October 25, 2020 CONGRESSIONAL RECORD — SENATE S6471 Unfortunately, we are now at a point I yield back my time. ances, they did not envision a sham where this program has been tapped The PRESIDING OFFICER. The Sen- confirmation process for judicial nomi- out. Why? Because the $44 billion that ator from Delaware. nees. But as much as I hate to say it, was set aside in the Disaster Relief NOMINATION OF AMY CONEY BARRETT that is what this one has been, pure Fund is gone, leaving $25 billion to deal Mr. CARPER. Mr. President, I rise and simple. This entire process has be- with natural disasters, which is what this afternoon to share with you and come an exercise in raw political the Disaster Relief Fund is intended to our colleagues some of my thoughts power, not the deliberative, non- do. And they need that money. We concerning the nomination of Judge partisan process that our Founders en- shouldn’t use any more of that. So we Amy Coney Barrett to serve as an As- visioned. are back to square one. sociate Justice of the Supreme Court of Frankly, it has been a process that I People who have had unemployment these United States. could never have imagined 20 years ago insurance since the disaster began be- I believe it was Winston Churchill when I was first elected to serve with cause they might work in hospitality, who once said these words: ‘‘The fur- my colleagues here. Over those 20 entertainment, travel, some businesses ther back we look, the further forward years, I have risen on six previous oc- where they can’t go back—a lot of we see.’’ So let me begin today by look- casions to offer remarks regarding those folks now are seeing just a State ing back in time—way back in time. nominees to the Supreme Court as we benefit or no benefit. More than 230 years ago, during the considered the nominations of Chief The Republican proposal actually Constitutional Convention in Philadel- Justice Roberts, Justice Alito, Justice had a long-term solution by providing phia, just up the road from my family’s Sotomayor, Justice Kagan, Justice $300 per week through December 27— home in Wilmington, DE, our Founders Gorsuch, and Justice Kavanaugh. basically, through the end of the year. debated at great length on how to cre- One name not mentioned among the That was in the package that was just ate a different kind of government—an six I have just listed is that of Judge voted down. So Democrats, who say experiment, if you will, in which a na- Merrick Garland. After being nomi- they want $600, voted down $300 be- tion’s citizens would elect their own nated by President Clinton to serve on cause it wasn’t enough. Well, somebody leaders, and a system of checks and the DC Circuit Court of Appeals—that who is on unemployment is probably balances would ensure that country is the top appellate court in the coun- wondering: Why not just compromise would never—never—be led by a ty- try—and confirmed by a Republican-led and at least get me the $300 so that I rant. Senate with a bipartisan margin of can pay my rent, I can pay my car pay- Among the most contentious issues more than 3 to 1—76 to 23, in fact— ment, I can make ends meet, even they debated during that summer of Judge Garland has served with distinc- though I can’t go back to my job? 1787 in the City of Brotherly Love was tion on our top appellate court since So if nothing else comes out of these the creation of a Federal judiciary. Our 1997, including for many years as its coronavirus negotiations, let’s at least Founders disagreed, oftentimes strong- chief judge. provide more funding for the Disaster ly, about what our judicial system President Obama later nominated Relief Fund so that we can continue to should look like and how judges should him to serve on the Supreme Court 237 respond at the executive branch level. be selected: Who would nominate days before election day in 2016—237 If Congress can’t get its act together, them? Who would confirm them? Would days before election day. at least continue the $300 through the they serve one term, multiple terms, or By submitting the name of Judge way the administration was doing it would their appointments be lifetime Garland to the U.S. Senate for consid- for 6 weeks. We have proposed legisla- in nature? eration 4 years ago, President Obama, tion to do just that, replenishing the When the Framers appeared to be who was twice elected by clear margins Disaster Relief Fund so that this vital hopelessly deadlocked, members of the in both the popular vote and the elec- unemployment insurance supplement clergy were brought in to pray that toral college, nominated a man who can continue that the administration God would provide the leaders with the spent his entire 20-year career as a had in place. wisdom to break the impasse. judge working to build consensus and If we can’t pass a bigger package, In the end, it apparently worked, and find principled compromises. Yet we why can’t we just pass that? Why can’t our Founding Founders ended up never got a chance to consider Judge we just pass PPP? Why can’t we just adopting a compromise very similar to Garland’s nomination to serve on the pass something for testing? Why can’t one they had rejected just a few weeks Supreme Court on this Senate floor. we just pass something to ensure that earlier; namely, the President would Judge Garland wasn’t given a vote ei- we are helping right now during this nominate judges to serve lifetime ap- ther in committee or here in the U.S. crisis? pointments with the advice and con- Senate. Judge Garland wasn’t given a The bottom line is that there is still sent of the Senate. hearing. Most of our Republican col- a lot for Congress to do to help lead the Not surprisingly, almost 240 years leagues wouldn’t even meet with him, country through this coronavirus crisis later, we are still sparring over what even though many of them had voted we find ourselves in. Between bol- those words should mean. earlier to confirm him to, again, serve stering our healthcare response, pro- Having said that, the blueprint that on the top appellate Court of our land. moting a stronger and more equitable was drafted that year and later ratified Judge Garland’s nomination lan- economic recovery, getting the nec- by the 13 States would go on to become guished for 293 shameful days. A great essary funding to our schools, pro- the most enduring and replicated Con- many Americans believe that it is the viding that flexibility I talked about stitution in the history of the world. equivalent of stealing a Supreme Court earlier to governments, ensuring that Among our most important sworn seat. A good man—a very good man— our constituents can make ends meet duties here in the U.S. Senate is to act was treated badly and so, too, was our as they deal with sudden unemploy- as caretakers of that Constitution and Constitution. ment and other challenges, we have a the rights it provides for our citizens Still, many of our Republican col- lot of opportunities to help our country while protecting this unique system of leagues assured us that if the tables weather the storm of this pandemic. checks and balances that provide the were turned later on, they would hold I hope things will change soon. foundation on which our democracy is themselves to the same standard and Maybe it will change on the election. built. only allow the next President to fill Maybe after the election there will be a That brings us to the present. This the Supreme Court seat should a va- different attitude. I hope so. I hope past week, Republican Members of the cancy occur during an election year. that at least in the lameduck session of Senate Judiciary Committee voted to Then, on September 18, 2020, Justice Congress, if we can’t get our act to- advance Judge Barrett’s nomination to Ruth Bader Ginsburg passed away, 46 gether this week, we can figure out the floor of the Senate, but they have days before a Presidential election. how to recapture that spirit of biparti- done so, I fear, at great cost to this And with her death, most of our Repub- sanship we saw this spring, to nego- body and quite possibly to our democ- lican colleagues changed their tune al- tiate in good faith, come to an agree- racy. most overnight. ment—and fast. Our constituents need When our Founders carefully de- Today, with more than 220,000 Ameri- it. Let’s get it done. signed our system of checks and bal- cans dead and more than 8 million

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00023 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.263 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE S6472 CONGRESSIONAL RECORD — SENATE October 25, 2020 Americans infected with the time together for prayer and reflection, The President should exercise restraint coronavirus—not to mention 13 million whether at Prayer Breakfast in the and not name a nominee until after the No- unemployed—we are in the midst of an Capitol or at one of several bipartisan vember election is completed. election, rushing to confirm a con- Bible study groups, including one led He went on to say: troversial nominee from President by our Senate Chaplain, Barry Black, President Lincoln is a good role model for Trump, who lost the popular vote by who previously served as Chief of Chap- this practice. The President should let the nearly 3 million votes and was subse- lains for the Navy and the Marine people decide. quently impeached by the House. Corps. I am glad Senator GRASSLEY men- Judge Barrett’s nomination was Oftentimes at these gatherings we tioned our Nation’s 16th President be- rushed out of committee just 12 days are reminded of the Golden Rule, one of cause I believe President Lincoln’s ex- before election day, in a process that the two greatest commandments: to ample will serve us well, especially at many believe was a clear violation of treat other people the way we want to this moment. Why do I say that? the rules of the Judiciary Committee. be treated. Well, after a Supreme Court vacancy Think about that—12 days. After serving here for 20 years, I re- occurred just 27 days before the 1864 Instead of keeping their word, a num- main convinced that our friendships Presidential election, what did Presi- ber of our Republican colleagues are and our ability to reach consensus on dent Lincoln do about it? Did he rush fast-tracking a nominee—and not a critical issues facing our Nation are to fill the vacancy? Did he call the Sen- consensus nominee from the judicial based in no small part on our faithful ate to push through a nominee in a mainstream like Judge Merrick Gar- adherence to that commandment, month’s time, largely because he land—as tens of millions of Americans which can be found in every major reli- could? No, he did not. are mailing their ballots in, dropping gion of the world, and we are at our In the midst of a Civil War that took off their ballots, and lining up to vote. best here in this body when we follow the lives of hundreds of thousands of This confirmation process is shame- it. Americans, Lincoln called for allowing ful. It is unprecedented. If you have I believe that true adherence to the the American people first to decide ever wondered what hypocrisy looks Golden Rule calls for fairness in the who would be President, and that per- like, this is it. way we discharge our constitutional son would then nominate a candidate I know that many Americans, includ- responsibilities for judicial nomina- for the vacant seat, with the advice ing many of our Republican colleagues, tions, too, including nominations to and consent of the Senate. see in Amy Coney Barrett a well-quali- the Supreme Court, regardless of which Nearly 150 years later, Lincoln’s fied judge and, in Donald Trump, a party occupies the White House or the words give us a clear roadmap for doing duly elected President, and they be- Presiding Officer’s chair. the right thing: Let the American peo- lieve a vote is necessary because, after We can’t have one set of rules for ple have their voices heard before fill- all, it is spelled out in the Constitu- Democratic Presidents and another set ing this vacancy, instead of rushing it tion. of rules for Republican Presidents. The through just days before an election. Well, let me be clear. There was no Golden Rule called for a vote for Judge As we all know, the Supreme Court precedent for the shameful blockade of Garland, and I believe that, today, the seat we are debating today was left va- consideration for Judge Merrick Gar- Golden Rule calls for hitting the pause cant by the death of Justice Ruth land, and there is no precedent for con- button on Judge Barrett’s nomination Bader Ginsburg, who served on the Su- firming Judge Barrett just 8 days be- until the President, who is elected in 9 preme Court since 1993. We continue to fore an election. days, is sworn into office. mourn her loss. We continue to pray As my colleagues know, I am not Why? Because the American people for her family and loved ones. given to hyperbole, but rushing to con- deserve to have their voices heard. But Justice Ginsburg may have been firm Judge Barrett has the potential of you don’t have to take my word for small in stature, but, in death, our Na- altering, perhaps forever, the way the this. Consider, if you will, the words of tion has lost a true giant. Ruth Bader American people view the Supreme our Republican leader, MITCH MCCON- Ginsburg made it her life’s work to Court and the U.S. Senate. NELL, from March 2, 2016, 14 days before challenge the laws and systems in this To our Republican friends, let me re- President Obama had even nominated country that limited opportunity for mind you that just because you can do Judge Merrick Garland to serve on the women solely on the basis of their gen- this and get away with it doesn’t make Supreme Court, following the death of der. She was a pioneer in her own it right. This is wrong, and in your Justice Scalia, and a whole 7 months— right, but perhaps even more impor- hearts you know it is wrong. Your ac- a whole 7 months—before an election. tantly, she paved the way for genera- Leader MCCONNELL said 4 years ago: tions stand our system of checks and tions of women and girls who would balances on its head—in the end, only The American people deserve to be heard come after her. on this matter. That’s the fairest and most Today, women can sign a mortgage serving to weaken our democracy, not reasonable approach today. strengthen it. on their own in no small part because He went on to say: To those Americans who want to see of Ruth Bader Ginsburg. Today, women an up-or-down vote on Judge Barrett, I Voters have already begun to choose the can open a bank account or apply for a next President who in turn will nominate understand that you may not share my the next Supreme Court Justice. . . . This is credit card without a male cosigner in views or my fears, which many other something the American people should de- no small part because of Ruth Bader people do share, but let me stop here cide. Ginsburg. And, today, pregnant women for a moment to share with you some- That is what he said 4 years ago. cannot be discriminated against at thing that isn’t widely known about Let’s also listen to what the current work in no small part because of Ruth most Republicans and most Democrats chairman of the Senate Judiciary Com- Bader Ginsburg. here in the U.S. Senate. mittee, Senator GRAHAM, told us March I am confident that her legacy will While you would never know it most 10, 2016. This is what he said: live on, especially in all the women and days by watching the news, most of us I want you to use my words against me. young girls she inspired throughout who serve in this body generally get Think of that. her remarkable life, but, unfortu- along. While a lot has changed since I want you to use my words against me. If nately, with her passing, the equality Senators PAT LEAHY and CHUCK GRASS- there’s a Republican President [elected] in that she spent her life fighting for is LEY came here a long time ago, bipar- 2016 and a vacancy occurs in the last year of now on the line. tisan friendships still endure, although the first term, you can say, ‘‘LINDSEY GRA- Many Americans believe in their they don’t flourish as they once did. HAM said, ‘Let’s let the next President, who- hearts that the threats posed by this Many of us agree at times in hearing ever it might be, make that nomination.’ ’’ nominee, the one before us at this mo- rooms and many of us disagree at And finally, here is the advice of my ment, are real. That is particularly times in hearing rooms and on the Sen- friend, then-chairman of the Senate true when it comes to access to afford- ate floor, but just about every week Judiciary Committee, Senator CHUCK able healthcare, to the rights of women that we are in session, a number of GRASSLEY, following the death of Jus- to make their own healthcare deci- Democrats and Republicans still find tice Scalia. He said: sions, to voting rights, and, perhaps

