Wyden Takes to Senate Floor to Oppose Rushed SCOTUS Confirmation
As Prepared for Delivery
Mr. President, everything that’s happened since the untimely passing of the legendary Justice Ginsburg is a clear reminder that much of what goes on in Washington DC is not on the level.
Right now, this country is hurting. Mass death. Mass unemployment. Mass hunger and suffering among children. The two sides in Congress ought to address those challenges together. Now more than ever, while so many people are fearful about the future, the rules we play by and the agreements we make ought to stand for something.
That’s how I felt when I negotiated for the $600 per week unemployment insurance boost in March. The Treasury Secretary for the Republicans agreed to it, but then at the last minute, Republican Senators pretended otherwise and tried to vote it out of the bill. Think about that. There was an agreement – between both sides – on the key proposal to help workers pay the rent and the food bill, and Republicans went back on it.
Another example is unfolding right here before our eyes. Until a few weeks ago, Leader McConnell and Chairman Graham would have told you it was essentially the 11th Commandment, carved in stone: No election-year Supreme Court appointments.
Again, Republicans have gone back on their word. If the cure to COVID-19 was partisanship and rule-breaking, then Republicans might be onto something with their low stunt on the high court. But it isn’t.
The American people have a much more sensitive radar for unfairness than Senate Republicans do. When I was home, I went to counties that went for Trump and counties that went for Clinton in 2016. The people I talked to all said the person who wins the 2020 election should choose the nominee. And in this case, the American people know what’s at stake for them personally as a result of this rule breaking.
If Judge Barrett is confirmed and does what Donald Trump says he requires of a nominee – help him throw out the Affordable Care Act – what happens?
Tens of millions of people will suddenly lose their health care during the pandemic, and COVID-19 will become a pre-existing condition used by insurance companies to discriminate against consumers.
Even the nominee herself shows this process on judicial nominees is so dysfunctional and so broken, it doesn’t come close to being on the level. Amy Coney Barrett may have established herself as the Babe Ruth of saying pretty much nothing.
Now everybody understands that nominees typically clam up during these hearings. I don’t expect Judge Barrett to disavow Trump health care policy. I wouldn’t expect to agree with all of a Trump nominee’s positions. But this hearing was a new low.
One of my colleagues asked whether Judge Barrett was aware that the president had committed to nominating judges who would throw out the ACA – a statement that was part of news accounts all across the country again and again and again. Back in 2015, Trump said, “If I win the presidency, my judicial appointments will do the right thing, unlike Bush's appointee John Roberts, on Obamacare.” The day after Judge Barrett’s nomination, he tweeted “Obamacare will be replaced with a much better and far cheaper alternative, if it is terminated in the Supreme Court.” But Judge Barrett answered, “I don’t recall hearing about or seeing such statements … that wasn’t something that I heard or saw directly by reading it myself.” She also said she couldn’t recall whether senators brought it up during their conversations with her.
Colleagues, does anybody here think that seems like an authentic answer? Everybody knows that Donald Trump wants to tear down the Affordable Care Act. He famously promised the far-right that his judges would take all the far-right positions. He routinely attacks Republican-appointed justices for opinions he dislikes. This “never heard it, never saw it” argument asks people to believe that Judge Barrett didn’t read the newspapers, didn’t catch the nightly news, didn’t talk with anybody about the health care debate that has been the front-and-center political debate in this country for a long, long time. But here’s the reality; you don’t reach the heights of the academic and legal professions by ignoring the news of the day for years at a time.
So if you watched Judge Barrett’s hearing, it’s clear what this “never heard it, never saw it” argument is all about. It’s about denying there’s any real threat to the Affordable Care Act. To protections for pre-existing conditions. To cheaper prescription drugs for seniors.
Judge Barrett put on a hall of fame performance in ducking and dodging and weaving her way out of answering even the simple, routine questions about the law. The stuff that’s guaranteed to come up in every hearing like this one.
For example – and this one really stunned me when I heard it – she wouldn’t say whether Griswold v. Connecticut was decided correctly. Griswold is the landmark 1960s case that affirmed the right of married women to have access to contraception. It’s one of the key Supreme Court decisions that gets directly to the right to privacy, and to the right of women to make decisions about their own bodies and their own lives. The decision in Roe v. Wade follows directly from the decision in Griswold.
Even Justices Thomas, Roberts, Alito and Kavanaugh – not exactly the liberal wing of the Court – said Griswold was decided correctly. Judge Barrett refused. And that matters because there is a far-right campaign working to undo both of those decisions, which would be devastating to women’s fundamental freedoms in our society.
She dodged serious questions on the legality of IVF, which has helped millions of parents achieve the dream of having a family.
Barrett refused to say whether she believed that Obergefell was decided correctly. That’s the case that enshrined marriage equality in America.
She dodged a question on whether United States Presidents should commit to a peaceful transfer of power.
She wouldn’t say that voter intimidation is illegal. That’s not an open question, it’s a case of black-letter law.
She was given what I view as a slam dunk opportunity to confirm that a president cannot unilaterally change the date of the election. That one’s not open to interpretation – the law is clear that he cannot. But she wouldn’t say so.
