Nomination of Amy Coney Barrett

Floor Speech

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Ms. KLOBUCHAR. Madam President, I come to the floor today following my friend, the Senator from Maine, at a critical moment for our country and for the United States. Americans, as we know, are facing an unprecedented health and economic crisis that has gripped our country for over 9 months. But, sadly, that is not what brings us to the Senate floor today. It is not why the Republican leader has called the Senate into session.

Is it to pass the legislation that we need to pass, to carry on the work of the CARES Act, to help people out in our country right now when nearly every State is starting to see increases in this virus again? That is not why we are here. On this rainy, cold Sunday in October, instead of meeting to debate and vote on a comprehensive bill to provide relief to the American people during this soul-crunching pandemic, we are instead here today because our Republican colleagues insist on rushing through the nomination of Judge Amy Coney Barrett to be an Associate Justice on the U.S. Supreme Court, to fill the vacancy left by Justice Ruth Bader Ginsburg.

Let me start with Justice Ginsburg because that is really where it all starts. Justice Ginsburg was an icon. She was celebrated well into her eighties by people young and old. I will never forget my own daughter when we were at an event and got a photo with Justice Ginsburg. My daughter was just in college. We had that nice photo of the three of us, and she said to me: Mom, I am going to cut you out of this because I want to put it on Facebook, and the ``Notorious RBG'' is just so cool.

Justice Ginsburg made justice cool because Justice Ginsburg understood that justice is supposed to be about people, and it is supposed to be about the Constitution. She started when no one gave her a chance, going to law school when there were hardly any girls going to law school. In fact, they told her not to, and she ends up graduating first in her class. She then comes up with landmark theories on equal protection, and she is told maybe a man should argue these cases because they are so important and a man would have a better chance of winning them. She said: No, I will do them myself. And she wins five out of six cases. She ends up on the Supreme Court, writing landmark opinions and infamous dissents.

At her memorial in the Capitol, it was the rabbi--and I was so honored to be there, a moment I will never forget--and the rabbi said: You know, those dissents, those weren't cries for defeat, they were blueprints for the future.

That is how I must think of this moment in time, as we are in the middle of voting, as over 50 million Americans have already cast their ballots, making their voices heard, that you can't take away the fact that this nomination was plopped down in the middle of an election, which is what I have argued from the beginning.

This will not be a cry of defeat for the people of this country who care about Justice Ginsburg's legacy--her legacy on protecting women's rights, her legacy on voting rights, her legacy on so many other fundamental issues to the people of this country.

We know what her last fervent wish was. Those were her words, ``fervent wish.'' Only Justice Ginsburg would use those words at the end of her life, but she did. She said that her last fervent wish was that the next President--the President who wins this election--should be able to pick the person to take her place.

That is what she asked for. That is what so many Americans--the majority of Americans--think should happen there. But that is not what is happening. We are not doing what we should be doing, and people are watching.

More than 220,000 Americans have lost their lives. So many families have lost loved ones. Millions more have gotten sick or no longer have jobs. People are scared for themselves and their families. Moms are trying to balance their toddlers on their knees and their laptops on their desks. They are having to teach first graders how to use the mute button. But instead of working to pass a relief package--something that 74 percent of the people want us to be doing right now--that is right, when they were asked, Do you think we should be pushing through a judge or working on pandemic relief, 74 percent of the people said: You should be working on pandemic relief. But instead, we are here, not in a rush to justice but a rush to put in a Justice on the U.S. Supreme Court.

The President has made his intent clear. In fact, he, in his inimitable way, sent out a tweet on his intent. He said: If I win the Presidency, my judicial appointments will do the right thing, unlike Bush's appointee, John Roberts, on ObamaCare.

This is no surprise, I guess. The Affordable Care Act is something my Republican colleagues have been trying to repeal for 10 years. Just 1 week after election day, the Court will hear a challenge to the law coming out of the State of Texas that millions of people are depending on for healthcare--especially during this pandemic, after we learn more and more about people who have gotten COVID, who then end up struggling later. Of course, what would that be called? That would be called a preexisting condition. Yet this is what this President and my Republican colleagues are focused on.

