prayer; Congressional Record Vol. 166, No. 184
(Senate - October 25, 2020)

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[Pages S6554-S6588]
From the Congressional Record Online through the Government Publishing Office []


  The Chaplain, Dr. Barry C. Black, offered the following prayer:
  Let us pray.
  Holy God, as our lawmakers strive on this decisive day in history to 
accomplish Your purposes, show them how to discern Your will. May they 
renew their minds through the nourishment of Your Holy Word. Lord, 
prepare them to be sober-minded and filled with Your Spirit, 
accomplishing the tasks that receive Your approval. Keep them from 
conforming to worldly impulses as they strive to ensure that their 
behavior will rightly represent You. May they conduct themselves with 
holiness, godliness, and civility, waiting for the day when You will 
return to establish Your Kingdom on Earth. Lord, prepare us all to 
stand before You in peace without spot or blemish.
  We pray in Your powerful Name. Amen.
  The PRESIDING OFFICER. The Senator from Utah.

                    Nomination of Amy Coney Barrett

  Mr. LEE. Mr. President, it is an honor and a privilege to speak on 
behalf of the confirmation of Judge Amy Coney Barrett to the Supreme 
Court of the United States today.
  One of Judge Barrett's familiar themes, one that she has invoked in 
speeches when speaking about the Constitution and about the role of the 
Federal judiciary, involves a line from Odysseus. It involves a 
reference to the ``Odyssey.''
  She says:

       The Constitution is like when Odysseus ties himself to the 
     mast to resist the song of the Sirens. And he tells his crew, 
     `Don't untie me no matter how much I plead.' That's what 
     we've done as the American people with the Constitution. 
     We've said . . . it's the people sober appealing to the 
     people drunk, [that when you are tempted to get untied], that 
     when you are tempted to get carried away by your passions and 
     trample upon the First Amendment rights or minority rights, 
     this document will hold you back.

  Judge Barrett points out a very critical matter here, an absolutely 
essential matter, which is, first of all, that the whole point of 
having a Constitution involves restraining and restricting government. 
As it relates to the judiciary, it involves acknowledging the 
necessarily limited, finite, and confined role of the judiciary.
  Sometimes when people refer to the three branches of the Federal 
Government, they will get it backward. Sometimes people will refer to 
the judicial branch as if it were the most powerful. This gets it 
exactly backward. It was designed to be--and, in fact, is--the least 
dangerous branch of the three branches. That is not to say it is not 
the most dangerous of all. Government, generally, is something that 
while necessary is also dangerous just like water or fire or wind or 
oxygen or any of the things that we depend upon for our day-to-day 
  Government, including the power of the judiciary itself, has to be 
managed carefully, and it has to be channeled. If it is not, we become 
dangerous. So that is why we have a Constitution. It is to restrain 
government because government is force. Government is nothing more or 
nothing less than the collective, coercive use of force. We use it to 
protect life, liberty, and property. We use it to make sure that people 
don't harm each other and to make sure that we are protected from our 
adversaries within and without our borders, our boundaries. Yet, if we 
lose sight of what government does and what it doesn't do, what it can 
and cannot do, what it may or may not do, or what any branch of the 
government may do, we find ourselves in troubled, troubled waters.

[[Page S6555]]

  The reason I say that the judicial branch is the least dangerous of 
the three is that it doesn't possess the power to say what should be, 
only what is. The power of the legislative branch, where we serve, is 
the most dangerous of the three because we have the power to prohibit 
conduct. We have the power to prescribe policy. We make the law.

  The second most dangerous power is probably that which is held in the 
executive branch. It has been made more dangerous over the last 80 
years as Democrats and Republicans alike have ceded more power to the 
executive branch, voluntarily relinquishing the role, which is 
uniquely, distinctively, and by constitutional mandate ours, over 
mostly to unelected, unaccountable bureaucrats who are, in some cases, 
the President of the United States or those who serve under his employ.
  The judicial branch possesses neither the power of the purse nor the 
power of the sword. We have the power of the purse. We spend the money. 
We prescribe the policy. The executive branch has the power to 
implement and force and execute the laws, hence the power of the sword. 
The judicial branch possesses only the power to decide what the law 
says. In that respect, it is operating as if through a rearview mirror. 
It is not saying what will come or what should be but what already is, 
what the law means as it already exists.
  In order to do that, the judicial branch has to come to a conclusion 
that our laws consist of words; that those words have meaning; and 
that, in order to tie themselves to the constitutional mast in order to 
make sure that they themselves are able to resist the siren call of 
power and to keep each of the three branches of government in check 
insofar as it is their prerogative to do so, they have to check back 
continually and check themselves constantly with the words of the U.S. 
Constitution and the words of the law itself.
  Yes, it matters. Yes, these things are easily ignored. These powers 
are easily abused. In fact, they often have been abused. There are a 
number of reasons for this. They have to do mostly with human nature 
itself. Human beings, while redeemable, are flawed. They crave power. 
They tend to act toward those things that make them more powerful if 
they are already in positions of government authority. That is why it 
is easy to understand why, from time to time, the courts stray.
  Now, I want to be very clear at the outset. The Federal court system, 
notwithstanding its flaws, is the best of its kind in the world. There 
is no judicial system anywhere in the world that I am aware of that is 
as respected or as consistently dedicated to the rule of law, to 
interpreting the law consistently and faithfully as is our Federal 
court system.
  The Supreme Court of the United States, while it has made some very 
bad decisions along the way, for the most part, gets things right. In 
fact, it is something that may come as a surprise to many Americans 
that of all of the decisions that the Supreme Court decides in a 
typical year, in modern times, it is most common that the Supreme Court 
decides those questions either unanimously or with near unanimity. Most 
cases at the Supreme Court are decided with a vote of 9 to 0 or 8 to 1 
or 7 to 2--the overwhelming majority, in fact.
  Keep in mind, these are cases that with very few exceptions have 
proven difficult for the lower courts. They have caused some of the 
greatest legal minds in our country to address the same finite legal 
questions and to come up with different results. Yet those on the 
Supreme Court of the United States, for the most part, decide these 
cases with unanimity or nearly unanimity. Why?
  Well, most of the time, they tie themselves to the mast. They 
remember what is their charge. They remember that they are there not to 
decide matters of policy but to decide questions of law. They can't 
just reach out and say, I don't like this type of law. Let's go after 
this type of law and attack it or undermine it or let's pursue this 
line of law that should be in place and isn't.
  They don't have that authority. They have to have a case or a 
controversy, meaning one or more parties that can properly invoke the 
jurisdiction of the Court, and they have to have an actual, live, ripe 
dispute between people who are actively affected by the law. Then and 
only then may the Court act.
  From time to time, however, the Court has been tempted to give in to 
the siren call--to make law. It isn't always with the same political 
objectives in mind, and those objectives can change over time. To cite 
one of many examples that we could point to today, I am going to refer 
to a decision made by the Supreme Court of the United States in 1905 in 
a case called Lochner v. New York.
  In that case, the State of New York had enacted some laws governing 
minimum wage and maximum hour issues for bakery employees in the State 
of New York. The Supreme Court of the United States decided that those 
laws were bad and that they didn't like them, and on that basis, it 
said in essence: These laws are bad, and they are so bad that they must 
be unconstitutional. They are so bad, and they lack any legitimate 
purpose that we can see. We are, therefore, going to deem this part of 
the due process protections, the due process protections that are 
covered by the 14th Amendment to the Constitution and allow us to 
impose our judicial authority on State law and invalidate that State 
  Their reasoning essentially amounted to that: We don't see any good 
reason for this law. We, therefore, deem it incompatible, inconsistent, 
irreconcilable with due process, and we hereby strike it down as 
  This, in my view, was wrong. It was a problem. It was a political 
dispute that was becoming increasingly common as the Progressive Era 
was gaining momentum.
  Conservatives in the country were losing many of these battles in 
many lawmaking bodies, including, apparently, the New York State 
legislature. They didn't like it. So these particular jurists on this 
particular day chose to exercise their authority as jurists to strike 
down that law even though it was really a political argument they were 
making, even though it wasn't within their jurisdiction.
  So they stretched the meaning of the law. They stretched out the 
concept of due process so that they could declare this to be a 
constitutional violation.
  They took debatable matters beyond debate--not only beyond debate, 
but they took them outside the proper realm of State law jurisdiction 
and outside the context of legislation and debate surrounding such 
legislation within political branches of governments generally, whether 
State or Federal. They said: This is now Federal. We are going to make 
it Federal, such that you can't legislate in this area because we don't 
like it, and because we don't like it, we are going to say that it is 
part of the Constitution; it is part of your due process protection, 
notwithstanding the fact that due process, as the name implies, is 
about process. It is about making sure that you have your day in court, 
making sure that you have access to tools connected to fundamental 
fairness on procedural questions, not an outcome.
  So in Lochner v. New York, the Supreme Court Justices untied 
themselves, as it were, from the mast of the Constitution. They did so 
in a way that was harmful and unsustainable. They did so 
notwithstanding the fact that there was no logical end point to this. 
It was very difficult to conceive of any question of public policy that 
could not and, ultimately, would not come before the Supreme Court of 
the United States if you used their standard of analysis: This law 
doesn't really do anything good. It is not something that has a 
legitimate purpose, so we are going to strike it down.
  Fortunately, the Supreme Court of the United States--it took many 
years to do it--eventually saw the error of its ways and eventually 
overturned Lochner v. New York. In many instances we ought to look back 
at that moment and say that we don't really want the Supreme Court 
taking debatable matters beyond debate. That is how political 
accountability works in this country. If you have something that you 
don't like as a matter of policy, you ought to try to change it before 
the legislative body in which it is properly considered. Now, if it is 
unconstitutional, yes, it should be unconstitutional. I am not one who 
focuses obsessively on judicial activism for fear that by focusing 
obsessively on judicial activism, we will perpetuate the

[[Page S6556]]

idea that really what we want is judicial passivity. We don't want 
either. It is just as bad to invalidate as unconstitutional a law that 
is, in fact, not unconstitutional as it is to leave intact an 
unconstitutional law that is constitutionally defective. Both are 
equally repugnant to the Constitution. Both represent an effort by 
jurists to untether themselves from the mast of the Constitution and 
from the finite judicial role.
  Justice Scalia was someone who was nominated to the Supreme Court of 
the United States in 1986. He was confirmed overwhelmingly, by a vote 
of 98 to 0, if I recall.
  Justice Scalia was someone who, while a law professor, and later, 
while serving as a judge on the U.S. Court of Appeals for the DC 
Circuit, had acknowledged the need for judges to keep themselves 
tethered to the mast, had acknowledged the need for them to focus on 
deciding cases based on the law rather than on the basis of favorable 
policy outcomes.
  This was at once a somewhat revolutionary idea at the time, and yet 
it wasn't overwhelmingly controversial at the time, given the fact that 
he was confirmed by a vote of 98 to 0 to the Supreme Court of the 
United States.
  But over the next three decades or so, while he served on the Supreme 
Court of the United States, Justice Scalia revived--he restored--this 
concept, this constitutional understanding of the proper role of 
government and of the proper role of each branch of the Federal 
Government, including and especially the judicial branch of the Federal 
  During his service on the Supreme Court of the United States, he was 
able to mentor a number of law clerks, including Judge Amy Coney 
  Judge Barrett has explained that she believes in the same line of 
reason. She believes that judges and Justices need to tether themselves 
to the mast of the Constitution. They need to confine their role to 
that that involves judging, and they need to not covet and, ultimately, 
try to overtake the role of the elected lawmaker or the role of the 
executive. One has the power of policy and the purse; the other, the 
power of the sword.
  But as Alexander Hamilton explained in Federalist 78, there is a 
profound difference between these powers. The legislative branch, he 
explained, has the power of will. It exercises will when it decides 
what should and should not be within the law.
  The power of the judiciary, by contrast, involves only the power of 
judgment, to decide what the law says. That is the kind of jurist we 
need today.
  Now, make no mistake--this is not a conflict that involves a desire 
to put on the Supreme Court of the United States people who will wage 
political warfare within the judicial branch from the conservative 
side. It is not that. It is not anything close to that. In fact, it is 
the opposite of that.
  We don't want Judge Barrett on the Supreme Court to be our advocate. 
We want Judge Barrett on the Supreme Court to decide law, to decide 
cases based on what the law says, to keep herself tethered to that mast 
because it is through that mast that our rights are protected, that we 
are able to elect people who will exercise sound judgment in deciding 
what the law should be. And, yes, we want them to strike down laws when 
they are unconstitutional. But, no, we don't want them striking them 
down simply because of a policy disagreement.
  In fact, all of our political, our economic, and our civil rights end 
up being tied to this very feature within our government. They are all 
protected by the willingness of our jurists to keep themselves tethered 
to the constitutional mast, just as Odysseus insisted on being tied to 
his. Notwithstanding how hard he might plead upon hearing the call of 
the sirens, he knew that it was important for him to stay on task, to 
stay focused on his job.
  Judge Amy Coney Barrett is an exceptionally well qualified and 
talented legal mind and jurist. She is bright. She is articulate. She 
is, as we have seen, unflappable, and she is willing to set her mind on 
that course--to uphold and protect and defend that document that I 
believe was written by wise men raised up by Almighty God for that very 
  That document, insofar as we have followed it, has fostered the 
greatest development of the greatest civilization the world has ever 
known. I hope that it ever will be that way because it is a strong and 
sure foundation upon which we have built, but we need people who 
believe in that foundation and are willing to tie themselves to it.
  Thank you.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Mr. President, during my time in the U.S. Senate, I have 
had, right here, the privilege of being part of the confirmation 
process for each Justice currently sitting on the Supreme Court--yes, 
each one. As such, over the years I have had the opportunity to meet 
with many of the Nation's most talented jurists. At this time, I 
consider Judge Amy Coney Barrett to be the most qualified Supreme Court 
nominee I have encountered in my 34 years in the U.S. Senate.
  Let me explain.
  Education--that is important. Judge Barrett, born and raised in the 
New Orleans area, is the eldest of seven children, as has been spoken 
of here. And if you take a look at her scholastic credentials, you know 
she was an exceptional student. Judge Barrett graduated magnum cum 
laude from Rhodes College in Memphis, TN, and was inducted into Phi 
Beta Kappa. She also graduated summa cum laude from Notre Dame Law 
School, where she was the executive editor of the Notre Dame Law Review 
and finished first in her class.
  Look at some of her professional experience. This is important.
  Judge Barrett is no stranger to the courtroom. She has decades of 
exemplary professional legal experience that I believe deem her well 
qualified to sit as a Supreme Court Justice.
  Following law school, Judge Barrett clerked for Justice Laurence 
Silberman of the U.S. Court of Appeals for the District of Columbia 
Circuit. He is a great jurist in his own right, Judge Silberman.
  One year later, she had clerked at the U.S. Supreme Court for Justice 
Scalia, one of the renowned judges, gaining fundamental legal 
experience that would help shape her future legal career.
  From there, she practiced law and taught as a visiting professor at 
George Washington University Law School here in Washington.
  Judge Barrett went on to serve as a law professor for 15 years at her 
alma mater, Notre Dame University Law School. In that period of time, 
she was awarded Notre Dame Law School's Distinguished Professor of the 
Year Award three separate times.
  Most recently, in 2017, Judge Barrett was confirmed right here in the 
Senate as a judge for the U.S. Court of Appeals for the Seventh 
Circuit. And during this time on the Seventh Circuit Court of Appeals, 
she authored 79--79--majority opinions as a circuit court judge.
  Let's review for a minute the judicial philosophy and temperament of 
Judge Barrett. I think that is highly important. While her education 
and professional experience are certainly noteworthy, it is her 
judicial philosophy and temperament that really set her nomination 
apart, I believe, from a lot of others.
  I am a firm believer that any nominee to the Supreme Court must and 
should demonstrate that he or she consistently and honorably applies 
the law as it is written, impartially and equally to all individuals.
  Judge Barrett has, time and again, shown through her opinions and her 
statements that she will base her decisions on the law and the 
Constitution, not on personal policy preferences, as it should be.
  She has also demonstrated a deep commitment to the Constitution and 
its protections established by our Founding Fathers.
  When considering potential nominees to the Supreme Court, I find 
one's judicial temperament to be vitally important.
  The American Bar Association Standing Committee on the Federal 
Judiciary, which consists of 19 lawyers who conduct nonpartisan peer 
reviews of Federal judicial nominees, relies on confident assessments 
of judges, lawyers, law professors and deans, community leaders, and 
others with knowledge of the nominee.
  I want to share what some of them have said about her. For Judge 
Barrett, the committee invited 944 people to

[[Page S6557]]

provide input into whether she is qualified for the Supreme Court. I 
would like to share here in the Senate this afternoon just a few of the 
comments that the American Bar Association committee provided.
  They said about her, ``whip smart, highly productive, punctual and 
  ``A brilliant writer and thinker.''
  ``An intellectual giant with people skills and engaging warmth.''
  ``The myth is real. She is a staggering academic mind.''
  Judge Barrett ``has demonstrated stellar judicial temperament in all 
settings: She is often described as a `good listener' who makes time 
for people, whether they are law students, law clerks, colleagues or 
  Of other note here, I have comments from Randall Noel, the chair of 
the American Bar Association Standing Committee, and he said Judge 
Barrett ``is incredibly honest and forthright.'' Judge Barrett is an 
``exemplar of living an integrated life in which her intellect, 
integrity and compassion weave the different threads of her life 
together seamlessly.'' Think about all this. He also says: ``All of the 
experienced, dedicated, and knowledgeable sitting judges, legal 
scholars, and lawyers who have worked with or against Judge Barrett had 
high praise for her intellect and [her] ability to communicate clearly 
and effectively.''

  It is no surprise that the American Bar Association found Barrett's 
professional competence to have exceeded their high standards for 
Supreme Court nominees.
  As a country, we should seek, I believe, to have judges who are 
thoughtful, fair-minded, and respectful. Judge Barrett exemplifies all 
of these traits.
  In conclusion, I believe that the role of the Constitution of advice 
and consent that we talk about here to the Supreme Court nominees to be 
one of my most important responsibilities here in the Senate. Judge Amy 
Coney Barrett is as qualified for the U.S. Supreme Court as any nominee 
I have encountered in 34 years here, and I have the utmost confidence 
that she will serve the Court and this country with honesty and 
integrity. I look forward later today to voting to confirm her 
nomination and encourage my colleagues to do the same.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CASSIDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                     Breast Cancer Awareness Month

  Mr. CASSIDY. Mr. President, I had the privilege to speak on the 
nomination of Amy Coney Barrett a couple of days ago, for her 
qualifications and the uniqueness she will bring to the Court, which 
will serve our country well. Today, I would like to speak on a 
different topic.
  October is Breast Cancer Awareness Month, and I rise to pay respect 
to those who have lost their lives, to those who currently have 
disease, and to those who work so hard to save these patients.
  A little personal--my wife, Dr. Laura Cassidy, is a retired breast 
cancer surgeon, so it is an issue which has always been very near to 
our house.
  This year, it is estimated there will be almost 280,000 new cases of 
invasive breast cancer among women and about 2,600 among men--often not 
realized that men are affected as well. About 49,000 women are 
estimated to contract ductal carcinoma in situ, or so-called DCIS. 
About 43,000 Americans every year will die from breast cancer.
  Breast cancer, of course, is hardest on the patient, but the 
diagnosis has a ripple effect through the family. I mentioned that my 
wife Laura is a retired breast cancer surgeon, and she would tell me 
that when she would deliver the diagnosis to a patient, she would look 
at the woman and say: ``You have breast cancer.'' The patient would be 
stoic, and her husband would cry. It points to the fact that while 
cancer is a terrible diagnosis for anyone, when that ``anyone'' happens 
to be the center of a family, it radiates out from her diagnosis to 
touch everybody in her immediate family, in the generation above, and 
perhaps the generation below.
  We have been inspired to make gains against cancer in general but 
against breast cancer in particular for the centrality that women play 
in our society and, of course, the deadliness of breast cancer.
  So it takes courage to address the disease if you have a diagnosis, 
and resiliency and determination just seem to develop in those who are 
so diagnosed.
  The support of family and friends means a lot more to the patient 
than the family will ever know, so I encourage those who know somebody 
with breast cancer in particular that I am speaking of but any form of 
cancer to reach out. Simply being there could make a tremendous 
difference in the fight to survive.
  Let me say, there is always hope. In addition to early detection, 
there are steps that people can take to reduce their risk of 
contracting breast cancer. Age is the primary risk--no, the primary 
risk factor, my wife used to say when speaking to a crowd, the primary 
risk factor for breast cancer is being a woman, to emphasize that all 
women have a risk for breast cancer. So don't just say that because I 
am not this or that, I am not at risk. Recognize that all women have a 
  Age would be the next risk factor, being that the older you are the 
more likely that you can develop it. Women who have children after age 
35 may be at higher risk. The more children a woman gives birth to may 
lower risk. But, again, the primary risk of breast cancer is being a 
woman. So every woman should take the disease seriously and take steps 
to reduce her risk for developing breast cancer, increasing the chances 
that it is detected if she does develop it, and increasing the chance 
for a successful treatment if it does develop.
  There are steps you can take to reduce the risk. Regular exercise can 
reduce the risk by as much as 20 percent. Breast feeding lowers the 
risk of breast cancer. Eating fruits and vegetables, especially 
carotenoids, which are in carrots, as you might guess from 
``carotenoids,'' avoiding obesity, moderation in drinking alcohol--all 
can reduce risk, and all should be practiced.
  Although a cancer diagnosis can be shocking, again, you can do things 
to detect it at an earlier stage and improve the chance of a successful 
outcome. The American Cancer Society advises women 40 to 44 to consult 
with their doctor for regular clinical exams and on guidance as to when 
it is best to have a mammogram. Women who are 45 to 54 should have an 
annual mammogram, and those older than 54 and in good health should 
have a mammogram every 2 years. But, again, check with your doctor. All 
of these need to be customized for the patient.
  Patients should also do self-exams for warning signs. This could be a 
change in the look or feel of the breast or possible discharge from the 
nipple. The presence of a lump, swelling, discoloration, and changes in 
size and shape are common signs. If these are present, she should 
consult with her healthcare provider.
  If someone doesn't know how to do a breast self-exam, look on the 
internet. There are all kinds of resources that can help somebody know 
if they are just not sure how to do it.
  Lastly, the treatments for breast cancer continue to improve. The 
surgical radiation therapy and medical therapies are improving every 
year. A diagnosis of breast cancer is not a death sentence; it is the 
beginning of a treatment regimen which can cure.
  Now, by the way, let me diverge just a second from October being 
Breast Cancer Awareness Month to the contemporary thing we are speaking 
  My Democratic colleagues on the floor have been imagining how a 
Justice Amy Coney Barrett would rule on various topics--frankly, saying 
things that are designed to cause fear, and they are doing it for 
political gain. But I think everybody on this side of the aisle--all 
Republicans have a commitment to make sure that all Americans have 
healthcare and that they have coverage for preexisting conditions.
  I am a doctor who worked in the public hospital system for many 
years, but some stories particularly stand out. This is a patient of my 
wife's, and she was probably about 45 and had three children. Her 
husband had died or they divorced--I forget which. They lived in

[[Page S6558]]

a very nice neighborhood in my hometown of Baton Rouge. She drove a 
nice car. But when her husband left, however he left, she had decisions 
to make, and she made the decision to go without health insurance so 
she could afford other things for her family.
  At some point along the way, she felt a lump in her breast, but 
without health insurance, she didn't know what to do. My wife was a 
breast cancer surgeon in private practice, but eventually someone 
connected this patient with my wife. When she came to see my wife, she 
had waited so long for evaluation that the cancer was growing out of 
her skin. It is called fungating, like a mushroom grows out, except it 
wasn't a mushroom; it was cancer eating through the skin. She had 
everything otherwise--great house, good car, wonderful kids in 
parochial school.
  It is that sort of example that touches us all, that lets us all 
realize that there is a personal reason why we all care about everyone 
having access to healthcare, why we all care about folks having 
coverage for preexisting conditions.
  I give congratulations to my colleague sitting in the chair, the 
Senator from North Carolina, who brought a bill up that would address 
preexisting conditions. But on several occasions, my Democratic 
colleagues have objected to your bill being passed that would protect 
those with preexisting conditions.
  So I will end this paragraph where I began it. As I digress a little 
bit from Breast Cancer Awareness Month in October, I will point out 
that my Democratic fellow Senators raising the issue of preexisting 
conditions in the setting of Amy Coney Barrett seem to be doing it more 
for political gain because the bill that my colleague from North 
Carolina offered would have addressed the issue, but they opposed it 
uniformly, as if they want an issue to campaign on but not a solution 
to the problem.
  So let me conclude. As October comes to a close, let us reflect on 
breast cancer victims not only in the final days of Breast Cancer 
Awareness Month but throughout the year. Know the risk factors, know 
the warning signs, and screen regularly to catch early. Doing so saves 
lives. It is important for the person who may have breast cancer. It is 
important for us all.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.

                           Colorado Wildfires

  Mr. GARDNER. Mr. President, yesterday I came to the floor and spoke 
about the forest fires in Colorado, and luckily we have had a great 
deal of snow on some of the most problematic conflagrations, and it has 
slowed the fires down tremendously and has given us a chance to fight 
back and make some containment progress. So the news on the fire front 
is generally a good-news story today, with more challenges to come down 
the road.