Colleagues, it’s not like this nominee has been shy about sharing her opinions before. For example, she bashed the opinion by Chief Justice Roberts that upheld the Affordable Care Act. She said it, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”
That decision is the reason that 130 million Americans with pre-existing conditions are protected today – why insurance companies cannot impose caps on people who need costly health care – why seniors no longer get stuck in the prescription drug donut hole, bankrupting their savings.
She put her name on a letter that talked about overturning Roe v. Wade because of what it called its “barbaric legacy.” She also lectured on that subject. And she failed to disclose the letter and some of those lectures in her disclosure to the Judiciary Committee.
It’s understood that nominees are always careful in these hearings. I get it. Nomination hearings have provided less and less substance for a long time. But Judge Barrett set a new low.
Years ago, Chief Justice Roberts talked about how the job of Supreme Court Justice was about “calling balls and strikes.” How can you be trusted to call “balls and strikes” if you spend your nomination hearing playing “hide the ball”?
This rush job doesn’t qualify as advice and consent. Not even close. And in my view, you look at Donald Trump and Republicans rushing this confirmation – and you look at all the ducking and the dodging of basic questions by Judge Barrett – and it’s hard not to see the political agenda behind it.
At a moment when there are millions of people around the country wondering how they’re going to pay the rent, how they’re going to afford their medications, when they’ll be able to safely hug their elderly parents again, Senate Republicans are laser-focused on locking in political power over the courts. That’s really what this is all about.
Senate Republicans have tried to pull a Houdini act, suddenly making the threat to the ACA disappear. It is not working. And my view is, the American people understand that the rush to fill the Ginsburg seat is about a lot more than health care, too.
Republican nominees for the Courts always come before the Senate and talk about how it’s all about the text of the laws as written, respecting precedent, respecting the original meaning of the Constitution. What happens when these nominees take their seats on the bench? They throw out longstanding precedents, restrict individual rights and push forward with an agenda that favors special interests and the powerful.
For example, Judge Barrett gutted a consumer protection law from the bench by essentially ignoring the text of the law itself, making it easier for debt collectors to prey on vulnerable Americans.
Judge Barrett threw out precedent to deny $332 in damages to a woman who was injured in a medical procedure. The woman was unable to afford a lawyer, and she mistakenly used the wrong word to describe the money she was owed. Judge Barrett used that mistake against her.
She ignored another existing precedent to take away a jury award from a teenager who was repeatedly raped by a prison guard.
She sided with a company that segregated employees by race.
In another case, she came up with a twisted interpretation of the Age Discrimination in Employment Act to allow discrimination against older job applicants.
None of that has anything to do with “calling balls and strikes” or respecting the laws as-written. They’re rulings that favor corporations and the powerful over the little guy.
The president and Senate Republicans have packed the courts from the top on down with far-right judges who issue these kinds of ideological rulings. They blocked Democratic judicial nominees for years. They had a plan to remove seats from the DC Circuit, rather than consider the sitting Democratic president’s nominees.
This president has pushed through an immense number of nominees, given how many seats Republicans left open through obstruction. Some of these judges have been deemed not competent for the job by nonpartisan legal groups. It’s done incredible damage to the legitimacy and the independence of the judiciary in this country. And virtually all of them tell the same story about originalism, and sticking to the text, in the tradition of Justice Scalia.
Justice Scalia is considered to be the ultimate example of somebody who was supposedly an originalist. Judge Barrett recently said, “his judicial philosophy is mine too.”
But Scalia packed his opinions with ideology. He wrote that the decision granting same-sex couples the right to marry was a “threat to American democracy,” that “robs the People of … the freedom to govern themselves.” He wanted to throw out the ACA. He helped gut the Voting Rights Act in a ruling that has led to massive voter disenfranchisement.
What’s behind all this talk about originalism and sticking to the text of the laws as written is a political agenda, plain and simple. Taking away people’s health care. Disenfranchising voters and entrenching minority rule. Giving Corporations more power over their employees. Legalizing discrimination against the LGBTQ community, and against Black, Hispanic, Asian and other groups of Americans. Cementing government control over women’s bodies. Republicans could never enact these deeply unpopular policies through legislation, so they want the Supreme Court to enact their agenda for them.
All of that is contrary to what Justice Ginsburg spent her career fighting for.
But it’s exactly what this big rush to fill the Ginsburg seat is all about. And this process torpedoes any opportunity for the Senate to come together on other big issues.
My Democratic colleagues and I have virtually been pleading with the majority to work with us on another major COVID package, but Leader McConnell said it was too complicated to get done.
Last week, I brought forward a bill on enhanced unemployment insurance – a lifeline for jobless workers. It was blocked. Two days ago, Democrats brought forward a series of bills, including proposals addressing domestic violence, election security and child care. All blocked. This nomination comes first, everything else must wait.
This nomination and this process are not on the level. Republicans are once again breaking their word to hand the Supreme Court to the far right.
And I know because I’ve heard from so many Oregonians about it – people are worried about losing their health care, their vote, and so many of their other fundamental freedoms. They’re worried about what this means for the future of the country.
This debate is about the Ginsburg seat. Justice Ginsburg was not just an iconic fighter for the rights of the powerless and vulnerable. She always said what she meant, and meant what she said. We did not get that from Judge Barrett. I oppose the nomination.
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