Nomination of Amy Coney Barrett

Floor Speech

BREAK IN TRANSCRIPT

Mr. LEE. Mr. President, it is an honor and a privilege to speak on behalf of the confirmation of Judge Amy Coney Barrett to the Supreme Court of the United States today.

One of Judge Barrett's familiar themes, one that she has invoked in speeches when speaking about the Constitution and about the role of the Federal judiciary, involves a line from Odysseus. It involves a reference to the ``Odyssey.''

She says:

The Constitution is like when Odysseus ties himself to the mast to resist the song of the Sirens. And he tells his crew, `Don't untie me no matter how much I plead.' That's what we've done as the American people with the Constitution. We've said . . . it's the people sober appealing to the people drunk, [that when you are tempted to get untied], that when you are tempted to get carried away by your passions and trample upon the First Amendment rights or minority rights, this document will hold you back.

Judge Barrett points out a very critical matter here, an absolutely essential matter, which is, first of all, that the whole point of having a Constitution involves restraining and restricting government. As it relates to the judiciary, it involves acknowledging the necessarily limited, finite, and confined role of the judiciary.

Sometimes when people refer to the three branches of the Federal Government, they will get it backward. Sometimes people will refer to the judicial branch as if it were the most powerful. This gets it exactly backward. It was designed to be--and, in fact, is--the least dangerous branch of the three branches. That is not to say it is not the most dangerous of all. Government, generally, is something that while necessary is also dangerous just like water or fire or wind or oxygen or any of the things that we depend upon for our day-to-day existence.

Government, including the power of the judiciary itself, has to be managed carefully, and it has to be channeled. If it is not, we become dangerous. So that is why we have a Constitution. It is to restrain government because government is force. Government is nothing more or nothing less than the collective, coercive use of force. We use it to protect life, liberty, and property. We use it to make sure that people don't harm each other and to make sure that we are protected from our adversaries within and without our borders, our boundaries. Yet, if we lose sight of what government does and what it doesn't do, what it can and cannot do, what it may or may not do, or what any branch of the government may do, we find ourselves in troubled, troubled waters.

The reason I say that the judicial branch is the least dangerous of the three is that it doesn't possess the power to say what should be, only what is. The power of the legislative branch, where we serve, is the most dangerous of the three because we have the power to prohibit conduct. We have the power to prescribe policy. We make the law.

The second most dangerous power is probably that which is held in the executive branch. It has been made more dangerous over the last 80 years as Democrats and Republicans alike have ceded more power to the executive branch, voluntarily relinquishing the role, which is uniquely, distinctively, and by constitutional mandate ours, over mostly to unelected, unaccountable bureaucrats who are, in some cases, the President of the United States or those who serve under his employ.

The judicial branch possesses neither the power of the purse nor the power of the sword. We have the power of the purse. We spend the money. We prescribe the policy. The executive branch has the power to implement and force and execute the laws, hence the power of the sword. The judicial branch possesses only the power to decide what the law says. In that respect, it is operating as if through a rearview mirror. It is not saying what will come or what should be but what already is, what the law means as it already exists.

In order to do that, the judicial branch has to come to a conclusion that our laws consist of words; that those words have meaning; and that, in order to tie themselves to the constitutional mast in order to make sure that they themselves are able to resist the siren call of power and to keep each of the three branches of government in check insofar as it is their prerogative to do so, they have to check back continually and check themselves constantly with the words of the U.S. Constitution and the words of the law itself.

Yes, it matters. Yes, these things are easily ignored. These powers are easily abused. In fact, they often have been abused. There are a number of reasons for this. They have to do mostly with human nature itself. Human beings, while redeemable, are flawed. They crave power. They tend to act toward those things that make them more powerful if they are already in positions of government authority. That is why it is easy to understand why, from time to time, the courts stray.

Now, I want to be very clear at the outset. The Federal court system, notwithstanding its flaws, is the best of its kind in the world. There is no judicial system anywhere in the world that I am aware of that is as respected or as consistently dedicated to the rule of law, to interpreting the law consistently and faithfully as is our Federal court system.

