Senate Judiciary Advances Amy Coney Barrett Nomination Transcript October 22

Senator Lindsey Graham: (00:09)
I thought she did an exceptionally good job of handling the questions asked. These two days to be questioned. I thought she did an exceptionally good job of handling the questions asked. I thought she was aggressively challenged, but not inappropriately. I want to compliment my Democratic colleagues for not going down the Kavanaugh road. And I want to compliment the Republican members of this committee for asking questions that mattered to you, but showing a tremendous amount of discipline to make sure that on our side the hearing went well. And each of you, when this is over, I hope you feel like a sense of accomplishment. This is why we all run. It’s moments like this that make everything you go through matter. It’s moments like this where you can tell young conservative women, there’s a place at the table for you. This is a groundbreaking historic moment for American legal community and really politically.

Senator Blackburn and Ernst spoke eloquently of what it’s like to be a conservative woman in America. You try to be marginalized. And I just want to thank both of them for their participation. And a bit about the judge, then we’re going to vote. I’ve been here a while and I’ve never seen anyone more capable than Judge Barrett on the law. Two days without a note. Senator Cornyn made that obvious to us. I didn’t know she didn’t have any notes until you mentioned it. But a deep and wide understanding of the law. But the most important thing to me, understanding what a judge does versus what we do. And to all the people out there wondering about Judge Barrett, I can tell you this. The law of Amy will not be applied to a case in controversy. It will be the law as written in the Constitution or by statute or whatever regulatory body she’s going to review. She will take her job on without agenda.

But important to me, is this okay to be a complete person and be on the Supreme Court. It’s okay to be pro-life. She embraces the pro-life cause in her personal life, but she understands that judging is not a cause. It’s a process. She embraces her faith like millions of other Americans. And there’s some things being said about her and her family. They’re disgusting. And I just want to compliment her family for giving her the backing she needed to take on this job. And I want to thank the members of this committee for standing up against pretty vile things. But again, my Democratic colleagues did not go too far, in my opinion. But we’ll-

Days like this coming. It was a decision that- Schumer and Reed made in collaboration. I remember the night before the rules change vote, Senator Schumer called me and informed me of it. And I was very disappointed because I’ve been in a bunch of groups around here trying to keep the traditions alive of having a 60 vote requirement to get on the Court. And I remember telling Senator Schumer, “You’ll regret this.” Today he will regret it. And all I can say is that Judge Gorsuch was filibustered two or three times requiring us to change the rules. They started this, not me. If were up to me, there’d be a 60 vote requirement in the Senate today. Denying Judge Gorsuch the votes necessary to go to the floor was just the beginning of the end of a process that had served the country well. How could anybody in their right mind believed that Judge Gorsuch wasn’t as qualified as Sotomayor and Kagan? How could anybody in their right mind, after listing to Judge Barrett, not understand she’s not just qualified, she’s incredibly qualified. So qualifications apparently don’t matter anymore. It’s about trying to create a situation for your favor politically.

I don’t know where this ends or how it ends, but I do know this. After listening to the excerpt of Vice President Biden’s explanation about court packing, I am more confused than ever. But one thing I can say is that the real energy in the Democratic party is to pack the court, is to expand it from nine to whatever number they need to make it liberal.

And as to my good friend, Senator Feinstein, what happened to her by showing an act of human kindness tells you all you need to know about what awaits a Senator who gets in the way of the agenda they have for our nation, beginning with the Court. The day we start changing the number after every election to make it the way we would like politically partisan-wise, is the end of the independence of the court.

Lots at stake in this election, but today I want to celebrate. I want to celebrate the fact that Judge Amy Barrett will be reported out of this committee unanimously. That to all the young women out there like Amy Barrett, this is a big day for you. To the country as a whole, you’re going to have an associate justice on the Court that you should be proud of. This is a good day. If you don’t believe me, just listen to what the ABA said.

American Bar Association is not high on Senator Lee’s list, and many of you. I think they do give some Republican nominees a hard time, but I’ve continued to use them because keeps as many traditions in place as I can. But to folks who are watching this hearing, their job is to evaluate the nominee in three categories: professional competencies, character, judicial disposition. They spent hundreds of hours, talked to hundreds of people from all walks of life about this judge, Judge Barrett. And here’s what they found.

“The American Bar Association standing committee on the federal judiciary has completed the evaluation of the professional qualifications of Judge Amy Barrett. As you know, the standing committee confines its evaluation to the qualities of integrity, professional competence and judicial temperament. A substantial majority of the standing committee determined that Judge Barrett is well qualified, and the a minority is of the opinion that she is qualified to serve on the Supreme Court of the United States. The majority of writing represents the standing committee’s official writing, which is the highest you can get.” I asked the two presenters a question. “Would both of you feel comfortable going before Judge Barrett?” They’re replied, “Absolutely.”

Another Piece of information was from Miss O’Hara. She was the Dean of Notre Dame Law School while Judge Barrett was a professor. Remember what she had to say. “I have only communicated with this [inaudible 00:08:47] committee on two occasions. The first was 10 years ago when I wrote a strong letter in support of now Justice Elena Kagan, whose term as Dean of Harvard Law School overlapped with my own. The second is today introducing and endorsing Amy Coney Barrett, in equally strong terms. Some might find these recommendations in just a position, but I find them entirely consistent.” So do I. I voted for both. The committee will hold over S.4632, Online Consent Policy Modernization Act. I ask unanimous consent that not withstanding the motion of October 15th, setting the vote on the Barrett nomination at 1:00 PM, the committee proceed immediately to vote on the Barrett nomination. Any objection? Without objection. On the motion to report the nomination of Amy Coney Barrett to be an Associate Justice of the Supreme Court of the United States, the clerk will call the role.

