October 26, 2020

Van Hollen Delivers Floor Speech Fighting Against Unprecedented, Rushed Nomination of Amy Coney Barrett

Thank you, Mr. President. I want to start by thanking my friend and colleague, the Senator from Pennsylvania, for talking this evening about what's at stake for so many of his constituents with this Supreme Court nomination and the very real possibility that the Affordable Care Act will be struck down, and what that means to so many of his constituents.

And I do think this is a moment where we need to reflect and take stock of where we are as a country on many fronts. We are in the middle of a global pandemic. We just saw the highest single day of new reported cases on Friday. Millions of Americans are unemployed and worried about how they're going to pay their rent and how they're going to pay for their medications. We're here at a time when a Republican-led lawsuit to strike down the Affordable Care Act, supported by President Trump and his Department of Justice, is scheduled for a fateful hearing in the Supreme Court on November 10th – one week after the upcoming election. 

We're here in the wake of the killings of Black men like George Floyd and Black women like Breonna Taylor, which sent throngs of protesters into the streets across the country to rightly demand greater police accountability and racial justice. We gather here as wildfires in the west and hurricanes in the south demonstrate with deadly and destructive veracity the accelerating and dangerous consequences of climate change. And we meet, Mr. President, as voters are filling out mail-in ballots as early as they can to make sure that the postal service, which this administration has deliberately slowed down, can get their ballots delivered on time so that they can be counted. And as voters stand in long lines with their masks, six feet apart, to cast their ballots in the early vote.       

Mr. President, this moment this country is facing all these pressing issues, but as I come here this evening or early this morning, we're not considering solutions to any of those critical and urgent issues. Not a single one. Instead, we are blowing up the precedent that the Senate Republican Leader and other Republican Senators themselves established four years ago and considering are a Supreme Court Nominee closer in time to the presidential election than ever before in American history – than ever before in American history – as millions of Americans have already cast their ballots. We are blowing up this Republican Senate established precedent and racing toward a nomination that will turn the clock back, take us backwards on all of those pressing issues that I just outlined. 

But sadly, I suppose none of us should be surprised that we are focused here on another judicial nomination at the expense of focusing on legislation to advance and address the interests of the American people on so many front-burner pressing issues. Indeed, as I reflect on the last months and years, just about the only thing this Republican Senate has done is pass nominations. Week after week we ignore our job as legislators in favor of an agenda of rubber-stamping, blindly supporting whatever nominee this President puts forward. In many cases it hasn't even mattered if a Judicial Nomination is qualified. If they've even tried a case. Our Republican Senate colleagues have abandoned any principles they claim to hold with respect to our judiciary. 

When President Obama was in office, those Republican Senators who were here in this chamber erected a wall of opposition to scores of his nominees, refused to even consider many of them. They outright rejected President Obama's efforts to fill seats on the D.C. Circuit, the court just below the Supreme Court. Republican Senators at the time claimed that it wasn't necessary to fill those vacancies. They rejected qualified nominees up and down the bench, denying simple consideration and withholding blue slips. It was a deliberate effort to stonewall President Obama's judicial nominees. 

In fact, they rejected a highly qualified nominee for the very seat Judge Amy Coney Barrett currently holds. President Obama nominated Myra Selby for the Seventh Circuit in January of 2016. She had served on the Indiana Supreme Court and would have been the first African-American and first woman from Indiana on that circuit. Senate Republicans, what did they do? Didn't even give her a hearing. Then one month later, February 2016, Justice Scalia passes away. President Obama nominates Merrick Garland to the supreme court, a good and very fair judge who had been confirmed to the D.C. Circuit by a Republican-controlled Senate by a vote of 76 to 23. What did Senate Republicans do? They refused to consider the nomination. They said February, February of 2016, February of that election year was simply too close to a presidential election to fill the slot. The American people should have a voice, they said. Let the people choose a president this year and then let that president, whoever it may be, make the nomination to the Supreme Court. And not only – and not only did Senate Republicans oppose Merrick Garland, they refused to meet with him. They refused to hold a hearing. This is February 2016. The American people should have a voice. It's a presidential election year, they said. Eight months, eight months before that November 2016 election was just too close. 

