Judge Barrett’s Confirmation and the Stakes for the American People

Remarks on the Senate Floor

Before I begin my remarks about the nomination, I want to acknowledge that tonight, as we’re here, there are fires in many places across the state of Colorado. There are people that are out of their homes, out of their communities, that have had to evacuate their towns, and there are first responders on the ground in Colorado who are fighting these fires bravely every single day. They have been stretched all summer through a fire season that’s lasted into the fall because of our inability to deal with our forests and because of climate change.

And my hope tonight, as we’re here, is that the snow that’s fallen is going to be more of a benefit than a curse to everybody who’s out there. So, with that, I thank the president for recognizing me and I now am going to give my remarks about this confirmation.

When I was in law school, Mr. President, which wasn’t really that long ago, the confirmation of a Supreme Court justice was a chance for the American people to learn about our system of checks and balances, our commitment to the rule of law, and, in particular, the independence of judges.

And whenever the Senate confirmed a justice with an overwhelming, bipartisan vote — as it did, almost every time — it reaffirmed that independence and reassured the American people that our courts were protected from the political influence — that they stood apart from the partisanship of the other two branches of government.

As we meet here tonight, after 20 years of descending into intensifying partisanship in the confirmation of judges, the Senate is now about to drag the Supreme Court down to its own decadent level by turning it into just another politicized body, distrusted — for good reason — by the people it’s meant to serve.

It is common these days, Mr. President, to observe that our institutions are failing; I’ve said it myself. But institutions don’t fail on their own. They can’t destroy themselves; it takes people to destroy them.

And it particularly takes leaders who have no inclusive, long-range vision for our country, or our democracy. Leaders who can’t or won’t think beyond narrow, short-term interest. Leaders, I am sorry to say, like Leader McConnell.

He may imagine, Mr. President, as he claims, that he is simply restoring the “judicial calendar” to a pre-filibuster era. That’s what he tells his colleagues here when he recounts the story. The Majority Leader — more than any other actor — has transformed what used to be the overwhelming bipartisan confirmation of a qualified nominee — and a bipartisan ratification of the independence of the judiciary — into an entirely partisan exercise that has destroyed the Senate’s constitutional responsibility to advise and consent and is now at risk of destroying the credibility of the Supreme Court and the lower courts as well.

This may not matter much, I suppose, to the Senators on this floor; it matters to the American people who have not consented to the destruction of their constitutional right — to an independent judiciary free from the partisan insanity of elected politicians.

In this confirmation proceeding, Mr. President, the majority renounced its duty to advise and consent by giving their consent before the President ever chose a nominee. I don’t believe that’s ever happened in the history of America. Ours is a Senate — ours is a Senate, Mr. President — where words have lost their meaning; party advantage dictates every action; shameless hypocrisy is the stuff of proud triumphs; deliberation is no longer necessary because conclusions are all foregone; and a decision — like that affirming Judge Barrett to a lifetime appointment to the most powerful court in the nation — is anything you have the power to cram down the throats of your political opponents.

The truth is this confirmation process has never been a debate — it has never been a debate about what the Senate should do, about what the Senate ought to do, what the right thing to do for the Senate is. It has always been a demonstration of what the Majority can get away with — of how they can exercise their power, in order to entrench their power.

I have no expectations that my words are going to change the result tomorrow. My hope, Mr. President, is that we can mark this as the moment that the American people said enough and began to reclaim their exercise in self-government from those who have worked relentlessly to deprive them of it.

To do that, we have to be very clear about what this moment means and what it calls on each of us to do in the days, months, and years ahead.

The truth is this confirmation is the latest victory for an unpatriotic project that traces back to the earliest days of our country.

Since our founding, there have always been factions working toward an insidious purpose: To so degrade and discredit our national exercise in self-government that when the American people throw up their hands in disgust these factions can distort it into an instrument for their interests, instead of the public interest.

Today, the Senate Majority Leader, Mitch McConnell, represents one such faction, joined by the Freedom Caucus in the House of Representatives, President Trump, and the legion of deep-pocketed donors and PACs assembled behind them.

Because factions like this one have a tough time winning broad support from the American people for their agenda, they seek other, less democratic means to secure their power: gerrymandering, voter suppression and, in this case, cramming a nominee onto the Supreme Court during the fleeting days of a failing, unpopular administration.

Over the years, earlier versions of these factions have obscured their project with terms like state’s rights, originalism, freedom, and with dubious claims like separate but equal — essentially, turning American words against the American people.

We saw it in the 1890s, when the Supreme Court invoked “freedom” to strike down laws that would have let workers unionize, establish a minimum wage, prohibit child labor, and create a progressive income tax.