                    Nomination of Amy Coney Barrett

  Mr. President, this morning I come to the floor to talk about the 
nomination of Judge Amy Coney Barrett to be placed on the U.S. Supreme 
Court. That will be the third Supreme Court Justice I have had the 
honor and privilege of voting on this Congress and the previous 
Congress, including Neil Gorsuch, Colorado's own Neil Gorsuch.
  We have heard a lot of discussion about the Federalist Papers and our 
Founding Fathers and the intent and the role of the Senate. The 
language of the Constitution points out that the President shall 
nominate and, with the advice and consent of the Senate, place Justices 
throughout our judiciary.
  We have heard in Federalist 69 by Alexander Hamilton, the President 
is to nominate and, with the advice and consent of the Senate, to 
appoint Ambassadors and other public ministers, Justices of the Supreme 
  In Federalist 69, Hamilton goes on to compare the power of 
appointment that the President has or the Chief Executive has to that 
of the King of Great Britain, even comparing the power of appointment 
to the Governor of New York--Alexander Hamilton in Federalist 69 did--
and he stated that both the King and the Governor of New York at that 
time had a greater power of appointment than the President due to the 
requirement of advice and consent and the ability of the Governor of 
New York to actually cast a vote on the matter himself. To quote 
Alexander Hamilton, ``In the national government, if the Senate should 
be divided, no appointment could be made.'' He pointed out that the 
President has a concurrent authority in appointing offices and the 
President is not the sole author of these appointments.
  It is clear in Alexander Hamilton's writings that this power was 
intended to be diluted; that it was to be balanced amongst the 
Chambers; that the judicial branch was viewed as the weakest of the 
three branches of government, not because it wasn't equal in power but 
because it didn't have some of the mechanisms that the other two 
branches do to protect it.
  While the President makes that appointment, it is this Chamber--the 
sole duty of this Chamber, in the Constitution, to agree or disagree 
with that nomination.
  We saw that disagreement occur in 2016 when this Chamber did not give 
its consent to a nomination. Later, Neil Gorsuch--Colorado's Neil 
Gorsuch--was confirmed to the Supreme Court. And just a matter of a 
little more than a month ago, we lost a trailblazing leader in Justice 
Ruth Bader Ginsburg, leaving open another seat on the Supreme Court 
that we are now asked to fill.
  Federalist 78, also written by Alexander Hamilton, has been 
referenced many times on the floor this past year, and particularly 
during this debate. He wrote about the Constitution being fundamental 
law, that it is the will of the people and that the courts are the only 
true guardians--the only true guardians--of the Constitution; that the 
Constitution is the highest manmade law, that any legislative act to 
the contrary must be held void by the court, since ``the interpretation 
of the laws is the proper and peculiar province of the courts''--that 
it was the guardian of the Constitution.
  When Madison was talking about this in the First Congress, he 
introduced, of course, the amendments that became what we call the Bill 
of Rights today. He said that the courts would ``consider themselves in 
a peculiar manner the guardians of those rights; they would be an 
impenetrable bulwark against every assumption of power in the 
legislative or executive; they will be naturally led to resist every 
encroachment upon rights expressly stipulated for in the Constitution 
by the declaration of rights.''
  That idea of this ``guardian of the Constitution'' that the courts 
play is a hallmark of our democracy today. And whether or not a Justice 
has the support of a Member of this Chamber, I don't believe that 
anyone would deny that role that our courts must play, and that is that 
role as guardian of the Constitution.
  It is clear in the confirmation hearing for Judge Barrett that some 
people believe the guardian of the Constitution takes on a different 
hue, that there is more to that role than simply looking at the law and 
making a decision based on the law. As some called it--I believe it was 
Justice Scalia and perhaps paraphrased by Justice Gorsuch--a judge's 
role is to call balls and strikes. I would add to that it is not their 
role to call the pitch.
  But what we saw during the Judiciary Committee hearings, of course, 
was a viewpoint of some that a judge should be more than calling balls 
and strikes. A judge should be, in effect, a super legislator; that a 
judge should accomplish things that this Chamber, this Congress, has 
failed to do; that if there is a shortcoming in a policy, a judge or 
Justice would look the other way and fill in that policy or write that 
policy or proactively create that policy.
  That is, again, going back to what we have known throughout this 
country as the guardians of the Constitution. The guardians of the 
Constitution don't make up policy. They don't fill voids of new 
policies that the legislators didn't do or couldn't do because they 
couldn't get it through their Chamber. So they decided they would count 
on a judge to do it somewhere else. That is not the role of the courts. 
It is certainly not the role of a guardian of the Constitution.
  A guardian of the Constitution is somebody who looks at the law and 
makes decisions on the law and upholds and protects that will of the 
people, the fundamental law of the people. And, of course, an activist 
judge--an activist Justice--would be reaching

[[Page S6559]]

into the law to fit their own personal opinion or beliefs to craft 
something that they believe is perhaps more in line with what they 
thought somebody wanted and more in line with their own opinions, 
instead of looking at that letter of the law.
  I think it is important that we keep in mind that that is not the 
role of the courts. If this Chamber can't pass a policy or a law, if it 
can't have its own victory in carrying the day in an argument, it is 
not up to a judge or a Justice to fill in the blank. They have to rule 
and carry out the law.
  So that is a real key distinction that we saw during the Judiciary 
Committee debates--that role of policymaker that some wish Judge 
Barrett to be versus that role of protector, that guardian of the 
Constitution, calling balls and strikes.
  I look at any nominee for the courts, whether it is for district 
court or appellate court or the Supreme Court, through this lens: Are 
they going to protect that Constitution? Are they going to uphold the 
Constitution? Are they going to fight and defend and be the guardian of 
the Constitution? Are they going to protect and do the same with the 
law, outside of the Constitution--the laws, the statutes that this body 
enacts and passes and are signed into law by the President? Will that 
judge or Justice uphold and defend that law--not make that law, not 
change that law but uphold the law? And, of course, there is that 
guardian of the Constitution role that they will play.
  There is no doubt that Judge Barrett's qualifications are immense. 
Her qualifications as a member of our great American community and 
somebody with a beautiful family is mind-boggling. Jaime and I have a 
challenge with our three kids, making sure they get to school on time 
and making sure they are getting their homework done. I can't imagine 
seven children, while also carrying the schedule that their family 
does. But it is a testament to the incredible power and the leadership 
of their family and their dedication to being upstanding citizens of 
this Nation and giving back to this Nation with this new pursuit.
  We know about that key intellect that has been shared with this 
country over the last several years in the Seventh Circuit Court of 
Appeals. We know of her time as a law professor, and we have had the 
opportunity to look over a decade-plus worth of work.
  We know that she is a person of faith in our community and has come 
under incredible attacks because of that faith. We know in this Chamber 
that our Constitution actually forbids the kinds of attacks that we 
have seen on her faith. Our Constitution makes it clear that there is 
no religious test. Our Constitution actually makes it very clear that 
you cannot vote or deny public service appointment to someone because 
of their religious beliefs.
  We have seen it done. We have seen it tried, especially over the last 
Congress. We saw it done at the Budget Committee with the nomination of 
Russ Vought to be the deputy director of the Office of Management and 
Budget, when a colleague of ours basically said that because of his 
deeply held Christian beliefs that he was not qualified to be a public 
servant in this country.
  I hope the American people are hearing what is happening in some of 
these debates, that Amy Coney Barrett is attacked because of her faith. 
But it is not just limited or isolated to her. There are others who are 
more and more accustomed, or who feel more and more empowered, 
emboldened to use a person's faith to deny them their vote to 
a position in our government. That is an unconstitutional test that 
some in this Chamber are starting to rely on, and I hope the American 
people will use this opportunity to see through it, to reject it, and 
to get back to the values of our Constitution and the intent of that 

  I had a conversation with Judge Barrett. I had a chance to visit with 
her, and I talked about those three qualifications to uphold the 
Constitution. Will you fight to protect the Constitution? Will you 
protect the law? And will you avoid being that activist legislator? 
Will you avoid legislating from the bench? And I received her 
commitment. That is exactly the kind of judge that she will be, 
somebody to be that guardian of the Constitution, the protector of law, 
and to call balls and strikes.
  I talked to her about the importance that I know that the vote that I 
cast for her is something that matters not just next year or the next 
year but 10 or 20 years from now, as she is on that Court and that that 
same view will remain, and she assured me that it will because of the 
same reason that I want it to. That is the future of our kids and their 
kids, and she knows it means everything to her children as well--to 
protect our Nation's laws and Constitution and to avoid that attempt, 
that desire, that pull at the heart to legislate. Even if you want to 
come out with an opinion that is different than your own interpretation 
of the law, you have to follow the law, and that is what she has 
assured me she has done. She has assured me that there are moments in 
rulings that she has issued that she would have preferred a different 
outcome personally, but that is not what the law required, and that is 
why she ruled the way that she did.
  In talking to my colleagues on the Judiciary Committee, they talked 
about her understanding of the law, and in watching the hearings, you 
could sense the deep commitment and devotion to the law. There was a 
time several decades ago, when President Ronald Reagan went to 
introduce Justice Sandra Day O'Connor to a group of Federal judges at 
the White House, and Ronald Reagan in his speech talked about what it 
means to be a judge. He talked about the exacting standards of 
integrity and fairness and intellect that are required for a Federal 
judgeship--that it provides reassurance to all of us that our ideals of 
liberty and justice are alive and well.
  He went on to talk about the most important quality that we could 
have in a judge, and that was wisdom. That wisdom is the quality that 
we look for most, and I think you could sense a great deal of wisdom in 
Amy Coney Barrett.
  He went on to say that we demand of our judges a wisdom that knows no 
time, has no prejudice, and wants no other reward. We entrust judges 
with our ideals and freedom, and our futures depend on the way that 
judge defines them. It requires the lonely courage of a patriot. And he 
went on to say: A judge is a guardian of freedom for generations yet 
  So, I hope that my colleagues will support the nomination of Amy 
Coney Barrett. If you could take the politics out of the place, she 
would probably have a unanimous vote. Unfortunately, the politicization 
of this nomination is going to prevent that. But I just urge my 
colleagues to look past the politics, to look past the partisanship, 
and to vote for a truly qualified justice who is committed to the law 
and to the Constitution, who is committed against activism on the 
bench, and who will make sure that our country, for generations to 
come, has a protector of that guardian of the Constitution with the 
wisdom to get the job done.
  I urge my colleagues to support Justice Amy Coney Barrett, and I am 
honored, in just a few hours, to know that I will be able to cast a 
vote in support of soon-to-be Justice Amy Coney Barrett.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Gardner). The Senator from North Carolina.
  Mr. TILLIS. Mr. President, I thank my staff, Elliott--who is on the 
floor--Brad, Cirilo, Seth, and Brad for all the work that they have 
done as we have gone through the nomination process.
  I was reviewing my prepared remarks this morning, and then I 
reflected back on a very important moment during the Judiciary 
Committee hearing where Senator Cornyn asked--he said: You can see, 
among all of us, we have three-ring binders; we have staff behind us; 
we have taken weeks to prepare; and you are about to go through some 20 
hours of questions, would you mind sharing with us your notes? She 
looked at a blank notepad that was given to her by the chairman. It had 
nothing on it.
  She came to that committee fully prepared to answer any question from 
the 22 members of the Judiciary Committee purely from what is up there, 
and she did an extraordinary job.
  The reason she did an extraordinary job is because she has had an 
extraordinary career, beginning as a student, then going to Rhodes 
College, where she was magna cum laude, then going to Notre Dame School 
of Law, where she graduated first in her class.

[[Page S6560]]

  She went on to be a professor at Notre Dame, and she was, multiple 
times, voted the Distinguished Professor by a broad spectrum of liberal 
and conservative students.
  She has also proven as a judge, with some 600 cases going through the 
Seventh Circuit, that she has an encyclopedic knowledge of that law. 
There were so many times when members on the other side of the aisle 
would try to trip her up or ask her a question. She had no notes to 
refer to. She got the specifics of the case right.
  What she demonstrated throughout the entire hearing process, which I 
attended, was that she interprets--she does her job by doing two 
things: looking at the plain letter of the Constitution, understanding 
the limits that the laws can have within the bounds of the 
Constitution, and rule accordingly.
  Now, our colleagues on the other side of the aisle of the Judiciary 
Committee were constantly--it was clear to me, after weeks of attacking 
Amy Coney Barrett, not directly but through surrogates, that they were 
trying to demonize this person before she ever came before the 
committee, like they did with Justice Kavanaugh. But each and every 
time they asked her a question, she brought them back to the boundaries 
of the Constitution and the question of law before, in her case, the 
circuit court, and there was just no way to trip her up.
  So then what happened? Then they started talking about how you are 
going to go to the Supreme Court, and you are going to overturn the 
Affordable Care Act. They asked her questions that they knew she 
couldn't answer. Justice Ginsburg, pursuant to the Ginsburg rule--they 
had no intention--no responsible judge would go before the Judiciary 
Committee and tell you how they are going to rule on a future case. It 
is actually a violation of their code of conduct.
  So she told them in so many instances--and what was interesting with 
some of the members on the other side of the aisle was, on the one 
hand, they would say: You cannot overturn this precedent or that 
precedent, and in the same breath, they would say: But we want to make 
sure you overturn this precedent or that precedent. And every time, Amy 
Coney Barrett was calm and composed and demonstrated to everybody in 
that committee that she is going to be objective; she is going to be 
fair; and she is going to stay within the lines of the Constitution and 
the matter of law that is before her.
  Now, I think that it is very important to have a judge like that on 
the Supreme Court. Our religious freedoms are at stake. Our Second 
Amendment rights are at stake. We do have people who want activist 
judges. I don't want an activist judge, period--not for a conservative 
cause or a liberal cause. I want a judge whom I know that if I someday 
go before the Supreme Court--or any American--that I have a judge there 
who is going to be fair, who is going to be thoughtful, who is going to 
be impartial, and who will always have a concern for both sides of the 
argument, but at the end of the day, know that they have a 
responsibility to judge objectively.
  I have had a couple of opportunities to meet with Amy Coney Barrett. 
In the last meeting that I had with her in the Capitol, just a few 
steps away from where we are right now, I brought two pocket 
Constitutions with me. I said: I have two granddaughters--one will be 3 
next week; the other one is a little over 2 months old. I said: Would 
you mind signing these Constitutions for Sawyer and Willow, my 
granddaughters? She said: Certainly. She opened it up, she signed her 
name and just said: ``Dream big.''
  When they get a little bit older--they are not old enough yet--I am 
going to get them to understand the significance of that quick note 
from an incredible jurist, somebody who dreamed big and realized her 
American dream--a mother of seven school-aged children, two adopted 
from Haiti, one with special needs
  She is going to be the first Supreme Court Justice female on the 
Supreme Court with school-age children. She has seven of them. She is 
able to manage the stresses and the challenges of being a working mom 
while she served with distinction on the Seventh Circuit and while her 
husband worked as well. She has realized her American dream. I believe 
that she is going to make sure that everybody else has the freedoms to 
do the same thing.
  I think Judge Amy Coney Barrett is going to go down in history as one 
of the great Justices on the U.S. Supreme Court.
  It is a shame, as the Presiding Officer just said in his comments a 
moment ago, that this is even a divided decision. In a less political 
time than we find ourselves today, I suspect that she would have the 
unanimous support of this body, much the same way that Justice Ginsburg 
did when she came before the Senate.
  But, today, I am looking forward to voting for Judge Amy Coney 
Barrett. I am looking forward to watching her build on what is already 
a very strong legacy. I am looking forward to making sure that we 
continue to have a Court that is independent, impartial, focuses on 
protecting all of our constitutional rights and freedoms. And I know, 
without a doubt, Amy Coney Barrett is going to be one of those stewards 
in the U.S. Supreme Court
  I rise today to express my strong support for the confirmation of our 
next Supreme Court Justice, Judge Amy Coney Barrett. Over the last few 
weeks, I have heard from thousands of North Carolinians asking me to 
vote to confirm Judge Barrett to the Supreme Court.
  Judge Barrett is an incredibly qualified nominee.
  She is a top-notch legal scholar and jurist. She is widely respected 
within the legal community, and after three days of intense questioning 
by the Senate Judiciary Committee, I can see why she is so widely 
respected and why all of her former law school colleagues at Notre Dame 
Law School support her nomination.
  I was especially impressed with her composure and impressive 
knowledge of the law as she answered unfounded allegations about her 
judicial record from Democratic members of the committee, and shameful 
smears radical liberals. The way she handled this process I am more 
convinced than ever that she clearly has the judicial temperament 
required to serve as a Justice on the U.S. Supreme Court.
  Her answers made clear that she will be unbiased and fair to every 
party that comes before her. She made clear that she will interpret the 
law as written, without regard for her personal views or feeling, and 
will not be a legislator from the bench. Legislating is our job, not 
  She is truly a textualist in the mold of Justice Scalia.
  Her commitment to applying the law as written, and not legislating 
from the Bench, should be the standard for every nominee. I am 
confident that with Judge Barrett on the Court, Americans can rest easy 
knowing their religious liberty and second amendment rights are secure.
  Soon, I will cast my vote to confirm Judge Barrett, as Justice 
Barrett. But first, I must also address the dangerous rhetoric from my 
Democratic colleagues.
  First, they claim this nomination is somehow illegitimate. That is 
false. If the media wasn't so biased this claim would be dismissed 
outright. As Justice Ginsburg said, a President is elected for 4 years, 
not 3. President Trump fulfilled the duty he owes to the millions of 
Americans who elected him in 2016.
  Similarly, voters elected a Republican majority to the U.S. Senate.
  Voters expanded that majority in 2018, and now we are fulfilling the 
duty we owe to those voters by voting on Judge Barrett's nomination.
  My Democratic colleagues are also threatening to pack the Court if 
they take control of the Senate and White House. Just as Democrats 
misrepresented Judge Barrett's record, they are misrepresenting what it 
means to pack the Court.
  Packing the Court means adding more seats to the Supreme Court and 
then immediately nominating and filling these new seats with radical 
liberal activists. They would add seats until there is an activist 
liberal majority on the court. And the reason is simple: they want the 
Court to legislate from the Bench and impose their socialist agenda on 
the country through fiat, instead of working through the Democratic 
  This would wholly undermine and delegitimize the Court. Justice 
Ginsburg agreed. She said that ``nine is a

[[Page S6561]]

good number'' and that packing the Court is a bad idea.
  Democrats need to be honest with the American people. The American 
people deserve to know where they stand on Court packing, and they 
deserve to know what liberal activist judges Joe Biden would nominate 
if he were President.
  Personally, I am thankful Judge Barrett was willing to answer the 
call to serve our country. Just like Justice Ginsburg was an 
inspiration to so many, Justice Barrett will be a role model for young 
women, like my two granddaughters, who may one day aspire to go to law 
school or serve their country.
  I look forward to voting soon to confirm her, and I would ask all my 
colleagues to join me and do the same.
  Thank you. I yield back.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Mr. President, I rise in opposition to the pending 
confirmation vote of Amy Coney Barrett to be an Associate Justice of 
the Supreme Court to fill the vacancy created by the death of Justice 
Ruth Bader Ginsburg, whom we lost in September of this year. Justice 
Ginsburg was a champion of women's rights and civil rights, and she is 
going to be sorely missed on that Court.
  Article II, section 2 of the Constitution provides that the 
``President shall nominate, and by and with the Advice and Consent of 
the Senate, shall appoint . . . Judges of the Supreme Court.'' One of a 
Senator's most solemn responsibility is to evaluate the nominee's 
qualifications as well as the process the Senate uses to provide their 
advice and consent for a lifetime appointment to our highest Court. I 
believe, on both substance and process, this nomination should be 
  First, on process. Let's talk about fairness. Let's talk about the 
integrity of the Senate. Let's talk about living up to your own words. 
Let's talk about using the same rules for Republicans that you use for 
  Let me remind my colleagues what happened in 2016 in the Senate 
during President Obama's final year of a term in office in a 
Presidential election year. Justice Scalia died in February of 2016. 
Within just a few hours after the death of Justice Scalia, Leader 
McConnell unilaterally announced that the Senate would not consider a 
replacement for Justice Scalia until after the November 2016 
Presidential election, which established a yearlong vacant Supreme 
Court seat.
  The Republican leader's action, backed by his caucus, set a very 
clear precedent: Under no circumstances do Senate Republicans consider 
a Supreme Court nominee in a Presidential election year.
  It did not matter that in March 2016, President Obama appointed 
Merrick Garland, a respected DC Circuit judge, with bipartisan support. 
They would not meet with Judge Garland, hold a hearing, or allow a vote 
on him for 293 days.
  In 2016, the Presidential election was nearly 9 months away. Four 
years ago, our Republican colleagues said: 9 months was not time 
enough. Leave it up to the voters. We will do this whether it is a 
Democrat or Republican in the White House.
  The Republican leader, Mitch McConnell, said:

       Mr. President, the next Justice could fundamentally alter 
     the direction of the Supreme Court and have a profound impact 
     on our country, so of course--of course the American people 
     should have a say in the Court's direction. . . . The 
     American people may well elect a President who decides to 
     nominate Judge Garland for Senate consideration. The next 
     President may also nominate somebody very different. Either 
     way, our view is this: Give the people a voice in filling 
     this vacancy. . . . The American people are perfectly capable 
     of having their say on this issue, so [let's give] them a 
     voice. Let's let the American people decide. . . . The 
     American people should have a voice in selection of the next 
     Supreme Court Justice. Therefore, this vacancy should not be 
     filled until we have a new President.

  That was the Republican leader.
  Several Judiciary Committee members made similar statements after the 
death of Justice Scalia. Senators Grassley, Graham, Cornyn, Lee, and 
Cruz signed a letter to Leader McConnell, which read, in part as 

       [W]e are in the midst of a great national debate over the 
     course our country will take in the coming years. The 
     Presidential election is well underway. Americans have 
     already begun to cast their votes. As we mourn the tragic 
     loss of Justice . . . Scalia and celebrate his life's work, 
     the American people are presented with an exceedingly rare 
     opportunity to decide, in a very real and concrete way, the 
     direction the Court will take over the next generation.

  The letter from my Republican colleagues concluded:

       We believe The People should have the opportunity. . . . 
     Because our decision is based on constitutional principle and 
     born of a necessity to protect the will of the American 
     people, this Committee will not hold hearings on any Supreme 
     Court nominee until after our next President is sworn in on 
     January 20, 2017.

  Current Judiciary Committee Chairman Graham explicitly addressed this 
point in 2016. In March 2016, Senator Graham, then a member of the 
Judiciary Committee, said:

       I want you to use my words against me. If there is a 
     Republican President in 2016 and a vacancy occurs in the last 
     year of the first term, you can say, Lindsey Graham said let 
     the next president, whoever it might be, make that 
     nomination. You can use my words against me, and you'd be 
     absolutely right.

  We are setting precedent here today--Republicans are--that in the 
last year of a Presidential term, you are not going to fill a vacancy 
on the Supreme Court based on what we are doing here today. That is 
going to be the new rule.
  I have repeatedly stated that the election cycle is well underway, 
and the precedent of the Senate is not to confirm a nominee at this 
stage of the process. By the way, Senator Graham reaffirmed that in 
  In the case of Justice Ginsburg's death and vacancy in 2020, we are 
about 40 days away from a general election--not 9 months. Mail-in 
voting in record numbers has already begun in several States. And, of 
course, early voting has started in many States also. We are proceeding 
to a final vote on this nominee for a lifetime appointment just days 
before election day. Americans, millions of Americans, have already 
cast their ballots.
  Once again, within hours of Justice Ginsburg's death, Leader 
McConnell unilaterally decreed that the Senate would fill the vacancy 
before the election. Leader McConnell said that ``President Trump's 
nominee will receive a vote on the floor of the Senate.''
  So I implore my Republican colleagues to stop this blatant hypocrisy 
now. Let's follow the McConnell rule and let the American people pick 
the next President and Senate so they can weigh in on this decision, 
just as Senator McConnell argued in 2016, when President Obama 
nominated Merrick Garland for Justice Scalia's seat.
  Let the Senate honor Justice Ginsburg's legacy by continuing to fight 
for the rights she fought for her entire career, both as a litigator, a 
circuit judge, and, finally, as a Supreme Court Justice. Let us honor 
Justice Ginsburg's dying wish: ``My most fervent wish is that I will 
not be replaced until a new President is installed.''
  President Trump's agenda is quite clear when it comes to a tragedy 
for the Supreme Court. President Trump has repeatedly said he would 
appoint Justices in the mold of Justice Scalia. As President Trump said 
on the campaign trail, when asked what kind of Justice he would 
nominate, ``We're going to have a very strong test. We want . . . 
strong conservative people that are extremely smart. Scalia is a 
terrific judge. Clarence Thomas, you look at him, he's been a stalwart, 
he's been terrific, and we have others.''
  President Trump also talked about the type of Justices he did not 
like when on the campaign trail. He said:

       I'm disappointed in Roberts because he gave us Obamacare. 
     He had two chances to end Obamacare, he should have ended it 
     by every single measurement and he didn't do it, so that was 
     a disappointing one. Everybody thought he was good, he was a 
     Bush appointee, he was somebody that should have, frankly, 
     ended Obamacare, and he didn't.

  When President Trump announced Judge Amy Coney Barrett's nomination 
to the Supreme Court, Barrett herself highlighted the ideological 
parallels between her and her mentor, Justice Scalia. She said about 
Justice Scalia: ``His judicial philosophy is mine, too.''
  Judge Barrett was a Supreme Court clerk for Justice Scalia. Justice 
Scalia was one of the most staunchly conservative members of the 
Supreme Court.

[[Page S6562]]

Justice Scalia voted to strike down key parts of the Affordable Care 
Act. He frequently called for overturning Roe v. Wade. He opposed 
marriage equality. He voted to gut the protections for voting rights in 
the Shelby case. He voted to gut our campaign finance laws in the 
Citizens United case.
  He made it harder for workers discriminated against by their 
employers to seek justice in court and further stacked the deck in 
favor of wealthy business owners and corporations over working-class 
  By nominating Judge Barrett, President Trump is attempting to bring 
Justice Scalia's judicial philosophy back to the mainstream in our 
Nation's highest Court. Placing Judge Barrett on the Supreme Court puts 
at risk so many of the rights and protections Americans have fought for 
and gained.
  So let's look at how the law could change if Judge Barrett is 
confirmed. That is the second reason to oppose this nomination--her 
judicial philosophy--in addition to the flawed process.
  You cannot always predict how a Supreme Court Justice will act after 
her confirmation, but Judge Barrett has given us clear views on her 
philosophy. So many American rights are on the line, but let me start 
by talking about the Affordable Care Act.
  Judge Barrett has made her views quite clear about the Affordable 
Care Act. In a 2017 law review article, she concluded that the ACA is 
unconstitutional. She wrote: ``Chief Justice Roberts pushed the 
Affordable Care Act beyond its plausible meaning to save the statute.''
  Judge Barrett argued that Chief Justice Roberts' approach to NFIB v. 
Sebelius, which was joined by Justice Ginsburg, ``express[ed] a 
commitment to judicial restraint by creatively interpreting ostensibly 
clear statutory language'' and that ``its approach is at odds with the 
statutory textualism to which most originalists subscribe.''
  In another Supreme Court case, King v. Burwell, the Supreme Court, in 
the 6-3 decision joined by Justice Ginsburg, affirmed health insurance 
tax credits for millions of families. Nearly 9 million Americans depend 
on these tax credits for coverage.
  Barrett criticized the decision, stating:

       I think the dissent has the better of the legal arguments.

  Elsewhere, she wrote:

       Justice Scalia, criticizing the majority's construction of 
     the Affordable Care Act in NFIB v. Sebelius and King v. 
     Burwell, protested that the statute known as ObamaCare should 
     be renamed ``SCOTUScare'' in honor of the Court's willingness 
     to ``rewrite'' the statute in order to keep it afloat. . . . 
     By this measure, it is illegitimate for the Court to distort 
     either the Constitution or a statute to achieve what it deems 
     a preferable result.

  It is clear to me--and it should be clear to all of us--that Judge 
Barrett has a clear bias against the Affordable Care Act. President 
Trump has repeatedly stated that he would appoint judges who would 
overturn the ACA and has consistently done so in terms of his appellate 
and trial court nominations. Judge Barrett appears to meet President 
Trump's litmus test.
  I mention these cases to underscore the importance of the Supreme 
Court Justice in the lives of all Americans. So much is at stake in the 
filling of Justice Ginsburg's vacancy. Your healthcare is literally on 
the line.
  The Affordable Care Act that President Trump has tried to repeal and 
that Republicans tried to repeal in this body but have failed, they are 
now going to take it to the Supreme Court. A hearing is scheduled this 
November 10 in the case of California v. Texas, just 1 week after the 
general election.
  This is a real risk for tens of millions of Americans who depend on 
the law for their healthcare coverage and other benefits. Twenty 
million Americans could lose their healthcare, and people with 
preexisting conditions could lose those protections. That is 133 
million Americans, during the coronavirus pandemic. That is what is at 
  We are talking about pregnancy, cancer, diabetes, high blood 
pressure, behavioral health disorders, high cholesterol, asthma, 
chronic lung disease, heart disease, and numerous others that have been 
held to be preexisting conditions before the protection in the 
Affordable Care Act. And you can now add COVID to those preexisting 
conditions for 8 million Americans and counting. That protection is in 
the Affordable Care Act. This is on the line before the Supreme Court 
this November.
  If the Affordable Care Act is struck down, insurers could bring back 
annual lifetime limits on coverage. Adults covered by Medicare 
expansion would lose vital health services. Young people would be 
kicked off of their parents' insurance. And insurers could sell skimpy 
plans that don't even cover essential health benefits like prescription 
drugs, emergency room visits, mental health, substance use, and 
maternity care.
  The Affordable Care Act increased access to care for millions who 
were previously uninsured or underinsured. Through Medicaid expansion, 
13 million low-income Americans now have dependable, comprehensive 
health coverage. In Maryland alone, over 1.3 million low-income 
individuals depend on Medicaid, including 512,000 low-income children, 
107,000 seniors, and 152,000 individuals with disabilities. That is 
just in Maryland.
  We must protect the Medicaid expansion population and other uninsured 
and underinsured populations from the Trump administration's effort to 
eliminate their access to affordable care. It is at risk.
  I have similar concerns about women's healthcare issues. Judge 
Barrett has already gone on record in opposition to reproductive rights 
and freedoms. So it is clear to me that she would try to roll back the 
clock on those rights as a Supreme Court Justice.
  In a 2013 speech she entitled ``Roe at 40,'' Judge Barrett explained 
that ``Republicans are heavily invested in getting judges who will 
overturn Roe.'' She wrote that the ``framework of Roe has essentially 
permitted abortion on demand, and Roe recognizes no state interest in 
the life of a fetus.'' In a 2003 article, Judge Barrett suggested that 
Roe v. Wade was ``an erroneous decision.''
  Recall that President Trump has already said he would only nominate 
justices who would ``automatically'' overturn Roe v. Wade. Judge 
     Barrett appears to have met this litmus test as well.
  Indeed, Judge Barrett may hold an even more extreme record when it 
comes to reproductive rights than I have already stated. She refused to 
say at her confirmation hearing whether Griswold v. Connecticut was 
rightly decided, in which the Court held that the Constitution 
guarantees a right to marital privacy and that a law criminalizing the 
use of contraception violated that right.
  Now, note that Justices Roberts, Alito, Kagan, and Kavanaugh all 
discussed the Griswold case at their confirmation hearing. Yet Judge 
Barrett said that Griswold's correctness ``is something I cannot opine 
  Judge Barrett's views on immigration also raise concerns. Our most 
vulnerable individuals are at risk as well with the naming of a new 
Justice to the Supreme Court. Let me talk about one specific group.
  On June 18 of this year, in a 5-4 decision written by Chief Justice 
Roberts and joined by Justice Ginsburg, the Supreme Court held that the 
Department of Homeland Security violated law when it rescinded the 
Deferred Action for Childhood Arrival, or DACA, Program.
  There are approximately 643,000 DACA recipients--these are our 
Dreamers--in the United States, and approximately 29,000 are healthcare 
workers and essential workers who are serving us during the COVID-19 
pandemic, who have saved lives and eased suffering.
  But for the 5-4 decision, those individuals' lives could have been 
totally disrupted, and they could have been ordered to leave our 
country. These are individuals who know no other home but the United 
States of America. They are our neighbors and friends. The next Justice 
could very well determine the fate of the Dreamers.
  Unfortunately, Judge Barrett already has demonstrated a judicial 
track record which is hostile to immigration. In Cook County v. Wolf, 
Judge Barrett authored the dissenting opinion from a ruling that struck 
down the Trump administration's cruel ``public charge'' rule. The rule 
basically penalized immigrants for exercising their legal rights to use 
benefits that Congress has made available.

