Nomination of Amy Coney Barrett

Floor Speech

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Mr. MARKEY. Mr. President, I rise to speak in opposition to the nomination of Amy Coney Barrett to serve as an Associate Justice on the U.S. Supreme Court.

This is no ordinary nomination, and it comes at no ordinary time in the life of our Nation. We are in the midst of a global pandemic that has already claimed more than 225,000 American lives. We are a mere 8 days away from a Presidential election.

Donald Trump announced his nomination of Judge Barrett even before we could fully mourn the death of the great Justice Ruth Bader Ginsburg, and Senate Republicans then rushed this nomination to the Supreme Court. In doing so, they violated the rule that their leader, Mitch McConnell, imposed in 2016, which kept Merrick Garland off the Supreme Court after President Obama nominated him in February of that year to fill the vacancy that arose with the death of Justice Antonin Scalia.

That rule was clear. That rule was concise. That rule was definitive: The Senate would not consider a nomination to fill a vacancy on the Supreme Court during a Presidential election year.

Many of my Republican colleagues echoed Leader McConnell's pledge. In fact, my colleague, Senator Lindsey Graham, who chairs the Judiciary Committee, admonished us to use his own words against him if he went back on his promise: ``If there is a Republican President in 2016 and a vacancy occurs in the last year of that term, you can say that Lindsey Graham said, let's let the next president, whoever it might be, make that nomination.''

But the majority has ignored the McConnell rule and broken their promises to follow it as they engage in the outright theft of yet another seat on the U.S. Supreme Court.

You can't spell ``shameful'' without ``sham,'' and that is what Senate Republicans have turned this Supreme Court nomination process into--a sham.

What else is unprecedented about the circumstances surrounding the Barrett nomination? Well, in Donald Trump, who made the Barrett nomination, we have a President who has repeatedly refused to commit to a peaceful transition of power, should he lose the upcoming election.

In Donald Trump, we have a President who has openly stated that he needs Judge Barrett on the Supreme Court to cast a crucial vote if cases arising out of a disputed election reach the Court, like Bush v. Gore did after the 2000 Presidential election.

In Donald Trump, we have a President who has vowed to appoint to the Supreme Court a Justice who would vote to overturn Roe v. Wade and take away a woman's reproductive rights and freedom. Even before he was elected in 2016, he pledged: ``I will appoint judges that will be pro- life, yes.''

In Donald Trump, we have a President who has expressly promised that he would only nominate a Justice who would vote to get rid of the Affordable Care Act--ObamaCare--and coverage for preexisting conditions, and President Trump made that another bright-line litmus test for this nomination.

In Donald Trump, we have a President who has told us that he needs Judge Barrett on the Bench to rule in the Affordable Care Act case the Supreme Court is scheduled to hear on November 10, 1 week after the election--a case that will decide the fate of that law and the availability of health insurance for millions of Americans suffering during a pandemic and well afterward.

If Amy Coney Barrett is confirmed to the Supreme Court and votes the way Republicans expect, nearly 3 million people in Massachusetts with preexisting conditions could face higher costs, fewer benefits, and could have trouble finding insurance coverage.

Massachusetts was the model for the Affordable Care Act, but if Donald Trump and his Supreme Court nominee have their way, more than 335,000 Bay Staters enrolled through the Medicaid expansion could lose their coverage.

As we experience the highest number of 1-day coronavirus deaths since the spring, we have a Republican-led Senate that has been unwilling and unable to work with their party's own President to craft desperately needed legislation that would provide relief to the hundreds of millions of Americans who are suffering during this pandemic--Americans who are out of work through no fault of their own; Americans whose small businesses, the engine of our economy, are struggling or going under; Americans who can't get the medicines, the testing, the protective equipment, or the medical care they need; Americans who right now are lacking access to online learning and the promise of an education.

For weeks and weeks, Senate Republicans would not lift a finger to help our workers and our families during this crisis. They would rather our States and our cities go bankrupt; that our students go without Wi- Fi--Black, Brown, and poor children in our country go without the internet at home and without the funding to provide it to those kids. Right now, at the height of the pandemic, there are going to be millions of children who do not have access to the tools they need to be in the third grade, to be in the fifth grade. And even today our nurses go without the masks they need. Yet, when it comes to filling a vacancy on the Supreme Court and confirming a far-right Justice, these same Republicans made the Senate move with speed that would make Usain Bolt jealous.

Jamming through this nomination in this fashion is unprecedented. It renders this process and this nomination illegitimate, period. If Judge Barrett is confirmed, it will only serve to further erode the stature and the legitimacy of the Supreme Court in the eyes of the American people.

Now, everything to which I have just pointed--the pandemic, the election, the corruption--is just the place settings. It is the table onto which Donald Trump has served up the nomination of Amy Coney Barrett.

Judge Barrett is a proud originalist and textualist in the mold of her mentor, the late Justice Antonin Scalia, one of the staunchest and most arch-conservatives ever to serve on the U.S. Supreme Court. As Judge Barrett put it at her own confirmation hearing, ``Justice Scalia's judicial philosophy is mine, too.''

As Judge Barrett describes so-called originalism, it means she is supposed to interpret the Constitution's text and understand it to have the meaning it had when the Constitution was ratified, but interpreting the Constitution in that manner has been used over and over to deny rights to women, to communities of color, and to LGBTQ individuals-- members of our society who had no rights when the Constitution was ratified.