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00024 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.265 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE October 25, 2020 CONGRESSIONAL RECORD — SENATE S6473 most importantly, to the future of our yond its plausible meaning to save the and dignity. It is a decision she must make planet. statute.’’ Judge Barrett said nothing for herself. When Government controls that The Affordable Care Act hangs in the during her confirmation hearing to dis- decision for her, she is being treated as less balance with this nomination. Think tance herself from these words. than a fully adult responsible for her own choices. about that for a moment. Right now, And what exactly could the con- our country is in the midst of a public sequences of overturning the ACA be? Justice Ginsburg did not deflect or health crisis the likes of which those of Well, for starters, those consequences refuse to answer the central question: us living have never seen. could mean that nearly 135 million Should women have the right to make Over 8 million of our fellow Ameri- Americans who have a preexisting con- their own healthcare decisions? Justice cans have been infected with this dition could be charged more for Ginsburg was forthright, and the Sen- coronavirus. Over 220,000 lives have healthcare, in many cases making ate confirmed her by a vote of 96 to 3— been lost to this deadly virus. That is their healthcare unaffordable. 96 to 3. more than the entire population of Des It could mean returning to a time Given Judge Barrett’s lack of clarity Moines, IA. We are consistently seeing when insurers could design plans that on this critical matter, I am left to 700 Americans die from the coronavirus excluded coverage for contraception consider her past record and state- every day. and family planning, as well as condi- ments. My hope is that Judge Barrett The front page of yesterday’s Wall tions like pregnancy, mental would uphold nearly 50 years of prece- Street Journal makes it clear. It is not healthcare, and substance abuse treat- dence and maintain this constitutional getting better; it is getting worse. ment. right for women. However, my fear is As it turns out, America has less Overturning the Affordable Care Act that Justice Barrett was nominated be- than 5 percent of the world’s popu- could threaten Medicaid expansion cause she meets Donald Trump’s stated lation, but our country accounts for that provides healthcare coverage to litmus test to overturn this constitu- more than 20 percent of the world’s over 15 million low-income Americans, tional right that an overwhelming ma- deaths from coronavirus. No other na- many of them living in some of the jority of Americans support. tion on Earth comes close to that. The most rural parts of America. Voting rights and the integrity of our numbers don’t lie. It would mean that young adults elections also hang in the balance with Mexico, our neighbor to our south, under the age of 26 may no longer be this nomination. Earlier this week, a has lost 88,000 people to the able to stay on their parents’ deadlocked Supreme Court barely—just coronavirus; we have lost 220,000. The healthcare plans. barely—upheld a Pennsylvania lower It would jeopardize the tax credit United Kingdom has lost 44,000; we court decision that allows mail-in bal- that over 9 million Americans receive have lost 220,000. France has lost 34,000, lots in Pennsylvania to be counted in to help cover their own healthcare Germany just over 10,000, and we have the upcoming election. The vote was costs. tied 4 to 4, which means the issue is not lost over 220,000. Canada, our neighbor And that is just to name a few settled permanently. It means that to the north, has lost just over 9,000; things—just a few. But make no mis- Judge Barrett may very well be the de- Japan, 1,700 deaths; Australia, 905 take, overturning the Affordable Care ciding vote on many disputes related to deaths; South Korea, just 457 deaths Act in the middle of the night, in the the upcoming election. from the coronavirus; and we have lost middle of the worst pandemic in a cen- How would a Justice Barrett have over 220,000. tury, will have devastating and far- ruled in the Pennsylvania case? While this carnage continues here reaching impacts on our healthcare During her confirmation hearing, and abroad, our friends in the other system and nearly every American, in- Judge Barrett refused to answer ques- party continue to press the Supreme cluding the more than 8 million Ameri- tions about the legality of poll taxes, Court to throw out—to throw out—the cans who will be left with a new pre- voter intimidation, voter discrimina- Affordable Care Act in its entirety, not existing condition: the coronavirus. next year, next month. Sadly, that is what our President and tion, and whether or not the President Meanwhile, nearly 13 million Ameri- many of our Republican colleagues are can unilaterally move election day. It cans are unemployed, and our unem- intent on doing as we battle COVID–19 strains credulity to believe that Judge ployment rate, at nearly 8 percent, is every day and in every State of our Barrett does not know that poll taxes more than double the rate from the be- country. Having failed nearly 100 times are unconstitutional, that voter in- ginning of this year. But rather than to repeal or chip away at the Afford- timidation is unconstitutional, that prioritize public health and long-over- able Care Act in Congress, Donald voter discrimination is unconstitu- due relief for the millions of Americans Trump and many of our Republican tional, and that the President cannot who are struggling to get by, our Re- colleagues are now counting on the Su- move election day. Why can’t he? Be- publican colleagues have instead de- preme Court to do their work for them, cause—you guessed it—it would be un- cided to fast-track a Supreme Court and they are within one vote—one constitutional, even if he tried. nominee just 8 or 9 days before a Presi- vote—of achieving their goal—one More than ever, we need Justices on dential election. vote. the Supreme Court, along with judges So why the rush? Well, to figure that A woman’s right to make her own on other Federal courts, who can be out, all you have to do is look at a cal- personal and intimate healthcare deci- counted on by the American people to endar. Just 7 days after election day on sions hangs in the balance with this uphold the integrity of the upcoming November 10, the Supreme Court will nomination. During her confirmation election and on future elections. hear oral arguments in a case known as hearing, Judge Barrett refused to say Based on her testimony before the California v. Texas. California v. much of anything on this critical wom- Senate Judiciary Committee earlier Texas—a case that was brought by 18 en’s rights issue, including whether this month, I am not sure that Judge Republican attorneys general and the Roe v. Wade was correctly decided in Barrett can be counted on by the rest Trump administration—seeks to over- 1973. of us to ensure that—win or lose— turn the Affordable Care Act in its en- Interestingly, though, she did cite President Trump stays within the tirety—in its entirety. Justice Ginsburg and the so-called boundaries of the law and abides by the If confirmed, Judge Barrett may well Ginsburg rule and asserted that it pre- will of the American voters on Novem- end up casting the deciding vote on vented the nominee—this nominee— ber 3. whether or not to strike down the Af- from indicating how she would rule as As it turns out, there is a lot more fordable Care Act, and we know from a Supreme Court Justice on these mat- than an election that may hang in the her own words that Judge Barrett does ters. But let’s actually look at what balance with this nomination, and that not agree with the decision written by Justice Ginsburg said about Roe v. includes the very future of our planet Chief Justice Roberts to uphold the Wade during her own confirmation and its inhabitants. constitutionality of the Affordable hearing in 1993, 27 years ago. Justice Over the course of her confirmation Care Act a few years ago. Ginsburg said: hearing, on three separate occasions— She wrote that the Chief Justice had The decision whether or not to bear a child three separate occasions—Judge Bar- ‘‘pushed the Affordable Care Act be- is central to a woman’s life, to her well-being rett refused to acknowledge the plain

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00025 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.266 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE S6474 CONGRESSIONAL RECORD — SENATE October 25, 2020 and indisputable facts that climate air we breathe and the water we Trump administration has been hell- change is real and that human activity drink—Judge Barrett refused to ac- bent to destroy. is the primary—not the only but the knowledge the simple fact that climate Just as the Supreme Court was de- primary—cause of our current climate change and global warming are real. signed by our Founders to remain crisis, which we see evidence of almost Instead, Judge Barrett asserted that above the political fray, our Supreme every single day. climate change is ‘‘a contentious mat- Court Justices should not fall prey to Hurricane-force winds pierced ter of debate’’—‘‘a contentious matter the blatant misinformation at the through America’s Heartland this sum- of debate.’’ heart of climate denial. Sadly, during mer, flattening one-third—one-third— Climate change is not ‘‘a contentious her confirmation hearing, Judge Bar- of Iowa’s crops in a matter of hours. matter of debate.’’ There is over- rett demonstrated that, on an issue so Our east coast and gulf coast are expe- whelming consensus among the global critical for the survival of our planet riencing one of the most active hurri- scientific community that our planet is as we know it, she does not appear to cane seasons ever recorded, with more warming, and that warming is caused be guided by science and is unlikely to tropical storms, more rainfall, and by carbon pollution, largely. Climate be guided by the facts when it comes to more rapid intensification. One of our change is real. We see it every day in global warming. colleagues from Louisiana told me last this country and every day on this That, my friends, should scare the month that his State is losing the planet. heck out of us. equivalent of one football field to the It is threatening the air we breathe These issues that Justice Ginsburg sea every 100 minutes. That is right— and the water we drink. The American fought so hard to protect over the not every week, not every month, not people, and the people of our planet, course of her life—healthcare, the every day. Every 100 minutes, the see the effects of climate change and rights of women to make their own equivalent of one football field is lost global warming every single day, and healthcare decisions, voting rights, and to the sea. these are indisputable and undeniable the future of our planet—hang in the Last summer, fueled by record heat, facts, not a matter of debate. balance with this nomination, and for long droughts and as many as 12,000 Judge Barrett’s views on climate these reasons, I will not be supporting lightning strikes in 36 hours—think change stand in stark contrast to the the nomination of Judge Barrett. about that, 12,000 lightning strikes in science and the views of the vast ma- Let me conclude, if I may, by noting 36 hours—wildfires destroyed parts of jority of the American people too. that Justice Ginsburg did some of her California the size of my State. This They also stand in stark contrast to most memorable work in dissent. Dur- past week Colorado has witnessed wild- the views of the late Justice Ruth ing her memorial service in the U.S. fire destruction that is almost as bad. Bader Ginsburg. Quite simply, Judge Capitol, Justice Ginsburg’s rabbi said: That is not all. This year, record- Barrett’s views are out of touch with Justice Ginsburg’s dissents were not cries breaking heat waves simmered the reality, and that poses a real threat to of defeat. They were blueprints for the fu- coldest places on Earth, from Antarc- public health, environmental quality, ture. tica to the Arctic Circle, where the and, I think, the very future of this Justice Ginsburg knew that just be- temperature reached 100 degrees Fahr- planet. cause you don’t have the votes doesn’t enheit for the first time ever. That is Let me echo, if I may, the words of mean you are any less right. Justice right—100 degrees Fahrenheit along the President Emmanuel Macron of Ginsburg knew that a great dissent Arctic Circle. Temperatures in Alaska France, who just down the hall here at will speak to the future and just might reached over 90 degrees Fahrenheit for the other end of the Capitol a couple of eventually become the majority view. the first time in that State’s history. years ago stood before a joint session Today, we may not have the votes to Temperatures in Death Valley reached of Congress, and he called for our coun- stop this process or vote down this over 134 degrees Fahrenheit—the hot- try, the United States, to once again nominee, but that doesn’t make our ef- test temperature ever recorded on this lead the world on climate change. He forts to fight for fairness any less planet. July was the hottest July ever reminded us, and he said: We have only right. I could be mistaken, but I be- recorded. September was the hottest one planet. lieve in my heart the American people September recorded. And, on the heels There is no planet B—no planet B. In will make their voices heard loud and of the hottest decade on Earth, this fact, I fear there has never been a more clear on what I believe is a sham of a year is on track to be one of the hot- dangerous time to confirm a climate confirmation process, and they will do test years ever recorded—this year. denier to a lifetime appointment on it on election day. And it is not getting better. It is get- the Supreme Court. Scientists warn Like Justice Ginsburg, the American ting worse. that we are on the brink of irreversible people are dissenting against this proc- Yet, when she was first asked, sim- planetary destruction if we do not ess and against this nominee, and I be- ply, if climate change was real, Judge begin to dramatically reduce global lieve they will be voting in record num- Barrett responded that she is ‘‘not a warming pollution. Over the next few bers. In fact, they already are. scientist.’’ decades, the Supreme Court will decide Judge Barrett may be confirmed, but I am not a scientist, either. I am, the fate of critical environmental let history show I tried hard, both to however, the senior Democrat on the issues—issues that will aid, or dras- follow the Golden Rule and the exam- Senate Environment and Public Works tically curtail, the abilities of future ple of Justice Ginsburg, and I refused Committee, and like millions of Ameri- Presidential administrations and Con- to join the majority opinion. cans, I recognize the simple fact that gresses to enact environmental policies With that, I dissent, but I don’t yield you don’t have to be a scientist to that are essential to our survival as a the floor. I yield my remaining trust scientists. You don’t have to be planet. postcloture time to the Democratic entrenched in the studies of science to By way of contrast, Judge Barrett’s leader. I yield my remaining know that it is gravity which is keep- predecessor, Justice Ginsburg, was a postcloture time to the Democratic ing our feet firmly on the ground. critical tie-breaking vote on one of the leader. And I yield to the Senator from When Judge Barrett was later asked most important climate change cases Washington State, my friend and col- by one of our colleagues whether in the Supreme Court’s history, called league. coronavirus is infectious, Judge Bar- Massachusetts v. EPA. The PRESIDING OFFICER. The Sen- rett said: ‘‘It’s an obvious fact, yes.’’ Recall with me, if you will, that Mas- ator from Washington. She was then asked if smoking sachusetts v. EPA affirmed the Envi- Ms. CANTWELL. Mr. President, I causes cancer, and Judge Barrett said: ronmental Protection Agency’s author- come to the floor to defend a woman’s ‘‘Yes, every package of cigarettes ity and duty to regulate tailpipe emis- right to choose. I am beyond frustrated warns that smoking causes cancer.’’ sions of greenhouse gases as a pollut- that this debate is even happening to- But then, when asked a third ques- ant under the Clean Air Act. night. According to statistics from the tion—whether or not the nominee be- It also provided the legal underpin- Rape, Abuse, and Incest National Net- lieved that climate change is hap- ning for numerous other Obama admin- work, there are over 433,000 victims of pening, and that it is threatening the istration climate regulations that the rape and sexual assault on average

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00026 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.267 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE October 25, 2020 CONGRESSIONAL RECORD — SENATE S6475 each year in the United States of erwise they couldn’t support it because The nominee before us—I have lis- America. They have found that every it is so Richter scale on our side of the tened to many speeches today. She has 73 seconds an American is sexually as- aisle. tremendous intellect. She does have saulted. I will give my colleagues on the other tremendous intellect. Apparently, that When someone wants to chip away at side of the aisle—there are about 10 is a strong suit of the President of the the rights of American women to have States that basically have a population United States. He has strong intellect. access to healthcare, my State is going that only 40 percent or maybe even less Yet I have seen the most major assault to take it personally. My State has support a woman’s right to choose. I on the rule of law by anybody in an ad- codified Roe v. Wade into law. They get it. That is a hard State to come ministration in my time in the U.S. have fought for these rights in a vote and represent here if the courts have Senate—throwing out fact-based deci- by the people of our State in the 1990s. already determined that this is settled sions, not guaranteeing due process, So with a process today that is unfold- law. It might be hard for you. But the not making sure that we have freedom ing here in the Senate where someone majority of Americans and the major- of the press, corrupt government offi- wants to roll back those rights and ity of the States and the courts have cials whom they won’t even get rid of, propose a different way of life in the already decided this. not supporting civil rights that should United States of America, we women Yes, you are going to continue to be enforced at the Federal level. It is are going to fight back. pursue judicial nominees who are out not an issue to be left to the States. The truth is, the majority of Ameri- of the mainstream of the American The Attorney General of the United cans support a woman’s right to people, and you are doing so instead of States and the Members of this body choose. The majority of States support your day job—focusing on the economy should enforce the civil liberties of a woman’s right to choose, in what of the United States during a COVID Americans. It is not an issue to ignore, their public believes. It is a minority pandemic. and you certainly don’t call out the and a minority on this floor who does It wasn’t surprising that this sum- military when they want to express not support that and would love to mer, as we were on recess, the Seattle their opinion and concern about this have a judicial process that shortcuts Times said: What is happening? Wall issue. active debate about the issues that are Street is flourishing, but Main Street The President of the United States in the mainstream views of Americans. is struggling. has a long record. He has great intel- These statistics and these issues are al- Basically, they raised a question lect, but he has run over the rule of most 50 years of law about a healthcare while everyone was at home: What are law, and he has set a precedent for delivery system that allows a woman we going to come do about the eco- other people in his administration also to make this choice. It is from those nomic situation? We know we have had not to follow the rule of law. statistics I just read you. There are tremendous loss. Forty percent of res- What I find so challenging about darn good reasons they want to make taurants are at risk of remaining Judge Barrett’s record and the issues those choices. closed and remaining closed perma- before us is that women’s issues and The fact that people have been out nently. We know that one in five small these issues that we face that are so here characterizing this debate and businesses could be closed by 2021—a important for us to get done are about going back in history and talking devastating impact to our economy— a woman’s access to healthcare. I can’t about all of these things that have hap- and we know that 25 percent of those even imagine going back to Griswold v. pened to previous judicial nominees— businesses need additional resources to Connecticut—a time when we had to yes. Yes, there has been a lot of back- survive. fight just to have contraception. That and-forth. But the main point is, the All of those things were known, and is what the privacy rights were all other side of the aisle wants to nomi- they were known all summer long, and about. It was about a Court that de- nate people who are out of the main- nobody wanted to discuss them because cided and found in our Constitution stream view of America. the other side didn’t want to get seri- that in multiple places, there are a pe- Any of my colleagues who came here ous about a robust package. The pack- numbra of rights that give a privacy and tried to argue that Judge Barrett age they put on the floor so they could right to a woman to control her own and her views are in the mainstream, I go home and say a week before the body. Those privacy rights are about guarantee you, the judiciary process election ‘‘Here is what we tried to vote my constitutional rights. They are that we had with the Senate Judiciary on’’ did not take care of small busi- about what is guaranteed to me in the Committee definitely did not prove nesses that got left out. Constitution. It is about our finding that. In fact, the President’s words and It certainly didn’t talk about the mi- out whether a nominee is going to hold the actions of this body in nominating nority businesses that needed access to them up, particularly at a time when people whose views are out of the capital. The last bill did a decent job of we have had almost 50 years of laws mainstream—because this is 50 years of helping businesses that had a connec- that have protected those rights. settled law, and you are trying to over- tion to a banker, but if you didn’t have People want to have a rushed 30-day ride it by putting somebody on the Su- a connection to a banker, you didn’t session—beginning to end—speed-court preme Court who will say otherwise. get as much help. We should have sat nominating in the Mansfield Room in- Adding insult to injury to this whole down and fixed this. stead of hearing from groups and orga- process is the fact that we are not real- We should have sat down and made nizations about their concerns on this ly doing our day job. We are not deal- sure that we were fixing what needed nominee. That is just not good for our ing with the economic crisis that is to be fixed to help our economy in the overall system, it is not good for the facing America. I am a little tired of midst of a COVID pandemic, but, no, issues that we face moving forward, that too. I am a little tired of every true to form to the other side of the and it is certainly not good for women time we have a debate about our econ- aisle, it is way more important to go in the United States of America. omy—whether it was the fiscal cliff or after a woman’s right to choose. That I do not appreciate the rush to con- the big budget deal or last year’s budg- is way more important than these eco- firm Judge Barrett. Given my State— et deal or any budget deal—we never nomic issues. yes, my State codifying Roe v. Wade can deal with our economy because the I am going to tell you that we are not into statute in 1990 makes me a pretty other side of the aisle wants an amend- going to lower our voices on the impor- active person who wants to see a judi- ment to take away a woman’s right to tance of our economy or how impor- ciary that upholds that. I want to see choose and limit it. tant it is to help women. We are not and understand where this nominee is. I couldn’t even get language in the going to sit silently and talk about a But anyone who comes to the floor last COVID package to get Boeing minimal economic package to help and says that she is in the mainstream workers more training programs be- American businesses. We are going to views Americans when we know what cause the Republicans were so con- talk about what American businesses her views have been in opposition to cerned that the definition of a new need, and we are going to talk about Roe v. Wade and, as I said, having Gris- healthcare proposal had to have a Hyde how we can help protect a woman’s wold v. Connecticut be a correctly de- amendment attached to it because oth- right to choose. cided decision—even Justices Thomas,

