10.26.20

Gardner Delivers Speech Strongly Supporting Judge Amy Coney Barrett’s Nomination to the Supreme Court

“I am honored, in just a few hours, to know that I will be able to cast a vote in support of soon-to-be Justice Amy Coney Barrett.”

Washington, D.C. – U.S. Senator Cory Gardner (R-CO) spoke on the floor of the United States Senate today regarding Judge Amy Coney Barrett’s nomination to the Supreme Court and announced he will vote to confirm her nomination.

ACB Floor Speech SS

NOTE: Click here or the picture above to download Senator Gardner’s remarks. 

“I urge my colleagues to support Justice Amy Coney Barrett and I am honored, in just a few hours, to know that I will be able to cast a vote in support of soon-to-be Justice Amy Coney Barrett,” said Senator Gardner.“If you could take the politics out of the place, she would probably have a unanimous vote. Unfortunately, the politicization of this nomination is going to prevent that. But I just urge my colleagues to look past the politics, to look past the partisanship, and to vote for a truly qualified justice who is committed to the law, to the Constitution, who is committed against activism on the bench, and who will make sure that our country for generations to come has a protector, that guardian of the Constitution, with the wisdom to get the job done.”

Remarks as delivered:

Thank you, Mr. President. 

Yesterday I came to the floor and spoke about the forest fires in Colorado. And luckily, we've had a great deal of snow on some of the most problematic conflagrations and it has slowed the fires down tremendously and has given us a chance to fight back and make some containment progress. And so the news on the fire front is generally a good news story today with more challenges to come down the road. 

So this morning I come to the floor to talk about the nomination of Judge Amy Coney Barrett to be placed on the United States Supreme Court. That will be the third Supreme Court Justice that I have had the honor and privilege of voting on this Congress and the previous Congress, including Neil Gorsuch, Colorado's own Neil Gorsuch. 

We've heard a lot of discussion about the Federalist Papers and our Founding Fathers and the intent and the role of the Senate. The language of the Constitution that points out that the President shall nominate, and with the advice and consent of the Senate, place justices throughout our judiciary.

We've heard of Federalist No. 69 by Alexander Hamilton: “The President is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court.”  

In Federalist No. 69 Hamilton goes on to compare the power of appointment that the President has, the chief executive has, to that of the king of Great Britain, even comparing the power of appointment to the governor of New York, Alexander Hamilton in Federalist No. 69 did. And he stated that both the king and the governor of New York at that time had a greater power of appointment than the President, due to the requirement of advice and consent and the ability of the governor of New York to actually cast a vote on the matter himself. To quote Alexander Hamilton, “In the national government, if the Senate should be divided, no appointment could be made.” He pointed out that the President has a concurrent authority in appointing offices and the President is not the sole author of these appointments.

It's clear in Alexander Hamilton's writings that this power was intended to be diluted, that it was intended to be balanced amongst the chambers, that the judicial branch was viewed as the weakest of the three branches of government, not because it wasn't equal in power, but because it didn't have some of the mechanisms that the other two branches do to protect it. And while the President makes that appointment, it is this chamber, the sole duty of this chamber, in the Constitution to agree or disagree with that nomination. 

We saw that disagreement occur in 2016 where this chamber did not give its consent to a nomination. Later Neil Gorsuch, Colorado's Neil Gorsuch, was confirmed to the Supreme Court. And just a matter of a little more than a month ago, we lost a trailblazing leader in Justice Ruth Bader Ginsburg, leaving open another seat on the Supreme Court that we are now asked to fill. 

Federalist No. 78, also written by Alexander Hamilton, has been referenced many times on the floor in this past year and particularly during this debate, wrote about the Constitution being fundamental law, that it's the will of the people and that the courts are the only true guardians – the only true guardians of the Constitution. That the Constitution is the highest man-made law that any legislative act to the contrary must be held void by the courts since, and I quote, “The interpretation of the laws is the proper and peculiar province of the courts.” That it was the guardian of the Constitution. 

When Madison was talking about this in the 1st Congress, he introduced of course the amendments that became what we call the Bill of Rights today. He said that the courts would quote, “consider themselves in a peculiar manner, the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or the executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.” 

And that idea of this “guardians of the Constitution” that the court plays is a hallmark of our democracy today. And whether or not a justice has the support of a member of this chamber, I don’t believe that anyone would deny that role that our courts must play. And that is that role as guardian of the Constitution. 

But it is clear in the confirmation hearing for Judge Barrett that some people believe the guardian of the Constitution takes on a different hue, that there is more to that role than simply looking at the law and making a decision based on the law. As some called it, I believe it was Justice Scalia and perhaps paraphrased by Justice Gorsuch, that a judge's role is to call balls and strikes. I would add to that it is not their role to call the pitch. 

But what we saw during the Judiciary Committee hearings, of course, was a viewpoint of some that a judge should be more than calling balls and strikes. A judge should be in effect a super legislator. That a judge should accomplish things that this chamber, this Congress, has failed to do. That if there is a shortcoming in a policy that a judge or justice would look the other way and fill in that policy or write that policy or proactively create that policy.

That again, going back to what we have known throughout this country is the guardians of the Constitution, guardians of the Constitution don't make up policy. They don't fill voids of new policies that the legislators didn't do or couldn't do because they couldn't get it through their chamber so they decided they would count on a judge to do it somewhere else.

That's not the role of the courts. It's certainly not the role of a guardian of the Constitution. A guardian of the Constitution is somebody who looks at the law and makes decisions of the law, upholds and protects that will of the people, the fundamental law of the people.

And of course an activist judge, activist justice, would be reaching into the law to fit their own personal opinion or beliefs to craft something that they believe is perhaps more in line with what they thought somebody wanted, more in line with their own opinions, instead of looking at that letter of the law. 