Originalism is racist. Originalism is sexist. Originalism is homophobic. For originalists like Judge Barrett, ``LGBT'' stands for ``let's go back in time''--a time when you couldn't marry whom you love; a time when you couldn't serve in the military if you were trans; a time when rights were not extended to gay, lesbian, bisexual, transgender, queer, questioning, or intersex individuals.

``Originalism'' is just a fancy word for ``discrimination.'' It has become a hazy smokescreen for judicial activism by so-called conservatives to achieve from the bench what they cannot accomplish through the ballot box and an elected Congress. As a result, they roll back individual rights through judicial decisions

The activist originalist Justices on the Supreme Court and lawyers in its legal community are poised to repeal the Affordable Care Act, deny reproductive freedom, and repeal same-sex marriage. They will welcome a Justice Barrett and a 6-to-3 conservative majority with open arms.

We know a lot about Judge Barrett's judicial philosophy of originalism. What about her application of it and her views? Well, in early 2017, 4 months before Donald Trump nominated her to serve on the U.S. Court of Appeals for the Seventh Circuit, she wrote a law review article in which she criticized Chief Justice John Roberts' majority opinion in NFIB v. Sebelius, which upheld the Affordable Care Act. She made clear she didn't think much of Justice Roberts' opinion, arguing that he ``pushed the Affordable Care Act beyond its plausible meaning to save the statute.''

We know from another law review article that Judge Barrett, like many originalists, does not give precedent the respect that it deserves. In 2013, she wrote that because a Justice's duty is to the Constitution, there is ``more legitimacy in enforcing her best understanding of the Constitution rather than a precedent she thinks clearly is in conflict with it.'' In other words, she believes that her own interpretation of the Constitution is more important and more legitimate than precedent such as Roe v. Wade.

We know from her dissenting opinion in Kanter v. Barr that she believes a felony conviction shouldn't necessarily result in losing the right to own a gun, but she is OK with felony convictions taking away the right to vote. She would make it easier for a felon to own a gun than to vote. That is the kind of result that Judge Barrett's originalism gets us into.

So, on many of these issues, Amy Coney Barrett has shown us that she couldn't be further in spirit from Ruth Bader Ginsburg, the late, great Justice whose seat on the Nation's highest Court she will fill. While Justice Ginsburg always had us looking forward, Amy Coney Barrett and her originalism will always have us looking backwards--and backwards is precisely the direction in which this Nation should not be going.

What we know from Amy Coney Barrett's own words is very troubling. Yet then, at her confirmation hearing, we learned that there are many basic, fundamental legal issues on which she would not say a word and she would keep her views hidden.

At her confirmation hearing, Judge Barrett declined to answer questions about such important propositions as whether it is unlawful to engage in voter intimidation--spoiler alert: it is; questions about whether the President can delay a Presidential election--news flash: he can't; questions about whether Presidents should commit to a peaceful transition of power--listen up: they should; questions about whether Obergefell v. Hodges, the landmark Supreme Court decision recognizing the right to gay marriage and making marriage equality the law of the land was correctly decided--no doubt about it, it was; questions about whether the nondiscrimination provisions of the Affordable Care Act protect LGBTQ people from discriminatory treatment in healthcare--of course they do; questions about whether Roe v. Wade was correctly decided and is a superprecedent--it was and it is; questions about whether Medicare is constitutional--of course it is; questions about whether climate change is real and whether human beings cause it--it is and we do.

On these and so many important issues and questions, Judge Barrett refused to give the obvious and indisputably correct answers, but based on her judicial philosophy, her writings, and her record, I have little doubt where she really stands, and that is in the same corner with rightwing, reactionary jurists who are far outside the mainstream of American jurisprudence.

Finally, there is another question that Judge Barrett would not answer: whether, if confirmed, she will recuse herself from the Affordable Care Act case and any election cases that reach the Supreme Court.

There is a Federal statute that governs the recusal decision. It requires recusal in situations where a judge's impartiality might reasonably be questioned. President Trump himself put Judge Barrett's impartiality at issue when he confessed that he needed Judge Barrett on the Supreme Court to decide any election disputes. He did it when he said he would only appoint a Justice who would help to overturn the healthcare law.

After reviewing Judge Barrett's record and listening to her testimony before the Judiciary Committee, it is becoming clear that we have a binary choice: We can have the Affordable Care Act, or we can have Amy Coney Barrett on the Supreme Court. We can have the ACA, or we can have ACB, but we can't have both.

Judge Barrett needs to do the right thing and recuse herself.

I will conclude by noting the irony that Ruth Bader Ginsburg and Mitch McConnell were both on the same page as to this nomination. In 2016, Senator McConnell gave us his promise that the Senate would not fill a vacancy on the Supreme Court in a Presidential election year. After she passed, we learned that it was Justice Ginsburg's dying wish that she not be replaced until a new President is installed. So let's hold Mitch McConnell and Lindsey Graham to their words and honor Justice Ginsburg's fervent wish: no confirmation before inauguration.

But if Republicans succeed here today in their effort to confirm yet another conservative Supreme Court Justice just days before the Presidential election, as soon as the Democrats take back control of the Senate in January, we must abolish the filibuster and expand the Supreme Court. We cannot allow such corrupt partisanship to take precedence over justice and liberty in our country.

I will vote against the confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court and urge my colleagues--all of my colleagues--to do the same

I yield back.

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