Nomination of Amy Coney Barrett

Floor Speech

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Mr. COONS. Mr. President, I ask the question, as I have for several weeks now: Why are we here? What I hear from my constituents in Delaware, as I heard earlier today at an event at Westside Health: Why is this Senate in session now in the midst of a nationwide pandemic, focusing on rushing through a nominee for the U.S. Supreme Court rather than doing everything we can to work across the aisle to craft a solution to the problems, the crises facing our Nation--tens of millions of Americans unemployed, hundreds of thousands of businesses permanently closed? There are schools all over the country that are either not yet open or are just barely open, and thousands upon thousands of Americans have died alone, in pain, uncomforted by family and uncertain of how they came to be in this place, uncared-for by their country. There have been 8\1/2\ million infected and 220,000 or more who are dead.

We are in the middle of a tragic pandemic and a recession made worse by our President's bungled mishandling of that pandemic, and instead of coming together and providing the relief that all of our States and all of our people are calling for, we are doing this. We are doing this. Instead, my Republican colleagues are walking over a dangerous precipice. They are doing something that was, according to Chairman Graham of the Senate Judiciary Committee, unthinkable just 2 years ago.

In the last 10 days before a Presidential election--in the last month before a Presidential election--they are ramming through for a lifetime appointment to the Supreme Court President Trump's nominee. This is a rushed and partisan process in the midst of an ongoing Presidential election. Why? Why are we here, and why are they doing this?

I have heard a lot of talk from my colleagues on the Judiciary Committee and here on the floor about Justices and how they are not policymakers; about how they are distinct from politics; about abstract methodological terms and ideas like originalism and textualism; about judges and Justices as neutral arbiters whose decisions couldn't possibly be predictable.

But you don't work this hard to confirm a Supreme Court Justice in the middle of a pandemic while the majority of American States is voting--tens of millions have voted--and while election day is just 8 days away and a third of us are up for reelection because you care most about abstract ideas or neutral principles. You don't go against your own promise--your own promise--after you have claimed, as a matter of high principles, that Justices shouldn't be confirmed during Presidential elections and after you blocked a highly qualified nominee for exactly that reason--because you care most about neutral arbiters and judicial methodology.

No. This race to fill this seat is about power. It is about political power. It is about knowing the American people have turned against the President, especially because of his failed, flawed, and ultimately disastrous response to this pandemic. We are not turning the corner as he declared just this week. We have a record-high number of cases in dozens of States, an outbreak uncontrolled, unmanaged, and leadership that is uncaring.

My colleagues know the election is upon us. Many are up for reelection. So, when Justice Ginsburg tragically passed away just a few weeks ago, President Trump and my colleagues saw one last opportunity-- one last chance--to decide the balance of the Supreme Court not just for a year or a term but for decades and to come and entrench a hard- right majority, whose views are far outside the American mainstream.

As my Democratic colleagues and I have been laying out in the Judiciary Committee and in speeches here on this floor, that hard-right turn will have lasting, serious, significant, even devastating consequences for the American people.

After digging into and studying Judge Barrett's record as a law professor and as a judge--her writings, her speeches, her opinions--I am convinced that she will come to the Supreme Court with both a deeply conservative, originalist philosophy in the style of Justice Scalia and a judicial activism even further to the right that will put at risk longstanding rights the American people hold dear in nearly every aspect of our modern lives. Simply put, Judge Barrett as Justice Barrett, I am convinced, will open a new chapter of conservative judicial activism unlike anything we have seen.

Why would I think this?

First, Judge Barrett was handpicked by President Trump after he made clear he wanted a new Justice to overturn the Affordable Care Act, with there being potentially catastrophic consequences for a majority of Americans protected by the ACA.

Everyone watching at home has heard my colleagues say for the last decade that their top priority was to repeal the Affordable Care Act. All of the Republican Senators on the committee talked publicly, repeatedly, about their desires to get rid of the law, and they voted that way. So did our President. Yet, despite their best efforts, he and my Republican colleagues failed to get the vote here on the floor of the U.S. Senate. So now they are taking their last and best shot at overturning the ACA, and they are trying to do it through the Supreme Court.

This is where Judge Barrett comes in. As she admitted during my questioning, Judge Barrett has written in no uncertain terms that she thinks Chief Justice Roberts got it wrong in his ruling 8 years ago that upheld the ACA against a constitutional challenge. She wrote this article just 3 years ago, in 2017. Soon thereafter, she found herself on President Trump's short list for the Supreme Court.

Meanwhile, the Justice Department, under President Trump's leadership, has joined the challenge to the ACA, which is now back in front of the Supreme Court. That will be heard by the Court just 1 week from the election and 2 weeks from tomorrow. President Trump and his administration are arguing in no uncertain terms that the Court must get rid of the entire ACA.

My Republican colleagues have said this is fearmongering in that this is a different case and a different issue, but to anyone who thinks the characterization of this challenge is farfetched, just read the brief. Read the brief that has been filed by the Solicitor General of the United States or the brief that has been signed and cosigned by 18 Republican State attorneys general.

President Trump himself lashed out at Chief Justice Roberts over and over again for upholding the Affordable Care Act and its protections for a majority of Americans, and he pledged as Candidate Trump that his nominees would do the right thing and overturn the law. So here, in the last minute of the last act of the Trump show, he may at long last have his chance.

Yet it isn't just the Affordable Care Act that is on President Trump's Supreme Court agenda. He made clear he wants a nominee to do three things: overturn the ACA, overturn Roe v. Wade, and perhaps most chillingly for the future of our democracy, hand him the election if there is a dispute in the courts that makes its way to the Supreme Court.