[[Page S6563]]

  And in the case of Yafai v. Pompeo, Judge Barrett wrote the majority 
opinion and held that U.S. consular officials have virtually unchecked 
authority to deny visa applications to those seeking entrance to the 
United States. It was pointed out in the minority opinion that the 
majority has created a constant ``dangerous abdication of judicial 
responsibility'' that would lead immigration officials to deny visas on 
the basis of ``impermissible bias.''
  So let me turn to the rights of the LGBTQ community. In the 
Obergefell v. Hodges case joined by Justice Ginsburg, the Supreme Court 
held that the Constitution guarantees same-sex couples the right to 
marry, in a 5-4 decision. Unfortunately, Judge Barrett has demonstrated 
hostility to marriage equality and to LGBTQ rights more generally. In 
speeches, Judge Barrett seemed to be critical of the Supreme Court's 
decisions in Obergefell, indicating that she was worried about the 
``who decides'' question when it comes to the courts or legislatures 
deciding who can marry and start a new family.
  But fundamental rights under the Constitution should not be up for 
debate. Every American should have the same rights, benefits, and 
obligations of marriage regardless of their gender or who they love. 
Notably, Judge Barrett referred to sexual orientation as ``sexual 
preference'' in her testimony, implying that sexual orientation is a 
choice instead of an immutable characteristic.
  As Justice Kennedy concluded in Obergefell:

       No union is more profound than marriage, for it embodies 
     the highest ideals of love, fidelity, devotion, sacrifice, 
     and family. In forming a marital union, two people become 
     something greater than once they were. As some of the 
     petitioners in these cases demonstrate, marriage embodies a 
     love that may endure even past death. It would misunderstand 
     these men and women to say they disrespect the idea of 
     marriage. Their plea is that they do respect it, respect it 
     so deeply that they seek to find its fulfillment for 
     themselves. Their hope is not to be condemned to live in 
     loneliness, excluded from one of civilization's oldest 
     institutions. They ask for equal dignity in the eyes of the 
     law. The Constitution grants them that right.

  I would hope that we agree with Justice Ginsburg, but I am afraid 
that is a view that is not shared by Judge Barrett. Judge Barrett was 
critical, as well, of the extension of civil rights laws to protect 
transgender people, saying at an event that ``it does seem to strain 
the text of the statute to say that Title IX demands it.'' However, the 
Supreme Court held otherwise in Bostock v. Clayton County, where 
Justice Gorsuch, joined by Justice Ginsburg, held for the Court in a 6-
3 decision that the prohibition of employment discrimination on the 
basis of ``sex'' should be read to include gender identity and sexual 
  Judge Barrett has issued several disturbing findings that indicate a 
cramped and narrowed view of civil rights laws designated to protect 
American workers from discrimination based on race or age.
  In EEOC v. AutoZone, Judge Barrett voted against rehearing a panel 
decision that ruled against an African-American employee whose company 
involuntarily transferred him to another store based on race. The EEOC 
had charged that AutoZone had an unlawful practice of segregating 
employees by race when it assigned African-American employees to stores 
in African-American neighborhoods and Latino employees to Latino 
  The dissent argued that the court upheld a ``separate but equal'' 
arrangement that is contrary to the Supreme Court's decision in Brown 
v. Board of Education when the court interpreted the equal protection 
clause of the 14th Amendment to find that separate facilities can't 
really be equal.
  The dissent wrote:

       This case presents a straightforward question under Title 
     VII of the Civil Rights Act of 1964: Does a business's policy 
     of segregating employees and intentionally assigning members 
     of different races to different stores ``tend to deprive any 
     individual of employment opportunities'' on the basis of 
     race? The panel answered this question ``not necessarily.'' I 
     cannot agree with that conclusion.

  Once again, Judge Barrett was on the side of denying protection 
against racial discrimination.
  In Kleber v. Care Fusion Corporation, Judge Barrett sided with the 
majority that the Age Discrimination in Employment Act only protects 
current employees from discrimination due to disparate impact and not 
outside job applicants--a very narrow view.
  Then there are Judge Barrett's views on gun safety, which I find 
deeply concerning. Judge Barrett's record strongly suggests that she 
would strike down commonsense gun safety laws, even as Congress and the 
States continue to try to combat gun violence, which kills nearly 
40,000 Americans every year.
  According to the Center for American Progress, from 2008 to 2017, 
over 6,200 people were killed with guns in Maryland, and from 2014 
through 2018, there were 42 mass shootings in Maryland, killing a total 
of 45 people and injuring 156. That is just in one State.
  That is just in one State. The next Supreme Court Justice could hold 
the decisive vote should Congress or the States adopt commonsense gun 
safety laws to curb gun violence, such as requiring universal 
background checks, banning assault weapons, or banning high-capacity 
magazine clips.
  In Kanter v. Barr, the Seventh Circuit held that a law barring felons 
from possessing a firearm did not violate the Second Amendment. The 
Supreme Court previously held in the District of Columbia v. Heller 
that the Second Amendment conveyed an individual right to bear arms, 
separate from the right of the militia to do so.
  But even Justice Scalia--Judge Barrett's mentor and President Trump's 
role model for an ideal Justice--wrote in his majority opinion for the 
Court in Heller that ``nothing in our opinion should be taken to cast 
doubt on longstanding prohibitions on the possession of firearms by 
felons.'' Yet Judge Barrett dissented in Kanter and concluded that the 
bar on gun possession should apply only to violent felons. She argued 
that the majority was treating the Second Amendment like a second-class 
right. She went on to note that the government could deny nonviolent 
felons the right to vote but not the right to bear arms because 
``history does show that felons can be disqualified from exercising 
certain rights--like the rights to vote and serve on juries--because 
these rights belonged only to virtuous citizens.'' So ultimately Judge 
Barrett bizarrely seems to treat voting rights as a second-class right 
compared to gun ownership. That is pretty extreme.
  I have always expected that in America, we could move forward in 
protecting individual rights under our Constitution; that in each 
Congress, in each session, the Supreme Court would advance those rights 
for individual protection under the Constitution of the United States. 
The filling of this Supreme Court vacancy could very well reverse a 
trend of protecting rights and deny many in our community their rights.
  The Leadership Conference on Civil and Human Rights has sent a letter 
to the Senate, signed by a diverse group of 150 organizations, in 
opposition to the confirmation of Judge Barrett. The letter urges the 
Senate to ``oppose the confirmation of Judge Barrett and allow the 
president duly chosen in the 2020 general election to fill the existing 
Supreme Court vacancy.''
  Groups opposing the nomination include the Alliance for Justice, 
Human Rights Campaign, NAACP, NARAL Pro-Choice Maryland, National 
Council of Jewish Women, National Employment Law Project, National 
Organization for Women, People for the American Way, SEIU, United We 
Dream, and the Violence Policy Center. The list goes on and on.
  On October 15, 2020, the Leadership Conference reiterated its 
opposition to the Barrett nomination with a letter from over 400 State 
and local officials asking the Senate not to confirm a new Justice 
until after Inauguration Day. The Leadership Conference ends their 
letter by saying: ``It is shameful that, instead, the U.S. Senate is 
rushing through a nominee who is likely to eviscerate the Affordable 
Care Act and deprive millions of people of access to health care, 
destroy reproductive freedom by gutting Roe v. Wade, and suppress our 
right to vote, making it harder for Americans to have their voices 
heard in our democracy.''
  I am gravely concerned that the rushed and sham process the Senate is 
using here will undermine the public's faith in the independence and 
legitimacy of the Supreme Court as a fair and impartial body.
  A group of former Federal judges recently wrote to the Senate:

[[Page S6564]]


       Our citizenry is sharply polarized--a foreboding sign for 
     the health of any democracy. The judicial confirmation 
     process has increasingly become dangerously politicized. 
     Injecting a Supreme Court confirmation fight into this 
     noxious mix will ultimately change and diminish the public's 
     faith in this vital institution.

  Public opinion polling does indeed show that a supermajority of 
Americans want the winner of the upcoming election to fill the current 
Supreme Court vacancy.
  I again reference the Leadership Conference letter opposing Judge 
Barrett, which states ``Judge Barrett's extreme record on the U.S. 
Court of Appeals for the Seventh Circuit, along with her ideologically 
driven writings and speeches, demonstrate that she is incapable of 
rendering equal justice under the law.''
  After reviewing Judge Barrett's full record, statements, and 
committee testimony, I am not convinced that Judge Barrett would 
administer impartial justice and guarantee equal protection of the law 
and equal justice of the law; so therefore I must vote against her 
nomination. She is certainly not a mainstream jurist.
  Let's follow the McConnell rule and let the American people pick the 
next President and Senate so that they can weigh in on the decision, 
just as Senator McConnell argued in 2016 with President Obama's nominee 
of Merrick Garland for Justice Scalia's seat. Let the Senate honor 
Justice Ginsburg's legacy by continuing to fight for the rights she 
fought for her entire career, both as litigator, circuit judge, and 
finally as a Supreme Court Justice. Let's honor Justice Ginsburg's 
dying words: ``My most fervent wish is that I will not be replaced 
until a new president is installed.''
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon
  Mr. WYDEN. Mr. President, everything that has happened since the 
untimely passing of the legendary Justice Ginsburg is a clear reminder 
that much of what goes on in Washington, DC, is simply not on the 
  Right now, our country is hurting--mass death, mass unemployment, 
mass hunger, and suffering among children. The two sides in Congress 
ought to be addressing those challenges together.
  Now more than ever, while so many are so fearful about tomorrow, the 
rules the Senate goes by and the agreements the Senate makes need to 
stand for something. That is how I felt when I negotiated for the $600-
per-week unemployment insurance boost in March.
  The Treasury Secretary for the Republicans agreed to it, but then, at 
the last minute, Republican Senators pretended otherwise and tried to 
vote it out of the bill. Think about that. There was an agreement 
between both sides, and the one thing that Senate Republicans wanted to 
do was to break the agreement and keep workers from getting that extra 
money to pay the rent and the food bill at a time when they had been 
laid off through no fault of their own.
  Another example is unfolding right before our eyes. Until a few weeks 
ago, Leader McConnell and Chairman Graham would have told you it was 
essentially the 11th commandment, carved in stone: No election-year 
Supreme Court appointments. Again, Republicans went back on their word.
  If the cure to COVID-19 was partisanship and rule-breaking, then 
Senate Republicans might be onto something with their low stunt on the 
high Court, but it is not.
  The American people have a much more sensitive radar for unfairness 
than Senate Republicans. When I was home during the 2-week period here 
recently, I went to counties that Donald Trump won decisively and 
counties that Hillary Clinton won in 2016. Folks I talked to in both 
communities, in both areas, said the person who wins the 2020 election 
should be the one who chooses the Court nominee. In this case, the 
American people know what is at stake for them because they see the 
consequences of rule-breaking.
  If Judge Barrett is confirmed and does what Donald Trump has 
repeatedly said he requires of a nominee--help him throw out the 
Affordable Care Act--here is what will happen: Tens of millions of 
Americans will suddenly lose their healthcare during a pandemic. COVID-
19 will become a preexisting condition used by insurance companies to 
once again discriminate against consumers. It will take America back to 
the days when healthcare was for the healthy and wealthy.
  Even the nominee herself shows this process on judicial nominees is 
so dysfunctional and so broken, it doesn't come close to being on the 
level. Amy Coney Barrett may have established herself as the Babe Ruth 
of saying pretty much nothing.
  Now, everybody understands that nominees typically clam up during 
these hearings. I don't expect Judge Barrett to disavow Trump 
healthcare policy. I wouldn't expect to agree with all of a Trump 
nominee's positions. But unfortunately for our country, this hearing 
was a new low.
  For example, one of my colleagues asked whether Judge Barrett was 
aware that the President had committed to nominating judges who would 
throw out the Affordable Care Act--a statement that was part of news 
accounts all across the country again and again and again and again.
  Back in 2015, Donald Trump said: ``If I win the presidency, my 
judicial appointments will do the right thing, unlike Bush's appointee 
John Roberts on ObamaCare.''
  The day after Judge Barrett's nomination, Donald Trump tweeted: 
``ObamaCare will be replaced with a much better and far cheaper 
alternative, if it is terminated in the Supreme Court.''
  But Judge Barrett answered, when my colleague asked about whether she 
had heard about anything resembling Donald Trump's views on this, she 
said: ``I don't recall hearing about or seeing such statements . . . 
that wasn't something that I heard or saw directly by reading it 
myself.'' She also said she couldn't recall whether Senators brought it 
up during their conversations with her.
  I say to the Senate today, does anybody think that was an authentic 
answer? Everybody who occasionally looks at the news knows that Donald 
Trump wants to tear down the Affordable Care Act. He famously promised 
the far right that his judges would take all the far-right positions. 
He routinely attacks Republican-appointed Justices for opinions he 
  The ``never heard it, never saw it'' argument advanced by Judge 
Barrett, that she doesn't follow the news, apparently, at all; didn't 
talk with anybody about the healthcare debate that has been front and 
center in American politics for a long, long time, is hard to mesh. I 
understate this with reality. You don't reach the heights of the 
academic and legal profession by ignoring the news of the day for years 
and years and years on end.
  If you watch Judge Barrett's hearing, it is clear what this ``never 
heard it, never saw it'' argument is all about. It is about denying 
that there is any real threat to the Affordable Care Act to protections 
for preexisting conditions, to cheaper medicines for seniors.
  Judge Barrett certainly put on a hall of fame performance in ducking 
and dodging and weaving her way out of even the simple routine 
questions about existing law, stuff that is guaranteed to come up in 
every nomination hearing.
  For example--this one just stunned me when I heard it. She wouldn't 
say whether Griswold v. Connecticut was decided correctly. That was the 
landmark 1960s case that affirmed the right of married women to have 
access to contraception. It is one of the key Supreme Court decisions 
that gets directly to the right of privacy and to the rights of women 
to make decisions about their own bodies and their own lives. The 
decision in Roe v. Wade follows directly from the decision in Griswold.
  Even Justices Thomas, Roberts, Alito, and Kavanaugh--not exactly the 
leftwing of the American judicial systems--said Griswold was decided 
correctly. Judge Barrett refused. That matters because there is a far-
right campaign working to undo both of those decisions, which would be 
devastating to a woman's fundamental freedoms in our country.
  She dodged serious questions on the legality of in vitro 
fertilization, which has helped millions of parents achieve their one 
dream: having a family.
  She refused to say whether she believes the landmark decision on 
marriage equality was decided correctly. The one case she was asked 
about enshrined marriage equality.

[[Page S6565]]

  She dodged a question on whether U.S. Presidents should even commit 
to a peaceful transfer of power. She went on to say on the issue of 
voter intimidation that she wouldn't answer whether it was illegal. 
That is not an open question. It is a case of black-letter law.
  She was given what I thought was a slam-dunk opportunity to confirm 
that a President cannot unilaterally change the date of the election. 
That one is not open to interpretation. The law is clear that he 
cannot. Judge Barrett wouldn't say so.
  It is not like this nominee has been shy about sharing her views. For 
example, she bashed the opinion by Chief Justice Roberts that upheld 
the Affordable Care Act. She said it ``pushed the Affordable Care Act 
beyond its plausible meaning to save the statute.'' That decision is 
the reason that 130 million Americans with preexisting conditions are 
protected today, why insurance companies can't impose caps on people 
who need costly healthcare, why seniors no longer get stuck in the 
prescription drug doughnut hole bankrupting their savings.
  Judge Barrett put her name on a letter that talked about overturning 
Roe v. Wade because of what it called its ``barbaric legacy.'' She also 
lectured on the subject. She failed to disclose the letter and some of 
her lectures in her disclosure to the Judiciary Committee.
  Again, I understand that nominees are always careful in these 
hearings, but nomination hearings are providing less and less 
substance. That has been the case for a long time. Over the last few 
weeks, Judge Barrett set a new low. Years ago, Chief Justice Roberts 
talked about the job of the Supreme Court Justice and said it was about 
``calling balls and strikes.'' My question is, How can you be trusted 
to call ``balls and strikes'' if you spend your nomination hearing 
playing ``hide the ball?''
  This rush job doesn't qualify as advice and consent. In my view, you 
look at Donald Trump and Republicans rushing this confirmation, you 
look at all the ducking and dodging of basic questions, and it is not 
hard to see the politics behind it. At a moment when there are millions 
of Americans across the country wondering how they are going to pay 
their rent, how they are going to afford medicine, whether they are 
going to be able to safely hug their elderly parents again, Senate 
Republicans are laser-focused on locking in political power over the 
courts. That is what this is all about.
  Senate Republicans somehow think this is a Houdini act, suddenly 
making the threat of the Affordable Care Act disappear. It is not 
working. My view is the American people understand that the rush to 
fill the Ginsburg seat is about a lot more than healthcare.
  Republican nominees for the Court always come before the Senate and 
talk about how it is the text of the laws as written, respecting 
precedent, respecting the original meaning of the Constitution. What 
happens when they join the Bench? They throw out longstanding 
precedents, restrict individual rights, push forward with an agenda 
that favors special interests and the powerful.
  For example, Judge Barrett gutted a consumer protection law from the 
bench by essentially ignoring the text of the law itself, making it 
easier for debt collectors to prey on the vulnerable
  Judge Barrett threw out precedent to deny $332 in damages to a woman 
who was injured in a medical procedure. The woman was actually unable 
to afford a lawyer, and she mistakenly used the wrong word to describe 
the money she was owed. Judge Barrett used that mistake against her.
  She ignored another existing precedent, taking away a jury award from 
a teenager who was repeatedly raped by a prison guard.
  She sided with a company that segregated employees by race.
  In another case, she came up with a twisted interpretation of the Age 
Discrimination in Employment Act to allow discrimination against older 
job applicants. None of that had anything to do with ``calling balls 
and strikes'' or respecting the laws as written. Those rulings favor 
the powerful and corporations over people who don't have clout and 
don't have vast sums of money to protect themselves.
  The President and Senate Republicans have packed the courts from the 
top on down with far-right judges who excuse these kinds of ideological 
rulings. They blocked Democratic judicial nominees for years. They had 
a plan to remove seats from the DC court rather than considering the 
sitting Democratic President's nominees.
  Now, this President has pushed through an immense number of nominees, 
given how many seats Republicans left open through obstruction. Some of 
these judges have been deemed not competent for the job by nonpartisan 
legal groups. It has done incredible damage to the legitimacy and the 
independence of the judiciary. Virtually all of them tell the same 
story about originalism and sticking to the text in the tradition of 
Justice Scalia.
  Justice Scalia is considered to be the ultimate example of what is 
considered originalism. Judge Barrett recently said ``his judicial 
philosophy is mine, too.'' Judge Scalia, in fact, packed his opinions 
with ideology. He wrote that the decision granting same-sex couples the 
right to marry was a ``threat to American democracy,'' that ``robs the 
People of . . . the freedom to govern themselves.'' He wanted to throw 
out the Affordable Care Act. He helped gut the Voting Rights Act in a 
ruling that led to massive voter disenfranchisement.
  What is behind all this talk about originalism and sticking to the 
text of the laws as written is a political agenda, plain and simple, 
taking away people's healthcare, disenfranchising voters and 
entrenching minority rule, giving corporations more power over their 
employees, legalizing discrimination against the LGBTQ community and 
against Black, Hispanic, Asian, and other groups of Americans. It is 
about cementing government control over women's bodies. Republicans 
could never enact these deeply unpopular policies through legislation, 
so they want the Supreme Court to enact their agenda for them.
  I want to close by way of saying that all of this is contrary to what 
Justice Ginsburg spent her career fighting for. It is exactly what the 
big rush to fill the Ginsburg seat is all about and how this process 
torpedoes any opportunity for the Senate to come together on other big 
  My Democratic colleagues and I have been pleading with the majority, 
essentially going and saying, Look, let's work together on a major 
COVID package--virtually pleading that we work in a bipartisan way to 
help people on what I have heard again and again at home is their No. 1 
concern. Mitch McConnell said, however, that it was too complicated to 
get done.
  Last week, I brought forward a bill on enhanced unemployment 
insurance, a lifeline for jobless workers. It was blocked. Two days 
ago, Democrats brought forth a series of bills, including proposals 
addressing domestic violence, election security, and childcare--all 
blocked. This nomination to Senate Republicans comes first, and 
absolutely everything else is on hold, has to wait. We see, really, no 
genuine interest to do the hard work of putting it together.
  This nomination and this process are not on the level. Republicans 
are, again, breaking their word to hand the Supreme Court to the far 
right. I know that because I have heard from so many Oregonians about 
it, Oregonians who are worried about losing their healthcare, their 
vote, and so many of their fundamental freedoms. They are worried about 
what this means for the future of the country.
  This debate is about the Ginsburg seat. Justice Ginsburg was not just 
an iconic fighter for the rights of the powerless and the vulnerable. 
She always said what she meant, and she meant what she said. We did not 
get that from Judge Barrett.
  I oppose this nomination.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mrs. SHAHEEN. Mr. President, I come to the floor today in opposition 
to the nomination of Judge Amy Coney Barrett to the Supreme Court. I am 
truly disappointed that my Republican colleagues have chosen to ram 
through this partisan nominee in the middle of a pandemic when an 
election is underway and tens of millions of Americans have already 
cast their ballots.
  The Senate should be focused on a bipartisan COVID-19 relief package 
to help Granite Staters and Americans

[[Page S6566]]

across this country who are struggling to pay the bills and put food on 
the table during this pandemic. Instead, Leader McConnell's only 
priority has been to push through a nominee who will fundamentally 
alter the balance of the Court and affect the lives of generations of 
Americans, all just days before ballots will be counted to decide the 
next President of the United States and the makeup of this very body. 
The stakes in this nomination could not be higher.
  I want to read an excerpt from an email I received from a 
constituent. This is from Dave in Portsmouth, NH. Dave writes:

       What is at stake with the Supreme Court nomination . . . 
     among the topics that have stricken the deepest sadness, 
     pain, and fear in eyes, minds and hearts are the goals of 
     this administration to dismantle . . . the Affordable Care 
     Act . . . A woman's right (and only her right) to make 
     decisions about her body and her life . . . and the rights of 
     the LGBTQ community.

  Mr. President, I ask unanimous consent for the full text of this 
email to be printed in the Record
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Hello Senator Shaheen,
       These past months I have looked into the eyes of many of my 
     friends and family and have seen extreme sadness, pain and 
     fear. To enumerate the many causes would be redundant . . . 
     but with express concern is what is at stake with this 
     Supreme Court nomination. Among the topics that have stricken 
     the deepest sadness, pain and fear in eyes, minds and hearts 
     are the goals of this administration to dismantle . . . The 
     Affordable Care Act . . . A woman's right (and only her 
     right) to make decisions about her body and her life . . . 
     and the rights of the LGBTQ community.
       Before you cast your vote for this nominee, try to 
     distinguish between her legal pedigree and her crystal clear 
     biases for which she has often been on record. Her 
     evasiveness during questioning before the Judiciary Committee 
     played perfectly into her chosen role of political pawn of 
     the Trump administration. This Supreme Court . . . my Supreme 
     Court . . . your Supreme Court . . . The Supreme Court of the 
     United States of America must remain untainted from the 
     rampant political posturing of this 2020 election cycle.
       What will be your legacy? In recent days some of the GOP 
     members of the Senate have . . . through short public 
     statements . . . been trying to distance themselves from 
     Donald Trump. With this vote . . . you have the power to 
     actually do it. To turn away from hypocrisy and years of 
     blatant lack of integrity. You owe it to America, to 
     yourself, to your family, to my family . . . to take a moment 
     to look at the sadness, pain and fear in the eyes of America 
       And yes . . . I am speaking to you all . . . including some 
     who have tried to push through this quagmire with an eye 
     toward how the world and history will judge us all . . . 
     including you Sen. Romney . . . and yes . . . you Sen. Sasse 
     . . . and Senators . . . Collins, Murkowski, Gardner, 
     McSally, Fisher and so on. I am pleading with you . . . 
     imploring you to do the right and just thing and vote NO on 
     this confirmation.
       You know what is right. You will know it when . . . as I 
     have . . . you look in the eyes of good and decent Americans 
     . . . who are desperate for real leadership . . . and you see 
     the sadness, pain and fear that has been sowed by this 
     administration and which continues to be sown with this 
     confirmation process. It has been a rushed, politically 
     motivated and politically charged Supreme Court nomination 
     being transacted while the American people are voting RIGHT 
     NOW to steer the course of this country . . . this Senate 
     chamber . . . and this country's highest court.
       Step up and do what is right.
           Thank you,
                                                  David J Cummins,
                                                   Portsmouth, NH.

  Mrs. SHAHEEN. The President and his allies here on Capitol Hill are 
trying to tear down the healthcare law that has helped provide millions 
of Americans with coverage in the middle of the greatest public health 
crisis in a century. They pressed forward with this reckless attempt, 
even though they don't have a plan for what to do when as many as 23 
million Americans--and in New Hampshire, more than 100,000 Granite 
Staters--would lose their healthcare coverage.
  I want to repeat that.
  This administration and congressional Republicans have no plan for 
what to do if millions of Americans lose their healthcare coverage if 
the Affordable Care Act is overturned.
  For the last 6 years, we have seen congressional Republicans try to 
repeal the ACA numerous times, and they have failed every time because 
the American people have raised their voices and made it clear that 
they want to keep the Affordable Care Act and strengthen it, not repeal 
it. Now we are seeing the administration and congressional Republicans 
try to do in the courts what they were not able to get done in 
Congress--to overturn the Affordable Care Act.
  We have also seen with Judge Barrett that she has made her feelings 
very clear about the ACA. She disagreed with decisions to uphold the 
ACA the last two times it went before the Supreme Court, and she 
wouldn't answer questions about the healthcare law during her 
confirmation hearing.
  Striking down the ACA would deal a crushing blow to our most 
vulnerable populations during this pandemic. If the Court strikes down 
the Affordable Care Act in its entirety, Granite Staters and Americans 
across the country will lose access to Medicaid expansion. Medicaid 
expansion is a critical source of coverage for millions of Americans 
and, in New Hampshire, for thousands of Granite Staters who have lost 
their jobs during this pandemic. In fact, since the start of this 
pandemic, what we have seen is that enrollment in Medicaid expansion in 
New Hampshire has increased by more than 11,000 enrollees as we have 
seen job losses mount.
  For these individuals and all of the more than 60,000 Granite Staters 
who are covered through Medicaid expansion, the loss of the ACA in the 
Supreme Court--the Supreme Court's overturning the ACA--would eliminate 
a critical lifeline for coverage during this public health crisis. In 
New Hampshire, if we lose Medicaid expansion, we will also lose our 
most important tool for combating the opioid epidemic.
  Without the ACA, we will go back to a time when insurance companies 
had sweeping power to undercut coverage. They will be allowed to charge 
women higher premiums than men for the same coverage. The health 
insurers will be able to remove essential health benefits like 
prescription drugs or maternity care. They will also be allowed to jack 
up premiums or deny coverage altogether for individuals with 
preexisting conditions.
  More than 8 million Americans, including nearly 10,000 Granite 
Staters, could be denied coverage because they have previously 
contracted COVID-19, which could now count as a preexisting condition, 
and without the ACA, seniors could, once again, find themselves stuck 
in Medicare's doughnut hole for prescription drug coverage at a time 
when we are seeing drug prices soar.
  In her confirmation hearing, Judge Barrett even refused to say 
whether the Medicare Program was constitutional. With Judge Barrett on 
the Supreme Court, the health coverage that the ACA, Medicare, and 
other Federal programs provide will be under a constant threat.
  Sadly, women's reproductive rights are also on the line with Judge 
Barrett's nomination. When he ran for President in 2016, Donald Trump 
said that he would appoint judges who would overturn Roe v. Wade. Well, 
we are seeing that very clearly with Judge Barrett's record. It shows 
that President Trump is trying to do just that--overturn Roe v. Wade.
  Amy Coney Barrett's dissenting opinions, while serving on the Seventh 
Circuit, show that she is comfortable with laws that make it difficult 
or nearly impossible for a woman to exercise her right to make her own 
reproductive health decisions. Judge Barrett has even publicly 
supported an organization that is opposed to in vitro fertilization, 
which is a procedure that has helped millions of American couples start 
  Almost 50 years of precedent of upholding a woman's right to control 
her own body are in jeopardy because the Republicans are playing 
politics with the Supreme Court and packing the Court with extreme 
  There are nearly 20 abortion-related cases that are currently one 
step away from reaching the Supreme Court. A partisan Court would 
likely disregard longstanding precedent in these cases and put a 
woman's health and well-being at risk. Let's be very clear: Repealing 
Roe v. Wade is not going to reduce the number of abortions. If history 
is any indication, what it will do is increase the number of abortions 
in the country.
  Unfortunately, the Affordable Care Act and women's reproductive 
rights are just two of the many areas of American life that a partisan 
Supreme Court could dramatically alter.

