Nomination of Amy Coney Barrett

Floor Speech

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Mr. BOOKER. Thank you, Madam President, my colleague from Iowa. I am grateful.

Madam President, I rise today to speak on the nomination of Amy Coney Barrett. I rise in the midst of a pandemic, in the midst of an election process in which over 50 million Americans have already voted, to speak with a simple call that we should wait. We should not be doing this as a body.

Now, that is not a radical statement. It is a statement that has been said by pretty much every Member of the Democratic side, but it is also a statement that was made by many people in the Republican Party before we got to this juncture.

It was said around the time that Merrick Garland was up for nomination by President Barack Obama 269 days before an election, and people said that we were in an election season; that we should wait.

But this is not a typical election season. This is an election that is going on where the people are coming out to speak on an array of issues. There is a profound urgency in the air--not a partisan urgency. America has seen record turnout because they know what is at stake in this election.

There are issues that are driving people to the polls, and in this context, our President is doing what has never been done before. The only time this had a chance to be done before was when Abraham Lincoln had a vacancy on the Supreme Court in the midst of an election--this close to an election. Abraham Lincoln--one of our greatest Presidents of all time--made a powerful choice. He had the power to move, and he had the power to nominate, but he showed a restraint on power. He showed, in a sense, what we would call an act of grace. He knew that in the midst of an election, when people were coming out to speak, that it was better to wait.

This grace is also what was called for by Ruth Bader Ginsburg on her deathbed. She didn't know who would win this election, but she thought it was best to call to the better angels of our nature; that sometimes the greatest demonstration of power is when we do not use it; that this precious democracy, this great experiment that has endured for this period of time, has sustained itself on acts of decency and grace and most importantly on trust--trusting people, trusting Americans, and trusting voters.

We haven't always gotten it right, but this fundamental ideal that when people are exercising their voice, the people in this body should listen. Over 50 million Americans. We are days--in fact, hours--away from the actual election day, but the process has started already. People are speaking, but we are refusing to listen.

I fear that what is driving many people to the polls are some of the very issues that this Supreme Court Justice will be in a position to hear. We know that Donald Trump spent the last 4 years trying to overturn the Affordable Care Act. He made a promise to only appoint Justices who would overturn it. He promised that he would nominate a judge who would ``do the right thing unlike Bush's appointee John Roberts on ObamaCare.'' This is clear.

We know that the majority leader, Mitch McConnell, controlling this floor, has spent years trying to overturn the Affordable Care Act. In fact, between the House and the Senate, there have been over 70 votes to overturn the Affordable Care Act.

We know there is a case that will come before the Supreme Court on November 10 that could very well determine whether over 600,000 people in my State and 20 million people across the country can keep their health coverage.

So this is not a secret. The American people know what is going on. They see what is happening here. Many of them, I believe, are going to the polls to speak about the issue of healthcare, and instead of waiting and trusting to hear and listen to the will of the people, we are here right now.

Folk are scared. We are, in a sense, walking through the valley of the shadow of death--the fourth largest mass casualty event in the history of our country, and the death rate is rising every single day. That is why so many Americans have been speaking out and calling out, because they know what this nomination could very well mean for their lives and for the lives of their family members. They know what a world without the ACA would be like.

For a President to nominate someone--a President hostile to the ACA-- a Supreme Court Justice who has spoken to this, they know what this might mean. We know that for 3.8 million New Jerseyans and 130 million Americans who have preexisting conditions--people with diabetes; cancer survivors; people with diseases like my dad had, Parkinson's--it could mean being charged more or being denied coverage completely. This is a terrifying reality.

Folk who are going to the polls, waiting hours in a line, know what it could mean--that once again more people are going to be bankrupted by outrageous medical bills.

They know what it could mean for lifetime caps on care for children with complex medical conditions.

They know what it could mean for a family with a child who survived a medical procedure and another medical procedure and another medical procedure, surgery after surgery, being told: If you want your child to live, pay for it yourself.

So many Americans know what it would mean for seniors not being able to afford lifesaving prescriptions, making the dangerous decision to cut pills in half or ration their insulin.

So many Americans know that losing the ACA could mean real tragedy.

In New Jersey, over 600,000 people are losing their healthcare in the middle of a pandemic that in my State has already killed 16,000 of our first responders, our neighbors, and in many cases our friends and our family members. These are numbers, these are data, and these are statistics, but each one is a human life. Each one has dignity, and each one has family.

I know, for example, Michelle Lewris from Palisades Park, NJ. When Michelle lost her husband John suddenly last year, she also lost the health coverage she had through his job. But she was able to get coverage through the Affordable Care Act's marketplace and qualify for a subsidy that made it more affordable for her. Today, she is insured, and she can manage her diabetes and her heart disease and her autoimmune disease because of her coverage. She said that if she lost her affordable healthcare, she would have to sell her home and would be in financial crisis.

