October 23, 2020 - Issue: Vol. 166, No. 182 — Daily Edition116th Congress (2019 - 2020) - 2nd Session

[Pages S6408-S6411]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                             Cloture Motion

  Mr. McCONNELL. Mr. President, I send a cloture motion to the desk.
  The ACTING PRESIDENT pro tempore. The cloture motion having been 
presented under rule XXII, the Chair directs the clerk to read the 
motion.
  The legislative clerk read as follows

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of Amy Coney Barrett, of Indiana, to be an Associate Justice 
     of the Supreme Court of the United States.
         Mitch McConnell, John Thune, Joni Ernst, Cindy Hyde-
           Smith, Marsha Blackburn, Roy Blunt, Shelley Moore 
           Capito, Roger F. Wicker, Lindsey Graham, David Perdue, 
           Chuck Grassley, James M. Inhofe, Tom Cotton, John 
           Hoeven, Mike Crapo, Richard Burr, Lamar Alexander, Ben 
           Sasse.

  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. McCONNELL. Mr. President, colleagues, in my first experience with 
Supreme Court confirmations in the Senate, I was a young staffer for a 
junior Member of the Judiciary Committee. That was also the same time I 
met a young guy named Lamar Alexander, who had just left the Senate to 
go to the White House to work in Congressional Affairs. So I have had 
an opportunity for quite a long time to observe the confirmation 
process through various ups and downs--periods when nominees were 
confirmed almost overwhelmingly and periods during which they were 
heated, to put it mildly, contests over the nomination.
  What I think you can safely say about the Senate over the last 40 or 
50 years is that it is in an assertive period. In other words, viewing 
the whole process as a joint thing, the President has a role to play, 
and the Senate has a role to play. And at various times in the history 
of our country, the Senate has been pretty passive about it; at

[[Page S6409]]

