Blumenthal on the Senate Floor Ahead of Supreme Court Vote: Nothing Less Than Everything Is at Stake
[WASHINGTON, D.C] – Today, ahead of a final vote on the nomination of Judge Amy Coney Barrett to be an Associate Justice of the United States Supreme Court, U.S. Senator Richard Blumenthal (D-CT) spoke on the Senate Floor to highlight the fundamental rights at risk by this confirmation.
Blumenthal cited the words of nineteen-year-old gun violence prevention advocate, Tabitha Escalante, in urging his colleagues to consider that “nothing less than everything is at stake.” Blumenthal shared the stories of constituents and Americans who will be harmed if the Affordable Care Act is stuck down; if voting rights are curtailed; if reproductive freedoms are rolled back; and if gun violence prevention measures are blocked.
“The purpose [of this nomination] is to achieve in the courts what our Republican friends and the radical right and the fringe elements of the Republican party couldn’t accomplish in the legislatures. They couldn’t achieve in the state legislatures or in the Congress what they now seek do in legislating from the bench through activist judges that will tilt our entire political system against the majority will,” Blumenthal said.
“The agenda is essentially to constrain and constrict and even cripple the healing and helping power of our federal government under the guise and the smokescreen of originalism. They want to restrict and constrain the vision of an expanding individual right to essential liberties. They want to constrict, instead of expand, an increasingly inclusive America, and that judicial philosophy is what underlies this appointment of Amy Coney Barrett.”
“They want to legislate from the bench and achieve in the courts what they couldn’t achieve in our elected bodies because they are losing in those elected bodies. As Shannon Watts, a leader of Everytown said to me the other day, they are going to the courts not because we are weak in achieving measures against gun violence, but because we are growing stronger and stronger.”
The full transcript of Blumenthal’s remarks is available below.
As august and impressive as this setting is, what’s happening today is not normal. We’ve said it numerous times, but we should say it again because we need to prevent it from becoming normal.
In fact, what’s happening today is sad, surreal, even shocking.
Eight days away from an election, in an unprecedented rush to confirm a Supreme Court nominee, we are taking the place of the next president and the next Senate in confirming the next justice, even as the American people are denied a voice and a say in that decision.
What’s happening here is not normal because our Republican colleagues have explicitly broken their word. We have submitted to the Judiciary Committee quotes from 17 of them promising that there would be no confirmation of a next justice during an election year.
It’s not normal because, in fact, historically no justice has been confirmed after July in an election year.
It’s not normal because we are here in the midst of a pandemic confirming a justice who would potentially decimate our health care system, now, in the middle of a health care crisis.
It’s not normal because the administration has said as recently as Sunday through its Chief of Staff, there’s no control over this pandemic. This abject surrender is shameful and disgraceful.
And it is not normal because the American people have a right to expect from us in this body that we would address that pandemic and that we would pass another pandemic relief bill. It’s passed the House. All we need to do is vote.
And, in fact, on Saturday afternoon I came to the floor with a number of my colleagues and offered by unanimous consent measures that have passed the House by a bipartisan majority, but there was objection to moving forward. My Republican colleague in objecting said, “it’s procedural harassment.” I beg to differ. It’s democracy. It’s democracy to address the needs of the American people.
That is what is normal in the Congress of the United States, or at least it should be.
The fact is that our Republican colleagues are shattering the norms and breaking the rules and breaking their word, and there will be consequences. There inevitably are consequences when one person breaks her or his word to another.
But there’s a larger significance here, which is that Amy Coney Barrett, as a member of the United States Supreme Court, will shift radically and dramatically the balance politically on that court. It is an unelected body with lifetime terms, which is the antithesis of the elected bodies that serve in the United States Congress or the elected president. And this radical shift will shatter the legal fabric of that court.
Now, I know that my Republican colleagues will refuse to acknowledge it. But in fact it’s part of an agenda, a right-wing agenda, that has existed for some time, to move the court to that radical extreme fringe. They have turned the United States Senate into a kind of conveyor belt of judicial appointment, not just to the Supreme Court but to federal courts at every level. Dark money is the vehicle for turning the United States Senate into that conveyor belt.
As we’ve documented as recently as Friday through a report that we produced showing how the NRA has been at the tip of this spear, of a movement involving shell entities making contributions and receiving money and channeling it to members of this body who have confirmed those nominees so that that dark money produces appointees to the federal bench.
