Nomination of Amy Coney Barrett

Floor Speech

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Mr. DURBIN. Mr. President, if you went across America and just picked a random person and said ``Did you know the Senate is in session this weekend?'' they, of course, wouldn't know. You would say to them ``Well, why do you think the Senate is in this rare 5-day session?'' and they would say, I am sure, ``Well, of course they are in a rare 5- day session. We are in the midst of a deadly pandemic.'' You would guess that would be the answer of most Americans.

Why would they say that? Well, I know why they would say it in Illinois--because the coronavirus in Illinois has spiked to a newly confirmed daily COVID-19 State record as of yesterday, and 63 more deaths have been reported. Our positivity rate is over 6 percent now, and the Governor and mayor are taking steps that they didn't want to take but have no choice. They are closing restaurants and bars and imposing a curfew on the city of Chicago.

You can imagine how they feel as more and more infections come rolling in and more and more people are dying. We have had almost 9,600 deaths so far in Illinois and, as we know, nationwide, over 225,000 deaths.

But don't believe for a second that this is a big-city problem because the New York Times reports this morning in its edition the names of the 50 counties across America with the worst per capita outbreaks of COVID virus with fewer than 10,000 people in the county.

Senator Thune was here earlier. His State of South Dakota has really been devastated when it comes to small counties, these counties--Bon Homme, Faulk, Harding, Miner, Buffalo, Oglala Lakota, Sully, Campbell, Brule, Turner, Jackson, Todd. Small counties. Rural areas. Smalltown America that used to say: It is a big-city problem. But now, sadly, it is a smalltown problem too.

I am sure the Presiding Officer knows that on this list of 50 is Izard County--I hope I am pronouncing it correctly--in Arkansas and Lincoln County as well.

Following me speaking will be a Senator from Colorado, and unfortunately Sedgwick County is included on this list.

The point I am trying to make is this: This is a pandemic that is the worst we have seen in a century. More people are getting sick and more people are dying than we ever imagined. We face this not just in big cities like Chicago but in small towns and small counties in my State of Illinois and everywhere.

I pointed out the Senators who have been recently on the floor, but, trust me, this list includes a lot of other States even with Democratic Senators. It makes no difference. The virus could care less.

With facing this at this moment in time, the American people would rightly think that we would be doing everything imaginable, everything within our power to address this pandemic in this rare 5-day session leading up to a national election, but they would be wrong. They would be wrong because that is not our priority in the Senate. The priority in the Republican-controlled Senate is the filling of a vacancy on the Supreme Court, and the nominee, Amy Coney Barrett, comes before us for a vote on confirmation tomorrow after 5 days.

The reason it is controversial, the reason it has to be rushed from the Republican point of view, the reason they are hell-bent to get this done before the election is directly related to the pandemic. It seems like an odd coupling. How did that happen? Well, it came down to this: The filling of this vacancy in an extraordinary way, since we have never--underline the word ``never''--in the history of the United States filled a Supreme Court vacancy this close to an election-- actually, in the midst of an election--it has never been done--the reason they are breaking all the rules, including the sacred McConnell rule, which was announced 4 years ago, that lameduck Presidents--by his definition, Presidents in their last year--should have no authority to fill a Supreme Court vacancy--the reason they have decided to ignore that sacred McConnell rule and go forward with this is because of one day that is coming up: November 10.

You see, on November 10, the Supreme Court of the United States considers the case of California v. Texas. It is a big deal on the Republican side. The purpose of that case is for attorneys general in Republican States and the Attorney General of the United States to strike down the Affordable Care Act. They want to make sure that Amy Coney Barrett has black robes on and is sitting in the Supreme Court when it is argued so she can be there when the critical vote to eliminate the Affordable Care Act occurs just a few weeks from now. If they don't get this done by November 3, they are afraid of what might happen. Something might get complicated and they couldn't get her on the Bench on time.

If you think I am making this up, we have as a source for that information none other than the President of the United States of America--a President who never suffered an unuttered thought; a President who generates dozens of tweets every day and tells us exactly what is on his mind every waking moment. He made it clear to us that when it came to Amy Coney Barrett, she was a priority. He promised long ago: I won't put a Supreme Court Justice on the Court unless they will join me in eliminating the Affordable Care Act.

