The presiding officer pursuant to rule 4, paragraph 2, the senate having been in continuous session, the senate will suspend for a prayer from the senate chaplain. The chaplain let us pray. Holy god, as our lawmakers strive on this decisive day in history to accomplish your purposes, show them how to discern your will. May they renew their minds through the in yourishment of your an hourishment of your holly word. Lord, prepare them to be sober minded and filled with your spirit, accomplishing the tasks that receive your approval. Lord, keep them from conforming to worldly impulses, as they strive to ensure that their conduct will rightly represent you. May they conduct themselves with holiness, godliness, and civility, waiting for the day when you will return to establish your kingdom on earth. Lord, prepare us all to stand before you in peace without spot or blemish. We pray in your powerful name. Amen. Mr. Lee mr. President. The presiding officer the senator from utah. Mr. Lee mr. President , its hundredor and a privilege to speak on behalf of the confirmation of judge Amy Coney Barrett to the Supreme Court of the United States today. One of judge barretts familiar themes, one that she has invoked in speeches when speaking about the constitution and the roll of a federal judiciary involves a line from od e cius, involves a reference to the odyssey. She says, the constitution is like how odicius ties himself to the mast. He tells his crew, dont untie me no matter how much i plead. Thats what weve done as the American People with the constitution. Weve said as the people sober appealing to the people drunk, when youre tempted to get untied, when youre tempted to get carried away by your passions and trample on the First Amendment rights or minority rights, this document will hold you back, close quote. Judge barrett points out a very critical matter here, an absolutely essential matter, which is, first of all, that the whole point of having a constitution involves restraining and restricting government as it relates to the judiciary, it involves acknowledging the necessarily limited, finite and confined role of the judiciary. Sometimes when people refer to the three barches of the federal branches of the federal government, theyll bet get it backwards, sometimes they will refer to the Judicial Branch as if it were the most powerful. This gets it exactly backwards. It was designed to be and it is the least Dangerous Branch of the three branches. Thats not to say that its not dangerous at all. Government generally is something, that while necessary, is dangerous, just like water or fire or wind or oxygen or any of the things that we depend upon for our daytoday existence, government, including the power of the judiciary, itself, has to be managed carefully and it has to be challenged and if its not, it will become dangerous. And so thats why we have a constitution is to restrain government because government is force. Government is nothing more or nothing less than the collective coercive use of force. We use it to protect life, liberty, and property. We use it to make sure that people dont harm each other and to make sure that we are protected from our adversaries within and without our borders, our boundaries. But if we lose sight of what government does and what it doesnt do, what it can and cannot do, what it may and may not do, or what any branch of the government may do, we find ourselves in troubled, troubled waters. The reason i say that the Judicial Branch is the least dangerous of the three is that it doesnt possess the power to say what should be only what is. The power of the legislative branch where we serve is the most dangerous of the three because we have the power to prohibit conduct, we have the power to prescribe policy. We make the law. The secondmost dangerous power is probably that which is held in the executive branch. They have voluntarily relinquished the role that is by constitutional mandate ours to mostly unelected bureaucrats who are in some cases the president of the United States or those who serve under his employ. But the Judicial Branch possesses neither the power of the purse nor the power of the sword. We spend the money, prescribe the policy. The executive branch has the ability to implement and execute the law, hence the power of the sword. The Judicial Branch possesses only the power to decide what the law says. In that respect its operating as if through a rearview mirror. Its not saying what should come or what should be but what already is, what the law as it already exists means. In order to do that, the Judicial Branch has to come to a conclusion that our laws consist of words and those words have meaning and that in order to tie themselves to the constitutional mast, in order to make are sure that they themselves are able to resist the siren call of power and to keep each of the three branches of government in check insofar as its their prerogative to do so, they have to check continually and have to check constantly with the words of the u. S. Constitution and the words of the law itself. Yes, it matters. Yes, these things are easily ignored them these powers are easily abused and often have been abused. There are a number of reasons for this. They have to do mostly with human nature itself. Human beings are flawed, they crave power, they tend to act toward those things that make them more powerful if they are already in positions of government authority. Thats why its easy to understand from time to time the courts stray. I want to be very clear at the