Nomination of Amy Coney Barrett

Floor Speech

BREAK IN TRANSCRIPT

Mr. REED. Mr. President, I rise today to express my strong opposition to the nomination of Amy Coney Barrett to replace Justice Ruth Bader Ginsburg as an Associate Justice of the U.S. Supreme Court.

The Senate has never confirmed a Supreme Court nominee while a Presidential election was already underway. Indeed, this is the situation before us with early voting taking place in multiple States and over 50 million ballots already cast. So while those in the far- right fringe might be cheering these lifetime appointments, the vast majority of Americans are the ones who lose out, and they do not get a fair say.

Make no mistake. Today's vote isn't about one individual; it is about taking away healthcare from 20 million Americans in the midst of a pandemic. It is about eliminating protections for people with preexisting conditions that over 100 million Americans depend upon. And that is what we fear happening once this vote is cast, the lifetime appointment is given, and the case is heard after the election.

President Trump and his allies purposely set the schedule that way. They didn't want American voters to have any recourse to take out their anger at those responsible for taking away their healthcare.

My Republican colleagues should listen to their own words. Go back and look at what you said about Merrick Garland and apply it consistently.

Our fidelity is to the Constitution, not a caucus, not to the Federalist Society, not to special interests. Everyone deserves equal justice under the law. The Supreme Court was not designed to become an extension of the Republician National Committee.

The chairman of the Judiciary Committee pledged, in his own words: ``If an opening comes in the last year of President Trump's term and the primary process has started, we'll wait till the next election.''

The obvious truth is Republicans broke their word. This process itself is broken. Their pattern of obstruction and abusive partisanship over the years threatens the credibility of the Supreme Court and pushes Senate norms of fairness and accountability beyond the brink.

My decision, however, to oppose this nomination rests not only on this unprecedented use and abuse of power but also on the standard that I have applied to nominees of the Supreme Court on numerous occasions. It is a simple test--one drawn from text, the history, and the principles of the Constitution.

As I have said during previous confirmations, a nominee's intellectual gifts, experience, judgment, maturity, and temperament are all important. But these alone are not enough.

In addition, a nominee to the Supreme Court must live up to the spirit of the Constitution. A nominee must not only commit to enforcing the laws but to doing justice. A nominee must give life and meaning to the great principles of the Constitution: equality before the law, due process, freedom of conscience, individual responsibility, and the expansion of opportunity.

It is these principles that ensure full and fair and equal participation in the civic and social life for all Americans. A nominee to the Supreme Court must make these constitutional principles resonate in a rapidly changing world.

My colleagues on the Judiciary Committee spent a great deal of time and effort questioning Judge Barrett and trying to elicit responses about her basic worldview and judicial philosophy. Unfortunately, her answers were largely nonresponsive, and, at times, she demurred on issues on which she herself had already made public statements.

Despite her lack of responsiveness, Judge Barrett's judicial record and public statements suggest that she does not meet my test, and her placement on the Supreme Court will further tilt the Court away from these constitutional principles.

In understanding how Judge Barrett would not meet my test, I am cognizant that she will follow in the mold of her mentor Justice Antonin Scalia, with whom she shares an originalist approach to constitutional interpretation.

In her article titled ``Congressional Originalism,'' Judge Barrett talks about the core principles underpinning originalism. The first principle, she writes, is that ``the meaning of the constitutional text is fixed at the time of its ratification.'' The second is that ``the historical meaning of the text `has legal significance and is authoritative in most circumstances.' ''

The trouble is that the Founders and Framers did not leave us a blueprint to answer every new question of law. Nor did the delegates to the Constitutional Convention demand that all future judges be ``originalists.'' The laws and norms when the Constitution was ratified would alienate and exclude many Americans today, particularly women and racial and other minority groups.

We have seen the devastating effects of the originalist line of thinking in the Supreme Court's recent history. A focus on this mode of interpretation has played a crucial role in undoing labor rights, curtailing environmental regulations, and allowing unlimited dark money to influence politics. In the end, a strict originalist approach tends to favor the executive over the individual, the employer over the employee, and the corporation over the consumer.