And yet here we are today, four years later, eight days – not eight months – eight days from the beginning of the last day of this presidential election, November 3rd. Over 50 million ballots already cast, and suddenly there's nothing more important than rushing to fill a Supreme Court vacancy. Not responding to a global pandemic – and we just learned from a very reputable Columbia University study, that had this Administration acted and followed the advice of health care experts, we could have saved at least 130 thousand American lives, up to 220 thousand American lives. But here we're taking no more meaningful action, not giving a lifeline to people who are out of work through no fault of their own, not closing the digital divide so children who can't go to school because of COVID can access their classes, not reforming our justice and policing system to make sure that everyone, no matter the color of their skin, is protected and treated equally. Not securing our elections against foreign attacks and interference. 

Just a few days ago I was right here on the Senate floor asking this Senate to take up what had been a bipartisan piece of legislation called the DETER Act. I introduced it years ago with Senator Rubio after we learned of the Russian interference in 2016. We wanted to make sure that we sent a clear message in advance of the 2020 election that if we catch the Russians or any other adversaries interfering in our election, this time there will be a swift and certain price to pay. And just earlier this past week we got not surprising news from the D.N.I. that, yes, what we've known all along, the Russians are interfering, other adversaries are interfering, and yet we couldn't even take up the bill – a bipartisan bill – to send a clear message to Putin and others because the Trump Administration continues to oppose it and the Senate Republican Leader continues to bury it here in the United States Senate. 

So, no response to the global pandemic of meaningful – no, at this point nothing to do on justice and policing, nothing to secure our elections. No, the top priority, the top priority has been to jettison the precedent that our Republican colleagues themselves established under President Obama four years ago and rush to confirm a Supreme Court justice. Why? Why this 180-degree turnaround? After all, it is not as if our Senate Republican colleagues have always been so worried about an eight-person Supreme Court. They kept the Supreme Court to eight justices for a year – for a full year – when they refused to consider Merrick Garland's nomination. Some of our Senate Republican colleagues raised the idea of only having eight justices on the Supreme Court forever if Hillary Clinton had won the presidency in 2016.  

So, what's different this time around? Well, as we've been hearing on the floor of the Senate and from the President himself, there are a number of irresistible opportunities – at least irresistible for the President and our Republican colleagues – things they've been trying to do for years and have not succeeded yet in doing. First, they can pack the court, pack the court with increasingly ideological and right-wing justices to align the very top court, the Supreme Court, with the increasingly ideological right-wing judiciary they've been created over years, first by stonewalling and blocking President Obama's nominees and then fast-tracking them after changing – fast-tracking them for President Trump's nominees. 

Second, they can achieve another goal that they've been striving for – for a decade: overturning the Affordable Care Act. Ten years ago, I was a member of the House of Representatives at the time, Republicans did everything and I mean everything they could to block passage of the Affordable Care Act – to stop Obamacare. We heard outright lies about it. They said it was going to cause massive job loss. They said that the government would be picking your doctor. They said a government panel would decide whether your grandparents lived or died. They called them death panels. None of it was true. None of it has come true. The first part of the Affordable Care Act was signed into law on March 23rd, 2010. On that very day, House Republicans filed a bill to repeal it outright. Also, on that same day, the first Republican lawsuits were filed against it. That two-pronged approach – trying to undo it legislatively and trying to undo it through the courts – continued for the next decade. Dozens of votes in the House of Representatives and the Senate to attempt to repeal the law and dozens of Republican Attorney Generals and special interests filing lawsuits to challenge it in the courts. 

