affordable Care Act, Senator John McCain did something we
are not seeing from the majority now with this illegitimate Supreme
Court nomination process. Senator McCain stood by his principles and
gave a thumbs-down to repealing our Nation's healthcare law.
President Trump's response has been to try to do what the American
people will not let this Senate do. In 2015, President Trump made clear
his intentions with Supreme Court nominations when he said: ``If I win
the Presidency, my judicial appointments will do the right thing,
unlike Bush's appointee John Roberts, on ObamaCare.''
In May of this year he said: ``We want to terminate healthcare under
ObamaCare.''
The day after he announced his nomination of Judge Barrett, he
tweeted that the Supreme Court invalidating the Affordable Care Act
would be ``a big WIN for the USA!''
Just last week, he said he would like to ``terminate'' the Affordable
Care Act and ``we have a very good chance of doing it.''
He is right, but that is the problem. President Trump, with his
Department of Justice, has supported a Republican lawsuit to overturn
the Affordable Care Act completely. On November 10, 1 week after the
election, the Trump-backed lawsuit will come before the U.S. Supreme
Court. Judge Barrett has a record of criticizing and opposing the
previous Supreme Court decisions that have upheld the Affordable Care
Act. It is clear as day that the majority leader and Senate Republicans
are driving a vote on the President's Supreme Court nomination in order
to do what Trump wants--overturn the Affordable Care Act completely,
terminate people's healthcare, and take away protections for people
with preexisting health conditions.
Here is what is at stake if Judge Barrett does what Trump and Senate
Republicans have been trying to do for years. Over 186,000
Wisconsinites have been infected with COVID-19, which could now be
considered a preexisting health condition. These people need the
guaranteed protections that our Affordable Care Act provides, and they
cannot afford to have the Supreme Court terminate their healthcare. If
the Affordable Care Act is overturned, over 133 million Americans with
preexisting health conditions could stand to lose their guaranteed
protections or be charged more, including more than 2 million
Wisconsinites who have preexisting health conditions.
This issue is personal to me, as it is for so many others. When I was
9 years old, I got sick--really sick. I was in the hospital for 3
months. I eventually recovered. But when it came to health insurance,
it was like I had a scarlet letter. My grandparents, who had raised me,
couldn't find a policy that would cover me, not from any insurer and
not at any price, all because I was a child who had been labeled with
those terrifying words--``preexisting health condition.''
This is also personal for Chelsey from Seymour, WI, whose daughter
Zoe was born with a congenital heart defect. Right now, thanks to the
Affordable Care Act, Zoe is guaranteed access to coverage without being
denied or charged more. Chelsey wrote to me: ``I'm pleading with you as
a mother to fight for the kids in Wisconsin with pre-existing [health]
conditions that are counting on you to protect that right.''
Her fight is my fight today. No parent or grandparent should have to
lay awake at night wondering if the healthcare they have today for
themselves and their children and grandchildren will be there tomorrow.
The fact is, more children have become uninsured in every year of the
Trump administration, and striking down the Affordable Care Act would
be the final, devastating blow to children's healthcare.
If President Trump succeeds with his lawsuit and gets a ruling from
the person he is putting on the Supreme Court, Judge Barrett, an
estimated 800,000 children would lose healthcare insurance.
When Congress passed the Affordable Care Act over a decade ago, I led
the effort in the House to include a provision that now allows young
people to remain on their parents' health insurance until they turn 26.
In Wisconsin, that means over 40,000 young adults in their twenties who
have been infected with COVID-19. Many of these young people are likely
already on their parents' health insurance plan or are receiving
premium tax credits provided by the Affordable Care Act to lower costs
and make healthcare more affordable.
Recently, I heard the story of Amy from Neenah, WI. Her daughter is a
nursing student at Marquette University in Milwaukee. She is on her
mother's insurance plan, and they are worried that if the Senate shoves
this nomination forward and Judge Barrett does what President Trump
says she will do, this young nursing student and future frontline
healthcare worker will be kicked off her mother's insurance and lose
access to her healthcare.
Kirsten from Green Bay, WI, told me her story of being diagnosed with
a very serious heart defect when she was just 11 days old. By the time
she was 13 years old, she had undergone 17 angioplasties. Before the
Affordable Care Act was passed, she struggled to keep insurance
coverage, and she doesn't want to go back to the days when insurance
companies wrote their own rules and could choose to deny people
coverage, charge people more, or set annual or lifetime limits on
people's healthcare.
Kirsten, who is now 24 years old, said:
Amy Coney Barrett has made it clear that she opposes the
[Affordable Care Act]. With this nomination, the Republican
Party is actively saying that our lives do not matter. If a
decision is made on the Supreme Court nominee before the
election, the American people are taken out of the selection.
The message I have heard from Wisconsin has been clear. People want
to be able to vote before the Senate votes. People want their voices to
be heard. People want their healthcare protected, and they certainly
don't want it taken away by President Trump or his nominee to the
Supreme Court during a deadly pandemic that has taken over 1,700 lives
in my home State of Wisconsin and over 221,000 American lives.
I would remind my friends on the other side of the aisle that for the
women I have spoken about today, as well as all American women, if the
Affordable Care Act is terminated, insurance companies could once again
charge women more than men, and insurance companies could stop covering
basic services, like maternity care, cancer screenings, and
contraception. The threat this nominee poses to women's health cannot
be overstated.
The threat isn't limited to the Affordable Care Act; it extends
beyond that. President Trump took office with a promise to nominate
Justices and judges who would overturn Roe v. Wade. He has nominated
Judge Barrett, and her judicial record reveals a firm disagreement with
the Supreme Court's five decades of established constitutional
protections for women's reproductive rights.
Let's all be honest with the American people. Since day one of this
administration, a woman's constitutional right and freedom to make her
own healthcare choices, including access to birth control, has been
under assault. We know what Amy Coney Barrett's personal views are, and
I know that some of you support her for them. But let's be clear. I
don't oppose her because of her personal views. What I do oppose is the
phony game that is being played where the people pushing this
nomination forward pretend that this nominee is simply a blank slate
and will consider nothing more than words on a page in her Court
decisions concerning women's reproductive health.
Right now, in States across the country, Roe v. Wade is under attack,
and
[[Page S6545]]
millions of women are at risk of losing the freedom to make their own
healthcare decisions without interference from politicians playing
doctor. Dozens of abortion rights cases are headed toward the Supreme
Court as we speak. The stakes could not be higher for women's health
than they are right now with this nomination
We all know what Judge Barrett's judicial record is, and her public
advocacy is clear. This is a nominee who has been fundamentally hostile
towards reproductive health and rights. That is what is relevant here
because our Supreme Court plays an essential role in protecting and
upholding civil rights and civil liberties, including the
constitutional right for all women to make their own personal
healthcare decisions and to have access to safe and legal reproductive
care.
The least this nominee's Senate supporters could do is be honest with
the American people. We all know that, if given the opportunity, a
Justice Barrett would overturn Roe v. Wade. Don't pretend you don't
know how she will come down on this issue. You should at least have the
courage of your convictions and say to the people who are voting right
now in this election that you support Amy Coney Barrett's nomination
because you support overturning Roe v. Wade, too, and you know she will
help do it.
Just as I don't trust this nominee to protect people's healthcare or
women's reproductive rights, I have no faith in Judge Barrett to
respect the progress that the LGBTQ community has worked so hard to
achieve.
Unlike President Trump's nominee, Justice Ruth Bader Ginsburg had a
strong belief in equality for all, which was reflected in her life's
work and in her judicial record on LGBTQ rights issues. In June, we
again saw real progress in the Supreme Court with a landmark victory
for justice and equality when the Supreme Court ruled 6 to 3 that
workplace discrimination against LGBTQ people is wrong and our Nation's
civil rights laws forbid it.
But we have a lot more work to do. LGBTQ people in many States can
still be evicted from their homes or denied services simply because of
who they are or whom they love. The House passed the bipartisan
Equality Act to end this kind of discrimination well over a year ago,
but that, too, has been in the majority leader's legislative graveyard
and has not even received a vote in the Senate because he is afraid it
just might pass.
Here we are today moving forward on a Supreme Court nominee who I
believe is a real threat to LGBTQ rights--again, not because of her
personal preference to oppose marriage equality; rather, because she
has openly and publicly defended the dissenters in the Supreme Court's
landmark Obergefell case by questioning the Court's role in even
deciding that case.
Earlier this month, two of the dissenters in that case whom Judge
Barrett defended previously--Justices Thomas and Alito--came out and
attacked the Court's 2015 decision, which declared that same-sex
couples have a constitutional right to marry under the 14th Amendment
guarantee to equal protection under the law.