outset. The federal court system, notwithstanding its flaws, is the best of its kind in the world. There is no judicial system anywhere else in the world that im aware of that is as respected or consistently dedicated to the rule of law to interpreting the law consistently and faithfully as is our federal court system. The Supreme Court of the United States has made some very bad decisions along the way. For the most part it gets things right. It may come as a surprise to Many Americans, that of all of the decisions the Supreme Court decides in a typical year, in modern times its most common that the Supreme Court decides those questions either unanimously or with near unanimity. Most cases at the Supreme Court are decided at 90, 81 or 72, the overwhelming majority. These, keep in mind, are cases with few exceptions are proven difficult for the lower courts. Theyve caused some of the greatest legal minds in our country to address the same finite legal question and to come up with different results and yet the Supreme Court of the United States, for the most part, decides these cases with unanimity or nearly unanimity. Why . Well, because most of the time they tie themselves to the mast. They remember what is their charge. They remember that they are there not to decide matters of policy but to decide questions of law and they cant just reach out and say, i dont like this type of law, lets go after this type of law and attack it or undermine it or lets pursue this line of law that should be in place and isnt. They dont have that authority. They have to have a case or controversy, meaning one or more parties that can properly invoke the jurisdiction of the court and they have to have an actual live, ripe dispute between people who are actively affected by the law and then and only then may the court act. From time to time, however, the cower has been however, the court has been tempted to give into the siren call, to make law. It isnt always with the same political objectives in mind and those objectives can change over time. To cite one of many examples we could point to today, i will point to decision made by the Supreme Court in a case called locknerv. The state of new york. The state had governed laws for bakery employees in the state of new york. The Supreme Court of the United States decided that those laws were bad. They didnt like them. And on that basis it said, in essence, these laws are bad and they are so bad that they must be unconstitutional. They are so bad and they lack any legitimate purpose that we can see, were therefore going to deem this part of the due process protections, the due process protections that are covered by the 14th amendment to the constitution and allow us to impose our Judicial Authority on state law and invalidate that state law. Their reasoning essentially amounted to that. We dont see any good reason for this law, we therefore deem it incompatible, inconsistent, irreconcilable with due process and strike it down as unconstitutional. This, in my view, was wrong. It was a problem. It was a political dispute that was becoming increasingly common as the progressive era was gaining momentum. Conservatives in the country were losing many of these battles in many lawmaking bodies, including apparently the new york state legislature. They didnt like it. And so these particular jurists on this particular day chose to exercise their authority as jurists to strike down that law even though it was really a political argument they were making. Even though it wasnt within their jurisdiction. So they stretched the meaning of the law, the concept of due process so they could declare this a constitutional violation. They took debatable matters beyond debate, not only beyond debate but they took them outside the proper realm of state law jurisdiction, and outside the context of legislation and debate surrounding such legislation within political branches of governments generally, whether state or federal. Thesaid this is now federal they said this is now federal. Were going to make it federal such you cant legislate in this area because we dont like it. Because we dont like it, were going to say its part of the constitution, part of your due process protections. Notwithstanding the fact that due process as the name implies is about process. Its about making sure you have your day in court, making sure you have access to tools connected to fundamental fairness on procedural questions, not an outcome. So when lochner v. New york, the Supreme Court justices untied themselves, as it were, from the mast of the constitution. They did so in a way that was harmful and unsustainable. They do so notwithstanding the fact that there was no logical end point to this. It was very difficult to conceive of any question of Public Policy that could not and ultimately would not come before the Supreme Court of the United States if you used fair standard of analysis. This law really doesnt do anything good. It doesnt its not something thats got a legitimate purpose so were going to strike it down. Fortunately the Supreme Court of the United States took many years to do it, they eventually saw the error of its ways and eventually overturned lochner v. New york. In many instances we ought to look back at that moment and say we dont really want the Supreme Court taking debatable matters beyond debate. Thats how political accountability works in this country. If you have something that you dont like as a matter of policy, you ought to try to change it before the legislative body in which its properly