Nomination of Amy Coney Barrett

Floor Speech

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Mr. CORNYN. Mr. President, it is a privilege to serve with the Senator from Vermont on the Senate Judiciary Committee. He and I have been called, maybe, the odd couple on a number of issues like Freedom of Information Act reform and other matters. So we find ourselves aligned on that important issue, the importance of the public's right to know.

But it won't surprise anybody to know--it certainly doesn't surprise him to know--he and I have a different point of view on this nominee and on a few other topics as well.

One of the ones I wanted to talk about briefly at the very beginning was the so-called Ginsburg rule.

Senator Leahy was there and Joe Biden was the chairman of the Judiciary Committee back in 1993 when Justice Ginsburg--then a lawyer-- was nominated for the Supreme Court. Her record as a litigator for the American Civil Liberties Union placed her far outside of the mainstream of American law.

She argued for legalized prostitution, against separate prisons for men and women, and had speculated that there could be a constitutional right to polygamy--certainly outside of the mainstream of American legal opinion.

But when she was pressed time and again before Republicans to talk about those views, she said she would not answer those questions. She cited, appropriately, Canon 5 of the Model Code of Judicial Conduct, which, among other things, forbids Federal judges or judicial candidates from indicating how they will likely vote on issues that may come before the courts or from making any statement that would create the appearance that they were not impartial.

This rule is absolutely critical to an independent judiciary because judges must remain open-minded and be able to decide an actual case without prejudging that matter before it comes before them. Can you imagine what it would be like if you were a party to a lawsuit and came before a judge who had made a statement committing to a particular outcome during their judicial confirmation hearing? Well, the unfairness of that is obvious.

So I think Judge Barrett did what Justice Ginsburg did when she was before the Judiciary Committee, what we expect all nominees to do, and that is to not prejudge cases and to not give any hint or prediction of outcomes or run on a platform or an agenda.

My view is that, if you had a judge who did or a nominee who did come before the Judiciary Committee and make those sorts of commitments, that would be disqualifying in and of itself. That person ought to run for Congress. They ought to run for city council. They ought to run for the school board. They should not be a Federal judge. That is not what Federal judges are supposed to do.

So I think Judge Barrett did exactly what a judge should do when they are confirmed. We still got to ask her a lot of questions, as Senator Kennedy pointed out, over the 30-plus hours of questioning, and she was extraordinary.

It is obvious she had great command of the subject matter. There was a special moment where I noticed she wasn't taking any notes or writing anything down or referring to anything, and it struck me how strange it was, what a contrast it was that each of us, as members of the committee, had a small army of staff around us, that they had read every case, they had prepared big three-ring notebooks of information for us to get prepared to question the judge--but the judge had nothing in front of her.

And I asked her to hold up what was sitting in front of her, and it was an empty legal pad--an empty notepad, excuse me--that bore the name ``U.S. Senate'' on the ink pad but nothing that she had written down.

So it, I think, spoke volumes about her command of the subject matter and her fitness for this particular job.

We have all talked about the support she has from professors at Notre Dame, where she has taught for a number of years, highlighting her impressive intellect, her elegant legal analysis, and her manifest judicial temperament.

Eighty-one former law school classmates from diverse political and other backgrounds shared their collective view that she embodies the ideal qualities of a Supreme Court Justice.

We have heard from Noah Feldman, Harvard University law professor, who tends to be more liberal, and he points out that Judge Barrett is a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she has committed.

So, in short, Judge Barrett has the qualities we should all look for in a judge. I think it is telling that our Democratic colleagues, when it came time last Thursday to vote on this nomination, decided to boycott the markup. None of them appeared. None of them voted. So the vote, literally, was unanimous. All of the Senators there present voted to vote the nominee out of the Judiciary Committee and recommended that that nomination be sent to the floor.

I suppose, if they thought it would make any difference or they really had something to say or a reason to vote no, they would have shown up, but they did not.

Judge Barrett exemplifies the fact that judges aren't players on a red team or a blue team; they are, as Chief Justice Roberts said during his confirmation hearing, umpires calling balls and strikes. We all understand the difference between an umpire and a player, and, simply said, judges aren't players; they just call balls and strikes, and they make sure the rules of the game are enforced.

Judges should have no biases, no favorites, no preferred outcomes. But somehow, in their anger about this nominee and about the fact that she will fill the vacancy left by the death of Ruth Bader Ginsburg, somehow our friends across the aisle seem to have forgotten what the most basic role of judges is in America. Again, they pressed her, asking: How do you feel about climate change? How do you feel about abortion? How do you feel about every other hot-button issue that they could think of, and she appropriately invoked the Ginsburg rule and would not comment. Exactly what she should be doing.

The other thing that I think is remarkable about this nominee is she is obviously somebody who has soared to the very heights of the legal profession--teaching, being a judge on the Seventh Circuit, both of which qualify her for this job. But she is also a person of great integrity and character.

It takes self-restraint, it takes self-discipline not to use the power that Federal judges have to impose your own view or to choose a result. That takes a lot of self-restraint and self-discipline, and she has demonstrated her commitment to that judicial philosophy and that approach.

During the final days of soon-to-be Judge Barrett's confirmation hearing, we heard from a number of witnesses about her, their experience working with her. I believe one of the most moving testimonials came from one of her former students, a young lawyer named Laura Wolk. Since graduating from Notre Dame Law School, Laura has earned some highly coveted clerkships, including for the Court of Appeals for the DC Circuit and the U.S. Supreme Court, just like her former professor.