We just celebrated the 5-year anniversary of marriage equality
becoming the law of the land, and I have no faith in Judge Barrett to
protect this constitutional right.
President Trump wants to overturn the Affordable Care Act completely
and take away people's healthcare and protections for preexisting
health conditions in the middle of a deadly pandemic. This President
wants to overturn Roe v. Wade and have the government take away
reproductive freedoms for women. He has done nothing to move equality
and fairness forward for the LGBTQ community and has worked to turn
back the clock on hard-won progress. Judge Barrett has been nominated
and will likely be confirmed by this Senate to do what President Trump
wants. This nominee's complete and total unwillingness to show any
independence from the President makes that clear to me.
I believe it is wrong for Senate Republicans to rush this
confirmation vote before the American people have voted and our next
President and the next Senate have taken office. I oppose this
illegitimate process, and I oppose Judge Barrett's confirmation for a
lifetime appointment to our highest Court because I do not have faith
in her being a fair and independent Supreme Court Justice for the
American people.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico
Mr. UDALL. Mr. President, I thank the Presiding Officer for the
recognition today and thank you very much for being here.
Today, the Senate is gathered in the middle of an unprecedented
pandemic. More than 220,000 Americans have died, millions more have
been infected, and millions more are out of work because of the
resulting economic crisis. These are some of the hardest times to fall
upon this Nation in decades. People are hurting. They are scared, they
are exhausted, and they are looking for help.
Millions of Americans are also looking around asking how they can
help in their communities. They are stepping up, whether it is as
members of the essential workforce, as healthcare workers, or by
donating their time or resources to a charity or local food bank. We
are seeing the best of this country.
Here in the Senate, we, too, have the power to do something to help.
On a much larger scale, we have the power and the duty. We could do
something big to help beat this virus, to help people and businesses
get back on their feet, get the kids back in school, to help make life
easier for the millions who are struggling.
Yes, the Senate is gathered in the middle of a pandemic, but we
aren't gathered here by the majority leader to do anything to help the
American people. We aren't gathered here to do the hard work, to
negotiate, to compromise, and to pass an urgently needed COVID-19
relief package that Americans are clamoring for--no. Instead, we are
gathered here today to fast-track the confirmation of a far-right judge
onto the U.S. Supreme Court, in the middle of a pandemic, 8 days before
the conclusion of a Presidential election, with tens of millions of
ballots already having been cast. It is shameful. This body has truly
lost its way.
The American people are looking on in anger and disbelief as the
Senate majority focuses on this nomination just 4 years after the
majority in no uncertain terms said that the Senate should not consider
a Supreme Court nominee 8 full months before the election. Yes, that is
what Senate Majority Leader Mitch McConnell said--the Senate should not
consider President Obama's Supreme Court nominee a full 8 months before
the election. But now he says we should install President Trump's
nominee 8 days before the election. How did we get here? Why would
Republicans so flagrantly violate their own rules and violate the
legitimacy of the Court and Senate for this nominee? To solve that
mystery, we have actually got a clue. It is on the Supreme Court
schedule.
On November 10, the Supreme Court will hear oral arguments in a suit,
brought by Republican attorneys general and supported by the Trump
administration, to destroy the Affordable Care Act. Three years after
the Senate Republicans tried and failed to repeal the Affordable Care
Act in Congress, they are now trying to terminate the law in the
courts. Their relentless pursuit to destroy the Nation's healthcare law
knows no end, and they need to get their Supreme Court nominee onto the
Bench in time to hear their case.
You have heard it many times over the last few weeks, but it bears
repeating, what is happening right now, because it is stunning. Senate
Republicans are rushing another far-right judge onto the bench days
before the election and all in the effort to cement a conservative
majority on the Supreme Court to destroy the Affordable Care Act in the
middle of a pandemic.
This is all taking place under the direction of a President who has
stated that the coronavirus pandemic ``affects virtually nobody.'' That
is the President's direct quote--``affects virtually nobody.'' That is
what he is saying about the pandemic.
Republicans want to rip away healthcare from millions of people in
the middle of a public health crisis that has killed more than 220,000
Americans. They want to take away protections from millions of people
living with preexisting conditions in the middle of a pandemic--a
pandemic that has caused millions more Americans who have contracted
COVID-19 to now have a new preexisting condition.
[[Page S6546]]
The President openly admits he wants the Supreme Court to do what
Republicans in Congress couldn't do, and that is to demolish the ACA.
``It will be so good if they end it.'' That is the President's quote.
He said that on 60 Minutes. ``It will be so good if they end it,''
speaking about what he wants the Supreme Court to do and what his
Justice Department is arguing.
And the President and Republicans in Congress won't have any plan to
replace what they want to destroy. After all these years of trying to
end the Affordable Care Act, including a 2-year period when the
Republican Party held control in the House, Senate, and White House,
they still don't have a replacement for the Affordable Care Act.
If Republicans succeed and this Supreme Court nominee joins an
increasingly conservative Court in striking down the ACA, the results
would be catastrophic for my home State of New Mexico. The estimated
834,700 New Mexicans with preexisting benefits would face higher costs,
fewer benefits, and could have trouble finding coverage.
Overturning the ACA would immediately end coverage for millions of
Americans who became eligible for Medicaid through the Medicaid
expansion. In fact, in my State of New Mexico, 250,000 people have
coverage under that expansion. Seniors getting prescription drugs could
no longer afford their medications.
It is people like Jeanne, an Albuquerque-based senior who told me
recently:
Now, like many seniors, I take a medication that is so
expensive that I would reach the donut hole every year. I
can't afford to pay for that medication out of pocket.
Rural hospitals, which are absolutely critical during this
pandemic, could close their doors. As Dr. Val Wangler, the
chief medical officer of Rehoboth McKinley Christian Health
Care Services told me:
The Affordable Care Act is critical to the health of
patients in New Mexico's rural communities. Threatening the
healthcare coverage of our communities in the midst of the
greatest public health crisis of our times is unconscionable.
For Indian Country and Native communities, ACA repeal would be
absolutely devastating. I have heard firsthand accounts from Tribal
leaders, Native families, and healthcare providers about how the ACA
has improved the healthcare landscape across Indian Country--literally
saving lives. The ACA has opened the doors for so many Native Americans
to access the care they need, whether it is an unplanned medical
emergency or routine wellness checkups and screenings.
Access to quality healthcare is critical for Native communities,
which face disproportionate impacts from the COVID-19 pandemic. The
Federal Government has a trust and treaty obligation to consult with
Tribes and to provide Native Americans healthcare. With this rushed,
hypocritical process, Senate Republicans are violating our most sacred
duties to Indian Country.
We know that the Supreme Court will rule on the fate of the
Affordable Care Act. That much is certain. But what other cases might
this Court rule on in the near future, or in what other cases might
Judge Barrett cast the deciding vote?
Well, as you have heard me mention a few times now, we are in the
middle of a Presidential election--the most important election of our
lifetimes. Facing an uncertain outcome at the polls, President Donald
Trump has repeatedly sought to undermine the legitimacy of this
election. He has lied about the safety of mail-in voting, despite the
fact that he is a mail-in voter himself. He deliberately tried to
weaken the Postal Service, and President Trump, along with Members of
this very body are telegraphing that they want the Supreme Court, not
voters, to decide this election. They want to sow enough doubt about
the legitimacy of the democratic process that it has to go to the
courts, and they want their hand-picked conservative judge to tip the
scales for them.
You don't get to choose the judge who decides your own case. That is
not how we achieve true justice in a democracy. The core of our system
is having an impartial judge.
It has been shocking to watch as this President, aided and abetted by
Members of this very Senate, has been so overt about his desire to put
a judge on the Supreme Court who will rule in his favor in any disputed
election. That is a tactic of authoritarians, not a democracy.
But in her confirmation hearing, Judge Barrett wouldn't even comment
on whether a President should commit to the peaceful transfer of power,
as this President has refused to do. She called that a political
controversy. The peaceful transfer of power is not a political
controversy. It is one of the most sacred tenets of our democracy.
What else might Judge Barrett rule on in the coming years? No doubt
cases concerning the most urgent, existential crisis we are facing as a
Nation--climate change. Cases to decide whether we will let big
polluters do whatever they want to our air, water, and planet.
There is no denying the science of climate change. It is a real and
present danger to the lives and livelihoods of people all across this
Nation and the world. My home State of New Mexico is in the bull's eye,
with increasingly severe wildfires and droughts.
This President is one of the few public figures left in this country
who says he doesn't believe the scientists. You would hope a nominee to
the Supreme Court--the highest Court in our land--wouldn't follow his
lead. But Judge Barrett, again, wouldn't even comment on whether she
believes climate change is real. She again said that was a political
controversy.