So we knew that as a starter, and then he added as a grace note: And I want to make sure this Justice is on the Court so if there are any election contests, I will have nine Justices there.

Not subtle, is it?

That is why I said in the hearing and since that there is an orange cloud over this nomination--an orange cloud that emanates from the White House. And that is why we come here today, just hours before the final vote, understanding what is at stake if the President has his way, if the Republicans have their way.

If Amy Coney Barrett is on the Bench by November 10, then she will be in a position to strike down a law which provides health insurance for 23 million Americans. There is the linkage I mentioned earlier.

In the midst of a pandemic, with 8 million Americans having been infected; in the midst of a pandemic with over 225,000 American lives lost; in the midst of a pandemic setting new records as this COVID-19 virus invades our towns and cities and counties and States again; in the midst of this, the Republican leader, Mitch McConnell, says we have no time to discuss COVID-19--no, but we have all the time we need to make sure we have our Supreme Court Justice on the Bench when the future of the Affordable Care Act is decided.

There have been a lot of questions as to whether Amy Coney Barrett is qualified. She is impressive in her answers to questions, if she gets around to answering them. I am sure that she has a head full of law. You can tell it when she answers, which is rare. You can tell why she was a law school professor and now a circuit judge.

But the purpose of our hearing was not just to figure out if she was smart, properly educated, licensed to practice law. All of that aside, the purpose of the hearing, from my point of view, was to try to determine not what was in her head but what is in her heart when it comes down to basic questions, because, you see, at the bottom of all this is the Affordable Care Act and its fate and the fact that she has published on more than one occasion her opinion of that law, and, not surprisingly, it is negative.

I want to tell you in a moment--I want to get personal for a moment about this Affordable Care Act before I talk about Amy Coney Barrett and her philosophy.

I want to introduce you to a young man from the State of Illinois. His name is Alex Echols. He is from Chicago. I met with him recently. Big smile, right? Well, when he was 9 years old, two of his mother's best friends were diagnosed with breast cancer and passed away before they reached the age of 50. As Alex moved into high school, his mother was diagnosed with breast cancer. Thankfully, she got treatment, and today, 20 years later, she is still in remission. Later, in high school, Alex lost his young cousin to leukemia. Shortly after that, his aunt passed away from lung cancer.

Alex emphasized that all of these Black relatives and friends had their cancer discovered at a late stage, demonstrating a discrepancy in early screening for communities of color. The Affordable Care Act helped to address this disparity by ensuring free preventive screenings, including in private insurance.

Hear that. Ten years ago, when we passed this law, we ensured that people could get private screenings--early private screenings for the detection of a cancer in its earliest stage when it could still be treated.

As fate would have it, when Alex turned 29, he was diagnosed with non-Hodgkin's lymphoma. He was uninsured at the time, but thanks to the Affordable Care Act, he was able to get enrolled and access the care he needed. He received treatment at several hospitals in Chicago and ultimately chemotherapy and a lifesaving bone-marrow transplant at the University of Chicago Hospital. Today he is in complete remission. How about that. He lives in Chicago with his wife and is active in leadership training programs and advocacy.

He wrote me a note and he said: Senator, ``if it were not for the Affordable Care Act and being able to gain access to healthcare at that time, then I am not sure I would be alive right now to share my story.''

Why do I tell you that story? Because the future of his healthcare depends on filling this nomination to the Supreme Court and whether the person who fills it is going to eliminate this law and protection or protect it.

Here is another fellow I met. His name is Paul Marshilonus. I remember meeting Paul because, like me, he has Lithuanian heritage. We talked about it. I met him during an immigration event.

Due to complications of a knee condition, Paul Marshilonus was no longer able to work at the Sears store, and he lost his employer-based insurance when he was in his early sixties

Paul's wife used to worry about relatives who had cancer, and she said to him: ``I hope that doesn't happen to me, because we can't get insurance and we have nowhere to go.''