We saw it, most infamously, in Plessy vs. Ferguson, when the same Court hid behind equality to justify segregation.

We saw it in 1905, when the Supreme Court perverted the Fourteenth Amendment — the amendment meant to guarantee the protection of the law for those most vulnerable in our society — to invent a “liberty to contract,” so that bakeries could freely force people to work more than 60 hours a week. Just a few years after that ruling, 145 workers burned alive at the Triangle Shirtwaist Factory after their employer took the liberty of locking them inside.

We saw it in the 1930s, when the Supreme Court rewrote the Commerce Clause in a failed attempt to eviscerate the New Deal, FDR’s historic effort to build an economy that lifted everyone up, not just those at the very top.

We see it in our time, in Citizens United, Shelby, and other rulings when the Supreme Court has asserted the right of billionaires and other privileged interests to corrupt our democracy, while denying the American people’s right to defend it.

And we see it in Judge Barrett’s adherence to “originalism,” the spurious legal doctrine that’s been knocking around in the Federalist Society and other circles of far-right lawyers since the 1970s.

By claiming to stick to an 18th century understanding of the Constitution, originalism deceptively implicates Madison, Hamilton and the rest of the Framers in any number of legal arguments — as if they intended the Second Amendment to permit bump stocks or the interstate commerce clause to forbid environmental protections — while foreclosing on legislative innovation here and now in the present, because the men who gathered in Philadelphia to draft the constitution, who could not recognize that slavery should be outlawed or that women should have the right to vote, could also not foresee the need to prohibit child labor or require food labels to tell the truth.

It is no surprise to me that the originalists and the Tea Party-right have embraced shared hagiographies. They are stealing the authority of the Founders in an effort to conceal their reactionary project.

And while the specific aims of these factions have changed over time, their project has remained the same — to protect their power and call it freedom: freedom to enslave; freedom to segregate; freedom to pay workers less than they can live on; to work them to death; to fire them because of what they believe or whom they love; to redline our neighborhoods; poison our skies; defund our schools; and buy our elections.

At all times, though, their goal has been to preserve, as Professor Jefferson Cowie puts it, the freedom to dominate others — not only to cement their power, but to demolish the economic opportunity and civil rights that would otherwise empower their fellow Americans.

Why would they do this? Because in truth, the original promise of America — that it would be a society in which all people are created equal, endowed with equal rights — terrifies them.

The consequences for our country and for its citizens who do not benefit from this project are plain. It batters our political and economic equity, security, and opportunity. It degrades our democracy. It robs from the future American generations by hoarding wealth today.

This confirmation is their latest ill-gotten victory.

Judge Barrett’s nomination comes to this floor on a path cleared by the same deep-pocketed donors and corporations that have worked for decades to protect their power, regardless of the costs to the American people and their security, well-being, and civil rights.

And based on everything I’ve learned about Judge Barrett’s record, I fear she will become one more predictable vote for that agenda.

In her tenure on the Seventh Circuit, Judge Barrett sided with corporations in 85 percent of her business-related cases.

She’s sided with employers accused of discriminating by race.

She’s sided with employers accused of discriminating by age.

She’s sided with debt collectors over consumers.

She voted to block compensation for victims of a compensation fund.

She’s voted against gig workers fighting for overtime.

The pattern is clear: When consumers and workers sought the protection of the law, or the government, she stood in the way.

I worry that, once confirmed, she will continue that pattern with rulings to destroy hard-won protections for the American people.

Rulings to cripple agencies that keep our air and water clean, our food and drugs safe, and our families protected from scammers trying to rip them off.

Rulings to make it harder for Americans to choose how and when to raise a family or marry the person they love.

Rulings to make it easier for felons to buy guns and harder for us to hold gun makers accountable when their weapons kill and maim our children in their schools and on our streets.

Rulings to block any effort by the American people to fight the voter suppression, to fight the dark money and the partisan gerrymandering corrupting our democracy.

And finally, I worry she will cast the deciding vote to destroy the Affordable Care Act and strip health care from millions of people in Colorado and across the country for whom this is literally a matter of life and death.

Judge Barrett’s confirmation will cement a 6–3 majority on the Court that will allow the powerful to do what they want, while standing against the American people’s efforts to protect one another, to support one another, and to invest in each other through our democracy.

That is where we are. That is where we are. And as dispiriting as this moment may be, we have been here before as a country.

We are not the first generation of Americans to face a Senate or a Supreme Court that will stand with the powerful against the people. We are not the first citizens to run into a wall of obstruction as we work to make this country more democratic, more fair, and more free.