considered. Now if its unconstitutional, yes, it should be unconstitutional. Im not one who focuses obsessively on judicial activism for fear that by focusing obsessively on judicial activism, we will perpetuate the idea that really what we want is judicial passivity. We dont want either. It is just as bad to invalidate as unconstitutional a law that is in fact not unconstitutional as it is to leave intact an unconstitutional law that is constitutionally defective. Both are equally repugnant to the constitution, both represent an effort by jurists to untether themselves from the mass of the constitution and the finite judicial role. Justice scalia was someone who was nominated to the Supreme Court of the United States in 1986. He was confirmed overwhelmingly by a vote of 980 if i recall. Justice scalia was someone who while a law professor and later while serving as a judge on the u. S. Court of appeals for the d. C. Circuit had acknowledged the need for judges to keep themselves tethered to the mast. Had acknowledged the need for them to if he cuss focus on deciding cases based on the law rather than on the basis of favorable policy outcomes. This was at once a somewhat revolutionary idea at the time and yet it wasnt overwhelmingly controversial at the time given the fact that he was confirmed by a vote of 980 to the Supreme Court of the United States. But over the next three decades or so while he served on the Supreme Court of the United States, Justice Scalia revived, he restored this concept, this constitutional understanding of the proper role of government and of the proper role of each branch of the federal government, including and especially the Judicial Branch of the federal government during his service on the Supreme Court of the United States, he was able to mentor a number of law clerks, including judge Amy Coney Barrett. Judge barrett has explained that she believes in the same line of reasoning. She believes that judges and justices need to tether themselves to the mast of the constitution. They need to confine their role to that that involves judging, and they need to not covet and ultimately try to overtake the role of the elected lawmaker or the role of the executive. One has the power of policy and the purse. The other the power of the sword. But as Alexander Hamilton explained in federal list 78, there isnt federalist 78, there is a profound difference. The legislative branch he explained has the power of will. It exercises will when it decides what should and should not be within the law. The power of the judiciary by contrast involves only the power of judgment to decide what the law says. Thats the kind of jurist that we need today. Now make no mistake, this is not a conflict that involves a desire to put on the Supreme Court of the United States people who will wage Political Warfare within the Judicial Branch from the conservative side. Its not that. Its not anything close to that. In fact, its the opposite of that. We dont want judge barrett on the Supreme Court to be our advocate. We want judge barrett on the Supreme Court to decide law, to decide cases based on what the law says, to keep herself tethered to that mast because its through that mast that our rights are protected, that we are able to elect people who will exercise sound judgment in deciding what the law should be, and, yes, we want them to strike down laws when theyre unconstitutional. But, no, we dont want them striking them down simply because of a policy disagreement. In fact, all of our political, our economic, and our civil rights end up being tied to this very feature within our government. Theyre all protected by the willingness of our jurists to keep themselves tethered to the constitutional mast. Just as owe business yus in odysseus no matter how he might plead hearing the call of the siren, he knew it was important for him to stay on task, to stay focused on his job. Judge Amy Coney Barrett is an exceptionally well qualified and talented legal mind and jurist. Shes bright. Shes articulate. Shes, as weve seen, unflappable, and shes willing to set her mind on that course. To uphold and protect and defend that document that will i believe was written by wise men, raised up by almighty god to that very purpose. That document in so far as weve followed it has fostered the development of the greatest civilization the world has ever known. I hope that it ever will be that way because its a strong and sure Foundation Upon which weve built, but we need people who believe in that foundation and are willing to tie themselves to it. Thank you, mr. President. A senator mr. President . The presiding officer the senator from alabama. A senator mr. President , i ask unanimous consent that my entire statement be made part of the record. The presiding officer without objection. Mr. Shelby mr. President , during my time in the u. S. Senate, ive had right here the privilege of being part of the confirmation process for each justice currently sitting on the Supreme Court. Yes, each one. As such over the years ive had the opportunity to meet with many of the nations most tale talented jurists. At this time i consider judge Amy Coney Barrett to be the most qualified Supreme Court nominee that ive encountered in my 34 years in the United States senate. Let me explain. Education. Its important. Judge barrett was born and raised in the new orleans area. Shes the eldest of seven children, has been spoken as has been spoken of here. And if you take a look, mr. President , at her scholastic credentials, you know she was an ex