Then Paul received a prostate cancer diagnosis when he was 63-- unfortunately, 2 years too young for Medicaid. Thanks to the Affordable Care Act, he got enrolled in the Cook County CountyCare Medicaid expansion coverage.

I am happy to say that because I joined with Toni Preckwinkle, the president of the Cook County Board, to ask then-President Obama to give us a waiver so we could extend Medicare coverage early on under the Affordable Care Act. He gave us the waiver. We covered 120,000 people with Medicaid protection, and one of them was Paul. He was able to access the care he needed, including 45 radiation treatments, totaling an insurance cost of $175,000.

Today, Paul is cancer-free. He still depends on the Affordable Care Act for preventive screenings under Medicare. He currently takes seven medications--blood thinners, allergies, blood pressure, metformin. If the ACA were to be eliminated, he would be charged more for those prescription drugs.

That is another thing we did with the Affordable Care Act. We reduced the cost of prescription drugs for people under Medicare. When it is eliminated, that reduction will disappear.

If Republicans succeed in terminating the Affordable Care Act at the Supreme Court, Americans like Paul will pay the price.

So you wonder why we are coming to the floor with these speeches late on a Sunday afternoon. Because these people asked us to. They asked us to come up and stand up for them and say what they can't say on the floor of the Senate. That is why we are here in the midst of a pandemic. That is why we are here--a nation that values healthcare as much as anything else we have as American citizens.

That is why, when we asked Amy Coney Barrett some basic questions, we expected to at least get some indication of an answer. She wouldn't answer basic questions. Senator Leahy was there; he was following it. What we saw was practiced avoidance of ever telling us the basics.

You know, she styles herself as an originalist, and I will talk about that in a moment. An originalist supposedly values the Constitution--in fact, depends on it; finds guidance in it that other people can't see in the words, they find in the words; really delves into the Constitution; honors it; swears by it. Yet when we asked about basic constitutional principles--basics, written in the words of the document itself--time and again, she would say: I really wish I could answer, but, you know, a case may come before the Supreme Court someday on that, and I am just going to have to duck that question. She wouldn't tell us whether the President of the United States could unilaterally-- unilaterally--delay the Presidential election. How about that?

There are only three separate references in the Constitution to that deadline and date for a Presidential election, and she couldn't answer that question: Can the President unilaterally delay an election?

She couldn't tell us whether there should be a peaceful transfer of power from one President to the next.

Please, Professor, Judge, you know in your heart of hearts that without a peaceful transfer of power, you don't have democracy.

When it came to the issue of voter intimidation--why did we raise that? Because there was a call to arms from some of the militia groups and others in this country to harass voters.

She wouldn't tell us whether she thought voter intimidation was unlawful. She wouldn't even answer a question I asked her in writing as to whether President Trump was legally accurate in saying: ``I have an Article II, where I have the right to do whatever I want as president.''

``Whatever I want as president.''

Three separate branches, balance of power--I thought that was in the Constitution the originalists venerate. It was not enough for Amy Coney Barrett to answer the question. She just said: It wouldn't be appropriate. You know, a case may come before us someday--you never know.

That is troubling. It is not a question of respecting her prerogatives as a future Justice; it is a question of dodging a question over and over and over again.

At one point, Senator Kennedy, who will be speaking here shortly, asked her about climate change. She said: I really don't have a view on that. You know, I hadn't really thought about climate change.

She is 48 years old, a lawyer, a law school professor, a circuit judge, a mother of seven, and it never crossed her mind about climate change, as to even whether it exists?

Judge Barrett refused to comment on the landmark Supreme Court decision in Griswold v. Connecticut. That is the case in which the Supreme Court confirmed that there is a right to marital privacy and that criminalizing contraception violated that right. It was a fundamental decision that led ultimately to Roe v. Wade. She wouldn't even opine as to whether or not that was properly decided.

She wouldn't commit herself--to recuse herself from election disputes involving President Trump even though his comments at a minimum have created an appearance of partiality that warrants her recusal under the judicial recusal statute.