Speaker 1: (10:16)
Favorably to the floor.

Favorably to the floor, the clerk will call the role.

Clerk: (10:21)
Mr. Grassley.

Senator Grassley: (10:22)
Aye.

Clerk: (10:24)
Mr. Cornyn.

Senator Cornyn: (10:24)
Aye.

Clerk: (10:25)
Mr. Lee.

Senator Lee: (10:26)
Aye.

Clerk: (10:27)
Mr. Cruz.

Senator Cruz: (10:28)
Aye.

Clerk: (10:29)
Mr. Sass.

Senator Sass: (10:30)
Aye.

Clerk: (10:31)
Mr. Hawley.

Senator Hawley: (10:32)
Aye.

Clerk: (10:33)
Mr. Tillis.

Senator Tillis: (10:34)
Aye.

Clerk: (10:34)
Ms. Ernst.

Senator Ernst: (10:35)
Aye.

Clerk: (10:36)
Mr. Crapo.

Senator Crapo: (10:37)
Aye.

Clerk: (10:38)
Mr. Kennedy.

Senator Kennedy: (10:39)
Aye.

Clerk: (10:40)
Mrs. Blackburn.

Senator Blackburn: (10:41)
Aye.

Clerk: (10:43)
Mrs. Feinstein. Mr. Leahy. Mr. Durbin. Mr. Whitehouse. Ms. Klobuchar. Mr. Coons. Mr. Blumenthal. Ms. Hirono. Mr. Booker. Ms. Harris.

Clerk: (11:03)
Mr. Chairman.

Aye.

Clerk: (11:07)
Mr. Chairman, the votes are 12 yays, 10 no votes.

The nomination will be reported favorably to the floor with a unanimous vote. Senator Cornyn.

Mr. Chairman, I’ll just take a couple of minutes. I just find this to be a surreal environment we’re in where our Democratic colleagues announced yesterday they’re going to boycott one of the most important votes this committee will have probably during our entire senatorial tenure, and that is a vote to confirm, provide advice and consent to a nominee for the Supreme Court of the United States. But I just want to comment on the pictures that are in their chairs like this is some sort of sporting event during COVID-19, and rather than show up and do their job, they choose to continue the theater that was part of the hearing.

And of course this is all pre-textual. Their argument, as I understand it, is somehow Amy Coney Barrett will violate her oath of office, contrary to everything she has done and who she is, and somehow that the Affordable Care Act is in jeopardy. She explained, I think with great skill, the issue before the Supreme Court, it’s really one of severability, which is very technical doctrine. It doesn’t have anything to do with the merits of the Affordable Care Act. It has to do whether you can sever the unconstitutional portion from the rest of the ACA and that it will survive. But the fact is, Democrats have already moved on from the ACA, and Senator Cruz, in my state in the last six years, the premiums for an individual under the ACA have gone up, I believe, 57%. The average deductible is about $3,000. For a family of four, the deductible is $12,000, which means that in essence, you do not have insurance coverage. You’re essentially self-insured.

So what Democrats have done is they realized that all of the promises that were made to the American people leading up to the passage of the ACA, they have been broken. I remember President Obama saying if you liked your policy, you can keep your policy. If you liked your doctor, you can keep your doctor. None of that’s true. They said that we would have essentially universal health insurance coverage. That’s obviously not true. So ACA has failed. Our Democratic colleagues recognize that. And that’s why they have from the presidential candidates running in the primary all the way down to people running in this election on November 3rd, including in my state, have advocated a single payer system sometimes called Medicare for All, some kinds called the Public Option, but it’s all a slippery slope toward a single payer system.

And I just think it’s important to point out what they are advocating, because it is extraordinarily radical for the hundred and maybe 80 million Americans who get their health insurance on the job, they would eliminate that. They would take that away from them in order to put them on a single payer government program. Medicare, as we know, has its own financial problems and something we obviously need to shore up. It’s a commitment we’ve made to our seniors that if you pay into the Medicare program, you’re going to have health coverage when you become eligible. But dumping 330 million people into the Medicare program in a single payer system will bankrupt it. And we know that providers depend on a payment mix between Medicaid, Medicare, and private insurance in order to pay the bills without the private insurance payments. Our healthcare providers, our hospitals, including those in rural parts of our states would be bankrupt.

So I just think it’s really important to just lay out the facts here. This is all for show. They have given up on the ACA because they realized that it did not fulfill the promises that were made when it passed. Now it’s unaffordable to most ordinary Texans and Americans, and so they have thrown that out the window in favor of a single payer system.

And finally, you know, Senator Schumer said everything is on the table if they win the majority. I think you’ve observed, Mr. Chairman, that if the shoe were on the other foot, we have no doubt what they would do under these circumstances. But beyond that, Senator Schumer has said that the legislative filibuster is in jeopardy, that they will turn this into simply a partisan body where you don’t need to do the hard work to get bipartisan support. They would consider turning D.C. into a state, and the state would get two senators. Puerto Rico, a state, and get two senators. They want to permanently transform this country. This isn’t about incremental change. This is about revolutionary changes in our country.

And then finally, as we’ve all observed, they’re advocating packing the Supreme Court with additional partisan judges. And as Ruth Bader Ginsburg pointed out, there goes the crown jewels of the American Republic, which is our independent judiciary, becomes nothing but another political body, a second legislative or political branch.

So I just wanted to take a minute and thank you for your patience to lay out my thoughts and observations with regard to these theatrics with which our Democratic colleagues are presenting us today. This is all for show. This is to try to capture a narrative which is simply false, and to cover up what they are really about. So thank you, Mr. Chairman.

