October 25, 2020

Feinstein Speaks Against Barrett Nomination

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today delivered remarks on the Senate floor against the Supreme Court nomination of Judge Amy Coney Barrett.

Video of her remarks is available here.

“Just over a month ago, our country lost Justice Ruth Bader Ginsburg, a leading voice for equality and fundamental rights.

Justice Ginsburg’s nomination was the first that I participated in when I came to the Senate 28 years ago. At her hearing, I had the opportunity to thank her for all she had done and for all she had yet to do.

Before she was confirmed to the bench, Justice Ginsburg played a critical role in breaking down barriers for women.

During her confirmation hearing, she staunchly and forthrightly defended her positions as an advocate for equality, including her own support for a woman’s fundamental right to control her own body – the core holding of Roe v. Wade.

Once confirmed to the court, Justice Ginsburg worked tirelessly to ensure that the opening words of our Constitution, ‘We the people of the United States,’ included all people – not just the elite few.

So the stakes are extraordinarily high in confirming a replacement for Justice Ginsburg in the best of circumstances. But for Republicans to proceed now, just eight days before an election, undermines the integrity and independence of the vote.

Senate Republicans are breaking their own statements and promises by proceeding.

In February 2016, Republicans refused to consider a replacement for Justice Antonin Scalia because it was an election year.

They blocked all consideration of President Obama’s nominee, Judge Merrick Garland, claiming that the American people should have the opportunity to weigh in on a Supreme Court vacancy.

Leader McConnell clearly stated the Republicans’ position: ‘My view, and I can now confidently say the view shared by virtually [everybody] in my conference, is that the nomination should be made by the president that the people elect in the election that’s now underway.’ Well, that’s clearly not going to happen.

Chairman Graham, in 2018, reiterated this standard, promising that, ‘If an opening comes up in the last year of President Trump’s term and the primary process has started, we’ll wait till the next election.’

But when Justice Ginsburg passed away just 46 days before Election Day, Senate Republicans did not hesitate to go back on their word.

On the night of Justice Ginsburg’s death, Leader McConnell announced that President Trump’s nominee for the vacancy would receive a vote on the Senate floor.

And Chairman Graham immediately set committee hearings for October 12, giving the committee just two weeks to review Judge Amy Barrett’s record. This proved to be insufficient, as evidenced by Judge Barrett’s failure to identify and disclose significant amounts of material.

Then, before Judge Barrett’s hearing had even concluded, Chair Graham held a markup on her nomination and more rules were broken by setting a committee vote on her nomination for 1 pm the following week.

I, along with the Democratic side, refused to take part in that committee vote, but this was not a decision that we made lightly. We were not willing to participate any further in a process that was used to rush this nominee forward in the middle of this election.

Despite our objections to proceeding, Democrats demonstrated through the course of Judge Barrett’s nomination hearings what’s at stake with her nomination – starting with Republican statements to use the Supreme Court to dismantle the Affordable Care Act and strip away healthcare coverage for millions of Americans.

 On November 10, the Supreme Court will actually hear oral arguments in a case titled California v. Texas, that’s a case challenging the validity of the Affordable Care Act.

President Trump promised to appoint justices who will vote to dismantle this landmark law. In 2015, he stated: ‘If I win the presidency, my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.’

When he nominated Judge Barrett to fill Justice Ginsburg’s seat, President Trump stated that eliminating the ACA would be a ‘big WIN for the USA.’ And even more recently, in an interview with 60 Minutes, President Trump said he ‘hopes’ the Supreme Court will strike down the ACA and he believes ‘it’ll be so good if they end it.’

Let us not forget, after all, that Justice Ginsburg joined a 5-4 majority when the Supreme Court upheld the ACA against Republican-led challenges in NFIB v. Sebelius and King v. Burwell.

Like President Trump, Judge Barrett has criticized the upholding of the ACA in NFIB v. Sebelius. She stated that Chief Justice Roberts ‘pushed the Affordable Care Act beyond its plausible meaning to save the statute.’

She also cast doubt on the chief justice’s opinion in King v. Burwell and said that he departed from the ‘clear text’ of the statute to avoid gutting it. She likewise claimed that the dissent had the ‘better of the legal argument.’

At her confirmation hearing, Judge Barrett did not answer questions about her view of the ACA and did not meaningfully walk back her criticism of these two 5-4 Supreme Court decisions upholding the law.

