Statement On Confirmation Vote Of To Be Justice Amy Barrett "The Masks Are Off"

. . . . Senate Floor

Just four weeks ago members of the Senate gathered just down the hallway in Statuary Hall.  We gathered to honor Justice Ruth Bader Ginsburg, the first woman to lie in state at the U.S. Capitol.  Justice Ginsburg was a trailblazer, a woman who may have stood at just over five feet tall but was nonetheless a giant of the law.  The nation grieved for her, not simply because she was a brilliant lawyer and justice, but because she was a fighter.  And she fought for those who needed fighting for most — Americans for whom the promise of America was still just a promise. 

I have spoken at length about what Justice Ginsburg meant to the struggle for equality for millions of Americans.  I will not repeat those words today, except to say that Justice Ginsburg’s life’s work left our nation a more perfect union.  We will forever be in her debt.

A day after we gathered in Statuary Hall, with the nation in mourning — and days before Justice Ginsburg was laid to rest with her husband in Arlington Cemetery — the President held a celebratory ceremony to nominate her replacement.  The masks were off at that Rose Garden ceremony, in more ways than one.  Republicans made it clear they would stop at nothing to confirm Justice Ginsburg’s replacement before a presidential election just weeks away.  Yes, the masks were off.

From that moment, the confirmation process for Judge Amy Coney Barrett has been a caricature of illegitimacy.  I will not dispute that it is the responsibility of this body to consider Justice Ginsburg’s replacement to the Supreme Court.  But this is not how we should do it. 

Not during such a polarizing time for our country, just one week from a presidential election after more than 57 million Americans have already voted.  Not at the expense of every precedent and principle this institution once stood for.  Not when doing so requires that half of the United States Senate go back on their word, contradicting every argument they once made about Supreme Court vacancies during an election year.  Not when this sprint to confirm Judge Barrett gave the Judiciary Committee just two weeks to prepare for her hearings, when the Committee has afforded itself three times as long to vet other modern nominees to our nation’s highest court.  Not when records of Judge Barrett’s undisclosed speeches and materials have continued to pour in, even after her hearings, revealing what a slipshod process this has been from start to finish.  And not when the Senate is doing nothing — nothing — to pass a desperately needed COVID relief bill.

Every senator knows in their heart this is wrong. 

Senator McConnell ramming this nomination through no matter the cost, while worrying about the politics of providing relief to millions of Americans suffering during this still-worsening pandemic — which has left 225,000 Americans dead — says everything one needs to know about the priorities of today’s Republican Party.  Yes, the masks are off.

It’s far from a secret why President Trump and Senate Republicans are hell-bent on confirming Judge Barrett before Election Day.  All you have to do is look at the calendar:  On November 10, the Supreme Court will hear arguments in California v. Texas, the Republican-led lawsuit to strike down the Affordable Care Act.  And Republicans see a Justice Barrett as an insurance policy to ensure there will be a five-vote majority to finally strike down the law.

Judiciary Committee Republicans spent last week crying foul, complaining that it is fearmongering to claim that they see this vacancy as an opportunity to overturn the ACA.  But fear mongering implies that we’re not talking about the facts.  So let’s review some basic facts.

It is the Republican Attorneys General who are asking the Court to throw out the entire ACA.  Not just part of it — all of it.  It is the Trump Justice Department that has sided with the Republican-led lawsuit.  And it is this Republican-led Senate, in a vote just weeks ago, that gave the greenlight to the Trump Justice Department to take this position — a position that, if successful, would terminate health insurance for more than 20 million Americans, terminate the Medicaid expansion for 15 million more, and terminate protections for 130 million Americans with preexisting conditions.  While disappointing, this Senate vote was hardly surprising.  Republicans in Congress have now voted to repeal or gut the ACA at least 70 times — seventy, as in seven-zero.

As if Republicans could not be clearer about their intentions, just days ago President Trump was asked on national television about the fate of the ACA before the Supreme Court.  He said:  “I hope that they end it.  It’ll be so good if they end it.”   

Like Captain Ahab of Herman Melville’s Moby Dick, Republicans have been single-mindedly obsessed with killing the ACA — their great white whale — since the moment the law was enacted.  Having failed thus far in both Congress and the courts, they see Judge Barrett as the final harpoon to once and for all end the law.  So when Republicans plead innocent and claim they have no intentions of taking away people’s health care protections, Americans will remember that their actions speak much louder than their words.

And Republicans have yet another horse in this race — that is, the actual race for the White House and Congress.  Always one to say the quiet part out loud, President Trump has repeatedly stated his expectation that his nominee will side with him in any election-related dispute.  Baselessly claiming that Democrats have “rigged” the election and falsely labeling mail-in ballots as a “scam,” President Trump promises to challenge any election loss in the courts.  That’s why he says “it’s very important that we have nine justices.”  Another Republican on the Judiciary Committee has echoed the President, claiming that the “entire reason” they need Judge Barrett confirmed now is to ensure that no election-related dispute is deadlocked in a 4 to 4 decision.  Mind you, I do not recall Republicans making this argument when they blocked Judge Merrick Garland from receiving a vote for eight months prior to the last presidential election.