We have to learn from the examples of those who came before us. Those who answered slavery with emancipation and Reconstruction; a Gilded Age with a Progressive Era; a Great Depression with a New Deal; Jim Crow with Civil Rights.

As it was for them, so it is for us to meet the challenges of our time. And unlike the forces that have brought us to this low point, we have a much harder job, because we have a far greater purpose.

Theirs has been to grind our democracy into rubble. Ours is to build a strong foundation for the American people and the next generation.

The American people need us to begin building that foundation now. They have already paid enough for a government that fails to fight on their behalf: 50 years when 90 percent of families haven’t had a pay raise; the worst income inequality since 1928; people working harder and harder than ever before, but whose families are sliding farther away from the middle-class. And now, and now, a national government paralyzed by ineptitude, incompetence, indifference, and basic scientific ignorance, that’s led to thousands of needless deaths of our fellow citizens and pushed millions of families and businesses over the brink.

We must end this era, and replace it with a more honorable commitment to competent and imaginative self-government responsive to the American people’s needs.

Their wishes are more than fair.

They want a wage they can live on.

A health care system that no longer reduces — routinely reduces — families to tears, with options they can actually afford and count on when they need them.

Schools that create possibility and opportunity and colleges that leave students with more than just crippling debt.

The chance to care for a new child or a sick family member without having to quit a job or lose their pay.

Safe communities where parents no longer have to worry about their kids being shot.

Criminal justice and law enforcement and immigration systems that don’t treat people differently because of the color of their skin.

Roads, and bridges, and airports that weren’t built by their grandparents.

Broadband that works at home so kids don’t have to go to school in Walmart parking lots in this country tonight.

An urgent and durable answer for climate change, so the next generation doesn’t inherit a planet hurtling toward incineration.

None of this is unreasonable. All of it is achievable. And we can start with the coming elections.

But that’s only the beginning of the fight.

I can assure you that the same faction that was willing to enlist every parliamentary gimmick, or deploy any oratorical sleight of hand, or commit any act of institutional arson in service of someone like Donald Trump, will continue to do whatever they can get away with in this body.

They’re not going to stop. They have spent decades, and billions in dark money, exercising their power to entrench their power. They will not abandon this project in a single election. And we’re going to have to overcome that, just as we’ll have to overcome this Supreme Court.

It won’t be easy. It won’t be easy, but anyone who’s studied the history of our country, our democracy, knows how hard it is to make progress. It’s never easy.

Time and again, Americans have breached the ramparts of undemocratic power.

It happened in 1848 in Seneca Falls, when 100 people, mostly women, signed the Declaration of Sentiments.

It happened outside the Stonewall Inn in 1969, when thousands stood up to police abuse of the city’s LGBT citizens.

It happened when Cesar Chavez lifted the plight of America’s farmworkers, and Corky Gonzalez gave voice to the history and stifled pride of a people.

It happened in 1965 when 2,500 citizens crossed the Edmund Pettus Bridge on the way to the Alabama capital city of Montgomery.

Each time a few brave citizens have advanced upon the works of despotism, their fellow Americans joining them, because they, too, longed for a better country.

Perhaps this summer, we crossed this generation’s Edmund Pettus Bridge, when, fatigued by still-unending months of disease; ashamed by Donald Trump’s embrace of white supremacy and his failing efforts to make the United States look like a police state; forced to reckon again with the brutal and systemic racism of our justice and law enforcement system — Americans decided they could no longer stand a country on such terrible terms.

Or perhaps, this generation’s Edmund Pettus Bridge is still before us, unknown, but there, for those who will do their part to bend the moral arc of the universe.

But we must cross this bridge. I hope sooner rather than later, Mr. President.

Like our forebearers, we will cross it only by pursuing ideas so compelling that Americans will fight for them to make a real difference in their lives.

As always, our march won’t begin in the chambers of the Senate. But when Dr. King, John Lewis, and the many who joined them crossed their generation’s bridge, the Senate eventually followed and broke the segregationist stranglehold on this body.

Rather than turn his back on what was obviously right, the Republican Leader, Everett Dirksen, joined his Democratic counterpart, Mike Mansfield, to lock arms in support of the Voting Rights Act of 1965. The segregationist filibuster withered in the face of noble, bipartisan majorities.

When our time comes once again in the Senate to cross the Edmund Pettus Bridge, we will have to muster the discipline to stand behind an agenda that will endure, one sturdy enough for a project of our own.

And if we do our job, my hope is that, 50 years from now, our kids and grandkids will look back with gratitude that we built on this foundation a house that they and their children love to live in — an America that is more democratic, more fair, and more free.

Remarks as delivered on the Senate floor on October 25, 2020.



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