They failed. They failed in the Congress, and so far – so far – have failed in the courts. In the courts, in 2012, the Roberts Court upheld the constitutionality of the Affordable Care Act in a 5-4 decision, in one of the very first cases that had been filed against the law. It wasn't a complete victory for the Affordable Care Act. It did make Medicaid expansion optional, and a number of Republican-held states have refused to implement that unless and until voters have demanded it at the ballot box. But that Supreme Court decision did uphold the central tenets of the Affordable Care Act. The supreme court upheld the ACA again, in a 6 to 3 decision in 2015. But that hasn't stopped the Republican party's quest to eliminate it entirely. Just look at the 2016 Republican Party platform, where they continue the attack with three strategies. First, President Trump – and I quote – “with the unanimous support of Congressional Republicans will sign its repeal." Second, while working to legislatively repeal it, the President would use his administrative authorities to undermine, weaken, and sabotage it. Third, the President would appoint justices to reverse past decisions, including the Affordable Care Act decisions made by the Supreme Court. That was the three-pronged plan. 

Well, they ran into problems with the first part of the plan because despite President Trump's campaign promise to convene a special session of Congress to “immediately repeal and replace Obamacare...very, very quickly”  – despite that pledge, our Republican colleagues soon realized they had no replacement plan. They promised that they could repeal the Affordable Care Act and replace it with something much, much better and less expensive, but there was no real plan. There was no “there” there and the idea they offered to the American people was to trade health care for millions of Americans for tax breaks for the very rich. Tens of millions of Americans would have lost access to affordable healthcare. People with pre-existing conditions would have lost protections, deductibles, and co-pays would have gotten more expensive. And insurance companies would have been able to get tax breaks on the bonuses they gave to their CEO's. That's what was in the Republican replacement plan – giving tax breaks to companies for the bonuses they paid to their CEO's. Not surprisingly, they couldn't sell it to the American people, and I think we all recall here in 2017 it dramatically failed by one vote in the United States Senate. Every Democratic Senator voting against restoring the Affordable Care Act three Republicans joining us, including of course Senator McCain, giving it a big thumbs down. 

Republicans have been a little more successful trying to sabotage the law through the Trump Administration's executive authorities by scaling back outreach for enrollment plans. What does that mean? That means: don't tell the public about what opportunities they have to get health care coverage in the Affordable Care Act – we just won't provide as much public information, so people won't know about it, then they won’t be able to sign up for it. Also by ending cost-sharing in an attempt to destabilize the healthcare exchanges and allowing more junk health plans that don’t offer critical benefits or protections – the kind of plans we used to see when people thought they had coverage and then when they really needed it, they suddenly discovered, nope, in the fine print, it just wasn't there. 

But despite these efforts by the administration, the law has survived. All their efforts to slash it with one hundred cuts. It continues to provide affordable coverage to millions of Americans, and in many states, including mine in Maryland, they've taken efforts to try to protect the Affordable Care Act from the Trump Administration's attacks. But on November 10th, when the Supreme Court hears that Affordable Care Act case, all of that could change. They could decide, after upholding it on two separate occasions, that now they've got another Supreme Court Justice, we're going to strike it down. 

And make no mistake: Donald Trump wants this law overturned. I mean, no one should be under any illusions about that. You can take it from the word of the brief, the legal brief, filed by the Solicitor General of the United States on behalf of the Trump Administration. He is the country's lawyer before the Supreme Court. He filed the case and said that the entire law “must fall” – the entire law must fall. Not one piece of it or another piece. The entire law must fall. That is the position of the Trump Administration. You can listen to President Trump back in May of this year. We're in the middle of a pandemic, when he said, and I quote, “we want to terminate health care under Obamacare." You can listen to him just this week on "60 Minutes" – it aired tonight – and he tweeted out to make sure everyone could see it just in case they missed the show. President Trump said of the Supreme Court's ACA case, and I quote, “I hope that they end it. It'll be so good if they end it." That's President Trump. It'll be so good if they, the Supreme Court, end the Affordable Care Act. That's been his plan from the Supreme Court from the start. In 2015, when he was running, he said, and I quote, “if I win the presidency, my judicial appointments will do the right thing, unlike Bush's appointee John Roberts, on Obamacare." Candidate Trump, hasn't changed his tune. 

