Nomination of Amy Coney Barrett
Floor Speech
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Mr. SASSE. Mr. President, Senators have worked through the weekend and the clock is obviously winding down later today. Tonight after final confirmation vote, Judge Amy Coney Barrett is going to become Justice Amy Coney Barrett. For those of us who have been advocating for her--in my case it has been since the summer of 2017--that is welcome news. She is an unparalleled nominee and will be a dazzling originalist on the Supreme Court.
None of the baseless allegations that have been leveled against Judge Barrett have swayed any votes. Democrats didn't lay a glove on Judge Barrett in her confirmation hearing, and I think she ran circles around career politicians who want to outsource more lawmaking to unelected judges. Some folks are upset about that, and even though many of my male colleagues on the Judiciary Committee also complimented the Judiciary Committee chairman on a very well-run hearing, tragically, the minority leader--it seems that he has decided to make Dianne Feinstein a scapegoat for the unforgiveable sin of being unwilling to turn more of Judge Barrett's hearing into another Michael Avenatti clown show. I think that is just a painful moment in this institution's history, and it speaks volumes about how low some people are willing to sink in response to outside activists who would like to see bare- knuckle politics be the only thing that happens in the Senate.
Judge Barrett's opponents know that they don't have the votes. They know they don't actually have public support. They have seen the polling rise steadily week after week after week over the last month as the American public has gotten to know Judge Barrett better and learn more about her. They are more and more comfortable with her and less and less open to some of this sort of hyperbolic rhetoric that we have seen leveled against her.
This is actually my fourth consecutive hour on the floor this morning. I have heard a series of speeches and one of the things that is obvious is that there are a whole bunch of phrases that were written up. I don't know who wrote them up. I don't know how this process happens, but speech after speech after speech uses really similar phrasing to try to alarm and disturb and unsettle the American people, and I think the cynicism is just really tragic. I have heard now, I think, four speeches in a row implying that when Judge Barrett becomes Justice Barrett later tonight, that obviously means the end of healthcare in America. The last speech, actually, included this phrase: A vote for Amy Barrett is a vote to end healthcare. The speech said: ``A vote for Amy Coney Barrett is a vote to end healthcare.''
That isn't just preposterous, it is so destructive of the public good and of public trust, and I don't want this body to continue its decline, but I hope that next April, May or June, when the Supreme Court rules and when ObamaCare doesn't die--as no expert thinks this case is actually going to do. There are no Court watchers who really believe that the Supreme Court is going to end ObamaCare this year. Severability is a pretty important legal concept that those of us who serve as public servants for a time should be helping the American people understand. And yet nobody on the other side of the aisle is talking about severability, even though everybody watching the court case knows that even if the opponents of ObamaCare prevail in this case, that severability is what everyone expects will actually happen. And yet we hear again and again and again this rhetoric just motivated by the cynical desire to get people to vote out of fear and panic in the November elections. Nobody really believes this stuff. So I hope the Democrats that are making these speeches, staying here all night to say again and again things like ``a vote for Amy Coney Barrett is a vote to end healthcare,'' please have the courage to come back next April, May, and June and say you lied to the American people, you were just trying to scare them into voting, and say what you were saying was BS.
Whoever writes these outside talking points, it is really destructive, and the Senators know better than to parrot this pap.
So they are out of arguments, but they are not out of sound bites, and one of the things that is true in American life is that with freedom of speech, even if your sound bite is nonsense, you have the right to be wrong, and you have the right to say it. So given that we are going to be here all day--it is all over but the shouting--it seems like we don't have to play the same speeches on repeat over and over again. We can actually do two things, and I think we should spend a little bit of time reviewing how we got here and a little bit of time talking about where we go next.
First, we should explicitly name the Senate's most valuable player. As somebody who is a junior member of this body, I don't want to cross ``Cocaine Mitch,'' the gentleman from Kentucky, but the truth of the matter is, the Senator most responsible for the confirmation proceedings we have happening on the floor today is not from Kentucky. The Senator most responsible for the fact that Amy Coney Barrett is going to be confirmed tonight, the Senator most responsible for the confirmation of Neil Gorsuch and Brett Kavanaugh is the former Democratic leader from Nevada, Senator Harry Reid. It was Senator Harry Reid who blew up the filibuster for judicial appointments in November of 2013, and the rest of how we got here is just a footnote on that history.
Leader McConnell walked through some of this history on Friday and Saturday, how at every turn, from Robert Bork to Brett Kavanaugh, many progressives have, in an effort to try to secure policy outcomes in the Supreme Court, been escalating the confirmation wars. I won't repeat all of that history from Friday and Saturday here, but when Harry Reid went nuclear, he set the Senate on a path to this day.
So here we are with more than 200 Federal judges confirmed in the last 4 years. Again, I have been on the floor for the last 4 hours, so I have heard multiple people lament the pace of judicial confirmations on the floor. Some people love it; some people hate it, but whether you got hate mail or you got love letters, your destination address should be Las Vegas, NV. There is simply no equivalent or comparable event in the confirmation escalation wars since they were created with the ``Borking'' of Robert Bork in 1987. There is simply no comparable event with November of 2013 when Harry Reid decided to make this body simply majoritarian on confirmations.