The Supreme Court of the United States, while it has made some very bad decisions along the way, for the most part, gets things right. In fact, it is something that may come as a surprise to many Americans that of all of the decisions that the Supreme Court decides in a typical year, in modern times, it is most common that the Supreme Court decides those questions either unanimously or with near unanimity. Most cases at the Supreme Court are decided with a vote of 9 to 0 or 8 to 1 or 7 to 2--the overwhelming majority, in fact.

Keep in mind, these are cases that with very few exceptions have proven difficult for the lower courts. They have caused some of the greatest legal minds in our country to address the same finite legal questions and to come up with different results. Yet those on the Supreme Court of the United States, for the most part, decide these cases with unanimity or nearly unanimity. Why?

Well, most of the time, they tie themselves to the mast. They remember what is their charge. They remember that they are there not to decide matters of policy but to decide questions of law. They can't just reach out and say, I don't like this type of law. Let's go after this type of law and attack it or undermine it or let's pursue this line of law that should be in place and isn't.

They don't have that authority. They have to have a case or a controversy, meaning one or more parties that can properly invoke the jurisdiction of the Court, and they have to have an actual, live, ripe dispute between people who are actively affected by the law. Then and only then may the Court act.

From time to time, however, the Court has been tempted to give in to the siren call--to make law. It isn't always with the same political objectives in mind, and those objectives can change over time. To cite one of many examples that we could point to today, I am going to refer to a decision made by the Supreme Court of the United States in 1905 in a case called Lochner v. New York.

In that case, the State of New York had enacted some laws governing minimum wage and maximum hour issues for bakery employees in the State of New York. The Supreme Court of the United States decided that those laws were bad and that they didn't like them, and on that basis, it said in essence: These laws are bad, and they are so bad that they must be unconstitutional. They are so bad, and they lack any legitimate purpose that we can see. We are, therefore, going to deem this part of the due process protections, the due process protections that are covered by the 14th Amendment to the Constitution and allow us to impose our judicial authority on State law and invalidate that State law.

Their reasoning essentially amounted to that: We don't see any good reason for this law. We, therefore, deem it incompatible, inconsistent, irreconcilable with due process, and we hereby strike it down as unconstitutional.

This, in my view, was wrong. It was a problem. It was a political dispute that was becoming increasingly common as the Progressive Era was gaining momentum.

Conservatives in the country were losing many of these battles in many lawmaking bodies, including, apparently, the New York State legislature. They didn't like it. So these particular jurists on this particular day chose to exercise their authority as jurists to strike down that law even though it was really a political argument they were making, even though it wasn't within their jurisdiction.

So they stretched the meaning of the law. They stretched out the concept of due process so that they could declare this to be a constitutional violation.

They took debatable matters beyond debate--not only beyond debate, but they took them outside the proper realm of State law jurisdiction and outside the context of legislation and debate surrounding such legislation within political branches of governments generally, whether State or Federal. They said: This is now Federal. We are going to make it Federal, such that you can't legislate in this area because we don't like it, and because we don't like it, we are going to say that it is part of the Constitution; it is part of your due process protection, notwithstanding the fact that due process, as the name implies, is about process. It is about making sure that you have your day in court, making sure that you have access to tools connected to fundamental fairness on procedural questions, not an outcome.

So in Lochner v. New York, the Supreme Court Justices untied themselves, as it were, from the mast of the Constitution. They did so in a way that was harmful and unsustainable. They did so notwithstanding the fact that there was no logical end point to this. It was very difficult to conceive of any question of public policy that could not and, ultimately, would not come before the Supreme Court of the United States if you used their standard of analysis: This law doesn't really do anything good. It is not something that has a legitimate purpose, so we are going to strike it down.