Amy Coney Barrett is part of that conveyor belt. She is only the latest of the appointees who threatens to shift not just the Supreme Court, but the federal judiciary radically to the right.
And the purpose is to achieve in the courts what our Republican friends and the radical right and the fringe elements of the Republican party couldn’t accomplish in the legislatures. They couldn’t achieve in the state legislatures or in the Congress what they now seek do in legislating from the bench through activist judges that will tilt our entire political system against the majority will.
And the agenda is essentially to constrain and constrict and even cripple the healing and helping power of our federal government under the guise and the smokescreen of originalism. They want to restrict and constrain the vision of an expanding individual right to essential liberties. They want to constrict, instead of expand, an increasingly inclusive America, and that judicial philosophy is what underlies this appointment of Amy Coney Barrett.
They want to legislate from the bench and achieve in the courts what they couldn’t achieve in our elected bodies because they are losing in those elected bodies. As Shannon Watts, a leader of Everytown said to me the other day, they are going to the courts not because we are weak in achieving measures against gun violence, but because we are growing stronger and stronger.
In fact, there is a grassroots movement composed of Everytown and Moms Demand Action and Students Demand Action, Giffords, Brady, Connecticut Against Gun Violence, Newtown Action Alliance, Sandy Hook Promise – all part of a grassroots movement that is moving America toward protecting against gun violence.
But Amy Coney Barrett has a view of the Second Amendment that she has acknowledged in a speech as “sounds kind of radical.” That’s a quote. Sounds kind of radical. It sounds kind of radical because it is kind of radical, and that radical view is losing in elected bodies and state legislatures and local governments that are moving to protect people from gun violence.
And we see the same phenomenon on health care, on reproductive freedoms, on voting rights. The majority of Americans want to expand the inclusiveness of America and the vision of individual rights and liberties, not roll them back, not turn back the clock to this originalistic textualism that underlies Amy Coney Barrett’s philosophy. She will bring that philosophy to the bench, as she has done on the Seventh Circuit as a member of the Court of Appeals there. That’s the danger and that’s the alarm that we are sounding here.
Now, the Affordable Care Act is about protecting people who have preexisting conditions, but it is also about protecting children who are on their parents’ health care policies until the age of 26, it’s about lowering the cost of prescription drug, it’s about making more widely available health care by providing subsidies to folks who need the help, and it is about banning insurers from charging women more just because they are women.
Pre-existing conditions affect 130 million Americans. In Connecticut 1.5 million residents of our state, 52% of our population. Pre-existing conditions are diabetes, and asthma, heart disease, blood pressure, and now COVID-19.
Yes, COVID-19 is a preexisting condition because of the damage that may be done to lungs, heart, livers, other organs. In the midst of a pandemic of COVID-19, this administration is putting on the highest court in the land a judge who would strike down that protection.
Now, of course, they have a ruse, it’s call severability. My Republican colleagues say, don’t worry, the court can strike down one provision and keep the whole law, or the rest of it in place. Severability. You sever the part that’s unconstitutional. It’s a doctrine of law. But that’s not what the United States District Court held in striking down the Affordable Care Act in the case that is now before the United States Supreme Court. The same case that will be argued on November 10 where Judge Barrett will sit, assuming she is confirmed today. The United States District Court didn’t hold it was severable. On the contrary, it struck down the whole law. The court of appeals for the Fifth Circuit didn’t hold that it was severable.
The Administration is not looking for severability. It says strike down the law. The President of the United States says it couldn’t come soon enough. Eliminate the Affordable Care Act in total, including the protection for people with pre-existing condition. They promised to replace it. The President’s Press Secretary handed to Lesley Stahl after his 60 Minutes interview a supposed plan a replacement which was absurdly a collection apparently of past executive orders, other documents, completely irrelevant and inadequate as a supposed replacement. So this idea of severability is another ruse.
And our Republican colleagues also say our fears are apocalyptic. The Majority Leader used that word yesterday: apocalyptic. Not apocalyptic if you have a pre-existing condition, not apocalyptic if you care about those people who have pre-existing conditions, not apocalyptic if you have lived through the excruciating pain and anguish and anxiety as the Curran family has of having a child with a pre-existing condition.