Losing the ACA for Merritt Bowman, who is a 49-year-old dad with twin boys and a football coach from New Jersey--he said that before the ACA was passed, he didn't even go to the doctor because he was afraid he couldn't afford it, putting his own health in danger. After the ACA, he was able to get affordable coverage. When he felt sick a few years back, he made a doctor's appointment and was diagnosed with diabetes. Today, thank God, his condition has improved, but, he said: Now I have a preexisting condition. My insurance covers my medication and my equipment to monitor my diabetes. If that is taken away from me, what is going to happen? I can't afford those things on my own

I know this reality. We must know this reality. We must listen to Americans right now who are saying openly: I am going to the polls because of my fears on healthcare.

Yet we are going through--instead of waiting to listen to our fellow Americans, showing that grace that they should decide, we are rushing forward.

What about protections that are granted people like those under Roe v. Wade? What about that? Those are decisions that we should let voters decide. We should listen to the American people. What about protections for workers? What about protections for organizers? What about voting rights? All of these issues in the midst of an election deserve to be decided by the people.

The American people know what is at stake right now because we know that Donald Trump nominated Judge Barrett with a very specific agenda in mind. He told us very clearly. We know that Donald Trump wants the Affordable Care Act to be overturned, and he would appoint judges he believes would do that. We know that Donald Trump wants Roe v. Wade overturned. He has explicitly told us that. We know that Donald Trump wants us to question the validity of an election because he has questioned the validity of an election that is ongoing right now.

I never imagined I would have a day in my life as an American citizen--I have watched other countries, but I never thought in my own we would have a leader who would question the validity of an election, going as far as to say: If I lose, this election was rigged, and it was illegitimate.

That does real damage to not just this moment in time; it does damage to our very institutions and our processes that are essential for this democracy. It is dangerous language.

The behavior of this President is so dangerous that his own Cabinet members--former Cabinet members--have called it out.

I know the strength of our Nation, but our institutions must be protected, and they must be preserved. The processes that ensure this democracy continues to go on so that our truth goes marching on--all have to be protected.

When you have a President who calls into question our very election processes and literally says ``If I lose, it is illegitimate'' and then says ``I won't even commit to a peaceful transfer of power,'' that should raise alarms. That is why people within his own party, people who served in his own Cabinet, people respected in this entire body, like General Mattis, former Secretary of Defense, have said that Donald Trump is a threat to our democracy.

It is in that context, in the middle of a national crisis, that we are in the midst of an election, and we can't even get a Supreme Court nominee to commit themselves to the idea of the peaceful transfer of power, who the President himself has said he is rushing to the highest Court in the land because he believes that this election may be decided by that judge. That judge won't even commit to being recused under these circumstances. Is that strengthening our democracy? Is that girding trust in our country's processes, or is it weakening them? Because it clearly is doing damage to what is necessary for the endurance of our country and our ideas.

These aren't just my words; these are the words of people on both sides of America's political divide. Yet we are not showing restraint in this moment. We are not showing that grace. We are rushing for short-term gain for one political party and long-term damage to our Nation.

I don't understand why this is not something that raises worry and concern--a President who so easily trashes some of our most valued and sacrosanct ideas.

I remember the hurt I felt when peaceful protesters in Lafayette Park were turned upon. I remember a note I was forwarded from a college classmate--if I have it correct--about her son being hit with a rubber bullet. I remember journalists whom I had gotten to know in these very hallways telling me about the horror of seeing the panic and the screams and the running as the gas and the rubber bullets hit. I saw how a President seemed to utilize the military to menace what is one of our most important constitutional protections--the right to protest peacefully.

I have seen 4 years now of too many people who have remained silent in the face of erosions to our constitutional norms as the President has so willingly trashed that which people on both sides of our political divide have worked so hard to build up. I stood right there down near the Presiding Officer and raised my hand, like so many of us have--like all of us have--to protect and defend the Constitution of the United States.

To not see us right now, in the midst of a potential constitutional convulsion; in the midst of a potential constitutional crisis where a President himself is not committing to the peaceful transfer of power; where there are people organizing to do harm to elected leaders, kidnap them; when you could go online right now and look at groups calling out to people with Special Forces training to go to polls and perhaps cause mayhem--I don't understand why we don't share a bipartisan, deep concern for what is happening right now in our country and how this moment in American history fits into the concern that moving forward right now causes danger and causes harm.

