[Congressional Record Volume 166, Number 184 (Sunday, October 25, 2020)]
[Senate]
[Pages S6459-S6464]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                    Nomination of Amy Coney Barrett

  Mr. KENNEDY. Mr. President, I would like to spend a few minutes 
talking about the nomination of Judge Amy Coney Barrett to be an 
Associate Justice of the U.S. Supreme Court. It is horribly newsworthy 
to say that Judge Barrett's confirmation vote will not be unanimous. It 
should be. It won't be.
  If you judged Judge Barrett solely on her intellect and her academic 
achievements, certainly her nomination should be unanimous. Any 
fairminded person would have to be impressed. She is an honors graduate 
of St. Mary's Dominican High School in New Orleans, one of the finest 
schools in this country. She is an honors graduate of Rhodes College in 
Memphis, an extraordinary liberal arts school. She is an honors 
graduate of Notre Dame Law School. She finished first in her class. She 
clerked for two of the most distinguished jurists in this country--the 
late Justice Scalia and Judge Silberman. She was a chaired professor at 
Notre Dame Law School. She is now a member of the Seventh Circuit Court 
of Appeals. Any fairminded person who reads her legal writings and her 
opinions would come away impressed.
  If you judged Judge Barrett solely on her integrity, her confirmation 
vote should be unanimous. We all watched her almost 30 hours of 
testimony. We all know now about her beautiful family. She has seven 
beautiful children, two of whom are adopted and two of whom happen to 
be children of color. She is a devout Christian.
  If you talk to her former students, to her colleagues, and to her 
critics, who know her well, they will all tell you that she is a person 
of integrity. And if you don't want to believe any of those people--I 
wish you could, and I know the Presiding Officer can--but I wish the 
American people could see her FBI background check. The Presiding 
Officer and I know that when the FBI checks your background, it is kind 
of a combination between an endoscopy and a colonoscopy. They are 
pretty thorough. There is not a hint of scandal.
  If Judge Barrett were being judged on the basis of her temperament, 
she would be a unanimous choice as well. We saw that in her 30 hours of 
testimony. She listens well. She answers truthfully. She suffers fools 
gladly. I was just so impressed watching her.
  The reason that Judge Barrett will not be a unanimous choice, at 
least within this body, has to do with a little bit of history. This is 
one person's point of view, but I think history will prove that I am 
correct. For the last 60 years in America, we have been moving from a 
representative government and more to what I will call declarative 
government. We, as you know, are a democracy. We are not a pure 
democracy, unlike Athens, for example. When we have to make a decision 
on social or economic policy, each of us doesn't put on a fresh toga 
and go down to the forum or the public square and vote. We elect 
representatives to make those decisions for us at the Federal level. 
They are called Members of Congress, and they are accountable. The 
people have given their power to our representatives, and if those 
representatives don't exercise that power in making social and economic 
policy, those representatives can be unelected.
  But in the last 60 years, in some cases voluntarily and in some cases 
involuntarily, this body, the U.S. Congress, which under our 
Constitution is supposed to make social and economic policy as 
representatives of the people, has, as I said, in some cases 
voluntarily and in some cases involuntarily, ceded our power--ceded it 
to the administrative state and to the judiciary.
  Let me talk for a moment about the administrative state. Some would 
call it the bureaucracy. The bureaucracy now at the Federal level is a 
giant rogue beast. It enjoys power once only known by Kings and Queens. 
The administrative state makes its own laws, called rules; interprets 
its own laws; and enforces its own laws before judges that the 
bureaucracy itself appoints. We in the U.S. Congress have allowed that. 
The judiciary has helped the administrative state gather that power as 
well.
  As you know, there is a rule called the Chevron doctrine. I won't 
bore you with the details, but it basically says that if the 
administrative state--the bureaucracy--interprets a rule or regulation 
or even a statute in a ``reasonable way,'' whatever that is, the 
judiciary is going to defer to them. The U.S. Congress has also ceded 
much of its power to the judiciary, and we have had many Federal judges 
that greedily accepted it.
  The reason that we will not have a unanimous vote for this eminently 
qualified nominated jurist is because of that. Some people in America 
and some of my colleagues like the fact that the U.S. Supreme Court, 
for the last 60 years, has not demonstrated judicial restraint.
  Now, I am not going to stand here and tell you that the U.S. Supreme 
Court doesn't make law. Of course it makes law. It makes law in a 
particular case--one side wins; one side loses. Sometimes the U.S. 
Supreme Court makes law at the direction of Congress and at the 
direction of our Founders.

  Our Constitution only prohibits unreasonable searches and seizures. 
We look to Federal judges to the U.S. Supreme Court to tell us what 
``reasonable'' and ``unreasonable'' means, but in all cases our Federal 
judges and the U.S. Supreme Court is supposed to demonstrate judicial 
restraint. When it is a close question, when it is a matter of social--
major social or economic policy, then the Federal judiciary is supposed 
to show deference to the U.S. Congress, but more and more it does not.