Let me introduce you to Conner Curran, a 10-year-old – in fact he just celebrated his tenth birthday in Ridgefield, I was with him on that day – who has Duchenne Muscular Dystrophy. I have told his story on the floor in this place numerous times over the course of these past years since I first met him about five years ago.
Conner is a hero. There are few in this body who could claim to have his courage and perseverance at that age – maybe at any age. His smile lights the world.
His courage is matched by his parents. I introduced Conner to Amy Coney Barrett at the hearing because I wanted her to know the impact on real people and real lives, the real harm that would be done if the Affordable Care Act is struck down. Conner has survived this debilitating disease because of treatment that his parents couldn’t have afforded without the Affordable Care Act. It’s that simple.
They wrote to me asking me to make a plea to Amy Coney Barrett. Please don’t take away Conner’s health care. They asked me to ask her to make a pledge. Doctors make this pledge. First do no harm. First do no harm.
I don’t know whether Amy Coney Barrett heard or saw Conner. Of course his poster was there. I told his story. I don’t know whether the impact of that story will move her, but my hope is that it will and my hope is, or was, that it would move my colleagues.
Because the real harm to real people is not only about Conner Curran, this brave boy who will lose his ability to walk and his ability to hug and then to hold hands, to play with his brothers. In spite of all of it, he has demonstrated that perseverance and courage that I hope will move this body, even in this closing hour, to respect the importance of the Affordable Care Act.
Others like Julia Lanzano, who has treatment for a brain tumor because of the Affordable Care Act and countless others who have that kind of treatment are enabled by the Affordable Care Act to do so. And it may seem, to my Republican colleagues, apocalyptic, but not to Conner Curran and his family. Tens of times Republicans in the Senate have sought to repeal the Affordable Care Act. They failed. Now they are trying to do it from the courts, legislate from the bench through an activist Judge like Amy Coney Barrett.
They are rushing this nomination not only to strip away health care from people like Conner, but they also want to end a woman’s right to decide and choose when and whether and how to have a family.
I want to emphasize something to my Republican colleagues that I hope they hear when you take away a woman’s right to make that decision, when you turn women who seek an abortion into criminals, when you make doctors performing abortion guilty of crimes, you don’t end abortion. You make getting an abortion more costly. You make getting an abortion more excruciatingly difficult and most important, you make it more dangerous, literally dangerous.
Hundreds of women died every year seeking unsafe abortions before Roe v. Wade protected their right to choose. I remember that era because I was a law clerk to Justice Harry Blackmun on the United States Supreme Court shortly after he wrote the majority opinion in Roe v. Wade. And we thought the issue was resolved. Women have the right to make that choice legally. But far from resolution what we see is a continued assault on that right.
Now Republicans have stacked the bench with activist judges ready to chip away at reproductive rights and even reverse Roe, chipping away at it through state legislature. Restrictions on clinics, the width of their hallways, the requirement for admitting privileges. We can be sure that victims of rape and incest will be forced to carry an abuser’s child if the restrictions are upheld or Roe is reversed.
If you doubt it, let me introduce you to Samantha.
One night in January 2017, Samantha went out with a few friends and coworkers. She woke up the next morning in a coworker’s home confused, scared, covered in her own blood. She’d been raped. After she was raped, Samantha was in her own words “a zombie.” She just wanted the event to be erased from her memory.
That March, Samantha took a pregnancy test and then another, then another. They kept coming back with the same result, pregnant. After the horrible violence she faced, she simply couldn’t process that she was now pregnant. She chose to have an abortion.
When Samantha shared her story with me, she wrote, “I knew that if I couldn’t end this pregnancy, it would end me.”
Reversing Roe v. Wade will matter for Tracy also from Connecticut, a woman I met, also courageous and honest. Tracy was diagnosed with stage four endometriosis which caused an ongoing inability to have a healthy pregnancy. But she was as she describes it, “one of the lucky ones.” She had access to care and was able to receive in vitro fertilization treatment to assist in getting and staying pregnant.
But Tracy was scared when she saw that a group that sponsored an open letter, signed by Judge Barrett had recently stated that they wanted to criminalize having a child through IVF. In a world without Roe, there will be nothing to protect against the law making it a crime for a woman to do what Tracy did and for a doctor to perform that medical procedure which enables her to achieve a lifetime dream of having a child.
And sadly, we don’t have to wonder what Judge Barrett’s position on a woman’s right to choose will be. She signed a letter calling Roe v. Wade infamous and called for, “the unborn to be protected in law.” That’s her legal view. Her position on the law.I didn’t ask her in the hearing about her personal views or her religious faith. Those issues are private.
