Nomination of Amy Coney Barrett
Floor Speech
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Mr. DURBIN. Harris) is necessarily absent.
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Mr. DURBIN. Mr. President, we are faced with three basic questions, and the first question couldn't be more basic: Why are we here?
If you told the American people that the U.S. Senate was in session 5 days in a row and meeting through the weekend and asked them what they think the order of business was before the Senate, they would say: Silly question. It is obvious. It has to be the pandemic facing America. It has to be the fact that 225,150 Americans have died from the coronavirus, 8.7 million infected, and most certainly because the United States has recorded more than 85,000 COVID-19 cases just this last Friday, the highest number of cases recorded within a 24-hour period since the beginning of the pandemic and Saturday was the same.
So they would guess that the Senate was in session to do something about this deadly epidemic that is affecting the United States of America in a more serious way than any country in the world. They would wonder what we are doing to try to provide more testing, more protection for people. They certainly would question the statement by the Chief of Staff of the President of the United States, Mark Meadows, who said just yesterday that the Trump administration ``is not going to control the pandemic.'' It would trouble them, I am sure.
They would expect this Congress representing them--up for reelection, many of us--to be responsive to their needs to protect their families or they might ask us: Are you doing anything to help the people, the 23 million unemployed in America? Certainly, you must be working on that, too, because these families were cut off from their Federal unemployment supplemental on July 31. So for the months of August and September and now into October, the amount of money coming in to keep their homes together, their families together has been dramatically diminished.
If they assumed that, they are wrong, because for the last 5 days here in the U.S. Senate we have not been consumed with those life-and- death issues of this pandemic at all. Instead we are consumed with a political mission.
How did we reach this point where we are taking up this Supreme Court nomination in the midst of a Presidential election for the first time in the history of the United States, in the midst of an election we are taking this up? Well, because of the determination of the Republican majority leader of the Senate, Senator McConnell of Kentucky.
Four years ago, you will remember the Antonin Scalia vacancy. President Obama decided that he was still President of the United States in the 8th year of his Presidency, but Senator McConnell said: No, you are not. You do not have the Presidential authority to fill a Supreme Court vacancy because it is the last year of your Presidency. You are a lameduck. There is an election coming. Let the American people decide who will fill this vacancy. That was the McConnell rule 4 years ago, and the Republican Senators marched in lockstep behind him with his logic.
Fast forward 4 years, the vacancy with the death of Ruth Bader Ginsburg and Senator McConnell has changed his story completely and his troops are still marching obediently behind him. Now, under President Trump, he can fill a vacancy even in the midst of a Presidential election, and that is why we are here today. This determination by Senator McConnell that this political errand that he is running for President Trump is more important than the COVID-19 pandemic, more important than the runaway infection rates in 20 States across the United States, more important than trying to deal with the unemployment and the dysfunctions of this economy under this President.
Yes, we asked basic questions to be answered by the Judiciary Committee--questions that were posed to Amy Coney Barrett, once a law school professor at Notre Dame Law School, now on the Seventh Circuit Court of Appeals
People say: Is she qualified? Well, if you are asking whether she is studied in the law and has a head full of law, there is no question about it. It has been many years since I faced a law school professor, and I will give it to you that she certainly knows a lot about the law. There is no doubt about it. But the questions that I asked of her really went beyond that basic question. I really wanted to know what was not just in her head when it came to the law but I want to know what she has in her heart when it comes to the law.
One of the Senators who spoke to us a few minutes ago chided us because we kept bringing color photographs to the floor and to the committee hearings of people whose lives depended on the Affordable Care Act. He characterized it as ``theater'' and likened these images, these photographs, to cutouts at sporting events.
Well, let me tell you the ones that I presented from Illinois represent real-life stories of real-life families who depend on the Affordable Care Act. Why do we raise the Affordable Care Act in the midst of this hearing for filling this Supreme Court vacancy? For one simple reason--that is what the President did. It was the President who told us far in advance: I am going to fill Supreme Court vacancies to eliminate the Affordable Care Act. So is this a leap of faith on our part to take the President at his word? Would the President even consider lying to the American people?
If you take him at his word, then Amy Coney Barrett is part of an agenda--a political agenda to eliminate the Affordable Care Act. And in the past the President has said Roe v. Wade while you are at it and also to move forward when it comes to protecting him if there is an election contest after the November 3 election. He said as much. As I mentioned earlier, he doesn't have an unuttered thought. He tweets it 25 times a day, whatever crosses his fertile mind, and that is his agenda when it comes to filling the Supreme Court vacancy. When we asked Judge Barrett, she denies any promises have been made. But there is some evidence, obviously, along the way that convinced the President and the people in the White House that she would fulfill his mission if she came to the Supreme Court.
When you look at the issues involved, it is not just her compassion when it comes to the Affordable Care Act and 23 million Americans covered by insurance under that law, 600,000 of them in Illinois. It is not just a question of her courage to stand up to this President if there is an election-year contest that comes before the Supreme Court. It is really whether she is committed to preserving the pillars of modern law--the rights of women. Ruth Bader Ginsburg's death created this vacancy. There is hardly a person in our modern history who spent more of her life dedicated to the rights of women. Is Amy Coney Barrett going to follow in that tradition? I think it is a legitimate question.
When it came to racism, are we going to deal with racism in an honest way? And I will get to that in a moment when I speak to her originalism motivation.