The American people--Democrats, Republicans, and Independents--are continuing to face reality--not this reality in this Chamber tonight, but the reality in their lives--once again, misplaced priorities in a rush to do what the President wants.

The coronavirus is, in fact, still raging across our country because of the President's failed leadership. That is true. His lies, his refusal to listen to science--cases have been up, as I noted, in about two-thirds of the States in just the last few weeks.

The President was first told about the potential for this virus in January. He was telling people he knew, behind closed doors, that it was airborne and it was deadly. He knew that back in February. He said it would go away, though. To the public, he said: This will go away by Easter. He said: People will be back in church by Easter.

There are people who went to church around that time in Minnesota who died. He said it would go away with warmer weather. We all know that these things did not happen.

For me, this is personal, like it is for so many Americans. My husband got sick with coronavirus. He got really sick. He ended up with pneumonia in the hospital, on oxygen, for over a week. Why is this so personal for me, what the President says about this? Because back then, we were just cleaning off every surface in our house, which, of course, is still important now. But we thought, oh, that is good. We will just clean off everything, wash everything. But the President, we now know-- we found out about a month or two ago--back in March, he knew it was airborne, but he said he didn't want to tell the American people because--well, he thought it might panic people. He didn't tell you the truth.

Now, we know that at least 130,000 American lives could have been saved if the President had taken real action early on. That comes out of a new study from Columbia. That is 130,000 families who would still have their mom or dad or grandparent with them at the table, with them at the table this Thanksgiving--if the President had done what we needed to get testing in place, to do contact tracing, to listen to the experts.

And, no, it is not just the Big Ten football, as much as we love Big Ten football in Minnesota. It is not just those players who should be able to have that testing. It is not just the people in the White House who should be able to have that testing. There are consequences of this failed leadership. The American people who are dealing with this pandemic are not concerned about the false claims in the President's 3 a.m. rants or his attempts to relitigate the 2016 election right now. They are just trying to make it through the day. They need help. But instead of giving them that help, here we are, once again, jamming through a nominee.

In fact, according to reports, Senator McConnell is actively telling the White House not to negotiate on a bipartisan package, just so the Senate would do this. They have broken promise after promise. They have blown every precedent. They have ignored all logic and taken on every risk, just to push this nomination through.

Why the rush? Well, I can give you some ideas. One, as I mentioned, just 1 week after the election, just 2 weeks from now, the Supreme Court will consider the future of the Affordable Care Act. We also know--and this is coming directly from the President, via tweet--that he wants the Justices to potentially count the ballots--those are his words, not mine--and that he wants nine Justices on that Court.

No, I will not concede that this election will end up in Court, not the way people are voting, not the numbers we are seeing out there, not the reality that people are facing, but that is what he wants in place.

Everything is on the ballot, but many of these things end up in Court. We know that. And during the Judiciary hearing, many of my colleagues would act like the Supreme Court was some far away, distant ivory tower institution, debating things and talking about things, and in their words, like the Dormant Commerce Clause. That is true, they decide cases on the Dormant Commerce Clause.

What else do they decide? They decide who you can marry. They decide where you can go to school. They decide if you can use contraception. They decide all kinds of things. They decide if you can vote. They decide if you can have healthcare. All those things are decided in the Supreme Court.

What is on the ballot when it comes to healthcare? What is before us with this Justice? The Affordable Care Act. What is this about?

I still remember the day that we passed the bill. I was here early in the morning on Christmas Eve. And I also remember the day when our colleagues tried to repeal the bill, and my friend, Senator McCain, actually whispered to me what he was going to do before he did it. But he came in, and he put a big thumbs down while he himself struggled-- struggled--with his own life.

What did the Affordable Care Act mean to people? Millions of people got coverage and millions of people who weren't able to get coverage before--and then for everyone, even people who had coverage before, they got something that they so badly needed, and that is, protection from being kicked off your health insurance for preexisting conditions.

