Oct 22 2020
As prepared for delivery
Thank you Mr. Chairman.
It is indeed an honor to be here on this historic occasion.
As I have said since she was nominated, Judge Amy Coney Barrett is one of the most impressive legal minds in the United States. She is a thoughtful and fair-minded lawyer, a loving daughter wife and mother, a devout believer in her faith and our Constitution.
She was the most impressive judicial nominee I have ever seen in these hearings, and I’ve been watching them intently since I was a kid. Judge Barrett is going to be make an absolutely outstanding Supreme Court Justice, and the American people will be lucky to have her on the bench.
It’s a shame 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 on the American people.
Sad, but in context, not really surprising. I suppose we should be grateful that a walk-out is all the Democrats will do to Judge Barrett today; not all nominees have been so lucky.
This is 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 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 Judge Barrett on the Supreme Court.
For the first 200 years of our republic, Supreme Court nominations of both parties were almost always polite, even boring, nonpartisan affairs.
Judicial nominees were examined for their qualifications, and only rejected by the Senate in rare instances.
That era of mutual respect ended in 1987, when a Democratic-controlled Senate shamefully, slanderously defeated the nomination of one of the most respected constitutional lawyers in the country, Judge Robert Bork.
The cynical attacks against Judge Bork – whose only offense was that he was a conservative – were dirty and dishonest.
But like the boy who cried wolf, Senate Democrats got away with it – the first time.
Four years later, President George H.W. Bush nominated Judge Clarence Thomas to replace Justice Thurgood Marshall. Democrats on the Judiciary Committee – Democrats, not Republicans – tried to do to Judge Thomas what they did to Judge Bork.
The public was now wise to the Democrats’ game, and the attempt 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 in kind.
In 1993, the famously liberal Judge Ruth Bader Ginsburg was confirmed to the Supreme Court with 96 votes. In 1994, now-Justice Stephen Breyer was confirmed with 87 votes.
They went low, we went high.
Did Republicans’ good faith improve Democrats’ behavior? No. The record suggests 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 is one of the most respected constitutional lawyers and scholars in the country. He was a natural, and inspiring choice to serve as a federal appellate judge.
To the Left, that was precisely the problem. Mr. Estrada was Latino and brilliant and charismatic and was widely seen as a future nominee for the 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, ever 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.
Remember, at the time of the Estrada filibuster, Republicans had control of the White House and 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. Nor after the Democrats malignant, mendacious smearing of then-Judge Samuel 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 supermajority 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 grounds in federal court, Democrats invoked the nuclear option over Senate rules so 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 every election since Democrats went nuclear – 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 the precedent established by Democrats decades earlier – rejected the 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 again filibustered… and then feigned outrage as Republicans followed Democrats’ precedent – again – and triggered the nuclear option on Supreme Court nominations.
Let me go on record, I initially had concerns about this move. In conference meetings for weeks, I argued to my colleagues to try to find another way, to figure out how to restore the judicial filibuster and preserve this important part of the Senate’s institutional design.
But I lost that argument.
My position may have been principled, but in the context of the Democrats’ relentless, 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, while solutions were easy to imagine, the Left’s good faith wasn’t.
The only precedents 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 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 of lowering 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.
Liberals, not conservatives, turned the Supreme Court into a super legislature.
Democrats, not Republicans, escalated Supreme Court confirmations into ideological knife fights and made political outcomes the defining issue of this process, rather than judicial philosophy and qualifications.
What has happened to this process isn’t a bipartisan failure; it is a uni-partisan strategy.
Every norm broken, every escalation, one party – the Democrats – has been the aggressor. At every step along the way, our side has used our constitutional authority, and the other side has abused theirs.
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 Justices Thomas, Alito, and Kavanaugh for partisan political reasons. They nuked the filibuster for partisan political reasons. And now they are trying to scuttle this meeting, for partisan political reasons. When it comes to the judiciary, abuse of power is their agenda.
The Left seems to think the Supreme Court exists to impose their worst ideas onto a public who refuse 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 else how to live – without votes, without accountability, and without debate.
They don’t want democracy; they want docility.
And Judge Amy Coney Barrett is not going to give it to them.
She is not going to politicize the Supreme Court – she is going to help de-politicize a Court that the left has spent decades turning into an extra-constitutional Senhedrin of Philosopher Kings.
She is going to turn 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 furious about this nomination. For all the pious pablum you hear on MSNBC tonight, understand: they aren’t angry because this process isn’t fair, but because it is.
Not because they think Amy Coney Barrett is going to be a partisan Justice. But because they know she won’t 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 requires.
Judge Barrett threatens their power not because she has a hidden agenda, but because they do – and she won’t enact it by judicial fiat.
And that is exactly why we need her on the Court.
Not to avenge Bork, Thomas, Estrada, Alito, or Kavanaugh, but to restore institutional integrity to the Court, the Senate, and all the public institutions Leftist judicial abuse has twisted and discredited 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.”