Also relevant to whether Judge Barrett passes my test is her criticism of stare decisis, a core concept in Supreme Court jurisdiction under which a court generally adheres to its prior decisions--absent a special justification more than a belief that the precedent was wrongly decided.

Part of the reason that maintaining precedent is so important is that it ensures the rule of law and legitimacy of the judicial process. As Alexander Hamilton explained in Federalist No. 78, there is a long tradition of being bound by precedent, in his words, ``[t]o avoid an arbitrary discretion in the courts.''

A practical reason for following precedent is that--once it goes into effect, people then organize their lives based on the law and make decisions with the assumption that that law will stay in place.

The public expects judges to understand this need for stability and to approach the law with the appropriate humility and respect for its authority. They do not want judges to elevate their own views over the law or to change the law simply because the composition of the court changes.

That is why, in deciding to overrule precedent, a court generally undergoes a serious analysis of numerous factors, including its consistency with other decisions, the reliance interests at stake, and historical developments since the decision in question.

Therefore, I am troubled that Judge Barrett's writings indicate that she is more likely to see opportunities to revisit precedent than other judges. In an article titled ``Precedent and Jurisprudential Disagreement,'' Judge Barrett argues that there is a weaker presumption of stare decisis in constitutional cases, which could make these cases more vulnerable to review

In another article titled ``Stare Decisis and Due Process,'' Judge Barrett argues that the current standard of stare decisis has become too rigid in modern times and favors a more flexible stance on reexamining precedent.

In particular, I take seriously that Judge Barrett indicates that she is more willing to elevate her originalist interpretation over precedent. Overall, when there is a tension between precedent and jurisprudential commitment, Judge Barrett writes that she, in her words, ``tend[s] to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it.''

She similarly casts doubt on the importance of reliance interests-- which are the interests of stakeholders that depend on the continuity of an affirmed law or right--stating that ``when precedent clearly exceeds the bounds of statutory or constitutional text, reliance interests should figure far less prominently in a court's overruling calculus.''

Judge Barrett's views on originalism, textualism, and stare decisis could bring about a seismic shift to the Supreme Court, reshaping modern American life and weakening rights to which many Americans have become accustomed. Given that Judge Barrett's approach is shared by several of her future colleagues, she will help move the Court's center of gravity to the far right.

I will now walk through issues in Judge Barrett's judicial record that inform how she, in conjunction with fellow conservative judges, could and likely will rule on future cases.

I am deeply troubled about the implications of this nomination on the Affordable Care Act, the ACA. The ACA has given individuals and families control over their own healthcare and has brought the uninsured rate to a historic low. The ACA has been the law of the land since 2010 and is now woven into the fabric of our healthcare system.

Despite consistent sabotage of the ACA by the Trump administration, premiums for health insurance plans on the individual marketplaces have decreased for the second year in a row. Yet President Trump and my Republican colleagues want to repeal the ACA in its entirety, taking with it protections for people with preexisting conditions, bans on lifetime and annual limits on coverage, billions of dollars in tax credits to make coverage more affordable, and efforts to close the doughnut hole for seniors needing prescription drugs, just to name a few key provisions.

The ACA is a relevant--indeed, critical--aspect of the nomination because the Supreme Court will begin hearing oral arguments in the case of California v. Texas on November 10, which will decide the fate of the ACA. This is not a theoretical debate over how Judge Barrett may interpret a case in the future. This is a real case that could eliminate health insurance coverage for millions of Americans and increase costs for everyone in the next year.

It is no surprise that my Republican colleagues are breaking with their own precedent to consider this nominee with a week to go until the election. This is their chance to repeal the ACA once and for all.

In fact, President Trump has said many times over in the last several months that he hopes the ACA is overturned by the Supreme Court, referring specifically to this case. And don't just take his word for it. The Department of Justice, under his leadership, has taken the extraordinary step of deciding against defending the law of the land, the ACA, and instead siding with the plaintiffs in arguing that the ACA and its protections for people with preexisting conditions, among other provisions, is unconstitutional. President Trump and congressional Republicans are very clear about their intentions. They want to repeal the ACA. They have been saying it for a decade.