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00027 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.268 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE S6476 CONGRESSIONAL RECORD — SENATE October 25, 2020 Alito, and Roberts have said it was cor- central to a woman’s life, to her well- balls and strikes. That is what those of rectly decided. Judge Barrett is out of being, to her dignity. It is a decision us on this side of the aisle want—Re- the mainstream by not saying that. she must make for herself, and when publicans, Conservatives, and Inde- She has been critical of the Afford- government controls that decision for pendents, who are there in the center. able Care Act and its issues that we her, she is being treated as less than a Do you know? That is what they see in want so much to cover preexisting con- full human who is responsible for her Judge Barrett. ditions. She refused to say whether own choices. I have found it so interesting, as we Medicare and Social Security were con- These women who have been the sub- have worked through this process, that stitutional; this issue of same-sex mar- ject of the most heinous acts—and all people, whether they are Democrat, riage, where two in three Americans women—deserve to make their own Independent, or Republican, have said: support this; and refusing to say healthcare choices. We in this body I was so impressed with her—the way whether she thinks the Lawrence v. should not be making this decision at she retained knowledge and informa- Texas decision, which struck down a this moment. We should be taking care tion, the way she represented her law criminalizing consensual gay sex, of our COVID problem, moving forward views, the way she talked about the was correctly decided. with solutions that will help the Amer- law and precedent, the way she talked These are issues about whether we ican people, and letting them respond about the Constitution, the way she are going to move forward as a nation to this issue. This issue will continue. talked about her relationship with Jus- with laws that people have come to ex- I just ask my colleagues to think tice Scalia. They also liked the way pect and that they planned their lives about what has already happened with her students and her professors and her around. the Affordable Care Act. Those States colleagues spoke of Amy Coney Bar- There are healthcare institutions all that didn’t want to support the Afford- rett. They like that because these are across the United States—even in able Care Act and didn’t support the people with whom she works. Her chil- States that don’t fully support a wom- Affordable Care Act later, after it dren are in school with them. They are an’s right to choose—that are deliv- passed, then implemented it. A few in church together. So they have come ering healthcare to women, and we are States, just recently, made the switch to know her through the many dif- going to start down a process of taking and covered more people under Med- ferent and varied facets of her life, and those away? icaid. they appreciate who she is and the life Then there are some people who rep- What you are really doing is holding that the Barrett family is leading and resent, on the other side of the aisle, your States back from having access to how that represents their thoughts and States that are at 50 percent or 60 per- healthcare. Eventually, as I said, the their beliefs. cent in support of a woman’s right to general public in the majority of There are a couple of things I would choose. They are going to rationalize States will support a woman’s right to like to discuss and points of clarity in their head that, oh, well, somehow I choose. Eventually, this will be settled, that deserve to be made in this debate. don’t know where exactly Judge Bar- with every State supporting this. The As we were in committee, our friends rett is going to be on these issues, or, question is, How long are you going to across the aisle chose to take much of I didn’t get a confirmation that she hold up the healthcare choices of peo- their time not to get to know Judge truly believes that they are settled ple in the United States? Barrett or to question her about opin- law, and I believe in the penumbra of I ask my colleagues to turn down ions that have been written, and she rights in the Constitution. this nomination. I ask my colleagues has written right at 100 opinions or has When you say you believe in the pe- to stop nominating people who are out writings that have been published. numbra of rights in the Constitution, of the mainstream of the American They chose to take their time to dis- you are saying you believe in my con- view on healthcare, which is so impor- cuss the Affordable Care Act and to stitutional right to privacy. You say tant to their daily lives. talk about individuals and the concern you believe that I have the right to I yield my remaining postcloture for losing healthcare. make my own healthcare decisions. time to the Democratic leader. With a few days before the election The PRESIDING OFFICER (Mrs. I think it is right that the American people know we would all like for every and a Supreme Court case in California LOEFFLER). The Senator from Ten- v. Texas, where the ACA and other nessee. American to have access to affordable healthcare decisions are going to be on Mrs. BLACKBURN. Madam Presi- healthcare. I think we can say that it the table, it is not good enough to not dent, I really appreciate the oppor- is a goal of ours. How we get there and understand the judicial philosophy of tunity to come to the floor and have what the system looks like is going to this nominee and whether that is in time to talk about this nomination. be something that is, really, quite dif- the mainstream views of people in the As a member of the Senate Judiciary ferent. They are very wedded to the Af- United States of America. Too much is Committee, I want to express my ap- fordable Care Act and would really like at risk—too much that we deserve to preciation to Chairman LINDSEY GRA- to push this all the way to govern- know the answers to. HAM for the great work that he has ment-run healthcare. That is their I am glad my colleague from Dela- done and to Leader MCCONNELL for the goal. ware brought up Justice Ginsburg’s way he has given us the opportunity to As many people watched the hear- quote because that says it all. Every- work through this process of com- ings, they asked: Why did they keep body keeps saying that she didn’t have pleting this confirmation. talking about the Affordable Care Act? to say anything, that she didn’t take As I have talked to Tennesseans from Of course, the case that is coming be- notes, that she is all good, that she one end of our State to another, I have fore the Supreme Court is a case on didn’t have to say anything. That is heard from them, time and again, how severability. It is not about the con- not what it is all about. That is not important they think it is to have a stitutionality of the ACA. So it was cu- what Judge Ginsburg said. Judge Gins- judge and a Supreme Court Justice who rious to them. burg told people exactly what she be- is not an activist. I would offer that the reason they lieved. She told people that she be- As we went through the hearings last probably continued to talk about it lieved in a woman’s right to choose. As week, I will tell you that I thought it was that our friends across the aisle, my colleague from Delaware said, she was so interesting. One of our col- those in the Democratic Party, are told people that these issues were too leagues said: Oh, we fear that you will very emboldened right now. They feel important to a woman. So I don’t un- usher in an era of conservative activ- as if they are going to do a clean sweep derstand, when Justice Ginsburg basi- ism. and that they are going to keep the cally clarified what she believed, why They fear that, but do you know House, take the Senate, and take the Judge Barrett wouldn’t clarify what what? Conservatives do not want activ- White House and that, when they do, her judicial philosophy is. ist judges of any stripe. They want con- they will have a very aggressive, 100- It is worth reading again. stitutionalists. They want judges to day agenda, and we have heard quite a Justice Ginsburg said that the deci- abide by the rule of law. They want Su- bit of conversation about this 100-day sion of whether or not to bear a child is preme Court Justices who will call agenda: statehood for DC and Puerto

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00028 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.270 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE October 25, 2020 CONGRESSIONAL RECORD — SENATE S6477 Rico. They want to abolish the elec- for? Liberal activism. That is the kind is different from you. Don’t take the toral college. They want to begin im- of judge they are looking for, not a time to provide the common courtesy plementing the Green New Deal. They constitutionalist, not somebody who of listening to what someone may have are going to repeal the Trump tax cuts calls balls and strikes. They are look- to say. and implement a new corporate tax. ing for somebody who is going to do To my friends across the aisle, I The list goes on and on. The list in- their work for them so they don’t have know many of you, and some of you I cludes what they want to do with to pass something through Congress. served with when I was in the House, healthcare, which is to have a govern- They don’t have to deal with ‘‘we the and may I just offer a thought—that ment-run, government-controlled sys- people.’’ They want to just say: Well, you are better than that. This Chamber tem. according to the Supreme Court, this is is better than that. And individuals See, they don’t want anybody to tell the law of the land. who are nominated for judgeships, for them they can’t do this. They don’t So that is why they chose not to get Justices on the Supreme Court, they want constitutionalists on the Su- to know Judge Barrett, and I will tell deserve to be heard. preme Court who are going to stop you I found her to be one of the most So I would encourage my colleagues them from doing this. impressive women I have ever had the to think this through. Judge Barrett is When you look at the numbers and at opportunity to get to know. And she moving through this process. We are what the numbers tell us, you have made it very clear, yes, she is qualified going to confirm Judge Amy Coney right at 81⁄2 million people right now to sit on the Court. Her record really Barrett to the U.S. Supreme Court, and who are enrolled in the Affordable Care speaks for itself. as we do this, we know that she is Act—or the ObamaCare program—81⁄2 But as we saw, the judge didn’t rest going to take that seat as a capable, million. Yet here is the outlier in that: on her laurels. She was well prepared. competent, skilled jurist, and we know In order to reach their goal of govern- She was patient, thorough, respectful, that she is going to be someone who is ment-run healthcare, which is, basi- and she was a credit to her profession. going to sit on that Court, and, yes, she cally, a Medicaid program for all, what I wish I could say the same for my is going to call balls and strikes. you would have to do is strip away the Democratic colleagues about being Our friends need not worry about an health insurance from 153 million thorough and respectful, because I era of conservative activism. Let me Americans who have employer-pro- found it to be very disrespectful of the assure them, conservatives don’t want vided health insurance or who have process, of the institution, and of that any more than they want an era of purchased healthcare on the open mar- Judge Barrett that they chose not to liberal activism. ket. Those are 153 million Americans. show up for our hearing. They were not What they want is a constitutionalist Plus, you would have to take away the there. AWOL. Gone. Didn’t come. Court that is going to be fair to every- Medicare benefits from 57 million And you see, why did they do that? one and is focused on equality and jus- Americans who have paid into Medi- Judge Barrett, a highly qualified, high- tice for all. care with every paycheck they have ly skilled female, is just not the right I yield the floor. earned all of their working lives. kind of woman. She does not submit to I suggest the absence of a quorum. We have 66 million Americans who the leftist agenda so, therefore, they The PRESIDING OFFICER. The are currently in Medicaid. So think of don’t see her as the right kind of clerk will call the roll. what is going to happen if, on top of woman. The senior assistant legislative clerk the 66 million who are in the Medicaid And as we know from many of their proceeded to call the roll. delivery system, you take everybody antics, some from them and some from Mr. SCHUMER. Mr. President, I ask from Medicare—57 million—and they their echo chamber, the mainstream unanimous consent that the order for become part of that pool. Then you will media, they feel as if a woman who is the quorum call be rescinded. have taken health insurance away from pro-life, pro-family, pro-religion, pro- The PRESIDING OFFICER (Mr. 153 million Americans. That is where business—that kind of woman, in their BRAUN). Without objection, it is so or- they are headed. That is their goal. eyes, does not deserve a seat at the dered. Quite simply, when they were going table. Mr. SCHUMER. Mr. President, I yield through the process with the Afford- I find it so interesting. My colleagues 1 hour of my remaining postcloture able Care Act and you had President across the aisle speak often of how time to Senator MURPHY. Obama and Vice President Biden, what they value diversity, and I agree. Di- The PRESIDING OFFICER. The lead- we would hear many times from some versity is a strength, and we should er has that right. of the Democratic leaders was, ‘‘Well, seek to hear all voices. That should be Mr. SCHUMER. I yield the floor. ObamaCare is a stop along the road to a goal—to hear from everyone. But The PRESIDING OFFICER. The Sen- government-controlled healthcare.’’ when it comes to diversity of viewpoint ator from Hawaii. That is their goal, and how dare we and hearing from a conservative Ms. HIRONO. Mr. President, every have a Supreme Court that would get woman, an independent woman, a woman in this country owes a debt of in their way. right-of-center woman, this side of the gratitude to my friend, Congresswoman That is also why they continue to political spectrum—when it comes to Patsy Takemoto Mink. Americans talk about court-packing. While they diversity of viewpoint, what do they probably know Patsy best for her fiery are trying to redefine the meaning of do? They repeatedly choose intellec- advocacy to pass title IX into law. This the word ‘‘court-packing’’—oh, let’s tual isolation—intellectual isolation. landmark piece of gender equity legis- not have it be offensive—oh, no—they Their mind is made up. They are in lation, which now bears her name, has are wanting to expand the Court so total submission—total submission to benefited millions of women and girls they can get their way. the agenda of the left. across our country. As my friends across the aisle come So do not confuse them. Don’t con- But I would wager that very few peo- down and talk about this nomination, I fuse them with facts. Don’t confuse ple know about how Patsy changed the think it is important that we look at them with a counterpoint. Don’t look course of history for women’s equality the reason behind some of their work at them and say: How about being open and helped to enshrine the right of and their words and where they think minded? You know, what you are say- women to control our own bodies in the they are going, because they have not ing might be true, but what if this is Supreme Court. made this nomination about Judge true? Would that change the outcome? Let me tell you a story. In 1970, the Barrett. I find it so very sad that what they same year that Hawaii became the first They have not made it about the Su- have done is to choose intellectual iso- State in the country to decriminalize preme Court; they have made it about lation. I find it very sad that that is abortion, Patsy did something no one themselves. They have made it about what they are role-modeling for young had done before. She made women’s themselves, their wish list, their desire adults, college students, high school rights a key issue in a Supreme Court for activist judges. students. Don’t hear out somebody who nomination when she testified against How about that? They fear conserv- is different from you. Don’t show re- the nomination of Judge G. Harrold ative activism. What are they going spect or a listening ear to someone who Carswell.