What else did it mean? Young people can stay on their parents' insurance until the age of 26. What a difference that makes. It makes a difference for people like Evelyn and Maraya, identical twins from Cambridge, MN, honor roll students and star athletes. They play basketball, and they also play softball. One is a pitcher and one is a catcher. One of them was born and early on got severe diabetes when she was very young. Does it matter which one, the pitcher or the catcher? They both deserve good healthcare, especially now when they both know they have diabetes. But early on, did it matter which one? They both deserve good healthcare.

There are people like Steve, a senior from Tower, MN, who has a heart condition and relies on his prescription medication to stay alive; like Elijah from St. Paul, who was born with cerebral palsy, and because of the Affordable Care Act, is now 16 and a proud Boy Scout; or Christie, a mom from Bloomington whose daughter had a tumor; like Casie, whose brother lives in Alexandria and has chronic kidney failure and needs a transplant. Without the ACA, her brother will die waiting for a transplant. And then, like Emily, from Minneapolis, whose mom was diagnosed with breast cancer; or Burnette from the suburbs of St. Paul, whose daughter has multiple sclerosis and depends on the ACA; or Janet from Rochester, whose brother has a mental illness; or Liliana from Fridley, who has a 21-year-old son with autism and needs her children to be able to stay on her insurance until they are 26; or Melanie, a senior from Duluth, who is treated for ovarian cancer and needs access to healthcare.

Repeal after repeal after repeal attempt, that is what has been happening here. And none of that worked. So what happened? A case was brought in Texas, and the administration is now before the Supreme Court arguing that the entire Affordable Care Act, not just one provision, they are arguing--and let me be clear about this--that the entire Affordable Care Act, all those provisions and all the coverage I just mentioned, should be thrown out.

During Judge Barrett's hearing, there was a lot of talk from my colleagues on the other side about the doctrine of severability, which the Supreme Court has said includes the presumption in favor of throwing out part of a statute in order to save the rest. Their point, I suppose, was that the American people shouldn't actually be worried about the case pending before the Supreme Court. It is OK.

So I asked Judge Barrett whether the brief that was filed by the Trump Justice Department, which argued that the entire Affordable Care Act must fall, represented the President's position before the Supreme Court. She confirmed, as a former clerk of the Supreme Court to Justice Scalia--she confirmed that it did, and she confirmed that if the President believed that the Court should throw out just part of the Affordable Care Act and save the rest, well, he could direct the Justice Department to withdraw the brief. That has not happened. That is not the position of this administration. They have told the Court that they want to throw the whole thing out, and now they are rushing to confirm the President's nominee with the hope that she will cast a deciding vote to strike down the ACA.

For me, as I noted at the hearing, it is about following the tracks. No, the nominee didn't give us a sense of pending cases. We know that. But she didn't even give a sense of what she thought about existing laws that are on the book or about certain fundamental rights that other nominees have discussed. So I followed the tracks, just like we do when we go hiking.

When we would go hiking in Northern Minnesota when I was growing up, my mom would always say: OK. That is a deer track or that is an elk or, if we were really lucky, that is a bear. And you would follow those tracks down the trail or down the road, and then you would get to the corner and maybe you would see that deer. Every so often, you did. We would follow the tracks.

So that is what we must do--ordinary citizens and U.S. Senators--to try to figure out where this Justice is going to be on these fundamental cases that are in front of the Court. You have got to follow the tracks.

So what do we have? Well, we have got the fact that President Trump promised that his judicial appointments would do the right thing and overturn the Affordable Care Act. He tweeted that it would be a big win if the Supreme Court strikes down the healthcare law. And if that wasn't clear, he just went on ``60 Minutes''--he released the tape himself on Thursday, and then it was on tonight--and he said it will be so good if the Supreme Court overturns the Affordable Care Act. OK. So this isn't something from 3 years ago. No, no, no. This is something that we all saw tonight.

Then, on September 18, when the Nation was mourning the loss of a judicial giant, President Trump saw his moment, and on September 26, at what became a superspreader party at the White House, he announced his nominee.