And he has found his nominee in Amy Coney Barrett, who has publicly criticized past Supreme Court decisions on the Affordable Care Act. She is President Trump's torpedo aimed at fulfilling his pledge to destroy the Affordable Care Act. She criticized the decision in NFIB v. Sebelius, saying that Chief Justice Roberts' argument “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” She applauded the dissent in King v. Burwell saying that they had, “the better of the legal argument." So, it's no wonder that Republican Senators, who tried unsuccessfully to defeat the Affordable Care Act legislatively in 2017, are now rushing to appoint her before that case is heard, one week after the election. 

The stakes could not be higher for the American people. I want everybody to think back to the days before we had the Affordable Care Act. Back then, if you had a pre-existing health condition, companies could deny you coverage outright. If you didn't have the coverage, you might otherwise be offered it at a price that you couldn't possibly afford, outrageously expensive. Instead of denying it outright, we'll offer you that coverage, but you've got a pre-existing condition. So, we're going to charge you something that you can't possibly afford, and so you can't buy it. If you did have coverage and then developed a health issue, you'd be locked into your current plan, no matter how high the costs arose, unable to shop around because of what had become a pre-existing condition. It's called job lock. You have to stay in a job even if you have a better opportunity or you want to pursue your dreams because you now have a pre-existing health condition, and you can't get coverage elsewhere. 

One Marylander, Angela, wrote to me about her daughter Rachel, who was diagnosed with epilepsy when she was in eighth grade. She had to take expensive medications, which she can afford thanks to the Affordable Care Act. Here's what Rachel's mother wrote, “she now has a lifetime pre-existing condition. If she were to be kicked off her healthcare, I imagine she would be bankrupted having to pay full cost for the medications that help her be a productive member of society.” Rachel is a teacher and her mother Angela says, “it is because of Obamacare that she is able to be where she is today.” Another constituent, Megan, wrote to me that she turned twenty-six on that Thursday that the Senate Republicans on the Judiciary Committee reported out the Barrett nomination. She turned twenty-six just last Thursday. She has asthma. She pays $60 a month for her medications. And here's what she wrote me, “If I lost my job or my insurance, I would have to make a choice between my medicine or paying the electric bill." And she ended her note to me with the following quote, “for my 26th birthday, my only wish is that the Affordable Care Act not be overturned. There are so many people like me, Americans with pre-existing conditions, that depend on this crucial legislation that provides necessary protection and guarantees that they will stay covered no matter what.” That's what Megan wrote. 

And before the Affordable Care Act, women could be charged more just because they were women. Being a woman was a pre-existing condition that allowed insurance companies to charge more. It's also true that before the Affordable Care Act, if you had a catastrophic accident or a long-term health issue, you would hit a coverage gap and be bankrupted by millions of dollars in hospital bills. There were no annual caps and no lifetime caps. Sometimes that meant that people wouldn't go to the hospital or see a doctor because they didn't want to face unending, uncapped bills. That's what would have happened to another constituent of mine, Robin if she did not have the Affordable Care Act. She wrote, “I'm sixty-four,” – so, she's not yet sixty-five so she's not covered by Medicare – “I'm sixty-four, took a tumble at home. My older son urged me to go to the emergency room due to my family health history. I was kept in the hospital due to a low thyroid level and almost nonexistent potassium level among other problems. I would not have recovered if I did not have the ACA. I would not have health insurance and I know I could not pay a hospital bill. So, I would not go to the emergency room. I would have died. The Affordable Care Act saved my life." 