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00029 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.272 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE S6478 CONGRESSIONAL RECORD — SENATE October 25, 2020 In her testimony, Patsy brought up Act, overturn Roe v. Wade, and con- testifying that protections for people Judge Carswell’s decision in the case of tinue to decide cases like her conserv- with preexisting conditions were not at Ida Phillips, a woman denied a factory ative mentor, Justice Antonin Scalia. issue in the Trump administration’s job because she had preschool-aged This is neither an abstract nor a hypo- lawsuit. She ignored the fact that more children. Of course, no such rule ap- thetical choice. than 100 million people with pre- plied to fathers. President Trump repeatedly prom- existing conditions would be harmed if Judge Carswell, along with 10 of his ised to appoint a Justice who would the lawsuit succeeds. colleagues on the Fifth Circuit Court of eliminate the ACA and Roe v. Wade, Not an issue? Give me a break. Appeals, had refused to hear Ms. Phil- and he took only 3 days after Justice My Republican colleagues hope that lips’ case. Patsy told the Senate Judi- Ginsburg’s death to pick Judge Barrett the American people will accept these ciary Committee: ‘‘Judge Carswell to fulfill this promise. His selection weak attempts to divert our attention, demonstrated a total lack of under- was easy because Judge Barrett had al- but they can’t obscure the real human standing of the concept of equality. ready publicly signaled that she op- costs of striking down the ACA. It is . . . His vote represented a vote against posed the Affordable Care Act and re- why my Democratic colleagues and I the right of women to be treated equal- productive rights. have shared the stories of people Judge ly and fairly under the law.’’ Judge Barrett is on record criticizing Barrett would harm when she votes to When a Republican Senator tried to Chief Justice Roberts for, as she put it, strike down the ACA. defend Judge Carswell by pointing out ‘‘push[ing] the Affordable Care Act be- I want to share their stories again that 10 other judges had also voted to yond its plausible meaning to save the because their lives are what is at stake refuse to hear the case, Patsy re- statute’’ in a case upholding the ACA in this nomination fight. sponded: ‘‘But the other nine are not in 2012. Justice Scalia wrote the dis- Jordan Ota, an elementary school up for appointment to the Supreme sent in that case. teacher from Ewa Beach, has PNH—a Court.’’ She also signed a newspaper ad com- very rare blood condition. To treat it, Patsy understood the critical role mitting to ‘‘oppose abortion on demand she receives infusions of a medication the Supreme Court plays in the lives of and defend the right to life from fer- that costs around $500,000 per year every American. She pointed out to the tilization.’’ The same ad called for ‘‘an without insurance. If Judge Barrett committee that ‘‘the Supreme Court is end to the barbaric legacy of Roe v. strikes down the ACA, Jordan’s insur- the final guardian of our human rights. Wade.’’ ance company could put a lifetime cap We must rely totally upon its member- With Judge Barrett, President Trump on benefits, leaving her without cov- ship to sustain the basic values of our and Senate Republicans know exactly erage for her lifesaving medication. society.’’ the kind of vote they are getting on Jordan’s father Dean told me that Patsy’s testimony marked a turning the Supreme Court. That is why they ‘‘without the medicine, she will die.’’ point in Judge Carswell’s nomination, are rushing Judge Barrett onto the Kimberly Dickens from Raleigh, NC, which the Senate ultimately rejected. Court through this hypocritical, ille- couldn’t afford health insurance until Her courageous action paved the way gitimate process. the Affordable Care Act became law. for President Richard Nixon to appoint In a little over 2 weeks, the Supreme Kimberly used her new insurance to Justice Harry Blackmun to the Court. Court will hear oral arguments in Cali- get a checkup and a mammogram that Then, 3 years later, Justice Black- fornia v. Texas—a lawsuit where the found her breast cancer. With her mun wrote the landmark decision in Trump administration and 18 Repub- health insurance, Kimberly was able to Roe v. Wade, recognizing a woman’s lican State attorneys general are ask- get a mastectomy and has been cancer- constitutional right to control her own ing the Court to invalidate the Afford- free ever since. Kimberly said: body. Justice Blackmun, unlike Judge able Care Act, like Justice Scalia voted The ACA saved my life. . . . It scares me to Carswell, understood the right of to do in two earlier cases. think: If I didn’t have insurance, how far ad- women to be treated equally. Upon his My Republican colleagues know they vanced would the cancer have grown? retirement, he observed Roe was, ‘‘a can count on her to provide the deci- These powerful stories demonstrate step that had to be taken. . . . toward sive fifth vote on the Supreme Court to the real-world danger of Amy Barrett’s the full emancipation of women.’’ strike down the ACA, to help them win judicial philosophy if she is confirmed This story about Patsy is not very through the courts an outcome they to the Court. But their healthcare is well known, but it underscores how one tried and failed to achieve 70 times—70 not the only fundamental right at risk person can make a difference and how times—in Congress. for Americans. We know this because one vote on the Supreme Court can The consequences of Judge Barrett’s Judge Barrett has also aligned herself make a difference. vote to strike down the ACA would be with the conservative wing of the During his years on the Court, Jus- catastrophic. It would be catastrophic Court, long led by her mentor, Justice tice Blackmun became a reliable vote for the 20-plus million Americans who Scalia. for racial and gender equality, and his obtain health coverage under the ACA At her nomination ceremony, Judge decisions reflected an understanding of and the 100 million-plus Americans who Barrett announced that Justice how the Court’s decisions impact the would lose the law’s protections for Scalia’s ‘‘judicial philosophy is mine lives of millions of Americans. people living with preexisting condi- too.’’ Aligning herself so closely with If Judge Carswell had been confirmed tions. Justice Scalia has implications for a to the Supreme Court instead of Jus- These are the types of real-world con- whole host of rights and protections tice Blackmun, Roe v. Wade would not sequences Justice Ginsburg placed at the Court has granted over the years. exist as we know it, nor would a host of the core of her judicial philosophy and Justice Scalia, for example, wrote civil rights protections for students approach to the law, which her con- dissents in the landmark cases recog- and racial minorities. servative colleagues often ignored. nizing LGBTQ rights from Romer v. Our Nation finds itself at a similar We saw this time and again in Jus- Evans to Lawrence v. Texas, and judicial crossroads today as we debate tice Ginsburg’s classic dissents in cases United States v. Windsor. Most re- whether Judge Amy Coney Barrett like Shelby County v. Holder, cently, he wrote a dissent in Obergefell should replace Justice Ruth Bader Ledbetter v. Goodyear Tire, and Epic v. Hodges, sharply criticizing the ma- Ginsburg on the Supreme Court. The Systems v. Lewis. Judge Barrett sees jority for recognizing a right to same- choice we face as Senators is clear. It things much differently. sex marriage that in his originalist is the same choice Patsy Mink pre- When my Democratic colleagues and view was not in the Constitution. sented to the Senate 50 years ago. We I pressed her about how she would take Because Judge Barrett calls herself can choose to protect equality for the real-world impact of millions of an originalist and shares Justice women, healthcare for millions, and people losing access to healthcare into Scalia’s judicial philosophy, his deci- other basic values of our society, as account, she said those are ‘‘policy sions provide a preview of how she Patsy put it, or we can choose a Jus- consequences’’ for Congress to address. would have ruled in those cases. tice selected to do precisely the oppo- She also tried to parry our questions For example, although the Supreme site: strike down the Affordable Care by using terms like ‘‘severability’’ and Court has already affirmed marital

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00030 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.274 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE October 25, 2020 CONGRESSIONAL RECORD — SENATE S6479 rights for LGBTQ Americans, Judge the right for LGBTQ couples to marry. an opening comes in the last year of Barrett’s radical views on precedent Yet, because Republicans fear they are President Trump’s term and the pri- put these rights at risk. Judge Barrett losing the election, they are erasing mary process has started, we’ll wait has argued that as part of her duty, a Judge Barrett’s nomination through a till the next election.’’ Justice should ‘‘enforce her best under- hypocritical and illegitimate process The obvious truth is Republicans standing of the Constitution rather to put her on the Court for life before broke their word. This process itself is than a precedent she thinks clearly in voters can make their voices fully broken. Their pattern of obstruction conflict with it.’’ heard. and abusive partisanship over the years Clearly, Judge Barrett’s confirma- But we have all seen the news cov- threatens the credibility of the Su- tion would put Obergefell at risk, and erage of thousands of voters standing preme Court and pushes Senate norms her would-be colleagues on the Court in line for hours on end in the cold and of fairness and accountability beyond have taken notice. rain to make sure their voices are the brink. During this nomination process, Jus- heard and their votes are counted. My decision, however, to oppose this tices Thomas and Alito—also Clearly, the voters understand what nomination rests not only on this un- originalists—released an alarming is at stake. They are doing their part. precedented use and abuse of power but statement in Davis v. Ermold, which Now it is time for the Senate to do also on the standard that I have ap- the Court declined to review. But these ours by rejecting Judge Barrett’s nomi- plied to nominees of the Supreme two Justices criticized Obergefell for nation to the Supreme Court. Court on numerous occasions. It is a ‘‘read[ing] a right to same-sex mar- By doing so, we can stand up for what simple test—one drawn from text, the riage into the 14th Amendment, even Patsy Mink called the ‘‘basic values of history, and the principles of the Con- though that right is found nowhere in society’’ and against Donald Trump stitution. the text.’’ and Senate Republicans’ assault on As I have said during previous con- In effect, these two Justices invited a healthcare, a woman’s right to control firmations, a nominee’s intellectual challenge to Obergefell by calling it ‘‘a her own body, and LGBTQ rights, gifts, experience, judgment, maturity, problem that only [the Court] can fix.’’ among so many others. and temperament are all important. This type of signaling is a dangerous This nomination fight is close to But these alone are not enough. and increasingly common practice being over, but the broader fight for In addition, a nominee to the Su- among the Court’s conservative wing. the future of our Nation continues. preme Court must live up to the spirit By making their views known in this I yield the floor. of the Constitution. A nominee must way, these Justices are inviting would- The PRESIDING OFFICER. The Sen- not only commit to enforcing the laws be litigants to bring challenges to the ator from Rhode Island. but to doing justice. A nominee must Court so the Court can then use those Mr. REED. Mr. President, I rise give life and meaning to the great prin- challenges to invalidate landmark today to express my strong opposition ciples of the Constitution: equality be- precedent, which is what happened in to the nomination of Amy Coney Bar- fore the law, due process, freedom of Janus v. AFSCME. rett to replace Justice Ruth Bader conscience, individual responsibility, As a member of the Seventh Circuit, Ginsburg as an Associate Justice of the and the expansion of opportunity. Judge Barrett has also demonstrated a U.S. Supreme Court. It is these principles that ensure full willingness to signal her views on The Senate has never confirmed a and fair and equal participation in the precedent that could have significant