There is one fact about Laura that made her climb to these incredible heights as a young lawyer all the more impressive, and that is that she is blind. Throughout her life, Laura has overcome barriers that exist for individuals who are blind or visually impaired, becoming the first blind person to clerk at the U.S. Supreme Court.

Laura spoke about her arrival at Notre Dame and the technology failures that were causing her to fall farther and farther behind her peers. Obviously, she needed that technology that would help her compete.

Settling into law school is tough for any student, and I can't imagine the fear and frustration that Laura felt as she struggled to keep pace, at no fault of her own, because she lacked the assistive technologies she needed to compete on a level playing field. Laura did what any student would do, I presume, and that is she went to her professor and shared the weight she was carrying--a weight Judge Barrett eagerly picked up, saying to her: This is no longer your problem; this is my problem.

Laura described the relief and gratitude she felt for her professor's kindness and generosity, not only during this interaction but in the years of support and encouragement that have followed. I found Laura's testimony incredibly powerful and a shining example of the character that Judge Barrett will bring to the Supreme Court.

We have all come to appreciate Amy Coney Barrett, the person--a woman of great integrity, humility, and compassion who will bring tremendous value to the highest Court in the land. I am confident that if our colleagues across the aisle had any good argument addressing her qualifications or character or integrity, we would hear about it.

The only thing that I have heard them say, which I cannot believe that they believe, is that somehow this is part of some great conspiracy to defeat the Affordable Care Act. You know what our colleagues across the aisle failed to mention? The merits of the Affordable Care Act is not even before the Supreme Court of the United States. It is a technical issue with regard to severability. It is a doctrine that says that if judges find part of a statute unconstitutional--here, for example, the individual mandate, which thanks to the Tax Cuts and Jobs Act, that penalty has been reduced to zero--whether if, in fact, that portion of the Affordable Care Act is unconstitutional, whether the whole act fails or not. But judges are told to presume the constitutionality of statutes--to presume them. And so the burden is on those who would prove the unconstitutionality to prove it. The burden is on them. If they can save a portion of the law by severing it--that is the doctrine of severability--they must do it.

I am pretty optimistic that the Supreme Court, no matter how constituted, will do exactly that--will follow the traditional canons of construction and guidance that judges apply in cases like this. And really, the suggestion we heard, including from my friend from Vermont just a moment ago, that this is part of a conspiracy to appoint the judge to the Court so she will then hear a case and result in a particular outcome is specious. It is also an insult--an insult to the judge's integrity and character--because she could not in good conscience take the oath of a judge if she were part of a conspiracy to rule in a particular way on a case--any case--in the future. And she said, unequivocally, that is not the role of a judge.

But that is the argument, and maybe that is the best thing they have going, and so they are sticking with it. It just doesn't make any sense. It is totally out of character with everything we know about Amy Barrett as a person, as a lawyer, and as a judge.

Instead of talking about the Supreme Court, we seem to hear another common theme, and that is to say that we could be working on a COVID-19 relief bill. We did pretty well through the end of March working together on COVID-19 relief. We passed four pieces of legislation, totaling $3.8 trillion. But it has been a while since March, and we need to pass another COVID-19 relief bill for the individuals who are still suffering, through no fault of their own, who don't have a paycheck--the enhanced unemployment insurance benefits, the Paycheck Protection Program that was so important to keeping small businesses' ability to maintain their payroll. We need more money for testing. We need to make sure that the therapeutics that have now come online are available to people who are infected with the virus. We need to make sure that the vaccine, once it is approved by the FDA, is available for distribution.

That is why Senator McConnell has repeatedly brought legislation to the floor to bolster our fight against the virus at this critical time. In particular, the first bill he offered them was to supply another half a trillion dollars to help small businesses keep their doors open and their employees on the payroll; to help schools keep their students and teachers safe; to strengthen testing and invest, as I said, in the continued success of Operation Warp Speed.

What did our Democratic colleagues do? They voted no. They wouldn't even get on the bill and then offer amendments to make it more to their liking. So they just blocked it.

I think this is consistent with what we heard from Speaker Pelosi when she said that ``nothing is better than something.'' It always strikes me as very odd because I have always believed that something is better than nothing, but apparently not in this strange environment leading up to this November 3 election, which, unfortunately, I think is what is preventing us from passing a bill

Many of our colleagues believe that leaving people anxious and worried and fearful, not only about their health but also about their economic circumstances, advantages them leading into the election. That is what they do. They want to stoke fear and uncertainty on the part of the American people.

When we offer concrete pieces of legislation that would help relieve that anxiety, fear, and the sense that they are not receiving any income--how are you going to pay the bills or provide for your family-- repeatedly, they have voted it down. I just find that absolutely shameful.

So here we are in October with 8.5 million confirmed cases of the virus. When we talk about cases, that is kind of interesting. They are positive tests. We know the vast majority of individuals will have little, if any symptoms. But we do know that there are vulnerable populations that need to be protected, particularly people in nursing homes, assisted living facilities, the elderly, and those with underlying chronic illness. This virus can be deadly, and that is why we need to take it seriously, wear our masks, socially distance, and do all the things that the Centers for Disease Control and other experts have advised.

Our Democratic colleagues have not done anything to lift a finger to help people who are still hurting; people who are still anxious; people who are still worried about their health, about their children going safely back to school, about whether a vaccine will be available.

Time after time, they blocked legislation we have introduced in the Senate, since we passed the CARES Act in March, and they have simply refused to provide care that is desperately needed, relief desperately needed by the American people.

My constituents in Texas, like the rest of America, have waited months for additional relief. I am ashamed of the fact that we could not find a way to come together and produce a result. I am ashamed of the fact that our friends on the other side of the aisle have forced them to wait even longer.

I yield floor.

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