other times, they have been pretty aggressive about it. But the 
Constitution is clear: The Senate has a role if it chooses to exercise 
it.
  Rarely have we ever had a nominee as extraordinary as the one we have 
before us right now. We have had a chance to witness this outstanding 
nominee. We have watched her in committee. She has demonstrated she has 
the deep legal expertise, dispassionate judicial temperament, and sheer 
intellectual horsepower that the American people deserve to have on 
their Supreme Court.
  Last week, we saw why fellow legal scholars called Judge Barrett ``a 
brilliant and conscientious lawyer who will analyze and decide cases in 
good faith,'' and they say she is ``tailor-made''--tailor-made--``for 
this job.''
  We saw why her former law clerks--her students--call her ``a woman of 
unassailable integrity'' and ``a role model for generations to come.''
  We saw why the American Bar Association--an institution the 
Democratic leader has called the gold standard--the gold standard--
deemed Judge Barrett ``well qualified'' to sit on the Supreme Court. 
And they heard why the legal professionals behind that rating called 
her--listen to this--``a staggering''--staggering--``academic mind.''
  The chair of the ABA Standing Committee on the Federal Judiciary told 
the committee directly that ``in interviews with individuals in the 
legal profession and community who know Judge Barrett, whether for a 
few years or decades, not one person''--not one, not one--``uttered a 
negative word about her character.''
  This outstanding nominee is exceptionally suited to this job, period. 
And I know we all know that. She is an exceptional nominee to the 
Supreme Court who will make the Senate and the country exceedingly 
proud.
  There are few of us around here who have experienced the last 30 
years up close and personal, and I am one of them. Others of you have 
followed parts of history from the outside, and now you are making 
history.
  It is a matter of fact, a matter of history, that it was Senate 
Democrats who first began our contemporary difficulties with judicial 
nominations back in 1987 and who have initiated every meaningful 
escalation--every single one of them--from then up to the present day. 
Every escalation was initiated by the other side.
  In 1987, Ted Kennedy and his friends introduced the country to Robert 
Bork's America--the first effort to smear a fully qualified judicial 
nominee based on insulting, apocalyptic scare tactics. Even some of the 
people who were directly involved in ``Borking'' Bork--Democrats, by 
the way--say they regret that low moment and what it has unleashed in 
the years since.
  In the early 2000s, it was Democrats who very willfully invented a 
brandnew strategy to make judicial ideology, and not just 
qualifications, an acceptable criteria for tanking Presidential 
nominees
  I remember reading in the early part of Bush 43's first term a 
seminar that was convened by my friend the Democratic leader, and he 
invited a couple of scholars--Laurence Tribe and Cass Sunstein--to come 
talk to him about the appropriateness of beginning to use every single 
tool in the toolbox to stop judicial nominations.
  It was always possible to filibuster judges; it just wasn't done. I 
mean, there are plenty of things you could do that you don't do; it 
just simply wasn't done.
  The best example of that was the Clarence Thomas nomination. There 
couldn't have been a more controversial nomination than that one. The 
chairman of the Judiciary Committee, Joe Biden, and Ted Kennedy sitting 
next to him--it was about as aggressive as it gets. It made, in some 
ways, the Bork treatment look like child's play. The committee reported 
out Justice Thomas with an even vote--even. And as we all know around 
here, it only takes 1 of 100 Senators to make you get 60--just 1--only 
1 to get the Senate in a place where you have to get 60 votes.
  The tradition of dealing with the judicial nominees with a simple 
majority was so strong that not 1 Democrat--not 1--required 60 votes on 
Clarence Thomas. In case you don't remember, the vote on this 
confirmation was 52 to 48. One Senator out of 100 could have denied 
Clarence Thomas his career on the Supreme Court. That is how strong the 
tradition was of dealing with the Judiciary in a simple majority way.
  Well, in Bush 43, my colleague, the Democratic leader, at this 
meeting, apparently, with Cass Sunstein and Laurence Tribe--I am 
paraphrasing, I am sure--was predicting all of these crazy rightwing 
judges were going to be sent up by Bush 43, and we ought to use every 
tool in the toolbox, whether it was used before or not, to stop 
judicial nominees.
  So Democrats used the brandnew tool, the partisan filibuster, to 
block one Bush nominee after another whose qualifications nobody even 
disputed.
  In her own confirmation hearing years later, for example, now-Justice 
Elena Kagan went out of her way to say that Miguel Estrada--a name some 
of you may not be familiar with, who got here recently--would have been 
qualified to sit on the DC Circuit. She said he even would have been 
qualified to sit on the Supreme Court. He became the poster child for 
this new process invented by the Democratic leader and his colleagues 
to routinely filibuster judges. It was written, the suspicion was, that 
it might provide for Bush 43 the opportunity to name the first Hispanic 
Supreme Court Justice, and, of course, they didn't want that to happen. 
So Senate Democrats filibustered him seven separate times in 2003. He 
was one of the many victims of this norm-shattering, precedent-breaking 
behavior.
  A few years later, colleagues such as Senators Biden, Durbin, Leahy, 
Obama, and Schumer tried to filibuster Justice Alito's nomination to 
the Supreme Court. Fortunately, that was not successful.
  But then something really funny happened. Something really funny 
happened. All of a sudden, there was a new President--President Obama. 
Suddenly, a Democratic President was making judicial nominations.
  Well, imagine what happened then. Suddenly, Senate Democrats became 
very allergic to experiencing the effects of what they had started--in 
effect, the effects of their own playbook. They had no patience to 
taste their own medicine, none whatsoever. Our colleagues did not 
appreciate being held to the standards they had just created a few 
years before. The shoe was on the other foot.
  Well, we all know what happened next--another massive Senate-shaking 
escalation by Senate Democrats in 2013: the nuclear option. They broke 
the Senate rules to change the Senate rules so that a Democratic 
President would not have to play by the same rules they had invented 
shortly before. And with a 51-vote threshold in place, Democrats began 
confirming nominees without meaningful minority support.
  I said at the time, quoting myself: They would regret it a lot sooner 
than they would think.
  Well, that regret began in 2016. In 2016, when Justice Scalia passed 
away, Senate Republicans had won our majority a year later. As I said 
then, when I recommended to all of you that we not fill that vacancy 
created in the middle of a Presidential election year, you would have 
to go back to 1888 to find the last time a Senate of a different party 
from the President confirmed a Supreme Court nominee to a vacancy 
created during the Presidential election year. In other words, not 
surprisingly, one party in control of the Senate was less inclined--and 
had been less inclined for a very long time--to confirm a Supreme Court 
nominee in the middle of a Presidential election year. It was entirely 
within the rights of the Senate to do that because what had clearly 
developed over these years was the Senate viewed itself as a partner--a 
partner--in the process. The President gets to nominate, but we get to 
decide whether to act on the nomination.
  Needless to say, after the unprecedented Senate-shaking steps that 
Senate Democrats had taken, the Republican Senate majority was not much 
inclined to depart from precedent and do President Obama that favor.
  Our decision in 2016 was fully in line with precedent, fully within 
the Constitution, and completely within the Senate rules. Now, I 
understand why they didn't like it. I wouldn't have either. Of course 
they didn't like it. But elections have consequences, and