[[Page S6567]]

  Equality for LGBTQ Americans is another major concern. Millions of 
gay and lesbian Americans have been married since the Supreme Court 
legalized same-sex marriage, but in a recent dissent penned by Justices 
Thomas and Alito, these Justices challenged the constitutionality of 
that decision and called for it to be revisited. When asked in her 
confirmation hearing about the precedent of the Supreme Court decision 
to legalize same-sex marriage, Judge Barrett was evasive. So you can 
understand the anxiety and fear that same-sex families are experiencing 
as they watch the Republican-led Senate rush this nomination.
  The stakes are also incredibly high for voting rights, for worker 
protections, for commonsense gun laws, and for so many other issues 
that are in jeopardy with the appointment of Judge Barrett.
  Now, I know the die has been cast. We saw that yesterday with the 51-
to-48 cloture vote, but I believe this effort to politicize the Supreme 
Court is a decision that those who care about our democratic 
institutions will come to regret for many decades to come. If today's 
vote is the same as yesterday's--51 to 48--this will be the closest 
vote for a Supreme Court Justice in our Nation's entire history. We 
should not be doing this today. We should be focusing on what the 
American public is most concerned about--help with the coronavirus
  I yield the floor.
  The PRESIDING OFFICER (Mr. Hawley). The Senator from Nevada.
  Ms. ROSEN. Mr. President, I rise because the healthcare of millions 
of Nevadans and tens of millions of Americans is in danger. Their 
healthcare is in danger because, in just a few weeks, the Supreme Court 
will consider a case that could overturn the Affordable Care Act 
completely. This means that the next Supreme Court Justice will decide 
whether individuals with preexisting conditions could, once again, be 
denied healthcare coverage.
  The fact is, this administration has tried for years to overturn the 
Affordable Care Act. First, it attempted to repeal the ACA through 
legislation. It failed repeatedly because Congress and the American 
people do not support its schemes to take away our healthcare. Then it 
changed its strategy and is trying to use the Court to dismantle our 
Nation's healthcare system.
  Now, with an election just 1 week away, the Senate Republicans are 
scrambling to confirm a new Supreme Court Justice in order to tip the 
balance of the Court in favor of their lawsuit that aims to destroy the 
Affordable Care Act. Rather than waiting for the outcome of the 
election, which is already underway, and follow the precedent that they 
themselves established in 2016, the McConnell rule, my Republican 
colleagues are rushing to put Judge Amy Coney Barrett on the Bench.
  Not only does Judge Barrett support the President's position on 
dismantling our Nation's healthcare law, but, if confirmed, she could 
very well be the deciding vote to undo the Affordable Care Act and take 
healthcare away from millions of Americans. Judge Barrett's hostility 
toward the Affordable Care Act is on the record, and we have seen a 
long and extensive paper trail outlining her opposition to the ACA. Her 
past comments, well, they paint a bleak picture of what the Affordable 
Care Act's future would look like with a Justice Barrett on the Bench.
  To put it simply, this administration's attempt to use the Court to 
take away Americans' health insurance and raise the cost of care, 
especially at this moment--during a global pandemic--is not only cruel 
and reckless, it is deadly.
  I have met many Nevada families, and I have heard stories from men, 
women, and children whose lives would be just devastated without the 
Affordable Care Act: cancer survivors, people with diabetes, asthma, 
cystic fibrosis, and countless other preexisting conditions that affect 
families. These are real Nevadans whose healthcare would be jeopardized 
if the ACA were no longer the law of the land.
  I always tell my constituents that I carry their stories with me to 
Washington. They inform the actions that I take and the decisions that 
I make. I want to take some time to share some of the stories that I 
have heard--stories from Nevadans whose lives have been saved and who 
enjoy the quality of life because of the Affordable Care Act; stories 
from Nevadans who are outraged about what is happening and have reached 
out to my office to make their voices heard; and countless stories of 
how allowing the ACA to be dismantled would impact their lives.
  First, I want to share a letter from Jen, who lives in Henderson, NV. 
Jen's husband is one of the 1.2 million Nevadans who is estimated to be 
living with a preexisting condition. Like many people, Jen is worried 
about the health of her husband and the future of her family if the 
Affordable Care Act is eliminated.
  Here is what Jen wrote:

       Dear Senator Rosen, I am watching the confirmation hearing 
     for Amy Coney Barrett, and listening to the conversation 
     around the ACA. I'm scared to death that it will be 
     overturned, and what that means for me and my husband. In 
     February 2019, at only 38, he had a devastating stroke, and 
     had to stay in the hospital for four months. If he hadn't had 
     insurance, we would never have been able to afford his care. 
     I'm scared of losing that protection from pre-existing 
     conditions. He will need specialists for the rest of his 
     life, as well as physical, occupational, and speech therapy. 
     We cannot afford his care otherwise. I am so scared. Please 

  Unfortunately, Jen's situation and concerns are far too common. Many 
Nevadans and Americans across our country are worried about a future 
where they could lose their lifesaving coverage.
  Here is another letter from a Nevadan who lives in Spring Creek who 
is worried about his own continued healthcare without the protections 
the ACA provides:

       I have had asthma my whole life and it's severe. I finally 
     have good insurance and need it desperately. This will affect 
     millions of us. I have lived through not having insurance and 
     it almost killed me. The insurance companies at that time 
     were asking for premiums higher than what I made.

  Nevadans across the State are absolutely terrified about the 
possibility of losing care because of this nomination.
  I received a letter from a brave Nevadan who lives in Minden, which 
is a small town in the western part of our State. She wanted to share 
with me her health struggles and her fears for the future. She said 

       I have been fighting a rare, aggressive form of breast 
     cancer for the past 4 years and still have numerous surgeries 
     to undergo as part of my ongoing battle against this 
     devastating disease. I worry about how the loss of the 
     preexisting conditions protection would adversely affect my 
     treatment plan, my everyday financial security, and my 
     ability to get health insurance in the future should I lose 
     what I currently have.

  The Affordable Care Act has opened the door to healthcare for 
Nevadans all over my State, in communities big and small. These are 
real people with real struggles and real families who desperately want 
the best possible care for their loved ones. That is all. They want the 
best care for their loved ones. Don't we all want that?
  What is at stake here is life or death for far too many Nevadans and 
too many Americans across this country. Assuring the health of our 
loved ones should be an essential, basic, human right.
  It is thanks to the Affordable Care Act that more than 200,000 
Nevadans get coverage through the ACA's expanded Medicaid Program. It 
is thanks to the Affordable Care Act that over 77,000 Nevadans have 
coverage through the Nevada Health Link insurance exchange, and it is 
thanks to the Affordable Care Act that over 19,000 Nevadans under the 
age of 26 get to remain covered through their parents' health insurance 
  All of these people--that is 1 in 10 Nevadans--could lose their 
health insurance if the Supreme Court overturns the ACA.
  All of them could face overwhelming costs and denials of the care 
they both need and deserve.
  Not to mention, it is thanks to the ACA that there are an untold 
number of people who can still get coverage because insurance companies 
can no longer put lifetime caps on their healthcare coverage. Before 
the ACA, an insurance company could limit how much they would pay for 
your medical bills over your lifetime.
  One constituent from Las Vegas voiced her concerns that without ACA 
protections, we would see a return of lifetime caps on coverage.
  She said this:

       I am concerned about the potential elimination of the 
     Affordable Care Act. In addition to the potential elimination 
     of preexisting conditions, no one seems to address

[[Page S6568]]

     the issue of lifetime limits, which were eliminated under the 
       For those with long-term illnesses, they stand to risk loss 
     of medical insurance while battling catastrophic illnesses.
       My husband has been battling colon cancer for several 
     years. If the lifetime limit were to be reinstated, we would 
     no longer be covered for any of his chemo or other cancer-
     related treatments.
       I am sure that the insurance companies would jump at the 
     chance to stop coverage for those with extraordinarily high 
     medical expenses.

  The American people? Well, they want us to protect their care. The 
American people want us to protect them. They do not want to see the 
Affordable Care Act eliminated.
  The fact is, our healthcare coverage is better now than it was before 
the ACA was enacted. Insurance plans now have to cover those 10 
essential health benefits, and we have fought hard against junk plans 
that claim to provide coverage but aren't there when you need them the 
  In addition to that, many middle-income Nevadans can access 
affordable care because of the much needed tax credits that the ACA 
  I have spoken with and heard from countless Nevadans, and I can say 
with certainty that no issue matters more to people of my State than 
their health and safety and the health of their loved ones.
  The Affordable Care Act has not only given families the peace of mind 
that comes with quality health coverage, but it has literally saved 
  Without the critical protections the ACA provides, we risk going back 
to the days when big insurance companies could deny insurance coverage 
based on preexisting conditions. Repealing the Affordable Care Act 
would have dire consequences for hard-working Nevada families and 
families across our country.
  Healthcare shouldn't be a partisan issue. We have an obligation to 
protect the health of our constituents. We need access to healthcare 
more now than ever, and taking critical protections away from Nevadans 
would be a disaster for our State, and it would be a disaster for our 
  I heard from another constituent, Carol, who lives in Pahrump, who 
highlighted the risk of this nomination during the current challenges 
our Nation faces due to the pandemic.
  Carol wrote to me, saying this:

       Our country is in a public health crisis right now, one 
     that gets worse by the day.
       In this moment, we need our legislators to protect our 
     families, to provide relief and support, to do the job we 
     elected them to do.
       We do not need to rush through the nomination of a Supreme 
     Court Justice who is on the record as hostile to the law that 
     provides our healthcare protections.

  Well, Carol is right to point out that we are in the middle of a 
catastrophic pandemic that has left more than 225,000 Americans dead. 
Not only that, but this pandemic could put millions of Americans at 
risk of being denied coverage because of a new preexisting condition--
COVID-19. Just imagine being someone who suffered through even a mild 
case of COVID-19, only to have their coverage taken away because of 
this new preexisting condition.
  Just this week, we are seeing the highest positivity rates across the 
country we have seen thus far. Instead of developing a clear, national 
strategy for combating the coronavirus or crafting comprehensive 
legislation to assist Americans in need of a lifeline during this 
difficult time, this administration and Senator McConnell seem to be 
preoccupied with rushing through a Supreme Court nominee who is 
outwardly hostile to the Affordable Care Act.
  Since coming to Congress, I have made it my mission not only to 
preserve the Affordable Care Act but to expand care for all Americans. 
I have worked to increase access, lower costs, and improve quality of 
care. In fact, one of my first actions as a Senator was to join my 
colleague Senator Joe Manchin in introducing legislation to demand that 
the Senate intervene to defend the Affordable Care Act in court.
  Instead of joining me and my colleagues and working to protect 
Americans' health, this administration is too busy playing politics 
with people's lives and is singularly focused on taking away your care, 
my care, our care.
  Our healthcare is at stake. Our lives are at stake.
  Before the Senate confirms a lifetime appointment to our Nation's 
highest court, the American people's vote should be counted and their 
voices should be heard. This is how the American people feel.
  A constituent who lives in Reno wrote to me saying that ``President 
Trump has promised to appoint justices who will overturn Roe v. Wade 
and undermine access to healthcare--certainly not what I want. And not 
what the majority of your constituents want.''
  He continues:

       The election is already underway and we should be given the 
     power to decide which President nominates someone for this 
     seat. The Senate should be focused on addressing the COVID-19 
     crisis, not fast-tracking a Supreme Court nominee.

  We are only 9 days away from an election, but let's be clear. The 
election has already started, and millions of Americans all across our 
country have already cast their ballot. They have mailed in their 
ballots, and early voting is happening in many places as we speak, 
including my home State of Nevada.
  We should allow the American people to have their say at the ballot 
box before the Senate considers a lifetime appointment to the Supreme 
Court--one that will determine the future of access to quality, 
affordable healthcare in the United States for everyone.
  I am sure that other Senators--well, they are hearing the same 
stories from their constituents like the ones I have shared today, and 
I truly hope that my colleagues really listen to them; that they really 
hear the pain, the anguish, and the anxiety that so many Americans are 
feeling right here in this moment. Their lives, their healthcare--they 
are going to be directly impacted by our decisions.
  I will not support the nomination of a Supreme Court Justice who does 
not support the Affordable Care Act. I will vote against Judge 
Barrett's nomination
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. LANKFORD. Mr. President, for the past several years, I have heard 
some pretty remarkable stories from the other side of the aisle and 
from the national media.
  We heard from an Atlantic article that the President called 
servicemembers killed in action ``losers.'' It was spread all over the 
place until it was refuted flatly by 14 different officials who were on 
the trip.
  We heard claims that the Trump administration has deployed Federal 
troops to Portland, and they were taking over the streets of Portland, 
until leadership of ICE and of DHS came to Congress and reported what 
actually happened, starting with, there were no Federal troops that 
went. There was Federal law enforcement there, but it is because it is 
a Federal building that was under attack. And they weren't just 
aimlessly roaming the streets arresting people, although they did 
arrest the people who threw Molotov cocktails at the building.
  I have heard that the post office cannot handle the increased volume 
of mail, and the Trump administration is intentionally trying to slow 
down the post office so mail can't come in, saying with frantic, 
breathless voices: It could be 100 million ballots coming in the mail. 
Can the post office handle it? Until you find out that 2 weeks before 
Christmas last year, the post office handled 2.5 billion pieces of 
first class mail just that 1 week--certainly they can handle 100 
million ballots coming in over a month.
  I heard last summer that the President had taken away toothbrushes 
from children at the border--until a group of us were actually at the 
border the very next week and went into that exact facility saying 
there are no toothbrushes there available for the children and saw a 
storeroom full of toiletries--yes, including toothbrushes.
  I read the story and followed up with the ICE leadership about 
Muslims in our ICE detention facilities being forced to eat pork--
tormenting them by feeding them pork, against their faith--until we 
actually followed up on the facts of it and found that story was 
completely false.
  It seems every day--sometimes multiple times a day--there is a new 
accusation that comes out to attack the Trump administration and to 
challenge them on every angle of every direction you can possibly do 

[[Page S6569]]

  And then for the Presiding Officer--you know this full well because I 
sat in that same chair for 2 hours last night during our 30 hours of 
continuous debate, following Senate rules to conclude a confirmation of 
a Supreme Court Justice, and I was quite amazed at some of the things I 
heard while I sat in the chair.
  I heard things like, well, Amy Coney Barrett should have never even 
come out of the Judiciary because Democrats boycotted coming, actually, 
to the hearing. If they don't come to the hearing, the nominee cannot 
come out; the Republicans have broken the rules.
  In fact, some of my colleagues went dangerously close to say: Because 
they broke that rule, we are going to break the next rule and pack the 
Court. Except they leave out one little thing: That has happened 
multiple times before. They did follow the rules. There wasn't a 
breaking of the rule in the committee. In fact, one of the Members 
speaking last night even said so far as, they broke the rules, except 
the Parliamentarian ruled them in order. And so the Parliamentarian was 
wrong as well.
  At least seven times since 2006--most recently in 2014 when 
Democratic Chairman Leahy sent a circuit court judge and two district 
judges to the floor, out of committee, when only one member of the 
minority was present--not fulfilling ``the rule.''
  Republicans did not break the rule as they came out of committee with 
Amy Coney Barrett.
  I heard over and over again that there has never been a time like 
this that anyone has brought a Supreme Court nominee during an election 
year like this--except when you actually go back and look at the 
history, which I have recounted on this floor before, and multiple of 
my colleagues have recounted the actual history. But then last night I 
heard once again: Even Abraham Lincoln, the month before the election, 
could have put in a nominee for the Supreme Court, and he chose not to, 
to wait for the election. All I could do was sit with my mask-covered 
face in the presiding chair and smile and think about the Washington 
Post article that came out just a few weeks ago when Senator Harris 
gave the same lesson about Abraham Lincoln and the Supreme Court. The 
Washington Post, the day after, wrote an article titled ``Kamala 
Harris's `little history lesson' about Lincoln's Supreme Court vacancy 
wasn't exactly true.''
  No, Abraham Lincoln didn't hold back and say: I will wait until after 
the election. That is not how that occurred. The Senate was not even in 
session during that time period. And Abraham Lincoln, in the middle of 
the Civil War, was waiting it out, trying to keep his fractured 
Republican coalition together and not fracture it by naming someone. In 
fact, he shrewdly ended up naming one of his opponents in the 
Republican Party as the nominee who would come after he was reelected.
  It is interesting to me how things seem to get twisted around in some 
of this debate. I heard last night during the debate time that Amy 
Coney Barrett refused to answer the questions--the most basic questions 
about what she believes about things. The shocking thing is, Amy Coney 
Barrett did the exact same thing that Ruth Bader Ginsburg did during 
her nomination and that every nominee has said. They said: I am a 
judge. I can't tell you how I am going to rule on it because it has to 
be based on the facts of the case. It not something I can just make up 
on the spot.
  In fact, this is what was quoted from Justice Ginsburg when she was 
Judge Ginsburg at the time and going through the nomination process. 
This is from Judge Ginsburg:

       I come to this proceeding to be judged as a judge, not as 
     an advocate. Because I am and hope to continue to be a judge, 
     it would be wrong for me to say or to preview in this 
     legislative chamber how I would cast my vote on questions the 
     Supreme Court may be called upon to decide. Were I to 
     rehearse here what I would say and how I would reason on such 
     questions, I would act injudiciously.
       Judges in our system are bound to decide concrete cases, 
     not abstract issues. Each case comes to the court based on 
     particular facts and its decision should turn on those facts 
     and the governing law, stated and explained in light of the 
     particular arguments the parties or their representatives 
     present. A judge sworn to decide impartially can offer no 
     forecasts, no hints, for that would show not only disregard 
     for the specifics of the particular case, it would display 
     disdain for the entire judicial process.

  For some reason Justice Ginsburg was celebrated by the left for not 
saying how she would rule, but Amy Coney Barrett has been shown disdain 
for saying she is not telling exactly how she will rule on every single 
  The most painful thing I heard last night when I was in the Chair and 
that I have heard over and over again in the dialogue has been a sad, 
personal destruction and deception, pushing Amy Coney Barrett over and 
over again as a closet racist and segregationist. I am disappointed 
that even this candidate is being challenged as a racist, quiet 
segregationist. It is the firebomb thrown into the middle of a 
  Over and over again, she was challenged by saying what would she do 
with Brown v. Board of Education, as if quietly she is a 
  Over and over again, her concept on originalism was pushed, and here 
is how it was framed on the debate on this floor: She is an 
originalist. That means she is backward-looking. That means she is 
supportive of those White men who supported slavery and would not allow 
women to be able to vote because, in their perspective, that is what an 
originalist is. They want to go back to slavery and segregation and 
removing the rights of women to vote--even saying last night that 
originalists go back to the time of child labor.
  It is a smear. It is a personal attack, and it is an act of 
desperation. It is an attempt to terrify the American people that this 
mother of seven is to be feared because she will take away your 
healthcare; she will take away your rights; she will remove every 
option that protects the rights of individuals in a free society; and, 
as was stated last night, she is afraid of ``we the people.''
  We have a responsibility in this body to set the tone for the debate. 
We disagree on things strongly, and so do the American people. But this 
should not be a place of smears and personal attacks and disdain for 
each other and for labeling people--something that if we were to sit 
down face-to-face and I were to ask the Members on the other side of 
this Chamber ``Do you really think that Judge Barrett is a 
segregationist?'' I have every confidence that Members on the other 
side would say ``No, but it plays well to the base.''
  What have we become?
  Future Justice Barrett, now Judge Barrett, was labeled over and over 
again as a person who doesn't have her own mind, who is running big-
dollar donors from the Federalist Society and is just a puppet of the 
right, someone who actually was labeled to be groomed by the right for 
this position, as if that judge has not studied, worked, and prepared 
her entire life to serve.
  She has her own mind. She is well prepared. She is eminently 
qualified, and she is not a secret racist segregationist coming to take 
away healthcare from Americans. She is a judge who has heard 600 cases, 
graduated first in her law school class, taught law for 15 years at 
Notre Dame University, is well prepared, and, yes, does have this 
originalist view of the Constitution, meaning you can't just look at it 
and make it say what you want to. People on this floor can try to put 
words in her mouth which she has not said, as I heard over and over 
again, like her desire is to suppress voters. You cannot change how 
well prepared she is for this task and this moment.
  I am grateful that America continues to produce great leaders and 
great individuals who work hard in their personal lives, who study and 
prepare themselves to be ready to do whatever God calls them to do, and 
who are intently focused on serving their fellow Americans in the best 
way they possibly can.
  We ask of Justices one thing--at least I do: Follow the law. It seems 
my colleagues on the other side of the aisle are terrified that someone 
may just come follow the law and that policy arguments may have to be 
debated back in Congress again. Well, I hope that is true because there 
are policy arguments we need to resolve as a country, but let's resolve 
them in this Chamber, not in the one across the street. The one across 
the street, let's keep it nonpolitical, focus on just helping Americans 
follow the law.
  I look forward to voting for Amy Coney Barrett later on tonight, and 

[[Page S6570]]

look forward to the day when false accusations are seen for what they 
really are. Let's do the right thing, and let's do it the right way.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I rise today out of grave concern with the 
direction of the Senate as an institution and with the choices being 
made on behalf of the American people.
  By almost every account, our economy remains severely wounded by the 
effects of the COVID-19 pandemic. Cases are still rising. In fact, a 
record was set just in the last couple of days. Small businesses are, 
unfortunately, closing at an accelerating rate. Foreclosures and 
evictions are on the rise. Jobless benefits for many have run out. And 
our State and local governments are running dangerously low on 
resources to assist teachers, first responders, firefighters, and so 
many others.
  But rather than focusing on the immediate needs of the American 
people and acting to remove the uncertainty being felt by families 
across this country and in the Commonwealth of Virginia, the Senate is 
preparing to pursue a partisan exercise to fundamentally alter the 
composition of our Supreme Court.
  This comes as we are just a week away from November 3, when Americans 
will go to the polls to cast their ballots in a Presidential election. 
In my State, the Commonwealth of Virginia, literally almost 2 million 
Virginians have already voted.
  President Trump and the majority leader are jamming through, at this 
moment, a divisive nominee to fill Justice Ginsburg's seat on the 
Supreme Court--Judge Amy Coney Barrett.
  The Senate has never confirmed a Supreme Court nominee this close to 
election day. The election is in a week. Nearly 60 million people have 
already voted. And while they eviscerate Senate precedent and rush 
toward a Supreme Court nomination, they delay passing the kind of 
critical legislation in terms of additional COVID relief that would 
help millions of Americans make it through the economic crisis.
  Think about that. Every day we wait to pass a comprehensive COVID 
stimulus bill, more people than necessary will get sick, some will die, 
businesses will be lost. Families will lose their homes, and millions 
of unemployed workers will continue to wonder how they are going to 
make ends meet.
  So why has the President rushed Judge Barrett's nomination through 
the Senate? The President is jamming through this nomination because 
there is so much on the line with this Supreme Court vacancy.
  On November 10, just 1 week after the election, the Supreme Court 
will hear a case that could invalidate the Affordable Care Act and rip 
healthcare coverage away from more than 20 million Americans--20 
million Americans--in the middle of a pandemic.
  The President and my Republican colleagues here in Congress have 
already tried--and tried again and tried again--and failed to repeal 
the Affordable Care Act through Congress. Now they have turned to our 
Nation's Supreme Court in a purely political effort that could 
devastate our Nation's healthcare system.
  They have offered no replacement plan that would adequately protect 
individuals with preexisting conditions, and millions of Americans will 
then be set to lose their healthcare coverage should the ACA be 
  I have come to this floor many times and acknowledged that the ACA is 
not perfect. There are places where it could be improved. But in the 
years since its passage, I have heard from countless Virginians who 
have benefited from the law--individuals who have gained access to 
healthcare coverage for the first time, cancer patients who can no 
longer be kicked off their plans and denied coverage, 8 million 
Americans who now have COVID and who now have a preexisting condition. 
I have talked to small business owners and entrepreneurs who are now 
able to get coverage on the individual exchange and consequently start 
that business that otherwise they couldn't take the risk of starting 
and so many of Virginia's seniors who have seen their drug costs go 
down thanks to important reforms in the ACA.
  That, in and of itself, being considered by the Supreme Court a week 
after election, would be more than enough reason to wait and delay and 
let the American people first have their say. But that is not all that 
is at stake in future cases before the Supreme Court.
  This Court--the Court that would disproportionately be moved out of 
the mainstream--will be looking at everything from reproductive rights 
to voting rights, to rights for LGBTQ people. All of these hang in the 
balance. Given those stakes, the American people have a right to have 
their voices heard before the confirmation of a new Justice.
  In 2016, Majority Leader Mitch McConnell set a standard when he 
refused to consider President Obama's Supreme Court nominee 10 months 
prior to the election. I strongly objected to the majority leader's 
actions in 2016, but he is the majority leader. He had the votes. And 
now that is the precedent by which we should govern this Supreme Court 
nomination, because the truth is, we can't have one set of rules for 
Democratic Presidents and a different set of rules for Republican 
  Our system of checks and balances has held strong and lasting for 
more than 200 years, and it was simply not meant to bear the brunt of 
such cynicism and hypocrisy.
  The Senate should get to the real needs of the American people--a 
deal that I know Secretary Mnuchin and Speaker Pelosi are quite close 
to. Let's split the difference and get it done. We should not be 
considering a Supreme Court nomination before Inauguration Day. Yet the 
majority leader is continuing forward with votes on Judge Barrett's 
  Judge Barrett's record is clear, and so is my vote. I am voting no. 
There is too much at stake.
  Thank you
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MARKEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MARKEY. Mr. President, I rise to speak in opposition to the 
nomination of Amy Coney Barrett to serve as an Associate Justice on the 
U.S. Supreme Court.
  This is no ordinary nomination, and it comes at no ordinary time in 
the life of our Nation. We are in the midst of a global pandemic that 
has already claimed more than 225,000 American lives. We are a mere 8 
days away from a Presidential election.
  Donald Trump announced his nomination of Judge Barrett even before we 
could fully mourn the death of the great Justice Ruth Bader Ginsburg, 
and Senate Republicans then rushed this nomination to the Supreme 
Court. In doing so, they violated the rule that their leader, Mitch 
McConnell, imposed in 2016, which kept Merrick Garland off the Supreme 
Court after President Obama nominated him in February of that year to 
fill the vacancy that arose with the death of Justice Antonin Scalia.
  That rule was clear. That rule was concise. That rule was definitive: 
The Senate would not consider a nomination to fill a vacancy on the 
Supreme Court during a Presidential election year.
  Many of my Republican colleagues echoed Leader McConnell's pledge. In 
fact, my colleague, Senator Lindsey Graham, who chairs the Judiciary 
Committee, admonished us to use his own words against him if he went 
back on his promise: ``If there is a Republican President in 2016 and a 
vacancy occurs in the last year of that term, you can say that Lindsey 
Graham said, let's let the next president, whoever it might be, make 
that nomination.''
  But the majority has ignored the McConnell rule and broken their 
promises to follow it as they engage in the outright theft of yet 
another seat on the U.S. Supreme Court.
  You can't spell ``shameful'' without ``sham,'' and that is what 
Senate Republicans have turned this Supreme Court nomination process 
into--a sham.
  What else is unprecedented about the circumstances surrounding the 
Barrett nomination? Well, in Donald Trump, who made the Barrett 
nomination, we