Before the Affordable Act if you were a recent college graduate but you hadn't found a job with health insurance yet, you couldn't stay automatically on your parents' health insurance policy. You were on your own, out of luck. Young people thinking they're invincible, until they're not. Insurance companies could deny coverage to them. Now they can't. I heard from one Marylander who worries about his son's future if this particular provision is taken away. He wrote to me, “If the ACA is overturned and we lose the coverage for my son on my policy, this would be a disaster for my son and for my family. I would hate to see him have to drop out of school just to find a job to cover health insurance. It would destroy his future. And we don't have,” he continued to write, “the extra $5,000 or so a year lying around that would be required for him to have a policy under our current provider that would cover his pre-existing conditions. My son could be one of the millions to lose health insurance if the Republicans have their way." This provision of the Affordable Care Act has been life-saving for Pamela's family. She wrote, “this year my twenty-three-year-old daughter was diagnosed with stage III breast cancer.” Stage III breast cancer. “Thanks to the Affordable Care Act she is still on our insurance. Even with our insurance, she will be in debt for a very long time. Without it she would be dead. I have not heard a single Republican guarantee this will be in any bill they propose."

It's also a fact that before the Affordable Care Act, you had to pay for annual checkups and preventive coverage like breast cancer screenings. It's also a fact if you wanted to quit your job to start a small business, you had to figure out how you would pay for an expensive health plan which might not provide very good coverage on the individual market. 

Another Marylander who had a lump in her breast that was treated as a pre-existing condition even after it disappeared decided she had to limit her employment options to those with decent health insurance before the ACA was enacted. She wrote, “This experience steered me to work only for employers large enough to offer stable, subsidized health care insurance. The downside has been the golden handcuffs. It is important to have universal decent health care coverage to encourage small businesses, nonprofits, and entrepreneurs.” 

Kathleen from Maryland decided to leave an office job to find something that suited her better, but the job she took in the restaurant industry didn't offer any medical coverage. She wrote, “ I developed adult-onset asthma, more than once resorting to the ERs or urgent care. I searched everywhere I knew for medical insurance but was refused either because I was just an individual and/or because I now had a pre-existing condition. Knowing nothing about asthma treatment and unable to cover medical bills entirely on my own, I was chronically ill and more than once almost died.” She had to rely on friends and family for help and after ten years without insurance, she finally found a job with coverage. Kathleen wrote, “We all need medical coverage all the time – no matter your employment status.”

The Affordable Care Act dramatically expanded Medicaid in many states (those that opted to participate), providing subsidies for low-income Americans to find affordable plans and gave small business tax credits for providing health insurance for their employees. It also closed the prescription drug donut hole for seniors on Medicare. A lot of people forget seniors on Medicare benefited from the Affordable Care Act and continue to benefit. That's part of the law that the Trump Administration is trying to overturn in its entirety. These are seniors who faced a big coverage gap from an initial spending threshold and on the other side of the donut hole, catastrophic spending – a big donut hole. 

In 2016, the most recent year where we have complete data, close to five million seniors on Medicare received an average of over $1,000 in Part D prescription discounts because the donut hole was closed. And of the 46 million seniors on Part D Medicare today, if any of them all of a sudden develops a condition that requires high drug costs, any of those 46 million Americans could fall into that donut hole costing them as much as $3,000 more per year.

Mr. President, the Affordable Care Act isn't a perfect law, but it did set a key standard for essential health benefits, cut the rate of uninsured Americans, and started improving health care outcomes for Americans. And right now while we're in the middle of the COVID-19 pandemic, it's more important than ever. The United States has had over 8.6 million COVID cases, a number that we see grow by the day. For patients who require hospitalization, the Kaiser Family Foundation reports that the average stay can cost more than $20,000 a person and rise to closer to $90,000 if the patient requires a ventilator. So what would happen to those Americans if they're once again subjected to a lifetime out-of-pocket limit on their insurance coverage where they're not protected against huge expenditures?

Mr. President, we're all glad that when President Trump got COVID he got world-class care. It's a good thing. We're glad he got airlifted to Walter Reed in Maryland. It's a great national military medical facility. We're glad he had a team of doctors devoted to his case. We're glad he got access to cutting edge drugs. He won't have to pay for that coverage. But, Mr. President, that's not the kind of treatment every other American gets. And it's offensive for the President to relish his first-class treatment while denying his fellow Americans simple protections as he would by calling for the destruction of the Affordable Care Act.