Thank you, Senator Cornyn, and I agree with what you said. Why don’t we do the business of the committee. We had a few more judges and the subpoena requests. Let’s get through that and I’ll stay around and anybody who wants to speak will do so.

On the motion to report the nomination of Benjamin J. Beaton to be United States District judge for the Western District of Kentucky, favorably to the floor, the clerk will call the roll.

Clerk: (18:03)
Mr. Grassley.

Aye.

Clerk: (18:05)
Mr. Cornyn.

Aye.

Clerk: (18:06)
Mr. Lee.

Senator Lee: (18:07)
Aye.

Clerk: (18:08)
Mr. Cruz.

Aye.

Clerk: (18:09)
Mr. Sass.

Senator Sass: (18:09)
Aye.

Clerk: (18:12)
Mr. Hawley.

Senator Hawley: (18:13)
Aye.

Clerk: (18:13)
Mr. Tillis.

Senator Tillis: (18:14)
Aye.

Clerk: (18:24)
Mr. Durbin. Mr. Whitehouse. Ms. Klobuchar. Mr. Kuhns. Mr. Blumenthal. Ms. Hirono. Mr. Booker. Ms. Harris.

Clerk: (18:40)
Mr. Chairman.

Aye.

Clerk: (18:43)
Mr. Chairman, the votes are 12 yays and 10 not present.

The nomination will be reported favorably to the floor. On the motion report the nomination of Kristi Johnson to be United States District Judge for the Southern District of Mississippi, favorably to the floor, the clerk will call the roll.

Clerk: (19:03)
Mr. Grassley.

… favorably to the floor. The clerk will call the role.

Clerk: (19:03)
Mr. Grassley.

Chuck Grassley: (19:04)
Aye.

Clerk: (19:04)
Mr. Cornyn.

John Cornyn: (19:05)
Aye.

Clerk: (19:06)
Mr. Lee.

Aye.

Clerk: (19:08)
Mr. Cruz.

Ted Cruz: (19:09)
Aye.

Clerk: (19:10)
Mr. Sasse.

Ben Sasse: (19:11)
Aye.

Clerk: (19:11)
Mr. Hawley.

Joshua Hawley: (19:12)
Aye.

Clerk: (19:13)
Mr. Tillis.

Thom Tillis: (19:14)
Aye.

Clerk: (19:15)
Ms. Ernst.

Joni Ernst: (19:15)
Aye.

Clerk: (19:16)
Mr. Crapo.

Mike Crapo: (19:17)
Aye.

Clerk: (19:18)
Mr. Kennedy.

John Kennedy: (19:19)
Aye.

Clerk: (19:20)
Mrs. Blackburn.

Marsha Blackburn: (19:21)
Aye.

Clerk: (19:22)
Mrs. Feinstein. Mr. Leahy. Mr. Durbin. Mr. Whitehouse. Ms. Klobuchar. Mr. Coons. Mr. Blumenthal. Ms. Hirono. Mr. Booker. Ms. Harris. Mr. Chairman.

Aye.

Clerk: (19:42)

The nomination will be sent to the floor favorably. Motion for Taylor B. McNeil to be United States District Judge for Southern District of Mississippi. Favorably the floor, the clerk will call the roll.

Clerk: (19:58)
Mr. Grassley.

Aye.

Clerk: (20:00)
Mr. Cornyn.

Aye.

Clerk: (20:01)
Mr. Lee.

Aye.

Clerk: (20:03)
Mr. Cruz.

Ted Cruz: (20:04)
Aye.

Clerk: (20:05)
Mr. Sasse.

Ben Sasse: (20:06)
Aye.

Clerk: (20:07)
Mr. Hawley.

Aye.

Clerk: (20:08)
Mr. Tillis.

Aye.

Clerk: (20:10)
Ms. Ernst.

Joni Ernst: (20:11)
Aye.

Clerk: (20:12)
Mr. Crapo.

Mike Crapo: (20:13)
Aye.

Clerk: (20:14)
Mr. Kennedy.

Aye.

Clerk: (20:16)
Mrs. Blackburn.

Aye.

Clerk: (20:18)
Mrs. Feinstein. Mr. Leahy. Mr. Durbin. Mr. Whitehouse. Ms. Klobuchar. Mr. Coons. Mr. Blumenthal. Ms. Hirono. Mr. Booker. Ms. Harris. Mr. Chairman.

Aye.

Clerk: (20:38)

The reported favorably to the floor. Next, Catherine Moselle to the United States District Judge for the Middle District of Florida. Favorably the floor. The clerk will call the roll.

Clerk: (20:53)
Mr. Grassley.

Aye.

Clerk: (20:55)
Mr. Cornyn.

Aye.

Clerk: (20:56)
Mr. Lee.

Aye.

Clerk: (20:58)
Mr. Cruz.

Ted Cruz: (20:59)
Aye.

Clerk: (21:00)
Mr. Sasse.

Ben Sasse: (21:01)
Aye.

Clerk: (21:02)
Mr. Hawley.

Aye.

Clerk: (21:04)
Mr. Tillis.

Aye.

Clerk: (21:05)
Ms. Ernst.

Joni Ernst: (21:06)
Aye.

Clerk: (21:07)
Mr. Crapo.

Mike Crapo: (21:08)
Aye.

Clerk: (21:09)
Mr. Kennedy.

Aye.

Clerk: (21:11)
Mrs. Blackburn.

Aye.

Clerk: (21:12)
Mrs. Feinstein. Mr. Leahy. Mr. Durbin. Mr. Whitehouse. Ms. Klobuchar. Mr. Coons. Mr. Blumenthal, Ms. Hirono. Mr. Booker. Ms. Harris. Mr. Chairman.

Aye.

