Hirono Urges Senate to Reject Nomination of Amy Coney Barrett to the U.S. Supreme Court

WASHINGTON, D.C. – Tonight, Senator Mazie K. Hirono (D-Hawaii), Ranking Member of the Senate Judiciary Subcommittee on the Constitution, urged the Senate to reject the nomination of Judge Amy Coney Barrett to the United States Supreme Court in a speech on the Senate floor.

During her remarks, Senator Hirono shared the story of how the late Hawaii Congresswoman Patsy Mink helped stop the nomination of Judge G. Harrold Carswell to the Supreme Court by testifying against him before the Senate Judiciary Committee in 1970. During her testimony, Congresswoman Mink cited the Judge’s refusal to take up a case related to a woman denied a factory job because of her preschool-aged children as evidence he “demonstrated a total lack of understanding of the concept of equality.” After the Senate rejected Judge Carswell’s nomination, the Senate confirmed Justice Harry Blackmun, who wrote the majority opinion in Roe v. Wade three years later. 

From Senator Hirono’s remarks:

“In 1970 – the same year that Hawaii became the first state in the country to decriminalize abortion – Patsy did something no one had done before. She made women’s rights a key issue in a Supreme Court nomination when she testified against the nomination of Judge G. Harrold Carswell.

“In her testimony, Patsy brought up Judge Carswell’s decision in the case of Ida Phillips – a woman denied a factory job because she had preschool-aged children. Of course, no such rule applied to fathers. 

“Judge Carswell, along with 10 of his colleagues on the Fifth Circuit Court of Appeals, had refused to hear Ms. Phillips’ case.

“Patsy told the Senate Judiciary Committee: “Judge Carswell demonstrated a total lack of understanding of the concept of equality…. His vote represented a vote against the right of women to be treated equally and fairly under the law.” 

“When a Republican Senator tried to defend Judge Carswell by pointing out that 10 other judges had also voted to refuse to hear the case, Patsy responded, “But the other nine are not up for appointment to the Supreme Court.”

“Patsy understood the critical role the Supreme Court plays in the lives of every American. She pointed out to the Committee that “the Supreme Court is the final guardian of our human rights. We must rely totally upon its membership to sustain the basic values of our society.”

“Patsy’s testimony marked a turning point in Judge Carswell’s nomination, which the Senate ultimately rejected. Her courageous action paved the way for President Richard Nixon to appoint Justice Harry Blackmun to the Court. 

“Three years later, Justice Blackmun wrote the landmark decision in Roe v. Wade – recognizing a woman’s constitutional right to control her own body. Justice Blackmun, unlike Judge Carswell, understood the right of women to be treated equally. Upon his retirement, he observed Roe was “a step that had to be taken . . . toward the full emancipation of women." 

“This story about Patsy is not very well known, but it underscores how one person can make a difference and how one vote on the Supreme Court can make a difference.

“During his years on the Court, Justice Blackmun became a reliable vote for racial and gender equality, and his decisions reflected an understanding of how the Court’s decisions impact the lives of millions of Americans.

“If Judge Carswell had been confirmed to the Supreme Court instead of Justice Blackmun, Roe v. Wadewould not exist as we know it. Nor would a host of civil rights protections for students and racial minorities.

“Our nation finds itself at a similar judicial crossroads today as we debate whether Judge Amy Coney Barrett should replace Justice Ruth Bader Ginsburg on the Supreme Court.

“The choice we face as Senators is clear. It’s the same choice Patsy Mink presented to the Senate 50 years ago. 

“We can choose to protect equality for women, health care for millions, and other ‘basic values of our society.’

“Or, we can choose a justice selected to do precisely the opposite: strike down the Affordable Care Act, overturn Roe v. Wade, and continue to decide cases like her conservative mentor, Justice Antonin Scalia.”

Senator Hirono’s full speech as delivered:

Mister President, every woman in this country owes a debt of gratitude to my friend, Congresswoman Patsy Takemoto Mink.

Americans probably know Patsy best for her fiery advocacy to pass Title IX into law. This landmark piece of gender equity legislation – which now bears her name – has benefitted millions of women and girls across our country.

But, I’d wager very few people know about how Patsy changed the course of history for women’s equality and helped enshrine the right of women to control our own bodies in the Supreme Court. 

Let me tell you a story.

In 1970 – the same year that Hawaii became the first state in the country to decriminalize abortion – Patsy did something no one had done before. She made women’s rights a key issue in a Supreme Court nomination when she testified against the nomination of Judge G. Harrold Carswell. 

In her testimony, Patsy brought up Judge Carswell’s decision in the case of Ida Phillips – a woman denied a factory job because she had preschool-aged children. Of course, no such rule applied to fathers. 

Judge Carswell, along with 10 of his colleagues on the Fifth Circuit Court of Appeals, had refused to hear Ms. Phillips’ case.