  Some Americans like that. Some of my colleagues in this Chamber like 
that. They think that the U.S. Supreme Court ought to be a mini-
Congress. They think that the U.S. Supreme Court should be a political 
body. They like the fact that if they can't pass a law changing social 
and economic policy through the U.S. Congress, they get a second bite 
at the apple and can go to the U.S. Supreme Court. I don't believe that 
is constitutional nor does Judge Barrett, I have concluded after 30 
hours of testimony, and that is why her confirmation will not be 
unanimous in this body.
  Let me tell you what I believe--and I will preface this by saying, 
after listening to Judge Barrett for 30 hours, this is what I believe 
she believes: I believe that Madison and his colleagues got it right. I 
believe that we should have three equal branches of government. I 
believe we should have checks and balances. I believe that just because 
those

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branches of government are equal, that doesn't mean they are the same. 
I think their Founders intended each of those branches to have their 
own special role, scope, and mission.
  I also believe that our Founders felt they were laying the foundation 
for a representative democracy, that Congress would make the important 
economic and social policy in this country; that when we talk about how 
societies meet our human needs, our Americans meet their human needs in 
terms of security, education, work, health, and well-being, that those 
decisions would be made by the people, not by the judiciary or the 
bureaucracy. They would then be made by people through their elective 
representatives.
  I believe that our Founders intended Federal judges' role to be to 
tell us what the law is as enacted by Congress, not what the law ought 
to be. I believe our Founders intended for Federal judges to call the 
balls and the strikes--sometimes in doing so making law in a particular 
case, but to call the balls and the strikes, as Justice Roberts put it. 
And in doing so, I don't believe our Founders intended for Federal 
judges to be able to draw their own strike zone.
  I do not believe that our Founders intended for Federal judges to be 
politicians in robes. I do not believe that our Founders intended 
Federal judges--and, certainly, not members of the U.S. Supreme Court--
to be able to rewrite the U.S. Constitution to satisfy some political 
or social agenda every other Thursday that the American people will not 
accept through their elected Members of this body and the House of 
Representatives. It is called judicial restraint.
  Judge Barrett shares it. It is controversial. It shouldn't be. But 
that is why, in my judgment, her confirmation vote will not be 
unanimous. I will be voting for Judge Barrett. I will be doing so 
enthusiastically.
  She is one of the finest legal minds I have ever seen, and she 
understands the role of the U.S. Supreme Court under our Constitution.
  I yield the floor to the senior Senator from Vermont.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, just 4 weeks ago, Members of the Senate 
gathered just down the hallway in Statuary Hall. We gathered to honor 
Justice Ruth Bader Ginsburg, the first woman to lie in state at the 
U.S. Capitol. Justice Ginsburg was a trailblazer, a woman who may have 
stood at just over five feet tall but was nonetheless a giant of the 
law. The nation grieved for her, not simply because she wasa a 
brilliant lawyer and Justice, but because she was a fighter. And she 
fought for those who needed fighting for most--Americans for whom the 
promise of America was still just a promise.
  I have spoken at length about what Justice Ginsburg meant to the 
struggle for equality for millions of Americans. I will not repeat 
those words today, except to say that Justice Ginsburg's life's work 
left our nation a more perfect union. We will forever be in her debt.
  A day after we gathered in Statuary Hall, with the nation in 
mourning--and days before Justice Ginsburg was laid to rest with her 
husband in Arlington Cemetery--the President held a celebratory 
ceremony to nominate her replacement. The masks were off at that Rose 
Garden ceremony, in more ways than one. Republicans made it clear they 
would stop at nothing to confirm Justice Ginsburg's replacement before 
a Presidential election just weeks away. Yes, the masks were off.
  From that moment, the confirmation process for Judge Amy Coney 
Barrett has been a caricature of illegitimacy. I will not dispute that 
it is the responsibility of this body to consider Justice Ginsburg's 
replacement to the Supreme Court. But this is not how we should do it.
  Not during such a polarizing time for our country, just one week from 
a Presidential election after more than 57 million Americans have 
already voted. Not at the expense of every precedent and principle this 
institution once stood for. Not when doing so requires that half of the 
United States Senate go back on their word, contradicting every 
argument they once made about Supreme Court vacancies during an 
election year. Not when this sprint to confirm Judge Barrett gave the 
Judiciary Committee just 2 weeks to prepare for her hearings, when the 
Committee has afforded itself three times as long to vet other modern 
nominees to our nation's highest court.
  Not when records of Judge Barrett's undisclosed speeches and 
materials have continued to pour in, even after her hearings, revealing 
what a slipshod process this has been from start to finish. And not 
when the Senate is doing nothing--nothing--to pass a desperately needed 
COVID relief bill.
