Life Advocacy Briefing

Nice Try

SENATE JUDICIARY COMMITTEE DEMOCRATS BOYCOTTED the committee’s meeting last Thursday in protest of having been asked to vote on confirming the appointment of Judge Amy Coney Barrett to the Supreme Court. The Committee met without their attendance and, on a unanimous vote, advanced the nomination to the full Senate, where a vote is expected as early as today (Monday).

Readers are encouraged to contact their two home-state Senators to request they vote in favor of confirming the distinguished Mrs. Barrett. [Capitol switchboard: 1-202/224-3121]

Here is the Judiciary Committee’s roster of Democrats who stood up the lady last Thursday: Senators Dianne Feinstein (CA), who is the committee’s Ranking Member and Senators Kamala Harris (CA), Richard Blumenthal (CT), Christopher Coons (DE), Mazie Hirono (HI), Richard Durbin (IL), Amy Klobuchar (MN), Cory Booker (NJ), Sheldon Whitehouse (RI) and Patrick Leahy (VT).

Here is the list of Judiciary Committee members who voted to advance Judge Barrett’s nomination: Chairman Lindsey Graham (SC) and Senators Mike Crapo (ID), Joni Ernst & Charles Grassley (IA), John Kennedy (LA), Josh Hawley (MO), Ben Sasse (NE), Thom Tillis (NC), Marsha Blackburn (TN), John Cornyn & Ted Cruz (TX) and Mike Lee (UT). All are Republicans.

We commend to our readers the speech by Sen. Mike Lee, addressed to his Judiciary Committee colleagues and the watching public following the vote to advance the Barrett confirmation to the Senate as a whole. We transcribed the speech for our readers; it occupies much of this Life Advocacy Briefing, as its conclusion.

Tantrum in Response to Refreshing Collegiality

THOUGH SHE ULTIMATELY PLAYED OBEDIENT LITTLE LAMB to Senate Minority Leader Chuck Schumer (D-NY) in participating in her party’s boycott of the Judiciary Committee meeting last Thursday, Sen. Dianne Feinstein (D-CA) is taking it on the chin for her collegial response to Judiciary Chairman Lindsey Graham (R-SC) at the close of the panel’s hearings on the Barrett nomination.

The faithful advocate of “abortion rights” did not raise enough umbrage at the nerve of the President to nominate a judge to the Supreme Court – in pursuit of his Constitutional duty – as far as the furies of the Left are concerned. In fact, at the close of the public hearings, Sen. Feinstein was observed – on camera – permitting Chairman Graham to give her a collegial hug. How shocking!

Accustomed to leading the Senate Democratic Leadership around by the nose, the activist leaders of the Left are calling for her to be replaced as the committee’s top Democrat, even as the 116^th Congress is nearing its conclusion. Leading the outrage was NARAL Pro-Choice America, a major political and lobbying arm of the abortion cartel.

“‘Americans – whose lives hang in the balance – deserve leadership that underscores how unprecedented, shameful and wrong this process is,’ said NARAL Pro-Choice America president Ilyse Hogue,” quoted by Doug Mainwaring for LifeSiteNews.com. “‘The ranking member of the Senate Judiciary Committee, Sen. Dianne Feinstein, failed to make this clear and in fact offered an appearance of credibility to the proceedings that is wildly out of step with the American people. As such,’” she demanded, “‘we believe the committee needs new leadership.’” Declaring the Barrett nomination “‘illegitimate’” and the confirmation process “‘a sham,’” Ms. Hogue continued to bluster in shock over the one rare sign of the collegiality which used to be a hallmark of the Senate.

She also blurted, quoted by Mr. Mainwaring, “‘Amy Barrett and this power grab pose a grave threat to every freedom and right we hold dear and tears the very fabric of our democracy.’”

More cause to confirm Judge Barrett.

The Bottom Line

Oct. 19, 2020, End-of-Day Memo by former Reagan domestic policy advisor Gary Bauer

            Two interviews yesterday by high-profile Democrats made it clear that the Left is plotting to steal control of the Supreme Court if Biden wins in 15 days.