They failed to do it when they had complete control of the White House and Congress because of overwhelming public opposition to their efforts and a few brave votes. They are relying on the Supreme Court to do their dirty work for them and get rid of the ACA. They even petitioned to have the case heard by the Supreme Court after the election, knowing that the American people would not be happy if the Court decided in their favor and struck down the ACA.

It is not hard to follow the logic here. President Trump and congressional Republicans have been working methodically to lead us to this moment for years.

Now I will return to the nominee for a moment. President Trump has made it clear that he intends to have the courts do his bidding for him and has committed to nominating judges who will side with him.

In her hearing, Judge Barrett refused to discuss how she may handle a case on the ACA. However, in early 2017, she authored an article criticizing the ACA, specifically arguing that the 2012 Supreme Court case, NFIB v. Sebelius, was wrongly decided when a 5-to-4 majority ruled that the ACA's individual mandate was, in fact, constitutional. In particular, Judge Barrett criticized Chief Justice Roberts' deciding vote in that case, claiming that he ``pushed the Affordable Care Act beyond its plausible meaning to save the statute.''

Instead, Judge Barrett has praised her mentor, the late Justice Scalia, in his criticism of the ACA, as displayed in his dissents in both the NFIB case as well as the case of King v. Burwell, related to the tax credits provided by the ACA.

So while the nominee has not said how she may rule in the case of California v. Texas on whether the ACA is constitutional, she didn't have to. We already know that, had she been on the Court in 2012 when NFIB v. Sebelius was decided or in 2015 when King v. Burwell was decided, she likely would have voted to invalidate key elements or all of the ACA.

Between her public writings and President Trump's commitment to appointing judges who are hostile to the ACA, I don't think it is a stretch to imagine how a future Justice Barrett may vote in California v. Texas. The stakes for millions of Americans are just too high to support this nomination to the Supreme Court.

I am also concerned by Judge Barrett's extreme views on the Second Amendment and the constitutionality of limits on gun possession. To understand her position, one must first understand the test set in District of Columbia v. Heller. This case involved a challenge to the District of Columbia laws that generally made it unlawful to possess an operable firearm in the home.

Justice Scalia authored the majority's opinion and was joined by Justice Roberts and Justices Thomas, Kennedy, and Alito.

In Heller, the Supreme Court struck those laws down and affirmed the right to keep guns in the home for self-defense, while making clear that rights secured under the Second Amendment are not unlimited. The Court provided a nonexhaustive list of gun restriction laws that were presumptively lawful, including prohibitions on firearms possessed by felons and the mentally ill.

However, in the case Kanter v. Barr, Judge Barrett filed a dissent laying out a rationale that could lead to the striking down of even commonsense gun restrictions. In this case, the plaintiff was convicted of felony mail fraud and was subsequently prohibited from possessing a firearm under both Federal and State law.

When he challenged these laws as violating the Second Amendment, the majority concluded that Federal and State governments were entitled to bar firearms possession by people convicted of felonies. Judge Barrett disagreed and concluded that barring nonviolent felons from possessing firearms is not allowed under the Second Amendment. She reasoned that, in her words, ``History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons. But it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.''

Her position lies outside the widely accepted view that gun restrictions for public safety are constitutional under the Second Amendment. Her opinion puts her to the right of Justice Scalia, who delivered the majority opinion in Heller.

Her vote in Kanter makes it more likely that Judge Barrett would vote to strike down similar restrictions on firearm possession, even by individuals with serious criminal histories. This outcome alone is concerning.

Beyond that, her views, coupled with the originalist approach to the Second Amendment endorsed by several sitting Justices, portend that a conservative majority could create stricter standards of scrutiny for Second Amendment cases.

It is important to note that Justice Ginsburg joined other Justices in declining opportunities to revisit Heller's application. That includes the denial of ten certiorari petitions this past term that called for the Court to review, and possibly invalidate, challenges to State gun safety laws, including State concealed-carry laws, gun permit requirements, and assault weapons bans.

Given that only four votes are needed to grant certiorari review, Judge Barrett could play an important role in deciding whether the Supreme Court adds Second Amendment cases to its docket. This could generally put commonsense gun safety laws, even those that have been upheld for years, at an increased risk of being overturned.