The only place climate change is a political controversy is within
the White House and within the Republican Party, and the rest of us are
paying the price while they decide whether or not to believe the
overwhelming consensus of the scientific community--whether or not to
believe their very eyes.
There are so many other issues on which a Justice Barrett would
likely rule, including a woman's right to make her own healthcare
decisions. A leading advocate for women's rights to reproductive
health, Justice Ruth Bader Ginsburg would be replaced with a public
advocate against Roe v. Wade. The nominee signed her name to statements
against Roe that ran in full-page newspaper ads, undisclosed to the
Senate. She signed joint public letters against Roe. This was also
undisclosed to the Senate. She gave multiple speeches to organizations
dedicated to overturning Roe, undisclosed to the Senate. In a law
review article, she wrote that abortion was ``always immoral.''
And after promising for years only to nominate judges who will
overturn Roe, Senate Republicans suddenly are shy about it. They
suddenly don't have the courage of their convictions, and they won't
let the public in on their true, long-stated agenda--overturning Roe
once and for all.
There is so much else at stake in this fight--on voting rights, on
worker rights, and so much more, all with real human consequences for
the lives of people all across this country.
Let's not lose sight of the real people who will be affected by this
Republican march to overload the Court with loyalists.
With so much at stake, the American people deserve to have a say. It
is that simple.
So I urge my Republican colleagues to take a step back and think
about what you are doing. Think about the long-term damage you are
doing to the legitimacy of the courts and to the faith of the American
people that their voices are being heard.
What is at stake is more than Justice Ginsburg's seat. It is the
American people's seat
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Ms. HASSAN. Mr. President, I want to thank my colleague from New
Mexico for his remarks just now.
I rise today to join him and my other Democratic colleagues in
opposing Amy Coney Barrett's nomination to the Supreme Court.
I want to begin by acknowledging the nature of the moment that we are
in right now. We are mere days from an election day, during an election
period in which tens of millions of Americans have already voted. We
are grappling with a global pandemic that has taken the lives of more
than 220,000 Americans, and millions are out of work.
Yet, rather than focusing on providing the comprehensive relief that
lives and livelihoods are depending upon, Republicans have instead made
pushing this nomination through their top priority.
[[Page S6547]]
The American people deserve better.
One of the most solemn responsibilities of a U.S. Senator is
providing advice and consent with regard to a Presidential Supreme
Court nomination. This is a lifetime appointment to the highest Court
in our land, which will impact the lives of every single person in this
country. The consequences of this nomination are far-reaching, and
right now there is perhaps no more consequential issue than healthcare.
The Trump administration and Republicans in Congress have been
relentless in their attempts to sabotage our healthcare system, repeal
the Affordable Care Act, and eliminate the healthcare protections that
millions of people depend on.
But for years, Republicans have failed legislatively to repeal this
law. So now, instead, they have turned to the courts. President Trump
said he wants to ``terminate'' the Affordable Care Act, and has said
that he would nominate judges who would do just that.
One week after this election, just 9 days away, the Supreme Court
will hear the lawsuit supported by the Trump administration to repeal
the entire Affordable Care Act and its protections for people with
preexisting benefits.
It is no secret that this is why Senate Republicans have rushed Judge
Barrett's nomination through.
For some of my colleagues, this nomination is a means to an end, a
way to finally repeal the Affordable Care Act, a law that has helped so
many. For the American people, however, this isn't a game.
Over the course of the last several weeks, people in my home State of
New Hampshire and across the country have spoken out about what the
repeal of this law would mean for them, just as they have spoken out
each time that Republicans have tried to take coverage away.
I recently heard from Michelle and Joe O'Leary of Atkinson, NH.
Michelle and Joe's son Matty was diagnosed with a rare brain condition
at the age of 4. Right now, Matty is doing well, but he requires a
lifesaving brain infusion treatment at the hospital, from 4 to 6 hours
every 2 weeks.
His father said that the minute that they miss an infusion, Matty's
health would begin to decline rapidly.
Joe and Michelle said that on top of all of the challenges that their
family experiences on a day-to-day basis, they still have to wake up
each morning fearing the implications if the Supreme Court overturns
the healthcare law--fearing what will happen if coverage is taken away
and they can't access the treatment that their beloved Matty needs.
Joe and Michelle shared the details of this deeply personal
healthcare story in order to preserve healthcare for their son and
millions of others. They shouldn't have to. No one in America should
have to plead with their legislators to not take their healthcare away.
No one should. But they do, in the wealthiest country on Earth.
Joe and Michele are not alone. If Judge Barrett is confirmed and
becomes the Court's deciding vote to overturn the Affordable Care Act,
an estimated 20 million Americans could lose their healthcare coverage.
Making matters worse, in pushing this nomination through, my
colleagues could undermine healthcare in the midst of a devastating
pandemic.
And just as we are learning that the long-term effects of this virus
will likely mean that treatment for some will be ongoing for a
lifetime, the Senate Republicans are moving to overturn the Affordable
Care Act--just when it is needed most. It is unconscionable.
Potentially ripping away healthcare from millions of Americans is
just one of the many things at stake. Women's reproductive freedom is
at risk. President Trump has said that he will only nominate judges who
would overturn Roe v. Wade, and Judge Barrett has repeatedly criticized
this landmark ruling that provides women with the freedom to make their
own healthcare decisions, control their own destinies, and be full
citizens of the United States of America.
Equality for LGBTQ Americans is also at risk. Just this month, two
Justices on the Supreme Court indicated their desire to overturn the
decision Obergefell v. Hodges, which delivered marriage equality to so
many. Judge Barrett has previously defended the dissenting opinion in
that case.
And voting rights are at risk. Judge Barrett refused to acknowledge
the fact that communities of color face disproportionate obstacles in
voting. Nor would she acknowledge what every lawyer and, really, most
high school students know--that voter intimidation is illegal and
antithetical to our basic principles.
Judge Barrett would not even give a straight answer when asked if
Presidents should commit to a peaceful transition of power, an
essential element of our democracy and one that we have held up as an
example to the rest of the world throughout our history.
And despite asserting that she is independent and not swayed by
politics, Judge Barrett's refusal to acknowledge that climate change is
real--after acknowledging other scientific facts, such as the
infectious nature of COVID-19 and that cigarettes can cause cancer--
reveals her alignment with and responsibility to a far-right, climate-
change-denying agenda.
Our founding documents gave us the flexibility and the tools to grow
in our understanding of what individual freedom means and who is
entitled to it. These tools have given us the power to create change
and move forward, to unleash the talent and energy of previously
marginalized citizens.
Our country has prospered, thrived, and led as a result. But Judge
Barrett's views and her judicial philosophy are not rooted in that
belief. She, instead, would constrain individual liberty and empower
corporations and put the progress that so many have fought for at risk.
Republicans have moved this nomination forward in contradiction of
the rules that they themselves invented in 2016. Our society and our
democracy rely on the idea that all sides of political debate will play
by the same rules. That means, when any faction loses, it does so
knowing that it will have a fair chance in the next round. When that
understanding is disrupted, it destabilizes our democracy, and it sows
confusion and chaos. My Senate Republican colleagues' actions make it
clear they believe that the rules do not apply to them and that they do
not care about destabilizing our democracy in this way.
We should not vote on a Supreme Court nomination while an election is
actually underway. For the first time in American history, we are
voting on a Supreme Court nominee just days before election day. My
Republican colleagues have shown they will stop at nothing to get this
nominee through no matter how many rules they break and no matter how
many Americans' rights are threatened. They are doing so all while
people across the country are pleading with us to come together to
provide more support amid a public health and economic crisis. My
Senate Republican colleagues' priorities are clear, and they are an
outrage.
I cannot support a lifetime nomination of an individual who puts the
healthcare and basic civil rights of millions of Americans at risk. I
will oppose Amy Coney Barrett's nomination to the Supreme Court, and I
urge my colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from Indiana.
Mr. YOUNG. Mr. President, 1 month ago, Judge Amy Coney Barrett was
selected by President Trump to serve on the U.S. Supreme Court, filling
the vacancy created by the passing of Justice Ruth Bader Ginsburg.
Since then, Judge Barrett has more than proven her qualifications for
this job. A respected Federal judge, educator, and public servant,
Judge Barrett has conducted herself throughout this process with poise
and integrity. She has certainly demonstrated her intellect, her legal
acumen, and her commitment to the Constitution of the United States.
She is, clearly, a brilliant jurist who interprets the Constitution as
written and carefully weighs the facts of a given case.
Despite the Senate Democrats' repeated attempts to drag her into the
political fray, Judge Barrett has proven that she will make her
decisions based on the law rather than politics.