            Sen. Chris Coons of Delaware is very close to Joe Biden. He was interviewed by CNN’s Jake Tapper, who questioned the Senator on the issue of packing the Court by expanding the number of Justices on it. Coons replied: “Jake, like Joe Biden, I’m not a fan of expanding the Court. We have a few weeks here to see whether there are four Republicans who will step back from this precipice [of confirming Judge Barrett]. … The Republican Majority is responsible for racing forward with this extremely unqualified nominee, unqualified because of her extreme judicial philosophy. …

            “We need to focus on that, and then if we happen to … have a President Biden, we have to look at what the right steps are to rebalance our federal judiciary.”

            Tapper pressed for a more direct response about whether that meant adding additional Justices to the Supreme Court that Biden/Schumer/Pelosi/AOC can fill, and Coons said, “Yes.”

            Meanwhile on ABC News, George Stephanopoulos asked Speaker Nancy Pelosi about the “arrows in her quiver” she claimed to have to stop Judge Amy Coney Barrett’s nomination.

            Pelosi answered, “Well, we’ll see. … What I’m talking about is how we win this election, because we have to offset whatever this Court may do.”

            It is absolutely clear that if Joe Biden wins the White House, and if Chuck Schumer and Nancy Pelosi control Congress next year, Democrats will steal the Supreme Court by packing it with left-wing activists. Some progressive leaders are urging them to create as many as five new seats.

            My friends, there is nothing in the Constitution about the size of the Supreme Court. Over the course of our nation’s history it has been changed four times, last settling at nine Justices in 1869, 151 years ago. And it only takes an act of Congress to add or subtract Justices.

            If Pelosi and Schumer pass legislation expanding the number of Justices to whatever they need to have a majority on the high court, there is no way that “President Biden” would veto that legislation. And “President Harris” would eagerly sign it too!

            The Left wants to “fundamentally transform” the Supreme Court and our country in the process. We must not let that happen.

To Restore Justice

Oct. 22, 2020, Judiciary Committee speech by Sen. Mike Lee, transcribed by Life Advocacy Briefing

            It is indeed an honor to be here on this historic occasion, when we’ve confirmed Judge Barrett – forwarded favorably to the floor our recommendation. As I’ve said ever since she was nominated to this position, Judge Amy Coney Barrett is one of the most impressive legal minds in the United States. She’s a thoughtful and fair-minded lawyer, a loving daughter, wife and mother, and a devout believer in her faith and in the Constitution. She was arguably the most impressive judicial nominee that I’ve ever seen in any of these hearings, and I’ve been watching them intently since I was a kid. Judge Barrett is going to make an absolutely outstanding Supreme Court Justice, and the American people will be really lucky to have her on the bench. 

            It is a shame that 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 in so doing, walk out on the American people. This is sad but in context, it’s not really that surprising. I suppose we should be grateful that a walkout 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 particular 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 to have Judge Barrett on the Supreme Court. For the first 200 years of the history of our republic, Supreme Court nominations of both political parties were almost always polite and even boring, relatively non-partisan, non-political affairs. Judicial nominees were examined for their qualifications and rejected by the Senate only in relatively rare instances. But that era of generally common mutual respect ended in 1987, when a Democratic-controlled Senate shamefully and slanderously defeated the nomination of one of the country’s most respected lawyers and constitutional scholars – that is, Judge Robert Bork. The cynical attacks against Judge Bork, whose only offense was that he was a conservative, were dirty, and they were downright dishonest, but like the boy who cried “wolf,” Senate Democrats got away with it, at least the first time.

            Four years later, President George Herbert Walker Bush nominated Clarence Thomas, then serving on the US Court of Appeals for the DC Circuit, to replace Justice Thurgood Marshall. Democrats on the Judiciary Committee – Democrats, not Republicans – tried to do to Judge Thomas what they had done to Judge Bork a few years earlier. The public was now wise to the Democrats’ game, and that particular attack – while injurious – 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 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 the way they did; they 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 Judge Stephen Breyer was confirmed with 87 votes. They went low, and in response we went high. Now did Republicans’ good-faith behavior influence or improve the Democrats’ behavior? No. The record suggests that it only encouraged them.

