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Public Statements

Executive Session

Floor Speech

Location: Washington, DC

EXECUTIVE SESSION -- (Senate - August 06, 2009)



Mr. DeMINT. Madam President, I do want to talk about the President's nominee to the Supreme Court, but first I wish to give a couple of comments in response to the Senator about health care because if the record be known to Americans, the preponderance of health reform legislation that has been presented over the last 5 years in the Senate has come from Republicans. The Democrats have consistently blocked any reform that would make health insurance more affordable and available to Americans. Their goal appears to be not patient-centered care but government-controlled care.

If we look back a few years, the President, along with all the Democrats, voted against interstate competition among insurance companies. It is hard to say they are not on the side of insurance companies when they vote to prevent a national market, a national competitive market that people all over the country could buy policies that are more affordable and perhaps match their needs much better than the ones they can get in their own States.

Today Americans can only buy health insurance in the States where they live. That means a few insurance companies can dominate the market. This is something we have tried to change, we have introduced, and the President has voted against it.

We have also proposed tax fairness for Americans who do not get their health insurance at work. The other side seldom discusses the fact that when you get your insurance at work, you get pretty big tax breaks. The companies that provide that health insurance do not have to pay taxes on it. They can deduct it. It is a business expense. And the employees do not have to pay income tax on the benefits. It is an equivalent benefit over $3,000.

The bills we Republicans have introduced will give health care vouchers to every American. Every family would get $5,000 a year to buy health insurance if they do not get their health insurance at work. Every individual would get $2,000.

In addition, there would be some lawsuit abuse reform and some block grants to States to make sure people who are uninsurable, who have preexisting conditions, can buy affordable insurance.

The Heritage Foundation says one of the Republican plans would have 22 million Americans insured within 5 years. They are plans that work. But, unfortunately, the other side will not even discuss plans that do not have more government control involved with them.

What we can do is make what is working work better. We do not need to replace it with what is not working. One of the reasons health insurance is more expensive today--a third more expensive--is that the government programs of Medicare and Medicaid do not pay their fair share, and those costs are shifted on to employers and individuals who have private insurance.

We do not need to expand the part that is broken in health care. We certainly do not need to expand a cash-for-clunkers type of health care system for America.

I am here today to talk about the President's nominee to the Supreme Court, Sonia Sotomayor. I commend my Republican colleagues, particularly Senator Jeff Sessions, for conducting a very respectful and civil hearing process for the nominee. This is something we have not seen in a number of years here. They were respectful toward her. Even those who disagree with her judicial philosophy showed courtesy and respect during the hearings, and it is something I very much appreciate.

Our goal through this process has not been to block this nomination and to stop her from going to the Supreme Court. The votes have never been there to do that. What we have been trying to show is a pattern by the Obama administration and the Democratic majority of moving toward more and more government control in all areas of our lives. We see it in the stimulus plan, that instead of leaving money in the private sector, we take it away and spend it on programs such as turtle tunnels and other kinds of wasteful spending all across the country--government spending.

We are trying to manage the private economy. We see it in cash for clunkers where we create an economic earmark for one sliver of our economy. At the same time, in this health care legislation, we are talking about adding taxes to the small businesses that create 70 percent of the jobs in this country.

We are benefiting a few at the expense of many. This is economic central planning. It is a concept that has failed throughout history. Yet we are trying again.

What we see in the President's nominee to the Supreme Court is this belief that our Constitution is inadequate, that we need to have judges on our courts, Justices on the Supreme Court, who add to it.

The President has said that our Constitution is a charter of negative liberties. It tells the government what it cannot do, but it does not tell us what we have to do. The whole point of the Constitution is to limit what we can do. But the President considers it inadequate, and he is nominating people to the courts who will be activists, who will expand what the Federal Government does and make arbitrary decisions rather than those based on the Constitution.

Unfortunately, I do rise today in opposition to the confirmation of Judge Sonia Sotomayor to the U.S. Supreme Court. I met with her personally, and I watched the hearings. I believe she is a very smart and gracious person with an inspiring personal story. But I also found her evasive and contradictory in her answers.

On several issues ranging from judicial temperament to her infamous ``wise Latina'' speeches, Judge Sotomayor experienced what we call confirmation conversion on many of her issues and simply walked away from a lot of her past statements and positions.

Now seeing her willingness to tell us what we want to hear, neither her testimony nor her long record on the judicial bench can give the American people any confidence that she will rule according to the clear language and intent of the Constitution.

Let me talk for a second about the Constitution versus precedent. I am very concerned with Judge Sotomayor's repeated efforts to deflect questions by stating she relied on precedent to guide her decisions. I understand circuit court judges are guided and even bound by Supreme Court precedent, but precedent is not the same thing as the Constitution, particularly on the Supreme Court. A judicial confirmation process that puts the constitutional interpretation outside the bounds of discussion is a waste of time.

On issue after issue during her hearings, Judge Sotomayor, rather than giving her own opinion, simply offered the opinions of many other judges. We have no idea what she thinks. In one sense, this is fitting. The Congress routinely passes legislation that none of us reads or understands. So perhaps it is consistent for us to nominate and confirm a Justice when we do not understand what she actually believes.

Judge Sotomayor may be very learned in constitutional law, but we rarely heard her actually mention the Constitution itself. This is a big problem for our judiciary and our system of checks and balances.

In 1825, Thomas Jefferson said that the Federal judiciary was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what is law has allowed it to slyly, and without alarm, sap away the foundations of the Constitution.

What concerns me, as Jefferson observed, is that there are many confusing and contradictory precedents that can be used by judges to justify whatever decision they want to make. Without the Constitution as the fixed standard, court decisions become very arbitrary, and we are ruled by the opinions of Justices rather than the rule of law.

When the law is unmoored from the Constitution, it becomes like the old schoolroom game of telephone. Some may remember it. One student says something to her neighbor and on and on across the room until the secret reaches the other side of the class. What do you know--the final message no longer even resembles the original. That is how precedent has worked in our court system. Every time the Supreme Court bases a decision on a precedent rather than on the underlying Constitution, the original intent of the Founders is lost and becomes distorted.

There is nothing stopping a determined judge from finding a precedent that suits whatever they want to decide in any case before the Court. Nor apparently is there anything that will stop Judge Sotomayor from unmooring her decisions, not only from the Constitution but from precedent itself, as she did in the Ricci racial discrimination case and with regard to the fundamental right of citizens to own firearms.

In the Ricci case, she claimed she was following precedent, but her own colleagues on the circuit court refuted her claim.

On the second amendment, she disregarded the Supreme Court's Heller decision and still refuses to acknowledge the right to bear arms for every American, that it is a fundamental right.

Decisions such as these, understandably, undermine the credibility of our judicial system. Americans are led to suspect that some judges are more interested in their particular outcomes rather than objectivity.

Let me conclude. Judge Sotomayor is obviously a talented jurist, but I believe her when she says that she chooses her words very carefully. And her words, both in her testimony and throughout her career, undermine her claims to objective and impartial justice.

I realize my view is the minority view here, and if Judge Sotomayor is confirmed, she will have my best wishes on a long and distinguished career. Given the available evidence, however, I cannot support her confirmation, nor the judicial philosophy that she will carry with her to the Supreme Court.

Madam President, I yield the floor. I suggest the absence of a quorum.


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