When I met with Judge Barrett earlier this month, I was assured that
she would be guided by the law and precedents and be faithful to the
Constitution. As Judge Barrett herself has said
[[Page S6548]]
more than once, ``A judge is obligated to apply the law as it is and
not as she wishes it would be.'' She is obliged to follow the law even
when her personal preferences cut the other way or when she will
experience great public criticism for doing so--the law, not politics.
As a fellow Hoosier, I have had the privilege of getting to know
Judge Barrett and her family over the last several years, since she was
nominated to fill a vacancy on the U.S. Court of Appeals for the
Seventh Circuit. When I met the then-Notre Dame Law School professor,
it was abundantly clear that she was a star. My colleague at the time,
former Democratic Indiana Senator Joe Donnelly, agreed with that
assessment. A brilliant legal scholar, Judge Barrett was and is held in
the highest regard by her peers in the legal world.
Judge Barrett's qualifications outshined personal attacks and
religious bigotry, and she was confirmed by a bipartisan majority to
that circuit court, and as a judge, she has more than proven her legal
credentials. She has heard more than 600 cases and authored nearly 100
opinions. I should note she is the first woman from Indiana ever to
serve on that esteemed court.
As I said, when I introduced Judge Barrett before the Senate
Judiciary Committee earlier this month, I was proud to cast my vote for
Judge Barrett in 2017, and I look forward to doing so again for
Associate Justice of the Supreme Court. Three years ago, I did not hear
a single credible criticism--not a single one--of Judge Barrett based
on her legal qualifications, and I haven't heard one at any time
throughout this confirmation process.
The Democrats have tried to make this process about anything other
than Judge Barrett's qualifications. Alarmingly, they have made threats
about what the consequences will be if we move forward.
First, they threatened to pack the Supreme Court if we confirmed this
nominee, but we all know they were talking about this long before--long
before--Justice Ginsburg's passing. By way of example, my colleague
from California Senator Harris said: ``We are on the verge of a crisis
of confidence in the Supreme Court . . . and everything is on the
table.'' That is a quote from March of this year.
Senator Harris isn't alone. She just happens to be the most prominent
at this point. In fact, according to the Washington Post, 11 Democratic
Presidential candidates--5 of whom were sitting U.S. Senators--said
they were in favor of or open to packing the Court.
Second, they have threatened to eliminate the legislative filibuster
if we confirm this nominee. Now, folks, they wanted to get rid of the
60-vote threshold long before this vacancy on the Supreme Court ever
occurred. Again, I will use Senator Harris by way of example: ``I am
prepared to get rid of the filibuster to pass a Green New Deal.'' That
was in September of 2019.
There are 18 Democrats who ran for President of the United States who
supported that move, including 6 sitting U.S. Senators and 2 Governors
who are now running for the Senate.
Third, they have threatened to add States to the Union if we confirm
this nominee. We know that has been on the far-left's wish list for
years.
These idle threats aren't going to stop us from carrying out the will
of the American people, though, and confirming Judge Barrett. When we
confirm Judge Barrett this week, she will be the fifth woman and the
first mother of school-age children to serve as a Supreme Court
Justice. She will also be the only current Justice to have received a
law degree from an esteemed law school other than Harvard or Yale.
I will tell you, Hoosiers are extremely proud of Judge Amy Coney
Barrett and the trail she has blazed for others. She is a role model
for young women everywhere, including, I might say, my own three young
daughters. I am incredibly proud that our next Supreme Court Justice
will be one who hails from America's heartland--from the great State of
Indiana.
I urge my colleagues to come together and carry out the will of the
American people by swiftly voting to confirm Judge Amy Coney Barrett to
the Supreme Court of the United States.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Boozman). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. ROMNEY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROMNEY. Mr. President, I rise today to express my support for the
confirmation of Judge Amy Coney Barrett as an Associate Justice of the
Supreme Court. She is exceptionally intelligent, academically astute,
and impeccably credentialed. She has a record of sound opinions and
temperament as a judge on the Seventh Circuit Court of Appeals. Her
life experiences provide her with valuable perspective and evident
wisdom. Perhaps most important, she is a woman of unquestionable
character and integrity, the presence of which is essential to our
Nation, as the confidence of the Court itself is in the balance. I will
be honored to vote to confirm her nomination.
Mr. President, I also rise to address my concern regarding the
division and contempt for others that is growing among many of our
citizens. The causes of this malady are many and varied, but one to
which I draw attention is the declining trust held by the citizenry in
our many institutions. A democratic republic is highly dependent upon
the confidence of its people in the institutions that lie at its
foundation. These includes churches, schools, governments at all
levels, the press, corporations, markets, and most relevant today, the
justice system and the courts. Absent public confidence in these
institutions, a democratic republic will not thrive or perhaps endure.
Fortunately, the Supreme Court enjoys a great deal of respect from
the American people. Unfortunately, the third branch may be one of the
few institutions of our democratic republic that is not experiencing a
collapse in public trust.
Our churches have been diminished by scandal and by politicization.
Trust in local law enforcement has fallen as we have witnessed some
officers, who have sworn to protect our communities, endanger the lives
of citizens. While this is particularly true for citizens of color, the
demonstrations by millions of Americans are evidence that the distrust
is broadly shared.
Trust in the FBI and the intelligence community, long admired for
their integrity and professionalism, has withered with the attacks by
politicians from both parties, though admittedly my party has been the
more vocal. What a message it sends when the President accepts the word
of the Russian President rather than the conclusions of our
intelligence agencies.
Even the CDC and the FDA have fallen in credibility, due both to
inevitable human error and to blistering political attacks.
The free press is not only protected by the Constitution; it is
critical to the preservation of democracy. Here, too, charges of ``fake
news'' and claims that the press is the enemy of the people--worsened
by the media's constant amplification of divisiveness--have so
diminished the trust many Americans have in the media that they instead
believe bizarre, anonymous conspiracy theories on the internet.
Now, more than at any other time during my lifetime, it is essential
the Supreme Court retain the trust of the Nation. It may be one of the
very few, if not the only, of the institutions in which the great
majority of Americans have confidence. That is why Judge Barrett's
integrity, wisdom, and commitment to the rule of law is so important:
She will be critical to the preservation of the public's perception of
the legitimacy of the Court.
Judge Barrett wrote in a Texas Law Review:
If the Court's opinions change with its membership, public
confidence in the Court as an institution might decline. Its
members might be seen as partisan rather than impartial and
case law as fueled by power rather than reason.
Consideration of institutional legitimacy has long been a factor in
the Court's deliberations. But I would argue that this factor should be
given even greater weight today, as so many of our other institutions
are diminished and under attack. This would be particularly true were
the Court called upon to decide a matter that would determine the
outcome of a Presidential
[[Page S6549]]
election. In my view, it is of paramount importance that such a
decision follow the law and the Constitution where it leads, regardless
of the outcome, and thereby be beyond reproach, clearly nonpolitical,
and preferably unanimous.
The Senate will soon send Judge Barrett to the highest Court in the
land. I am confident that she is up to the measure of the times in
which we now live. May God bless her and her family as they begin this
chapter of service to our Nation.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. THUNE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. THUNE. Mr. President, later today we will confirm Amy Coney
Barrett to the Supreme Court. By now, I don't need to tell anybody that
she is one of the most highly qualified Supreme Court candidates in
living memory. Her appearance before the Senate Judiciary Committee was
a master class in what a Supreme Court Justice should look like, which
is probably why a majority of voters want the Senate to confirm this
outstanding nominee to the Nation's highest Court.
A CNN anchor recently pointed out that, ``in another age . . . Judge
Amy Coney Barrett would be getting 70 votes or more in the United
States Senate . . . because of her qualifications.''
That is unquestionably true, but, unfortunately, it is extremely
unlikely that Judge Barrett will be collecting 70 or more votes later
today because, for my Democratic colleagues, this has never been about
Judge Barrett's qualifications. Democrats were never going to support
this nomination, no matter how supremely qualified the individual in
question. The President could have nominated the wisest, most
outstanding jurist in the history of the world, and Democrats would
still be opposing this nomination--in large part simply because it was
made by this President.
Democrats had their talking points ready from the beginning--the same
talking points that they trot out for every Republican Supreme Court
nominee. The sky will fall if this nominee makes it on to the Court,
they cry. Minorities will suffer. Women will suffer. Americans will
lose their healthcare. They have used that one a lot this time.
Democrats would like to convince Americans that Republicans are
trying to confirm Judge Barrett to the Supreme Court for the sole
purpose of eliminating the Affordable Care Act and protections for
preexisting conditions. It is a ludicrous charge. Every Republican--
every Republican--in the Senate supports protections for preexisting
conditions, but apparently that doesn't matter to Democrats.
