Nomination of Amy Coney Barrett

Floor Speech

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Mr. WYDEN. Mr. President, everything that has happened since the untimely passing of the legendary Justice Ginsburg is a clear reminder that much of what goes on in Washington, DC, is simply not on the level.

Right now, our country is hurting--mass death, mass unemployment, mass hunger, and suffering among children. The two sides in Congress ought to be addressing those challenges together.

Now more than ever, while so many are so fearful about tomorrow, the rules the Senate goes by and the agreements the Senate makes need to stand for something. That is how I felt when I negotiated for the $600- per-week unemployment insurance boost in March.

The Treasury Secretary for the Republicans agreed to it, but then, at the last minute, Republican Senators pretended otherwise and tried to vote it out of the bill. Think about that. There was an agreement between both sides, and the one thing that Senate Republicans wanted to do was to break the agreement and keep workers from getting that extra money to pay the rent and the food bill at a time when they had been laid off through no fault of their own.

Another example is unfolding right before our eyes. Until a few weeks ago, Leader McConnell and Chairman Graham would have told you it was essentially the 11th commandment, carved in stone: No election-year Supreme Court appointments. Again, Republicans went back on their word.

If the cure to COVID-19 was partisanship and rule-breaking, then Senate Republicans might be onto something with their low stunt on the high Court, but it is not.

The American people have a much more sensitive radar for unfairness than Senate Republicans. When I was home during the 2-week period here recently, I went to counties that Donald Trump won decisively and counties that Hillary Clinton won in 2016. Folks I talked to in both communities, in both areas, said the person who wins the 2020 election should be the one who chooses the Court nominee. In this case, the American people know what is at stake for them because they see the consequences of rule-breaking.

If Judge Barrett is confirmed and does what Donald Trump has repeatedly said he requires of a nominee--help him throw out the Affordable Care Act--here is what will happen: Tens of millions of Americans will suddenly lose their healthcare during a pandemic. COVID- 19 will become a preexisting condition used by insurance companies to once again discriminate against consumers. It will take America back to the days when healthcare was for the healthy and wealthy.

Even the nominee herself shows this process on judicial nominees is so dysfunctional and so broken, it doesn't come close to being on the level. Amy Coney Barrett may have established herself as the Babe Ruth of saying pretty much nothing.

Now, everybody understands that nominees typically clam up during these hearings. I don't expect Judge Barrett to disavow Trump healthcare policy. I wouldn't expect to agree with all of a Trump nominee's positions. But unfortunately for our country, this hearing was a new low.

For example, one of my colleagues asked whether Judge Barrett was aware that the President had committed to nominating judges who would throw out the Affordable Care Act--a statement that was part of news accounts all across the country again and again and again and again.

Back in 2015, Donald Trump said: ``If I win the presidency, my judicial appointments will do the right thing, unlike Bush's appointee John Roberts on ObamaCare.''

The day after Judge Barrett's nomination, Donald Trump tweeted: ``ObamaCare will be replaced with a much better and far cheaper alternative, if it is terminated in the Supreme Court.''

But Judge Barrett answered, when my colleague asked about whether she had heard about anything resembling Donald Trump's views on this, she said: ``I don't recall hearing about or seeing such statements . . . that wasn't something that I heard or saw directly by reading it myself.'' She also said she couldn't recall whether Senators brought it up during their conversations with her.

I say to the Senate today, does anybody think that was an authentic answer? Everybody who occasionally looks at the news knows that Donald Trump wants to tear down the Affordable Care Act. He famously promised the far right that his judges would take all the far-right positions. He routinely attacks Republican-appointed Justices for opinions he dislikes.

The ``never heard it, never saw it'' argument advanced by Judge Barrett, that she doesn't follow the news, apparently, at all; didn't talk with anybody about the healthcare debate that has been front and center in American politics for a long, long time, is hard to mesh. I understate this with reality. You don't reach the heights of the academic and legal profession by ignoring the news of the day for years and years and years on end.

If you watch Judge Barrett's hearing, it is clear what this ``never heard it, never saw it'' argument is all about. It is about denying that there is any real threat to the Affordable Care Act to protections for preexisting conditions, to cheaper medicines for seniors.

Judge Barrett certainly put on a hall of fame performance in ducking and dodging and weaving her way out of even the simple routine questions about existing law, stuff that is guaranteed to come up in every nomination hearing.

For example--this one just stunned me when I heard it. She wouldn't say whether Griswold v. Connecticut was decided correctly. That was the landmark 1960s case that affirmed the right of married women to have access to contraception. It is one of the key Supreme Court decisions that gets directly to the right of privacy and to the rights of women to make decisions about their own bodies and their own lives. The decision in Roe v. Wade follows directly from the decision in Griswold.

Even Justices Thomas, Roberts, Alito, and Kavanaugh--not exactly the leftwing of the American judicial systems--said Griswold was decided correctly. Judge Barrett refused. That matters because there is a far- right campaign working to undo both of those decisions, which would be devastating to a woman's fundamental freedoms in our country.

She dodged serious questions on the legality of in vitro fertilization, which has helped millions of parents achieve their one dream: having a family.

She refused to say whether she believes the landmark decision on marriage equality was decided correctly. The one case she was asked about enshrined marriage equality.

She dodged a question on whether U.S. Presidents should even commit to a peaceful transfer of power. She went on to say on the issue of voter intimidation that she wouldn't answer whether it was illegal. That is not an open question. It is a case of black-letter law.

She was given what I thought was a slam-dunk opportunity to confirm that a President cannot unilaterally change the date of the election. That one is not open to interpretation. The law is clear that he cannot. Judge Barrett wouldn't say so.