So here is what we know as we follow the tracks. In an article Judge Barrett wrote for the University of Minnesota Law School journal called ``Constitutional Commentary,'' in 2017--the same year that she became a judge this was published--she wrote that Chief Justice Roberts--these are her words--``pushed the Affordable Care Act beyond its plausible meaning to save the statute.'' That was a case called NFIB v. Sebelius that she was writing about--``pushed the Affordable Care Act beyond its plausible meaning to save the statute.'' That is direct criticism of the Chief Justice's decision to allow the Affordable Care Act to stand.

And in a 2015 NPR interview on King v. Burwell--this is a different case, but it involves the Affordable Care Act; another case where Chief Justice Roberts cited in favor of the Affordable Care Act--there, Judge Barrett acknowledged that the majority's holding is good because millions of people won't lose their healthcare subsidies. Yet she praised the dissent by Justice Scalia saying it had the better of the legal argument.

Now, remember, she spent all her time in the hearing saying: Whatever the policies are don't matter. What matters is the legal argument. What matters is the law. And her position, which I don't agree with, but her position was that Justice Scalia had the better of the legal argument. That is one big track to see where she is coming down.

When she accepted the President's nomination at the White House, she made clear that she considers Justice Scalia, one of the most conservative judges in our Nation's history, as a mentor. Those are our tracks.

But it is not just on healthcare. What other tracks do we have to follow? Well, she signed her name to a public statement featured in an ad calling for an end to what the ad called the ``barbaric legacy'' of Roe v. Wade, which ran on the anniversary of the 1973 Supreme Court decision. There is your track.

She wrote her own dissent disagreeing with longstanding Court rulings on gun safety, expressing her legal opinions that some felons should get guns.

She once discussed the dissent in the marriage equality case of Obergefell v. Hodges, asking whether it was really the Supreme Court's job to make that decision.

Those are the tracks that lead all of us down that path to the point where you go around the curve, and you realize at least one thing for sure, and that is that Judge Coney Barrett's judicial philosophy is the polar opposite of Justice Ginsburg's.

Voting rights. Here is another example. Given the timing of this nomination and the fact that we are just over 1 week from election day, when I asked Judge Barrett would she say that mail-in voting is essential right now, even though the coronavirus continues to spread and people are having to choose between their health and their vote, she instead called it, well, it is a matter of policy. When I asked her, she would not say that voter intimidation is illegal, even though in Minnesota, an outside contractor was recruiting poll watchers with Special Forces experience during the judge's hearing. That is clear voter intimidation. I was not asking her about an ongoing case. I was actually asking her just if it is against the law. It is. It violates 18 U.S.C. section 549.

And while in the case of Minnesota, the company has now agreed to cancel its plans after Minnesota Attorney General Ellison opened an investigation, we are seeing threats to the right to vote in States across the country. And when I asked, Judge Barrett even refused to acknowledge that the Constitution empowers Congress to protect the right to vote.

So the inescapable conclusion from these tracks is that Judge Barrett, again, would be very different than Justice Ginsburg. Justice Ginsburg was a champion of voting rights.

When a 5-to-4 Court gutted a key provision of the Voting Rights Act in Shelby County v. Holder, Justice Ginsburg wrote in her famous dissent that the Constitution uses the words ``right to vote'' in five separate places, and in each place, it reaffirms--these are her words, Justice Ginsburg--``Congress holds the lead rein in making the right to vote equally real for all U.S. citizens.'' Justice Ginsburg understood that voting--you don't just say it is a fundamental right. It is how you protect it.

How do we do that? By standing up to voter intimidation and voter suppression, by protecting our democracy from a President who tries to undermine free and fair elections, by protecting the millions of people who are going to the polls right now during this pandemic, some risking their lives to cast a ballot. And during her hearing, Judge Barrett did not make these simple commitments.

So I am very concerned about this fundamental issue of voting rights. The stakes have never been higher than they are right now. Look at what is happening. In Texas, they are trying to force each county to have only one ballot drop box, including Harris County, which has 4.7 million people, one box. A judge stepped in and said: No, this is wrong, and then three Trump-appointed judges on the Fifth Circuit vacated the district court's order. No matter what the size of your county, you just get one box.