[[Page S6571]]

have a President who has repeatedly refused to commit to a peaceful 
transition of power, should he lose the upcoming election.
  In Donald Trump, we have a President who has openly stated that he 
needs Judge Barrett on the Supreme Court to cast a crucial vote if 
cases arising out of a disputed election reach the Court, like Bush v. 
Gore did after the 2000 Presidential election.
  In Donald Trump, we have a President who has vowed to appoint to the 
Supreme Court a Justice who would vote to overturn Roe v. Wade and take 
away a woman's reproductive rights and freedom. Even before he was 
elected in 2016, he pledged: ``I will appoint judges that will be pro-
life, yes.''
  In Donald Trump, we have a President who has expressly promised that 
he would only nominate a Justice who would vote to get rid of the 
Affordable Care Act--ObamaCare--and coverage for preexisting 
conditions, and President Trump made that another bright-line litmus 
test for this nomination.
  In Donald Trump, we have a President who has told us that he needs 
Judge Barrett on the Bench to rule in the Affordable Care Act case the 
Supreme Court is scheduled to hear on November 10, 1 week after the 
election--a case that will decide the fate of that law and the 
availability of health insurance for millions of Americans suffering 
during a pandemic and well afterward.
  If Amy Coney Barrett is confirmed to the Supreme Court and votes the 
way Republicans expect, nearly 3 million people in Massachusetts with 
preexisting conditions could face higher costs, fewer benefits, and 
could have trouble finding insurance coverage.
  Massachusetts was the model for the Affordable Care Act, but if 
Donald Trump and his Supreme Court nominee have their way, more than 
335,000 Bay Staters enrolled through the Medicaid expansion could lose 
their coverage.
  As we experience the highest number of 1-day coronavirus deaths since 
the spring, we have a Republican-led Senate that has been unwilling and 
unable to work with their party's own President to craft desperately 
needed legislation that would provide relief to the hundreds of 
millions of Americans who are suffering during this pandemic--Americans 
who are out of work through no fault of their own; Americans whose 
small businesses, the engine of our economy, are struggling or going 
under; Americans who can't get the medicines, the testing, the 
protective equipment, or the medical care they need; Americans who 
right now are lacking access to online learning and the promise of an 
  For weeks and weeks, Senate Republicans would not lift a finger to 
help our workers and our families during this crisis. They would rather 
our States and our cities go bankrupt; that our students go without Wi-
Fi--Black, Brown, and poor children in our country go without the 
internet at home and without the funding to provide it to those kids. 
Right now, at the height of the pandemic, there are going to be 
millions of children who do not have access to the tools they need to 
be in the third grade, to be in the fifth grade. And even today our 
nurses go without the masks they need. Yet, when it comes to filling a 
vacancy on the Supreme Court and confirming a far-right Justice, these 
same Republicans made the Senate move with speed that would make Usain 
Bolt jealous.
  Jamming through this nomination in this fashion is unprecedented. It 
renders this process and this nomination illegitimate, period. If Judge 
Barrett is confirmed, it will only serve to further erode the stature 
and the legitimacy of the Supreme Court in the eyes of the American 
  Now, everything to which I have just pointed--the pandemic, the 
election, the corruption--is just the place settings. It is the table 
onto which Donald Trump has served up the nomination of Amy Coney 
  Judge Barrett is a proud originalist and textualist in the mold of 
her mentor, the late Justice Antonin Scalia, one of the staunchest and 
most arch-conservatives ever to serve on the U.S. Supreme Court. As 
Judge Barrett put it at her own confirmation hearing, ``Justice 
Scalia's judicial philosophy is mine, too.''
  As Judge Barrett describes so-called originalism, it means she is 
supposed to interpret the Constitution's text and understand it to have 
the meaning it had when the Constitution was ratified, but interpreting 
the Constitution in that manner has been used over and over to deny 
rights to women, to communities of color, and to LGBTQ individuals--
members of our society who had no rights when the Constitution was 
  Originalism is racist. Originalism is sexist. Originalism is 
homophobic. For originalists like Judge Barrett, ``LGBT'' stands for 
``let's go back in time''--a time when you couldn't marry whom you 
love; a time when you couldn't serve in the military if you were trans; 
a time when rights were not extended to gay, lesbian, bisexual, 
transgender, queer, questioning, or intersex individuals.
  ``Originalism'' is just a fancy word for ``discrimination.'' It has 
become a hazy smokescreen for judicial activism by so-called 
conservatives to achieve from the bench what they cannot accomplish 
through the ballot box and an elected Congress. As a result, they roll 
back individual rights through judicial decisions
  The activist originalist Justices on the Supreme Court and lawyers in 
its legal community are poised to repeal the Affordable Care Act, deny 
reproductive freedom, and repeal same-sex marriage. They will welcome a 
Justice Barrett and a 6-to-3 conservative majority with open arms.
  We know a lot about Judge Barrett's judicial philosophy of 
originalism. What about her application of it and her views? Well, in 
early 2017, 4 months before Donald Trump nominated her to serve on the 
U.S. Court of Appeals for the Seventh Circuit, she wrote a law review 
article in which she criticized Chief Justice John Roberts' majority 
opinion in NFIB v. Sebelius, which upheld the Affordable Care Act. She 
made clear she didn't think much of Justice Roberts' opinion, arguing 
that he ``pushed the Affordable Care Act beyond its plausible meaning 
to save the statute.''
  We know from another law review article that Judge Barrett, like many 
originalists, does not give precedent the respect that it deserves. In 
2013, she wrote that because a Justice's duty is to the Constitution, 
there is ``more legitimacy in enforcing her best understanding of the 
Constitution rather than a precedent she thinks clearly is in conflict 
with it.'' In other words, she believes that her own interpretation of 
the Constitution is more important and more legitimate than precedent 
such as Roe v. Wade.
  We know from her dissenting opinion in Kanter v. Barr that she 
believes a felony conviction shouldn't necessarily result in losing the 
right to own a gun, but she is OK with felony convictions taking away 
the right to vote. She would make it easier for a felon to own a gun 
than to vote. That is the kind of result that Judge Barrett's 
originalism gets us into.
  So, on many of these issues, Amy Coney Barrett has shown us that she 
couldn't be further in spirit from Ruth Bader Ginsburg, the late, great 
Justice whose seat on the Nation's highest Court she will fill. While 
Justice Ginsburg always had us looking forward, Amy Coney Barrett and 
her originalism will always have us looking backwards--and backwards is 
precisely the direction in which this Nation should not be going.
  What we know from Amy Coney Barrett's own words is very troubling. 
Yet then, at her confirmation hearing, we learned that there are many 
basic, fundamental legal issues on which she would not say a word and 
she would keep her views hidden.
  At her confirmation hearing, Judge Barrett declined to answer 
questions about such important propositions as whether it is unlawful 
to engage in voter intimidation--spoiler alert: it is; questions about 
whether the President can delay a Presidential election--news flash: he 
can't; questions about whether Presidents should commit to a peaceful 
transition of power--listen up: they should; questions about whether 
Obergefell v. Hodges, the landmark Supreme Court decision recognizing 
the right to gay marriage and making marriage equality the law of the 
land was correctly decided--no doubt about it, it was; questions about 
whether the nondiscrimination provisions of the Affordable Care Act 
protect LGBTQ people from discriminatory treatment in healthcare--of 
course they do; questions about whether Roe v. Wade was

[[Page S6572]]

correctly decided and is a superprecedent--it was and it is; questions 
about whether Medicare is constitutional--of course it is; questions 
about whether climate change is real and whether human beings cause 
it--it is and we do.
  On these and so many important issues and questions, Judge Barrett 
refused to give the obvious and indisputably correct answers, but based 
on her judicial philosophy, her writings, and her record, I have little 
doubt where she really stands, and that is in the same corner with 
rightwing, reactionary jurists who are far outside the mainstream of 
American jurisprudence.
  Finally, there is another question that Judge Barrett would not 
answer: whether, if confirmed, she will recuse herself from the 
Affordable Care Act case and any election cases that reach the Supreme 
  There is a Federal statute that governs the recusal decision. It 
requires recusal in situations where a judge's impartiality might 
reasonably be questioned. President Trump himself put Judge Barrett's 
impartiality at issue when he confessed that he needed Judge Barrett on 
the Supreme Court to decide any election disputes. He did it when he 
said he would only appoint a Justice who would help to overturn the 
healthcare law.
  After reviewing Judge Barrett's record and listening to her testimony 
before the Judiciary Committee, it is becoming clear that we have a 
binary choice: We can have the Affordable Care Act, or we can have Amy 
Coney Barrett on the Supreme Court. We can have the ACA, or we can have 
ACB, but we can't have both.
  Judge Barrett needs to do the right thing and recuse herself.
  I will conclude by noting the irony that Ruth Bader Ginsburg and 
Mitch McConnell were both on the same page as to this nomination. In 
2016, Senator McConnell gave us his promise that the Senate would not 
fill a vacancy on the Supreme Court in a Presidential election year. 
After she passed, we learned that it was Justice Ginsburg's dying wish 
that she not be replaced until a new President is installed. So let's 
hold Mitch McConnell and Lindsey Graham to their words and honor 
Justice Ginsburg's fervent wish: no confirmation before inauguration.
  But if Republicans succeed here today in their effort to confirm yet 
another conservative Supreme Court Justice just days before the 
Presidential election, as soon as the Democrats take back control of 
the Senate in January, we must abolish the filibuster and expand the 
Supreme Court. We cannot allow such corrupt partisanship to take 
precedence over justice and liberty in our country.
  I will vote against the confirmation of Judge Amy Coney Barrett to 
the U.S. Supreme Court and urge my colleagues--all of my colleagues--to 
do the same
  I yield back.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. PETERS. Mr. President, I would like to start by giving a quick 
history lesson, and I will begin with just two numbers. These two 
numbers speak to how extraordinary it is that we are here today 
debating and voting on a nominee for the U.S. Supreme Court.
  The first number is four. Four. That is how many Supreme Court 
vacancies have arisen after July 1 and before election day in a 
Presidential election year. Only four times in the history of this 
country has a Supreme Court vacancy arisen within 4 months of a 
Presidential election.
  The next number I think is very important to remember, and that 
number is zero. Zero. That is how many times these vacancies were 
filled. In fact, similar to this vacancy, President Lincoln had a 
Senate majority when a vacancy arose just weeks before election day in 
1864. What did he do? He chose to wait. President Lincoln thought 
nominating a Justice so close to an election would delegitimize our 
institutions and harm the Republic that he was fighting so hard to 
  That is the precedent that President Trump and Senate Republicans 
have disregarded as they quickly plotted to fill the seat just hours, 
if not minutes, after Justice Ginsburg's passing.
  In addition to breaking with this historical precedent, Republicans 
are also jamming through their nomination in the middle of a pandemic 
that is gripping our country.
  Instead of prioritizing Michigan first responders, small businesses, 
workers, teachers, families, and healthcare professionals who are still 
suffering through the effects of the coronavirus pandemic, Senate 
Republicans and the President are instead laser-focused on jamming 
through a Supreme Court nominee for a lifetime appointment.
  This is more than just political gamesmanship. This nominee will 
significantly impact the lives of Michiganians and folks all across our 
  We know that the Supreme Court is set to shortly consider a case that 
has far-reaching ramifications for people's healthcare. The Trump 
administration is arguing in Court that the Affordable Care Act should 
be overturned in a case that will come before the Supreme Court in 
November, just 7 days after election day.
  If the Trump administration gets its way in this lawsuit, we could go 
back to the days when insurance companies once again call the shots on 
people's healthcare. Over 4 million Michiganders with preexisting 
healthcare conditions could be denied coverage. Seniors could be 
charged more for prescription drugs. Lifetime and annual limits on 
coverage could make costs unaffordable and, as a result, force families 
into bankruptcy. Before the passage of the Affordable Care Act, medical 
debt was the No. 1 reason for personal bankruptcy. People faced 
financial devastation simply because they got sick. Women could again 
be charged more for being a woman because a potential pregnancy is a 
preexisting condition.
  We have come way too far to be turning the clock backward. For the 
Trump administration to be pushing this lawsuit is reckless and 
dangerous, especially during the worst public health and economic 
crisis in generations.
  But that is not all that is at stake. A woman's right to make her own 
healthcare decisions and reproductive freedom is at stake. Workers' 
rights against corporate special interests are at stake. Environmental 
justice is at stake. Access to the ballot box is at stake. Attempts to 
end the corrosive effect of money in campaigns and elections is at 
stake. And LGBTQ rights are at stake. Those are just some of the many 
issues that a Supreme Court Justice with a lifetime appointment will be 
ruling on for decades to come.
  Judge Amy Coney Barrett's nomination has extremely far-reaching 
  We are just a few days from election day. Already over 2 million 
Michiganders have voted, and many more are voting as I speak here 
today. With all that is at stake, Michiganders deserve a say in who 
nominates and confirms the next Justice to our Nation's highest Court. 
And the fact that Michiganders are being denied this opportunity is 
simply unacceptable.
  Therefore, I cannot support this nomination process. It should wait 
until a new President and Senate take office following an election to 
take place in only a few days. For this reason and many others, I will 
not be voting for Judge Barrett's confirmation. I will cast a ``no'' 
  Here we are. Instead of bringing folks together to find common ground 
on coronavirus relief, our country is being forced to go through a 
divisive Supreme Court nomination process. It simply did not have to be 
this way.
  I continue to stand ready to roll up my sleeves and put together a 
comprehensive, bipartisan, and meaningful COVID relief package. Ask any 
Michigander what they are worried about today, and you are going to get 
the same answers from them. They are worried about being able to put 
food on the table or a roof over their head. They are worried about 
getting or keeping a job to support their families. They are worried 
about catching a virus that has killed over 7,000 of their fellow 
Michiganders and over 220,000 people all across our Nation. They are 
worried that, if they survive a COVID infection, it will compromise 
their health for the rest of their lives. They will have a preexisting 
  So I ask: Why isn't this pandemic the Senate's top priority right 
now? When we passed the CARES Act, we came together. We put politics 
aside and passed a real comprehensive package that helped keep millions 
of people

[[Page S6573]]

stay afloat. We need to summon that spirit again. Michiganders are 
counting on us. Americans across this country are counting on us.
  I implore my colleagues to drop what we are doing, and let's come 
together and pass a meaningful, bipartisan COVID relief package, and 
let's get that done now.
  I yield the floor
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. HEINRICH. Mr. President, I rise today as more than 220,000 
Americans are dead from the coronavirus. There are more than 4 million 
fewer jobs than when Donald Trump took office. We are still squarely in 
the middle of this pandemic and an economic crisis, the likes of which 
we have not seen since the Great Depression.
  In recent weeks, cases of the coronavirus have risen dramatically. In 
my home State of New Mexico--and, frankly, across the entire country--
everyone is rightly worried about whether our schools, our childcare 
centers, and our small businesses can acquire the resources and the 
equipment they need to reopen safely.
  We still don't have enough resources or even a national plan for 
testing and contact tracing, much less for treatments and the eventual 
nationwide distribution of an FDA-approved vaccine that would allow us 
to finally get a handle on this virus.
  If we don't pass real economic relief in the coming weeks, many 
families in New Mexico will face desperate choices--between paying 
their bills, keeping a roof over their heads, and putting food on the 
table. Yet here we are, using valuable time on a Supreme Court 
confirmation process that should never have been taken up before the 
  Senate Republicans say they aren't going to negotiate another 
coronavirus relief package. They say it is more important to ram a 
Supreme Court nominee through a broken and nakedly political process 
than it is to help the people that we were all elected to serve.
  Clearly, nothing--not even the lives or livelihoods of the American 
people--will get in the way of their power-grab design to reward their 
biggest donors and the most extreme interests.
  Let me say this clearly: I disagree. There is still so much that we 
need to do to stop the spread of the coronavirus and to support 
families, workers, and businesses that are struggling and to rebuild 
our communities. Let's move to that urgent action.
  But with Senate Republicans refusing to do that, let's discuss in 
real terms what they are doing instead.
  Considering and confirming Supreme Court nominees is one of a 
Senator's most solemn duties under the Constitution. We are supposed to 
take it seriously and deliberately, but Senate Republicans have thrown 
out the rule book. It started when, with nearly a full year remaining 
in President Obama's final term, Senate Republicans refused to even 
hold hearings on Merrick Garland, the nominee to replace the late 
justice Antonin Scalia.
  Then, they dismantled the rules that had ensured that both parties 
would have a seat at the table on Supreme Court nominations. Then, they 
bull-rushed the vetting process for Justice Kavanaugh's lifetime 
appointment to the Court, despite multiple, credible allegations of 
sexual misconduct.
  After all of that, I suppose it should have come as no real surprise 
that Majority Leader McConnell waited less than an hour after the 
announcement of Justice Ruth Bader Ginsburg's death to say that he was 
going to push the envelope even further.
  So here we are. Leader McConnell and Republicans are now forcing the 
Senate to rush through another partisan Supreme Court confirmation 
battle in mere weeks--and now mere days before election day.
  They are shamelessly discarding their own precedents, breaking their 
own rules, abandoning their own words, and they are trampling on the 
legacy of Justice Ruth Bader Ginsburg. Before her death, Justice 
Ginsburg told her granddaughter that her ``most fervent wish'' was that 
her seat wouldn't be filled until after the next President is 
  Justice Ginsburg served on our Nation's highest Court for nearly 
three decades and worked for decades before that to move our country's 
laws toward greater equality. She understood that the American people 
must trust that the Supreme Court Justices are acting above the 
partisan politics of the moment.
  The next Presidential election is now less than two weeks away. 
Millions of Americans have already voted for their next President and 
their next Senators. I believe that these Americans deserve a voice in 
this process.
  In the words of Majority Leader McConnell himself, as was reported in 
the Washington Post on February 18, 2016, ``Given that we are in the 
midst of a presidential election process . . . the American people 
should seize the opportunity to weigh in on whom they trust to nominate 
the next person for a lifetime appointment to the Supreme Court.''
  The Senate should follow that precedent and should allow voters to 
decide who should fill this Supreme Court seat. What has changed for 
Majority Leader McConnell? Well, over the last decade, the Court has 
made razor-thin 5-to-4 rulings on women's rights, LGBTQ rights, 
workers' rights, immigration, voting rights, civil rights, climate 
change, and so much else. My Republican colleagues will say that these 
decisions were made by activist judges and that all they want are 
judges who will call balls and strikes. But what they really want are 
judges who will make those calls consistently biased toward wealth and 
power, rather than toward people.
  For all the talk of activist judges, it is my Republican colleagues 
who are right now attempting to add one whopper of an activist to the 
Supreme Court.
  Next month, the Supreme Court will take up President Trump's case to 
eliminate the Affordable Care Act in its entirety. That is right. In 
the middle of this pandemic that has now killed more than 220,000 
Americans and infected millions more, the Supreme Court is taking up a 
case that could eliminate healthcare coverage for millions of 
  Judge Barrett refused to answer questions about the Affordable Care 
Act during her confirmation hearing last week. But her views on the 
healthcare law are clear and they are exposed in the public record. 
Judge Barrett has repeatedly and publicly criticized the Affordable 
Care Act. She has said that the Supreme Court should have already 
invalidated it. If Senate Republicans have their way, she will have the 
opportunity to do just that.
  What would it mean if the Supreme Court overturns the Affordable Care 
Act? It means bringing back discrimination, higher costs, and even 
outright denial of coverage for more than 800,000 New Mexicans living 
with preexisting conditions like heart disease, diabetes, cancer, and 
now COVID-19.
  I am particularly worried about what this would mean for the people 
in Indian Country, who have been disproportionately impacted by this 
pandemic. In New Mexico, Tribal nations have experienced heartbreaking 
losses, and healthcare resources in Tribal communities have been 
incredibly strained.
  I have lost friends and mentors in Indian Country, and I know others 
who are still struggling to recover from this virus. I can't even 
imagine how much worse this situation could become if the health 
coverage provided by the Affordable Care Act were ripped away.
  When we passed the Affordable Care Act, I fought hard to include a 
permanent reauthorization of the entire Indian Health Care Improvement 
Act, which supports the care provided to Native Americans through the 
Indian Health Service.
  An estimated 290,000 American Indians and Alaskan Natives also gained 
health coverage through the Affordable Care Act's Medicaid expansion. 
All of that is at risk if the Supreme Court overturns the Affordable 
Care Act.
  If Judge Barrett is confirmed, she will also attack other important 
Supreme Court precedents, from Roe v. Wade to the recent marriage 
equality decisions. She dodged questions on these issues during her 
  But her academic and judicial record made clear Judge Barrett's 
extreme beliefs and philosophy. In her hearing last week, Judge Barrett 
also refused to take a firm view on climate change. We have major 
wildfires burning right now in Northern New Mexico--in October--
Colorado and California are seeing

[[Page S6574]]

much of the same. We don't have time to debate the undisputed facts and 
realities of climate change, especially with a judge who would strip us 
of the tools needed to address it.
  Tellingly, Judge Barrett also refused to agree to recuse herself from 
any decisions related to the upcoming Presidential election. Given that 
President Trump considers Judge Barrett ``his'' Justice, this creates a 
dangerous conflict of interest. It is also a very real threat to the 
foundation of the Supreme Court as an equal and independent branch of 
  Meanwhile, instead of attempting to tear down our democracy, the 
House of Representatives has passed multiple coronavirus relief bills 
over the last 6 months that would help workers and families. And they 
are already willing and able to negotiate with the President, to 
negotiate with Leader McConnell to come to some sort of bipartisan 
agreement. Majority Leader McConnell and Senate Republicans have walked 
away from the negotiating table, leaving us with nothing but false 
promises and sham bills to provide themselves a little political cover 
before an election.
  We all know the real story here. Behind closed doors, Majority Leader 
McConnell is actively discouraging negotiations on a bipartisan relief 
bill. Let me say this to Majority Leader McConnell and all of my 
Republican colleagues: If voters reelect your Republican majority and 
President Trump, there will be plenty of time to move forward with a 
real and legitimate Supreme Court confirmation process.
  Right now, we should be focusing all of our energy on delivering the 
aid that Americans so desperately need, protecting the health and the 
economic well-being of Americans. That is what our country expects of 
us. That is our duty. Let's get to it.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Ernst). The Senator from Missouri.
  Mr. HAWLEY. Madam President, some months ago, in July of this year, I 
came to this floor shortly after the conclusion of the Supreme Court's 
most recent term to lament the ongoing judicial activism--the judicial 
imperialism--that we have seen from this Court over this past term and 
from the Supreme Court for years on end.
  I quote the late Justice Scalia who said: ``The imperial judiciary 
  I said on the floor of this Senate--and it was a shame to say but was 
undeniable--that the imperial judiciary continued to live in this 
country--a judiciary intent and a Supreme Court intent on legislating 
from the Bench, on making up laws that went along with no regard for 
what the people actually wrote in their statutes or in their laws.
  I particularly lamented the position of religious conservatives, of 
people of faith, who had seen in this past term from the U.S. Supreme 
Court decision after decision that tossed aside the concerns of 
religious conservatives and faithful Americans and who had watched the 
Supreme Court legislate and depart from the text of written laws with 
barely any concern for the effects on religious liberties. In fact, it 
tossed aside concerns about religious liberty, religious freedom, and 
in one or two lines of opinions, the effect on religious institutions. 
This is what we have been seeing from the U.S. Supreme Court.
  Religious conservatives have come to a place of asking: What is it 
that we are fighting for? What is it that we have been working for and 
voting for all of these years? Is anybody actually listening to us? Do 
our votes really matter?
  Those are the questions that religious conservatives were asking in 
July of this year, and that is why the nomination of Amy Coney Barrett 
to the Supreme Court of the United States comes as such historic and 
welcomed news to people of faith in this country, to religious 
conservatives, and to all who believe in the rule of law in America.
  The nomination of Amy Coney Barrett is truly historic. This is the 
most openly pro-life judicial nominee to the Supreme Court in my 
lifetime. This is an individual who has been open in her criticism of 
that illegitimate decision Roe v. Wade.
  She is a nominee who has been open about her faith and her faith 
commitments and the way she and her husband live their lives--immersed 
in their Catholic faith--and raise their children in their Catholic 
faith and want others to have the freedom to be able to do the same. 
Her nomination and, I anticipate, her confirmation tonight, in just a 
few hours on this floor, will show that there is nothing wrong with any 
of that.
  In fact, people of faith should be welcomed on the Supreme Court of 
the United States, and people of Judge Barrett's convictions should be 
welcomed on the Supreme Court of the United States. In just a few 
hours, with the vote of this body, we will confirm that this is, 
indeed, the case.
  I have to say that Judge Barrett's own positions and her convictions 
give me great confidence that she understands the difference between 
judging and legislating--that she will not be a judicial imperialist as 
I have talked about on this floor in months past.
  Now, I said earlier this year that I would not vote for a Supreme 
Court nominee who did not understand the difference between judging, on 
the one hand, and legislating on the other and that I would not vote 
for a judicial imperialist. I specifically singled out Roe v. Wade and 
said that I would not vote for a Supreme Court nominee who did not 
understand that Roe was an act of judicial imperialism and that, 
indeed, I wanted to see record evidence that the nominee understood 
that Roe was an act of judicial imperialism and understood the 
difference between legislating from the Bench and actually adhering to 
the Constitution and the laws.
  I am proud to support the nomination and confirmation of Judge Amy 
Barrett because her record makes abundantly clear that she understands 
the role of a judge and that she understands the role that the 
Constitution assigns to the judiciary. It is not the role of 
legislating. It is not the role of imposing policy preferences or 
personal views. It is the role of following the law. Her record 
indicates that she understands that and is committed to following that 
role and committed to reviving that approach, that constitutional 
approach to judgment--that she will fight for it and revive it on the 
Supreme Court of the United States.
  So I am delighted to support her nomination. I am delighted to have 
someone of her convictions. I am delighted to have someone who has 
taken the stances that she has taken as a legal practitioner, as an 
academic, and as a judge. Yes, that includes her position on life, and, 
yes, that includes her position on Roe.
  We will set a precedent tonight that people of faith and people of 
the convictions that Judge Barrett has and shares are welcomed in this 
country in every office. They are welcomed on the highest Court in the 
land, and we need not ask people of convictions to give up those 
convictions in order to serve on the Supreme Court of the United 
States. We need not say: Oh, you have to scrub your personal views. Oh, 
you have to pretend that you don't have religious faith or you have to 
pretend that it doesn't matter to you. You have to renounce your past 
record. We do not have to do any of that.
  What we have to ask them to do is to understand the difference 
between judging and lawmaking. What we have to ask them to do is to 
understand their role that the Constitution assigns them. We have to 
ask them to be committed to following the law. I am convinced, based on 
her record, that Judge Barrett will do exactly that.
  For those reasons, I am delighted to support her confirmation, and I 
look forward to this historic vote in just a few hours' time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. HAWLEY. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. BOOKER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOOKER. Thank you, Madam President, my colleague from Iowa. I am 
  Madam President, I rise today to speak on the nomination of Amy Coney 
Barrett. I rise in the midst of a pandemic, in the midst of an election 
process in which over 50 million Americans

[[Page S6575]]

have already voted, to speak with a simple call that we should wait. We 
should not be doing this as a body.
  Now, that is not a radical statement. It is a statement that has been 
said by pretty much every Member of the Democratic side, but it is also 
a statement that was made by many people in the Republican Party before 
we got to this juncture.
  It was said around the time that Merrick Garland was up for 
nomination by President Barack Obama 269 days before an election, and 
people said that we were in an election season; that we should wait.
  But this is not a typical election season. This is an election that 
is going on where the people are coming out to speak on an array of 
issues. There is a profound urgency in the air--not a partisan urgency. 
America has seen record turnout because they know what is at stake in 
this election.
  There are issues that are driving people to the polls, and in this 
context, our President is doing what has never been done before. The 
only time this had a chance to be done before was when Abraham Lincoln 
had a vacancy on the Supreme Court in the midst of an election--this 
close to an election. Abraham Lincoln--one of our greatest Presidents 
of all time--made a powerful choice. He had the power to move, and he 
had the power to nominate, but he showed a restraint on power. He 
showed, in a sense, what we would call an act of grace. He knew that in 
the midst of an election, when people were coming out to speak, that it 
was better to wait.
  This grace is also what was called for by Ruth Bader Ginsburg on her 
deathbed. She didn't know who would win this election, but she thought 
it was best to call to the better angels of our nature; that sometimes 
the greatest demonstration of power is when we do not use it; that this 
precious democracy, this great experiment that has endured for this 
period of time, has sustained itself on acts of decency and grace and 
most importantly on trust--trusting people, trusting Americans, and 
trusting voters.
  We haven't always gotten it right, but this fundamental ideal that 
when people are exercising their voice, the people in this body should 
listen. Over 50 million Americans. We are days--in fact, hours--away 
from the actual election day, but the process has started already. 
People are speaking, but we are refusing to listen.
  I fear that what is driving many people to the polls are some of the 
very issues that this Supreme Court Justice will be in a position to 
hear. We know that Donald Trump spent the last 4 years trying to 
overturn the Affordable Care Act. He made a promise to only appoint 
Justices who would overturn it. He promised that he would nominate a 
judge who would ``do the right thing unlike Bush's appointee John 
Roberts on ObamaCare.'' This is clear.
  We know that the majority leader, Mitch McConnell, controlling this 
floor, has spent years trying to overturn the Affordable Care Act. In 
fact, between the House and the Senate, there have been over 70 votes 
to overturn the Affordable Care Act.
  We know there is a case that will come before the Supreme Court on 
November 10 that could very well determine whether over 600,000 people 
in my State and 20 million people across the country can keep their 
health coverage.
  So this is not a secret. The American people know what is going on. 
They see what is happening here. Many of them, I believe, are going to 
the polls to speak about the issue of healthcare, and instead of 
waiting and trusting to hear and listen to the will of the people, we 
are here right now.
  Folk are scared. We are, in a sense, walking through the valley of 
the shadow of death--the fourth largest mass casualty event in the 
history of our country, and the death rate is rising every single day. 
That is why so many Americans have been speaking out and calling out, 
because they know what this nomination could very well mean for their 
lives and for the lives of their family members. They know what a world 
without the ACA would be like.
  For a President to nominate someone--a President hostile to the ACA--
a Supreme Court Justice who has spoken to this, they know what this 
might mean. We know that for 3.8 million New Jerseyans and 130 million 
Americans who have preexisting conditions--people with diabetes; cancer 
survivors; people with diseases like my dad had, Parkinson's--it could 
mean being charged more or being denied coverage completely. This is a 
terrifying reality.
  Folk who are going to the polls, waiting hours in a line, know what 
it could mean--that once again more people are going to be bankrupted 
by outrageous medical bills.
  They know what it could mean for lifetime caps on care for children 
with complex medical conditions.
  They know what it could mean for a family with a child who survived a 
medical procedure and another medical procedure and another medical 
procedure, surgery after surgery, being told: If you want your child to 
live, pay for it yourself.
  So many Americans know what it would mean for seniors not being able 
to afford lifesaving prescriptions, making the dangerous decision to 
cut pills in half or ration their insulin.
  So many Americans know that losing the ACA could mean real tragedy.
  In New Jersey, over 600,000 people are losing their healthcare in the 
middle of a pandemic that in my State has already killed 16,000 of our 
first responders, our neighbors, and in many cases our friends and our 
family members. These are numbers, these are data, and these are 
statistics, but each one is a human life. Each one has dignity, and 
each one has family.
  I know, for example, Michelle Lewris from Palisades Park, NJ. When 
Michelle lost her husband John suddenly last year, she also lost the 
health coverage she had through his job. But she was able to get 
coverage through the Affordable Care Act's marketplace and qualify for 
a subsidy that made it more affordable for her. Today, she is insured, 
and she can manage her diabetes and her heart disease and her 
autoimmune disease because of her coverage. She said that if she lost 
her affordable healthcare, she would have to sell her home and would be 
in financial crisis.
  Losing the ACA for Merritt Bowman, who is a 49-year-old dad with twin 
boys and a football coach from New Jersey--he said that before the ACA 
was passed, he didn't even go to the doctor because he was afraid he 
couldn't afford it, putting his own health in danger. After the ACA, he 
was able to get affordable coverage. When he felt sick a few years 
back, he made a doctor's appointment and was diagnosed with diabetes. 
Today, thank God, his condition has improved, but, he said: Now I have 
a preexisting condition. My insurance covers my medication and my 
equipment to monitor my diabetes. If that is taken away from me, what 
is going to happen? I can't afford those things on my own
  I know this reality. We must know this reality. We must listen to 
Americans right now who are saying openly: I am going to the polls 
because of my fears on healthcare.
  Yet we are going through--instead of waiting to listen to our fellow 
Americans, showing that grace that they should decide, we are rushing 
  What about protections that are granted people like those under Roe 
v. Wade? What about that? Those are decisions that we should let voters 
decide. We should listen to the American people. What about protections 
for workers? What about protections for organizers? What about voting 
rights? All of these issues in the midst of an election deserve to be 
decided by the people.
  The American people know what is at stake right now because we know 
that Donald Trump nominated Judge Barrett with a very specific agenda 
in mind. He told us very clearly. We know that Donald Trump wants the 
Affordable Care Act to be overturned, and he would appoint judges he 
believes would do that. We know that Donald Trump wants Roe v. Wade 
overturned. He has explicitly told us that. We know that Donald Trump 
wants us to question the validity of an election because he has 
questioned the validity of an election that is ongoing right now.
  I never imagined I would have a day in my life as an American 
citizen--I have watched other countries, but I never thought in my own 
we would have a leader who would question the validity of an election, 
going as far as to say: If I lose, this election was rigged, and it was 
  That does real damage to not just this moment in time; it does damage 

[[Page S6576]]

our very institutions and our processes that are essential for this 
democracy. It is dangerous language.
  The behavior of this President is so dangerous that his own Cabinet 
members--former Cabinet members--have called it out.
  I know the strength of our Nation, but our institutions must be 
protected, and they must be preserved. The processes that ensure this 
democracy continues to go on so that our truth goes marching on--all 
have to be protected.
  When you have a President who calls into question our very election 
processes and literally says ``If I lose, it is illegitimate'' and then 
says ``I won't even commit to a peaceful transfer of power,'' that 
should raise alarms. That is why people within his own party, people 
who served in his own Cabinet, people respected in this entire body, 
like General Mattis, former Secretary of Defense, have said that Donald 
Trump is a threat to our democracy.
  It is in that context, in the middle of a national crisis, that we 
are in the midst of an election, and we can't even get a Supreme Court 
nominee to commit themselves to the idea of the peaceful transfer of 
power, who the President himself has said he is rushing to the highest 
Court in the land because he believes that this election may be decided 
by that judge. That judge won't even commit to being recused under 
these circumstances. Is that strengthening our democracy? Is that 
girding trust in our country's processes, or is it weakening them? 
Because it clearly is doing damage to what is necessary for the 
endurance of our country and our ideas.
  These aren't just my words; these are the words of people on both 
sides of America's political divide. Yet we are not showing restraint 
in this moment. We are not showing that grace. We are rushing for 
short-term gain for one political party and long-term damage to our 
  I don't understand why this is not something that raises worry and 
concern--a President who so easily trashes some of our most valued and 
sacrosanct ideas.
  I remember the hurt I felt when peaceful protesters in Lafayette Park 
were turned upon. I remember a note I was forwarded from a college 
classmate--if I have it correct--about her son being hit with a rubber 
bullet. I remember journalists whom I had gotten to know in these very 
hallways telling me about the horror of seeing the panic and the 
screams and the running as the gas and the rubber bullets hit. I saw 
how a President seemed to utilize the military to menace what is one of 
our most important constitutional protections--the right to protest 
  I have seen 4 years now of too many people who have remained silent 
in the face of erosions to our constitutional norms as the President 
has so willingly trashed that which people on both sides of our 
political divide have worked so hard to build up. I stood right there 
down near the Presiding Officer and raised my hand, like so many of us 
have--like all of us have--to protect and defend the Constitution of 
the United States.
  To not see us right now, in the midst of a potential constitutional 
convulsion; in the midst of a potential constitutional crisis where a 
President himself is not committing to the peaceful transfer of power; 
where there are people organizing to do harm to elected leaders, kidnap 
them; when you could go online right now and look at groups calling out 
to people with Special Forces training to go to polls and perhaps cause 
mayhem--I don't understand why we don't share a bipartisan, deep 
concern for what is happening right now in our country and how this 
moment in American history fits into the concern that moving forward 
right now causes danger and causes harm.
  I would be remiss to not mention that in the midst of it all, we are 
also in the midst of a racial awakening in our country. We saw what are 
perhaps the largest demonstrations in our Nation around issues of 
racial justice--all 50 States, towns and communities from all 
backgrounds, people marching and protesting around race issues. It has 
led millions of Americans to learn more about our own history, 
discovering things like the Tulsa massacre, discovering things like the 
Colfax massacre, going to the incredible museum in Alabama for 
lynching, where thousands of Americans were lynched in our country, 
discovering our history and how it ties directly to the President.