And I think it's important that we keep in mind that's not the role of the courts. If this chamber can't pass a policy or a law, if it can't have its own victory in carrying the day in an argument, it's not up to a judge or a justice to fill in the blank. They have to rule and carry out the law. 

And so that's the real key distinction that we saw during the Judiciary Committee debates. That role of policy maker that some wish Judge Barrett to be, versus that role of protector, that guardian of the Constitution. Calling balls and strikes.

I look at any nominee for the courts, whether it's a district court or appellate court or a Supreme Court through a lens of are they going to protect that Constitution? Are they going to uphold the Constitution, are they going to fight to defend it, that guardian of the Constitution? Are they going to protect and do the same with the law outside of the Constitution, the laws, the statutes that this body enacts, passes, signed into law by the President. Will that judge or justice uphold and defend that law? Not make that law, not change that law, but uphold the law. And of course that guardian of the Constitution role that they will play.

There's no doubt that Judge Barrett's qualifications are immense. Her qualifications as a member of our great American community, somebody with a beautiful family, it's mind boggling. Jamie and I have a challenge with our three kids making sure they get to school on time, making sure they're getting their homework done. I can't imagine seven children while also carrying the schedule that their family does, but it's a testament to the incredible power and leadership of their family, their dedication to being upstanding citizens of this nation and giving back to this nation with this new pursuit. 

We know the keen intellect that has been shared with this country over the last several years in the Seventh Circuit Court of Appeals. And we know her time as a law professor and have had the opportunity to look over a decade-plus worth of work. 

And we know that she is a person of faith in our communities and has come under incredible attacks because of that faith. And we know in this chamber that our Constitution actually forbids the kinds of attacks that we have seen on her faith. Our Constitution makes it clear, there is no religious test. Our Constitution actually makes it very clear that you cannot vote or deny public service appointment to someone because of their religious beliefs. 

We've seen it done, we've seen it tried, especially over the last Congress. We saw it done at the Budget Committee, with the nomination of Russ Vought to be the Deputy Director of the Office of Management and Budget, when a colleague of ours basically said because of his deeply held Christian beliefs that he was not qualified to be a public servant in this country.

I hope the American people are hearing what is happening in some of these debates. That Amy Coney Barrett is attacked because of her faith, but it's not just limited or isolated to her, there are others who are more and more accustomed or who feel more and more empowered, emboldened, to use a person's faith to deny them their vote to a position in our government. 

That is an unconstitutional test that some in this chamber are starting to rely on, and I hope the American people will use this opportunity to see through it, to reject it, and to get back to the values of our Constitution and the intent of that language.

I had a conversation with Judge Barrett, the chance to visit with her, and I talked about those three qualifications to uphold the Constitution. Will you fight to protect the Constitution, will you protect the law, and will you avoid being that activist legislator? Will you avoid legislating from the bench? And I received her commitment. But that is exactly the kind of judge that she will be, somebody to be that guardian of the Constitution, the protector of the law, to call balls and strikes. I talked to her about the importance that I know that the vote that I cast for her is something that matters not just next year or the next year, but 10 and 20 years from now as she is on that court, that that same view will remain. And she assured me that it will because of the same reason that I want it to. That's the future of our kids and their kids.

And she knows it means everything to her children as well to protect our nation's laws and Constitution and to avoid that attempt, that desire, that pull at the heart to legislate. Even if you want to come out with an opinion that is different than your own interpretation of the law, you have to follow the law. And that's what she has assured me she has done. She has assured me that there are moments and rulings that she has issued that she would have preferred a different outcome personally, but that's not what the law required, and that's why she ruled the way that she did. 

In talking to my colleagues on the Judiciary Committee, they talked about her understanding of the law. And watching the hearings, you could sense the deep commitment and devotion to the law.

There was a time several decades ago when President Ronald Reagan went to introduce Justice Sandra Day O’Connor to a group of federal judges at the White House. And Ronald Reagan in his speech talked about what it means to be a judge.  He talked about the exacting standards of integrity, fairness, and intellect that’s required for a federal judgeship. That it provides reassurance to all of us that our ideals of liberty and justice are alive and well. 

He went on to talk about the most important quality that we can have in a judge, and that was wisdom. That wisdom is the quality that we look for most, and I think you can sense the great deal of wisdom in Amy Coney Barrett. He went on to say that we demand of our judges a wisdom that knows no time, has no prejudice, and wants no other reward. We entrust judges with our ideals and freedom and our future depends on the way that judge defines it. It requires the lonely courage of a patriot, and he went on to say that a judge is a guardian of freedom for generations yet unborn.

And so I hope that my colleagues will support the nomination of Amy Coney Barrett. If you could take the politics out of the place, she would probably have a unanimous vote.

Unfortunately, the politicization of this nomination is going to prevent that. But I just urge my colleagues to look past the politics, to look past the partisanship, and to vote for a truly qualified justice who is committed to the law, to the Constitution, who is committed against activism on the bench, and who will make sure that our country for generations to come has a protector, that guardian of the Constitution, with the wisdom to get the job done. 

I urge my colleagues to support Justice Amy Coney Barrett and I am honored, in just a few hours, to know that I will be able to cast a vote in support of soon-to-be Justice Amy Coney Barrett.

Mr. President, I yield the floor.

### 

Cory Gardner is a member of the U.S. Senate serving Colorado. He sits on the Energy & Natural Resources Committee, the Foreign Relations Committee, the Commerce, Science, & Transportation Committee, and is the Chairman of the Subcommittee on East Asia, the Pacific, and International Cybersecurity Policy.