I would be remiss to not mention that in the midst of it all, we are also in the midst of a racial awakening in our country. We saw what are perhaps the largest demonstrations in our Nation around issues of racial justice--all 50 States, towns and communities from all backgrounds, people marching and protesting around race issues. It has led millions of Americans to learn more about our own history, discovering things like the Tulsa massacre, discovering things like the Colfax massacre, going to the incredible museum in Alabama for lynching, where thousands of Americans were lynched in our country, discovering our history and how it ties directly to the President.

In the midst of all of this, we know that issues of race and the law will continuously come up before the Court until we have justice rolling down like water and righteousness like a mighty stream.

In the midst of all of this, even in my conversations with this nominee, I was surprised that they could not speak to one article, one Law Review article, one column, or one book they have read about issues of race in the law, when we are still in a nation that has such bias in its outcome, where just by the color of their skin they are directly correlated with longer sentences, more likely to get the mandatory minimum, more likely to get the death penalty, where we see no difference between Blacks and Whites in America for using marijuana or selling marijuana, but Blacks are almost four times more likely to be arrested for possession of marijuana, getting criminal convictions for doing things that two of the last three Presidents admitted to doing.

And in the midst of all of this that has activated so many Americans and many even in the polls today, I couldn't get even a dialogue going about issues of race.

When I specifically asked about a case, Judge Barrett's case in Smith v. Illinois Department of Transportation--this case involved a Black traffic patrol driver who had been fired by the Illinois Department of Transportation. This employee claimed that he had been the subject of a hostile work environment and that his supervisor had called him the N- word. Judge Barrett ruled against him saying that despite documenting being called the N-word by his supervisor, the employee had failed to make the case that he had been fired in retaliation for complaints about race discrimination.

When I asked Judge Barrett why she ruled that a supervisor using a vial and derogatory term, one that carries with it a history of racial subjugation and violence like the ``N-word,'' did not constitute a hostile work environment--I mentioned that Judge Kavanaugh, in a similar case, ruled that it did--I was surprised after her answers to go back and read the case. She had muddied the facts in the case. In fact, she blatantly mischaracterized a key fact in the case.

Judge Barrett said: ``He didn't tie the use of the N-word into the evidence that he introduced for his hostile work environment claim.'' When, in fact, the employee's reply brief states: ``Appellant's position is that the combination of the N-word and the acts identified immediately above did create a hostile work environment.''

She mischaracterized her own ruling claiming, ``So the panel very carefully wrote the opinion to make clear that it was possible for one use of the N-word to be enough to establish a hostile work environment claim if overplayed that way,'' when, in fact, her opinion stated something different:

The N-word is an egregious epitaph. That said, Smith can't win simply by providing that the N-word was uttered.

Again, even Justice Kavanaugh stated that being called the N-word by a supervisor suffices in itself to establish a racially hostile work environment.

Again, in this context, at a moment that our country is moving in numbers we have not seen before, we have a Justice that mischaracterizes a case, doesn't speak directly to the facts, as plain as they were, and can't engage in a substantive conversation about any scholarship whatsoever around race in America.

I would like to read an excerpt of the letter from Derrick Johnson, President and CEO of the NAACP. Hon. Lindsey Graham, Chairman, Senate Judiciary Committee, Washington, DC. Hon. Dianne Feinstein, Ranking Member, Senate Judiciary Committee, Washington, DC. Re Opposition to the Nomination of Amy Coney Barrett to the Supreme Court of the United States.

Dear Chairman Graham and Ranking Member Feinstein: On behalf of Black Lives Matter Global Network Foundation, Inc. the umbrella organization for our global movement, I strongly urge you to oppose the nomination of Amy Coney Barrett to serve as Associate Justice on the Supreme Court of the United States.

The New York Times recently recognized Black Lives Matter as the largest, most diverse civil and human rights movement in the history of both our country and the world. We cannot stand back nor stand by as partisan political games threaten irreparable harm to the last branch of government where Black Americans can turn for protection and justice.

As imperfect as our American judicial system has been, it has traditionally had at least the veneer of an avenue for recourse for marginalized groups. This political hijacking of the nominating process to the highest court in the land goes against the purpose and intent of the Constitution you are sworn to uphold.

The U.S. Supreme Court has always been crucial to the progress of African Americans. Our rights to fully participate in democracy and in every facet of social and economic life, on an equal basis, lie in the balance. From Brown v. Board of Education to Shelby County v. Holder, we have seen the power of the Supreme Court to both advance and undermine civil rights and equal justice under law. Each year, the Court decides critical cases involving voting rights, equal educational opportunity, fair employment, fair housing, women's rights, access to healthcare, immigration, consumer rights, environmental justice, and criminal justice. These decisions directly impact our lives, our families, and our communities for generations.