Patsy told the Senate Judiciary Committee: “Judge Carswell demonstrated a total lack of understanding of the concept of equality…. His vote represented a vote against the right of women to be treated equally and fairly under the law.” 

When a Republican Senator tried to defend Judge Carswell by pointing out that 10 other judges had also voted to refuse to hear the case, Patsy responded, “But the other nine are not up for appointment to the Supreme Court.”  

Patsy understood the critical role the Supreme Court plays in the lives of every American. She pointed out to the Committee that “the Supreme Court is the final guardian of our human rights. We must rely totally upon its membership to sustain the basic values of our society.”

Patsy’s testimony marked a turning point in Judge Carswell’s nomination, which the Senate ultimately rejected. Her courageous action paved the way for President Richard Nixon to appoint Justice Harry Blackmun to the Court. 

Three years later, Justice Blackmun wrote the landmark decision in Roe v. Wade – recognizing a woman’s constitutional right to control her own body. Justice Blackmun, unlike Judge Carswell, understood the right of women to be treated equally. Upon his retirement, he observed Roe was “a step that had to be taken . . . toward the full emancipation of women.”

This story about Patsy is not very well known, but it underscores how one person can make a difference and how one vote on the Supreme Court can make a difference.

During his years on the Court, Justice Blackmun became a reliable vote for racial and gender equality, and his decisions reflected an understanding of how the Court’s decisions impact the lives of millions of Americans.

If Judge Carswell had been confirmed to the Supreme Court instead of Justice Blackmun, Roe v. Wadewould not exist as we know it. Nor would a host of civil rights protections for students and racial minorities.

Our nation finds itself at a similar judicial crossroads today as we debate whether Judge Amy Coney Barrett should replace Justice Ruth Bader Ginsburg on the Supreme Court.

The choice we face as Senators is clear. It’s the same choice Patsy Mink presented to the Senate 50 years ago.

We can choose to protect equality for women, health care for millions, and other “basic values of our society,” as Patsy put it.

Or, we can choose a justice selected to do precisely the opposite: strike down the Affordable Care Act, overturn Roe v. Wade, and continue to decide cases like her conservative mentor, Justice Antonin Scalia. 

This is neither an abstract nor hypothetical choice. 

President Trump repeatedly promised to appoint a justice who would eliminate the ACA and Roe v. Wade– and he took only 3 days after Justice Ginsburg’s death to pick Judge Barrett to fulfill this promise. His selection was easy because Judge Barrett had already publicly signaled that she opposed the Affordable Care Act and reproductive rights.

Judge Barrett is on record criticizing Chief Justice Roberts for—as she put it—“push[ing] the Affordable Care Act beyond its plausible meaning to save the statute” in a case upholding the ACA in 2012. Justice Scalia wrote the dissent in that case. 

She also signed a newspaper ad committing to “oppose abortion on demand and defend the right to life from fertilization.” That same ad called for “an end to the barbaric legacy of Roe v. Wade. 

With Judge Barrett, President Trump and Senate Republicans know exactly the kind of vote they are getting on the Supreme Court. That’s why they are rushing Judge Barrett onto the Court through this hypocritical, illegitimate process.

In a little over two weeks, the Supreme Court will hear oral arguments in California v. Texas – a lawsuit where the Trump administration and 18 Republican State Attorneys General are asking the Court to invalidate the Affordable Care Act – like Justice Scalia voted to do in two earlier cases.  

My Republican colleagues know they can count on her to provide the decisive 5th vote on the Supreme Court to strike down the ACA – to help them win through the courts an outcome they tried and failed to achieve 70 times—70 times—in Congress.

The consequences of Judge Barrett’s vote to strike down the ACA would be catastrophic.

It would be catastrophic for the 20-plus million Americans who obtained health care coverage under the ACA and the 100 million-plus Americans who would lose the law’s protections for people living with pre-existing conditions.

These are the types of real-world consequences Justice Ginsburg placed at the core of her judicial philosophy and approach to the law, which her conservative colleagues often ignored.  

We saw this time and again in Justice Ginsburg’s classic dissents in cases like Shelby County v. Holder, Ledbetter v. Goodyear Tire, and Epic Systems v. Lewis.

Judge Barrett sees things much differently.

When my Democratic colleagues and I pressed her about how she would take the real-world impact of millions of people losing access to health care into account, she said those are “policy consequences” for Congress to address. 

She also tried to parry our questions by using terms like “severability” and testifying that protections for people with pre-existing conditions were not at issue in the Trump administration’s lawsuit. 

She ignored the fact that more than 100 million people with pre-existing conditions would be harmed if the lawsuit succeeds.

Not an issue? Give me a break. 

My Republican colleagues hope that the American people will accept these weak attempts to divert our attention, but they can’t obscure the real human cost of striking down the ACA.

It’s why my Democratic colleagues and I have shared the stories of people Judge Barrett would harm when she votes to strike down the ACA. 

I want to share their stories again because their lives are what’s at stake in this nomination fight.

