Sen. Coons: A Justice Barrett May Well Cast Deciding Vote to Overturn Obamacare

Senator Chris Coons (D-Del.), a member of the Senate Judiciary Committee, spoke about his concerns regarding the nomination of Judge Amy Coney Barrett on the final day of her Supreme Court confirmation hearings.

On the Affordable Care Act, Senator Coons said, "Judge Barrett as Justice Barrett may well cast the deciding vote to overturn the Affordable Care Act, with potentially disastrous consequences for a majority of Americans. Meanwhile, the Trump Justice Department has joined a challenge to the ACA that is back in front of the Supreme Court to be argued just a few weeks from now before the Supreme Court on November 10th."

On the timing and context of Amy Coney Barrett's nomination, Sen. Coons said, "This is an unprecedented context and with unprecedented speed. You don't convene a Supreme Court confirmation hearing in the middle of a pandemic while the Senate is on recess, while voting has already started in a presidential election in a majority of states, because we are simply concerned about abstract ideas or the neutral application of law."

On Barrett's refusal to commit to recuse herself given a disputed election, Sen. Coons said, "I thought nothing was stopping Judge Barrett from making a commitment to recuse herself given what President Trump has said and was gravely concerned she did not."

On pandemic relief concerns, Senator Coons said, "My hope is that we will get back to the work of trying to deliver the relief - small businesses, Americans, those unemployed, those infected - desperately need. I've worked hard to bring the voices of real Delawareans into this discussion because it is easy to miss in the seemingly abstract conversations about things that really matter to lawyers."

Sen. Coons concluded, "I will not be voting to confirm Judge Barrett to the Supreme Court but I frankly think we should not be taking this vote, we should not be proceeding today. We should instead be turning to the urgent business of protecting the American people and ensuring the safety and security of our election and keeping our word."

Full video is available here (https://www.youtube.com/watch?v=kNJnVkNuuJM&feature=youtu.be). A transcript is provided below.

Sen. Coons: Thank you, Mr. Chairman. Today my constituents from Delaware are asking the same thing they've been asking for weeks. In this particular context, the question is, and I got one just while we were sitting here: why is the Senate Judiciary Committee meeting to race through your process and this confirmation when the Senate itself isn't in session? I was delayed a few minutes this morning because I went and got tested for COVID by the Senate physician so that I can return with some confidence to my family this evening that I haven't picked it up while here.

The Senate of the United States is not in session because we have an outbreak amongst senators and I'm not confident we've provided for senators, for staff, for the White House, frankly for the American people. My whole state is just 900,000 people, and how many people filed new unemployment claims [nationally] last week? Almost exactly 900,000 people.

My hope is that we will get back to the work of trying to deliver the relief - small businesses, Americans, those unemployed, those infected - desperately need. I've worked hard to bring the voices of real Delawareans into this discussion because it is easy to miss in the seemingly abstract conversations about things that really matter to lawyers, like the Dormant Commerce Clause, and I look forward to our long delayed debate on that, Senator Lee. Conversations about originalism, precedent, stare decisis, about what is or isn't, the precedent either for this committee, for confirmations, or for the Supreme Court, can lead to millions of Americans struggling in the middle of this pandemic and the recession that I would argue is made worse by the bungled mishandling of this pandemic by our president, a little cold. I am gravely concerned, Mr. Chairman, that you and the majority are standing on the edge of a precipice of pushing through a nominee in a way you yourself said was unthinkable two years ago in the last days of the last quarter of this presidency. We are 19 days from the presidential election. A majority of states are voting. People stood outside for 10 hours in Georgia yesterday. That's the good news. I think they are that determined to vote. We heard repeatedly from the nominee that she has no agenda. But I'll tell you the agenda of President Trump in choosing her and the agenda of the Republican majority in racing forward with this confirmation. That is clear. My colleague from Illinois said that this process has turned into something that your average American has real trouble discerning what's going on. We keep asking earnest questions and the nominee keeps declining to answer them in any substantive or meaningful way and we do have to ask ourselves: is there any path towards getting a confirmation process in this body back onto a real and a rational footing? We are about to have a vote in this committee, and that's why I will support my colleague from Connecticut's motion where we haven't even heard from the last panel of witnesses today.

We haven't even heard responses to the questions for the record. This is an unprecedented context and with unprecedented speed. You don't convene a Supreme Court confirmation hearing in the middle of a pandemic while the Senate is on recess, while voting has already started in a presidential election in a majority of states, because we are simply concerned about abstract ideas or the neutral application of law. And you don't mangle and mishandle my predecessor and attribute to him some rule and then restate that rule as the McConnell rule and then ignore it and then state up and down and down is up when nothing could be further from the truth. This is not on the level. You don't go against your own promise after you've already claimed as a matter of high principle, justices shouldn't be confirmed in [an] election and after you've already blockaded a centrist, competent, highly qualified nominee for exactly that reason because you solely care about methodology. This is about the president's disastrous response to a pandemic and a decade-long unfilled pledge embodied in one party's platform to overturn protections for a majority of Americans in the middle of a pandemic. As my Democratic colleagues and I have been working, laboring to lay out, there will soon be, if Judge Barrett is confirmed, a hard turn to the right on the Supreme Court. A change in methodology, a change in approach, a change in principle that will have practical, pragmatic and lasting consequences for the majority of Americans.