  Every Senator knows in their heart this is wrong.
  Senator McConnell ramming this nomination through no matter the cost, 
while worrying about the politics of providing relief to millions of 
Americans suffering during this still-worsening pandemic--which has 
left 225,000 Americans dead--says everything one needs to know about 
the priorities of today's Republican Party. Yes, the masks are off.
  It is far from a secret why President Trump and Senate Republicans 
are hell-bent on confirming Judge Barrett before Election Day. All you 
have to do is look at the calendar: On November 10, the Supreme Court 
will hear arguments in California v. Texas, the Republican-led lawsuit 
to strike down the Affordable Care Act. And Republicans see a Justice 
Barrett as an insurance policy to ensure there will be a five-vote 
majority to finally strike down the law.
  Judiciary Committee Republicans spent last week crying foul, 
complaining that it is fearmongering to claim that they see this 
vacancy as an opportunity to overturn the ACA. But fear mongering 
implies that we're not talking about the facts. So let's review some 
basic facts.
  It is the Republican Attorneys General who are asking the Court to 
throw out the entire ACA. Not just part of it--all of it. It is the 
Trump Justice Department that has sided with the Republican-led 
lawsuit. And it is this Republican-led Senate, in a vote just weeks 
ago, that gave the green light to the Trump Justice Department to take 
this position--a position that, if successful, would terminate health 
insurance for more than 20 million Americans, terminate the Medicaid 
expansion for 15 million more, and terminate protections for 130 
million Americans with preexisting conditions. While disappointing, 
this Senate vote was hardly surprising. Republicans in Congress have 
now voted to repeal or gut the ACA at least 70 times--seventy, as in 
seven-zero.
  As if Republicans could not be clearer about their intentions, just 
days ago President Trump was asked on national television about the 
fate of the ACA before the Supreme Court. He said: ``I hope that they 
end it. It'll be so good if they end it.''
  Like Captain Ahab of Herman Melville's Moby Dick, Republicans have 
been single-mindedly obsessed with killing the ACA--their great white 
whale--since the moment the law was enacted. Having failed thus far in 
both Congress and the courts, they see Judge Barrett as the final 
harpoon to once and for all end the law. So when Republicans plead 
innocent and claim they have no intentions of taking away people's 
health care protections, Americans will remember that their actions 
speak much louder than their words.
  And Republicans have yet another horse in this race--that is, the 
actual race for the White House and Congress. Always one to say the 
quiet part out loud, President Trump has repeatedly stated his 
expectation that his nominee will side with him in any election-related 
dispute. Baselessly claiming that Democrats have ``rigged'' the 
election and falsely labeling mail-in ballots as a ``scam,'' President 
Trump promises to challenge any election loss in the courts. That's why 
he says ``it's very important that we have nine justices.'' Another 
Republican on the Judiciary Committee has echoed the President, 
claiming that the ``entire reason'' they need Judge Barrett confirmed 
now is to ensure that no election-related dispute is deadlocked in a 4 
to 4 decision. Mind you, I do not recall Republicans making this 
argument when they blocked Judge Merrick Garland from receiving a vote 
for 8 months prior to the last presidential election.
  Just this week, we have seen why Republicans are all of a sudden so 
anxious

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to have a ninth justice seated before Election Day. The Republican 
Party is waging an all-out war on voting in the courts right now, with 
the goal of disenfranchising as many minority, poor, elderly, 
vulnerable, and young voters as possible. Knowing that voters are 
relying on mail-in ballots in the midst of the COVID-19 pandemic, 
Republicans are unapologetically fighting State and local attempts to 
make absentee voting easier.
  And it's clear that Republicans believe having Judge Barrett on the 
Court will help them to suppress the vote. Last week, deadlocked 4 to 
4, the Supreme Court left in place a Pennsylvania supreme court order 
requiring officials to count absentee ballots received within 3 days of 
the election.
  Yesterday, anticipating Judge Barrett's imminent confirmation may tip 
the scale, the Pennsylvania Republican Party asked the Supreme Court to 
review the case again--less than a week after losing the first time.
  Unfortunately, for her part, Judge Barrett said nothing during her 
hearings last week to assuage the American people that she would be 
anything but a green light for the deeply harmful, unpopular objectives 
of President Trump and Republicans.
  First and foremost, Judge Barrett repeatedly declined to distance 
herself from her litany of anti-ACA comments and writings. She also 
repeatedly declined to confirm whether she would follow Supreme Court 
precedent upholding the ACA.
  Judge Barrett once wrote: ``However cagey a justice may be at the 
nomination stage, her approach to the Constitution becomes evident in . 
. . [what] she writes.'' Using Judge Barrett's own standard, then, one 
cannot escape the conclusion that she will view the ACA as a Justice 
the same way she has always viewed the ACA: unconstitutional and 
unsalvageable.