Supreme Court nominee while a Presi- civic and social life for all Americans. implications if she is confirmed to the dential election was already underway. A nominee to the Supreme Court must Supreme Court. Indeed, this is the situation before us make these constitutional principles One example came in Price v. City of with early voting taking place in mul- resonate in a rapidly changing world. Chicago, where Judge Barrett joined a tiple States and over 50 million ballots My colleagues on the Judiciary Com- decision that upheld the so-called abor- already cast. So while those in the far- mittee spent a great deal of time and tion clinic buffer zone law. The deci- right fringe might be cheering these effort questioning Judge Barrett and sion made clear that her circuit court lifetime appointments, the vast major- trying to elicit responses about her was forced to uphold this law under the ity of Americans are the ones who lose basic worldview and judicial philos- Supreme Court precedent, but it sig- out, and they do not get a fair say. ophy. Unfortunately, her answers were naled a strong disagreement with that Make no mistake. Today’s vote isn’t largely nonresponsive, and, at times, precedent. The decision, which she about one individual; it is about taking she demurred on issues on which she joined, criticized the precedent as ‘‘in- away healthcare from 20 million Amer- herself had already made public state- compatible’’ with the First Amend- icans in the midst of a pandemic. It is ments. ment and ‘‘impos[ing] serious bur- about eliminating protections for peo- Despite her lack of responsiveness, dens.’’ ple with preexisting conditions that Judge Barrett’s judicial record and Judge Barrett’s alignment with Jus- over 100 million Americans depend public statements suggest that she tice Scalia, her radical views on Su- upon. And that is what we fear hap- does not meet my test, and her place- preme Court precedent, and her dis- pening once this vote is cast, the life- ment on the Supreme Court will fur- regard for real-world impacts on her time appointment is given, and the ther tilt the Court away from these decision making as a judge show how case is heard after the election. constitutional principles. many rights and protections are at President Trump and his allies pur- In understanding how Judge Barrett risk: LGBTQ rights, voting rights, posely set the schedule that way. They would not meet my test, I am cog- women’s equality, healthcare—you didn’t want American voters to have nizant that she will follow in the mold name it. any recourse to take out their anger at of her mentor Justice Antonin Scalia, These rights didn’t just materialize those responsible for taking away their with whom she shares an originalist out of thin air. They came after hard- healthcare. approach to constitutional interpreta- fought battles and tremendous sac- My Republican colleagues should lis- tion. rifices from trailblazers like Patsy ten to their own words. Go back and In her article titled ‘‘Congressional Mink and Ruth Bader Ginsburg. look at what you said about Merrick Originalism,’’ Judge Barrett talks When Patsy called the Supreme Garland and apply it consistently. about the core principles underpinning Court ‘‘the final guardian of our human Our fidelity is to the Constitution, originalism. The first principle, she rights’’ that ‘‘sustains the basic values not a caucus, not to the Federalist So- writes, is that ‘‘the meaning of the of our society,’’ she deeply understood ciety, not to special interests. Every- constitutional text is fixed at the time what that meant—for women’s equal- one deserves equal justice under the of its ratification.’’ The second is that ity, for civil rights, and for so many law. The Supreme Court was not de- ‘‘the historical meaning of the text other rights. signed to become an extension of the ‘has legal significance and is authori- Republicans understand that clear Republician National Committee. tative in most circumstances.’ ’’ majorities of Americans support the The chairman of the Judiciary Com- The trouble is that the Founders and ACA, a woman’s right to choose, and mittee pledged, in his own words: ‘‘If Framers did not leave us a blueprint to

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00031 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.276 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE S6480 CONGRESSIONAL RECORD — SENATE October 25, 2020 answer every new question of law. Nor interpretation over precedent. Overall, precedent to consider this nominee did the delegates to the Constitutional when there is a tension between prece- with a week to go until the election. Convention demand that all future dent and jurisprudential commitment, This is their chance to repeal the ACA judges be ‘‘originalists.’’ The laws and Judge Barrett writes that she, in her once and for all. norms when the Constitution was rati- words, ‘‘tend[s] to agree with those In fact, President Trump has said fied would alienate and exclude many who say that a justice’s duty is to the many times over in the last several Americans today, particularly women Constitution and that it is thus more months that he hopes the ACA is over- and racial and other minority groups. legitimate for her to enforce her best turned by the Supreme Court, referring We have seen the devastating effects understanding of the Constitution specifically to this case. And don’t just of the originalist line of thinking in rather than a precedent she thinks is take his word for it. The Department of the Supreme Court’s recent history. A clearly in conflict with it.’’ Justice, under his leadership, has focus on this mode of interpretation She similarly casts doubt on the im- taken the extraordinary step of decid- has played a crucial role in undoing portance of reliance interests—which ing against defending the law of the labor rights, curtailing environmental are the interests of stakeholders that land, the ACA, and instead siding with regulations, and allowing unlimited depend on the continuity of an af- the plaintiffs in arguing that the ACA dark money to influence politics. In firmed law or right—stating that and its protections for people with pre- the end, a strict originalist approach ‘‘when precedent clearly exceeds the existing conditions, among other provi- tends to favor the executive over the bounds of statutory or constitutional sions, is unconstitutional. President individual, the employer over the em- text, reliance interests should figure Trump and congressional Republicans ployee, and the corporation over the far less prominently in a court’s over- are very clear about their intentions. consumer. ruling calculus.’’ They want to repeal the ACA. They Also relevant to whether Judge Bar- Judge Barrett’s views on originalism, have been saying it for a decade. rett passes my test is her criticism of textualism, and stare decisis could They failed to do it when they had stare decisis, a core concept in Su- bring about a seismic shift to the Su- complete control of the White House preme Court jurisdiction under which a preme Court, reshaping modern Amer- and Congress because of overwhelming court generally adheres to its prior de- ican life and weakening rights to which public opposition to their efforts and a cisions—absent a special justification many Americans have become accus- few brave votes. They are relying on more than a belief that the precedent tomed. Given that Judge Barrett’s ap- the Supreme Court to do their dirty was wrongly decided. proach is shared by several of her fu- work for them and get rid of the ACA. Part of the reason that maintaining ture colleagues, she will help move the They even petitioned to have the case precedent is so important is that it en- Court’s center of gravity to the far heard by the Supreme Court after the sures the rule of law and legitimacy of right. election, knowing that the American the judicial process. As Alexander I will now walk through issues in people would not be happy if the Court Hamilton explained in Federalist No. Judge Barrett’s judicial record that in- decided in their favor and struck down 78, there is a long tradition of being form how she, in conjunction with fel- the ACA. bound by precedent, in his words, ‘‘[t]o low conservative judges, could and It is not hard to follow the logic here. avoid an arbitrary discretion in the likely will rule on future cases. President Trump and congressional Re- I am deeply troubled about the impli- courts.’’ publicans have been working methodi- A practical reason for following cations of this nomination on the Af- cally to lead us to this moment for precedent is that—once it goes into ef- fordable Care Act, the ACA. The ACA years. fect, people then organize their lives has given individuals and families con- Now I will return to the nominee for based on the law and make decisions trol over their own healthcare and has a moment. President Trump has made with the assumption that that law will brought the uninsured rate to a his- it clear that he intends to have the stay in place. toric low. The ACA has been the law of The public expects judges to under- the land since 2010 and is now woven courts do his bidding for him and has stand this need for stability and to ap- into the fabric of our healthcare sys- committed to nominating judges who proach the law with the appropriate tem. will side with him. humility and respect for its authority. Despite consistent sabotage of the In her hearing, Judge Barrett refused They do not want judges to elevate ACA by the Trump administration, to discuss how she may handle a case their own views over the law or to premiums for health insurance plans on the ACA. However, in early 2017, she change the law simply because the on the individual marketplaces have authored an article criticizing the composition of the court changes. decreased for the second year in a row. ACA, specifically arguing that the 2012 That is why, in deciding to overrule Yet President Trump and my Repub- Supreme Court case, NFIB v. Sebelius, precedent, a court generally undergoes lican colleagues want to repeal the was wrongly decided when a 5-to-4 ma- a serious analysis of numerous factors, ACA in its entirety, taking with it pro- jority ruled that the ACA’s individual including its consistency with other tections for people with preexisting mandate was, in fact, constitutional. decisions, the reliance interests at conditions, bans on lifetime and annual In particular, Judge Barrett criticized stake, and historical developments limits on coverage, billions of dollars Chief Justice Roberts’ deciding vote in since the decision in question. in tax credits to make coverage more that case, claiming that he ‘‘pushed Therefore, I am troubled that Judge affordable, and efforts to close the the Affordable Care Act beyond its Barrett’s writings indicate that she is doughnut hole for seniors needing pre- plausible meaning to save the statute.’’ more likely to see opportunities to re- scription drugs, just to name a few key Instead, Judge Barrett has praised visit precedent than other judges. In an provisions. her mentor, the late Justice Scalia, in article titled ‘‘Precedent and Jurispru- The ACA is a relevant—indeed, crit- his criticism of the ACA, as displayed dential Disagreement,’’ Judge Barrett ical—aspect of the nomination because in his dissents in both the NFIB case as argues that there is a weaker presump- the Supreme Court will begin hearing well as the case of King v. Burwell, re- tion of stare decisis in constitutional oral arguments in the case of Cali- lated to the tax credits provided by the cases, which could make these cases fornia v. Texas on November 10, which ACA. more vulnerable to review. will decide the fate of the ACA. This is So while the nominee has not said In another article titled ‘‘Stare Deci- not a theoretical debate over how how she may rule in the case of Cali- sis and Due Process,’’ Judge Barrett ar- Judge Barrett may interpret a case in fornia v. Texas on whether the ACA is gues that the current standard of stare the future. This is a real case that constitutional, she didn’t have to. We decisis has become too rigid in modern could eliminate health insurance cov- already know that, had she been on the times and favors a more flexible stance erage for millions of Americans and in- Court in 2012 when NFIB v. Sebelius on reexamining precedent. crease costs for everyone in the next was decided or in 2015 when King v. In particular, I take seriously that year. Burwell was decided, she likely would Judge Barrett indicates that she is It is no surprise that my Republican have voted to invalidate key elements more willing to elevate her originalist colleagues are breaking with their own or all of the ACA.