After studying Judge Barrett's record, I'm convinced she would come to the Supreme Court with a deeply conservative originalist philosophy and a judicial activism with regards to precedent that would put numerous longstanding rights the American people have come to rely on and hold dear in nearly every aspect of modern life at risk. Simply put, I believe she will open a new chapter of conservative judicial activism unlike anything we've seen in decades. First Judge Barrett as Justice Barrett may well cast the deciding vote to overturn the Affordable Care Act, with potentially disastrous consequences for a majority of Americans. Everyone watching at home has heard my colleagues say that for the last ten years, their top priority has been repealing the ACA and every single Republican senator on this committee has talked publicly, repeatedly about their desire to get rid of that law at some point previously. So, too, has President Trump. Despite their best efforts, they have so far failed to do so here and in my view, have failed to advance a credible alternative plan for how to deal with pre-existing conditions and give them lasting protection. So now I think the last-best shot for accomplishing this goal is at the Supreme Court. That's where Judge Barrett comes in. As she conceded during our questioning, our exchange, Judge Barrett has written in no uncertain terms she thinks Chief Justice Roberts got it wrong in his ruling upholding the law against the constitutional challenge. She wrote that article in early 2017 and months later found herself on President Trump's shortlist for the Court. Meanwhile, the Trump Justice Department has joined a challenge to the ACA that is back in front of the Supreme Court to be argued just a few weeks from now before the Supreme Court on November 10th. President Trump and his administration are arguing in no uncertain terms the Court must tear down the entire law. Now my colleagues have said this is fear mongering, this is baseless political theater. But to anyone who thinks this challenge is farfetched, just read the brief, just read the brief filed by the solicitor general of the United States or the one filed and co-signed by 18 Republican attorneys general.

Most importantly, consider what our president himself has said about what he expects from his judicial nominees. He lashed out at Chief Justice Roberts over and over for his decision upholding the Affordable Care Act and pledged as a candidate, his nominees would do the right thing and overturn the law. It isn't just the ACA that's on President Trump's agenda for the Court. He's made clear he wants to overturn the ACA, he wants to overturn Roe v. Wade, and most concerning to me, he has repeatedly made statements that expect his nominee to hand him the election if there is a dispute in the courts. As I made clear in my exchange with Judge Barrett, I am not suggesting that she is engaged in any inappropriate conversations or commitments with the president. That's not at all what I'm saying. It was the president's conduct himself that has put this issue in front of the American people. His repeated undermining of the credibility, safety, and security of our election should be alarming to all of us. His refusal to commit to a peaceful transfer of power and to respect the results of the election should give all of us concern, those who pledged to uphold and defend the Constitution under all circumstances.

Judge Barrett also steadfastly refused to answer whether she believed Scalia was correct in his criticism of Griswold v. Connecticut, a case decided when I was just 2 years old that protects the right to use contraceptives in the privacy of one's home and is an important landmark case because it is the anchor as we all recognize the line of substantive due process jurisprudence. Chief Justice Roberts, Justices Alito and Kavanaugh, were willing to say Griswold was right, so it left me concerned and as I laid out yesterday, what truly concerns me more is her approach to precedent. Precedent has been called the foundation stone of American law and gives predictability, stability to it.

And as I walked through yesterday, I've concluded that Judge Barrett is even more willing than Justice Scalia to overturn precedents with which she disagrees and made clear that justices should feel free to overturn cases that they believe were wrongly decided, which if she deeply holds the originalist philosophy she's espoused may mean that dozens and dozens, in fact as I detailed in a chart yesterday, more than 120 cases long settled in many cases may be at risk of reconsideration. And they will cover, yes, healthcare, yes, privacy, but education, consumer protection, marriage equality, criminal justice, a range of cases a majority of Americans believe are long settled.

Last, as to President Trump's most critical expectation or expressed wish, I was concerned that Judge Barrett would not specifically commit to recusal in the event there is something arising from this imminent presidential election. I think nothing could be more challenging to the role of the Supreme Court and our national life and I urge my colleagues first to consider seriously the Senator from Connecticut's motion and to delay the final stages of this process until after this election. But equally, if not more importantly, to think about the moment we are on.

Because if this election in some way is interfered with, does not go appropriately, I think our democracy itself is at risk. So at the very least, to be clear, I thought nothing was stopping Judge Barrett from making a commitment to recuse herself given what President Trump has said and was gravely concerned she did not. So Mr. Chairman, I will conclude. I will not be voting to confirm Judge Barrett to the Supreme Court, but I frankly think we should not be taking this vote. We should not be proceeding today. We should instead be turning to the urgent business of protecting the American people and ensuring the safety and security of our election and keeping our word.