Nomination of Amy Coney Barrett
Floor Speech
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Mr. KENNEDY. Mr. President, I would like to spend a few minutes talking about the nomination of Judge Amy Coney Barrett to be an Associate Justice of the U.S. Supreme Court. It is horribly newsworthy to say that Judge Barrett's confirmation vote will not be unanimous. It should be. It won't be.
If you judged Judge Barrett solely on her intellect and her academic achievements, certainly her nomination should be unanimous. Any fairminded person would have to be impressed. She is an honors graduate of St. Mary's Dominican High School in New Orleans, one of the finest schools in this country. She is an honors graduate of Rhodes College in Memphis, an extraordinary liberal arts school. She is an honors graduate of Notre Dame Law School. She finished first in her class. She clerked for two of the most distinguished jurists in this country--the late Justice Scalia and Judge Silberman. She was a chaired professor at Notre Dame Law School. She is now a member of the Seventh Circuit Court of Appeals. Any fairminded person who reads her legal writings and her opinions would come away impressed.
If you judged Judge Barrett solely on her integrity, her confirmation vote should be unanimous. We all watched her almost 30 hours of testimony. We all know now about her beautiful family. She has seven beautiful children, two of whom are adopted and two of whom happen to be children of color. She is a devout Christian.
If you talk to her former students, to her colleagues, and to her critics, who know her well, they will all tell you that she is a person of integrity. And if you don't want to believe any of those people--I wish you could, and I know the Presiding Officer can--but I wish the American people could see her FBI background check. The Presiding Officer and I know that when the FBI checks your background, it is kind of a combination between an endoscopy and a colonoscopy. They are pretty thorough. There is not a hint of scandal.
If Judge Barrett were being judged on the basis of her temperament, she would be a unanimous choice as well. We saw that in her 30 hours of testimony. She listens well. She answers truthfully. She suffers fools gladly. I was just so impressed watching her.
The reason that Judge Barrett will not be a unanimous choice, at least within this body, has to do with a little bit of history. This is one person's point of view, but I think history will prove that I am correct. For the last 60 years in America, we have been moving from a representative government and more to what I will call declarative government. We, as you know, are a democracy. We are not a pure democracy, unlike Athens, for example. When we have to make a decision on social or economic policy, each of us doesn't put on a fresh toga and go down to the forum or the public square and vote. We elect representatives to make those decisions for us at the Federal level. They are called Members of Congress, and they are accountable. The people have given their power to our representatives, and if those representatives don't exercise that power in making social and economic policy, those representatives can be unelected.
But in the last 60 years, in some cases voluntarily and in some cases involuntarily, this body, the U.S. Congress, which under our Constitution is supposed to make social and economic policy as representatives of the people, has, as I said, in some cases voluntarily and in some cases involuntarily, ceded our power--ceded it to the administrative state and to the judiciary.
Let me talk for a moment about the administrative state. Some would call it the bureaucracy. The bureaucracy now at the Federal level is a giant rogue beast. It enjoys power once only known by Kings and Queens. The administrative state makes its own laws, called rules; interprets its own laws; and enforces its own laws before judges that the bureaucracy itself appoints. We in the U.S. Congress have allowed that. The judiciary has helped the administrative state gather that power as well.
As you know, there is a rule called the Chevron doctrine. I won't bore you with the details, but it basically says that if the administrative state--the bureaucracy--interprets a rule or regulation or even a statute in a ``reasonable way,'' whatever that is, the judiciary is going to defer to them. The U.S. Congress has also ceded much of its power to the judiciary, and we have had many Federal judges that greedily accepted it.
The reason that we will not have a unanimous vote for this eminently qualified nominated jurist is because of that. Some people in America and some of my colleagues like the fact that the U.S. Supreme Court, for the last 60 years, has not demonstrated judicial restraint.
Now, I am not going to stand here and tell you that the U.S. Supreme Court doesn't make law. Of course it makes law. It makes law in a particular case--one side wins; one side loses. Sometimes the U.S. Supreme Court makes law at the direction of Congress and at the direction of our Founders.
Our Constitution only prohibits unreasonable searches and seizures. We look to Federal judges to the U.S. Supreme Court to tell us what ``reasonable'' and ``unreasonable'' means, but in all cases our Federal judges and the U.S. Supreme Court is supposed to demonstrate judicial restraint. When it is a close question, when it is a matter of social-- major social or economic policy, then the Federal judiciary is supposed to show deference to the U.S. Congress, but more and more it does not.
Some Americans like that. Some of my colleagues in this Chamber like that. They think that the U.S. Supreme Court ought to be a mini- Congress. They think that the U.S. Supreme Court should be a political body. They like the fact that if they can't pass a law changing social and economic policy through the U.S. Congress, they get a second bite at the apple and can go to the U.S. Supreme Court. I don't believe that is constitutional nor does Judge Barrett, I have concluded after 30 hours of testimony, and that is why her confirmation will not be unanimous in this body.
Let me tell you what I believe--and I will preface this by saying, after listening to Judge Barrett for 30 hours, this is what I believe she believes: I believe that Madison and his colleagues got it right. I believe that we should have three equal branches of government. I believe we should have checks and balances. I believe that just because those branches of government are equal, that doesn't mean they are the same. I think their Founders intended each of those branches to have their own special role, scope, and mission.
I also believe that our Founders felt they were laying the foundation for a representative democracy, that Congress would make the important economic and social policy in this country; that when we talk about how societies meet our human needs, our Americans meet their human needs in terms of security, education, work, health, and well-being, that those decisions would be made by the people, not by the judiciary or the bureaucracy. They would then be made by people through their elective representatives.
I believe that our Founders intended Federal judges' role to be to tell us what the law is as enacted by Congress, not what the law ought to be. I believe our Founders intended for Federal judges to call the balls and the strikes--sometimes in doing so making law in a particular case, but to call the balls and the strikes, as Justice Roberts put it. And in doing so, I don't believe our Founders intended for Federal judges to be able to draw their own strike zone.
I do not believe that our Founders intended for Federal judges to be politicians in robes. I do not believe that our Founders intended Federal judges--and, certainly, not members of the U.S. Supreme Court-- to be able to rewrite the U.S. Constitution to satisfy some political or social agenda every other Thursday that the American people will not accept through their elected Members of this body and the House of Representatives. It is called judicial restraint.
Judge Barrett shares it. It is controversial. It shouldn't be. But that is why, in my judgment, her confirmation vote will not be unanimous. I will be voting for Judge Barrett. I will be doing so enthusiastically.
She is one of the finest legal minds I have ever seen, and she understands the role of the U.S. Supreme Court under our Constitution.
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