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00032 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.278 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE October 25, 2020 CONGRESSIONAL RECORD — SENATE S6481 Between her public writings and majority could create stricter stand- opinion, it is conceivable that a 6–3 President Trump’s commitment to ap- ards of scrutiny for Second Amend- conservative Court could chip away at pointing judges who are hostile to the ment cases. equality were these rights to be reliti- ACA, I don’t think it is a stretch to It is important to note that Justice gated. imagine how a future Justice Barrett Ginsburg joined other Justices in de- A conservative Court may also act as may vote in California v. Texas. The clining opportunities to revisit Heller’s a bulwark against further expanding stakes for millions of Americans are application. That includes the denial of privacy protections in family life. For just too high to support this nomina- ten certiorari petitions this past term example, a case is set to come before tion to the Supreme Court. that called for the Court to review, and the Court this term, Fulton v. Phila- I am also concerned by Judge possibly invalidate, challenges to State delphia, in which private agencies that Barrett’s extreme views on the Second gun safety laws, including State con- receive taxpayer funding to provide Amendment and the constitutionality cealed-carry laws, gun permit require- government services, such as foster of limits on gun possession. To under- ments, and assault weapons bans. care agencies, could be determined to stand her position, one must first un- Given that only four votes are needed have a constitutional right to deny derstand the test set in District of Co- to grant certiorari review, Judge Bar- services to persons on the basis of sex- lumbia v. Heller. This case involved a rett could play an important role in de- ual orientation. challenge to the District of Columbia ciding whether the Supreme Court adds The next area of concern is how laws that generally made it unlawful Second Amendment cases to its docket. Judge Barrett’s record will impact to possess an operable firearm in the This could generally put commonsense workers’ rights. Unfortunately, Judge home. gun safety laws, even those that have Barrett has a record of voting in favor Justice Scalia authored the major- been upheld for years, at an increased of business interests. Judge Barrett ity’s opinion and was joined by Justice risk of being overturned. voted to reject an en banc review in Roberts and Justices Thomas, Ken- Furthermore, as part of a conserv- Equal Employment Opportunity Com- nedy, and Alito. ative majority, Judge Barrett could mission v. AutoZone, regarding an em- In Heller, the Supreme Court struck initiate major rollbacks of privacy ployer’s policy of assigning Black and those laws down and affirmed the right rights in one’s own home life. During Latino employees to stores in neigh- to keep guns in the home for self-de- her confirmation hearings, Judge Bar- borhoods with people predominantly of fense, while making clear that rights rett declined to say whether the Su- their same race—creating a ‘‘Black secured under the Second Amendment preme Court cases—Griswold v. Con- store’’ and a ‘‘Hispanic store.’’ Judge are not unlimited. The Court provided necticut, Lawrence v. Texas, and Barrett’s colleague who dissented a nonexhaustive list of gun restriction Obergefell v. Hodges—were correctly called this a ‘‘separate but equal ar- rangement’’—a type of unlawful dis- laws that were presumptively lawful, decided. The Griswold case from 1965, crimination, which was well settled by including prohibitions on firearms pos- in particular, is a foundational case in this arena. Griswold, holding that mar- Brown v. Board of Education. sessed by felons and the mentally ill. During her confirmation hearings, However, in the case Kanter v. Barr, ital privacy extends to the right to buy she agreed that Brown was correctly Judge Barrett filed a dissent laying out and use contraception, led to cases ex- decided and beyond overruling. How- a rationale that could lead to the strik- tending privacy in other reproductive ever, Judge Barrett’s decision in ing down of even commonsense gun re- decisions. In her refusal, Judge Barrett AutoZone indicates she is willing to ac- took a departure from past nominees strictions. In this case, the plaintiff cept racially segregated actions by an was convicted of felony mail fraud and who have affirmed that Griswold is set- employer, even when they would be dif- was subsequently prohibited from pos- tled law, including Chief Justice Rob- ficult to reconcile with the core hold- sessing a firearm under both Federal erts and Justices Alito, Kavanaugh, ings of Brown. and State law. and Kagan. Instead of giving a In another discrimination-related When he challenged these laws as straightforward answer, Judge Barrett case, Kleber v. CareFusion, Judge Bar- violating the Second Amendment, the contended that it is unlikely that a re- rett joined the en banc decision allow- majority concluded that Federal and lated case would come before the Court ing an employer to post a job applica- State governments were entitled to bar and tried to frame this issue as well tion with maximum years of experi- firearms possession by people con- settled. However, in Little Sisters of ence, essentially barring applicants victed of felonies. Judge Barrett dis- the Poor V. Pennsylvania, it is notable older in age. The majority took a nar- agreed and concluded that barring non- that the Supreme Court has very re- row view that the ambiguous language violent felons from possessing firearms cently allowed Trump administration of the Age Discrimination in Employ- is not allowed under the Second rules to go into effect, allowing vir- ment Act did not apply in this case, Amendment. She reasoned that, in her tually any employer to deny contracep- reasoning that it applied only to cur- words, ‘‘History does not support the tive coverage based on religious and rent employees and not to job appli- proposition that felons lose their Sec- moral objections. Therefore, it is clear cants. ond Amendment rights solely because that this issue is not beyond dispute In both AutoZone and Kleber, Judge of their status as felons. But it does and could come back before the Court. Barrett has opened the door for em- support the proposition that the state Obergefell and Lawrence were land- ployers to run afoul of our country’s can take the right to bear arms away mark cases that established privacy civil rights laws. This is particularly from a category of people that it deems rights around marriage and intimate concerning because the Supreme Court dangerous.’’ relations between consenting adults, will likely take up cases deciding who Her position lies outside the widely regardless of their genders. While it is protected from workplace discrimi- accepted view that gun restrictions for may be unthinkable that these and nation. For example, the Court could public safety are constitutional under similar rights, which are integral to a face legal challenges in the wake of the Second Amendment. Her opinion person’s ability to construct their per- Bostock v. Clayton County, which con- puts her to the right of Justice Scalia, sonal and family lives, could be under- firmed that title VII of the Civil Rights who delivered the majority opinion in mined, there are worrying indications Act prohibits employers from discrimi- Heller. that they may come again before the nating against LGBTQ people. The ma- Her vote in Kanter makes it more Court. jority’s opinion, however, warned that likely that Judge Barrett would vote Just this month, Justices Thomas future cases will determine whether to strike down similar restrictions on and Alito wrote that they see businesses could use religious freedom firearm possession, even by individuals Obergefell—which granted the right to claims to ‘‘supersede Title VII’s com- with serious criminal histories. This same-sex marriage—as something the mands.’’ outcome alone is concerning. Court needs to fix and that the decision Judge Barrett had additionally ruled Beyond that, her views, coupled with has had ‘‘ruinous consequences for reli- against employees and gig workers by the originalist approach to the Second gious liberty.’’ limiting their ability to hold employ- Amendment endorsed by several sitting Given that Justice Ginsburg was a ers accountable through collective ar- Justices, portend that a conservative crucial vote in the Obergefell 5-to-4 bitration in the cases, Herrington v.