Furthermore, as part of a conservative majority, Judge Barrett could initiate major rollbacks of privacy rights in one's own home life. During her confirmation hearings, Judge Barrett declined to say whether the Supreme Court cases--Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges--were correctly decided. The Griswold case from 1965, in particular, is a foundational case in this arena. Griswold, holding that marital privacy extends to the right to buy and use contraception, led to cases extending privacy in other reproductive decisions. In her refusal, Judge Barrett took a departure from past nominees who have affirmed that Griswold is settled law, including Chief Justice Roberts and Justices Alito, Kavanaugh, and Kagan. Instead of giving a straightforward answer, Judge Barrett contended that it is unlikely that a related case would come before the Court and tried to frame this issue as well settled. However, in Little Sisters of the Poor V. Pennsylvania, it is notable that the Supreme Court has very recently allowed Trump administration rules to go into effect, allowing virtually any employer to deny contraceptive coverage based on religious and moral objections. Therefore, it is clear that this issue is not beyond dispute and could come back before the Court.

Obergefell and Lawrence were landmark cases that established privacy rights around marriage and intimate relations between consenting adults, regardless of their genders. While it may be unthinkable that these and similar rights, which are integral to a person's ability to construct their personal and family lives, could be undermined, there are worrying indications that they may come again before the Court.

Just this month, Justices Thomas and Alito wrote that they see Obergefell--which granted the right to same-sex marriage--as something the Court needs to fix and that the decision has had ``ruinous consequences for religious liberty.''

Given that Justice Ginsburg was a crucial vote in the Obergefell 5- to-4 opinion, it is conceivable that a 6-3 conservative Court could chip away at equality were these rights to be relitigated.

A conservative Court may also act as a bulwark against further expanding privacy protections in family life. For example, a case is set to come before the Court this term, Fulton v. Philadelphia, in which private agencies that receive taxpayer funding to provide government services, such as foster care agencies, could be determined to have a constitutional right to deny services to persons on the basis of sexual orientation.

The next area of concern is how Judge Barrett's record will impact workers' rights. Unfortunately, Judge Barrett has a record of voting in favor of business interests. Judge Barrett voted to reject an en banc review in Equal Employment Opportunity Commission v. AutoZone, regarding an employer's policy of assigning Black and Latino employees to stores in neighborhoods with people predominantly of their same race--creating a ``Black store'' and a ``Hispanic store.'' Judge Barrett's colleague who dissented called this a ``separate but equal arrangement''--a type of unlawful discrimination, which was well settled by Brown v. Board of Education.

During her confirmation hearings, she agreed that Brown was correctly decided and beyond overruling. However, Judge Barrett's decision in AutoZone indicates she is willing to accept racially segregated actions by an employer, even when they would be difficult to reconcile with the core holdings of Brown.

In another discrimination-related case, Kleber v. CareFusion, Judge Barrett joined the en banc decision allowing an employer to post a job application with maximum years of experience, essentially barring applicants older in age. The majority took a narrow view that the ambiguous language of the Age Discrimination in Employment Act did not apply in this case, reasoning that it applied only to current employees and not to job applicants.

In both AutoZone and Kleber, Judge Barrett has opened the door for employers to run afoul of our country's civil rights laws. This is particularly concerning because the Supreme Court will likely take up cases deciding who is protected from workplace discrimination. For example, the Court could face legal challenges in the wake of Bostock v. Clayton County, which confirmed that title VII of the Civil Rights Act prohibits employers from discriminating against LGBTQ people. The majority's opinion, however, warned that future cases will determine whether businesses could use religious freedom claims to ``supersede Title VII's commands.''