Clerk: (21:33)

Nomination of Thompson Dietz to the United States District Judge for… Excuse me, to be United States District Judge for the United States Court of Federal Claims. Favorably to the floor. The clerk will call the roll.

Clerk: (21:52)
Mr. Grassley.

Aye.

Clerk: (21:54)
Mr. Cornyn.

Aye.

Clerk: (21:55)
Mr. Lee.

Aye.

Clerk: (21:57)
Mr. Cruz.

Ted Cruz: (21:58)
Aye.

Clerk: (21:59)
Mr. Sasse.

Ben Sasse: (21:59)
Aye.

Clerk: (22:00)
Mr. Hawley.

Aye.

Clerk: (22:02)
Mr. Tillis.

Aye.

Clerk: (22:04)
Ms. Ernst.

Joni Ernst: (22:04)
Aye.

Clerk: (22:05)
Mr. Crapo.

Mike Crapo: (22:06)
Aye.

Clerk: (22:07)
Mr. Kennedy.

Aye.

Clerk: (22:09)
Mrs. Blackburn.

Aye.

Clerk: (22:10)
Mrs. Feinstein. Mr. Leahy. Mr. Durbin. Mr. Whitehouse. Ms. Klobuchar. Mr. Coons. Mr. Blumenthal. Ms. Hirono. Mr. Booker, Ms. Harris, Mr. Chairman.

Aye.

Clerk: (22:29)

The nomination will be reported favorably to the floor. Now we have a subpoena request. I’ve been asked by my Democratic colleagues to hold it over and I think there’s a lot of interest on the other side of getting some of the social media folks here to answer questions about their platforms. So I’m going to move forward with the request today for the subpoena. Hopefully give us some leverage to secure their testimony.

I move to vote on the Chairman’s October 22, 2020 motion to authorize subpoenas to Mark Zuckerberg and Jack Dorsey relating to online content modernization. The clerk will call the roll.

Clerk: (23:19)
Mr. Grassley.

Aye.

Clerk: (23:20)
Mr. Cornyn.

Aye.

Clerk: (23:22)
Mr. Lee.

Aye.

Clerk: (23:24)
Mr. Cruz.

Ted Cruz: (23:25)
Aye.

Clerk: (23:25)
Mr. Sasse.

Ben Sasse: (23:26)
Aye.

Clerk: (23:27)
Mr. Hawley.

Aye.

Clerk: (23:29)
Mr. Tillis.

Aye.

Clerk: (23:30)
Ms. Ernst.

Joni Ernst: (23:31)
Aye.

Clerk: (23:32)
Mr. Crapo.

Mike Crapo: (23:33)
Aye.

Clerk: (23:34)
Mr. Kennedy,

Aye.

Clerk: (23:36)
Mrs. Blackburn.

Aye.

Clerk: (23:38)
Mrs. Feinstein. Mr. Leahy. Mr. Durbin. Mr. Whitehouse. Ms. Klobuchar. Mr. Coons. Mr. Blumenthal. Ms. Hirono. Mr. Booker, Ms. Harris, Mr. Chairman.

Aye.

Clerk: (23:57)

Motion has passed. Thank you. All right, thank you all. I’ll be glad to listen to any comments you’d like to make, but we did it. We did it. Judge Barrett’s going to the floor. I hope you look back on this time on the committee and say I was there when it mattered. And you were. Senator Lee.

Thank you, Mr. Chairman. It is indeed an honor to be here on this historic occasion when we’ve confirmed Judge Barrett and forwarded favorably to the floor our recommendation. As I’ve said ever since she was nominated to this position, Judge Amy Coney Barrett is one of the most impressive legal minds in the United States. She’s a thoughtful and fair-minded lawyer, a loving daughter, wife, and mother, and a devout believer in her faith and in the constitution.

She was arguably the most impressive judicial nominee that I’ve ever seen in any of these hearings, and I’ve been watching them intently since I was a kid. Judge Barrett is going to make an absolutely outstanding Supreme Court Justice, and the American people will be really lucky to have her on the bench. It is a shame that our colleagues on the other side, having failed to lay a glove on Judge Barrett during the hearings, have chosen to walk out on this process and in so doing, walk out on the American people. This is sad, but in context, it’s not really that surprising. I suppose we should be grateful that a walkout is all the Democrats will do to Judge Barrett today. Not all nominees have been so lucky.

It’s an important point for those watching these proceedings, who might be tempted to believe the pious pearl clutching and performance art of the media and the minority party about this particular nomination.

I’d like to take a few moments to set the record straight about the history of this process and why America needs and deserves to have Judge Barrett on the Supreme Court. For the first 200 years of the history of our Republic, Supreme Court nominations of both political parties were almost always polite and even boring relatively nonpartisan nonpolitical affairs. Judicial nominees were examined for their qualifications and rejected by the Senate only in relatively rare instances.

But that era of generally common mutual respect ended in 1987 when a Democratic controlled Senate shamefully and slanderously defeated the nomination of one of the country’s most respected lawyers and constitutional scholars, that is Judge Robert Bork.

The cynical attacks against Judge Bork, whose only offense was that he was a conservative, were dirty and they were downright dishonest. But like the boy who cried wolf, Senate Democrats got away with it. At least the first time.

Four yays later, president George Herbert Walker Bush nominated Judge Clarence Thomas, then serving on the US Court of Appeals for the DC Circuit to replace Justice Thurgood Marshall. Democrats on that judiciary committee, Democrats, not Republicans, tried to do to Judge Thomas, what they had done to Judge Bork a few years earlier. The public was now wise to the Democrats game and that particular attack, while injurious, failed.

So they resorted to the next tactic, organizing what Thomas rightly called a high tech lynching of a black man who dared disagree with the rich white liberals who ran the Democratic party.