  In the midst of all of this, we know that issues of race and the law 
will continuously come up before the Court until we have justice 
rolling down like water and righteousness like a mighty stream.
  In the midst of all of this, even in my conversations with this 
nominee, I was surprised that they could not speak to one article, one 
Law Review article, one column, or one book they have read about issues 
of race in the law, when we are still in a nation that has such bias in 
its outcome, where just by the color of their skin they are directly 
correlated with longer sentences, more likely to get the mandatory 
minimum, more likely to get the death penalty, where we see no 
difference between Blacks and Whites in America for using marijuana or 
selling marijuana, but Blacks are almost four times more likely to be 
arrested for possession of marijuana, getting criminal convictions for 
doing things that two of the last three Presidents admitted to doing.
  And in the midst of all of this that has activated so many Americans 
and many even in the polls today, I couldn't get even a dialogue going 
about issues of race.
  When I specifically asked about a case, Judge Barrett's case in Smith 
v. Illinois Department of Transportation--this case involved a Black 
traffic patrol driver who had been fired by the Illinois Department of 
Transportation. This employee claimed that he had been the subject of a 
hostile work environment and that his supervisor had called him the N-
word. Judge Barrett ruled against him saying that despite documenting 
being called the N-word by his supervisor, the employee had failed to 
make the case that he had been fired in retaliation for complaints 
about race discrimination.
  When I asked Judge Barrett why she ruled that a supervisor using a 
vial and derogatory term, one that carries with it a history of racial 
subjugation and violence like the ``N-word,'' did not constitute a 
hostile work environment--I mentioned that Judge Kavanaugh, in a 
similar case, ruled that it did--I was surprised after her answers to 
go back and read the case. She had muddied the facts in the case. In 
fact, she blatantly mischaracterized a key fact in the case.
  Judge Barrett said: ``He didn't tie the use of the N-word into the 
evidence that he introduced for his hostile work environment claim.'' 
When, in fact, the employee's reply brief states: ``Appellant's 
position is that the combination of the N-word and the acts identified 
immediately above did create a hostile work environment.''
  She mischaracterized her own ruling claiming, ``So the panel very 
carefully wrote the opinion to make clear that it was possible for one 
use of the N-word to be enough to establish a hostile work environment 
claim if overplayed that way,'' when, in fact, her opinion stated 
something different:

       The N-word is an egregious epitaph. That said, Smith can't 
     win simply by providing that the N-word was uttered.

  Again, even Justice Kavanaugh stated that being called the N-word by 
a supervisor suffices in itself to establish a racially hostile work 
  Again, in this context, at a moment that our country is moving in 
numbers we have not seen before, we have a Justice that 
mischaracterizes a case, doesn't speak directly to the facts, as plain 
as they were, and can't engage in a substantive conversation about any 
scholarship whatsoever around race in America.
  I would like to read an excerpt of the letter from Derrick Johnson, 
President and CEO of the NAACP. He writes: ``It is disturbing enough 
that Judge Barrett declined to rule that use of this vial epitaph 
constituted a racially hostile work environment, but her 
misrepresentation to the Judiciary Committee about the basis for her 
ruling raises serious questions about her truthfulness and candor under 
oath that extended far beyond this particular case.''
  I ask unanimous consent that a letter from the Black Lives Matter 
Global Network Foundation signed by 18,000 Americans in opposition to 
the nomination of Amy Coney Barrett to serve as Associate Justice on 
the Supreme Court of the United States be printed in the Record

[[Page S6577]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Black Lives Matter,

                                                 October 21, 2020.
     Hon. Lindsey Graham,
     Chairman, Senate Judiciary Committee,
     Washington, DC.
     Hon. Dianne Feinstein,
     Ranking Member, Senate Judiciary Committee,
     Washington, DC.
     Re Opposition to the Nomination of Amy Coney Barrett to the 
         Supreme Court of the United States.

       Dear Chairman Graham and Ranking Member Feinstein: On 
     behalf of Black Lives Matter Global Network Foundation, Inc. 
     the umbrella organization for our global movement, I strongly 
     urge you to oppose the nomination of Amy Coney Barrett to 
     serve as Associate Justice on the Supreme Court of the United 
       The New York Times recently recognized Black Lives Matter 
     as the largest, most diverse civil and human rights movement 
     in the history of both our country and the world. We cannot 
     stand back nor stand by as partisan political games threaten 
     irreparable harm to the last branch of government where Black 
     Americans can turn for protection and justice.
       As imperfect as our American judicial system has been, it 
     has traditionally had at least the veneer of an avenue for 
     recourse for marginalized groups. This political hijacking of 
     the nominating process to the highest court in the land goes 
     against the purpose and intent of the Constitution you are 
     sworn to uphold.
       The U.S. Supreme Court has always been crucial to the 
     progress of African Americans. Our rights to fully 
     participate in democracy and in every facet of social and 
     economic life, on an equal basis, lie in the balance. From 
     Brown v. Board of Education to Shelby County v. Holder, we 
     have seen the power of the Supreme Court to both advance and 
     undermine civil rights and equal justice under law. Each 
     year, the Court decides critical cases involving voting 
     rights, equal educational opportunity, fair employment, fair 
     housing, women's rights, access to healthcare, immigration, 
     consumer rights, environmental justice, and criminal justice. 
     These decisions directly impact our lives, our families, and 
     our communities for generations.
       Placing someone like Barrett who has a record of flagrant 
     disregard for established precedent, especially on issues 
     related to race, on the Court is dangerous for marginalized 
     people. Smith v. Illinois Department of Transportation, is 
     only one example of her dangerous jurisprudence. In the 
     aforementioned case, Barrett ruled that being called the n-
     word by a supervisor does not constitute a hostile work 
     environment. So extreme is this ruling, that it places 
     Barrett to the right of Justice Kavanaugh, who in 2013 wrote 
     that a single use of this epithet ``suffices by itself to 
     establish a racially hostile work environment.'' The means by 
     which Judge Barrett reached this extraordinary conclusion, by 
     relying on grounds that neither the trial court nor either 
     party had raised, reveals the jurisprudential gymnastics to 
     which she was willing to undergo in order to reach this 
     disturbing conclusion.
       The nomination of Amy Coney Barrett in the middle of a 
     presidential election poses a grave threat to the integrity 
     and legitimacy of the bastion of the Judicial Branch of 
     government. Justice Ginsburg passed away on September 17. 
     Thirteen days after, voting began. At least 31.4 million 
     people have already voted for President and for their 
     Senators in this election, both through early voting and 
     voting by mail. Their voices must be heard and honored.
       Black Lives Matter wants a Supreme Court that works for all 
     of us. We will fight for that Court. Corporate interests like 
     insurance companies, drug companies, and the gun industry 
     have worked for years to pack the courts to ensure that they 
     work for them, not for the rest of us. To have courts that 
     protect equal justice for everyone, we need a nominee who 
     will fight against these corporations and protect the rights 
     of everyday working people. We need a Justice who won't pick 
     and choose whose rights to defend, but one who will work to 
     protect equal justice for all. Amy Coney Barrett is not that 
     nominee. She will not be that Justice.
       Our rights and the future of our democracy is at stake. 
     Because Amy Coney Barrett puts the wealthy and powerful 
     first, the Court will continue making decisions that deny 
     Americans' voting rights, put corporations ahead of people, 
     refuse to recognize and remediate discrimination, and limit 
     access to health care.
       Black Lives Matter must also note that Amy Coney Barrett 
     currently occupies a judicial seat meant for a Black woman. 
     She ascended over Black women with greater qualifications and 
     more professional experience. In 2017, Donald Trump appointed 
     Barrett to an Indiana seat in the U.S. Court of Appeals for 
     the Seventh Circuit, which covers Indiana, Illinois, and 
     Wisconsin. This is the same seat to which President Obama 
     nominated Myra Selby, a Black woman, in 2016. But Republican 
     Senators blocked Myra Selby's confirmation and saved the seat 
     for Donald Trump. After Trump was elected, the Seventh 
     Circuit lost its only judge of color to retirement. In total, 
     Trump had four vacancies to fill on this circuit. Instead of 
     nominating a person of color to restore diversity to the 
     court, Trump appointed four white judges, including Amy 
     Barrett, making the Seventh Circuit the only all white 
     federal appellate court in the country.
       The judicial oath for the Supreme Court states ``I solemnly 
     swear (or affirm) that I will administer justice without 
     respect to persons, and do equal right to the poor and to the 
     rich, and that I will faithfully and impartially discharge 
     and perform all the duties incumbent upon me''. Judge Barrett 
     has failed to show she is capable of holding true to those 
     principles. We take her at her opined word and believe she is 
     who she has shown us to be.
       For these reasons, Black Lives Matter strongly opposes the 
     nomination of Judge Barrett to the Supreme Court. Thank you 
     for your consideration of our position.
     Patrisse Cullers,
       Co-Founder and Executive Director, Black Lives Matter 
     Global Network Foundation, Inc.

  Mr. BOOKER. So I appeal, again, one last time to the conscience of 
the Senate. This is not a time to proceed. This is a time for grace. It 
is not a time to proceed. It is a time to firm up the foundations of 
our Republic. It is not a time to proceed. It is a time to listen to 
the American people. It is a time to listen to the voters lined up now. 
It is a time to listen and wait.
  I know there are a lot of Americans who are concerned right now, not 
with the one nominee but with how this process has gone. It is a 
process that is eroding people's trust and their faith in the 
institution. They don't see fairness in this. They look at the own 
words of Republican Senators and don't understand how hypocrisy like 
that can stand--one standard for one President, another standard for 
  But I want to tell everyone who is hurting right now, everyone who is 
worried about our Republic, everyone who is concerned in this moment 
about their healthcare and their voting rights and their Nation that 
this is not a time to give up. There will be difficult days ahead, but 
it is not a time to give up.
  We know that healthcare is at risk, but it is not a time to give up. 
We know that women controlling their own bodies, sacrosanct as that 
idea is and as under threat as it now is--it is not a time to give up. 
LGBTQ rights are under threat, but it is not a time to give up. We 
cannot give up in the cause of our country. It is not a right cause or 
a left cause. It is a right and wrong cause.
  We can be a nation that builds for posterity a functioning republic 
that can elevate the best of human ideals like grace. We cannot give up 
in this moment. We cannot meet darkness with darkness. We cannot 
surrender to cynicism about our systems. We have to keep pressing 
  I still believe that our Nation's history, as speckled as it is with 
wretchedness and pain, is still a story that is a testimony to the 
overcoming of injustice and the better securing of it. I still believe 
that we do live in a nation where the truth does prevail in the end. I 
still believe that even when wrongs are done, they can be righted. I 
still believe that though this may become, today, a moment of shame, we 
can reclaim in this Nation the ideals of our Founders--those 
testimonies to grace, the commitment to each other of their sacred 
honor--that we still can take a body politic, wounded and injured, and 
in our country find healing, find redemption, and find grace.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Boozman). The minority leader.

                            Compound Motion

  Mr. SCHUMER. Mr. President, as we speak, over 60 million Americans 
have voted. The Republican majority is ignoring--even laughing--at 
their wishes.
  Despite what the American people want and whom they will vote for, 
this Republican majority is ramming this nomination through only 
because they can. Might makes right, in their view. That is so wrong. 
That is so against the American principle of democracy and rule of law.
  So I will move to adjourn so that we consider this nomination after 
the election that is now ongoing--not before it, not 8 days before it.
  Therefore, Mr. President, I move to adjourn and to then convene for 
pro forma sessions only, with no business being conducted, at 12 noon 
on the following dates and that, following each pro forma session, the 
Senate adjourn

[[Page S6578]]

until the next pro forma session: Tuesday, October 27; Friday, October 
30; Tuesday, November 3; Friday, November 6; further, that if there is 
an agreement on legislation in relation to the COVID pandemic, the 
Senate may convene under the authority of S. Res. 296 of the 108th 
Congress; finally, that when the Senate adjourns on Friday, November 6, 
it next convene at 4:30 p.m., Monday, November 9, and that following 
the prayer and pledge, the morning hour be deemed expired, the Journal 
of proceedings be approved to date, the time for the two leaders be 
reserved for their use later in the day, and morning business be 
  The PRESIDING OFFICER. That motion would require unanimous consent 
and is not in order.
  Mr. SCHUMER. I appeal the ruling of the Chair and ask for the yeas 
and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays are ordered.
  The question is, Shall the decision of the Chair stand as the 
judgment of the Senate?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Ms. Harris) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 53, nays 46, as follows:

                      [Rollcall Vote No. 223 Ex.]


     Scott (FL)
     Scott (SC)


     Cortez Masto
     Van Hollen

                             NOT VOTING--1

  The PRESIDING OFFICER. The Senate sustains the decision of the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.

                    Nomination of Amy Coney Barrett

  Mr. COONS. Mr. President, I ask the question, as I have for several 
weeks now: Why are we here? What I hear from my constituents in 
Delaware, as I heard earlier today at an event at Westside Health: Why 
is this Senate in session now in the midst of a nationwide pandemic, 
focusing on rushing through a nominee for the U.S. Supreme Court rather 
than doing everything we can to work across the aisle to craft a 
solution to the problems, the crises facing our Nation--tens of 
millions of Americans unemployed, hundreds of thousands of businesses 
permanently closed? There are schools all over the country that are 
either not yet open or are just barely open, and thousands upon 
thousands of Americans have died alone, in pain, uncomforted by family 
and uncertain of how they came to be in this place, uncared-for by 
their country. There have been 8\1/2\ million infected and 220,000 or 
more who are dead.

  We are in the middle of a tragic pandemic and a recession made worse 
by our President's bungled mishandling of that pandemic, and instead of 
coming together and providing the relief that all of our States and all 
of our people are calling for, we are doing this. We are doing this. 
Instead, my Republican colleagues are walking over a dangerous 
precipice. They are doing something that was, according to Chairman 
Graham of the Senate Judiciary Committee, unthinkable just 2 years ago.
  In the last 10 days before a Presidential election--in the last month 
before a Presidential election--they are ramming through for a lifetime 
appointment to the Supreme Court President Trump's nominee. This is a 
rushed and partisan process in the midst of an ongoing Presidential 
election. Why? Why are we here, and why are they doing this?
  I have heard a lot of talk from my colleagues on the Judiciary 
Committee and here on the floor about Justices and how they are not 
policymakers; about how they are distinct from politics; about abstract 
methodological terms and ideas like originalism and textualism; about 
judges and Justices as neutral arbiters whose decisions couldn't 
possibly be predictable.
  But you don't work this hard to confirm a Supreme Court Justice in 
the middle of a pandemic while the majority of American States is 
voting--tens of millions have voted--and while election day is just 8 
days away and a third of us are up for reelection because you care most 
about abstract ideas or neutral principles. You don't go against your 
own promise--your own promise--after you have claimed, as a matter of 
high principles, that Justices shouldn't be confirmed during 
Presidential elections and after you blocked a highly qualified nominee 
for exactly that reason--because you care most about neutral arbiters 
and judicial methodology.
  No. This race to fill this seat is about power. It is about political 
power. It is about knowing the American people have turned against the 
President, especially because of his failed, flawed, and ultimately 
disastrous response to this pandemic. We are not turning the corner as 
he declared just this week. We have a record-high number of cases in 
dozens of States, an outbreak uncontrolled, unmanaged, and leadership 
that is uncaring.
  My colleagues know the election is upon us. Many are up for 
reelection. So, when Justice Ginsburg tragically passed away just a few 
weeks ago, President Trump and my colleagues saw one last opportunity--
one last chance--to decide the balance of the Supreme Court not just 
for a year or a term but for decades and to come and entrench a hard-
right majority, whose views are far outside the American mainstream.
  As my Democratic colleagues and I have been laying out in the 
Judiciary Committee and in speeches here on this floor, that hard-right 
turn will have lasting, serious, significant, even devastating 
consequences for the American people.
  After digging into and studying Judge Barrett's record as a law 
professor and as a judge--her writings, her speeches, her opinions--I 
am convinced that she will come to the Supreme Court with both a deeply 
conservative, originalist philosophy in the style of Justice Scalia and 
a judicial activism even further to the right that will put at risk 
longstanding rights the American people hold dear in nearly every 
aspect of our modern lives. Simply put, Judge Barrett as Justice 
Barrett, I am convinced, will open a new chapter of conservative 
judicial activism unlike anything we have seen.
  Why would I think this?
  First, Judge Barrett was handpicked by President Trump after he made 
clear he wanted a new Justice to overturn the Affordable Care Act, with 
there being potentially catastrophic consequences for a majority of 
Americans protected by the ACA.
  Everyone watching at home has heard my colleagues say for the last 
decade that their top priority was to repeal the Affordable Care Act. 
All of the Republican Senators on the committee talked publicly, 
repeatedly, about their desires to get rid of the law, and they voted 
that way. So did our President. Yet, despite their best efforts, he and 
my Republican colleagues failed to get the vote here on the floor of 
the U.S. Senate. So now they are taking their last and best shot at 
overturning the ACA, and they are trying to do it through the Supreme 
  This is where Judge Barrett comes in. As she admitted during my 
questioning, Judge Barrett has written in no uncertain terms that she 
thinks Chief Justice Roberts got it wrong in his ruling 8 years ago 
that upheld the ACA against a constitutional challenge. She wrote this 
article just 3 years ago, in 2017. Soon thereafter, she

[[Page S6579]]

found herself on President Trump's short list for the Supreme Court.
  Meanwhile, the Justice Department, under President Trump's 
leadership, has joined the challenge to the ACA, which is now back in 
front of the Supreme Court. That will be heard by the Court just 1 week 
from the election and 2 weeks from tomorrow. President Trump and his 
administration are arguing in no uncertain terms that the Court must 
get rid of the entire ACA.
  My Republican colleagues have said this is fearmongering in that this 
is a different case and a different issue, but to anyone who thinks the 
characterization of this challenge is farfetched, just read the brief. 
Read the brief that has been filed by the Solicitor General of the 
United States or the brief that has been signed and cosigned by 18 
Republican State attorneys general.
  President Trump himself lashed out at Chief Justice Roberts over and 
over again for upholding the Affordable Care Act and its protections 
for a majority of Americans, and he pledged as Candidate Trump that his 
nominees would do the right thing and overturn the law. So here, in the 
last minute of the last act of the Trump show, he may at long last have 
his chance.

  Yet it isn't just the Affordable Care Act that is on President 
Trump's Supreme Court agenda. He made clear he wants a nominee to do 
three things: overturn the ACA, overturn Roe v. Wade, and perhaps most 
chillingly for the future of our democracy, hand him the election if 
there is a dispute in the courts that makes its way to the Supreme 
  On that second point about overturning Roe, Judge Barrett steadfastly 
refused to say whether she thought Roe had been correctly decided, 
because it is the subject of legislation and litigation that is 
currently being contested. She refused to say, as well, whether the 
foundational case of Griswold v. Connecticut was right, which was 
decided 55 years ago and protects the right to privacy and the right to 
use contraceptives by a married family in the privacy of their own 
  In the recent past, even indisputably conservative nominees--nominees 
chosen by Republican Presidents, such as Chief Justice Roberts and 
Justices Alito and Kavanaugh--have said that of course Griswold was 
rightly decided and is settled precedent. So I found Judge Barrett's 
hesitation--even refusal--to say so to be chilling.
  More broadly--and this is important--Judge Barrett's approach to 
precedent itself suggests she will lead the way in reversing 
longstanding cases upon which our rights rely. Precedent has been 
called the foundation stone of law. Precedent protects the rights and 
freedoms that many Americans rely on today--the right to be safe in 
your home from government intrusion, the right to marry whomever you 
love, the right to control your own body.
  Yet I have come away convinced that Judge Barrett, if confirmed to 
the Court, would be even more willing than Justice Scalia to overturn 
those precedents with which she disagrees. This is rooted in things 
that she has written and said as a law professor and as a judge. She 
has made clear that judges and Justices should feel free to overturn 
cases they believe have been wrongly decided regardless of how many 
people have ordered their lives around those decisions and have come to 
rely on them. She even said that those with her conservative, 
originalist philosophy have abandoned a commitment to judicial 
  As I made clear in my questioning, the cases that could be in 
jeopardy with a Justice Barrett on the Supreme Court cover a vast range 
of issues, issues which together affect hundreds of millions Americans' 
lives from healthcare to education, to consumer protection, to marriage 
equality, to criminal Justice. Over the past several decades, the 
Supreme Court has decided more than 120 cases by a 5-to-4 margin, with 
Justice Ginsburg in the majority and Justice Scalia in the dissent.
  Just as a matter of analysis to help folks see the scope and the 
reach and the consequences of the decision being made here tonight, we 
look at what would happen if Justice Ginsburg in the majority were 
replaced by somebody with Justice Scalia's philosophy or with one 
further right.
  These cases include not only the key ruling on the Affordable Care 
Act--NFIB v. Sebelius--but also on Obergefell v. Hodges, which, based 
on that privacy jurisprudence that started all the way back in 
Griswold, upheld the idea that marriage equality was the rule of the 
land; on Grutter v. Bollinger, which upheld race conscious admission 
policies at universities; on Tennessee v. Lane, which held that State 
governments must comply with the Americans with Disabilities Act; on 
Arizona State Legislature v. Arizona Independent Redistricting 
Commission, which upheld the constitutionality of nonpartisan 
redistricting; on Massachusetts v. EPA, which allows the EPA to 
regulate greenhouse gases; and on Roper v. Simmons, which prohibits 
executing people for crimes they committed while they were children.
  Think about the scope and reach of the cases that touch labor rights 
to Native American rights and consumer rights to environmental 
protection. Yes, our comments on the floor and in committee focused on 
the Affordable Care Act, and they focused on reproductive rights and 
privacy, but the scope and reach of the consequences are breathtaking. 
Even to this day, I fear that we as a nation have not fully reckoned 
with the impact that a 6-to-3 conservative Court will have on so many 
aspects of our lives.
  As to President Trump's third demand that a Justice chosen by him 
will help to decide the election, I was deeply dismayed to hear Judge 
Barrett refuse to commit to recusing herself from any case involving an 
election dispute. President Trump is the reason I ask that question.
  President Trump himself is actively undermining the integrity of our 
election. He is spreading baseless rumors about voter fraud, 
encouraging voter suppression, and engaging in a disinformation 
campaign so egregious it is hard to believe it could be coming from an 
American, let alone an American President.
  His statements have been so indefensible that, when my colleagues 
asked Judge Barrett whether the President should commit to conducting a 
peaceful transition of power if he loses the election--a question that 
is an obvious no-brainer and a matter of basic civics--Judge Barrett 
said she couldn't respond because President Trump's statements have 
turned this fundamental tenet of our democracy into a partisan, 
political question.
  Before now, to my knowledge, no President has ever demanded that his 
nominee to a Supreme Court seat be rushed through so that this Justice, 
that ninth Justice, could look at the ballots, as he has said, and hand 
him an election. Never in our history has the U.S. Senate confirmed a 
Supreme Court Justice in circumstances like these--just 8 days before 
the final election day in an ongoing Presidential election.
  At the very, very least, given President Trump's unprecedented 
overreaching, inappropriate comments about the election and her 
nomination, I asked Judge Barrett if she would recuse herself in the 
event of an election dispute. To be clear, nothing is stopping her from 
making that commitment, and she would not do so.
  Recent events have made it clear that this issue is anything but 
hypothetical. Just last week, the U.S. Supreme Court was divided 4 to 4 
on a question arising from Pennsylvania, and it came to the brink of 
adopting a novel--even radical--theory advanced by the Republicans in 
Pennsylvania that would empower the Supreme Court to override a State 
supreme court's interpretation of its own State laws and constitution 
in a way that would disenfranchise thousands of voters.
  A new Justice Barrett joining that Court could well provide the fifth 
vote in support of this outrageous theory, which her mentor, Justice 
Scalia, accepted in Bush v. Gore. And to no one's surprise, the 
Pennsylvania Republican Party is again preparing to file in the Supreme 
Court a renewed claim.
  In light of this conflict of interest, in light of the appearance of 
bias, her involvement in this case could have lasting, negative, 
devastating consequences for the independence of the Court and for our 
democracy. So I urge my Republican colleagues to consider, before 
voting to confirm tonight, the very real impacts their actions will 
have, not only on millions of our constituents but on our democracy and 
this institution itself.