Jordan Ota, an elementary school teacher from Ewa Beach, has PNH – a very rare blood condition. To treat it, she receives infusions of a medication that costs around $500,000 per year without insurance. If Judge Barrett strikes down the ACA, Jordan’s insurance company could put a lifetime cap on benefits, leaving her without coverage for her life-saving medication.

Jordan’s father Dean told me that “without this medicine, she will die.”

Kimberly Dickens from Raleigh, North Carolina couldn’t afford health insurance until the Affordable Care Act became law.

Kimberly used her new insurance to get a checkup and a mammogram that found her breast cancer.

With her health insurance, Kimberly was able to get a mastectomy and has been cancer-free ever since.

Kimberly said: “The ACA saved my life…It scares me to think: If I didn’t have insurance, how far advanced would the cancer have grown?”

These powerful stories demonstrate the real-world danger of Amy Barrett’s judicial philosophy if she is confirmed to the Court. But their health care is not the only fundamental right at risk for Americans.

We know this because Judge Barrett has also aligned herself with the conservative wing of the Court – long led by her mentor, Justice Scalia. At her nomination ceremony, Judge Barrett announced that Justice Scalia’s “judicial philosophy is mine, too.”

Aligning herself so closely with Justice Scalia has implications for a whole host of rights and protections the Court has granted over the years.

Justice Scalia, for example, wrote dissents in the landmark cases recognizing LGBTQ rights – fromRomer v. Evans, to Lawrence v. Texas, and U.S. v. Windsor. 

Most recently, he wrote a dissent in Obergefell v. Hodges, sharply criticizing the majority for recognizing a right to same-sex marriage that, in his originalist view, was not in the Constitution.

Because Judge Barrett calls herself an originalist and shares Justice Scalia’s judicial philosophy, his decisions provide a preview of how she would have ruled in those cases. 

For example, although the Supreme Court has already affirmed marital rights for LGBTQ Americans, Judge Barrett’s radical views on precedent put these rights at risk.

Judge Barrett has argued that as part of her duty, a justice should “enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” 

Clearly, Judge Barrett’s confirmation would put Obergefell at risk, and her would-be colleagues on the Court have taken notice.

During this nomination process, Justices Thomas and Alito – also originalists – released an alarming statement in Davis v. Ermold, which the Court declined to review. These two justices criticized Obergefellfor “read[ing] a right to same-sex marriage into the 14th Amendment, even though that right is found nowhere in the text.”

In effect, these two justices invited a challenge to Obergefell by calling it “a problem that only [the Court] can fix.”

This type of signaling is a dangerous and increasingly common practice among the Court’s conservative wing. By making their views known in this way, these justices are inviting would-be litigants to bring challenges the Court, so the Court can then use those challenges to invalidate landmark precedent, which is what happened in Janus v. AFSCME.

As a member of the 7th Circuit, Judge Barrett has also demonstrated a willingness to signal her views on precedent that could have significant implications if she’s confirmed to the Supreme Court.

One example came in Price v. City of Chicago, where Judge Barrett joined a decision that upheld a so-called ‘abortion-clinic buffer zone law.’ The decision made clear that her Circuit Court was forced to uphold this law under the Supreme Court precedent, but it signaled a strong disagreement with that precedent. The decision, which she joined, criticized the precedent as “incompatible” with the First Amendment and “impos[ing] serious burdens.”  

Judge Barrett’s alignment with Justice Scalia, her radical views on Supreme Court precedent, and her disregard for real-world impacts on her decision-making as a judge show how many rights and protections are at risk.  

LGBTQ rights. Voting rights. Women’s equality. Health Care. You name it.

These rights didn’t just materialize out of thin air – they came after hard-fought battles and tremendous sacrifices from trailblazers like Patsy Mink and Ruth Bader Ginsburg. 

When Patsy called the Supreme Court “the final guardian of our human rights” that “sustains the basic values of our society,” she deeply understood what that meant – for women’s equality, for civil rights, and for so many other rights.

Republicans understand that clear majorities of Americans support the ACA, a woman’s right to choose, and the right for LGBTQ couples to marry.

Yet, because Republicans fear they are losing the election, they are racing Judge Barrett’s nomination through a hypocritical and illegitimate process to put her on the Court for life before voters can make their voices fully heard.

But we’ve all seen the news coverage of thousands of voters standing in line for hours on end in the cold and rain to make sure their voices are heard and their votes are counted. 

Clearly, the voters understand what’s at stake. They are doing their part. Now it’s time for the Senate to do ours by rejecting Judge Barrett’s nomination to the Supreme Court.

By doing so, we can stand up for what Patsy Mink called the “basic values of society” and against Donald Trump and Senate Republicans’ assault on health care, a woman’s right to control her own body, and LGBTQ rights, among so many others. This nomination fight is close to being over, but the broader fight for the future of our nation continues. I yield the floor.

###