Speaking of COVID-19 and the impact of pre-existing conditions, we're seeing many COVID-19 patients who have long-term health effects. They call them the “long haulers”. The CDC noted last month that COVID-19 can have an impact on the heart, including heart damage that can lead to long-term symptoms, like shortness of breath, chest pain, and heart palpitations. In an article this month in the Harvard Medical School Health Blog notes, COVID can damage the brain causing cognitive effects comparable to those who have suffered traumatic brain injury.

So, Mr. President, while Senate Republicans have refused to take meaningful action to confront the next step of COVID-19 relief, including refusing to pass a strong testing and tracing plan to halt the spread of the virus as proposed in the Heroes Act, both 1 and 2, from the House of Representatives, you're pushing – they're pushing for a nominee to take the Affordable Care Act away from the American people who have gotten sick and now up to 8.6 million of them have a pre-existing condition due to COVID-19. But they will no longer be protected from that pre-existing condition if the Affordable Care Act goes away. 

Mr. President, this isn't crying wolf. I want to remind everybody again the Solicitor General of the United States acting on behalf of the President of the United States wrote in his brief in support of the case to overturn the Affordable Care Act that the entire law, the entire law, coverage for pre-existing conditions, closing the Medicare hole, ending lifetime limits for care must fall. All of it must fall. 

And we know President Trump has no plan to replace it. He's had plenty of time to present one. Four years. He keeps telling us it's going to be a matter of weeks. Four years ago after his inauguration, going to be a matter of weeks. Two years ago, a matter of weeks. Three years ago, it's a matter of weeks. He was asked about it in the last debate. He said, don't worry. He's going to come up with “a brand new, beautiful health plan.” 

Mr. President, women's health in particular is in jeopardy with this nomination. Not only do women stand to lose the Affordable Care Act protections against discrimination because before that, as I said, just being a woman was a pre-existing condition that would and could cost you more. They will no longer have access to the guarantee of free cancer screenings for breast cancer or other screenings. But it's also a fact that President Trump and Republicans have long sought to deny them reproductive health freedom. And that brings us to another long-term, long-time priority of President Trump and Senate Republicans, putting a justice on the Supreme Court who will provide a majority to strike down a woman’s right to reproductive choice in accordance with the Roe v. Wade decision.

Mr. President, the Roe v. Wade decision was 7-2 in the Supreme Court. It was founded on the right to privacy that a woman's health care choice was her own without interference from the state in accordance with the Roe v. Wade framework. Before Roe v. Wade, when abortion was illegal in most states, unsafe abortions caused one-sixth of all pregnancy-related deaths. Many low-income women jeopardized their lives with self-induced procedures. Now, women have safe options, both to obtain abortions, and also thanks to the Affordable Care Act, no cost contraception that is used to both plan families and manage a variety of health conditions. Women can make decisions about their own bodies in consultation with their doctors that are best for their health and the well-being of their families. And the vast majority of Americans support comprehensive health care, including a woman's right to reproductive choice under Roe v. Wade.  

But there's been a long fight chipping away at this protection, this care with the ultimate goal of overturning Roe v. Wade altogether. And overturning that case has been one of President Trump’s litmus tests for this Supreme Court nominee and his other picks. And, like the Affordable Care Act, it's not like he's been subtle about this.

In a Presidential debate in 2016, he was asked if he wanted the Supreme Court to overturn Roe v. Wade. He said, and I quote, “Well, if we put another two or perhaps three justices on, that's really what's going to be. That will happen. And that will happen automatically, in my opinion, because I'm putting pro-life judges on the court.” There it is. This would be President Trump's third Supreme Court nominee, the magic number he talked about for overturning Roe v. Wade and a woman's protected right to choose under the Constitution of the United States. 