[[Page S6580]]

  As for me, I will be voting no on the confirmation of Judge Barrett 
to the U.S. Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, that was quite a speech from our friend 
from Delaware. If I had to categorize it, I would say this is really 
the Chicken Little argument: The sky is falling. Amy Coney Barrett--
this is the end of civilization. This is the end of the world as we 
know it.
  The irony to me and, frankly, the hypocrisy of the argument is that 
if the shoe were on the other foot, Senator Schumer, who has said 
everything is on the table ``if we win the majority''--Court packing, 
making DC, making Puerto Rico States--they would somehow show this 
superhuman self-restraint and not fill this seat.
  This is entirely consistent with the practice, given the fact that 
President Trump's first term doesn't run out until January 20 of next 
year. All of the Senators elected are serving through the end of this 
year, at least. So it is somewhat entertaining but beside the point to 
suggest that this good judge, this really extraordinarily decent human 
being is part of some vast conspiracy to subvert the Constitution and 
overrule all these precedents that the Senator from Delaware considers 
  Well, I am happy with the fact that tonight the Senate is set to 
confirm an exceptionally well-qualified nominee to the Supreme Court. 
Judge Amy Coney Barrett is as impressive as they come. America saw it. 
Initially they didn't know her, but when they came to know her through 
her testimony on the Judiciary Committee, she became very popular. In 
my State, 59 percent of the people in a recent poll said they wanted us 
to confirm Judge Barrett now before the election--59 percent.
  It is no wonder why. She graduated first in her class from Notre Dame 
Law School. She clerked for the District of Columbia Court of Appeals 
and on the Supreme Court and practiced law before transitioning to 
academia, where she has written and taught constitutional law, Federal 
courts, and statutory interpretation for nearly two decades. And, of 
course, for the last 3 years, she has served with distinction on the 
Seventh Circuit Court of Appeals.
  Her time in both the classroom and the courtroom have given her 
understanding of the law that few can rival. Over her confirmation 
hearing, she skillfully answered questions about legal doctrine, 
constitutional issues, and a myriad of precedents without so much as 
having a page of notes in front of her.
  As impressive as Judge Barrett's deep knowledge of the law is, it is 
only part of what I believe makes her an ideal candidate for the 
Supreme Court. Now, more than ever, the judiciary, along with our other 
elected officials, tends to function not by what the law says but 
through a lens of personal and political bias. It is polarizing. We 
know that people are highly agitated, including my friend from 
Delaware, and trying to stoke the turnout of their partisans in the 
runup to the election. It should go without saying--but I will say it 
anyway--that judges don't do that. They can't do that and still be 
  In order for the High Court to serve the proper role under our 
Constitution, it has to be made up of men and women of great integrity, 
restraint, and self-discipline, who will discharge their duties on the 
Bench free from bias, which means you don't announce the decision in a 
case before you have even heard it. You don't offer predictions or 
promises of how you will decide these contentious matters, which I know 
frustrates our friend from Delaware and others, but Judge Barrett has 
not only committed to doing this, not clouding her decisions by 
personal or political motivation or favor for any party; she has a 
record to back it up.
  During her time on the Seventh Circuit, she has joined with her 
colleagues in 95 percent of the 600 cases she has decided--95 percent 
consensus on a three-judge panel. That is no record of an outlaw or a 
radical or somebody who is going to disregard their judicial oath. She 
has consistently shown in each of these decisions a fidelity to the law 
and an impartiality, which are essential qualities for a Supreme Court 
  But despite the judge's unassailable qualifications, our Democratic 
colleagues have repeatedly tried and failed to make this nominee out to 
be a radical, suggesting that she would violate her oath--the same oath 
to uphold and defend the Constitution that we take as Senators. But 
there is nothing in her background or her character which would suggest 
she would do something so brazen and so wrong.
  Some folks on the left have attacked her because of her Catholic 
faith. They have also tried to convince the American people she is on 
some sort of crusade to take healthcare away from American families--
How ridiculous is that?--or that she would slowly chip away at our 
freedoms and our liberties.
  The reason we have seen such hysterical attacks that are completely 
out of touch with reality is that this is all they have. They have 
nothing else
  There is no legitimate reason to oppose the nomination of Judge 
Barrett. Her stellar credentials and deliberate body of work prove that 
she understands the role of a judge--as important as it is but as 
limited as it is under our constitutional system--and I think that is 
part of what terrifies our colleagues on the other side of the aisle.
  You see, they have become accustomed to a Supreme Court that is more 
political than judicial, that feels free to make policy judgments to 
bail out the Congress or those who have either lost the vote or lost an 
election. That is why our Democratic colleagues have repeatedly pressed 
her to commit to an outcome in cases before the Court. She won't do it, 
and she shouldn't do it, and she didn't do it.
  They asked her everything from healthcare to abortion to climate 
change. They want to know right now--before she is even on the Court, 
before she has even heard the case--how she would rule.
  Well, Judge Barrett rightly declined. She invoked what is known as 
the Ginsburg rule from the 1993 confirmation hearing--presided over by 
Joe Biden when he was chairman of the Judiciary Committee--of Ruth 
Bader Ginsburg. Ruth Bader Ginsburg had been a lawyer with the American 
Civil Liberties Union and had been known for her pioneering work on 
behalf of women's rights, but she held some personally pretty radical 
views. So the Senators, out of curiosity if nothing else, wanted to ask 
her about those, and she declined, as she should have, because she 
said: It is inappropriate to make predictions or provide hints of how I 
might decide cases in the future.
  This is the most basic principle of our judicial system. Judges are 
not legislators. They shouldn't advocate for policy outcomes or promote 
a specific agenda. They certainly shouldn't commit to an outcome on a 
hypothetical case during the confirmation process.
  How would you feel if the judge you came before had previously said: 
Well, if I hear a case like that, I am going to decide against this 
litigant, this party for the lawsuit. That would be outrageous, and she 
shouldn't and didn't do that. Neither did Justice Ginsburg.
  Chief Justice Roberts reminded us last year: ``We do not have Obama 
judges or Trump judges, Bush judges or Clinton judges.'' And I agree 
that is the ideal.
  Men and women in black robes can't stick their thumbs on the scales 
of justice and supply wins to any cause, any individual, or any party. 
It is antithetical to our constitutional system.
  So I hope this process will help begin a way to guide our courts back 
to their proper function in our Constitution and to remind all of us of 
what has rightly been called the crown jewels of our Constitution, and 
that is an independent judiciary--judges whose pay can't be cut during 
their tenure in office, and they serve for life if they want to. That 
is the ultimate in political independence. Those are the crown jewels 
because judges apply the law that Congress writes, interpret the 
precedents of other courts, and interpret the Constitution. To give an 
unelected individual the power to make policy and to have an agenda to 
accomplish their personal or political goals would be the opposite of 
what our Constitution comprehends.
  There is no question that Judge Barrett has a brilliant legal mind, a 
deep respect for the Constitution, and an unwavering commitment to the 
rule of

[[Page S6581]]

law. Her resume and her record are spotless.
  How do I know that? Well, if it wasn't, you would have heard about 
it. It is spotless. Her character is beyond reproach, and virtually 
everyone who has worked with or learned from Judge Barrett has offered 
their full-throated endorsement of her nomination. All the evidence--
all the evidence--points to one simple fact: Amy Coney Barrett is 
exceptionally qualified to serve on the Supreme Court. I have faith in 
Judge Barrett's ability to fairly interpret the law and apply it to 
cases before her--nothing more and nothing less.
  I believe Amy Coney Barrett will be an outstanding Supreme Court 
Justice, and I am proud to support her nomination.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, we are faced with three basic questions, 
and the first question couldn't be more basic: Why are we here?
  If you told the American people that the U.S. Senate was in session 5 
days in a row and meeting through the weekend and asked them what they 
think the order of business was before the Senate, they would say: 
Silly question. It is obvious. It has to be the pandemic facing 
America. It has to be the fact that 225,150 Americans have died from 
the coronavirus, 8.7 million infected, and most certainly because the 
United States has recorded more than 85,000 COVID-19 cases just this 
last Friday, the highest number of cases recorded within a 24-hour 
period since the beginning of the pandemic and Saturday was the same.
  So they would guess that the Senate was in session to do something 
about this deadly epidemic that is affecting the United States of 
America in a more serious way than any country in the world. They would 
wonder what we are doing to try to provide more testing, more 
protection for people. They certainly would question the statement by 
the Chief of Staff of the President of the United States, Mark Meadows, 
who said just yesterday that the Trump administration ``is not going to 
control the pandemic.'' It would trouble them, I am sure.
  They would expect this Congress representing them--up for reelection, 
many of us--to be responsive to their needs to protect their families 
or they might ask us: Are you doing anything to help the people, the 23 
million unemployed in America? Certainly, you must be working on that, 
too, because these families were cut off from their Federal 
unemployment supplemental on July 31. So for the months of August and 
September and now into October, the amount of money coming in to keep 
their homes together, their families together has been dramatically 
  If they assumed that, they are wrong, because for the last 5 days 
here in the U.S. Senate we have not been consumed with those life-and-
death issues of this pandemic at all. Instead we are consumed with a 
political mission.
  How did we reach this point where we are taking up this Supreme Court 
nomination in the midst of a Presidential election for the first time 
in the history of the United States, in the midst of an election we are 
taking this up? Well, because of the determination of the Republican 
majority leader of the Senate, Senator McConnell of Kentucky.
  Four years ago, you will remember the Antonin Scalia vacancy. 
President Obama decided that he was still President of the United 
States in the 8th year of his Presidency, but Senator McConnell said: 
No, you are not. You do not have the Presidential authority to fill a 
Supreme Court vacancy because it is the last year of your Presidency. 
You are a lameduck. There is an election coming. Let the American 
people decide who will fill this vacancy. That was the McConnell rule 4 
years ago, and the Republican Senators marched in lockstep behind him 
with his logic.
  Fast forward 4 years, the vacancy with the death of Ruth Bader 
Ginsburg and Senator McConnell has changed his story completely and his 
troops are still marching obediently behind him. Now, under President 
Trump, he can fill a vacancy even in the midst of a Presidential 
election, and that is why we are here today. This determination by 
Senator McConnell that this political errand that he is running for 
President Trump is more important than the COVID-19 pandemic, more 
important than the runaway infection rates in 20 States across the 
United States, more important than trying to deal with the unemployment 
and the dysfunctions of this economy under this President.
  Yes, we asked basic questions to be answered by the Judiciary 
Committee--questions that were posed to Amy Coney Barrett, once a law 
school professor at Notre Dame Law School, now on the Seventh Circuit 
Court of Appeals
  People say: Is she qualified? Well, if you are asking whether she is 
studied in the law and has a head full of law, there is no question 
about it. It has been many years since I faced a law school professor, 
and I will give it to you that she certainly knows a lot about the law. 
There is no doubt about it. But the questions that I asked of her 
really went beyond that basic question. I really wanted to know what 
was not just in her head when it came to the law but I want to know 
what she has in her heart when it comes to the law.
  One of the Senators who spoke to us a few minutes ago chided us 
because we kept bringing color photographs to the floor and to the 
committee hearings of people whose lives depended on the Affordable 
Care Act. He characterized it as ``theater'' and likened these images, 
these photographs, to cutouts at sporting events.
  Well, let me tell you the ones that I presented from Illinois 
represent real-life stories of real-life families who depend on the 
Affordable Care Act. Why do we raise the Affordable Care Act in the 
midst of this hearing for filling this Supreme Court vacancy? For one 
simple reason--that is what the President did. It was the President who 
told us far in advance: I am going to fill Supreme Court vacancies to 
eliminate the Affordable Care Act. So is this a leap of faith on our 
part to take the President at his word? Would the President even 
consider lying to the American people?
  If you take him at his word, then Amy Coney Barrett is part of an 
agenda--a political agenda to eliminate the Affordable Care Act. And in 
the past the President has said Roe v. Wade while you are at it and 
also to move forward when it comes to protecting him if there is an 
election contest after the November 3 election. He said as much. As I 
mentioned earlier, he doesn't have an unuttered thought. He tweets it 
25 times a day, whatever crosses his fertile mind, and that is his 
agenda when it comes to filling the Supreme Court vacancy. When we 
asked Judge Barrett, she denies any promises have been made. But there 
is some evidence, obviously, along the way that convinced the President 
and the people in the White House that she would fulfill his mission if 
she came to the Supreme Court.
  When you look at the issues involved, it is not just her compassion 
when it comes to the Affordable Care Act and 23 million Americans 
covered by insurance under that law, 600,000 of them in Illinois. It is 
not just a question of her courage to stand up to this President if 
there is an election-year contest that comes before the Supreme Court. 
It is really whether she is committed to preserving the pillars of 
modern law--the rights of women. Ruth Bader Ginsburg's death created 
this vacancy. There is hardly a person in our modern history who spent 
more of her life dedicated to the rights of women. Is Amy Coney Barrett 
going to follow in that tradition? I think it is a legitimate question.
  When it came to racism, are we going to deal with racism in an honest 
way? And I will get to that in a moment when I speak to her originalism 
  Marriage equality, privacy, voting--all these issues are on the 
table. And I do have to disagree with my colleague from Texas who 
preceded me. I just don't believe the law is robotic, nor do I believe 
that there is a simple formula to use that can guarantee an outcome of 
a case. As I said to Judge Barrett in our private conversation before 
the hearing, there wouldn't be 5-to-4 cases if we could count on people 
to always look at the facts and the law and come to the same 
conclusion. People reach different conclusions.
  That takes me to the third point here. We asked Amy Coney Barrett 
during the course of this hearing so

[[Page S6582]]

many questions about basic, basic law that went right to the heart of 
this Constitution. These weren't trick questions. They weren't the 
subject of pending litigation or litigation. Questions like, Can this 
President or any President unilaterally decide to change the date of a 
Presidential election? That is pretty basic. I think it is covered by 
three different sections in this Constitution. She refused to answer 
because of the possibility that there would be litigation before the 
Court on that subject.
  Well, what about intimidation against voters, trying to cast their 
votes in an election? Couldn't answer that one either--same reason.
  This was asked by Senator Kennedy, a Republican from Louisiana: What 
about climate change? Well, it turns out Judge Barrett told us she 
really hadn't developed any thoughts on climate change. Really? Forty-
eight years old, lawyer, law school professor, mother of seven--no 
thoughts on climate change?
  When it was all over, you had to ask yourself, what was the purpose 
of that hearing if those were the kinds of answers we faced? Certainly, 
we wouldn't ask her about pending litigation.
  But the one thing that she was very proud of and stated over and over 
again is that she was an originalist when it came to her thinking on 
the law and the Constitution. As I said, originalism is not some 
foreign language you pick up on Babbel. It is a mindset. It is a 
mission statement. It is the belief that the original text in our 
Constitution reveals all the answers. I doubt that very much. That is 
kind of MAGA jurisprudence--``take us back to the good old days'' 
jurisprudence because, you see, what really launched originalism 
occurred in the 1950s in a case called Brown v. Board of Education. The 
Southern States were not ready for integration, and many of the 
Northern States weren't either, for that matter. The critics of that 
Supreme Court decision said it was judicial activism to integrate the 
public schools of America. They were critical of a Court that they 
thought went too far under Earl Warren. They called for his impeachment 
and more and started saying: You should have stuck with the original 
Constitution. Well, the original Constitution didn't give African 
Americans the right to vote; in fact, considered them under the law to 
be three-fifths of an American citizen. So those so-called originalists 
criticized that activist Court, and it didn't end with Brown v. Board 
of Education.
  The same criticism was launched when it came to Griswold v. 
Connecticut, a case that really argued that we have a right of privacy 
in our married lives that can't be overcome by the State; Loving v. 
Virginia, that interracial marriage was permissible; and then, of 
course, the case of Roe v. Wade, the ultimate case when it came to 
privacy and liberty.
  So those who come before us and tell us that what is really at stake 
here is restraint on the Court, self-discipline on the Court--we have 
heard all those words--and making sure that Justices don't pursue 
policy, think about all of those things in terms of what happened in 
Brown v. Board of Education and when they overruled Plessy v. Ferguson 
decades before, and said: Moving forward, we believe this Constitution 
guarantees to every child the right to an education, regardless of 
their race.
  Dr. Chemerinsky is with the University of California School of Law in 
Berkeley. He wrote a recent article in the New York Times on this 
originalism theory. And he noted the fact that it was Antonin Scalia 
who gave it great popularity, and a lot of people followed Scalia 
because he was cerebral, jocular, and fun to be with. He spoke to a 
luncheon of Democratic Senators that I was able to attend. But when it 
came down to it, his views on the law were pretty strict and pretty 
rigid pursuing this idea that, for example, under this view, the First 
Amendment means the same thing as when it was adopted in 1791; the 
Fourteenth Amendment means the same thing as it was ratified in 1868. 
It turns out that the circumstances in all those cases have changed so 
dramatically in America.
  Judge Amy Coney Barrett argued she is an originalist. She would be 
joining that other originalist on the Court, Clarence Thomas, with her 
legal thinking, and that gives me pause and concern when it comes to 
what she is bringing to the Court--a head full of law, for sure, but an 
approach to it that I think is a pose. It is a way to argue against 
change and evolution in America that is inevitable and, in fact, 
  The professor says under the original public meaning of the 
Constitution, it would be unconstitutional to elect a woman as 
President or Vice President until the Constitution is amended because 
article II refers to the pronoun ``he.'' When you get stuck with the 
language in the original Constitution in the extreme, you find yourself 
reaching conclusions that are not in the best interest or consistent 
with American mores or values today.
  So this is more than just another nomination to fill a vacancy on the 
Supreme Court. It comes at a moment in time when we should be focusing 
on the deadly pandemic facing America. We should have spent 5 straight 
days coming up with a COVID relief bill for the millions of Americans 
desperate for help today and desperate for peace of mind when it comes 
to this public health tragedy which we are facing.
  It is a nomination which comes before us when the rules of Senate and 
the rules of the Senate Judiciary Committee are being twisted and 
turned to create a political opportunity for Senator McConnell and his 
side of the aisle. Sadly, it is a moment in time when a nominee for the 
Supreme Court wants to bring to us a legal way of thinking which I 
believe is inconsistent with progress in this country when it comes to 
human rights and civil rights.
  Under originalist theory, we may never have had Brown v. Board of 
Education and the other cases I mentioned. What a loss for this great 
Nation. That is not what we need on the Court. We need people on the 
Court who are realists and who will look at the law and the 
Constitution in real terms and not ideological terms.

  The notion that this Justice is being hurried before us in the hopes 
that she will eliminate the Affordable Care Act in the midst of a 
pandemic certainly is worth noting. It is one of the reasons--one of 
many of reasons--that I will be voting no on Amy Coney Barrett with her 
nomination to the Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sullivan). The Senator from South 
  Mr. GRAHAM. Mr. President, as chairman of the Judiciary Committee, it 
is my honor to speak on the floor about this nomination, which I think 
is historic in many facets and all positive from my point of view.
  We have before the committee the nomination of Judge Barrett, who 
currently sits on the Seventh Judicial Circuit. She is one of the most 
impressive people I have ever met. Two days of hearings; answering 
every question thrown to her with grace and judicial demeanor. I think 
it should be the gold standard for every other nominee.
  I want to thank my staff, beginning with Lee Holmes, the director. 
Lee has done such a great job on the Judiciary Committee and has done a 
lot of things--some contentious and some not. I want to thank Lee for 
shepherding this nomination and the fine work he has done.
  Mike Fragoso--Mike, I got your first name right anyway. He is just 
outstanding. He has done a terrific job.
  The permanent nominations unit for the Judiciary Committee includes 
Lauren Mehler, Raija Churchill, Tim Rodriguez, Watson Horner, and Akhil 
R-A-J-A-S-E-K-A-R--I don't want to butcher your name. They all worked 
incredibly hard for 135 article III judges, not just this one.
  In addition, Lucas Croslow joined my staff to lead the team of 
special counsels assisting with the Barrett nomination. That included 
Sidd Dadhich, D-A-D-H-I-C-H, Joe Falvey, Abby Hollenstein, Eric Palmer, 
and Robert Smith. They went through the entire record presented by 
Judge Barrett to make sure we would be prepared for the confirmation 
  The law clerks were Matt Simpson, Emily Hall, Megan Cairn, and Peter 
Singhal. I would like to thank the Judiciary Committee's press 
secretary, Taylor Reidy. They did a great job, along with George 
Hartmann, as well as our deputy staff director, Joe Keeley.
  The bottom line is, all of them worked really hard. They made 
history. They should be proud and tell

[[Page S6583]]

their grandkids about all this. Well done.
  To my Democratic colleagues, I know you didn't like what we did, but 
I do appreciate the way you conducted yourselves in the hearing. It 
wasn't a circus. I think you challenged the judge appropriately during 
your time. We had 4 days of hearings. We heard from a variety of people 
about Judge Barrett.
  In terms of the process, it was well within what we have done in the 
past. In every Judiciary Committee markup regarding a Supreme Court 
Justice, we have done the same thing. The first day is opening 
statements, then 2 days of questions, and the final day is input from 
outside groups. That is what we were able to do here. So she went 
through the process like every other nominee since I have been here.
  But let me just say this to my Democratic colleagues. It is not about 
the process. You will find ways to make sure that most of you can't 
vote for anybody we nominate. It really does break my heart.
  With Roberts, 78 to 22, that was sort of the norm. I think Alito got 
96 and Ginsburg got 97. Maybe I got the numbers right. I can't remember 
who got what, but one got 96 and one got 97. It used to not be this 
way. It used to be different.
  We looked at the qualifications and said: OK, you are good to go. You 
are a person of integrity. You are smart. You are well rounded. You are 
knowledgeable in the law. You may have a different philosophy than I 
have, but we understand elections matter. And everybody accepted the 
election outcome. Those days are over, absolutely completely over and 
destroyed. There is nobody any Republican President can ever nominate, 
I think, who is not going to face a hard time. That is too bad. That is 
the way it is.
  Alito, 58 to 42--Judge Alito was well known on our side of the aisle. 
He was the kind of person you would be looking at to promote to the 
Supreme Court. President Bush nominated him. Well within the 
mainstream. Roberts and Alito were well known in the conservative 
world, being ver bright court of appeals judges whom any Republican 
President would be looking at to put on the Court if they ever had an 
opportunity. There is no difference between Alito and Roberts, but 
Alito went through hell. But he made it, and he got 58 votes.

  So then along comes President Obama. He gets two picks--Sotomayor, 68 
votes to 31. I think she deserved more, but 68 is pretty darn good. I 
was glad to vote for her. I saw that she was qualified. Then we had 
Elena Kagan, 63 votes. You can see the trend here. Both of them were 
Obama nominees, 68 and 63, and I thought Elena Kagan was highly 
qualified. She had a different judicial philosophy. She was a dean of 
the law school at Harvard but worked for the Solicitor General's 
Office. Both of them had been with the liberal side of the Court most 
every case but not all. I am not surprised the way they decided cases. 
I think they are tremendously well-qualified women and should be 
sitting on the Court. That is exactly who you would expect a Democratic 
President to pick--Sotomayor and Kagan.
  So now we come back. Trump wins. Nobody thought he would win, 
including me. I voted for somebody in 2016 I wouldn't know if he walked 
through the door--Evan McMullin. I think I met him once. I had my 
challenge for President Trump during the 2016 primary. He beat me like 
a drum. I accepted my defeat. I have been trying to help him ever 
since, and I think he has done a really good job of sending to the 
Senate highly qualified judges. He has gotten input from a lot of 
different people--the Federalist Society, you name it--a lot of 
different people.
  Gorsuch and Kavanaugh had one thing in common: They were in my top 
three recommendations. Any Republican President looking to nominate 
somebody to the Supreme Court would be looking at Gorsuch and 
Kavanaugh. These are not exotic picks. They are in the mold of 
Sotomayor and Kagan in terms of qualifications.
  So what happened? Gorsuch was the first attempt at a partisan 
filibuster. We had three votes to get 60, and we couldn't, so we 
changed the rules for the Supreme Court like they changed the rules in 
2013 for the district court and court of appeals. If we had not, 
Gorsuch wouldn't be on the Court. And to say he is not qualified is a 
joke. It is an insult to him and says more about you than it does Judge 
Gorsuch. If you can't see he is qualified, you are blinded by your 
hatred of Trump. So he made it, but we had to change the rules. We 
hated to do it but had to do it because in any other time, Gorsuch 
would have gotten the same type votes as Roberts because he is just 
highly qualified.
  Then comes along Kavanaugh. Nothing about process there. There was no 
process argument. Right at the very end, the last day of the hearing 
when we thought it was all over, you give us a letter that you had for 
weeks, an allegation against the judge. It would have been nice to 
share it with him so he could tell his side of the story, but you chose 
not to do that. You had it precooked with the press outlets, and 
everything blew up.
  So all of us on the committee had to decide what to do. I sat down 
with Senator Flake and Senator Collins, and we felt like the 
allegations had to be heard. They are made. I know a lot of people on 
our side thought it was unfair, dirty pool, but we had the opportunity 
to have the hearing, and the rest is history. It was high drama.
  All I can say is that something happened to the person who accused 
Judge Kavanaugh, but I don't believe Judge Kavanaugh had anything to do 
with it. This was a party in high school. Ms. Ford couldn't remember 
where it was and who was there. The people who were said to have been 
there said they don't remember anything like it happened.
  Judge Kavanaugh hasn't lived a life like what was being described. He 
was accused by four or five people. Three of them actually made it up. 
I hope some of them go to jail for lying to the committee and the 
country. They were trying to make him a rapist and drugging women in 
high school, and what was his annual all about? It was the most 
sickening episode in my time in the Senate. They were hell-bent on 
destroying this guy's life based on a bunch of manufactured lies and 
evidence that wouldn't get you out of the batter's box in any court of 
law in the land.
  And here we are, 50 to 48. What I saw there was a turning point for 
me. We cannot continue to do this. You are going to drive good people 
away. And I am hoping that the Barrett hearings, which were far more 
civil and far more traditional, will be a turning point because I don't 
know who the next President will be, but there will be an opening, I am 
sure, on the Court. I am hoping that the next hearing is more like 
Barrett's and less like Kavanaugh's, no matter who wins.
  Now, Barrett. I understand the concern about the process. This is the 
latest we have ever confirmed somebody. You heard all the arguments 
about when the President is of one party and the Senate of a different 
party; you have had one confirmation in 100-some years; that most of 
the time, when the President is of the same party as the Senate, they 
go through. I understand.

  The bottom line is, we gave her the same type hearing that Alito, 
Sotomayor, Kagan, Gorsuch, and Kavanaugh had. My Democratic colleagues 
showed up at the hearing, they participated, they pushed her hard, but 
I don't think they went across the line. They decided not to show up 
for markup. I hate that, but that is the way it is.
  I would like to spend a few minutes talking about the person who is 
going onto the Court in about an hour.
  If you are looking for somebody a Republican would be picking, 
regardless of the process, it would be Judge Barrett. She would be on 
anybody's list.
  I listened to Senator Durbin, who is a good friend, and we will work 
on whatever comes our way after the election. I find that he is 
somebody you can work on hard things like immigration with. But his 
description of Judge Barrett simply doesn't pass scrutiny.
  He is trying to make a character of this person that doesn't exist. 
There is nothing exotic about Judge Barrett. She is very mainstream in 
our world. All I can say is that after 2 days of hearings, the American 
people, by 51 percent--it is pretty hard to figure that in this 
country, you get 51 percent agreement on anything--felt like she should 
be going onto the Court.
  Here is what Dean O'Hara said, the dean of Notre Dame Law School, who

[[Page S6584]]

hired Amy Barrett to be a professor at Notre Dame:

       I have only communicated with this august committee on two 
     occasions. The first was ten years ago when I wrote a strong 
     letter in support of now-Justice Elena Kagan, whose term as 
     dean of Harvard Law School overlapped with my own. The second 
     is today introducing and endorsing Amy Coney Barrett in 
     equally strong terms. Some might find these recommendations 
     to be in juxtaposition, but I find them entirely consistent.