  My concerns only grew when Judge Barrett refused to commit to 
recusing herself from any election-related disputes. President Trump 
has put Judge Barrett in an unenviable position by making it impossible 
for Americans not to question her impartiality should she vote in his 
favor in an election dispute. If a Justice Barrett votes to throw the 
election for President Trump, I fear not just the Court but our 
democracy itself would suffer an existential blow to its legitimacy.
  My concerns grew into alarm when Judge Barrett refused to affirm even 
the most basic tenets of our democracy. She would not affirm to me that 
a president must comply with a court order and the Supreme Court has 
the final word. She would not state whether the President can 
unilaterally postpone a Presidential election, despite the law clearly 
stating he cannot. She would not affirm to me whether our Constitution 
contemplates a peaceful transition of power, despite the 20th Amendment 
laying out the procedures for precisely such a transition. And she 
would not state whether it is illegal to intimidate voters at the 
polls, despite federal law explicitly making voter intimidation a 
criminal offense. I've never seen a self-described originalist so 
hesitant to merely restate the plain text of our Constitution and laws.
  In fact, Judge Barrett refused to say much of anything about pretty 
much everything. She refused to answer over 100 questions during her 
hearings and over 150 written questions. She did so by spuriously 
invoking the so-called ``Ginsburg rule,'' which falsely purports that 
the late Justice Ginsburg avoided answering any and all substantive 
questions during her confirmation hearings.
  Well, I participated in Justice Ginsburg's hearings. Justice Ginsburg 
gave detailed answers on a number of constitutional issues, including 
unequivocally affirming her belief that a woman's right to choose is 
central to her dignity. In all, Justice Ginsburg took clear positions 
on dozens and dozens of cases during her hearings. In stark contrast, 
Judge Barrett wouldn't even restate--not even comment on or discuss, 
but just restate--black letter law.
  I have never seen such top-to-bottom refusals to answer basic 
questions in the 16 Supreme Court confirmation hearings I have 
participated in. But in some ways, it was only fitting that a 
confirmation process that has been a caricature of illegitimacy 
concluded with such hearings-hearings in which the nominee wouldn't 
even acknowledge that masks inhibit the spread of COVID-19, or that 
climate change is real, or that voter discrimination exists. I fear for 
what this means for the future of the Judiciary Committee's 
confirmation process, now that Republicans have reduced our committee's 
role to a mindless rubberstamp of a President's nominees, just as they 
have diminished the Senate to a subordinate arm of the executive 
branch.
  The Republican argument for proceeding in this way, just 1 week from 
a Presidential election, boils down to this: We have the votes, so 
anything goes. Yet, having the power to do something does not make it 
right. The damage that will be left in the wake of this confirmation 
will stain this body for generations. When the word of a senator is 
rendered meaningless, when the words ``Advice and Consent'' are 
rendered meaningless, then this institution will be rendered 
meaningless.
  Justice Ginsburg left us with a more equal and more perfect union. 
She stood up for the right to vote. She stood up for the environment, 
and for holding all those in power accountable. She stood up for the 
rights of women to be free from discrimination, to control their own 
bodies, and to be equal to men.
  She stood up for the rights of minorities, the rights of the LGBTQ 
community, and the rights of all those who have been marginalized.
  Judge Barrett, if confirmed, will not. Based on my review of her 
record and based on her testimony, I believe a Justice Barrett would 
set the clock back decades on all of the rights that Americans have 
fought so hard to achieve and protect.
  I have said that Justice Ginsburg would have dissented from this 
process. The least I can do is join her. I will vote no.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, it is a privilege to serve with the 
Senator from Vermont on the Senate Judiciary Committee. He and I have 
been called, maybe, the odd couple on a number of issues like Freedom 
of Information Act reform and other matters. So we find ourselves 
aligned on that important issue, the importance of the public's right 
to know.
  But it won't surprise anybody to know--it certainly doesn't surprise 
him to know--he and I have a different point of view on this nominee 
and on a few other topics as well.
  One of the ones I wanted to talk about briefly at the very beginning 
was the so-called Ginsburg rule.
  Senator Leahy was there and Joe Biden was the chairman of the 
Judiciary Committee back in 1993 when Justice Ginsburg--then a lawyer--
was nominated for the Supreme Court. Her record as a litigator for the 
American Civil Liberties Union placed her far outside of the mainstream 
of American law.
  She argued for legalized prostitution, against separate prisons for 
men and women, and had speculated that there could be a constitutional 
right to polygamy--certainly outside of the mainstream of American 
legal opinion.
  But when she was pressed time and again before Republicans to talk 
about those views, she said she would not answer those questions. She 
cited, appropriately, Canon 5 of the Model Code of Judicial Conduct, 
which, among other things, forbids Federal judges or judicial 
candidates from indicating how they will likely vote on issues that may 
come before the courts or from making any statement that would create 
the appearance that they were not impartial.