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00033 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.279 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE S6482 CONGRESSIONAL RECORD — SENATE October 25, 2020 Waterstone Mortgage and Wallace v. framed the right to vote as a lesser vidual mandate is constitutional. The Grubhub Holdings. Given that disputes right and argued for States’ ability to Court, however, created a new limita- around the rights of gig economy work- limit civic participation. As I ex- tion on Congress’s authority to act ers and the prevalence of forced arbi- plained earlier, in the Kanter case, she under the Commerce Clause. Using an tration agreements are only increas- disagreed with the majority’s opinion originalist approach, the Court found ing, related cases are likely to come that found that all individuals with fel- that Congress can regulate commercial before the Supreme Court. It is nota- ony convictions could be legally re- activity but rejected the idea it could ble, in coming to her conclusion in stricted from possessing a firearm. The compel an individual to engage in it. Grubhub, Judge Barrett cited Epic Sys- majority reasoned that Second Amend- The majority did uphold the Congress’s tems v. Lewis, in which the Supreme ment protections belong to virtuous power to do so under its article I pow- Court held that arbitration agreements citizens, meaning that persons who ers to levy taxes. Alarmingly, four dis- in which an employee agrees to arbi- commit serious crimes may forfeit senting Justices—Justices Scalia, trate any claims against an employer those rights. Judge Barrett used this Thomas, Kennedy, and Alito—ex- on an individual basis—rather than as opportunity to elevate the importance pressed the view that neither the Com- a class—are enforceable. In that case, of Second Amendment rights in con- merce Clause nor Congress’s taxing Justice Ginsburg took the rare step of trast with voting rights. After evalu- powers supported the individual man- reading a particularly strong dissent ating the historical record, she con- date. I will note that, had Judge Bar- from the bench, saying that the Court’s cluded that ‘‘while scholars have not rett been on the Court, she likely ruling was ‘‘egregiously wrong’’ and identified eighteenth or nineteenth or would have joined the dissenting Jus- ‘‘holds enforceable these arm-twisted, century laws’’—and it is interesting to tices, and this case might have gone take-it-or-leave-it contracts—including note that we are being guided by 18th the other way. the provisions requiring employees to and 19th century laws under Judge The implications of this case are sig- litigate wage and hours claims only Barrett’s legal theories. ‘‘While schol- nificant. Taken together, Chief Justice one-by-one.’’ Were a similar case to ars have not identified eighteenth or Roberts’ opinion and the dissent are come before the Supreme Court again, nineteenth century laws depriving fel- centered around the idea that the use it is likely that Judge Barrett and a ons of the right to bear arms, history of a Commerce Clause and/or conservative majority would take a does show that felons could be disquali- Congress’s taxing power under the ACA sharp turn away from Justice Gins- fied from exercising certain rights— was a major legislative overreach. It burg’s legal position and make it hard- like the rights to vote and serve on ju- signals that the Court increasingly er for workers to get their day in ries—because these rights belong only sees these and potentially other con- court. to virtuous citizens.’’ gressional authorities as having more I am further concerned that a 6–3 She explained that, in her view, gun limits. So in the future, when Congress conservative majority Court could rights are individual rights conferred tries to use its power for a novel pur- have a drastic impact in limiting vot- by the Second Amendment, and exclu- pose, it may be susceptible to chal- ing rights. Voter suppression has a sions on nonvirtuous citizens do not lenges in the courts. If the Court con- long history in this country, with apply to individual rights. Judge Bar- tinues to shift in this direction, it will Black voters being subjected to violent rett then distinguished the right to have consequences for Federal legisla- intimidation and legally sanctioned vote and sit on juries as belonging in a tion beyond the ACA. As a result, disenfranchisement. In recognition of different category called ‘‘civic Congress’s authority to robustly ad- this history and after decades of activ- rights.’’ She upheld the ability of dress climate change, civil rights, new ism on the part of many, President States to limit this class of rights technology, and other national chal- Lyndon B. Johnson signed the Voting based on virtue exclusions. In doing so, lenges through legislation could be sty- Rights Act, which in part required ju- she cited a history of State laws going mied or diminished over time. risdictions with a history of discrimi- back to 1820 that excluded felons from And with Judge Barrett’s fascination nation to get approval before changing voting. Judge Barrett, however, failed with the exact meaning of the original its voting rules. This process, known as to include in her analysis the very his- writers of the Constitution, I wonder preclearance, was intended to prevent tory of voter discrimination that led to what their thoughts were about nu- voter discrimination before it oc- the passage of the Voting Rights Act clear energy, satellites in space, a U.S. curred. This law had an immediate and and which would have given important Air Force, which was not specifically positive impact in increasing Black context to the laws that she cited, authorized in the Constitution. I think voter registration and turnout in the which sought to disenfranchise individ- we will find ourselves in a very dif- decades after it passed. uals with criminal records. ficult position where when we face the However, in Shelby County v. Holder, I am also concerned because Judge challenges of climate change, cyber the Supreme Court’s conservative Barrett refused to answer several ques- warfare, that a Court that looks back members argued in a 5-to-4 ruling that tions on voting and elections during will not grant Congress the authority the preclearance formula was no longer her confirmation hearings. Even when to protect the American people. necessary and outdated, exactly be- asked to confirm voter protections al- Also limiting the authority of the cause it was successful. In her dissent, ready enshrined in Federal law, she Federal Government, a 6-to-3 conserv- Justice Ginsburg famously pointed out was not able to give a straightforward ative majority could take on a more the absurdity of the majority’s rea- answer. These exchanges gave me aggressive judicial review of agency ac- soning. She wrote that ‘‘throwing out pause that Judge Barrett has not dis- tions. Several members of the Supreme preclearance when it has worked and is played an appreciation for the norms Court have already called for the re- continuing to work to stop discrimina- that make our democratic and elec- consideration of the Chevron decision. tory changes is like throwing away toral institutions function. This is a legal doctrine that instructs your umbrella in a rainstorm because I would next like to focus on Judge the Federal judiciary to defer to a Fed- you are not getting wet.’’ Predictably, Barrett’s potential in limiting the au- eral agency’s reasonable interpretation the ruling in Shelby opened the flood- thority of the Federal and, indeed, of an ambiguous or unclear statute gates for States to enact restrictive State governments. If confirmed to the that it administers. and insidious voting laws, including Supreme Court, Judge Barrett’s judi- If the Supreme Court overturns the strict voter identification, excessive cial philosophy of originalism is poised Chevron deference, it could strike down voter purging, and gerrymandering. In to diminish the role of Congress as ef- agency rules that do not comport with the wake of Shelby, the awesome power fective policymakers. This method of the Court’s interpretation of the stat- of the Supreme Court to restore or fur- interpretation could disregard the com- ute. This could make toothless envi- ther damage voting rights has become monsense application and spirit of Fed- ronmental, food and drug safety, labor, apparent. eral laws. An example of this is the and a host of other regulations enacted That is why it is troubling that in case I discussed earlier, NFIB v. for the benefit of the workers and con- her dissent in Kanter—which I have al- Sebelius, where the Court decided with sumers. It would also shift the Court’s ready referred to—Judge Barrett a 5–4 majority that the ACA’s indi- decisions in favor of the corporate and

VerDate Sep 11 2014 06:53 Oct 26, 2020 Jkt 019060 PO 00000 Frm 00034 Fmt 4637 Sfmt 0634 E:\CR\FM\G19OC6.282 S25OCPT1 ctelli on DSK11ZRN23PROD with SENATE October 25, 2020 CONGRESSIONAL RECORD — SENATE S6483 special interests that tend to challenge The senior assistant legislative clerk whelming bipartisan confirmation of a these agency regulations in the first proceeded to call the roll. qualified nominee and a bipartisan place. Mr. BENNET. Mr. President, I ask ratification of the independence of the One of reasons that the agencies were unanimous consent that the order for judiciary into an entirely partisan ex- given the authority to implement our the quorum call be rescinded. ercise that has destroyed the Senate’s laws—given by Congress to the agen- The PRESIDING OFFICER. Without constitutional responsibility to advise cies—was their expertise, an expertise objection, it is so ordered. and consent and is now at risk of de- that in most cases far exceeds that of COLORADO WILDFIRES stroying the credibility of the Supreme the U.S. Supreme Court. Mr. BENNET. Mr. President, before I Court and the lower courts as well. Now, I intend to vote against the begin my remarks about the nomina- This may not matter much, I sup- nomination of Judge Amy Coney Bar- tion, I want to acknowledge that to- pose, to the Senators on this floor. It rett to be an Associate Justice of the night, as we are here, there are fires in matters to the American people who U.S. Supreme Court because I am con- many places across the State of Colo- have not consented to the destruction vinced that she will not guard core rado. There are people who are out of of their constitutional right to an inde- constitutional principles, that she will their homes and out of their commu- pendent judiciary free from the par- not interpret the law to protect the nities, who have had to evacuate their tisan insanity of elected politicians. rights of the vulnerable, and that she towns, and there are first responders on In this confirmation proceeding, the will read the law with a backward- the ground in Colorado who are fight- majority renounced its duty to advise looking perspective, not consistent ing these fires bravely every single and consent by giving their consent be- with the realities of our time and the day. fore the President ever chose the nomi- growing dangers that we face in the fu- They have been stretched all summer nee. I don’t believe that has ever hap- ture. through a fire season that has lasted pened in the history of America. As my Republican colleagues accel- into the fall because of our inability to Ours is a Senate where words have erate this nomination at a breakneck deal with our forests and because of cli- lost their meaning. Party advantage pace, it speaks to the deeply misplaced mate change. My hope tonight, as we dictates every action. Shameless hy- priorities of this body. We simply are here, is that the snow that has fall- pocrisy is the stuff of proud triumph. should be not be undertaking a Su- en is going to be more of a benefit than Deliberation is no longer necessary be- preme Court nomination at this time, a curse to everybody who is out there. cause conclusions are all foregone, and especially when it should rightfully So, with that, I thank the Presiding a decision like that affirming Judge take place during the next Presidential Officer for recognizing me, and I will Barrett to a lifetime appointment to term after the voters have made their now give my remarks about this con- the most powerful Court in the Nation decision. firmation. is anything you have the power to The Senate’s foremost priority right NOMINATION OF AMY CONEY BARRETT cram down the throats of your political now should be to provide additional Mr. President, when I was in law opponents. pandemic relief. My colleagues have school, which wasn’t really that long The truth is, this confirmation proc- displayed a profound lack of urgency to ago, the confirmation of a Supreme ess has never been a debate about what address the many challenges Ameri- Court Justice was a chance for the the Senate should do, what the Senate cans face due to the pandemic. This is American people to learn about our ought to do, and what the right thing despite the repeated warnings from system of checks and balances, our to do for this Senate is. It has always public health experts and economists commitment to the rule of law, and, in been a demonstration of what the ma- about what will happen if we do not particular, the independence of judges. jority can get away with and of how enact additional fiscal aid. And whenever the Senate confirmed a they can exercise their power in order However, my Republican colleagues Justice with an overwhelming bipar- to entrench their power. continue to turn a blind eye, even as tisan vote, as it did almost every time, I have no expectation that my words COVID–19 cases spike, businesses close, it reaffirmed that independence and re- are going to change the result tomor- unemployment remains high, and assured the American people that our row. My hope is that we can mark this States consider deeper budget cuts. courts were protected from political in- as the moment that the American peo- Under these extraordinary cir- fluence and that they stood apart from ple said ‘‘Enough’’ and began to re- cumstances, I cannot support Judge the partisanship of the other two claim their exercise in self-government Barrett’s nomination to the Supreme branches of government. from those who have worked relent- the Court of the United States. As we meet here tonight, after 20 lessly to deprive them of it. I urge my Republican colleagues to years of descending into intensifying To do that, we have to be very clear stop this shortsighted rush. Let’s put partisanship in the confirmation of about what this moment means and the best interests of the country first. judges, the Senate is now about to drag what it calls on each of us to do in the Let’s wait a few more days and let the the Supreme Court down to its own days, months, and years ahead. The American people have a say. Let’s decadent level by turning it into just truth is, this confirmation is the latest focus on the COVID–19 crisis, which de- another politicized body that is dis- victory for an unpatriotic project that mands our immediate attention. Just trusted, for good reason, by the people traces back to the earliest days of our because you can do something doesn’t it is meant to serve. country. mean you are doing the right thing. I It is common these days to observe Since our founding, there have al- strongly believe my Republican col- that our institutions are failing. I have ways been factions working toward an leagues are making a major mistake said it myself. But institutions don’t insidious purpose: to so degrade and that will be doing lasting damage to fail on their own. They can’t destroy discredit our national exercise in self- both this institution and the Supreme themselves. It takes people to destroy government that when the American Court, and I urge them to reconsider. them. It particularly takes leaders who people finally throw up their hands in Instead of pushing forward with this have no inclusive, long-range vision for disgust, these factions can distort it ill-suited nominee, let’s get to the busi- our country or our democracy; leaders into an instrument for their interests ness at hand: addressing the great chal- who can’t or won’t think beyond nar- instead of the public interest. lenges we face due to the pandemic and row, short-term interests; and leaders, Today, the Senate majority leader, beyond, as well as working together to I am sorry to say, like Leader MCCON- MITCH MCCONNELL, represents one such fix the Senate so that we no longer NELL. faction, joined by the Freedom Caucus break faith with the people who sent us He may imagine, as he claims, that in the House of Representatives, Presi- here, the people we represent. he is simply restoring the judicial cal- dent Trump, and the legion of deep- With that, I yield the floor. endar to a prefilibuster era. That is pocketed donors and PACs assembled Mr. BENNET. Mr. President, I sug- what he tells his colleagues here when behind them. Because factions like this gest the absence of a quorum. he recounts the story. The majority one have a tough time winning broad The PRESIDING OFFICER (Mr. leader, more than any other actor, has support from the American people for LANKFORD). The clerk will call the roll. transformed what used to be the over- their agenda, they seek other less

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