October 22, 2020

Sen. Whitehouse Remarks in the Judiciary Committee Executive Business Meeting to Nominate Judge Barrett to the Supreme Court

Mr. Chairman, I’ll try to be brief. Let me first say how surprised I am that Senator Kennedy finds us all interesting, because I have operated under the principle for many years that everybody from Louisiana is more interesting than I am.

I would like to associate myself, just for the sake of time particularly, with the remarks of Senator Blumenthal, who spoke in a way that I thought was very true and eloquent and does not need my repetition.

I do want to suggest to colleagues that the rule of because we can, which is the rule that is being applied today, is one that leads away from a lot of the traditions and comities and values that the Senate has long embodied. There are Republican members on this committee of whom I am very fond, but don’t think that when you have established the rule of because we can that, should the shoe be on the other foot, you will have any credibility to come to us and say, “yeah I know you can do that, but you shouldn’t because of X Y or Z.” Your credibility to make that argument at any time in the future will die in this room and on that Senate floor if you continue to proceed in this way.

I hope that that is not the case, but please don’t think that there are two separate rules, that when there is Republican majority the rule is because we can and when there is a Democrat majority the rule is “oh no you can’t do it that way.”

With respect to Senator Cornyn’s questions about why we are concerned, let me associate myself with the description that Senator Coons gave, which I thought was very thorough and complete. I would summarize it by saying we are concerned because of what you have said, and what other senators have said, in briefs and in public pledges about the Affordable Care Act, about Roe vs. Wade, about Obergefell.

We are concerned about these things because of what President Trump has said. The man who made the choice and told us that that choice was being made specifically to cover him in an election litigation and to terminate health coverage under the ACA.

He’s your president. Why should we not take him at his word? You don’t answer that question. Your party platform, the Republican Party platform, calls for judges to reverse the Obamacare cases, the Affordable Care Act that is, Roe vs Wade and Obergefell, the gay marriage case.

We didn’t say that that’s what your plan was. You said that that’s what your plan was, and you said in your party platform that you were going to do it through your judicial appointments. That’s how you reverse decisions

You put that threat in play, and I’ve got to say I’ve got an awful lot of Rhode Islanders who depend on the Affordable Care Act. I’ve got a lot of Rhode Islanders who want to have some autonomy over the decisions about their body that roe vs wade protects. I’ve got a lot of Rhode Islanders who either are married to someone of their sex, or wish to be and plan to be, or have friends and family members whom they love who either are married to somebody of their same sex or wish to be.

So when you put those rights in play by putting that threat in your party platform, you have no standing to criticize us for taking it seriously. That’s what you said. Reverse the Obamacare cases, reverse Roe vs. Wade, reverse Obergefell.

The last thing that I will say is that while we express our dismay and concern about the significant and disturbing procedural anomalies that are happening in this nomination, all of the last three nominations have been characterized by significant and disturbing procedural anomalies. All three. The Garland to Gorsuch episode, the Kavanagh confirmation, and now this one. There is a commonality to that that is very disturbing and it suggests the presence of outside forces and interests that are driving these conspicuous disturbing anomalies.

Last weekend I was at home preparing for this, sitting at a desk with papers out all around me, trying to assemble my thoughts, and I was in a room with the windows closed and I couldn’t feel any breeze. We have pretty good windows in my house, and the wind doesn’t blow through them. But I could look out the window – we look out over a pond – and I could see the water on the pond rippling as the wind blew across it. I could see the trees outside bending as the wind blew through the trees. I could see the rushes along the edges of the pond whipping back and forth as the wind blew through them.

I didn’t need to feel the wind to know that the wind was blowing outside because the clues were obvious. The clues are obvious that something is happening behind all of these significant and disturbing procedural anomalies and I for one intend to find out exactly what has been going on.

It has been going on behind front groups and using anonymous money. That was not, I don’t think, what the founding fathers had in mind when they stood up this robust democracy – that big sneaky interests would hide behind phony front groups and use secret money to get their way. That’s not what generations of Americans fought and bled and died for, and I make a commitment here that I will spend every effort that I must to get to the bottom of why these anomalies have taken place.

Thank you, Chairman.