  This rule is absolutely critical to an independent judiciary because 
judges must remain open-minded and be able to decide an actual case 
without prejudging that matter before it comes before them. Can you 
imagine what it would be like if you were a party to a lawsuit and came 
before a judge who had made a statement committing to a particular 
outcome during their judicial confirmation hearing? Well, the 
unfairness of that is obvious.
  So I think Judge Barrett did what Justice Ginsburg did when she was 
before the Judiciary Committee, what we expect all nominees to do, and 
that is to not prejudge cases and to not give any hint or prediction of 
outcomes or run on a platform or an agenda.
  My view is that, if you had a judge who did or a nominee who did come 
before the Judiciary Committee and

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make those sorts of commitments, that would be disqualifying in and of 
itself. That person ought to run for Congress. They ought to run for 
city council. They ought to run for the school board. They should not 
be a Federal judge. That is not what Federal judges are supposed to do.
  So I think Judge Barrett did exactly what a judge should do when they 
are confirmed. We still got to ask her a lot of questions, as Senator 
Kennedy pointed out, over the 30-plus hours of questioning, and she was 
extraordinary.
  It is obvious she had great command of the subject matter. There was 
a special moment where I noticed she wasn't taking any notes or writing 
anything down or referring to anything, and it struck me how strange it 
was, what a contrast it was that each of us, as members of the 
committee, had a small army of staff around us, that they had read 
every case, they had prepared big three-ring notebooks of information 
for us to get prepared to question the judge--but the judge had nothing 
in front of her.
  And I asked her to hold up what was sitting in front of her, and it 
was an empty legal pad--an empty notepad, excuse me--that bore the name 
``U.S. Senate'' on the ink pad but nothing that she had written down.
  So it, I think, spoke volumes about her command of the subject matter 
and her fitness for this particular job.
  We have all talked about the support she has from professors at Notre 
Dame, where she has taught for a number of years, highlighting her 
impressive intellect, her elegant legal analysis, and her manifest 
judicial temperament.
  Eighty-one former law school classmates from diverse political and 
other backgrounds shared their collective view that she embodies the 
ideal qualities of a Supreme Court Justice.
  We have heard from Noah Feldman, Harvard University law professor, 
who tends to be more liberal, and he points out that Judge Barrett is a 
brilliant and conscientious lawyer who will analyze and decide cases in 
good faith, applying the jurisprudential principles to which she has 
committed.
  So, in short, Judge Barrett has the qualities we should all look for 
in a judge. I think it is telling that our Democratic colleagues, when 
it came time last Thursday to vote on this nomination, decided to 
boycott the markup. None of them appeared. None of them voted. So the 
vote, literally, was unanimous. All of the Senators there present voted 
to vote the nominee out of the Judiciary Committee and recommended that 
that nomination be sent to the floor.
  I suppose, if they thought it would make any difference or they 
really had something to say or a reason to vote no, they would have 
shown up, but they did not.
  Judge Barrett exemplifies the fact that judges aren't players on a 
red team or a blue team; they are, as Chief Justice Roberts said during 
his confirmation hearing, umpires calling balls and strikes. We all 
understand the difference between an umpire and a player, and, simply 
said, judges aren't players; they just call balls and strikes, and they 
make sure the rules of the game are enforced.
  Judges should have no biases, no favorites, no preferred outcomes. 
But somehow, in their anger about this nominee and about the fact that 
she will fill the vacancy left by the death of Ruth Bader Ginsburg, 
somehow our friends across the aisle seem to have forgotten what the 
most basic role of judges is in America. Again, they pressed her, 
asking: How do you feel about climate change? How do you feel about 
abortion? How do you feel about every other hot-button issue that they 
could think of, and she appropriately invoked the Ginsburg rule and 
would not comment. Exactly what she should be doing.
  The other thing that I think is remarkable about this nominee is she 
is obviously somebody who has soared to the very heights of the legal 
profession--teaching, being a judge on the Seventh Circuit, both of 
which qualify her for this job. But she is also a person of great 
integrity and character.
  It takes self-restraint, it takes self-discipline not to use the 
power that Federal judges have to impose your own view or to choose a 
result. That takes a lot of self-restraint and self-discipline, and she 
has demonstrated her commitment to that judicial philosophy and that 
approach.
  During the final days of soon-to-be Judge Barrett's confirmation 
hearing, we heard from a number of witnesses about her, their 
experience working with her. I believe one of the most moving 
testimonials came from one of her former students, a young lawyer named 
Laura Wolk. Since graduating from Notre Dame Law School, Laura has 
earned some highly coveted clerkships, including for the Court of 
Appeals for the DC Circuit and the U.S. Supreme Court, just like her 
former professor.