            Within a decade, Democrats once again reached 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 remains to this day – one of the most respected lawyers and constitutional scholars in the country. He was a natural, inspiring choice to serve as a federal appellate judge. But to the left, you see, that was precisely the problem. Mr. Estrada was Latino and brilliant and charismatic and young, and widely seen as a future nominee to the U.S. 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 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. Now remember, at the time of the Miguel Estrada filibuster, Republicans had control of the White House and of the Senate. They could have invoked the nuclear option to break the Democrats’ norm-breaking obstruction. We didn’t. We did not retaliate. Not after the Estrada filibuster, not after the Democrats’ malignant, mendacious smearing of then-Judge Sam 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 super-majority 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 and other grounds in the courts, Democrats invoked the nuclear option over Senate rules so that 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 in fact in every single Congressional election since the Democrats went nuclear in 2013 – the American people returned a Republican majority to the Senate. That included the election of 2014, which meant that when President Obama appointed Judge Merritt Garland to replace the late Justice Antonin Scalia, the Senate – following precedent established by Democrats decades earlier – rejected that nomination. That included the election of 2016, when Donald Trump was elected President. When he selected Judge Neal 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.

            Now let me go on record. I initially had concerns about this move. In conference meetings, for some time I argued to my colleagues that we ought to at least try to find another way, try to see if we could figure out a way to restore the judicial filibuster and simultaneously preserve this important part of the Senate’s institutional design and of Presidential prerogative. I lost that argument; my position may have been principled, but in the context of the Democrats’ relentless, relentless and endless 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 that while solutions were easy to imagine, the Left’s good faith was not. 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 power and 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, any evidence whatsoever of an intent to lower 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. This is a feature, not a bump. This is how they operate; this is what they do. Liberals – not conservatives – turned the Supreme Court of the United States into a super-legislature of sorts. Democrats – not Republicans – escalated Supreme Court nominations into ideological knife fights and worse, and made political outcomes the defining issue of this process, rather than judicial philosophy and qualifications.

            What has happened to this problem isn’t a bipartisan failure. It is a unipartisan strategy. Every norm broken, every act of escalation – one party, the Democrats – has been the aggressor in every single instance. At every step along the way, our side has used our constitutional authority and the other side has abused its authority. There is no tit for tat; there is just tat. Democrats killed Judge Bork’s nomination for partisan political reasons. They killed Miguel Estrada’s nomination for partisan political reasons. They slandered Justice Thomas, Justice Alito and Justice Kavanaugh for partisan political reasons. They nuked the filibuster – again for partisan political reasons. And now they’re trying to scuttle this meeting – this hearing, this vote, for partisan political reasons.

            When it comes to the judiciary, abuse of power is their agenda. Now the Left seems to think that the Supreme Court exists for this purpose and that it exists to impose their very worst ideas onto the public, onto those recalcitrant members of the public, those people we call citizens, who refuse blindly 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 how to live. Without votes, without accountability and without debate; taking debatable matters and placing them beyond debate seems to be their formula. They don’t want democracy; they don’t want representative government; they want docility. And Judge Amy Coney Barrett is not going to give it to them.

            She’s not going to politicize the Supreme Court. She’s going to help depoliticize a Court that the Left has spent decades turning into an extraconstitutional Sanhedrin of philosopher kings. She’s going to turn back policy decisions and political debate 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 so furious about this nomination. For all the pious pablum you hear on MSNBC – and for all the pious pablum you’ll hear on MSNBC and those other networks tonight – understand, they aren’t angry because this process isn’t fair; they are angry because it is. Not because they think Amy Coney Barrett is going to be a partisan Justice but because they know she will not 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 itself requires. Judge Barrett threatens their power, not because she has a hidden agenda or hidden powers but because they do, and she won’t enact those powers or exercise them by judicial fiat.

            And that is exactly why we need to have Amy Coney Barrett on the Supreme Court of the United States. Not to avenge Bork, Thomas, Estrada, Alito or Kavanaugh but rather to restore the institutional integrity of the Supreme Court and to the Senate and all the public institutions that let this judicial abuse, this twisted and desecrated 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.” Thank you.