I asked her in the 30 minutes initially that we were given to explain a 37-page dissent in Kanter v. Barr. This was a case where a fellow named Rickey Kanter ended up defrauding the Federal Government of millions of dollars. He was convicted of mail fraud. He ended up advertising that the cushions he had for shoes had been approved by Medicare. They had not. He then started selling them in volume across the United States, and he was caught at it red-handed. He ended up with a massive, multimillion-dollar civil settlement, with a substantial fine and penalty and 1 year in Federal prison.

He came out after his year in Federal prison and said: I will tell you what is unfair. After all I have been through, I can't buy an AK- 47. What is wrong with my Second Amendment rights?

That was the case--Rickey Kanter's Second Amendment rights to buy a gun.

So he brought this case before a three-judge panel on the Seventh Circuit, where Amy Coney Barrett was presiding with two other judges, and said: I want to assert my Second Amendment rights. It is just not fair, after what I have been convicted of, to say that I should be denied the right to buy a gun.

Amy Coney Barrett spent 37 pages explaining why he was right, and the other two judges on the case went the other way in a hurry--both Republican appointees, I might add. But she stuck to her guns, so to speak, and said that as far as Rickey Kanter was concerned, it was just fundamentally unfair, you see, because he was just convicted of a felony, not a violent felony. Really?

Then she went a step further in the issue of voting rights. She really got down to the basic question: Could you be denied to buy a gun if you ``just committed a felony,'' or could you be denied the right to vote if you just committed a felony--not a violent felony in either case.

Well, she reached the conclusion that the right to bear arms and the right to vote were two different kinds of rights; that the right to bear arms was individual, so Rickey Kanter, even if he committed a felony, could not be denied a gun. But she went on to say that when it came to the right to vote, that was a ``civic'' right and that as a consequence of it, if you committed a felony--not even a violent felony--you could lose your right to vote. What an amazing conclusion. That is the originalist's mind at work

I had to remind her that she lives in the State of Indiana. Guns flow across the border from Indiana into Illinois and the city of Chicago. We have a violence problem in that city that is serious and deadly every single darn weekend. Many of those guns--they trace them, incidentally, the Federal agencies do--20 percent of those guns come from her State of Indiana and why many of them--criminals go to Indiana, and many come from gun shows where there are no background checks. So you know what happens. The gang bangers and thugs drive over to Indiana to a gun show, fill up the trunk of a car with guns, and head to the streets of Chicago.

I said to her, she had to know this, living in South Bend, IN, with her kids growing up there. If she knew that, how could she be on the side of making it easier for anybody to buy a gun who has been convicted of a felony? But she did. Her originalism was at work.

I want to say a word about originalism. Originalism is not just some foreign language you pick up on Babbel. It is a mindset. It is a mission statement. It is the belief that original text in the Constitution reveals all the answers to today's challenges.

Now, all of us here have taken an oath to support and defend the Constitution. I don't take an oath lightly, and I am sure none of my colleagues do either. But the question is about that document itself. Does it have in its entirety what we need to know about our rights today in dealing with the constitutional issues that come before us?

Let me mention to you what the mayor of Chicago said a week ago when she was asked about originalism.

Lori Lightfoot said: ``Since the Constitution didn't consider me a person in any way, shape or form because I'm a woman, because I'm Black, because I'm gay, I am not an originalist.'' Lightfoot said, ``I believe in the Constitution. I believe that it's a document that the founders intended to evolve, and what they did was set the framework for how our country was going to be different than any other, and whatever was there in the original language. But originalists say that, `Let's go back to 1776 and whatever was there in the original language, that's it.' That language excluded, now, over 50 percent of the country. So, no I'm not an originalist.''

So let's be very honest about that Constitution. Women could not vote in that original Constitution. African-Americans were not even counted as whole people; they were three-fifths of a citizen. And the list goes on.

I still venerate it for creating the democracy we enjoy today, but I don't believe that the Founding Fathers could possibly intuit where we are in America at this moment. What is at stake with originalism is this battle with judicial activism. What is behind this battle with judicial activism goes back to this moment.

