Nomination of Amy Coney Barrett

Floor Speech

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Mr. KING. Mr. President, ``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''--Senator Mitch McConnell, February 13, 2016. I don't always agree with Senator McConnell, but I agree with him on that one. This is a violation of our rules, of our history.

There have been 13 vacancies within the last 10 months of a Presidential election year in American history. Nine of them were before July 1. Of those nine, seven were confirmed by the Senate, two were not: one under President John Tyler and the other was Merrick Garland.

There have been only four vacancies in the Supreme Court that have occurred after July 1 of an election year; zero of them have been confirmed: three in three cases, including Abraham Lincoln. They weren't even nominees; the President waited until after the election. In one, there was a nominee; the Senate tabled the nomination. So all of this talk that we have had about history and precedent, those are the facts: 13 in the last 10 months, 9 of them before July 1--all were confirmed except one 150 years ago and Merrick Garland.

I agree with Mitch McConnell on the 13th of February 2016: ``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.'' He said that 8 months before the election.

This confirmation, if it takes place tomorrow, will be 8 days before the election. It doesn't pass the straight-face test. If there is a concern about the will of the American people, about one-third of the voters have already voted. This election is already one-third over, and yet we are barrelling forward with this nomination. We shouldn't even be here. We shouldn't even be having this discussion.

One of the reasons we shouldn't be here is that the Judiciary Committee broke its own rules in order to vote this nomination out. Here is rule 1 under ``Quorums,'' section III, of the Judiciary Committee rules: ``Seven Members of the Committee, actually present, shall constitute a quorum for the purpose of discussing business. Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business.''

What an inconvenient rule. But I have to presume that that rule, which has been there for years, was put there for a reason: in order to preserve the tradition of comity and respect for the minority that this body has often stood for.

``Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business.'' That quorum wasn't there when this nomination was reported out.

So we have trampled precedent. We have trampled history. We have even trampled the rules.

And I know that my colleagues say: But it is in good cause. We need to get this conservative Justice on the Court. It is for a good cause.

I am reminded of that wonderful play: ``A Man for All Seasons,'' about the ends justifying the means. Roper says: ``So now you'd give the Devil benefit of law''--the rules?

Sir Thomas More said: ``Yes. What would you do? Cut a great road the law to get after the Devil?''

Roper said: ``I'd cut down every law in England to do that!''

Then here is the point. This is what More responds:

Oh? And, when the last law was down, and the Devil turned around on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws for coast to coast--man's laws, not God's--and, if you cut them down-- and you're just the man to do it--d'you really think you could stand upright with the winds that would blow then? Yes, I'd give the Devil the benefit of the law, for my own safety's sake.

That is why we have rules, for all of our safety's sake. But we are going to violate those rules. We are in the process of violating those rules.

I have heard a great deal of pearl clutching around here about packing the Court. Oh, no, somebody is talking about breaking the rules and packing the Court. Well, of course, article III of the Constitution doesn't establish how many members of the Supreme Court there should be. The number of the Supreme Court has been changed seven times in our history. It has ranged from 4 to 10.

I don't want to pack the Court. I don't want to change the number. I don't want to have to do that, but if all of this rule-breaking is taking place, what does the majority expect? What do they expect? They expect that they are going to be able to break the rules with impunity, and when the shoe, maybe, is on the other foot, nothing is going to happen, that the people over here are just going to say: Oh, well, we can't change these rules

One of the things that has amazed me since I have come here is how people feel that they can do things to one another and never have it have any consequences, never have it come back on them. The shoe may be on the other foot. We don't know what is going to happen next week.

The other piece of this nomination that bothers me in this process is that there has been all this talk about qualifications. I would argue that qualifications isn't the question; it is what kind of judge they will be. There are thousands of people in this country who are qualified to be a judge. There are 1,700 Federal judges--almost 2,000. There are 30,000 State judges. There are lots of people who are qualified, who have been to law school, who have been judges, who are smart, who can write opinions. That is not the issue here.

The issue is, what kind of judge will this person make? That is what is important. What is their philosophy? This is a lifetime appointment. How are they going to decide important cases? These are important decisions.

One week after the election, on November 10, we are going to have an argument in the Supreme Court about the future of the Affordable Care Act. Literally, tens of millions of people's insurances depend upon that, not to mention the requirement in the Affordable Care Act, which is the only legal requirement in the country to protect people with preexisting conditions.

I am tired of people around here saying, ``I am for protecting preexisting conditions,'' when they voted to gut the Affordable Care Act 35, 40, 50 times. The President of the United States signs an Executive order saying, ``We are going to protect preexisting conditions.'' It means nothing. It is not worth the paper it is printed on.