She also implied that coverage of pre-existing conditions is not an issue in California v. Texas. However, the Trump administration is directly asking the court to strike down the entire Affordable Care Act, including its protections for patients with pre-existing conditions.

Let me be perfectly clear: I believe if Judge Barrett is confirmed, Americans could well lose the significant benefits that the Affordable Care Act provides. More than 130 million Americans have pre-existing conditions like cancer, asthma or even COVID-19, and they could then be denied coverage.

At Judge Barrett’s hearing, we heard the stories of real Americans who will be harmed and who illustrate what’s at stake.

This included a constituent of mine, Krystyna Munro Garcia, who because of the Affordable Care Act received cataract surgery that saved her eyesight.

It included North Carolina mom Stacy Staggs, who testified that the Affordable Care Act has ensured her twin girls receive the lifesaving treatments they need.

And it included Dr. Farhan Bhatti, a family physician working with low-income patients in Lansing, Michigan, who told the committee that opposition to the ACA ‘endangers a lifeline that my patients count on to stay healthy, and in many cases, to stay alive.’

I deeply believe that Senate Republicans should not be moving forward on a justice who will likely help strip health care from millions of Americans, particularly in the middle of a global pandemic that has already taken more than 225,000 American lives.

Judge Barrett also represents a threat to women’s reproductive rights. President Trump has told us so when he promised to appoint justices who will ‘automatically’ overturn Roe v. Wade.

And Judge Barrett has made clear that she would likely be the court’s most extreme member on reproductive rights.

At her hearing, she refused to state whether she agreed with the landmark case Griswold v. Connecticut, which established the right to use contraceptives. In addition, she would not affirm whether Planned Parenthood v. Casey, which upheld the constitutional right to abortion established in Roe, was settled law.

And she stated outright that Roe is not a superprecedent, indicating time and again that continued efforts by anti-abortion activists would provide the Supreme Court ample future opportunity to further limit or overturn Roe entirely.

Now, this was a surprising departure from the last four Republican nominees who acknowledged at their hearings that Griswold is in fact settled law and that Roe and Casey are in fact important precedents of the court.

Beyond these specific examples, Judge Barrett’s view of precedent itself poses a continued threat to countless rights that Americans rely on and cherish.

As an academic, she wrote that it is ‘more legitimate’ for a justice to ‘enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.’ Essentially, what that states is that she will feel free to overrule precedent that she believes conflicts with her interpretation of the Constitution.

Judge Barrett’s record also raises grave concern about how she would rule on cases involving voting rights and core democratic norms.

In her dissent in the 7th Circuit case Kanter v. Barr, Judge Barrett suggested that voting rights are entitled to less protection under the Constitution than the right to own a gun.

She distinguished between the ‘individual right’ to own a gun and the ‘civic right’ to vote. She argued that a felony conviction should not necessarily result in the loss of the right to own a gun, but emphasized that it may result in the loss of the right to vote.

She even refused to say whether [voting] discrimination exists, even after being informed that Chief Justice Roberts wrote: ‘Voting discrimination still exists; no one doubts that.’

And despite President Trump’s statement that he plans to challenge the results of the election in the courts if he loses and that he wants his justice seated in time to hear those challenges, Judge Barrett would not commit to recuse from cases related to the upcoming election.

In addition, Judge Barrett’s evasiveness at her hearing was deeply concerning. She refused to answer over 100 questions – not 10 or 20 or 30 or 40, but over 100 questions – including basic legal and factual questions.

Let me give you an example:

  • Judge Barrett refused to confirm that the Constitution prevents a president from delaying an election. That’s a hint.

  • She declined to answer whether federal law prohibits voter intimidation.

  • She would not affirm that Medicare is constitutional.

  • She even hedged on whether presidents should commit to a peaceful transfer of power.

  • And she would not acknowledge the existence of climate change.

Judge Barrett’s silence on these major questions really speaks volumes. It demonstrates that a Justice Barrett will not be willing to stand up for core American values and rights and raises additional concerns about her willingness to act independent of President Trump.

In closing, it is my belief that Judge Barrett represents a threat to the very rights – including reproductive rights, rights of LGBT individuals and voting rights – that Justice Ginsburg worked so hard to protect.

And for those reasons, I oppose her nomination and urge my colleagues to do the same.”

###