In Tennessee, Republicans have tried to prevent ballot drop boxes, and they have argued in court that COVID-19 is not a valid excuse to vote by mail.

In South Carolina, the U.S. Supreme Court earlier this month reinstated a South Carolina requirement that mail-in ballots must have a witness signature, so voters in South Carolina are going to be forced to go out in the middle of a pandemic and find someone to witness their ballot.

And as we saw last Monday, in a case that went to the Supreme Court from Pennsylvania, Judge Amy Coney Barrett could in fact be the swing vote on a case like this. This is a case where last week the Supreme Court issued a split 4-to-4 decision that let stand the Pennsylvania Supreme Court's ruling allowing election officials to count mail-in ballots received within 3 days of the election even if they are not postmarked.

And just last Wednesday, the Supreme Court blocked curbside voting in Alabama, which was intended to help whom? Voters with disabilities. In dissent, Justice Sotomayor quoted Howard Porter, Jr., a Black man in his seventies with asthma and Parkinson's, who said this:

So many of my [ancestors] even died to vote. And while I don't mind dying to vote, I think we're past that--we're past that time.

That is how I feel a lot about what this judge who is before us now, her views on originalism, her views on not changing with the times, like so many other Justices interpret the Constitution to mean, so that it matters to everyday people--but not this judge.

Some of my Republican colleagues, as I noted, think that this is something distant and far away. As I noted, we cannot divorce this nominee and her views from the election we are in now. The last time we had a vacancy so close to a Presidential election was in 1864. Then President Abraham Lincoln did the wise thing, the right thing, and he waited until after the election to fill the vacancy.

And in 2016, when Justice Scalia died about 9 months before the election, Senator McConnell said this:

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.

That is what we are talking about with the unfairness of this, with the sham of this proceeding, and I laid out for you tonight the reasons I believe that this has become such a high priority instead of passing pandemic relief.

During the week of Judge Barrett's hearing, more than 220,000 more people got COVID-19. At least 2,700 more people died from it. Nearly 800,000 people filed for unemployment. More small businesses closed too. According to one study, actually, recently, around 800 small businesses are closing every day. In my home State, one in five small businesses say they will be forced to close if we don't do something about it.

Let me give you an example. Jose Frias from St. Paul is one of them. He is a third-generation business owner who owns Boca Chica Mexican family restaurant, which includes a fast-food taco house, restaurant, and catering service. He started as a manager at 20 years old and worked his way up, taking over 2 years ago--his dream. The future looked bright, but then the virus hit. Jose was forced to go from 98 employees to just 48. His guest restaurants closed entirely and revenue from catering is down 90 percent. In his words, the business, which he has been running with his sisters, aunts, nieces, and a few remaining staff, was his ``whole life . . . and it [has] come to a standstill.''

This is happening all over the country. On October 6, Federal Reserve Chair Jerome Powell made clear that it would be tragic if Congress fails to pass an economic relief package. We have startups that were already in a slump before this and numbers are plummeting more. Small businesses are closing. A conservative Supreme Court that has done nothing when it comes to antitrust--nothing--yet Justice Ginsburg, she always dissented. She made the cases for those small businesses. But the Trump Justices, they have gone the opposite way.

I want to end with this. America, you deserve better. You deserve leaders who will put you first. You deserve leaders who will protect your jobs, your families, and your healthcare. You deserve a Supreme Court nominee who will speak truth to power or at least acknowledge when basic precedent exists, even if it is inconvenient to the President who nominated her.

There may be nothing we can do any longer to stop this confirmation, but there is one thing you can do to determine the future of this Nation--those blueprints for the future that Justice Ginsburg would refer to--you can vote. And when you cast your ballot, remember where those tracks lead.

There is another way other than this administration and this hypocrisy we are seeing and this gridlock that has taken over this U.S. Senate. It is spelled out right there in the first three words of the Constitution. We can be a nation in which ``We the People'' truly means all the people--a nation in which the people have a say and in which the people determine the future.

Remember, this isn't Donald Trump's country. It is yours. This shouldn't be Donald Trump's Justice. It should be yours.

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