  To anybody wondering about Judge Barrett, I would highly recommend 
that you look at the ABA's recommendations and the process they used to 
find her ``well qualified.'' Not one person uttered a negative word 
about her character, according to the ABA. Someone said to the ABA: The 
myth is real. She is a staggering academic mind. She is incredibly 
honest and forthright. She is exactly who you think she is. Nothing 
about her is fake. She is good, she is decent, she is selfless, and she 
is sincere. She is an exemplar of living an integrated life.
  The Standing Committee would have been hard-pressed to come up with 
any conclusion other than that Judge Barrett has demonstrated 
professional competence that is exceptional. Then they had a committee 
to look at her writings--all of her writings. They accepted input from 
944 people she has interacted with in her professional life. Not one 
negative comment.
  So forget about what politicians say about Judge Barrett. Forget 
about what people who don't recognize President Trump as being a 
legitimate President say about Judge Barrett. Forget about what I say 
if you want to. Look at what people who worked with her said, who are 
in the law business, who know her individually and have worked with her 
as a judge, as a professor, and they conclude without any doubt that 
she is one of the most gifted people to ever be nominated to the 
Supreme Court.
  There is nothing exotic about Judge Barrett. She is going onto the 
Court in about an hour. That is exactly where she needs to be. She is 
the type of person who has lived a life worthy of being nominated. She 
is the type of person who is worthy of receiving a large vote in the 
Senate, but she won't get it.
  She is not going to get one Democratic vote. Write her out of the 
process if you want to. That is fine. But what about the others? All I 
can say is that we are going to have an election here in about a week, 
and whatever happens, I am going to acknowledge the winner when it is 
all said and done.
  It may go to the Supreme Court. I don't know. But there will be a day 
that we know who won, and I am going to accept those results, and I am 
going to do with the next President what I have tried to do with this 
one and every other one--try to find a way forward on things that are 
hard to keep the country moving forward.
  To the majority leader and the minority leader, it is a tough place 
around here now. This, too, shall pass. But this is about Judge 
Barrett. This is about her time, her moment. She has done everything 
you would expect of her. She has exceeded every challenge put in her 
way. She has impressed everybody she has worked with. She has impressed 
the country. She is going onto the Court because that is where she 
deserves to be.
  As to us in the Senate, maybe down the road we can get back to the 
way we used to be. I don't know. But I do know this. There is nothing 
exotic about Judge Barrett. She is as mainstream as it gets from our 
side of the aisle.
  When it comes to people outside of politics looking at her, it was 
universal: ``highly qualified,'' ``highly competent,'' ``ready to serve 
this country as Associate Justice of the Supreme Court.''
  My last thought: It is hard to be a conservative person of color. 
That is a very difficult road to hoe in modern American politics. My 
good friend Tim Scott is a great voice for conservatism. And Tim--a lot 
of things were said about Tim that were said about nobody else on our 
side of the aisle. He is tough. He can handle it. The same for 
conservative women.
  Judge Barrett did not abandon her faith. She embraces it. But she 
said: I embrace my faith. But as a judge, it will not be the rule of 
Amy. It will be the rule of law. It will be the facts. It will be the 
law and the outcome dictated by the law, not by anything I personally 
  I will say this. For the young, conservative women out there who are 
pro-life and embrace your faith, there is a seat at the table for you. 
This is historic. This nomination is different. This is a breakthrough 
for conservative young women.
  I was honored to be the chair of the committee that reported out 
Judge Barrett to the floor of the Senate, and I am going to be honored 
to cast my vote to put her on the Supreme Court, exactly where she 
deserves to be.
  I yield the floor.
  The PRESIDING OFFICER. The minority leader.
  Mr. SCHUMER. Mr. President, today, Monday, October 26, 2020, will go 
down as one of the darkest days in the 231-year history of the U.S. 
  Let the record show that tonight the Republican Senate majority 
decided to thwart the will of the people and confirm a lifetime 
appointment to the Supreme Court in the middle of a Presidential 
election, after more than 60 million Americans have voted.
  Let the record show that tonight the Republican majority will break 
231 years of precedent and become the first majority to confirm a 
Supreme Court Justice this close to election day.
  Let the record show that tonight the Republican majority will make a 
mockery of its own stated principle that the American people deserve a 
voice in the selection of Supreme Court Justices, completing the 
partisan theft of two seats on the Supreme Court using completely 
contradictory rationales.
  And let the record show that the American people--their lives and 
rights and freedoms--will suffer the consequences of this nomination 
for a generation.
  This entire debate can be summed up in three lies propagated by the 
Republican majority and one great terrible truth. The first lie is that 
the Republican majority is being consistent in following its own 
standard--what rubbish. After refusing a Democratic nominee to the 
Supreme Court because an election was 8 months away, they will confirm 
a Republican nominee before an election that is 8 days away.
  What is Leader McConnell's excuse? He claims that the principle of 
not confirming Justices in Presidential years only applies when there 
is divided government. But this is what Leader McConnell said after 
Justice Scalia died: ``The American people should have a voice in the 
selection of their next Supreme Court Justice.''
  That is all he said. He didn't say that the American people should 
have a voice but only when there is divided government. No, the last 
bit is ex post facto
  If this were really about divided government all along, Republican 
Senators would not have promised on the record to follow their own 
standard if the situation was reversed. ``I want you to use my words 
against me,'' said the chairman of the Judiciary Committee. ``If there 
is a Republican President in 2016 and a vacancy occurs in the last year 
of the first term, you can say Lindsey Graham said, let the next 
president, whoever it might be, make that nomination.''
  So the claim by the leader that this is consistent with their own 
principle--please. Rather than accept the consequences of its own words 
and deeds, the Republican majority is lighting its credibility on fire.
  This hypocritical, 180-degree turn, is spectacularly obvious to the 
American people.
  The second lie is that the Republican majority is justified because 
of Democratic actions on judicial nominations in the past. The 
Republican leader claims that his majority's actions are justified by 
all the bad things Democrats did years ago. He claims that every 
escalation of significance in judicial debates was made by Democrats. 
But in his tortured, convoluted history lesson, Leader McConnell left 
out a whole bunch of chapters. He omitted that Republicans bottled up 
more than 60 judicial nominees by President Clinton, refusing them even 
a hearing.
  He made no reference to the decision by Republican Senators to hold 
open 14 appellate court seats in the 1990s so that a Republican 
President could fill them. Instead, a tactic Republicans would revisit 
under President Obama, when Republicans used partisan filibusters to 
block his nominees to the DC

[[Page S6585]]

Circuit, at the time, Republican Senators, including my colleague from 
Kentucky, amazingly accused President Obama of trying to pack the court 
by the mere act of nominating judges to vacancies of the Second 
Circuit. What a hypocritical double standard, which appears to be 
endemic in Leader McConnell's recounting of history.
  And on top of it all, the leader has asked the Senate to play a blame 
game that dates all the way back to 1987, pointing to a 3-minute speech 
by Senator Kennedy about Robert Bork as the original sin in the 
judicial wars. Seriously, that is what he said. Because one Democrat 
give one 3-minute speech that Republicans didn't like, Leader McConnell 
can steamroll the minority to confirm a Justice in the middle of an 
  Imagine trying to explain to someone: Sorry, I have to burn down your 
house because of something one of your friends said about one of my 
friends 33 years ago. That is how absurd and obnoxious this game has 
gotten. That is how unjustifiable the majority's actions are, how 
flimsy their excuses have become.
  The leader's final argument boils down to: But you started it--a 
declaration you would sooner hear in the schoolyard than on the floor 
of the U.S. Senate.
  The third and perhaps the greatest lie is that the Republican 
majority is confirming Judge Barrett solely on the basis of her 
qualifications, not based on her views on the issues. My colleagues 
insist that Judge Barrett should be confirmed on her credentials alone. 
That is all they talk about. They don't talk about her views on the 
issues, only qualifications. Well, this canard is about as apparent as 
a glass door. Everyone can see right through it.
  What is the real reason Republicans are so desperate to rush Judge 
Barrett onto the Supreme Court? Of course, it is not because of her 
qualifications. If my Republican friends truly believed that the only 
thing that mattered about a judicial candidate is their qualifications, 
then Merrick Garland would be sitting on the Supreme Court right now.
  If the Republican leader truly believed that judicial appointments 
were about qualifications, and qualifications alone, Judge Garland 
would be Justice Garland right now.
  Judge Garland was among the most qualified candidates ever--ever--to 
be nominated to the Supreme Court. No Republican Senator has disputed 
that. But they didn't want Judge Garland on the Bench. They do want 
Judge Barrett. They subjected Judge Garland to an unprecedented 
partisan blockade, but they are erecting a monument to hypocrisy to 
rush Judge Barrett on the bench.
  Why? It is not because she is more qualified than Judge Garland was. 
What is the difference between Barrett and Garland? The difference is 
not qualifications but views. We know that. We all know that. 
Healthcare, a woman's rights, a woman's right to choose, gun safety--
you name it. It is not because the far right wants Judge Barrett's 
views on the Court, but it is because the far right wants Judge 
Barrett's views on the Court but not Judge Garland's.
  The truth is, this nomination is part of a decades-long effort to 
tilt the judiciary to the far right, to accomplish through the courts 
what the radical right and their allies--Senate Republicans--could 
never accomplish through Congress.
  Senate Republicans failed to repeal the Affordable Care Act, so 
President Trump and Republican attorneys general are suing to eliminate 
the law in court.
  Republicans would never dare to attempt to repeal Roe v. Wade in 
Congress. So they pass onerous laws in State legislatures that they 
control to drive that right to the point of near extinction and then 
provoke the Supreme Court to review Roe v. Wade.
  The far right has never held the majority on the court to limit Roe 
v. Wade or Griswold, but if Judge Barrett becomes Justice Barrett, it 
very well might.
  And if you are looking for some hard numbers to prove that the 
political right considers ideology and not just qualifications, 
consider this. Under Justice Roberts, there have been 80 cases--80--
decided by a 5-to-4 majority, in which the five Justices nominated by 
Republican Presidents came down one side and the four Justices 
nominated by Democratic Presidents came down on the other. Eighty 
cases--exactly the same majority--calling balls and strikes. And in an 
amazing coincidence, all the Republican-nominated Justices think it is 
a strike and all the Democratic ones think it is a ball, or vice versa. 
It would be the most remarkable coincidence in the history of 
mathematics if nine Justices, simply calling balls and strikes, 
exhibited the same split in the exact same configuration 80 times.
  We all know what the game is here. So stop pretending. Stop 
pretending there aren't entire organizations dedicated to advancing 
far-right judges. Stop pretending that the political right doesn't 
spend millions of dollars to prop up the far-right Federalist Society 
and support certain judicial candidates because they only want 
``qualified'' judges. No, they want to systematically and permanently 
tilt the courts to the far right.
  So does Judge Barrett have views on legal issues? You bet she does. 
That brings me to the one great and terrible truth about this 
nomination. The American people will suffer the consequences of Judge 
Barrett's far-right, out-of-the-mainstream views for generations.
  Judge Barrett came before the Judiciary Committee and refused to 
answer nearly any question of substance. That is the new game at the 
hearings. She would not answer questions about healthcare. She would 
not say whether voter intimidation is illegal. She would not say if she 
thought Medicare and Social Security were unconstitutional. She could 
not even offer platitudes in responses to questions about the peaceful 
transfer of power, and refused to say if climate change was real.
  It is not because Judge Barrett isn't allowed to answer these 
questions. It is because she knows how unfavorable her views on the 
issues might sound to the American people.
  But the thing is, we do know how Judge Barrett thinks. She views 
certain rights, like the right to privacy, through a pinhole. She was 
closely affiliated with organizations who advocated the outright repeal 
of Roe v. Wade.
  But she views other rights, like the right to keep and bear arms, as 
almost infinitely expansive. She once authored a dissent arguing the 
Federal Government does not have the authority to ban all felons--
felons--from owning guns.
  Only a few hours ago, the Republican Senator from Missouri proudly 
declared from the Senate floor that Judge Barrett is the most openly 
pro-life judicial nominee to the Supreme Court in his lifetime: ``This 
is an individual,'' he said of Judge Barrett, ``who has been open in 
her criticism of that illegitimate decision, Roe v. Wade.'' He was 
being more honest than most of the talk around here, which says it is 
only about qualifications.
  Judge Barrett has proudly fashioned herself in the mold of her 
mentor, Justice Scalia, who, before his death, appeared set to declare 
union fees to be unconstitutional, driving a stake into the heart of 
the American labor movement. While American workers break their backs 
to make ends meet and earn ever less of ever growing corporate profits, 
what might Justice Scalia's former clerk portend for the future of 
labor rights?
  What about voting rights? Judge Barrett has suggested that certain 
rights are civic rights, including voting rights, and can be restrained 
by the government, but other rights, like the right to keep and bear 
arms, are individual rights that cannot be subject to even the most 
commonsense restrictions.
  And, of course, what about healthcare? Judge Barrett has argued that 
Justice Roberts got it wrong when he upheld the Affordable Care Act. 
She said that, if Justice Roberts read the statute properly, the 
Supreme Court would have had to invalidate--her words--the law.
  That is the same thing, by the way, that Donald Trump said about 
Justice Roberts and the ACA. That is the great and terrible truth about 
this nomination.
  Judge Barrett holds far-right views, well outside the American 
mainstream, and those views matter to the vast majority of Americans. 
They matter to

[[Page S6586]]

women facing the hardest decision of their lives. They matter to LGBTQ 
Americans like my daughter, who only 5 years ago won the legal right to 
marry who she loves and could lose it just as fast. They matter to 
little girls like 7-year-old Penny Fyman from West Hempstead, Long 
Island, born with a neurological disorder, bound to a wheelchair, 
attached to a feeding tube, who is alive today--alive today--because of 
the Affordable Care Act.
  We are talking about the rights and freedoms of the American people: 
their right to affordable healthcare, to make private medical decisions 
with their doctors, to join a union, to vote without impediment, to 
marry whom they love and not be fired because of who they are.
  Judge Amy Coney Barrett will decide whether all of those rights will 
be sustained or be curtailed for generations. And, based on her views 
on the issues--not on her qualifications but her views on the issues--
Judge Barrett puts every single one of those fundamental rights--
American rights--at risk.
  So I want to be clear with the American people. The Senate majority, 
this Republican Senate majority, is breaking faith with you, doing the 
exact opposite of what it promised 4 years ago, because they wish to 
cement a majority on the Supreme Court that threatens your fundamental 
  And I want to be very clear with my Republican colleagues. You may 
win this vote, and Amy Coney Barrett may become the next Associate 
Justice of the Supreme Court, but you will never, never get your 
credibility back. And the next time the American people give Democrats 
a majority in this Chamber, you will have forfeited the right to tell 
us how to run that majority.
  You may win this vote, but in the process you will speed the 
precipitous decline of faith in our institution, our politics, the 
Senate, and the Supreme Court. You will give an already divided and 
angry Nation a fresh outrage, an open wound in this Chamber that will 
take a very long time to heal. You walk a perilous road.
  I know you think that this will eventually blow over, but you are 
wrong. The American people will never forget this blatant act of bad 
faith. They will never forget your complete disregard for their voices, 
for the people standing in line right now and voting their choice, not 
your choice. They will never forget the lack of consistency, honor, 
decency, fairness, and principle.
  They will never forget the rights that are limited, constrained, or 
taken away by a far-right majority on the Supreme Court, and history 
will record that, by brute political force, in contradiction to its 
stated principles, this Republican majority confirmed a lifetime 
appointment on the eve of an election, a Justice who will alter the 
lives and freedoms of the American people, while they stood in line to 
  Leader McConnell has lectured the Senate before on the consequences 
of a majority's action. ``You'll regret this,'' he told Democrats once, 
``and you may regret it a lot sooner than you think.'' Listen to those 
words: ``You'll regret this, and you may regret it a lot sooner than 
you think.''
  I would change just one word. My colleagues may regret this for a lot 
longer than they think.
  Here, at this late hour, at the end of this sordid chapter in the 
history of the Senate, the history of the Supreme Court, my deepest and 
greatest sadness is for the American people. Generations yet unborn 
will suffer the consequences of this nomination. As the globe gets 
warmer, as workers continue to fall behind, as unlimited dark money 
floods our politics, as reactionary State legislatures curtail a 
woman's right to choose, gerrymander districts, and limit the rights of 
minorities to vote, my deepest, greatest, and most abiding sadness 
tonight is for the American people and what this nomination will mean 
for their lives, their freedoms, their fundamental rights.
  Monday, October 26, 2020--it will go down as one of the darkest days 
in the 231-year history of the U.S. Senate.
  I yield the floor
  The PRESIDING OFFICER. The majority leader.
  Mr. McCONNELL. Mr. President, I think my remarks may encroach 
somewhat on the time previously set for beginning the vote. I ask 
consent that I be allowed to finish.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, this evening the Senate will render one 
of the most consequential judgments it can ever deliver. We will 
approve a lifetime appointment to our Nation's highest Court.
  Since the ink dried on the Constitution, only 114 men and women have 
been entrusted to uphold the separation of powers, protect people's 
rights, and dispense impartial justice on the Supreme Court. In a few 
minutes, Judge Amy Coney Barrett of Indiana will join their ranks.
  This body has spent weeks studying the nominee's record. We have 
examined 15 years of scholarly writings, about 100 opinions from the 
Seventh Circuit, and testimonials from legal experts running the gamut 
from close colleagues to total strangers.
  There have been one-on-one meetings for every Senator who wanted one 
and a week of intensive hearings. All of it--all of it--has pointed to 
one conclusion: This is one of the most brilliant, admired, and well-
qualified nominees in our lifetime.
  Intellectually, Judge Barrett is an absolute all-star. She graduated 
No. 1 in her class at Notre Dame Law School. She clerked on the second 
highest Federal court and the Supreme Court. Then she returned to her 
alma mater and became an award-winning academic.
  Judge Barrett's mastery of the Constitution gives her a firm grasp on 
the judicial role. She has pledged to ``apply the law as written, not 
as she wishes it were.'' Her testimony, her writings, and her 
reputation confirm a total and complete commitment to impartiality, and 
the nominee's personal integrity and strength of character are 
literally beyond reproach.
  She earned the highest rating from the left-leaning American Bar 
Association. They marveled at the ``breadth, diversity, and strength of 
the positive feedback [they] received from judges and lawyers of all 
political persuasions.''
  If confirmed, this daughter of Louisiana and Indiana will become the 
only current Justice with a law degree from any school not named 
Harvard or Yale--any school not named Harvard or Yale. She will be the 
first mother of school-aged children to ever sit on the Court.
  By every account, the Supreme Court is getting not just a talented 
lawyer but a fantastic person. We have heard moving testimony from 
former students whom Judge Barrett went out of her way to help and to 
mentor. Her past clerks describe an exemplary boss. Her fellow scholars 
describe a winsome, respectful colleague who is tailor-made for the 
collaborative atmosphere of the Court.
  By any objective standard, colleagues, Judge Barrett deserves to be 
confirmed to the Supreme Court. The American people agree. In just a 
few minutes, she will be on the Supreme Court.
  Two weeks ago, a CNN journalist made this observation that I found 
particularly interesting. This is what he said: ``Let's be honest . . . 
in another [political] age . . . Judge Amy Coney Barrett would be 
getting 70 votes or more in the United States Senate . . . because of 
her qualifications''--in a different era.
  Now, we know that is not going to happen. These are not the days when 
Justice Scalia was confirmed 98 to 0 and Justice Ginsburg was confirmed 
96 to 3. By the way, I voted for both Ginsburg and Breyer. It seems 
like a long time ago now.
  We spent a lot of energy in recent weeks debating this matter. I 
think we can all acknowledge that both sides in the Senate have sort of 
parallel oral histories about the last 30 or so years. Each side feels 
the other side struck first and struck worst and has done more to 
electrify the atmosphere around here about confirmations.
  Now, predictably enough, I think our account is based on what 
actually happened, what actually occurred--factually accurate. I was 
there. I know what happened.
  I had laid it out earlier, and I will talk about some of it again so 
the people may understand how we got to where we are. It was the Senate 
Democrats--our colleagues over here, who amazingly enough don't seem to 
be on the floor at the moment--who spent the early 2000s boasting about 

[[Page S6587]]

brand-new strategy of filibustering qualified nominees from a 
Republican President. They were proud of it. They found a new way to 
halt the process, stop those crazy rightwing judges that Bush 43 was 
going to send up.
  They pioneered it because they knew what the precedent was at that 
point. At that point, as we discussed before, it just wasn't done. You 
could do it--you could--but you didn't. The best evidence that you 
shouldn't do it was the Clarence Thomas nomination, confirmed 52 to 48. 
All of us know that any one of us in this body has a lot of power to 
object. If any one of the 100 Senators at that time, including people 
who were vehemently opposed to Justice Thomas--like Joe Biden and Ted 
Kennedy--could have made us get to 60 votes and Thomas Clarence would 
not have been on the Supreme Court. That is how strong the tradition 
was, until the Democratic leader led the effort in the early 2000s to 
establish the new standard.
  Well, after establishing the new standard, they got kind of weary of 
it. In 2013, the so-called nuclear option was implemented because 
Republicans were holding President Obama's nominees to the same 
standard that they, themselves, had created. When the shoe got on the 
other foot, they didn't like it too much. It was too tight.
  Senate Democrats, both in 1992 and 2007, helpfully volunteered how 
they would have dealt with a nominee like we did in 2016. The then-
chairman of the Judiciary Committee, Joe Biden, helpfully volunteered 
in 1992 when Bush 41 was running for reelection that, had a vacancy 
occurred, they wouldn't fill it. There wasn't a vacancy, but he 
helpfully volunteered how they would deal with it if they had one. ``If 
there is a vacancy, we won't fill it.''
  Well, to one-up him, Leader Harry Reid and his friend--now the 
Democratic leader--Chuck Schumer said: 18 months--18 months--before the 
end of the Bush 43 period, if a vacancy on the Supreme Court occurred, 
they wouldn't fill it. That is a fact. What we are talking about here 
are the facts about how we got to where we are.
  I understand my Democratic friends seem to be terribly persuaded by 
their version of all of this. All I can tell you is, I was there, I 
know what happened, and my version is totally accurate. The truth is, 
on all of this, we owe the country a broader discussion. Competing 
claims about Senate customs cannot fully explain where we are. 
Procedural finger-pointing does not explain the torrent of outrage and 
threats which this nomination and many previous ones had provoked from 
the political left.
  There are deeper reasons why these loud voices insist it is a 
national crisis. You just heard it: It is a national crisis when a 
Republican President makes a nominee for the Supreme Court. Catastrophe 
looms right around the corner. The country will be fundamentally 
changed forever when a Republican President makes a Supreme Court 
  They have hauled out the very same tactics for 50 years. Some of the 
opposition is more intense, but the doomsday predictions about the 
outcome of nominating these extremists like John Paul Stephens, David 
Souter--I mean, the country was hanging in the balance. Really?
  Well, somehow, everyone knows in advance that nominations like Bork, 
Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are certain to whip up 
national frenzies, while nominations like Ginsburg, Breyer, Sotomayor, 
and Kagan are just calm events by comparison.
  This glaring asymmetry predates our recent disputes. It comes, my 
colleagues, from a fundamental disagreement on the role of a judge in 
our Republic. We just have a fundamental difference of opinion. We just 
heard the Democratic leader name all of these things that are 
threatened by this nominee. It sounds very similar to the tunes we have 
heard before. We, like many Americans, want judges to fulfill the 
limited role the Constitution assigns to them: stick to text, resolve 
cases impartially, and leave policymaking to the people and their 
representatives, which is what we do here.
  We just spent 4 years confirming brilliant, qualified 
constitutionalists to the Supreme Court and lower courts who understand 
their roles--53 circuit judges, over 200 judges in total--and we are 
about to confirm the third Supreme Court Justice--what they all have in 
common: brilliant, smart, and know what a judge is supposed to be.
  The left thinks the Framers of our country got this all wrong. They 
botched the job--the people who wrote the Constitution, they didn't 
understand what a judge ought to be.
  Several Senate Democrats have reaffirmed in recent days during this 
discussion that they actually find it quaint or naive to think the 
judge would simply follow the law. Quaint or naive?
  Scalia used to say: If you want to make policy, why don't you run for 
office? That is not what we do here.
  Gorsuch said: We don't wear red robes or blue robes, we wear black 
  What they want is activist judges. They have made it quite clear. The 
Democratic leader just a few minutes ago made it quite clear: What they 
are looking for here is a small panel of lawyers with elite educations 
to reason backward from outcomes and enlighten all of the rest of us 
with their moral and political judgment, whether the Constitution 
speaks to the issue or not.
  They know what is best for us, no matter what the Constitution or the 
law may say. For the last several decades in many cases, that is what 
they have done--one activist decision after another, giving the 
subjective preferences of one side the force of law. Across a wide 
variety of social, moral, and policy matters like a healthy society 
would lead to democratic debate, the personal opinion of judges have 
superseded the will of the people.
  They call that a success, and they want more of it. President Obama 
actually was refreshingly honest about this. He said he wanted to 
appoint judges who had empathy. Well, think about that for a minute, 
colleagues. What if you are the litigant before the judge for whom the 
judge does not have empathy? You are in tough shape. You are in tough 
shape. So you give him credit for being pretty honest about this.
  That is what they are looking for--the smartest, leftish people they 
can put to make all the decisions for the rest of us, rather than 
leaving it to the messy democratic process to sort these things out, 
the way the Framers intended.
  It is clearly why we have taken on such an outsized, combative 
atmosphere with regard to these confirmations. That is why they have 
become so contentious, because they want to control not only the 
legislative body but the judicial decisions as well.
  Let me just say this. There is nothing innate about legal training 
that equips people to be moral philosophers. There is just nothing 
inherent in legal training that equips people to be moral philosophers.
  Incidentally, as I just said, that is why these confirmations have 
taken on such an outsized, unhealthy significance. The remarks we just 
heard from across the aisle show exactly why the Framers wanted to stop 
the courts from becoming clumsy, indirect battlefields for subjective 
debates that belong in this Chamber and over in the House and in State 
legislatures around the country.
  The left does not rage and panic at every constitutional judge 
because they will simply enact our party's policy preferences. Any 
number of recent rulings make that very clear. The problem that every 
judicial seat occupied by a constitutionalist is one fewer opportunity 
for the left to go on offense.
  At the end of the day, this is a valid debate. The difference of 
opinion on the judicial role is something the Senate and our system are 
built to handle. But there is something else, colleagues, our system 
cannot bear. As you heard tonight, we now have one political faction 
essentially claiming they now see legitimate defeat as an oxymoron. 
They now see legitimate defeat as an oxymoron.
  Our colleagues cannot point to a single Senate rule that has been 
broken--not one. They made one false claim about committee procedure, 
which the Parliamentarian dismissed. The process comports entirely with 
the Constitution. We don't have any doubt, do we, that if the shoe was 
on the other foot, they would be confirming this nominee? Have no 
doubt, if the shoe was on the other foot in 2016, they

[[Page S6588]]

would have done the same thing. Why? Because they had the elections 
that made those decisions possible.
  The reason we were able to make the decision we did in 2016 is 
because we had become the majority in 2014. The reason we were able to 
do what we did in 2016, 2018, and 2020 is because we had the majority. 
No rules were broken whatsoever.
  All of these outlandish claims are utterly absurd. The louder they 
scream, the more inaccurate they are. You can always tell--just check 
the decibel level on the other side. The higher it goes up, the less 
accurate they are.
  Our Democratic colleagues keep repeating the word ``illegitimate'' as 
if repetition would make it true. If you just say it often enough, does 
it make it true? I don't think so. We are a constitutional Republic. 
Legitimacy does not flow from their feelings. Legitimacy is not the 
result of how they feel about it. You can't win them all. Elections 
have consequences.
  What this administration and this Republican Senate has done is 
exercise the power that was given to us by the American people in a 
manner that is entirely within the rules of the Senate and the 
Constitution of the United States.
  Irony, indeed. Think about how many times our Democratic friends have 
said--berating President Trump for allegedly refusing to accept 
legitimate outcomes he does not like. How many times have we heard 
that: President Trump won't accept outcomes he does not like. They are 
flunking that very test right before our eyes.
  That is their problem. They don't like the outcome.
  Well, the reason this outcome came about is because we had a series 
of successful elections. One of our two major political parties 
increasingly claims that any--any political system that deals them a 
setback is somehow illegitimate. And this started actually long before 
this vacancy, as we all know.
  One year ago, Senate Democrats sent the Court--the Court, directly, 
an amicus brief that read like a note from a gangster film. They wrote: 
``The Supreme Court is not well'' in their amicus brief. ``The Supreme 
Court is not well. . . . Perhaps the Court can heal itself [heal 
itself] before the public demands it be `restructured.' ''
  In March of this year, the Democratic leader stood outside the Court. 
He went over in front of the Court and threatened multiple Justices by 
name. Here is what he said: ``You won't know what hit you if you go 
forward with these awful decisions.''
  ``You will pay the price!''
  That is the Democratic leader of the Senate in front of the Supreme 
Court mentioning Justices by name and, in effect, saying: If you rule 
the wrong way, bad things are going to happen.
  For multiple years now, Democrats in this body and on the 
Presidential campaign stump have sought to revive the discredited 
concept of Court packing. Every high school student in America learns 
about Franklin Roosevelt's unprincipled assault on judicial 
independence, so now they are thinking about repeating it. Former Vice 
President Biden, who spent decades condemning the idea here in the 
Senate, obediently says he will look into it.
  Most importantly, the late Ruth Bader Ginsburg said last year, when 
asked about this, she said nine is the right number. That is the 
vacancy we are filling right now. I don't think any of them quoted her 
on this issue, have they? Ruth Bader Ginsburg said nine is the right 
  These latest threats follow decades of subtler attempts to take 
independent judges and essentially put them on political probation: You 
don't rule the way I want, something dire might happen.
  How many consecutive nominees have Democrats and the media insisted 
would ``tip the balance'' of the Court? How often do we hear that--
``tip the balance'' of the Court? Has anyone tallied up how many ``hard 
right turns'' the courts have supposedly taken in our lifetimes? All 
this ominous talk is a transparent attempt to apply improper pressure 
to impartial judges.
  Rule how we want or we are coming after the Court. Rule how we want 
or we are coming after the Court. Vote how we want or we will destroy 
the Senate by adding new States. These have been the Democratic 
demands. This is not about separation of powers. It is a hostage 
situation--a hostage situation.
  Elections come and go. Political power is never permanent. But the 
consequences could be cataclysmic if our colleagues across the aisle 
let partisan passion boil over and scorch--scorch the ground rules of 
our government.
  The Framers built the Senate to be the Nation's firewall. Over and 
over, this institution--our institution--has stood up to stop 
recklessness that could have damaged our country forever.
  So tonight, colleagues, we are called on to do that again. Tonight, 
we can place a woman of unparalleled ability and temperament on the 
Supreme Court. We can take another historic step toward a Judiciary 
that fulfills its role with excellence but does not grasp after power 
that our constitutional system intentionally assigns somewhere else.
  And we can state loud and clear that the U.S. Senate does not bow to 
intemperate threats.
  Voting to confirm this nominee should make every single Senator 
  So I urge my colleagues to do just that.
  Mr. SCHUMER. Mr. President, I note the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  The PRESIDENT pro tempore. A quorum is present.
  All postcloture time has expired.
  The question is, Will the Senate advise and consent to the nomination 
of Amy Coney Barrett, of Indiana, to be Associate Justice of the 
Supreme Court of the United States?
  Mr. McCONNELL. I ask for the yeas and nays.
  The PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 52, nays 48, as follows:

                      [Rollcall Vote No. 224 Ex.]


     Scott (FL)
     Scott (SC)


     Cortez Masto
     Van Hollen
  The PRESIDENT pro tempore. The nomination of Amy Coney Barrett, of 
Indiana, to be an Associate Justice of the Supreme Court of the United 
States is confirmed.
  The PRESIDING OFFICER (Ms. Murkowski). The majority leader.