  There is one fact about Laura that made her climb to these incredible 
heights as a young lawyer all the more impressive, and that is that she 
is blind. Throughout her life, Laura has overcome barriers that exist 
for individuals who are blind or visually impaired, becoming the first 
blind person to clerk at the U.S. Supreme Court.
  Laura spoke about her arrival at Notre Dame and the technology 
failures that were causing her to fall farther and farther behind her 
peers. Obviously, she needed that technology that would help her 
compete.
  Settling into law school is tough for any student, and I can't 
imagine the fear and frustration that Laura felt as she struggled to 
keep pace, at no fault of her own, because she lacked the assistive 
technologies she needed to compete on a level playing field. Laura did 
what any student would do, I presume, and that is she went to her 
professor and shared the weight she was carrying--a weight Judge 
Barrett eagerly picked up, saying to her: This is no longer your 
problem; this is my problem.
  Laura described the relief and gratitude she felt for her professor's 
kindness and generosity, not only during this interaction but in the 
years of support and encouragement that have followed. I found Laura's 
testimony incredibly powerful and a shining example of the character 
that Judge Barrett will bring to the Supreme Court.
  We have all come to appreciate Amy Coney Barrett, the person--a woman 
of great integrity, humility, and compassion who will bring tremendous 
value to the highest Court in the land. I am confident that if our 
colleagues across the aisle had any good argument addressing her 
qualifications or character or integrity, we would hear about it.
  The only thing that I have heard them say, which I cannot believe 
that they believe, is that somehow this is part of some great 
conspiracy to defeat the Affordable Care Act. You know what our 
colleagues across the aisle failed to mention? The merits of the 
Affordable Care Act is not even before the Supreme Court of the United 
States. It is a technical issue with regard to severability. It is a 
doctrine that says that if judges find part of a statute 
unconstitutional--here, for example, the individual mandate, which 
thanks to the Tax Cuts and Jobs Act, that penalty has been reduced to 
zero--whether if, in fact, that portion of the Affordable Care Act is 
unconstitutional, whether the whole act fails or not. But judges are 
told to presume the constitutionality of statutes--to presume them. And 
so the burden is on those who would prove the unconstitutionality to 
prove it. The burden is on them. If they can save a portion of the law 
by severing it--that is the doctrine of severability--they must do it.
  I am pretty optimistic that the Supreme Court, no matter how 
constituted, will do exactly that--will follow the traditional canons 
of construction and guidance that judges apply in cases like this. And 
really, the suggestion we heard, including from my friend from Vermont 
just a moment ago, that this is part of a conspiracy to appoint the 
judge to the Court so she will then hear a case and result in a 
particular outcome is specious. It is also an insult--an insult to the 
judge's integrity and character--because she could not in good 
conscience take the oath of a judge if she were part of a conspiracy to 
rule in a particular way on a case--any case--in the future. And she 
said, unequivocally, that is not the role of a judge.
  But that is the argument, and maybe that is the best thing they have 
going, and so they are sticking with it. It just doesn't make any 
sense. It is totally out of character with everything we know about Amy 
Barrett as a person, as a lawyer, and as a judge.

[[Page S6463]]

  Instead of talking about the Supreme Court, we seem to hear another 
common theme, and that is to say that we could be working on a COVID-19 
relief bill. We did pretty well through the end of March working 
together on COVID-19 relief. We passed four pieces of legislation, 
totaling $3.8 trillion. But it has been a while since March, and we 
need to pass another COVID-19 relief bill for the individuals who are 
still suffering, through no fault of their own, who don't have a 
paycheck--the enhanced unemployment insurance benefits, the Paycheck 
Protection Program that was so important to keeping small businesses' 
ability to maintain their payroll. We need more money for testing. We 
need to make sure that the therapeutics that have now come online are 
available to people who are infected with the virus. We need to make 
sure that the vaccine, once it is approved by the FDA, is available for 
distribution.
  That is why Senator McConnell has repeatedly brought legislation to 
the floor to bolster our fight against the virus at this critical time. 
In particular, the first bill he offered them was to supply another 
half a trillion dollars to help small businesses keep their doors open 
and their employees on the payroll; to help schools keep their students 
and teachers safe; to strengthen testing and invest, as I said, in the 
continued success of Operation Warp Speed.
  What did our Democratic colleagues do? They voted no. They wouldn't 
even get on the bill and then offer amendments to make it more to their 
liking. So they just blocked it.
  I think this is consistent with what we heard from Speaker Pelosi 
when she said that ``nothing is better than something.'' It always 
strikes me as very odd because I have always believed that something is 
better than nothing, but apparently not in this strange environment 
leading up to this November 3 election, which, unfortunately, I think 
is what is preventing us from passing a bill
  Many of our colleagues believe that leaving people anxious and 
worried and fearful, not only about their health but also about their 
economic circumstances, advantages them leading into the election. That 
is what they do. They want to stoke fear and uncertainty on the part of 
the American people.