Her position on the law, just as she left no doubt about her view of the Affordable Care Act when she wrote that Chief Justice Roberts stretched that measure beyond its true meaning in order to uphold it. I’m paraphrasing. Or said about King v. Burwell upholding the Affordable Care Act, that the dissent had the better of the legal argument. And in another letter signed by Judge Barrett, she called Roe v. Wade’s legacy barbaric.
We know what Judge Barrett will do about the Affordable Care Act and about reproductive freedoms because she has been screened and vetted. There’s no mystery. Donald Trump has said he would impose a strong test, his words, and that strong test was to strike down the Affordable Care Act and overturn Roe v. Wade.
We cannot go back.
We cannot roll back these rights.
We cannot turn back the clock to an America that banned abortion in many states, drove it underground, made vital health care services dangerous and even deadly.
We can’t go back to an America where the rich and privileged can find a way out of unintended pregnancy, but the rest of America is denied that access to health care.
There is a racial justice element here because the ones who will suffer predominantly and disproportionately are women of color, women of lesser means financially, who live in those states and cannot travel to others like Connecticut where Roe v. Wade is codified in statute, when I was in the state legislature as a state senator. I helped to lead that effort to codify it in statute. But Connecticut’s law won’t help a woman in Texas or Louisiana who is denied that right.
And make no mistake, this threat is not some abstract hypothetical notion in the future. Some apocalyptic vision of what might happen in the United States of America. We are one step away.
In fact, there are 17 abortion-related cases that are literally one step away from the United States Supreme Court.
There are cases like SisterSong Women of Color Reproductive Justice Collective v. Kemp, a case currently before the 11th Circuit involving a challenge to a ban on abortion as early as six weeks into pregnancy before many women even know they’re pregnant.
There are cases like Memphis Center for Reproductive Health v. Slatery, a case challenging an escalating ban on abortions at six, eight, ten, 12 and so on weeks into pregnancy, depending on where the Sixth Circuit deems it appropriate for a woman to lose the right to choose for herself when and whether to have a child.
There are additional cases involving bans on abortion later in pregnancy when women can face the most severe health risk and rely on their doctors for accurate information and compassionate care. There are, quote, reason-based bans that merely exist as a pretext for interrogating and intimidating women who seek an abortion.
There are cases like Planned Parenthood Gulf Coast v. Rebekah Gee which challenge years of inaction by the State of Louisiana on a Planned Parenthood affiliate’s application for a license to provide needed abortion care.
And there are other challenges to red tape laws that require abortion providers to jump over obstacles, needless, senseless hurdles that serve no medical purpose, but exist just to burden them and make necessary abortion services harder to obtain. And numerous other abortion laws designed to limit access, strictly to limit access in the supposed name of health care.
Access to reproductive health care is already hanging by a thread in many states across the country. Judge Barrett’s nomination imperils the access that remain.
These cases are one step away from the highest court, at least 17 of them. One step away from the court that Amy Coney Barrett will join.
Reproductive rights are not the only rights at stake in this nomination. Voting rights hang in the balance as well.
For years Republicans have decided that they’re willing to suppress the vote if it helps them to win election. This fundamental assault on our democracy has taken many forms, and we’ve seen them across the country as recently as this election, ongoing in real time. Republican appointed judges have worked with Republican elected officials to allow suppression action to take effect and be sustained.
These judges proclaim themselves to be originalists, but they betray provisions of the Constitution, the 14th and 15th Amendments that our ancestors fought a civil war to secure. Equality and the right to vote.
The Civil Rights movement a century later secured the passage of the Voting Rights Act and made those rights real for many Americans. People marched, some died, to pass that law.
But this conservative Supreme Court betrayed the legacy of Lincoln, Martin Luther King, John Lewis when it gutted the voting rights act in the Shelby County case. And this court continues to attack voting rights, and it will continue under Amy Coney Barrett.
Howard Porter, Jr., a black man in his seventies with asthma and Parkinson’s disease was a plaintiff in one of those cases decided just this month. Howard simply wanted to be able to cast his vote safely without contracting COVID-19. He wrote to the court that, “so many of my ancestors died to vote, and while I don’t mind dying to vote, I think we’re past that.” We’re past that time.