The only way you can protect people with preexisting conditions is to pass a law that you can do that, and we did it with the Affordable Care Act. If that law is struck down, 130 million Americans are at risk. They are at risk. So I want to know what kind of decisions is this person going to make?

The Affordable Care Act is on the chopping block. A woman's right to choose is on the chopping block. The scope of government action, what can we do here in this body, in this Congress, in this government, that is on the chopping block. Election disputes are on the chopping block. I am going to talk a little about that later.

But we have this bizarre current practice, where we have a so-called hearing and there are all these questions, and the witness, the prospective Justice, says: Well, I can't answer that because that might come up when I am on the Court. I can't tell you what I think about any of these things.

It is as if you were courting someone, you are thinking about getting married--a lifetime commitment, just like a lifetime appointment to the Court--and in the middle of one of your dates, you say: Well, I really like to travel. Do you like traveling? And she says: Well, I don't know. I can't tell you until after we are married. I am not sure. I couldn't give you a definitive answer to that.

And then you say: Well, I love opera. Now, my favorite thing is to go to opera. How about you?

Well, I can't answer that question. I can't tell you because that is hypothetical, and I will tell you when you invite me to an opera after we are married.

Then you say: Well, how about kids? I really want to have a big family.

No, I am sorry. I can't answer that question.

That is exactly what is going on in these hearings.

Judge Barrett didn't answer much of anything. ``I can't answer that.'' I think that is nonsense.

She can say: Here is how I think about that issue now, but I reserve my right to change my mind in a particular case with particular facts after I have read the briefs and heard the argument, but here is how I think about that now.

But no. These hearings are a waste of time. We learned whether or not she did her laundry, but we didn't learn anything about how she is going to decide these cases for the next 30 years. This isn't something abstract. This is going to affect individual Americans' lives; yet we are not allowed to find out what she really believes.

But do you know what? For these last three nominees, the dark money folks have spent about $250 million to put them over the finish line; a quarter of $1 billion have been spent by people--we don't know who they are--to push these nominations. These folks aren't investing that money on spec. They know what they are getting. We may not know what they are getting, but they damn well know what they are getting.

They didn't spend a quarter of $1 billion in the hopes that they knew what the results were going to be; they know. They know, but we don't. They are investing; they are not contributing.

We do have some indication of what her philosophy is in the abstract of she won't answer questions about particular cases, but in the abstract, we know that she says she is an originalist. She says Antonin Scalia was her mentor. She was his clerk, so she is an originalist.

What does that mean? Well, it means if you have a provision of the Constitution, in order to interpret what it means, you look at two places: You look at the text, what does it say, and then you look at the intent, the understanding of the text of those 55 men in Philadelphia in 1787. That is it, period. That is the analysis.

Well, there are a couple of problems with that. Article I, section 8, authorizes the Congress to raise and support an Army and a Navy. What about the Air Force? What about the Air Force? It doesn't say Armed Services; it says Army and Navy.

So we look to the text, Army, Navy--doesn't mention the Air Force--so let's look at the intent. Do we think that those guys in Philadelphia looked ahead 115 years to the Wright brothers? Of course not.

That is ridiculous. That is a ridiculous interpretation. Well, so how do you decide that the Air Force and, more recently, the Space Force is constitutional? Well, you do a reasonable interpretation. What was the broad intent? To protect the country. And, therefore, the Air Force and the Space Force are constitutional.

But by an originalist's standard, neither one passed the test--not in the text, not in the intent. That is supposed to be the test. It is nonsense. It is a nonsense theory.

The provision of the Air Force is pretty easy. The President has to be 35. That is easy. There are two Senators from every State--not three, not one--two. Those are easy.

But what about a term like ``due process''? What about due process and the Fifth Amendment? What does that mean in a real case? Can you be thrown in jail for life and not have access to a lawyer? Is that due process? It was for about 150 years. It wasn't until the sixties that right to counsel in the Gideon case became a constitutional right.

Did the courts invent that? No. They were trying to put some life into this concept of due process. There is no way to determine exactly what a broad term like ``due process'' meant in 1787 or in 1868 or in 2021. It takes a court to think about it and to apply some growth in morality, ethics, law, politics, culture, to put life into a provision like that.

There are other ones. Let's see: Due process, equal protection of the laws. It took about 100 years to get from the 14th Amendment to Brown v. Board of Education. So the fact that segregated schools were a violation of equal protection of the law wasn't very obvious in 1868. It took 100 years for us to get to the place where, yes, everybody realizes that that was wrong.

This is one of the fallacies in the originalist theory, and Judge Barrett was asked about this: What about Brown v. Board of Education? What about Loving v. Virginia? I was in law school when Loving was decided. It was illegal in Virginia to have an interracial marriage. It was illegal in a lot of States. I venture to say it was probably illegal everywhere in 1868.