When Democrats won back the White House in 1992, when the shoe was put on the other foot, Senate Republicans did not retaliate. Senate Republicans did not respond the way they did. They did not respond in kind.

In 1993, the famously liberal Judge Ruth Bader Ginsburg was confirmed to the Supreme Court with 96 votes. In 1984, Judge Steven Briar was confirmed with 87 votes. They went low and in response, we went high.

Did Republicans good faith behavior influence or improve the Democrats behavior? No. The record suggests that it only encouraged them. Within a decade, Democrats once again, breached norms. They unilaterally escalated their war over the judiciary by filibustering for the first time in history, a judicial nominee, Miguel Estrada. Mr. Estrada was, and remains to this day, one of the most respected lawyers and constitutional scholars in the country. He was a natural and inspiring choice to serve as a federal appellate judge.

But to the left, you see, that was precisely the problem. Mr. Estrada was Latino and brilliant and charismatic and young and widely seen as a future nominee to the US Supreme Court. So the left decided to strangle Mr. Estrada’s nomination with false, insincere attacks and unprecedented obstructionism.

They filibustered Mr. Estrada’s nomination, not once, not twice, but seven times. Fan service to hateful leftist groups who were vilifying an honorable man in a revolting tantrum of political cynicism and blatant racial condescension.

Sure, during this ordeal, Mr. Estrada’s family suffered irreparable tragedy, but at least the New York Times was happy. And the left sent a clear message to Latino Americans about what they can expect if they too dare question liberal orthodoxy.

Thus Democrats ushered in yet another new era in their, not the, but in their, judicial culture wars. The era of judicial filibusters. Now remember at the time of the Miguel Estrada filibuster, Republicans had control of the White House and of the Senate, they could have invoked the nuclear option to break the Democrats unprecedented norm breaking obstruction. We didn’t. We did not retaliate. Not after the Estrada filibuster, not after the Democrats malignant, mendacious, smearing of then judge, Sam Alito, on his way to the Supreme Court.

It’s not the narrative, but it is the truth. Once again, Democrats went low. Cruelly, disgustingly low. And once again, Republicans took the high road. Under President Obama, Republicans accepted the Democrats’ practice and required super majority cloture votes for judicial nominees. After a few years of this, Democrats got tired of having to play by their own rules, so they broke them.

In 2013, with a number of Obama policies being challenged on constitutional and other grounds in the courts, Democrats invoked the nuclear option over Senate rules so that they could confirm judges with only 51 votes. Republicans pleaded with Democratic leader, Harry Reid, not to do it. And we warned Democrats that they would soon live to regret it.

But hubris makes the powerful deaf as well as blind. They rammed through their appellate court judges. We could not stop them. They did it because they could. In response, the American people did what they could. In the next election, and in fact, in every single Congressional election since the Democrats went nuclear in 2013, the American people returned a Republican majority to the Senate. That included the election of 2014, which meant that when President Obama appointed Judge Merrick Garland to replace the late Justice Antonin Scalia, the Senate, following precedent established by Democrats decades earlier, rejected that nomination. That included the election of 2016, when Donald Trump was elected president. when he selected Judge Neil Gorsuch to replace Justice Antonin Scalia, Democrats once against filibuster and then feigned outrage as Republicans followed Democrats precedent again and triggered the nuclear option on Supreme Court nominations.

Now let me go on record. I initially had concerns about this move. In conference meetings, for some time I argued to my colleagues that we ought to at least try to find another way, try to see if we could figure out a way to restore the judicial filibuster and simultaneously preserve this important part of the Senate’s institutional design and a presidential prerogative. I lost that argument. My position may have been principled, but in the context of the Democrats relentless, relentless and endless pattern and practice of abusing their power, it was untenable.

I tried to persuade my colleagues to seek a good faith bipartisan solution. The problem was that while solutions were easy to imagine, the left’s good faith was not. The only precedence Democrats had given us to work with were Bork, Thomas, Estrada, and the nuclear option.

My colleagues pointed out the obvious, Democrats embrace of judicial power and of judicial total war was not a slide down a slippery slope, it was a giddy enthusiastic leap that they still don’t regret.

Just look at the record since then. In 2018, when Justice Anthony Kennedy retired and President Trump nominated Judge Brett Kavanaugh to replace him. Was there any sign, any evidence whatsoever, of any intent to lower the temperature? Any indication that Democrats were rethinking their decades of vicious, unilateral escalation? Just as before, of course not.

During the Kavanaugh nomination, they stooped to new lows, concocting a patently false accusation of teenage sexual assault against an honest, honorable, and innocent man. Like inquisitors burning heretics at the stake, torching, sliming, smearing, breaking norms, breaking rules, to slander and strangle the nominations of Constitutionalist judges, is simply what the left does.

This is a feature. Not a bug. This is how they operate. This is what they do. Liberals, not Conservatives, turned the Supreme Court of the United States into a super legislature of sorts.

Democrats, not Republicans, escalated Supreme Court confirmations into ideological knife fights and worse, and made political outcomes the defining issue of this process rather than judicial philosophy and qualifications.

What has happened to this problem isn’t a bipartisan failure. It is a unipartisan strategy. Every norm broken, every act of escalation, one party, the Democrats, has been the aggressor in every single instance. At every step along the way, our side has used our constitutional authority and the other side has abused its authority. There is no tit for tat, there’s just tat.

Democrats killed Judge Bork’s nomination for partisan political reasons. They killed Miguel Estrada’s nomination for partisan political reasons. They slandered Justice Thomas, Justice Alito, and Justice Kavanaugh for partisan political reasons. They nuked the filibuster, again for partisan political reasons. And now they’re trying to scuttle this meeting, this hearing, this vote for partisan political reasons. When it comes to the judiciary, abuse of power is their agenda.