This comes on top of more than 60 judges with anti-choice records that he has already nominated and that this Senate has confirmed to the lower courts. More states are passing laws to drastically limit or effectively ban abortion in order to set up cases to challenge Roe v. Wade in the courts, to set up those cases to take to the Supreme Court. And, again, as with his intention to overturn the Affordable Care Act, President Trump has found a perfect nominee to overturn Roe v. Wade in Judge Barrett.

We don't have to rely on the President’s words alone or on all the anti-choice groups who have vigorously lobbied for her appointment and who have said that she believes that Roe v. Wade is something that can be reversed. That's what all the advocacy groups supporting her nomination are saying. And one of our Republican Senate colleagues said he absolutely would never vote for a Justice who’s not shown that they believe that Roe v. Wade was wrongly decided – and has told us that Judge Barrett “certainly would meet that standard.” 

And just as we can see Judge Barrett’s opposition to the Affordable Care Act in her own record, we can see her opposition to Roe v. Wade in her own record. She signed onto an advertisement calling Roe v. Wade “an exercise of raw judicial power,” that advocated for ending, and again I quote, “the barbaric legacy of Roe v. Wade.” That’s what she said. She signed another advertisement criticizing Roe v. Wade when she was a member of Notre Dame's University Faculty for Life, an anti-choice group. She has said that Roe v. Wade is not settled precedent.

Indeed, at her hearing in the Senate, she questioned the principle that the Constitution protects certain fundamental rights from government interference on privacy grounds saying that there's a debate about how far that can go – a debate that is generally waged by those looking to overturn Roe v. Wade and Obergefell, the case that allows for gay marriage. She would not even concede – and this is very telling – she would not even concede in her hearing that the decision in Griswold v. Connecticut was settled law. Griswold v. Connecticut is the case that protects access to contraception. It was a Connecticut law on the books that prohibited any person from using contraception, and the Court invalidated that law in a 7-2 decision on the grounds that it violated marital privacy. I want our colleagues to think about this. This is a state law that said that adults could not use contraception. And she would not say that that is settled law under the Constitution of the United States.

She would not even concede that in vitro fertilization, which has helped many women start their families, was constitutional and could not be made illegal. Mr. President, it's clear from President Trump's stated intentions, from the words of anti-choice groups, the promise of our own colleagues and from Judge Barrett’s own words that her nomination is the culmination of a decade-long effort to overturn a woman's right to choose.

We also see that with respect to the decision in Obergefell v. Hodges. On the day in 2015 the Supreme Court showed us what it could be, a body that would ensure rather than restrict the rights of Americans and in a 5-4 decision they told LGBTQ Americans that the love they had for each other and their wish to declare that love in marriage was their right, as it has been for straight couples for the whole history of our nation. Five years later the American people support this record – this decision at record-high levels. But that was a 5-4 decision, and we're now facing a fundamental shift in the balance of the Court, and we have seen time and again this President attack laws designed to protect people against discrimination based on sexual orientation. 

We also see this not just from the Administration but, again, through Judge Barrett’s own words and actions. She received an honorarium to teach a program run by the Alliance Defending Freedom, which the Southern Poverty Law Center has characterized as a hate group for its efforts to prohibit same sex marriage and recriminalize homosexuality, and she called the experience “a wonderful one.” She has referred to sexual orientation as a sexual preference, which is the buzzwords used by those who want to overturn LGBTQ rights on the grounds that this is not a question of immutable characteristic but simply someone's chosen preference.

There are a number of cases coming to the Supreme Court that deal with the issue of discrimination against foster families headed by same-sex couples. One will arrive at the court on November 4, the day after the election. Another reason you see this nomination being rushed. 

If you look through the issues I outlined at the start, from racial justice and police accountability to other questions of the ability to access health care, you will find time and again in Judge Barrett’s record tell-tale signs and clear signs, flashing warning signs that she wants to turn back the clock.