The truth is, Republicans have no idea how Judge Barrett would rule
on any particular ObamaCare case. The facts of each case are unique,
with unique legal and constitutional issues.
What we do know is that Judge Barrett will approach each case without
prejudices or preconceived notions. We know that she will examine the
facts of the case, the law, and the Constitution, and make her decision
based solely on those criteria--not on her political beliefs, not on
her personal opinions, just the law and the Constitution, no matter
which party drafted any legislation in question. That should reassure
Democrats, but it doesn't because, for many Democrats, their primary
concern in confirming judges is not whether they will uphold the law
but whether they will deliver the policy outcomes that Democrats want.
That is why some Democrats are threatening to resurrect the long-
discredited idea of court-packing, should they return to the majority.
They are not sure that they can rely on a Supreme Court with Judge
Barrett to deliver the policy outcomes that they want. So they want to
add Justices to the Supreme Court until they can be sure that they will
get the results that they desire. One has to wonder where this will
end.
Let's say Democrats add three more Justices to the Court. Then, when
Republicans take the majority back, we add three more Justices to
counteract the Democrats' power grab. Then Democrats get back in power
and add still more Justices. It won't be long before the members of the
Supreme Court are more numerous than the Members of the U.S. Senate.
In addition to trying to scare Americans by suggesting that
Republicans are trying to take away Americans' healthcare, Democrats
have also tried to delegitimize the process. They have tried to suggest
that it is wrong for Republicans to take up this nomination in an
election year because Republicans didn't confirm Merrick Garland when
President Obama nominated him in an election year. I am not going to
spend a lot of time on this because the Republican leader, myself, and
others have spent ample time demonstrating that confirming Judge
Barrett is well within historical precedent.
But I will say this: The Constitution of the United States gives the
Senate the power to advise and consent to nominations made by the
President. The Senate has full authority to accept or reject the
President's nominations at any point in time during a Congress or
President's term. There is no constitutional carve-out for election
years. The minority party may not always like it when the majority
confirms a nominee, which I completely understand, having been in the
minority myself. But that doesn't mean that the majority party is doing
anything wrong by proceeding with a nomination.
I also have to ask: Are Democrats seriously suggesting that if they
were in the same position--if they were in the majority in the Senate
and the President were a Democrat--they would decline to approve a
qualified jurist to the Supreme Court simply because the vacancy had
occurred in an election year? I think everyone knows that if Democrats
were in the same position, they would absolutely confirm a Democratic
nominee to the Court--as they repeatedly urged us to do in 2016--and
they would be well within their constitutional rights to do so, just as
Republicans are well within our constitutional rights to confirm Judge
Barrett.
Before I close I would like to touch on another claim the Democratic
leader keeps making--that Judge Barrett's nomination is somehow
distracting Republicans from the COVID crisis or that her nomination is
preventing us from taking up COVID legislation.
That is flatout false. The Senate is capable of focusing on more than
one important issue at a time. In fact, it is pretty much a requirement
of our job that we be able to do so. Has the Democratic leader
forgotten that Republicans tried to bring up additional COVID relief
legislation literally just days ago and that Democrats, led by the
leader, filibustered and that they did the same thing when we brought
up COVID relief legislation in September?
Republicans have been ready to pass additional COVID legislation for
months. The only reason we haven't passed it already is that Democrats
have refused to agree to any compromise legislation that could actually
make it to through the Senate and to the President's desk.
I am hoping that sooner rather than later, my friends on the other
side will see the value of working together to provide real relief to
our fellow Americans. This disease doesn't recognize party differences,
and I am hopeful that my colleagues will realize that passing COVID
relief shouldn't be a time for insisting on partisan priorities.
It is unfortunate that Judge Barrett's nomination has been
overshadowed by so much partisanship from Democrats, but ultimately
what matters is that we are confirming this outstanding nominee.
As I said yesterday, I came to the Senate with the hope of putting
judges like Amy Coney Barrett on the bench: thoughtful, intelligent men
and women with a consummate command of the law, and most of all--most
of all--with a clear understanding that the job of a judge is to
interpret the law, not to make the law, to call balls and strikes, not
rewrite the rules of the game.
I am very proud to cast my vote to confirm Judge Barrett, and I look
forward to calling her Justice Barrett in the very near future.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[[Page S6550]]
The senior assistant legislative clerk proceeded to call the roll.
Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BLUMENTHAL. Mr. President, as august and impressive as this
setting is, what is happening today is not normal. We have said it
numerous times, but we should say it again because we need to prevent
it from becoming normal.
In fact, what is happening today is sad, surreal, even shocking. We
are 8 days away from an election. In an unprecedented rush to confirm a
Supreme Court nominee, we are taking the place of the next President
and the next Senate in confirming the next Justice, even as the
American people are denied a voice and a say in that decision.
What is happening here is not normal because our Republican
colleagues have explicitly broken their word. We have submitted to the
Judiciary Committee quotes from 17 of them promising that there would
be no confirmation of a next Justice during an election year.
It is not normal because, in fact, historically, no Justice has been
confirmed after July in an election year.
It is not normal because we are here, in the midst of a pandemic,
confirming a Justice who would potentially decimate our healthcare
system now in the middle of a healthcare crisis.
It is not normal because the administration has said, as recently as
Sunday, through its Chief of Staff, there is no control over this
pandemic. This abject surrender is shameful and disgraceful.
And it is not normal because the American people have a right to
expect from us in this body that we would address that pandemic and
that we would pass another pandemic relief bill. It has passed the
House. All we need to do is vote.
In fact, on Saturday afternoon, I came to the floor with a number of
my colleagues and offered, by unanimous consent, measures that have
passed the House by a bipartisan majority, but there was objection to
moving forward. My Republican colleagues, in objecting, said it is
procedural harassment. I beg to differ. It is democracy. It is
democracy to address the needs of the American people. That is what is
normal in the Congress of the United States, or at least it should be.
The fact is that our Republican colleagues are shattering the norms
and breaking the rules and breaking their word, and there will be
consequences. There inevitably are consequences when one person breaks
her or his word to another.
But there is a larger significance here, which is that Amy Coney
Barrett, as a member of the U.S. Supreme Court, will shift radically
and dramatically the balance politically on that Court. It is an
unelected body with lifetime terms, which is the antithesis of the
elected bodies that serve in the U.S. Congress or the elected
President, and this radical shift will shatter the legal fabric of that
Court.
Now, I know that my Republican colleagues will refuse to acknowledge
it, but, in fact, it is part of an agenda--a rightwing agenda--that has
existed for some time to move the Court to that radical extreme fringe.
In fact, they have turned the U.S. Senate into a kind of conveyor belt
of judicial appointments not just to the Supreme Court but to Federal
courts at every level.
Dark money is the vehicle for turning the U.S. Senate into that
conveyor belt. As we have documented as recently as Friday, through a
report that we produced, showing how the NRA has been at the tip of the
spear of a movement involving shell entities making contributions,
receiving money, and channeling it to Members of this body who have
confirmed those nominees so that that dark money produces appointees to
the Federal bench.
Amy Coney Barrett is part of that conveyor belt. She is only the
latest of the appointees who threatens to shift not just the Supreme
Court but the Federal judiciary radically to the right. The purpose is
to achieve in the courts what our Republican friends and the radical
right and the fringe elements of the Republican Party couldn't
accomplish in the legislatures. They couldn't achieve in the State
legislatures or in the Congress what they now seek to do by legislating
from the bench through activist judges who will tilt our entire
political system against the majority will.
The agenda is essentially to constrain and constrict and even cripple
the healing and helping power of our Federal Government under the guise
and the smoke screen of originalism. They want to restrict and
constrain the vision of an expanding individual's right to essential
liberties. They want to constrict, instead of expand, an increasingly
inclusive America. And that judicial philosophy is what underlies
disappointment of Amy Coney Barrett. They want to legislate from the
bench and achieve in the courts what they couldn't achieve in our
elective bodies because they are losing in those elective bodies.
As Shannon Watts, a leader of Everytown, said to me the other day:
They are going to the courts, not because we are weak in achieving
measures against gun violence but because we are growing stronger and
stronger.
In fact, there is a grassroots movement composed of Everytown, Moms
Demand Action, Students Demand Action, Gifford, Brady, Connecticut
Against Gun Violence, Newtown Action Alliance, and Sandy Hook Promise--
all part of a grassroots movement that is moving America toward
protecting against gun violence.
But Amy Coney Barrett has a view of the Second Amendment that she has
acknowledged in a speech ``sounds kind of radical.'' That is a quote--
``sounds kind of radical.'' It sounds kind of radical because it is
kind of radical, and that radical view is losing in elective bodies, in
State legislatures, and in local governments that are moving to protect
people against gun violence.