The left seems to think that the Supreme Court exists for this purpose and that it exists to impose their very worst ideas onto the public, onto those recalcitrant…

… Onto the public, onto those recalcitrant members of the public, those people we call citizens, who refuse blindly to go along with their entitled extremism. They want the court to empower abortion activists and woke performance artists, campus, and corporate elites, and social media outrage addicts, to tell everyone how to live, without votes, without accountability, and without debate. Taking debatable matters and placing them beyond debate seems to be their formula. They don’t want democracy, they don’t want representative government. They want a docility. And Judge Amy Coney Barrett is not going to give it to them. She’s not going to politicize the Supreme Court. She’s going to help depoliticize a court that the left has spent decades turning into an extra constitutional Sanhedrin of philosopher Kings.

She’s going to turn back policy decisions and political debates back to the people and their elected accountable representatives where they properly belong. Judge Barrett understands that under our constitution, policy is supposed to be determined by the priorities of the people, not editorial boards or Twitter trolls, or safety school faculty senates. That is why the left is so furious about this nomination.. For all the pious pablum you hear on MSNBC and for all the pious pablum you’ll hear on MSNBC and those other networks tonight, understand they aren’t angry because this process isn’t fair. They’re angry because it is. Not because they think Amy Coney Barrett is going to be a partisan justice, but because they know she will not be. They’re not afraid Judge Barrett will legislate from the bench, but that she will force Democrats and Republicans to legislate from legislatures, as the Constitution itself requires. Judge Barrett threatens their power, not because she has a hidden agenda or hidden powers, but because they do and she won’t enact those powers or exercise them by judicial fiat.

And that is exactly why we need to have Amy Coney Barrett on the Supreme Court of the United States. Not to avenge Bork, Thomas, Estrada, Alito or Kavanaugh, but rather to restore the institutional integrity of the Supreme Court and to the Senate and all the public institutions that left us judicial abuse has twisted and desecrated for two generations. We need to confirm Amy Coney Barrett not to give political power to conservatives or Republicans, but to finally give it back to the American people, from whom it was stolen so many years ago. The left has taken the political low road on the judiciary, for decades. Amy Coney Barrett will take the constitutional high road for decades to come. Every day earning in more ways than one, her new title of justice. Thank you, Mr. Chairman.

Thank you. Well said, Senator Lee and I have a full statement I’ll introduce into the record without objection about the process. I think Senator Grassley would like to speak for about five minutes, is that correct?

I hope it won’t irritate you Mr. Chairman if I-

It will, music to my ears.

Take a few minutes.

Take your time Senator Grassley.

Obviously our colleagues don’t think that they ought to represent their states by … and that’s what they’re not doing is representing their people when they don’t show up here. I’m talking about my colleagues across the aisle. But those of us that are here are pleased to have voted Judge Amy Barrett’s nomination out of committee to the floor. And the reason for doing that is that she has the temperament and humility that we would expect of a judge. She approaches cases without bias and agenda. Most importantly, she understands that a judge should interpret, not make the law. She was thorough, candid and forthright in the hearing. But when pressed on how she might rule in a case, Judge Barrett properly applied the Ginsburg rule and that rule demonstrates her independence by not showing any hints, previews, or forecasts. And those three words are from the Ginsburg testimony of about 28 years ago.

Judge Barrett clearly respects precedent and she practices judicial restraint. Her judicial method is rigorous and exacting, but fair and open minded. I specifically asked Judge Barrett if she had made any promise to anyone about how she might rule on a case. She responded, “The answer is no.”

“The answer is no. It would be inconsistent with judicial independence.” She just expressed there what we expect and learn from eighth grade civics, what the checks and balances the government are all about. The Supreme Court is the court where we expect them to make sure that the executive branch and the legislative branch doesn’t go outside the bounds that the Constitution sets for this Congress and the executive branch. Judge Barrett is even handed and has ruled for both plaintiff and defendants and all kinds of cases, since she served on the Seventh Circuit Court of Appeals. When asked if she would follow the law wherever it leads, she said, “Yes.” The Affordable Care Act was brought up quite significantly and almost every person, maybe in this committee, but more so by Democrats that were trying to make it look like she would be a force to just have her mind made up already that the Affordable Care Act ought to go out the window.

But throughout the hearing Democrats spun then a bunch of nonsense about Judge Barrett and the Affordable Care Act. They claimed her critique of Chief Justice Roberts reasoning in the 2012 ACA case dictates how she’d vote in the upcoming case. And we all know that that’s bunk from how she’s described her approach to that ACA. Judge Barrett made clear then that she doesn’t have an agenda. She testified, “I have no hostility to the ACA.” Academics critique court decisions all the time. So obviously she was doing that as a person, tenured professor Notre Dame School of Law. Her critique of Roberts’s reasoning was shared by many legal commentators across the political spectrum. Moreover, the question before the Supreme Court this fall are entirely separate. So it’s pointless to speculate. Senate Democrats want to portray the judge as a threat to healthcare. They want to distract from the fact that they recently filibustered, just yesterday and three days ago, COVID relief bills on the Senate floor that would have protected preexisting conditions. Although none of us Republicans are threatening preexisting conditions.

This is all is just a Democrat election year scare tactic, but voters aren’t buying it. A political poll released yesterday showed a majority of Americans want the Senate to confirm Judge Barrett. That’s what we’re going to do. And she made it easy for us with her outstanding performance here three days before this committee. The judge’s record shows that she practices judicial restraint. In her words, “A judge who approaches a case as an opportunity.” I better say this as her quote, “A judge who approaches a case as an opportunity for an exercise of the will has betrayed her judicial duty.” The judge won’t be a politician on the bench. She’ll make decisions as they should be decided in an impartial manner and in accordance with the law and the Constitution. I take the judge at her word, “In my time as a judge my job my boss is the rule of law, not imposing my policy preferences.” So I’m pleased that we have voted Judge Barrett out of committee to be an associate justice of the Supreme Court. Thank you, Mr. Chairman.