On a partisan vote the conservatives on the Supreme Court disagreed. Amy Coney Barrett will join them.
And rushing this nomination on the eve of the election means that she will join them possibly to vote on the election itself while on the court.
Is that view apocalyptic? Not if you believe Donald Trump who said the reason why he wants a ninth justice is to decide the election, not the voters, the Supreme Court. He said the quiet part out loud and so did a number of my colleagues in our Judiciary Committee meeting. He said this election will end up in the Supreme Court, and I think it’s very important that we have nine justices.
And when I asked Amy Coney Barrett if she would recuse herself from a case about this election as a result of these comments, she refused to answer or commit. I call on her to postpone her taking the oath of office until after the next president is inaugurated. Why not remove any doubt about conflict of interest, any question about the legitimacy of whatever decision may be necessary by the Supreme Court by postponing her investiture? I ask her to make that commitment. And for my colleagues to join in that call and for the president to respect it.
So this nomination is not just about health care. It’s also about the assault on a woman’s right to choose, on voting rights, and it’s about whether governments can enact reasonable, sensible gun violence protection laws to keep America safe.
I want to tell you finally about Natalie Barden. Natalie is eighteen years old. She was ten when her little brother Daniel was killed at Sandy Hook Elementally School in Newtown, Connecticut, on December 14, 2012. Daniel was seven at the time. He was one of 20 innocent, beautiful children and six great educators who were killed that morning.
I was at the firehouse not long after. I witnessed the unspeakable grief and the faces of parents and families whose children were gunned down, families who realized that some of those children were not coming home.
Eight years later Natalie says that her grief is still real and her crusade for gun violence prevention measures inspires me. So does the work of her parents and other families there in Newtown and across the country, survivors I have met, families I have come to know and respect and admire.
What happened at Sandy Hook, sadly, was not ab isolated incident. It’s part of a public epidemic, a scourge, a public health menace of gun violence. In the last ten years gun violence has taken more than 350,000 lives in urban communities, rural communities and every community in between. No community is immune. None of my colleagues’ colleagues communities can claim they are immune.
And Judge Barrett’s view of the Second Amendment that it would give felons, for example the right to buy or possess firearms, that it would put the burden on the government to prove they are dangerous, a view that she acknowledges “sounds kind of radical” would potentially result in striking down the laws that Natalie has crusaded to achieve, that Janet Rice of downtown Hartford, who lost her son Shane, believes can help save lives.
Because in fact those gun violence prevention measures can save lives. Universal background check, closing the Charleston Loophole, Ethan’s Law, named after Ethan Song who perished because of an unsafely stored weapon. These measures can help save lives. A ban on ghost guns, untraceable because they have no serial number, a ban on high-capacity magazine. These laws can help save lives, but with Amy Coney Barrett’s nomination, every single gun violence prevention measure at every level of government is in grave peril because she will join others on that court who believe with her in this radical agenda of striking down those measures.
As Tabitha Escalante of March For Our Lives said to me the other day: nothing less than everything is at stake. Because again there are case one step away, literally one step away from the highest court, including Duncan v. Becerra where Judge Kenneth Lee, on the Ninth Circuit, became the first Trump-nominated judge to rule that a ban of a high-capacity weapon violated the Second Amendment. That outlier opinion flouted the unanimous consensus of other federal appeals judges that have upheld large-capacity magazine bans in their state. And there are numerous other cases that involve measures that help save lives. One step away from being struck down.
My Republican colleagues have the majority. They may have the votes to push this nomination through today, but they don’t have the American people and they don’t have history on their side. They are doing it because they can, because they have the vote.
But Americans can do something to. They can vote. They can show they want gun violence protection measures and reproductive freedoms and the Affordable Care Act and voting rights and workplace safety. They don’t want an America that rolls back to an originalistic view, a smoke screen that constricts rights and liberties.
There is something larger than just one justice and one vote at stake here. Nothing less than everything is at stake. A shift in the balance of the court that will last for decades if we do not act to correct it, and believe me, there are appropriate measures that should be considered.
The American people have the power in this election to speak out and stand up to protect their own health, the public health and the health of our democracy. I fear for the Supreme Court’s legitimacy. I revere the Supreme Court, having argued before it, having clerked on it. Its legitimacy depends on faith and trust.
We must act to restore the credibility and legitimacy of the court, which has been so gravely imperiled.
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