But the Court, in 1967, decided that marriage was a fundamental right, that it was part of the equal protection of the laws, and that it was wrong to tell people of different races that they couldn't marry one another.

So how does the originalist handle that case? They don't dare say that Brown was wrongly decided or Loving was wrongly decided. Do you know what they say? Do you know what she said? It is a superprecedent. Well, come on. That is a label. It doesn't mean anything. That is a dodge. That is intellectual dishonesty.

If your theory works, it works. If you have to say that Brown or Loving or dozens of other cases--Miranda, Gideon--are all superprecedents, it doesn't speak very well for your theory. It is a copout.

Now, if Antonin Scalia were here--whom I knew in law school, by the way. I knew him as Nino. If he were here, he would say: Well, Angus, if the Constitution needs amending and changing, you don't do it by the courts; you do it through the amendment process. That is why they wrote it.

Well, the problem with that is we would be amending the Constitution about every 2 weeks around here. Can you imagine, if we had to do an amendment to the Constitution, going through Congress by two-thirds and three-quarters of the States to legalize the Air Force or to say that due process means that you don't have to give evidence against yourself; that you have a right to a lawyer; that you have a right to be told what your rights are, as is the case in the Miranda decision?

The Space Force. We passed the Space Force last year. We would have had to also do a constitutional amendment. No. If that were the case, if we had to do a constitutional amendment every time there is a change in something in the Constitution, in the meaning of a term in the Constitution, the Constitution would be as long as the United States Code. It just doesn't make sense.

The real problem with the originalist theory--and this is Judge Barrett, and I know she is intelligent, capable, law professor, judge-- for only 3 years, by the way, but 3 years. The real problem is, the originalist theory to which she subscribes--and she says she subscribes to it--allows no room for moral or ethical growth. Everything is frozen in 1787--or 1868 if you are talking about the 14th Amendment.

Jefferson got this. Jefferson wasn't one of the Framers. He was in France at the time the Constitution was written, but he certainly is one of the Founders of the country, the author of the Declaration of Independence, and a successful President.

He wrote an interesting letter in 1816 on exactly this point, exactly this point. Here is what Jefferson said:

I am certainly not an advocate for frequent and untried changes in laws and constitutions

That is the way I feel.

But . . . laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions--

That means us. --must advance also to keep pace with the times.

Listen to this. He concludes this:

We might as well require a man to wear still the coat which fitted him as a boy as civilized society to remain ever under the regimen of their barbarous ancestors.

Now, I don't think our ancestors, the Framers, were barbarous, but they hadn't really thought about things like right to counsel, right to be aware of what your rights were under the Constitution as a criminal defendant. They certainly weren't aware of the awful, awful impacts of racial segregation and racial segregation in the schools. They weren't aware of those things.

Jefferson is right. We have to be able to allow our institutions to change as we become more developed, more enlightened. As new discoveries are made, new truths disclosed, and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.

Now, I understand the problem with judicial legislation. I don't want to convert the Supreme Court into an unelected third branch of the Congress that has lifetime tenure. I get that. The Supreme Court, in its interpretation of the Constitution, can't be totally unmoored from the text of the Constitution or the intent of the Framers, but it has got to take a broader view of what these vague terms like ``due process,'' ``equal protection of the laws,'' ``privilege and immunities''--what those things meant and what they mean today as we have grown and learned--as we have grown and learned.

The other piece of this originalist philosophy and the one that I think may have the greatest effect as it takes root on the current Supreme Court is not necessarily in the cases that we are talking about like Roe v. Wade. It is more cases like the Affordable Care Act or the Environmental Protection Agency or the FDA or any effort whatsoever around here to do something about climate change.

This is a straightjacket for the powers of the Federal Government. That is really what it is all about. That is why those guys invested $250 million. They want to cripple, strangle, and squeeze the Federal Government so that it can't act on behalf of the American people. That is what is going on here. They don't like the regulatory state. They want to repeal the new deal.

Some originalists even question Social Security and Medicare, beyond the powers of the Federal Government. That is what is going on here.

Yet, they have a narrow, crabbed view of the powers of the Federal Government, but these originalist folks have a broad view of the powers of the State government to impose on your personal rights.

I have always thought of the Constitution as being an elaborate Vegematic which slices up power so that it isn't concentrated in any one place. That is what the Constitution is all about. The fundamental issue of all political science is quis custodes ipsos custodiet, an ancient Roman question: Who will guard the guardians?

We create a Constitution to give power to people over our lives, and then how do we control them from abusing us? History tells us it will always happen. Lord Acton, in the 19th century, said power corrupts and absolute power corrupts absolutely. Power corrupts. Absolute power corrupts absolutely.