Judge Barrett had additionally ruled against employees and gig workers by limiting their ability to hold employers accountable through collective arbitration in the cases, Herrington v. Waterstone Mortgage and Wallace v. Grubhub Holdings. Given that disputes around the rights of gig economy workers and the prevalence of forced arbitration agreements are only increasing, related cases are likely to come before the Supreme Court. It is notable, in coming to her conclusion in Grubhub, Judge Barrett cited Epic Systems v. Lewis, in which the Supreme Court held that arbitration agreements in which an employee agrees to arbitrate any claims against an employer on an individual basis--rather than as a class--are enforceable. In that case, Justice Ginsburg took the rare step of reading a particularly strong dissent from the bench, saying that the Court's ruling was ``egregiously wrong'' and ``holds enforceable these arm-twisted, take- it-or-leave-it contracts--including the provisions requiring employees to litigate wage and hours claims only one-by-one.'' Were a similar case to come before the Supreme Court again, it is likely that Judge Barrett and a conservative majority would take a sharp turn away from Justice Ginsburg's legal position and make it harder for workers to get their day in court.

I am further concerned that a 6-3 conservative majority Court could have a drastic impact in limiting voting rights. Voter suppression has a long history in this country, with Black voters being subjected to violent intimidation and legally sanctioned disenfranchisement. In recognition of this history and after decades of activism on the part of many, President Lyndon B. Johnson signed the Voting Rights Act, which in part required jurisdictions with a history of discrimination to get approval before changing its voting rules. This process, known as preclearance, was intended to prevent voter discrimination before it occurred. This law had an immediate and positive impact in increasing Black voter registration and turnout in the decades after it passed.

However, in Shelby County v. Holder, the Supreme Court's conservative members argued in a 5-to-4 ruling that the preclearance formula was no longer necessary and outdated, exactly because it was successful. In her dissent, Justice Ginsburg famously pointed out the absurdity of the majority's reasoning. She wrote that ``throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.'' Predictably, the ruling in Shelby opened the floodgates for States to enact restrictive and insidious voting laws, including strict voter identification, excessive voter purging, and gerrymandering. In the wake of Shelby, the awesome power of the Supreme Court to restore or further damage voting rights has become apparent.

That is why it is troubling that in her dissent in Kanter--which I have already referred to--Judge Barrett framed the right to vote as a lesser right and argued for States' ability to limit civic participation. As I explained earlier, in the Kanter case, she disagreed with the majority's opinion that found that all individuals with felony convictions could be legally restricted from possessing a firearm. The majority reasoned that Second Amendment protections belong to virtuous citizens, meaning that persons who commit serious crimes may forfeit those rights. Judge Barrett used this opportunity to elevate the importance of Second Amendment rights in contrast with voting rights. After evaluating the historical record, she concluded that ``while scholars have not identified eighteenth or nineteenth or century laws''--and it is interesting to note that we are being guided by 18th and 19th century laws under Judge Barrett's legal theories. ``While scholars have not identified eighteenth or nineteenth century laws depriving felons of the right to bear arms, history does show that felons could be disqualified from exercising certain rights--like the rights to vote and serve on juries--because these rights belong only to virtuous citizens.''

She explained that, in her view, gun rights are individual rights conferred by the Second Amendment, and exclusions on nonvirtuous citizens do not apply to individual rights. Judge Barrett then distinguished the right to vote and sit on juries as belonging in a different category called ``civic rights.'' She upheld the ability of States to limit this class of rights based on virtue exclusions. In doing so, she cited a history of State laws going back to 1820 that excluded felons from voting. Judge Barrett, however, failed to include in her analysis the very history of voter discrimination that led to the passage of the Voting Rights Act and which would have given important context to the laws that she cited, which sought to disenfranchise individuals with criminal records.

I am also concerned because Judge Barrett refused to answer several questions on voting and elections during her confirmation hearings. Even when asked to confirm voter protections already enshrined in Federal law, she was not able to give a straightforward answer. These exchanges gave me pause that Judge Barrett has not displayed an appreciation for the norms that make our democratic and electoral institutions function.