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America had chosen a Republican Senate in 2014.
  But there is no parallel between actually breaking the rules, as the 
Democrats did in 2013, and merely applying the rules in ways the 
Democrats do not like. There is a big difference between breaking the 
rules and applying the rules in ways the Democrats did not like. If the 
Senate is going to function, we must maintain a distinction between 
when people break the rules and when they apply the rules in ways we 
may not like.
  When President Trump won in 2016, Senate Democrats took yet another 
reckless and unprecedented step. They mounted the first ever successful 
partisan filibuster of a Supreme Court nominee. That had not been done 
before. They tried it on Alito; it didn't succeed. They tried it on 
Gorsuch, and it did. The message was, in effect, nobody who President 
Trump nominates is going to get 60 votes for the Supreme Court, no 
matter how qualified.
  Of course, speaking of qualifications, Justice Gorsuch's 
qualifications were simply beyond question--someone who, frankly, has 
gone on to issue some rulings, by the way, that these guys over here 
like, which shows you predicting what a Supreme Court Justice is going 
to rule on has been a hazardous guess most of the time. Their 
apocalyptic threats about predictions about what is going to happen 
with nominees of Republican Presidents have been consistent going back 
to John Paul Stevens: Every single one of them is going to be a 
disaster for women, minorities, and all the rest--none of which, of 
course, ever materialized.
  So, Republicans applied and extended what Senate Democrats had begun 
in 2013. They had left out the Supreme Court from being dealt with with 
a simple majority. So we decided we were going to return to where, by 
the way, the judicial calendar was--by practice anyway--just a few 
years ago. It was always dealt with with a simple majority. The Thomas 
nomination proved it. That was the custom here, until our friends on 
the other side decided to start a new custom, within the rules but a 
new custom.