We see the same phenomenon on healthcare, on reproductive freedom,
and on voting rights. The majority of Americans want to expand the
inclusiveness of America and the vision of individual rights and
liberty, not roll them back, not turn back the clock to this
originalistic textualism that underlies Amy Coney Barrett's philosophy.
She will bring that philosophy to the Bench, as she has done on the
Seventh Circuit as a member of the court of appeals there. That is the
danger, and that is the alarm we are sounding here.
The Affordable Care Act is about protecting people who have
preexisting conditions, but it is also about protecting children who
are on their parents' healthcare policies until the age of 26. It is
about lowering the cost of prescription drugs. It is about making more
widely available healthcare by providing subsidies to folks who need
the help. It is about banning insurers from charging women more just
because they are women.
Preexisting conditions affect 130 million Americans; in Connecticut,
1.5 million residents of our State--52 percent of our population.
Preexisting conditions are diabetes, asthma, heart disease, high blood
pressure, and now COVID-19. Yes, COVID-19 is a preexisting condition
because of the damage that may be done to lungs, hearts, livers, and
other organs.
In the midst of a pandemic of COVID-19, this administration is
putting on the highest Court in the land a Justice who would strike
down that protection. Of course, they have a ruse. It is called
severability. Our Republican colleagues say: Don't worry; the Court can
strike down one provision and keep the whole law--or the rest of it in
place.
Severability--you sever the part that is unconstitutional. It is a
doctrine of law. But that is not what the U.S. District Court held in
striking down the Affordable Care Act in the case that is now before
the U.S. Supreme Court--the same case that will be argued on November
10, where Judge Barrett will sit, assuming she is confirmed today. The
U.S. District Court didn't hold that it was severable. On the contrary,
it struck down the whole law. The Court of Appeals for the Fifth
Circuit didn't hold that it was severable.
The administration is not looking for severability. It says: Strike
down the law. The President of the United States says: It couldn't come
soon enough. Eliminate the Affordable Care Act in total, including the
protection for people with preexisting conditions. They promise to
replace it.
The President's Press Secretary handed to Leslie Stahl, after his
``60 Minutes'' interview, the supposed plan, a replacement, which was
absurdly a
[[Page S6551]]
collection, apparently, of past Executive orders, other documents--
completely irrelevant and inadequate as a supposed replacement. So this
idea of severability is another ruse.
Our Republican colleagues also say our fears are ``apocalyptic.'' The
majority leader used that word yesterday--``apocalyptic.'' It is not
apocalyptic if you have a preexisting condition. It is not apocalyptic
if you care about the people who have preexisting conditions. It is not
apocalyptic if you have lived through the excruciating pain and anguish
and anxiety, as the Curran family has, of having a child with a
preexisting condition.
Let me introduce you to Connor Curran, a 10-year-old--in fact, he
just celebrated his 10th birthday in Ridgefield; I was with him that
day--who has Duchenne muscular dystrophy. I have told his story on the
floor in this place numerous times over the course of these past years
since I first met him about 5 years ago. Connor is a hero. There are
few in this body who could claim to have had his courage and
perseverance at that age--maybe at any age. His smile lights the world.
His courage is matched by his parents.
I introduced Connor to Amy Coney Barrett at the hearing because I
wanted her to know the impact on real people and real lives, the real
harm that would be done if the Affordable Care Act is struck down.
Connor has survived this debilitating disease because of treatment
his parents couldn't have afforded without the Affordable Care Act. It
is that simple. They wrote to me asking me to make a plea to Amy Coney
Barrett: Please don't take away Connor's healthcare. They asked me to
ask her to make a pledge--doctors make this pledge--first, do no harm.
First, do no harm.
I don't know whether Amy Coney Barrett heard or saw Connor. Of
course, his poster was there when I told his story. I don't know
whether the impact of that story will move her, but my hope is that it
will, and my hope is--or was--that it would move my colleagues, because
the real harm to real people is not only about Connor Curran, this
brave boy who will lose his ability to walk and his ability to hug and
then to hold hands, to play with his brothers. And in spite of all of
it, he has demonstrated that perseverance and courage that I hope will
move this body, even in this closing hour, to respect the importance of
the Affordable Care Act. Others, like Julia Lanzano, who has treatment
for a brain tumor because of the Affordable Care Act, and countless
others who have that kind of treatment, are enabled by the Affordable
Care Act to do so.
It may seem to my Republican colleagues apocalyptic but not to Connor
Curran and his family.
Tens of times, Republicans in this Senate have sought to repeal the
Affordable Care Act. They failed. Now they are trying to do it from the
courts--legislate from the bench through an activist judge like Amy
Coney Barrett.
They are rushing this nomination not only to strip away healthcare
from people like Connor, but they also want to end a woman's right to
decide and choose when and whether and how to have a family.
I want to emphasize something to my Republican colleagues that I hope
they hear. When you take away a woman's right to make that decision,
when you turn women who seek an abortion into criminals, when you make
doctors performing abortions guilty of crimes, you don't end abortion.
You make getting an abortion more costly. You make getting an abortion
more excruciatingly difficult. Most importantly, you make it more
dangerous--literally dangerous. Hundreds of women died every year
seeking unsafe abortions before Roe v. Wade protected their right to
choose.
I remember that era because I was a law clerk to Justice Harry
Blackmun on the U.S. Supreme Court shortly after he wrote the majority
opinion in Roe v. Wade, and we thought the issue was resolved: Women
have the right to make that choice, legally.
But far from resolution, what we see is a continued assault on that
right. Now Republicans have stacked the bench with activist judges
ready to chip away at reproductive rights and even reverse Roe,
chipping away at it through State legislatures--restrictions on
clinics, the width of their hallways, the requirement for admitting
privileges.
We can be sure that victims of rape or incest will be forced to carry
an abuser's child if those restrictions are upheld or Roe is reversed.
If you doubt it, let me introduce you to Samantha.
One night in January 2017, Samantha went out with a few friends and
coworkers. She woke up the next morning in a coworker's home, confused,
scared, and covered in her own blood. She had been raped.
After she was raped, Samantha was, in her own words, a zombie. She
just wanted the event to be erased from her memory. That March,
Samantha took a pregnancy test, and then another, and then another.
They kept coming back with the same result--pregnant.
After the horrible violence she faced, she simply couldn't process
that she was now pregnant. She chose to have an abortion.
When Samantha shared her story with me, she wrote: ``I knew that, if
I couldn't end this pregnancy, it would end me.''
Reversing Roe v. Wade will matter for Tracy, also from Connecticut, a
woman I met, also courageous and honest. Tracy was diagnosed with stage
IV endometriosis, which caused an ongoing inability to have a healthy
pregnancy.
But she was, as she describes it, ``one of the lucky ones.'' She had
access to care and was able to receive in vitro fertilization treatment
to assist in getting and staying pregnant. But Tracy was scared when
she saw that a group that sponsored an open letter, signed by Judge
Barrett, had recently stated that they wanted to criminalize having a
child through IVF.
In a world without Roe, there will be nothing to protect against a
law making it a crime for a woman to do what Tracy did and for a doctor
to perform that medical procedure which enables her to achieve her
lifetime dream of having a child.
Sadly, we don't have to wonder what Judge Barrett's position on a
woman's right to choose will be. She signed a letter calling Roe v.
Wade ``infamous'' and called for ``the unborn to be protected in law.''
That is her legal view, her position on the law.
I didn't ask her in the hearing about her personal views or her
religious faith--those issues are private--but her position on the law,
just as she left no doubt about her view of the Affordable Care Act
when she wrote that Chief Justice Roberts stretched that measure beyond
its true meaning in order to uphold it--I am paraphrasing--or said
about King v. Burwell, upholding the Affordable Care Act, that the
dissent had the better of the legal argument.
In another letter signed by Judge Barrett, she called Roe v. Wade's
legacy ``barbaric.'' We know what Judge Barrett will do about the
Affordable Care Act and about reproductive freedoms because she has
been screened and vetted. There is no mystery. Donald Trump has said he
would impose a strong test--his words--and that strong test was to
strike down the Affordable Care Act and overturn Roe v. Wade.
We cannot go back. We cannot roll back these rights. We cannot turn
back the clock to an America that banned abortion in many States, drove
it underground, and made vital healthcare services dangerous and even
deadly. We can't go back to an America where the rich and privileged
can find a way out of unintended pregnancy but the rest of America is
denied that access to healthcare.
There is a racial justice element here because the ones who will
suffer, predominantly and disproportionately, are women of color, women
of lesser means financially, who live in those States and cannot travel
to others like Connecticut, where Roe v. Wade was codified in statute
when I was in the State legislature as a State senator. I helped to
lead that effort to codify it in statute. But Connecticut's law won't
help the woman in Texas or Louisiana who is denied that right.