It is not like this nominee has been shy about sharing her views. For example, she bashed the opinion by Chief Justice Roberts that upheld the Affordable Care Act. She said it ``pushed the Affordable Care Act beyond its plausible meaning to save the statute.'' That decision is the reason that 130 million Americans with preexisting conditions are protected today, why insurance companies can't impose caps on people who need costly healthcare, why seniors no longer get stuck in the prescription drug doughnut hole bankrupting their savings.

Judge Barrett put her name on a letter that talked about overturning Roe v. Wade because of what it called its ``barbaric legacy.'' She also lectured on the subject. She failed to disclose the letter and some of her lectures in her disclosure to the Judiciary Committee.

Again, I understand that nominees are always careful in these hearings, but nomination hearings are providing less and less substance. That has been the case for a long time. Over the last few weeks, Judge Barrett set a new low. Years ago, Chief Justice Roberts talked about the job of the Supreme Court Justice and said it was about ``calling balls and strikes.'' My question is, How can you be trusted to call ``balls and strikes'' if you spend your nomination hearing playing ``hide the ball?''

This rush job doesn't qualify as advice and consent. In my view, you look at Donald Trump and Republicans rushing this confirmation, you look at all the ducking and dodging of basic questions, and it is not hard to see the politics behind it. At a moment when there are millions of Americans across the country wondering how they are going to pay their rent, how they are going to afford medicine, whether they are going to be able to safely hug their elderly parents again, Senate Republicans are laser-focused on locking in political power over the courts. That is what this is all about.

Senate Republicans somehow think this is a Houdini act, suddenly making the threat of the Affordable Care Act disappear. It is not working. My view is the American people understand that the rush to fill the Ginsburg seat is about a lot more than healthcare.

Republican nominees for the Court always come before the Senate and talk about how it is the text of the laws as written, respecting precedent, respecting the original meaning of the Constitution. What happens when they join the Bench? They throw out longstanding precedents, restrict individual rights, push forward with an agenda that favors special interests and the powerful.

For example, Judge Barrett gutted a consumer protection law from the bench by essentially ignoring the text of the law itself, making it easier for debt collectors to prey on the vulnerable

Judge Barrett threw out precedent to deny $332 in damages to a woman who was injured in a medical procedure. The woman was actually unable to afford a lawyer, and she mistakenly used the wrong word to describe the money she was owed. Judge Barrett used that mistake against her.

She ignored another existing precedent, taking away a jury award from a teenager who was repeatedly raped by a prison guard.

She sided with a company that segregated employees by race.

In another case, she came up with a twisted interpretation of the Age Discrimination in Employment Act to allow discrimination against older job applicants. None of that had anything to do with ``calling balls and strikes'' or respecting the laws as written. Those rulings favor the powerful and corporations over people who don't have clout and don't have vast sums of money to protect themselves.

The President and Senate Republicans have packed the courts from the top on down with far-right judges who excuse these kinds of ideological rulings. They blocked Democratic judicial nominees for years. They had a plan to remove seats from the DC court rather than considering the sitting Democratic President's nominees.

Now, this President has pushed through an immense number of nominees, given how many seats Republicans left open through obstruction. Some of these judges have been deemed not competent for the job by nonpartisan legal groups. It has done incredible damage to the legitimacy and the independence of the judiciary. Virtually all of them tell the same story about originalism and sticking to the text in the tradition of Justice Scalia.

Justice Scalia is considered to be the ultimate example of what is considered originalism. Judge Barrett recently said ``his judicial philosophy is mine, too.'' Judge Scalia, in fact, packed his opinions with ideology. He wrote that the decision granting same-sex couples the right to marry was a ``threat to American democracy,'' that ``robs the People of . . . the freedom to govern themselves.'' He wanted to throw out the Affordable Care Act. He helped gut the Voting Rights Act in a ruling that led to massive voter disenfranchisement.

What is behind all this talk about originalism and sticking to the text of the laws as written is a political agenda, plain and simple, taking away people's healthcare, disenfranchising voters and entrenching minority rule, giving corporations more power over their employees, legalizing discrimination against the LGBTQ community and against Black, Hispanic, Asian, and other groups of Americans. It is about cementing government control over women's bodies. Republicans could never enact these deeply unpopular policies through legislation, so they want the Supreme Court to enact their agenda for them.

I want to close by way of saying that all of this is contrary to what Justice Ginsburg spent her career fighting for. It is exactly what the big rush to fill the Ginsburg seat is all about and how this process torpedoes any opportunity for the Senate to come together on other big issues.

My Democratic colleagues and I have been pleading with the majority, essentially going and saying, Look, let's work together on a major COVID package--virtually pleading that we work in a bipartisan way to help people on what I have heard again and again at home is their No. 1 concern. Mitch McConnell said, however, that it was too complicated to get done.

Last week, I brought forward a bill on enhanced unemployment insurance, a lifeline for jobless workers. It was blocked. Two days ago, Democrats brought forth a series of bills, including proposals addressing domestic violence, election security, and childcare--all blocked. This nomination to Senate Republicans comes first, and absolutely everything else is on hold, has to wait. We see, really, no genuine interest to do the hard work of putting it together.

This nomination and this process are not on the level. Republicans are, again, breaking their word to hand the Supreme Court to the far right. I know that because I have heard from so many Oregonians about it, Oregonians who are worried about losing their healthcare, their vote, and so many of their fundamental freedoms. They are worried about what this means for the future of the country.

This debate is about the Ginsburg seat. Justice Ginsburg was not just an iconic fighter for the rights of the powerless and the vulnerable. She always said what she meant, and she meant what she said. We did not get that from Judge Barrett.

I oppose this nomination.

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