September 21, 2020 - Issue: Vol. 166, No. 163 — Daily Edition116th Congress (2019 - 2020) - 2nd Session
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Supreme Court Nominations (Executive Session); Congressional Record Vol. 166, No. 163
(Senate - September 21, 2020)
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[Pages S5726-S5728] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] Supreme Court Nominations Madam President, Americans across the Nation were shocked and devastated when they heard the news of Justice Ginsburg's passing. It was a moment we will not forget. The gravity of that announcement hit hard not just because of the loss of a national icon but also because of the sense of foreboding of what would happen next, right here in this Chamber, in the U.S. Senate. The year 2020 has already brought us so much pain and anguish. The pandemic has killed 200,000 Americans, sickened over 6 million; devastating job losses and economic damage; a long overdue national reckoning over racial injustice; deadly wildfires and natural disasters destroying communities; and a President, sadly, who seeks to divide and inflame instead of uniting America and bringing us together in common purpose. Justice Ginsburg saw the tension that her absence from the Court would cause. Shortly before she passed away, Justice Ginsburg said: ``My most fervent wish is that I will not be replaced until a new President is installed.'' Unfortunately, Justice Ginsburg's last request is falling on deaf ears in the Senate Chamber. Shortly after the news of her death, Senator McConnell announced that he would hold the Supreme Court vote this year. Here is what Senator McConnell, then leader of the Senate, said: The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president. These are the words of Senator Mitch McConnell. That statement is very clear and unambiguous. Senator McConnell made it 269 days before the Presidential election, the so-called McConnell rule. This was a firm precedent establishing that Senate Republicans would not consider a Supreme Court nominee in an election year. President Barack Obama sent the name of Judge Merrick Garland from the DC Circuit to the Senate for a hearing and a vote. The treatment he received from the Senate was disgraceful. Senator McConnell announced he would not even give him the time of day, nor meet with him in his office, and he admonished those Republican Senators who did. Merrick Garland was being shunned by Senator McConnell because of his rule, the McConnell rule: No ``vacancy should be filled until we have a new president.'' In his determination to show that this principle would prevail, he shunned Merrick Garland. Well, it turns out that this rule of law, this McConnell rule that guided the Senate 4 years ago, was not as sacrosanct as one might think. A nation guided by a rule of law cannot have one set of rules under Democratic Presidents and another set under Republican Presidents. That is just what Senator McConnell called for on Friday. Shortly after the news--a short time after the news of Justice Ginsburg's [[Page S5727]] passing, Senator McConnell said: ``President Trump's nominee will receive a vote on the floor of the United States Senate.'' In direct violation of his own statement 4 years ago, Senator McConnell said that within hours after the announcement of the death of Justice Ginsburg. When Senator McConnell made that statement, we were only 46 days from the election. People in many States had already started casting their votes. Senator McConnell's justifications for breaking his own rule simply don't stand up to scrutiny--distinctions without any difference--and they have never stood up to common sense. Senator McConnell clearly said, when he laid down the McConnell rule on February 13, 2016, that the American people should have the last word and that election-year Supreme Court vacancies should be filled in the next Presidential term. There were no caveats, no exceptions, and no amendments. He stated it clearly in just a handful of words. Now Senator McConnell claims that whether or not the American people have a voice should depend on which party controls the Senate. Now his party controls the Senate, and his party has the President. And the rule--the so-called McConnell rule--that we were to live by apparently is being rejected by Senator McConnell himself. He says that what Republicans did in 2016 was acceptable because the Senate at that time was controlled by Republicans and a different party was in the White House that year--a distinction without a difference. Why should the composition of the Senate dictate whether the American people should have a voice in the selection of the next Supreme Court Justice? You could just as easily point out that 2016 was different because we had a President, Barack Obama, who actually had won the popular vote, unlike the current President. Should that fact resolve whether the American people get a voice in the Court's future? Either the American people do get an election-year voice regarding the future of the Court or they don't. In 2016, Senator McConnell said they do. Now he says they don't. It is a flip-flop, plain and simple, because it is to his personal political advantage to reverse this stated principle. The Republican effort to point to Senator Harry Reid for changing the Senate rules for lower court nominations is no justification. The reality is that Senator Reid was responding to an unprecedented Republican obstruction of President Obama's nominees, and Senator Reid made a point of not changing the rule--the 60-vote requirement--when it came to Supreme Court confirmations. It was Senator McConnell who did that in 2017. While Senate rules do change from time to time, you certainly can't have rules that depend on whether it is a Republican or a Democratic President or a Republican or Democratic Senate. That