Marriage equality, privacy, voting--all these issues are on the table. And I do have to disagree with my colleague from Texas who preceded me. I just don't believe the law is robotic, nor do I believe that there is a simple formula to use that can guarantee an outcome of a case. As I said to Judge Barrett in our private conversation before the hearing, there wouldn't be 5-to-4 cases if we could count on people to always look at the facts and the law and come to the same conclusion. People reach different conclusions.
That takes me to the third point here. We asked Amy Coney Barrett during the course of this hearing so many questions about basic, basic law that went right to the heart of this Constitution. These weren't trick questions. They weren't the subject of pending litigation or litigation. Questions like, Can this President or any President unilaterally decide to change the date of a Presidential election? That is pretty basic. I think it is covered by three different sections in this Constitution. She refused to answer because of the possibility that there would be litigation before the Court on that subject.
Well, what about intimidation against voters, trying to cast their votes in an election? Couldn't answer that one either--same reason.
This was asked by Senator Kennedy, a Republican from Louisiana: What about climate change? Well, it turns out Judge Barrett told us she really hadn't developed any thoughts on climate change. Really? Forty- eight years old, lawyer, law school professor, mother of seven--no thoughts on climate change?
When it was all over, you had to ask yourself, what was the purpose of that hearing if those were the kinds of answers we faced? Certainly, we wouldn't ask her about pending litigation.
But the one thing that she was very proud of and stated over and over again is that she was an originalist when it came to her thinking on the law and the Constitution. As I said, originalism is not some foreign language you pick up on Babbel. It is a mindset. It is a mission statement. It is the belief that the original text in our Constitution reveals all the answers. I doubt that very much. That is kind of MAGA jurisprudence--``take us back to the good old days'' jurisprudence because, you see, what really launched originalism occurred in the 1950s in a case called Brown v. Board of Education. The Southern States were not ready for integration, and many of the Northern States weren't either, for that matter. The critics of that Supreme Court decision said it was judicial activism to integrate the public schools of America. They were critical of a Court that they thought went too far under Earl Warren. They called for his impeachment and more and started saying: You should have stuck with the original Constitution. Well, the original Constitution didn't give African Americans the right to vote; in fact, considered them under the law to be three-fifths of an American citizen. So those so-called originalists criticized that activist Court, and it didn't end with Brown v. Board of Education.
The same criticism was launched when it came to Griswold v. Connecticut, a case that really argued that we have a right of privacy in our married lives that can't be overcome by the State; Loving v. Virginia, that interracial marriage was permissible; and then, of course, the case of Roe v. Wade, the ultimate case when it came to privacy and liberty.
So those who come before us and tell us that what is really at stake here is restraint on the Court, self-discipline on the Court--we have heard all those words--and making sure that Justices don't pursue policy, think about all of those things in terms of what happened in Brown v. Board of Education and when they overruled Plessy v. Ferguson decades before, and said: Moving forward, we believe this Constitution guarantees to every child the right to an education, regardless of their race.
Dr. Chemerinsky is with the University of California School of Law in Berkeley. He wrote a recent article in the New York Times on this originalism theory. And he noted the fact that it was Antonin Scalia who gave it great popularity, and a lot of people followed Scalia because he was cerebral, jocular, and fun to be with. He spoke to a luncheon of Democratic Senators that I was able to attend. But when it came down to it, his views on the law were pretty strict and pretty rigid pursuing this idea that, for example, under this view, the First Amendment means the same thing as when it was adopted in 1791; the Fourteenth Amendment means the same thing as it was ratified in 1868. It turns out that the circumstances in all those cases have changed so dramatically in America.
Judge Amy Coney Barrett argued she is an originalist. She would be joining that other originalist on the Court, Clarence Thomas, with her legal thinking, and that gives me pause and concern when it comes to what she is bringing to the Court--a head full of law, for sure, but an approach to it that I think is a pose. It is a way to argue against change and evolution in America that is inevitable and, in fact, necessary.
The professor says under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as President or Vice President until the Constitution is amended because article II refers to the pronoun ``he.'' When you get stuck with the language in the original Constitution in the extreme, you find yourself reaching conclusions that are not in the best interest or consistent with American mores or values today.
So this is more than just another nomination to fill a vacancy on the Supreme Court. It comes at a moment in time when we should be focusing on the deadly pandemic facing America. We should have spent 5 straight days coming up with a COVID relief bill for the millions of Americans desperate for help today and desperate for peace of mind when it comes to this public health tragedy which we are facing.
It is a nomination which comes before us when the rules of Senate and the rules of the Senate Judiciary Committee are being twisted and turned to create a political opportunity for Senator McConnell and his side of the aisle. Sadly, it is a moment in time when a nominee for the Supreme Court wants to bring to us a legal way of thinking which I believe is inconsistent with progress in this country when it comes to human rights and civil rights.
Under originalist theory, we may never have had Brown v. Board of Education and the other cases I mentioned. What a loss for this great Nation. That is not what we need on the Court. We need people on the Court who are realists and who will look at the law and the Constitution in real terms and not ideological terms.
The notion that this Justice is being hurried before us in the hopes that she will eliminate the Affordable Care Act in the midst of a pandemic certainly is worth noting. It is one of the reasons--one of many of reasons--that I will be voting no on Amy Coney Barrett with her nomination to the Supreme Court.
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