Placing someone like Barrett who has a record of flagrant disregard for established precedent, especially on issues related to race, on the Court is dangerous for marginalized people. Smith v. Illinois Department of Transportation, is only one example of her dangerous jurisprudence. In the aforementioned case, Barrett ruled that being called the n- word by a supervisor does not constitute a hostile work environment. So extreme is this ruling, that it places Barrett to the right of Justice Kavanaugh, who in 2013 wrote that a single use of this epithet ``suffices by itself to establish a racially hostile work environment.'' The means by which Judge Barrett reached this extraordinary conclusion, by relying on grounds that neither the trial court nor either party had raised, reveals the jurisprudential gymnastics to which she was willing to undergo in order to reach this disturbing conclusion.

The nomination of Amy Coney Barrett in the middle of a presidential election poses a grave threat to the integrity and legitimacy of the bastion of the Judicial Branch of government. Justice Ginsburg passed away on September 17. Thirteen days after, voting began. At least 31.4 million people have already voted for President and for their Senators in this election, both through early voting and voting by mail. Their voices must be heard and honored.

Black Lives Matter wants a Supreme Court that works for all of us. We will fight for that Court. Corporate interests like insurance companies, drug companies, and the gun industry have worked for years to pack the courts to ensure that they work for them, not for the rest of us. To have courts that protect equal justice for everyone, we need a nominee who will fight against these corporations and protect the rights of everyday working people. We need a Justice who won't pick and choose whose rights to defend, but one who will work to protect equal justice for all. Amy Coney Barrett is not that nominee. She will not be that Justice.

Our rights and the future of our democracy is at stake. Because Amy Coney Barrett puts the wealthy and powerful first, the Court will continue making decisions that deny Americans' voting rights, put corporations ahead of people, refuse to recognize and remediate discrimination, and limit access to health care.

Black Lives Matter must also note that Amy Coney Barrett currently occupies a judicial seat meant for a Black woman. She ascended over Black women with greater qualifications and more professional experience. In 2017, Donald Trump appointed Barrett to an Indiana seat in the U.S. Court of Appeals for the Seventh Circuit, which covers Indiana, Illinois, and Wisconsin. This is the same seat to which President Obama nominated Myra Selby, a Black woman, in 2016. But Republican Senators blocked Myra Selby's confirmation and saved the seat for Donald Trump. After Trump was elected, the Seventh Circuit lost its only judge of color to retirement. In total, Trump had four vacancies to fill on this circuit. Instead of nominating a person of color to restore diversity to the court, Trump appointed four white judges, including Amy Barrett, making the Seventh Circuit the only all white federal appellate court in the country.

The judicial oath for the Supreme Court states ``I solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me''. Judge Barrett has failed to show she is capable of holding true to those principles. We take her at her opined word and believe she is who she has shown us to be.

For these reasons, Black Lives Matter strongly opposes the nomination of Judge Barrett to the Supreme Court. Thank you for your consideration of our position. Respectfully, Patrisse Cullers,

Co-Founder and Executive Director, Black Lives Matter Global Network Foundation, Inc.

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Mr. BOOKER. So I appeal, again, one last time to the conscience of the Senate. This is not a time to proceed. This is a time for grace. It is not a time to proceed. It is a time to firm up the foundations of our Republic. It is not a time to proceed. It is a time to listen to the American people. It is a time to listen to the voters lined up now. It is a time to listen and wait.

I know there are a lot of Americans who are concerned right now, not with the one nominee but with how this process has gone. It is a process that is eroding people's trust and their faith in the institution. They don't see fairness in this. They look at the own words of Republican Senators and don't understand how hypocrisy like that can stand--one standard for one President, another standard for another.

But I want to tell everyone who is hurting right now, everyone who is worried about our Republic, everyone who is concerned in this moment about their healthcare and their voting rights and their Nation that this is not a time to give up. There will be difficult days ahead, but it is not a time to give up.

We know that healthcare is at risk, but it is not a time to give up. We know that women controlling their own bodies, sacrosanct as that idea is and as under threat as it now is--it is not a time to give up. LGBTQ rights are under threat, but it is not a time to give up. We cannot give up in the cause of our country. It is not a right cause or a left cause. It is a right and wrong cause.

We can be a nation that builds for posterity a functioning republic that can elevate the best of human ideals like grace. We cannot give up in this moment. We cannot meet darkness with darkness. We cannot surrender to cynicism about our systems. We have to keep pressing forward.

I still believe that our Nation's history, as speckled as it is with wretchedness and pain, is still a story that is a testimony to the overcoming of injustice and the better securing of it. I still believe that we do live in a nation where the truth does prevail in the end. I still believe that even when wrongs are done, they can be righted. I still believe that though this may become, today, a moment of shame, we can reclaim in this Nation the ideals of our Founders--those testimonies to grace, the commitment to each other of their sacred honor--that we still can take a body politic, wounded and injured, and in our country find healing, find redemption, and find grace.

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