Make no mistake, this threat is not some abstract, hypothetical
notion in the future, some apocalyptic vision of what might happen in
the United States of America. We are one step away. In fact, there are
17 abortion-related cases that are literally one step away from the
U.S. Supreme Court. There are cases like SisterSong Women of Color
Reproductive Justice Collective v. Kemp, a case currently before
[[Page S6552]]
the 11th Circuit involving a challenge to a ban on abortion as early as
6 weeks into pregnancy, before many women even know they are pregnant.
There are cases like Memphis Center for Reproductive Health v.
Slatery, a case challenging an escalating ban on abortions at 6, 8, 10,
12, and so on weeks into pregnancy, depending on where the Sixth
Circuit deems it appropriate for a woman to lose the right to choose
for herself when and whether to have a child.
There are additional cases involving bans on abortion later in
pregnancy, when women can face the most severe health risks and rely on
their doctors for accurate information and compassionate care.
There are ``reason-based bans'' that merely exist as a pretext for
interrogating and intimidating women who seek an abortion.
There are cases like Planned Parenthood Gulf Coast v. Rebekah Gee,
which challenged years of inaction by the State of Louisiana on a
Planned Parenthood affiliate's application for a license to provide
needed abortion care.
There are other challenges to redtape laws that require abortion
providers to jump over obstacles--needless, senseless hurdles that
serve no medical purpose but exist just to burden them and make
necessary abortion services harder to obtain--and numerous other
abortion laws designed to limit access, strictly to limit access in the
supposed name of healthcare.
Access to reproductive healthcare is already hanging by a thread in
many States across the country. Judge Barrett's nomination imperils the
access that remains, and these cases are just one step away from the
highest Court--at least 17 of them, one step away from the Court that
Amy Coney Barrett will join.
Reproductive rights are not the only rights at stake in this
nomination. Voting rights hang in the balance as well. For years,
Republicans have decided that they are willing to suppress the vote if
it helps them to win election. This fundamental assault on our
democracy has taken many forms, and we have seen them across the
country as recently as this election, ongoing, in realtime.
Republican-appointed judges have worked with Republican elected
officials to allow suppression action to take effect and be sustained.
These judges proclaim themselves to be originalists, but they betray
provisions of the Constitution, the 14th and 15th Amendments, that our
ancestors fought a civil war to secure: equality and the right to vote.
A civil rights movement, a century later, secured the passage of the
Voting Rights Act and made those rights real for many Americans. People
marched, some died to pass that law. But this conservative Supreme
Court betrayed the legacy of Lincoln, Martin Luther King, and John
Lewis when it gutted the Voting Rights Act in the Shelby County case,
and this Court continues to attack voting rights and it will continue
under Amy Coney Barrett.
Howard Porter, Jr., a Black man in his seventies with asthma and
Parkinson's disease, was a plaintiff in one of those cases decided just
this month. Howard simply wanted to be able to cast his vote safely,
without contracting COVID-19.
He wrote to the court:
So many of my ancestors even died to vote. And while I
don't mind dying to vote, I think we're past that--we're past
that time.
On a partisan vote, the conservatives on the Supreme Court disagreed.
Amy Coney Barrett will join them, and rushing this nomination on the
eve of the election means that she will join them possibly to vote on
the election itself while on the Court.
Is that view apocalyptic? Not if you believe Donald Trump, who said
the reason why he wants a ninth Justice is to decide the election, not
the voters--the Supreme Court. He said the quiet part out loud--and so
did a number of my colleagues in our Judiciary Committee meeting. He
said: This election will end up in the Supreme Court, and ``I think
it's very important we have nine Justices.''
And when I asked Amy Coney Barrett if she would recuse herself from a
case about this election as a result of these comments, she refused to
answer or commit.
I call on her to postpone her taking the oath of office until after
the next President of the United States is inaugurated. Why not remove
any doubt about conflict of interest, any question about the legitimacy
of whatever decision may be necessary by the Supreme Court by
postponing her investiture. I ask her to make that commitment and for
my colleagues to join in that call and for the President to respect it.
This nomination is not just about healthcare; it is also about the
assault on a woman's right to choose, on voting rights, and it is about
whether governments can enact reasonable, sensible gun violence
protection laws to keep America safe.
I want to tell you, finally, about Natalie Barden. Natalie is 18
years old. She was 10 when her little brother Daniel was killed at
Sandy Hook Elementary School in Newtown, CT, on December 14, 2012.
Daniel was 7 at the time. He was one of 20 innocent, beautiful children
and a sixth grade educator who were killed that tragic morning.
I was at the firehouse not long after. I witnessed the unspeakable
grief on the faces of parents and families whose children were gunned
down, families who realized that some of those children were not coming
home.
Eight years later, Natalie says that her grief is still real. Her
crusade for gun violence prevention measures inspires me. So does the
work of her parents and other families there in Newtown and across the
country--survivors I have met, families I have come to know and respect
and admire.
What happened at Sandy Hook, sadly, was not an isolated abhorrent
incident; it is part of an epidemic, a scourge, a public health menace
of gun violence. In the last 10 years, gun violence has taken more than
350,000 lives in rural communities and urban communities and every
community in between. No community is immune. None of my colleagues'
communities can claim they are immune.
Judge Barrett's view of the Second Amendment--that it would give
felons, for example, the right to buy or possess firearms; that it
would put the burden on the government to prove they are dangerous; a
view that she acknowledges sounds kind of radical--would potentially
result in striking down the laws that Natalie has crusaded to achieve;
that Janet Rice of downtown Hartford, who lost her son Shane, believes
can help save lives because, in fact, those gun violence prevention
measures can save lives.
Universal background checks; closing the Charleston loophole; Ethan's
Law, named after Ethan's Song, who perished because of an unsafely
stored weapon--these measures can help save lives. A ban on ghost guns,
untraceable because they have no serial numbers; a ban on high-capacity
magazines--these laws can help save lives. But with Amy Coney Barrett's
nomination, every single gun violence prevention measure at every level
of government is in grave peril because she will join others on that
Court who believe with her in this radical agenda of striking down
those measures.
Tabitha Escalante of March for Our Lives said to me the other day:
``Nothing less than everything is at stake.'' And that is because,
again, there are cases literally one step away from the highest Court,
including Duncan v. Becerra, where Judge Kenneth Lee on the Ninth
Circuit became the first Trump-nominated judge to rule that a ban on
high-capacity magazines violated the Second Amendment. That outlier
opinion flouted the unanimous consensus of other Federal appeals judges
who have upheld large-capacity magazine bans in their State. There are
numerous other cases that involve measures that help save lives--one
step away from being struck down.
My Republican colleagues have the majority. They may have the votes
to push this nomination through today, but they don't have the American
people, and they don't have history on their side. They are doing it
because they can, because they have the votes, but Americans can do
something too. They can vote. They can show they want gun violence
protection measures and reproductive freedoms and the Affordable Care
Act and voting rights and workplace safety. They don't want an America
that rolls back to an originalistic view, a smokescreen that constricts
rights and liberties.
There is something larger than just one Justice and one vote at stake
here. Nothing less than everything is at
[[Page S6553]]
stake--a shift in the balance of the Court that will last for decades
if we do not act to correct, and believe me, there are appropriate
measures that should be considered. The American people have the power
in this election to speak out and stand up to protect their own health,
the public health, and the health of our democracy.
I fear for the Supreme Court's legitimacy. I revere the Supreme
Court, having argued before it, having clerked on it. Its legitimacy
depends on faith and trust. We must act to restore the credibility and
legitimacy of the Court, which has been so gravely imperiled.
I yield the floor.
The PRESIDING OFFICER (Mr. Tillis.) The Senator from Washington
Mrs. MURRAY. Mr. President, Justice Ginsburg was the first Supreme
Court Justice I ever voted for and a North Star for me and so many
others whose futures were irrefutably made possible in part by her life
and her work.
I pledged I would do everything in my power to honor her last wish--
that the next President fill her vacancy--not just because Justice
Ginsburg was a legal giant who can never be replaced but because I
understand, like she did, that making such a momentous decision so
close to an election could exacerbate our Republic's challenges and
spin our democracy into chaos.
That is why I have been fighting so hard to push my colleagues to
stop this charade and to just wait a few weeks. We should not be voting
on this lifetime appointment while the American people themselves are
in the middle of voting, of telling us how they want this country's
future to look.
This is all made even worse by the fact that we are in the middle of
a pandemic, and instead of working with Democrats to pass serious
relief our communities are calling out for, Republicans are refusing to
do anything but jam this anti-healthcare judge on to the Supreme Court.