Thank you, Senator Grassley. Senator Hawley would like to present a statement for the record and that will be allowed without objection. Senator Cruz.

Thank you, Mr. Chairman. I want to commend you Mr. Chairman on conducting a remarkable set of hearings last week. And I want to commend every member of this committee for the result approving Judge Barrett’s nomination, moving it to the floor where I have every confidence she will be confirmed on Monday. This is a major victory for the American people. This is in many ways, the single most important accomplishment President Trump has achieved in office, in nominating a principled constitutionalist to the Supreme Court, President Trump was honoring the promises he made to the American people. And in confirming that principled constitutionalist to the court, the Republican majority in this Senate will likewise be honoring the promises that we made to the American people.

I want to take a moment to highlight something that we’ve learned in the last two weeks, which is that the Democrats understand that their radical agenda for the Supreme Court is profoundly unpopular. The Democrats are unwilling to defend their radical agenda for the Supreme Court. That’s illustrated powerfully today by the fact that every Democratic chair is empty. That they are boycotting this markup. They’re boycotting this markup because they’re substantive arguments are not persuasive. They’re not effective. Last week during the hearing it was striking. Not a single Democrat asked any questions that defended the far left view of religious liberty, which is that the Supreme Court should go through the public square, scour the public square to remove any reference to God Almighty. Not a single Democrat to the far left’s radical view of religious Liberty that the government has the power to punish you for living out your faith.

I noticed these lovely photographs in the place where our Democratic colleagues normally would be. You know, one photograph I don’t see is a photograph of the Little Sisters of the Poor. Little Sisters of the Poor, a Catholic convent of nuns who’ve taken a vow of poverty who the Obama administration persecuted because they were living according to their religious faith. And who Joe Biden pledges to once again persecute, if he is elected. Not a single Democrat in this committee defended that radical view of religious liberty because the American people don’t want it. They want a court that will actually protect our religious liberty, not take it away. Not a single Democrat during the hearing last week defended the Democrats radical view of free speech, which is that the federal government has the authority to regulate political speech, to regulate your free speech and to silence you if you dare criticize a politician. That is a terrifying increase in government power. There have been four votes on the left for that proposition that the federal government has the power to ban movies. That the federal government has the power to ban books.

That was the position of the four dissenters and citizens United and not a single Democrat would defend that radical proposition because the American people have no interest in a federal government that has the power to regulate free speech. On the second amendment, not a single Democrat defended the proposition that four dissenters in Heller versus District of Columbia maintained, which is that the second amendment protects no individual right to keep and bear arms whatsoever. Which means that government can make it a crime, a felony, for any American to own a firearm and there’s nothing you can do to challenge it in court. There are four votes for that, one vote away. Not a one of them defends that radical proposition.

And so I would say to all of us in the majority, we should take solace from this. They know the propositions they’re advancing are radical. They are extreme. They’re not what the American people want. To all of the grassroots activists who are out there fighting right now, less than two weeks away from election day, fighting to defend the Constitution and Bill of Rights, take solace in the fact that our absent Democrats understand last week was not going well for them. They tried to ask a few questions at Judge Barrett and they realized this ain’t good. The American people seeing this smart, calm, talented principal jurist, pledging to defend the Constitution. That is a problem for us, the Democrats. And by day two of the questioning, they had gotten out of dodge. By midday, there were only two Democrats even left in the hearing room. Now, of course, two Democrats is more than we have here today. So it went from barely being present to being totally absent.

There’s a reason why Joe Biden and Kamala Harris refuse to answer the question whether they intend to pack the court, because the answer is yes. If they get power, they will move to pack the court to expand the number of justices, to fill it with partisans on abuse of power that would do immense damage to the independence of the judiciary. And why won’t they answer the question, because they know it as profoundly unpopular. They know the American people don’t want to see the court politicized, its independence destroyed, which is what today’s Senate Democrats are pushing.

The stakes of this confirmation and the stakes of this election coming up in two weeks are enormous. The reason the Democrats want to see leftists on the court is so that a majority of judges, unelected lawyers in robes, can mandate policy outcomes that the American people don’t want, that they would never vote for, without our colleagues having to take responsibility for it. There are times when it seems Republican Senators don’t necessarily understand that the principals were fighting for, the overwhelming majority of the American people are with us. But you know who understands that very well? The Senate Democrats who refuse to attend today. Congratulations, Mr. Chairman.

Thank you, Senator Cruz, for your participation in this hearing process. You bring a lot to the table for the conservative point of view and actually understand the process as well as anybody I’ve ever met. And thank you, Senator Lee for reminding us how we got here. We got here through a tortured tale of abusing people, of trying to get outcomes.

… abusing people of trying to get outcomes, changing the rules to accommodate political desires, and it’s ended today. I would love to go back to the traditional senators approach of having to grab some people on the other side of the aisle to confirm a Judge, but that was abandoned in 2013 for a purpose, to stack the DC Court of Appeals, that’s where all litigation involving the federal government goes. And Senator Schumer, Senator Reid… And Senator Reid to his credit says, “I did it, I’d do it again, and we should change legislative filibuster.” That’s what Senator Harry Reid said. I’m hoping that this election people will listen to what Senator Cruz just said, we are a one vote away from fundamentally changing the second amendment, changing how free speech works in this country, and on and on and on. So, when they changed the rules in 2013 and filibustered Justice Gorsuch requiring us to change the rules, it set in motion some things that I’ve worried about for a long time.