  So, all of my friends, this happened as a result of the threshold 
being lowered for the Supreme Court, and we are back to where we were 
as recently as Clarence Thomas. The Executive Calendar is dealt with 
with a simple majority. I think that is better for the country, and 
they will benefit from that, too, at some point.
  When you have a President and a Senate of the same party, obviously, 
this is going to happen quicker. That is the way it has always been, 
whether the rule allowed a filibuster or not. So, ironically, we are 
back to where we were; the entire Executive Calendar will now be dealt 
with as it was a few years ago, before all of this back-and-forth with 
a simple majority.
  Well, obviously, Justice Gorsuch was confirmed on a bipartisan basis 
once the Executive Calendar was returned finally to a simple majority.
  And then Justice Kavanaugh--most of us were here for that--despite 
the horrific and embarrassing display that some of our Senate 
colleagues aided and abetted, we made it through that.
  So the good news is this: In about 72 hours, I anticipate we will 
have a third new Associate Justice of the Supreme Court--in about 72 
hours.
  I do not blame some of my Democratic colleagues, who were not present 
for all of this, who wish the Senate would behave differently.
  But just know this--this is not spin. This is fact. Just know this: 
Every new escalation, every new step, every new shattered precedent, 
every one of them, was initiated over there. No exceptions. Every one 
of them. And it all happened over the strenuous objection of 
Republicans, who tried, in each instance, to stop Democrats from 
trading away long-term Senate norms for short-term political wins.
  Seventeen years ago, colleagues--seventeen years ago--Democrats were 
boasting to newspapers about this brandnew campaign to politicize 
judicial confirmations. They thought it was a great idea--bragged about 
it. One of my colleagues called himself the king of the filibuster and 
proudly wanted to own it. Well, sooner or later, the shoe is always on 
the other foot.
  So I hope our colleague from New York is happy with what he has 
built. I hope he is happy with where his ingenuity has gotten the 
Senate.
  Colleague, we have had this argument over and over for months, if not 
years. This is not really what we are here to debate today. We are here 
to actually consider an outstanding nominee whose qualifications nobody 
doubts--Judge Amy Coney Barrett.
  So, colleagues, let's get on with it. Let's do our job. Let's 
rediscover the rational treatment of nominations that the Democratic 
leader embarked on a deliberate project, starting 20 years ago, to 
erase.
  We will give this nominee the vote she deserves no later than Monday.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Democratic leader is recognized
  Mr. SCHUMER. Mr. President, we have just heard a tit-for-tat, 
convoluted version of history that the majority leader uses to justify 
steering the Senate toward one of the lowest moments in its long 
history. Might does not make right.
  ``You did something wrong, so we can do something wrong'' is no 
justifications when the rights of the American people are at stake. The 
Republican majority is steering the Senate toward one of the lowest 
moments in its long history. The Republican majority is on the 
precipice of making a colossal and historic mistake, and the damage it 
does to this Chamber will be irrevocable.
  After thwarting the constitutional prerogative of a duly elected 
Democratic President to appoint a Supreme Court Justice because it was 
an election year, the Republican majority is rushing to confirm a 
Justice for a Republican President 1 week before election day. 
Consistency? I am afraid not. You don't have the right to argue 
consistency when you are doing what you are doing now.
  Four short years ago, all of our Republican friends argued that it 
was a principle--that was the word they used, ``principle''--to let the 
American people have a voice in the selection of a Supreme Court 
Justice because an election was 8 months away.
  Those same Republicans are preparing to confirm a Justice with an 
election that is 8 days away. In the process, the majority has trampled 
over norms, rules, standards, honor, values--any of them--that could 
possibly stand in its monomaniacal pursuit to put someone on the Court 
who will take away the rights of so many Americans.
  The Republican majority, of course, ignored health guidelines to 
conduct in-person hearings in the middle of a pandemic after Republican 
members of the committee themselves had contracted COVID-19. It has 
broken longstanding Senate precedent. Never--never in the history of 
the Senate, despite any sophistic analyses of recent history, never has 
a Supreme Court nominee, a lifetime appointment, been considered so 
close to an election. The Presiding Officer of the Senate confirmed 
this yesterday in response to this Senator's inquiry; never in the 
history of the Senate has a Supreme Court nominee been confirmed after 
July of an election year.
  My friends, it is the hallmark of democracy that might does not make 
right. The Republican Senate is blatantly ignoring this principle. Here 
in Leader McConnell's Senate, the majority lives by the rules of 
``because we can.'' They completely ignore the question of whether they 
should.
  A Supreme Court nominee will be confirmed on a party-line vote after 
the rules were changed to allow it. Now it doesn't matter that an 
election is just a short time away. It is a complete contradiction of 
the supposed principle that same party so vehemently argued only 4 
years ago. Again, it is 8 days--8 days--before an election in which the 
American people will choose exactly whom they want to pick Supreme 
Court Justices for them.
  For the Republican leader to argue for consistency, using his 
convoluted version of history is laughable. It is absurd. It is 
outrageous. It is a stain on this body and an indelible mark on this 
Senate majority. In short, the Senate Republican majority is conducting 
the most rushed, most partisan, and least legitimate process in the 
entire history of Supreme Court nominations, and Democrats will not 
lend an ounce of legitimacy to the process.
  Yesterday, the seats of the Democratic members of the Judiciary 
remained vacant in that committee

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room. In their place, were the reminders of what is ultimately at stake 
in this nomination--the fundamental rights of the American people. It 
is not Democrat or Republican or who did this when and who did that 
when. It is the rights of the American people, what America needs and 
what Judge Barrett has stood for on these issues in the past that is 
ultimately what matters.
  On the seats of those Democratic members were photographs of 
Americans whose lives would be devastated if a Justice Barrett delivers 
the decisive vote to strike down the Affordable Care Act, ripping away 
healthcare from tens of millions of Americans and eliminating 
protections for more than 130 million Americans with preexisting 
conditions.
  You could imagine, alongside their faces, the faces of women who 
cherish the right to make their own private medical decisions, the 
faces of LGBTQ Americans who want to marry whom they love and not be 
fired for who they are, the faces of American workers who are breaking 
their backs to make ends meet and need their union to help them get a 
better wage, the faces of young people who know that the planet is in 
peril in their lifetimes.
  I hope that when Republican Members of the Senate think about this 
nomination, they will think about those faces and what this nomination 
means to them, the hundreds of millions of Americans who will lose 
rights and fundamental things they need to make their lives better 
because of this nomination. It is not about qualifications. It is about 
what the American people need and want and will an unelected body take 
those rights away from them.

  So I hope my colleagues will think about that. Take a moment. Take a 
moment to think about it, and then think about what it says about this 
sham of a process and the passion that we on this side of the aisle 
feel about protecting those people's rights, that we were forced to 
take the extraordinary step of refusing to participate in this process, 
because while they may realize it or not, our Republican majority's 
monomaniacal drive to confirm this Justice in the most hypocritical, 
the most inconsistent of circumstances will forever defile the Senate 
and, even more importantly, curtail the fundamental rights of the 
American people for generations to come. Democrats will play no part in 
that.