  When we offer concrete pieces of legislation that would help relieve 
that anxiety, fear, and the sense that they are not receiving any 
income--how are you going to pay the bills or provide for your family--
repeatedly, they have voted it down. I just find that absolutely 
shameful.
  So here we are in October with 8.5 million confirmed cases of the 
virus. When we talk about cases, that is kind of interesting. They are 
positive tests. We know the vast majority of individuals will have 
little, if any symptoms. But we do know that there are vulnerable 
populations that need to be protected, particularly people in nursing 
homes, assisted living facilities, the elderly, and those with 
underlying chronic illness. This virus can be deadly, and that is why 
we need to take it seriously, wear our masks, socially distance, and do 
all the things that the Centers for Disease Control and other experts 
have advised.
  Our Democratic colleagues have not done anything to lift a finger to 
help people who are still hurting; people who are still anxious; people 
who are still worried about their health, about their children going 
safely back to school, about whether a vaccine will be available.
  Time after time, they blocked legislation we have introduced in the 
Senate, since we passed the CARES Act in March, and they have simply 
refused to provide care that is desperately needed, relief desperately 
needed by the American people.
  My constituents in Texas, like the rest of America, have waited 
months for additional relief. I am ashamed of the fact that we could 
not find a way to come together and produce a result. I am ashamed of 
the fact that our friends on the other side of the aisle have forced 
them to wait even longer.
  I yield floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Mr. President, today, I rise as our country faces a 
monumental choice. It is a choice about who we want to be as Americans 
and the future we want to build as Americans. All across our country 
this year, we have seen Americans standing up and speaking out for 
greater equality and greater justice. Our choice is this: Does the 
highest Court in the land stand with the people of America as we strive 
to build a more perfect Union, or does the Court side with the most 
powerful interests and most extreme views that will take our country 
backward in our quest for justice and equality?
  Judge Amy Coney Barrett does not stand on the side of the American 
people. She does not represent mainstream values--certainly, mainstream 
values that we cherish in Michigan.
  Right now, we are in the middle of a pandemic. Over 225,000 Americans 
have already died, and we are nowhere near getting it under control--
nowhere.
  Instead of providing help to families, communities, and businesses 
that are suffering, Republicans are rushing through. Here we are on a 
Sunday, not talking about how we help people, help our small 
businesses, help our communities, do what needs to be done to get this 
pandemic under control. No, we are seeing a rush to get a Supreme Court 
nominee on the Court that will have disastrous consequences for our 
Nation, both for today and for decades to come.
  On behalf of the majority of the people of Michigan, I am strongly 
opposing this nomination, and I urge my colleagues to do the same.
  Perhaps, nothing is more at risk right now than healthcare--the 
healthcare that Americans depend on. Exactly one week after election 
day, the Supreme Court, as we know, will hear arguments in the case 
that could very well overturn the Affordable Care Act in the middle of 
a pandemic--in the middle of a deadly pandemic.
  Republicans in Congress have tried to repeal the healthcare law for 
10 years now--10 years. And each time, people across our country, 
people across Michigan, have spoken out. They have demanded that 
Republicans protect their healthcare. Healthcare is not political in 
the eyes of Americans. It is personal. They want us to strengthen and 
improve healthcare, not rip it away from them. But, unfortunately, 
Republicans have voted more than 100 times in those 10 years--more than 
100 different times--to repeal the Affordable Care Act, and more than 
100 times they have failed.
  So now President Trump has turned the job over to the courts. He 
expects Judge Barrett to, in his words, terminate the healthcare law. 
That is the word of the person who nominated Judge Barrett. He wouldn't 
have nominated her to the Supreme Court if he didn't trust that she 
would do just that.
  Judge Barrett has already called the Court's previous decision to 
uphold the ACA ``illegitimate.'' She publicly criticized Chief Justice 
Roberts for upholding the law. She said that if the Supreme Court reads 
the statute like she does, they have no choice but to, in her words, 
invalidate it.
  This is not a mystery here about how she is going to vote. It is 
very, very clear. That would be a disaster for Michigan families, a 
disaster for people all across our country. Protections for the over 
130 million Americans with preexisting conditions--gone. That number is 
going up every day because of COVID-19.
  Bans on yearly and lifetime caps on cancer treatments and other 
critical care--gone. Healthy Michigan, which has helped more than 
880,000 Michigan residents get healthcare--gone. The ability for young 
adults up to age 26 to be covered by their family's health insurance--
gone.
  You can also say goodbye to guaranteed maternity care so you are 
going to pay extra if you want to have children and have maternity 
care, free preventive health screenings, and birth control without 
copays.