But here’s some good news, the Judiciary Committee got it right when it came to Judge Barrett, we did the right thing, it would have been wrong to deny her a vote. In my view, if you’re a Republican, it would have been crazy not to vote for her. As a Democrat, you may not agree with her judicial philosophy, which is rejection of judicial activism and a originalist point of view of how you approach cases and controversies, but you should have seen in her what I saw in Sotomayor and Kagan, qualifications, you’ve abandoned that. You expected me to impose the qualification test on Sotomayor and Kagan, and I did, it used to not be this way, Justice Scalia got 96 votes, Justice Ginsburg got 96 or 97. Senator Thurmond, my predecessor, voted for Ginsburg because she was qualified, Senator Hollings, a Democratic Senator from South Carolina, voted for Scalia because he was qualified, what the hell happened? It wasn’t us.

Senator Lee made a very compelling case that it changed… It began, I think, with Bork, continued with Thomas, Alito, and it crescendoed with Kavanaugh. And I want to thank my Democratic colleagues who did participate in the hearing so you could ask her hard questions and suggest that she would not be open-minded, I think you lost that debate, but you did show up to ask her questions. You should be here to vote, she deserves a vote, yes or no. If you vote no, then you’re solidifying the idea that qualifications no longer matter, if you vote yes, I don’t know if you could still stay in the Democratic Party. I’m still here, I voted for Sotomayor and Kagan, I’m doing fine. It’s just a shame that we’ve allowed it to get to where we have, it’s a shame that my colleague, Senator Feinstein, who opposed the process and opposed the nomination, had a moment of human interaction which apparently is a… It’s not enough to agree with the cause you got to hate the people they want you to hate.

Senator Lindsey Graham: (01:00:39)
Boy, America is in for a real tough ride if it’s not enough to agree with the underlying cause, you must hate to be really a legitimate liberal. It’s not enough that you embrace the cause, but you have to hate. I hope that doesn’t come on our side, because then we’ll be reduced to hating each other rather than debating each other. It won’t be about our ideas, it’ll be about the fact that we just oppose the concept of each other. So, I want to end this on a positive note. President Trump had a list that was vetted and he picked Judge Barrett, I have a list of really qualified people. Senator Cruz said, “I think maybe it’s his most important decision, and this will be a historic moment.” It’s historic for young conservative women knowing that there’s a place at the table for you. I think it’s a historic moment for the court to have somebody like Judge Barrett on the court who openly embraces their faith and has lived a consequential life.

America is for all of us. African American and people of color who embrace Republican ideas and conservatism, they have a tough time [inaudible 01:02:02] modern society, same for women, so this is a breakthrough moment. I regret that we could not do it the normal way, but what I don’t regret is reporting her out of committee. Knowing someone this qualified, who worked this hard all their life to be a good decent person, is a giant when it comes to understanding the law, has the disposition that all of us would yearn for in a judge, I could not have lived with myself if I denied her, her day. This is a culmination of a well lived life. There’s one more step in the process, that’s the floor of the United States Senate. So, whatever you think about Republicans or Democrats, and I know we’re very divided, I hope you’ll remember this was about Judge Barrett.

This was about her and her qualifications, was she worthy of the nomination? Did she conduct herself in a manner to be worthy of our votes? I think that is a very easy question. To my Democratic colleagues, you’ve denied her your vote, I regret that. But in the process of participating in the hearing, you pushed her hard but you didn’t go too far, for that I do very much appreciate that part of the hearing. So, we will go to the floor now, we’ll take up the nomination of Judge Barrett on the floor of the United States Senate, I doubt if a single Democrat will vote for her. And I’ll end with this, elections do have consequences. I understood that Justice Kagan and Sotomayor would be the type of judges that a Democratic president would be looking at, highly qualified, a philosophy closer to President Obama’s than mine, and that’s why I voted for both of them.

Now, we find ourselves in a situation where qualifications no longer matter, it’s about holding open seats to have them filled after the next election, and we’ve lost sight that the individuals being nominated matter, I think they do matter. So, I just want to, again, compliment President Trump for sending to the Senate this outstanding nominee, incredibly well-qualified in every way you’d want a judge. And I don’t know what the future holds for the Senate, I know there’s election around the corner. And a word of warning, the Democratic Party of 2020 is hell bent on changing all the rules. There won’t be 9 members of the court if they get the House, the Senate, and the White House, they’ll be at least 13. The legislative filibuster will fall like the judicial requirement of 60 votes has fallen, DC will become a state, the Affordable Care Act will be replaced by some more aggressive form of socialized medicine, but that’s for the ballot box.

Today, was a process that’s been in place for a couple of a hundred years, advice and consent. So, I am proud to have supported Judge Barrett, I think the people of South Carolina would be very happy with somebody like her sitting on the court judging us all. So, the role of advice and consent has been around for a couple of a hundred years. The last couple of three decades is taking a sinister turn, but I would imagine that our founding fathers would probably be proud of the fact that a woman is on the court, probably not possible when it first started as a nation. We have changed as a nation, I think, moving in the right direction. But the thing I like about Judge Barrett is that the constitution was a document written and the words matter, and change comes when the people of the United States have a say about change, not five people. The most important thing we have done today is we’ve ensured that in the future, with Judge Barrett, that the societal changes that people hope and dream about are not excluded, she will redirect them to the process that the founders had in mind, the people making the change, not 5 justices of the Supreme Court. With that, we will conclude the nominating process of Judge Barrett, and I will end where I began, the committee did the right thing.

Senate Judiciary Advances Amy Coney Barrett Nomination Transcript October 22

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