We see that with respect to criminal justice reform, where she dissented in a case on whether a defendant who had been convicted but not yet sentenced when the First Step Act was enacted by this Congress and signed by the President as to whether the new sentencing requirements of that law would apply. And fortunately, the Seventh Circuit ruled 9-3 that the First Step Act applied to the defendant. Judge Barrett was one of the three dissenting votes that adopted a cramped interpretation of the law devoid of any mercy. 

And there are other cases relating to the rights of those who have been injured, including a pregnant teenager who was repeatedly sexually assaulted by a prison guard where Judge Barrett found that the prison guard could not be held liable under his employment with the prison system. And if you read through that case and the horrifying facts, I think you come away very troubled with the fact that she had such a cramped reading of the law.

Mr. President, on a question that's not a legal matter but a matter of fact, climate change, we would have thought that the question that was put to her was quite easy. Judge Barrett admitted that the coronavirus was infectious. Why? Because that's what the medical experts say. But when she was asked about climate change – again, not a tricky legal question – she refused to say what the overwhelming scientific consensus is, that climate change is real. We see it, as I said, with the forest fires. We see it with the hurricanes. We see it in my state of Maryland. Just in the city of Annapolis, we see flooding at our docks that is wreaking havoc on local businesses. So time and again, when Judge Barrett was given an opportunity to answer basic fact questions or pretty straightforward questions in the judiciary committee, she ducked them entirely. But we have her record to indicate where she stands.

On the issue of voter protection and voting rights, we also find another troubling pattern in Judge Barrett’s record. And this is especially important when you think about the fact that she's filling the seat of Justice Ruth Bader Ginsburg who wrote that very powerful dissent in the 5-4 decision in Shelby v. Holder, that took a big bite out of the Voting Rights Act. And if you look at the statements by Judge Barrett, she distinguishes between what she calls individual rights – like the Second Amendment rights, versus what she calls a civic right – the right to vote, putting the right to vote in a lesser protected category than what she defines as individual rights. In fact, Judge Barrett wrote, as a right that was exercised for the benefit of the community, like voting and jury service, rather than for the benefit of the individual, it belongs only to virtuous citizens. Only to virtuous citizens. That's what Judge Barrett wrote about the right to vote.

Mr. President, the right to vote, as we all know, is fundamental to our democracy. Our dear colleague, John Lewis, recently passed away and was nearly beaten to death for fighting for that right to vote, said many times, “the vote is precious. It's almost sacred. It is the most powerful nonviolent tool we have in a democracy.”

And, Mr. President, it should not be relegated, that right to vote should not be relegated to some kind of secondary status, as Judge Barrett’s writings indicate she would do. So, if you look at all the challenges that we face as a country, dealing with the pandemic, dealing with issues of police accountability and racial justice, dealing with climate change, dealing with protecting voting rights, all these pressing issues that we should be focused on here in the United States Senate, we're not. And instead, we're rushing through this illegitimate process to put a justice on the Supreme Court that in each of these areas – each of these areas where we should be focusing our attention – is actually going to take us backwards.

And so, Mr. President, I urge the Senate – I can see the march that's going day after day toward the vote tomorrow – but I urge this Senate to reconsider the path that it's in. This has been a very shameful episode, watching the complete flip-flop from 2016, rushing to put on a justice who the President wants and who Senate Republicans I think believe will act to overturn the Affordable Care Act, take away a woman's right to choose, and be part of an ideological majority that will strip away important rights from the American people. 

I will end by just pointing out, Mr. President, that public surveys right now show the American people are not fooled by this process. They don't like what they see. They want us to be focused on dealing with COVID-19. They want us to pass a robust, comprehensive emergency response package. That's what the American people are calling for. Instead, this Senate is embarked on this charade of a process. There will be a verdict on all of this by the American people in a matter of eight days. Mr. President, I will – I believe there will be a reckoning on the actions the Senate is taking and the actions the Senate has refused to take in addressing the urgent issues that are really facing the country. And I yield the floor.