  Seniors would see their drug prices go up. The ACA closed the 
Medicare prescription drug--what we call the doughnut hole, the gap in 
coverage, and saved the average Michigan senior more than $1,300 just 
in 6 years between 2010 and 2016--$1,300.
  Seniors would have additional reason to worry. During her 
confirmation hearing, Judge Barrett refused to say whether she believes 
Medicare and Social Security are even constitutional.
  As is often the case, American women would have the most to lose if

[[Page S6464]]

the ACA is overturned. Remember when simply being a woman was 
considered a preexisting condition by insurance companies, and we had 
to pay more? I do. Yet the threat of Justice Barrett goes far beyond 
insurance rates. The fundamental right for women to make basic choices 
about our own healthcare, our own health, our own lives would be at 
risk.
  Since Roe v. Wade was decided in 1973, women in our country have had 
the right to make our own decisions about reproductive choices that are 
best for our own health and our own family. It is among the rights that 
Justice Ruth Bader Ginsburg spent her career defending, and it is not a 
right that Judge Barrett respects. She has long aligned herself with 
organizations devoted to eliminating a woman's right to choose. She 
signed her name to a letter calling for Roe v. Wade to be overturned.
  During her nomination hearing, she refused to say whether Roe v. Wade 
is Federal law. At its most basic, Roe v. Wade is about undue 
government interference. Think about that--undue government 
interference, which we hear a lot about from our friends on the other 
side of the aisle. That is something that Republicans deeply oppose, at 
least when it is corporations that need defending from undue government 
interference.
  Reproductive rights are only one freedom, as critical as they are, as 
that is, that are on the line right now. Over the past decade, we have 
made major progress in ensuring that our LGBTQ+ friends and neighbors 
aren't discriminated against simply for being themselves. Yet Judge 
Barrett has openly opposed this progress, including speaking out 
against the decision that made marriage equality the law of the land. 
She has even given numerous speeches on behalf of the Alliance 
Defending Freedom, a rightwing organization that thinks being gay 
should be a crime.
  Workers, too, could see their rights evaporate under a Justice 
Barrett. Barrett would be just one more conservative Justice who will 
issue rulings that hurt the ability of workers to fight workplace 
mistreatment and discrimination, and to organize and collectively 
bargain for wages, benefits, and workplace protections. That is what 
she did in her decision Wallace v. Grubhub Holdings in which she ruled 
against workers who were denied overtime wages--against workers who 
were denied overtime wages that are protected by the Fair Labor 
Standards Act.
  If a Justice Barrett sides with the powerful against people, I think 
we all know what that means for the future of our world.
  During her confirmation hearing, Judge Barrett refused to say whether 
or not she believes that climate change exists, saying she is not a 
scientist. You don't need to be a scientist. Just ask people in 
Michigan about what is happening in our State. The climate crisis is 
already affecting Michigan agriculture, our environment, our public 
health, our Great Lakes.
  A number of crucial cases dealing with the environment are likely to 
end up at the Supreme Court in the next number of years, and the 
Court's decisions will have consequences that outlive any of us. 
Critically important to all American citizens is what Justice Barrett 
would mean for voting rights and the results of the 2020 election. Let 
me remind everyone that election day isn't November 3, it is every day 
up to November 3. People are voting right now. If you have not voted, I 
hope you do and that you do it safely and do it early, but voting ends 
on November 3. People are voting as we speak and whether or not those 
votes are counted could very well depend on the U.S. Supreme Court.
  Judge Barrett refused to say whether she believes voter 
discrimination exists. Voter discrimination. Given that 23 States have 
passed restrictive voting laws since the Supreme Court's Shelby County 
v. Holder decision, it is pretty clear that voter discrimination 
exists.
  Judge Barrett has also refused to recuse herself from rulings on 
cases related to the outcome of the 2020 election, even though 
President Trump is rushing to make sure that she is there. That is a 
clear conflict of interest if I ever heard one. There is no right more 
fundamental than the right to vote--no right more fundamental than the 
right to vote. Perhaps nobody knew that better than our beloved 
colleague, the late Congressman John Lewis. He once said this:

       My dear friends, your vote is precious, almost sacred. It 
     is the most powerful nonviolent tool we have to create a more 
     perfect union.

  A more perfect union; that is what we want, isn't it? That is what we 
are working toward every day, I hope. That is what Americans have been 
marching for and speaking out for and bleeding for and dying for as 
long as we have been a nation.
  We face a crucial choice. I am choosing to stand with the vast 
majority of the American people on the side of justice and equality. I 
urge a ``no'' vote on Judge Barrett. The American people deserve much, 
much better
  Mr. President, there is one other thing that I need to do before 
yielding the floor. I would yield my remaining postcloture time to the 
Democratic leader.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Portman). The Senator has that right.
  The Senator from Oklahoma.