Over the last 3 years, I have seen Republicans rubberstamp hard-right
judicial nominees like it is all they came here to do, but watching
them ignore the clear wishes of the American people, explicitly reject
attempts to help families and communities get through this pandemic,
and press on with this grotesque power grab--it is a new low for this
body. It is a new low for our country and for the people we serve.
As I have made clear, I will be voting against Judge Barrett's
confirmation, just like I voted against her confirmation to the Seventh
Circuit Court of Appeals, against Justice Kavanaugh and Gorsuch and
against so many other Trump-nominated judges who, whether they admit it
or not, are part of a Republican strategy to roll back our hard-won
progress.
Judge Barrett clearly fits the same mold as the more than 200
partisan judges Senate Republicans have fast-tracked onto the Federal
bench who are anti-healthcare and anti-abortion but pro-big business
and pro-wealthy special interests.
This was all reinforced during the sham nomination process as Senate
Republicans and Judge Barrett tried to downplay their own litmus test.
Judge Barrett was asked to affirm the constitutionality of the law
that protects healthcare for hundreds of millions of Americans. She
refused.
She was asked to affirm the longstanding ruling of Roe v. Wade as a
superprecedent. Not surprisingly, given her record includes a statement
calling Roe ``barbaric,'' she refused.
She was asked to affirm the constitutionality of the ruling that
allowed same-sex marriages and opened up a new chapter of equality for
LGBTQIA+ couples. She refused.
She was asked to affirm that climate change is causing air and water
pollution. Yet, even on this matter of scientific fact, Judge Barrett
refused to answer, and that was apparently exactly what Senate
Republicans hoped she would do.
The lack of transparency from Judge Barrett and Senate Republicans is
concerning, not because we don't know where they stand--we do--but
because they are so comfortable obfuscating cold facts about Judge
Barrett's record and judicial philosophy as well as their own previous
statements, as if they are not real.
For example, in 2016, they were adamant that when the Supreme Court
loses a Justice in an election year, the people's voices should be
heard before the vacancy is filled. For 8 months, they refused to hold
a hearing on President Obama's nominee, Merrick Garland, but now, even
as the American people are in the process of voting, Republicans are
trying to ignore their voices. Not on my watch.
I recently asked people in Washington State to share their personal
stories about what is at stake for their families. The response has
been overwhelming, and the stories have been alarming.
I have heard from people whose stories show how different life was
before and after Roe v. Wade and how much would be lost if reproductive
rights were rolled back.
I have heard from people who fear their right to marry or adopt a
child or start a family could be lost.
I have heard from people who are worried they will die if Republicans
get their way at the Supreme Court and take away the healthcare and
protections they rely on.
Republicans may want to pretend the stakes are not this high, but
they don't have to take my word for it; they can listen to their own
constituents and look at their own records.
For Republican Senators to stand here and tell families ``not to
worry'' is kind of like the captain of the Titanic passing out
umbrellas and telling passengers that is all they need--with one key
difference. Republicans have made clear from the start that hitting the
iceberg is not an accident; it is the plan.
Despite the fact that climate change is an existential threat--
something the vast majority of the public understands--Republicans
continue to cower to a President and special interests who insist it is
a hoax.
Despite the hard-fought progress for LGBTQIA+ rights, they have stood
by this President who undermines them at every turn.
Despite the fundamental importance of the right to vote, they have
blocked our efforts to restore and secure those rights and protect our
democracy.
Despite what they would have you believe, Republicans have tried time
and again to end protections for people with preexisting conditions and
upend healthcare in our country.
If the failed TrumpCare vote from a very few years ago is too painful
or distant a memory for Republicans to revisit, they are at this very
moment championing a lawsuit that would do all the harm of that bill
and then some. Who is going to hear that lawsuit? The deciding vote
could be a Justice picked by a President who vowed--vowed--he would
only choose nominees who will rule against protections for preexisting
conditions, who thinks that would be a ``big win,'' and who said just
last week that he hopes that happens.
It is no mystery why President Trump nominated and Republicans are
rushing to confirm a judge with a record of hostility to the Affordable
Care Act.
It is no secret that a victory for them would be a disaster for
families across our country. If you don't believe me, ask Mays from
SeaTac, WA, who lives with sleep apnea, asthma, prediabetes, complex
post-traumatic disorder, and hypothyroidism. If Republicans succeed in
this lawsuit, she would lose her Medicaid expansion coverage and access
to care, meaning her conditions could deteriorate, increasing her risk
of diabetes, coma, or dying in her sleep.
If you don't believe Mays, then ask Rhiannon from Arlington, WA, who
has type 1 diabetes and could get kicked off her parents' insurance
plan if Republicans win this case at the Supreme Court. As she wrote to
me, ``Right now the ACA is the only hope I have of living past 26.''
If you don't believe Rhiannon, ask Madeline, who has a medical
condition which makes pregnancy fatal. For Madeline, affordable
healthcare coverage--coverage that includes access to birth control--is
absolutely essential, as is the right to an abortion. If Republicans
get their way, insurance companies would no longer have to cover birth
control, even though a pregnancy for Madeline would be life-
threatening.
Things get even worse for her if Republicans overturn Roe v. Wade.
Last year, when Madeline learned that, despite being diligent about her
birth control, she was pregnant, she knew what she had to do. She had
to get an abortion. It was safe; it was legal; it
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was totally her decision; and it was lifesaving.
But if Judge Barrett were Justice Barrett, if the right to abortion
were a thing of the past, Madeline's pregnancy would have been a death
sentence. As she put it, ``This isn't a right vs. left issue for a lot
of us, it's life or death--and knowing [that] is at stake . . . is
terrifying.''
Madeline isn't the only person who is terrified. If Republicans win
their lawsuit, over 130 million people with preexisting conditions like
Madeline could be charged more for their health insurance, have
benefits excluded, or be denied coverage entirely.
Over 20 million people like Mays and Rhiannon could lose coverage for
Medicaid expansion, the exchanges, or their parents' plans. Insurance
companies could exclude essential health benefits countless other
patients rely on, like prescription drugs or maternity care or therapy
or wheelchairs or much more.
Half the country could be charged more for health insurance just
because they are a woman. Seniors could face thousands more in
healthcare costs with the return of the age tax and the Medicare
doughnut hole. Lives of people with disabilities could be upended if
they lose access to home- and community-based services that help them
live independent lives or if insurance providers can discriminate on
the basis of disability by denying coverage or charging more.
And people with expensive healthcare needs--cancer diagnosis, a
medically complicated pregnancy, a fight with COVID-19--could be left
with an enormous bill since insurance companies won't have to cap
patients' out-of-pocket costs but will be able to place annual and
lifetime limits on their benefits.
And we cannot forget the communities of color who already face worse
outcomes due to systemic racism in our healthcare system who would be
hit hardest by so much of the damage of the Republicans' healthcare
lawsuit.
Healthcare isn't all that is at stake for families--far from it.
Fundamental rights and protections and opportunities for workers are on
the line. The fate of immigrants and refugees and asylum seekers--
families and Dreamers who came to our Nation in search of a better life
and brighter future are on the line. And hard-fought victories for the
LGBTQIA+ community are on the line.
Matthew, in my home State of Washington, and his husband were able to
marry, to adopt, and fortunate to be able to form a loving family. But
that might not be possible for LGBTQIA+ couples like them in the future
if the highest Court in the land turns back the clock and refuses to
see them as equal under the law.
The bottom line is that this Supreme Court fight is not about
politics. It is about the lives of hundreds of millions of people. If
Republicans don't believe my constituents, I invite them to ask their
own. I encourage them to listen because I guarantee people across the
country know what Republicans have been saying, know exactly what
Republicans are voting for, and they are speaking up about it.
I am here sharing their stories on the Senate floor, and Democrats
brought their stories to the committee room so that Republicans have no
choice but to hear them.
When we vote, Republicans will have no excuse to pretend they do not
know exactly what is at stake. Instead, every one of them will have a
simple choice. Will you listen to the families who are speaking up, the
people who are saying to you, in no uncertain terms, that if you put
this judge on the Court, if you win this partisan lawsuit, it could
kill me or will you ignore them?
If Republicans truly want to reassure their constituents and want to
show they are listening, the choice is simple: Vote no on this
nomination. For those who choose to put this President and the
profoundly lost Republican Party above anything else, to those
Republicans who are capping these brutal last 4 years off with such a
staggering show of fealty and partisanship and callousness, know the
consequences of this vote will be felt long after this President is
gone from office, regardless of the outcome of this election. People of
this country will not forget and neither will your Democratic
colleagues.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. ROSEN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Pursuant to rule IV, paragraph 2, the hour of 12 noon having arrived,
and the Senate having been in continuous session since yesterday, the
Senate will suspend for a prayer from the Senate Chaplain.
______