On that second point about overturning Roe, Judge Barrett steadfastly refused to say whether she thought Roe had been correctly decided, because it is the subject of legislation and litigation that is currently being contested. She refused to say, as well, whether the foundational case of Griswold v. Connecticut was right, which was decided 55 years ago and protects the right to privacy and the right to use contraceptives by a married family in the privacy of their own home.

In the recent past, even indisputably conservative nominees--nominees chosen by Republican Presidents, such as Chief Justice Roberts and Justices Alito and Kavanaugh--have said that of course Griswold was rightly decided and is settled precedent. So I found Judge Barrett's hesitation--even refusal--to say so to be chilling.

More broadly--and this is important--Judge Barrett's approach to precedent itself suggests she will lead the way in reversing longstanding cases upon which our rights rely. Precedent has been called the foundation stone of law. Precedent protects the rights and freedoms that many Americans rely on today--the right to be safe in your home from government intrusion, the right to marry whomever you love, the right to control your own body.

Yet I have come away convinced that Judge Barrett, if confirmed to the Court, would be even more willing than Justice Scalia to overturn those precedents with which she disagrees. This is rooted in things that she has written and said as a law professor and as a judge. She has made clear that judges and Justices should feel free to overturn cases they believe have been wrongly decided regardless of how many people have ordered their lives around those decisions and have come to rely on them. She even said that those with her conservative, originalist philosophy have abandoned a commitment to judicial restraint.

As I made clear in my questioning, the cases that could be in jeopardy with a Justice Barrett on the Supreme Court cover a vast range of issues, issues which together affect hundreds of millions Americans' lives from healthcare to education, to consumer protection, to marriage equality, to criminal Justice. Over the past several decades, the Supreme Court has decided more than 120 cases by a 5-to-4 margin, with Justice Ginsburg in the majority and Justice Scalia in the dissent.

Just as a matter of analysis to help folks see the scope and the reach and the consequences of the decision being made here tonight, we look at what would happen if Justice Ginsburg in the majority were replaced by somebody with Justice Scalia's philosophy or with one further right.

These cases include not only the key ruling on the Affordable Care Act--NFIB v. Sebelius--but also on Obergefell v. Hodges, which, based on that privacy jurisprudence that started all the way back in Griswold, upheld the idea that marriage equality was the rule of the land; on Grutter v. Bollinger, which upheld race conscious admission policies at universities; on Tennessee v. Lane, which held that State governments must comply with the Americans with Disabilities Act; on Arizona State Legislature v. Arizona Independent Redistricting Commission, which upheld the constitutionality of nonpartisan redistricting; on Massachusetts v. EPA, which allows the EPA to regulate greenhouse gases; and on Roper v. Simmons, which prohibits executing people for crimes they committed while they were children.

Think about the scope and reach of the cases that touch labor rights to Native American rights and consumer rights to environmental protection. Yes, our comments on the floor and in committee focused on the Affordable Care Act, and they focused on reproductive rights and privacy, but the scope and reach of the consequences are breathtaking. Even to this day, I fear that we as a nation have not fully reckoned with the impact that a 6-to-3 conservative Court will have on so many aspects of our lives.

As to President Trump's third demand that a Justice chosen by him will help to decide the election, I was deeply dismayed to hear Judge Barrett refuse to commit to recusing herself from any case involving an election dispute. President Trump is the reason I ask that question.

President Trump himself is actively undermining the integrity of our election. He is spreading baseless rumors about voter fraud, encouraging voter suppression, and engaging in a disinformation campaign so egregious it is hard to believe it could be coming from an American, let alone an American President.

His statements have been so indefensible that, when my colleagues asked Judge Barrett whether the President should commit to conducting a peaceful transition of power if he loses the election--a question that is an obvious no-brainer and a matter of basic civics--Judge Barrett said she couldn't respond because President Trump's statements have turned this fundamental tenet of our democracy into a partisan, political question.

Before now, to my knowledge, no President has ever demanded that his nominee to a Supreme Court seat be rushed through so that this Justice, that ninth Justice, could look at the ballots, as he has said, and hand him an election. Never in our history has the U.S. Senate confirmed a Supreme Court Justice in circumstances like these--just 8 days before the final election day in an ongoing Presidential election.

At the very, very least, given President Trump's unprecedented overreaching, inappropriate comments about the election and her nomination, I asked Judge Barrett if she would recuse herself in the event of an election dispute. To be clear, nothing is stopping her from making that commitment, and she would not do so.

Recent events have made it clear that this issue is anything but hypothetical. Just last week, the U.S. Supreme Court was divided 4 to 4 on a question arising from Pennsylvania, and it came to the brink of adopting a novel--even radical--theory advanced by the Republicans in Pennsylvania that would empower the Supreme Court to override a State supreme court's interpretation of its own State laws and constitution in a way that would disenfranchise thousands of voters.

A new Justice Barrett joining that Court could well provide the fifth vote in support of this outrageous theory, which her mentor, Justice Scalia, accepted in Bush v. Gore. And to no one's surprise, the Pennsylvania Republican Party is again preparing to file in the Supreme Court a renewed claim.

In light of this conflict of interest, in light of the appearance of bias, her involvement in this case could have lasting, negative, devastating consequences for the independence of the Court and for our democracy. So I urge my Republican colleagues to consider, before voting to confirm tonight, the very real impacts their actions will have, not only on millions of our constituents but on our democracy and this institution itself.

As for me, I will be voting no on the confirmation of Judge Barrett to the U.S. Supreme Court.

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