So where do we go next? It is no secret that some of my colleagues on the left are itching to blow up the legislative filibuster. It is a slightly better kept secret that a whole bunch of Democrats in the Senate think this is a really bad idea, but they are scared to death of the activist groups that have decided to go after Dianne Feinstein in the last 3 weeks as a sort of trial run to show what happens to people who would resist trying to turn the Senate into a simple majoritarian body. But I still want to at least compliment those folks in this body who started to talk openly about their desire to blow up the filibuster for the legislative process as well around here. I think it would be a very destructive thing to do, but I appreciate the people who are at least talking about it explicitly.
I have been fighting about some of this with my friend Chris Coons. He is now open to blowing up the legislative filibuster, even though he was the leader of the Senate letter in--I think it was January of 2017--in defense of the filibuster. The position he had then, when there was a new administration of a different party, is the position I had then, and it is still the position that I have now. And regardless of what party holds power around here in 2021 or 2025, I am still going to be defending the Senate as a supermajoritarian body that tries to actually have a deliberative process.
So I think that my friend Chris is wrong about being open to blowing up the legislative filibuster, but I don't think he is wrong because he is a Democrat. I think a whole bunch of Republicans were wrong about this issue in January of 2017, and so I fought with them as well. I got lots of angry calls and texts from Republican Members of the House of Representatives in early 2017 for defending the legislative filibuster because the House and Senate are supposed to be different kinds of bodies. We have different purposes. So my argument to Democrats now or in January is the same as the argument I made to Republicans in January of 2017, and that is that blowing up the filibuster would be to functionally kill the Senate. It would dramatically change not just this institution but the structure of governance in our Republic. Because without the filibuster, the Senate becomes just another majoritarian body, and we already have one of those. It is called the House of Representatives.
The House and the Senate are supposed to have different complementary functions, and if we kill the filibuster in the Senate, we will have simple 51-to-49 votes radically changing the direction of the country. We would see governance swings on a pendulum where big chunks of American life could be rewritten every 2 years with simple 51-to-49 or 49-to-51 majority changes and therefore new majority votes. We would become more like a parliamentary European system. It is a system that has some virtues, but we don't have that system, and our Founders didn't pick that system on purpose. In the age of declining trust and increasing cynicism, the answer is surely not more instability. This would deplete, not replenish, our declining reservoirs of public trust.
Killing the deliberative structure of the Senate would accelerate Congress's ongoing slow and bipartisan suicide where fewer and fewer decisions are made by the people's elected representatives and more and more decisions would be made by an unelected bureaucracy that the people back home whom we represent in Nebraska or New York or Rhode Island or Virginia--the speeches that I have been hearing this morning--where those folks don't have any power to hire or fire the people who work in the administrative state, and accountability of governance to the people means that we want the elected representatives to be making most of those decisions, not the unelectable bureaucracy. Even though lots of those people are well-meaning servants, they are simply not accountable to the public.
Senators like Joe Manchin, Jon Tester, and Kyrsten Sinema would see diminished influence as the people of West Virginia, Montana, and Arizona got increasingly sidelined for even more representation of New York and California.
Some of my colleagues apparently want to finish the work that Senator Reid began. This would be to double-down on the division, the cynicism, and the partisanship, and they would pretend that that is a day that they would never regret. But I think it would be really useful for more of the folks who are thinking now of whether they are in favor of ending the legislative filibuster or whether they are too scared to stand up to the activist groups demanding they end the legislative filibuster, it would be useful for a lot more of them to go on the record with the things they say to me in private about the regrets about November of 2013.
I have only been here since January of 2015, and I have had either seven or eight different Democrats currently serving in this body tell me how much they regret the vote that they took at Harry Reid's urging in 2013 to end the filibuster for confirmations to the judiciary.
And I understand that a junior Republican Senator from Nebraska doesn't have a lot of sway in the Democratic conference, but maybe they would listen to the quote of a different, more influential Senator:
[I]f the right of free and open debate is taken away from the minority party and the millions of Americans who ask us to be their voice, [then] I fear [that] the partisan atmosphere in Washington will be poisoned to the point where no one will be able to agree on anything. That does not serve anybody's best interest, and it certainly is not what the patriots who founded this democracy had in mind. We owe the people who sent us here much [better] than that. We owe them much [much] more.
I will repeat the quote:
[I]f the right of free and open debate is taken away from the minority party and the millions of Americans who ask us to be their voice, [then] I fear the partisan atmosphere in Washington will be poisoned to the point where no one will be able to agree on anything. That does not serve anybody's . . . interest, and it certainly is not what the patriots who founded this democracy had in mind. We owe the people who sent us here more than that. We owe them much [much] more.
That quote was from the junior Senator from Illinois in 2005, Senator Barack Obama, speaking passionately to this body about why it was different, why it is different, and why we have a stewardship obligation to defend the deliberative structure of the Senate. Senator, then President Obama was right then; he is right now; and I fear that he will sadly be right in the future, if partisan tribalists decide to blow up the Senate and pack the Supreme Court.
The debate over Amy Coney Barrett is over. We will be voting soon, but in the coming months, the debate for a critical piece of American governance will start. I beg my colleagues to heed Senator Obama's advice. Protect America's structure of three branches of government. You lost this vote, but please don't burn down this institution. Again, you lost this vote under the rules that Harry Reid created in 2013. Please don't burn down this institution.
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