Here are the words of historian Heather Cox Richardson: ``After World War II, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, and Chief Justice Warren Burger, a Republican appointed by Richard Nixon, the Supreme Court set out to make all Americans equal before the law. 1950s, they tried to end segregation through Brown v. Board of Education, prohibiting racial segregation in public schools. In 1965, they protected the rights of married couples to use contraception. In 1967, they legalized interracial marriage. In 1973, with the Roe v. Wade decision, they tried to give women control over their own reproduction by legalizing abortion.

``The Justices based their decisions on the due process clause of the 14th Amendment, passed by Congress in 1866 and ratified in 1868 in the wake of the Civil War. Congress developed this after the legislatures in former Confederate States passed `Black Codes' severely limiting the rights and protections for formerly enslaved people. Congress intended for the 14th Amendment to enable the Federal Government to guarantee that African Americans had the same rights as White Americans, even in States where legislatures want to keep them in some form of quasi- slavery. Justices in the Warren and Burger Courts used that same amendment to protect civil rights a century later. They argued that the 14th Amendment required that the bill of rights apply to state governments as well as the federal government. This is known as the incorporation doctrine, but the name matters less than the concept: states cannot abridge the individual rights any more than the federal government. This doctrine dramatically expanded civil rights.

``But from the beginning, there was a backlash against New Deal government by businesses who objected to the idea of federal regulation and the bureaucracy it would require. As early as 1937, they were demanding to end the active government--active government--and return to the world of the 1920s where businessmen could do as they wished, family and churches managed social welfare and private interests profited from infrastructure projects. They gained little traction; the vast majority of Americans liked the new system. But the expansion of civil rights under the Warren and Burger Courts was a whole new kettle of fish.''

What I am sharing with you here is an amazing summary of Heather Cox Richardson. ``Opponents of the new decisions insisted the court was engaging in''--hold on tight--``'judicial activism''' in trying to strike down discrimination and bigotry--``taking away from voters the right to make the decisions about how society should work.'' They said Justices were ``legislating from the bench.''

Heard that before?

``They insisted the Constitution is limited by the views of its framers, that the government can do nothing not explicitly written in that 1787 document. Faced with confusion over the exact meaning of the Constitution, some revised their position in a few ways. One was to rely on textualism or originalism, the idea that a law says exactly what it says and nothing else. This is the foundation for today's `originalists' like [Amy Coney] Barrett.''

When you hear this debate, ``I am just following the Constitution. I am just following the text. I want to go to the original document. I don't want to see judges who are activists,'' it had its origin in the 1950s when two Justices on the Supreme Court appointed by Republicans stepped up and said: It is time for us to be serious about civil rights in America. Some politicians and those who support them have never gotten over it, and we are still debating it today.

Let me conclude. I see my colleagues waiting patiently. I am sorry it took a long time, but this is as serious as it gets, as far as I am concerned.

Let me conclude by saying this: There are so many issues of critical importance at risk in what we are about to do. The 6-to-3 conservative majority in the Supreme Court will challenge not only the future of the Affordable Care Act but voting rights and the outcome of an election, the right of privacy and choice, civil rights, environmental protections, marriage equality, worker protections, the fate of Dreamers, gun safety laws, and so much more.

We asked Amy Coney Barrett repeatedly, many of us did: Because the President has said he put you on the Court with a mission, and you are denying that took place, will you at least promise us that you will recuse yourself from cases directly relating to these issues? And she said she might, she might not; there was a process she might follow.

There is something else she could do. You see, if this Senate goes forward and approves the nomination of Amy Coney Barrett, she has one last decision before she becomes a Supreme Court Justice. She gets to choose the day when she is sworn in. I would like to suggest to her, for the integrity of the Court and to remove any possible cloud over her nomination created by the President's tweets and promises, I would like to ask her to pledge to the American people that whatever the Senate does, she will not take the oath of office until a new President is sworn in. If it is a reelection of President Trump, so be it. If it is Joe Biden, so be it. But if she will wait and absent herself from any election contest or debate on the Affordable Care Act, it will start to remove this cloud of doubt, this orange cloud of doubt which is over her nomination.

I am going to stand up for the constituents I have talked about today and so many others whose futures hang in the balance, and I will vote no on Judge Amy Coney Barrett.

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