Fortunately, the Supreme Court of the United States--it took many years to do it--eventually saw the error of its ways and eventually overturned Lochner v. New York. In many instances we ought to look back at that moment and say that we don't really want the Supreme Court taking debatable matters beyond debate. That is how political accountability works in this country. If you have something that you don't like as a matter of policy, you ought to try to change it before the legislative body in which it is properly considered. Now, if it is unconstitutional, yes, it should be unconstitutional. I am not one who focuses obsessively on judicial activism for fear that by focusing obsessively on judicial activism, we will perpetuate the idea that really what we want is judicial passivity. We don't want either. It is just as bad to invalidate as unconstitutional a law that is, in fact, not unconstitutional as it is to leave intact an unconstitutional law that is constitutionally defective. Both are equally repugnant to the Constitution. Both represent an effort by jurists to untether themselves from the mast of the Constitution and from the finite judicial role.

Justice Scalia was someone who was nominated to the Supreme Court of the United States in 1986. He was confirmed overwhelmingly, by a vote of 98 to 0, if I recall.

Justice Scalia was someone who, while a law professor, and later, while serving as a judge on the U.S. Court of Appeals for the DC Circuit, had acknowledged the need for judges to keep themselves tethered to the mast, had acknowledged the need for them to focus on deciding cases based on the law rather than on the basis of favorable policy outcomes.

This was at once a somewhat revolutionary idea at the time, and yet it wasn't overwhelmingly controversial at the time, given the fact that he was confirmed by a vote of 98 to 0 to the Supreme Court of the United States.

But over the next three decades or so, while he served on the Supreme Court of the United States, Justice Scalia revived--he restored--this concept, this constitutional understanding of the proper role of government and of the proper role of each branch of the Federal Government, including and especially the judicial branch of the Federal Government.

During his service on the Supreme Court of the United States, he was able to mentor a number of law clerks, including Judge Amy Coney Barrett.

Judge Barrett has explained that she believes in the same line of reason. She believes that judges and Justices need to tether themselves to the mast of the Constitution. They need to confine their role to that that involves judging, and they need to not covet and, ultimately, try to overtake the role of the elected lawmaker or the role of the executive. One has the power of policy and the purse; the other, the power of the sword.

But as Alexander Hamilton explained in Federalist 78, there is a profound difference between these powers. The legislative branch, he explained, has the power of will. It exercises will when it decides what should and should not be within the law.

The power of the judiciary, by contrast, involves only the power of judgment, to decide what the law says. That is the kind of jurist we need today.

Now, make no mistake--this is not a conflict that involves a desire to put on the Supreme Court of the United States people who will wage political warfare within the judicial branch from the conservative side. It is not that. It is not anything close to that. In fact, it is the opposite of that.

We don't want Judge Barrett on the Supreme Court to be our advocate. We want Judge Barrett on the Supreme Court to decide law, to decide cases based on what the law says, to keep herself tethered to that mast because it is through that mast that our rights are protected, that we are able to elect people who will exercise sound judgment in deciding what the law should be. And, yes, we want them to strike down laws when they are unconstitutional. But, no, we don't want them striking them down simply because of a policy disagreement.

In fact, all of our political, our economic, and our civil rights end up being tied to this very feature within our government. They are all protected by the willingness of our jurists to keep themselves tethered to the constitutional mast, just as Odysseus insisted on being tied to his. Notwithstanding how hard he might plead upon hearing the call of the sirens, he knew that it was important for him to stay on task, to stay focused on his job.

Judge Amy Coney Barrett is an exceptionally well qualified and talented legal mind and jurist. She is bright. She is articulate. She is, as we have seen, unflappable, and she is willing to set her mind on that course--to uphold and protect and defend that document that I believe was written by wise men raised up by Almighty God for that very purpose

That document, insofar as we have followed it, has fostered the greatest development of the greatest civilization the world has ever known. I hope that it ever will be that way because it is a strong and sure foundation upon which we have built, but we need people who believe in that foundation and are willing to tie themselves to it.

Thank you.

BREAK IN TRANSCRIPT

Source