I would next like to focus on Judge Barrett's potential in limiting the authority of the Federal and, indeed, State governments. If confirmed to the Supreme Court, Judge Barrett's judicial philosophy of originalism is poised to diminish the role of Congress as effective policymakers. This method of interpretation could disregard the commonsense application and spirit of Federal laws. An example of this is the case I discussed earlier, NFIB v. Sebelius, where the Court decided with a 5-4 majority that the ACA's individual mandate is constitutional. The Court, however, created a new limitation on Congress's authority to act under the Commerce Clause. Using an originalist approach, the Court found that Congress can regulate commercial activity but rejected the idea it could compel an individual to engage in it. The majority did uphold the Congress's power to do so under its article I powers to levy taxes. Alarmingly, four dissenting Justices--Justices Scalia, Thomas, Kennedy, and Alito--expressed the view that neither the Commerce Clause nor Congress's taxing powers supported the individual mandate. I will note that, had Judge Barrett been on the Court, she likely would have joined the dissenting Justices, and this case might have gone the other way.

The implications of this case are significant. Taken together, Chief Justice Roberts' opinion and the dissent are centered around the idea that the use of a Commerce Clause and/or Congress's taxing power under the ACA was a major legislative overreach. It signals that the Court increasingly sees these and potentially other congressional authorities as having more limits. So in the future, when Congress tries to use its power for a novel purpose, it may be susceptible to challenges in the courts. If the Court continues to shift in this direction, it will have consequences for Federal legislation beyond the ACA. As a result, Congress's authority to robustly address climate change, civil rights, new technology, and other national challenges through legislation could be stymied or diminished over time.

And with Judge Barrett's fascination with the exact meaning of the original writers of the Constitution, I wonder what their thoughts were about nuclear energy, satellites in space, a U.S. Air Force, which was not specifically authorized in the Constitution. I think we will find ourselves in a very difficult position where when we face the challenges of climate change, cyber warfare, that a Court that looks back will not grant Congress the authority to protect the American people.

Also limiting the authority of the Federal Government, a 6-to-3 conservative majority could take on a more aggressive judicial review of agency actions. Several members of the Supreme Court have already called for the reconsideration of the Chevron decision. This is a legal doctrine that instructs the Federal judiciary to defer to a Federal agency's reasonable interpretation of an ambiguous or unclear statute that it administers.

If the Supreme Court overturns the Chevron deference, it could strike down agency rules that do not comport with the Court's interpretation of the statute. This could make toothless environmental, food and drug safety, labor, and a host of other regulations enacted for the benefit of the workers and consumers. It would also shift the Court's decisions in favor of the corporate and special interests that tend to challenge these agency regulations in the first place.

One of reasons that the agencies were given the authority to implement our laws--given by Congress to the agencies--was their expertise, an expertise that in most cases far exceeds that of the U.S. Supreme Court.

Now, I intend to vote against the nomination of Judge Amy Coney Barrett to be an Associate Justice of the U.S. Supreme Court because I am convinced that she will not guard core constitutional principles, that she will not interpret the law to protect the rights of the vulnerable, and that she will read the law with a backward-looking perspective, not consistent with the realities of our time and the growing dangers that we face in the future.

As my Republican colleagues accelerate this nomination at a breakneck pace, it speaks to the deeply misplaced priorities of this body. We simply should be not be undertaking a Supreme Court nomination at this time, especially when it should rightfully take place during the next Presidential term after the voters have made their decision.

The Senate's foremost priority right now should be to provide additional pandemic relief. My colleagues have displayed a profound lack of urgency to address the many challenges Americans face due to the pandemic. This is despite the repeated warnings from public health experts and economists about what will happen if we do not enact additional fiscal aid.

However, my Republican colleagues continue to turn a blind eye, even as COVID-19 cases spike, businesses close, unemployment remains high, and States consider deeper budget cuts. Under these extraordinary circumstances, I cannot support Judge Barrett's nomination to the Supreme the Court of the United States.

I urge my Republican colleagues to stop this shortsighted rush. Let's put the best interests of the country first. Let's wait a few more days and let the American people have a say. Let's focus on the COVID-19 crisis, which demands our immediate attention. Just because you can do something doesn't mean you are doing the right thing. I strongly believe my Republican colleagues are making a major mistake that will be doing lasting damage to both this institution and the Supreme Court, and I urge them to reconsider.

Instead of pushing forward with this ill-suited nominee, let's get to the business at hand: addressing the great challenges we face due to the pandemic and beyond, as well as working together to fix the Senate so that we no longer break faith with the people who sent us here, the people we represent.

BREAK IN TRANSCRIPT

Source