is exactly what Senator McConnell is calling for. So here is what it comes down to: In 2016, Senator McConnell said the people should get the voice through an upcoming election because that outcome at the moment was better for his Republican agenda of controlling the Court. In 2020, Senator McConnell reversed himself and said the people should not get a voice through the upcoming election because that outcome is better for the Republicans today. Let's be clear. This is not about rules or principle or comity; this is about raw partisan power. The hypocrisy is bad enough; what makes it worse is that it is hypocrisy which is so evident to the American people at this moment in history. What is at stake here? Is this just a matter of the battle of the giants in Washington, the big shots screaming at one another in the news through the media, or is there more to it? It turns out there is much more. Let's start with healthcare. This November, the Supreme Court will hold arguments in a case in which the Trump administration and Republicans are arguing that the Affordable Care Act should be struck down in its entirety. There are 20 million Americans who have health insurance under the Affordable Care Act, and every health insurance policy sold in America is subject to the law of the Affordable Care Act. If the Supreme Court does what the Trump administration and the Republicans are asking it to do, 20 million Americans could lose their healthcare coverage--600,000 of them in my State of Illinois--and tens of millions of Americans with preexisting conditions, including 5 million in Illinois, would lose protections the Affordable Care Act currently gives them. There have been 6 million Americans, remember, who have been diagnosed with positive results from COVID-19. Sadly, many more will be diagnosed in the years ahead, and they, of course, now must answer the question: Have you ever tested positive for COVID-19? If they answer it, they will have a preexisting condition, which the insurance company used to jump on to either raise your premiums or to deny you coverage. If Republicans have their way before the Supreme Court, young adults up to the age of 26 will no longer be able to stay on their parents' health insurance. Hospitals--especially in rural areas--will see a significant loss of revenue from the elimination of Medicaid expansion. At this moment, in the middle of a raging pandemic, it is unimaginable that the Republicans are trying to wipe out the critical healthcare protections in the Affordable Care Act, but that is what they are fighting for in the case before the Supreme Court. Here, Republicans were never able to repeal the Affordable Care Act on the floor of the Senate. I will never forget that early morning vote. It was about 2 or 2:30 a.m. when John McCain came through those doors and stood right by that table, and as much as he could lift that right arm, because it had been broken when he was a prisoner of war-- something which I honor him for and never will ridicule him for--he lifted that arm as much as he could and said no. No. That ``no'' vote saved the Affordable Care Act. Why did he do it? He explained afterwards: The Republicans don't have an alternative. They don't have a substitute. They want to eliminate an Obama law, and they have nothing to replace it with. That is still the case today. The Republicans are no longer fighting this battle on the floor of the Senate; they are fighting it across the street in the Supreme Court building. So the deciding vote on the Supreme Court--is it important to America? For 20 million Americans, it is deadly important as to whether they have affordable, quality healthcare. Republicans were never able to repeal the Affordable Care Act because of John McCain's courage, so Republicans are now trying to accomplish in the Supreme Court what they couldn't accomplish on the floor of the Senate. In fact, on many issues where the Republican Party's position is not popular, Republicans are trying to get the courts to do what they can't do legislatively, issues like restricting the right to vote and other civil rights; rolling back environmental protections; dictating what women can and cannot do with their own health; wiping gun safety laws off the books; deporting Dreamers; and undermining worker protections. The Supreme Court was created by the Founders of our Nation to be the arbiter of equal justice under the law, not as a tool for one party's political agenda. Well, the American people can smell a rat. They know when the game is rigged. They look at the McConnell rule that he announced in 2016, and now they look at what he is actually doing in 2020. They know this isn't on the level. Sadly, in many ways, Senate Majority Leader McConnell has broken the Senate down in recent years, and I fear that if we go down the path President Trump and Senator McConnell has set us on, the Supreme Court may end up broken too. It will take only four Republican Senators to stop this travesty-- four. Four Republican Senators can say ``enough.'' We lived by the McConnell rule 4 years ago. We publicly stated that it was the right thing to do then. We would be hypocrites to an extreme if we turn our backs on it now. I hope--I just hope--there will be four Republican Senators with the courage--and it will take courage--to say that. We should honor Justice Ginsburg's fervent last wish and let the American people have a voice in filling this vacancy. That is what Senator McConnell insisted on 38 weeks before the [[Page S5728]] election in 2016. That should also be our standard in 2020, 6 weeks before the election. There should be no confirmation before inauguration. 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. COONS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER (Mr. Boozman). Without objection, it is so ordered.
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