And the Framers knew this. They were geniuses in terms of understanding human nature, so they created this elaborate Rube Goldberg scheme to make it hard to make laws. And, boy, did they succeed, as we well know. But even after they created this scheme with two houses and vetoes and conference committees and two-thirds and treaties and all of this complex institution to make laws, they were still scared. They were still afraid of the powers of a rampant majority. They were still afraid of what their government would do to them.

So they passed the Bill of Rights--the Bill of Rights. I have always thought of the Bill of Rights as a kind of force field around us as individuals, things that they can't do to us. They can't take away our freedom of religion. They can't take away our freedom of speech. They can't go after the press. The government can't do these things.

The originalists have a narrow view of what the Federal Government can do to help us, but they have a broad view of what the States can do to trample on those individual rights. They want to throw us back to a time when every State has its own rules on these fundamental rights.

I don't think individual Americans' rights should depend on geography. They shouldn't depend on where they live. Fundamental human rights that are in the jurisprudence of the U.S. Supreme Court over the last 150, 200 years should not be kicked back to the States to be compromised or minimized.

Finally, what is going on here is an undermining of confidence. We take this whole thing for granted--these magnificent halls, the marble columns, the speeches, the votes. It has always happened; therefore, it always will.

No. We are an experiment. We are an experiment that has been going on for a little over 200 years. In human history, we are a blip. We are an anomaly. Democracy is very unusual and very hard, and it depends on trust. If you stop and think about it, it depends on trust.

When my town clerk in Brunswick, ME, says ``Here are the votes--Trump 87, Biden 104,'' I trust that those are the right numbers. I trust. If I don't, then that way lies chaos.

What this Senate is doing right now is one more drip in the undermining of confidence in this institution. It is no secret that confidence in Congress has plummeted over the last 25 or 30 years, and we are doing it. We are adding one more brick to that wall of lack of confidence in this process by violating our history and our rules to barrel through to a confirmation that I think is inconsistent with the rules and principles of this body and our own personal obligations.

This is a blow to the Senate. What this process says is that anything goes as long as you have the votes. We don't care about the rules of the Judiciary Committee. We don't care about the history and traditions of the Senate. If you have the votes, ram it through.

This body is built on some restraint, on some rules of comity and restraint and responsibility and thinking of what happens next.

You are going to win this. You have the votes. You are going to put this judge through--but at the cost of just pulling one more support out from underneath the edifice of this magnificent government. It is not only a blow to this institution; it is a blow to the Court. It is a blow to the Court, and here is why.

Of all the things that Judge Barrett said and didn't say in her hearing, the one that disturbed me the most was her failure to commit to recusing herself if a matter comes before the Court shortly after her confirmation involving this election of her patron, Donald J. Trump.

That is a gimme. Do you know why? Because all the Court has is its credibility. The Court doesn't have an army. It doesn't have the power of the purse. All it has is its integrity, its reputation for fairness. If you go out that door and look up, it says ``Equal Justice Under Law.'' That is what it is all about.

The judicial canons speak to this issue very directly. Often in our lives we all want to avoid impropriety, but the judicial canons go even further: 2A of the judicial canon says that a judge must avoid the appearance of impropriety. What could appear to be more improper than a judge appointed by a President of the United States, and 10 days later she votes on a matter that will involve his election?

He has already told us he wants this election to go to the Supreme Court, and he has already told us he wants his Justice there. That is corruption in realtime. That is impropriety right in front of our eyes. That answer alone should have disqualified her if she didn't have the integrity to say: Of course I won't vote on an election matter involving this President. Of course I won't.

But she didn't. As far as I'm concerned, that is a disqualification. Now, I am not a Supreme Court Justice. I wasn't on the law review. I am an old country lawyer from Brunswick, ME. But I know impropriety when I see it, and this is it. This is it.

The Constitution is a wonderful document. It has served this country well. The evolution of jurisprudence through the U.S. Supreme Court, with fits and starts, has generally served this country well. But to put a Justice on this Court under these procedures, under these circumstances, who we are pretty sure is going to take positions antithetical to those of the majority of Americans and could take positions that will be profoundly damaging to a majority of Americans is an abdication of our responsibility.

I understand that the majority has the votes. I deeply hope that, tonight or tomorrow morning, some Members of the majority will wake up and have an attack of conscience and say: I can't do this. It is not right. It is not right. I can't sacrifice the reputation of the Senate, compromise the reputation of the Supreme Court, undermine the procedures and history of this body. I can't do it.

I hope four Members of the majority will find it in their hearts and minds to take that position. I am not optimistic, but I think we all need to go into this decision, and I think all those who vote tomorrow have to understand what they are doing and what it means and what it will mean to the people of this country.

We could have done better. We should have done better. We owe it to the American people to do better than this.

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