Just this week we’ve seen why Republicans are all of a sudden so anxious to have a ninth justice seated before Election Day.  The Republican Party is waging an all-out war on voting in the courts right now, with the goal of disenfranchising as many minority, poor, elderly, vulnerable, and young voters as possible.  Knowing that voters are relying on mail-in ballots in the midst of the COVID-19 pandemic, Republicans are unapologetically fighting state and local attempts to make absentee voting easier. 

And it’s clear that Republicans believe having Judge Barrett on the Court will help them to suppress the vote.  Last week, deadlocked 4 to 4, the Supreme Court left in place a Pennsylvania Supreme Court order requiring officials to count absentee ballots received within three days of the election.  Yesterday, anticipating Judge Barrett’s imminent confirmation may tip the scale, the Pennsylvania Republican Party asked the Supreme Court to review the case again — less than a week after losing the first time.

Unfortunately, for her part, Judge Barrett said nothing during her hearings last week to assuage the American people that she would be anything but a greenlight for the deeply harmful, unpopular objectives of President Trump and Republicans.

First and foremost, Judge Barrett repeatedly declined to distance herself from her litany of anti-ACA comments and writings.  She also repeatedly declined to confirm whether she would follow Supreme Court precedent upholding the ACA.  Judge Barrett once wrote: “However cagey a justice may be at the nomination stage, her approach to the Constitution becomes evident in . . . [what] she writes.”  Using Judge Barrett’s own standard, then, one cannot escape the conclusion that she will view the ACA as a Justice the same way she has always viewed the ACA: unconstitutional and unsalvageable.

My concerns only grew when Judge Barrett refused to commit to recusing herself from any election-related disputes.  President Trump has put Judge Barrett in an unenviable position by making it impossible for Americans not to question her impartiality should she vote in his favor in an election dispute.  If a Justice Barrett votes to throw the election for President Trump, I fear not just the Court but our democracy itself would suffer an existential blow to its legitimacy. 

My concerns grew into alarm when Judge Barrett refused to affirm even the most basic tenets of our democracy.  She would not affirm to me that a president must comply with a court order and the Supreme Court has the final word.  She would not state whether the President can unilaterally postpone a presidential election, despite the law clearly stating he cannot.  She would not affirm to me whether our Constitution contemplates a peaceful transition of power, despite the 20th Amendment laying out the procedures for precisely such a transition.  And she would not state whether it is illegal to intimidate voters at the polls, despite federal law explicitly making voter intimidation a criminal offense.  I’ve never seen a self-described originalist so hesitant to merely restate the plain text of our Constitution and laws.

In fact, Judge Barrett refused to say much of anything about pretty much everything.  She refused to answer over 100 questions during her hearings and over 150 written questions.  She did so by spuriously invoking the so-called “Ginsburg Rule,” which falsely purports that the late Justice Ginsburg avoided answering any and all substantive questions during her confirmation hearings.

Well, I participated in Justice Ginsburg’s hearings.  Justice Ginsburg gave detailed answers on a number of constitutional issues, including unequivocally affirming her belief that a woman’s right to choose is central to her dignity.  In all, Justice Ginsburg took clear positions on dozens and dozens of cases during her hearings.  In stark contrast, Judge Barrett wouldn’t even restate — not even comment on or discuss, but just restate — black letter law.

I have never seen such top-to-bottom refusals to answer basic questions in the 16 Supreme Court confirmation hearings I have participated in.  But in some ways, it was only fitting that a confirmation process that has been a caricature of illegitimacy concluded with such hearings.  Hearings in which the nominee wouldn’t even acknowledge that masks inhibit the spread of COVID-19, or that climate change is real, or that voter discrimination exists.  I fear for what this means for the future of the Judiciary Committee’s confirmation process, now that Republicans have reduced our Committee’s role to a mindless rubberstamp of a President’s nominees, just as they have diminished the Senate to a subordinate arm of the executive branch.

The Republican argument for proceeding in this way, just one week from a presidential election, boils down to this:  We have the votes, so anything goes.  Yet, having the power to do something does not make it right.  The damage that will be left in the wake of this confirmation will stain this body for generations.  When the word of a senator is rendered meaningless, when the words Advice and Consent are rendered meaningless, then this institution will be rendered meaningless.

Justice Ginsburg left us with a more equal and more perfect union.  She stood up for the right to vote.  She stood up for the environment, and for holding all those in power accountable.  She stood up for the rights of women to be free from discrimination, to control their own bodies, and to be equal to men.  She stood up for the rights of minorities, the rights of the LGBTQ community, and the rights of all those who have been marginalized. 

Judge Barrett, if confirmed, will not.  Based on my review of her record and based on her testimony, I believe a Justice Barrett would set the clock back decades on all of the rights that Americans have fought so hard to achieve and protect.

I have said that Justice Ginsburg would have dissented from this process.  The least I can do is join her.  I will vote no.

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