Schumer Floor Remarks – What’s At Stake With Supreme Court Vacancy? Roe v. Wade And Health Care For MillionsJune 28, 2018
Now, Mr. President, yesterday, Justice Anthony Kennedy announced his retirement, creating a vacancy on the Supreme Court. After Kennedy’s departure, the Supreme Court will be evenly divided between justices appointed by Republican presidents and justices appointed by Democratic presidents. Whoever fills Justice Kennedy’s seat on the court will have the opportunity to impact the laws of the United States and the rights of its citizens for a generation.
Because Justice Kennedy was a frequently independent-minded jurist and a deciding vote on important issues like marriage equality and a woman’s right to choose, a more ideological successor could upend decades of precedent and drag America backwards to a time before Americans with pre-existing conditions could affordably access health care, to a time before women could not be prosecuted as criminals for exercising their reproductive rights, to a time before gay and lesbian Americans could marry whom they love. An ideological justice, more extreme in their views than Kennedy, could eviscerate the rights of workers to organize and bargain collectively for a fair wage, and stretch the bounds of executive power for a president who has demonstrated little respect for them.
Now of course, if Republicans were consistent, they would wait to consider Justice Kennedy’s successor until after the midterm elections. Time and time again Leader McConnell justified his unjustifiable blockade of Merrick Garland by claiming the American people should have a voice in deciding the next Supreme Court Justice. That was in February of an election year. It’s now almost July. If the Senate’s constitutional duty to advise and consent is just as important as the president’s right to nominate, which the constitution says it is, why should a midterm election be any less important than a presidential election? Leader McConnell is simply engaging in hypocrisy.
Whomever the president picks, it is all too likely they’re going to overturn health care protections and Roe v. Wade. We don’t need to guess. President Trump has said time and time again he would appoint judges that would do those two things, overturn Roe v. Wade, and overturn health care protections. On November 11, 2016, then-President-Elect Trump said, “I am pro-life; the judges will be pro-life.” In a debate against Secretary Clinton, then-candidate Trump said, “Because I am pro-life, and I will be appointing pro-life judges, I would think that that will go back to the individual states.” It is impossible to conclude that President Trump will appoint a justice who we can have faith will leave Roe v. Wade as settled law. He said, in his own words – President Trump said in his own words – that he wants to appoint a justice to give the court a majority who will overturn Roe v. Wade. So count on it.
President Trump will, in all likelihood, nominate a justice willing to send Roe “back to the states” – again those are President Trump’s own words – where several are preparing, if not already prepared, to roll back a woman’s right to choose. In fact, according to the Gutmacher Institute, there are at least eighteen states where abortion would be wholly or partially illegal almost immediately. That is against what America wants. It is because the president and his hard-right ideological judicial acolytes are way far away from where the American people are, and are trying to create a court to turn the clock backward in so many ways, with Roe at the top of the list.
We also know that President Trump will likely nominate a justice willing to re-interpret the court’s rulings that our current health care law is constitutional. Again, listen to President Trump’s own words. On January 1, 2016, candidate Trump said that “Justice Roberts turned out to be an absolute disaster because he gave us Obamacare.” Later, he said, “I don’t think I’ll have any catastrophic appointment like Justice Roberts.” Even Justice Roberts was too far to the middle for the president on health care. President Trump made it crystal clear that he’s going to nominate someone hostile to the court’s ruling on health care. There’s no other way to interpret President Trump’s words, so count on it. He’ll appoint a nominee who will roll back health care protections for tens of millions of Americans. America doesn’t want that, but again the hard-right acolytes, who President Trump listens to, want to use the courts to rollback American’s rights and privileges.
We can be sure that the next nominee, of course, will obfuscate, deny, and hide behind the shopworn judicial dodge: “I will follow settled law.” As we saw this week in the Janus decision, settled law is only settled until a majority of justices on the Supreme Court decide is isn’t. Yesterday they reversed forty years of precedent in a ruling that stretched the meaning of the First Amendment to meet their ideological predispositions, their anti-union bias.
Already there is a case wending its way through the courts that questions the constitutionality of the health care law. By repealing the coverage requirement, Republicans are attempting to undermine the foundation upon which the Chief Justice based his ruling to uphold the law. If the change in the law changes Justice Roberts’ mind, which is very likely, and the new jurist is as biased against our health care system as President Trump said he or she will be, millions of Americans could see their pre-existing conditions protections wiped out. I say to America: eighty, ninety percent of you believe we should have pre-existing conditions protections. The nominee of the president is likely to undo them, and leave tens of millions of American families helpless. Stand up now, America, before this happens.
The Trump administration decided the federal government will not defend the law protections pre-existing conditions in court. The next Supreme Court justice may be faced with casting a deciding vote on the fate of our healthcare system, and we already know, unfortunately, the kind of vote that President Trump wants. Now, my friend Leader McConnell warned the Senate to not get into personal attacks of the president’s nominee. Of course, he doesn’t seem to mind when the president makes personal attacks his MO, but be that as it may, I can assure my friend the Republican leader that there is no desire and no need to get into personal attacks. There are so many weighty issues hanging over the vacancy: a woman’s right to choose, the fate of our health care law, the pernicious influence of dark money in politics, the right of Americans to marry who they love, the right to vote.
We will discuss these issues on the merits, and consider a nominee in light of these issues. But discussing a preordained list of candidates, who meet the hard-right’s ideological litmus tests? That is certainly legitimate, and we are going to continue to bring that up.
We will evaluate the president’s nominee on the issues. But every American should have his or her eyes wide open to the fact that President Trump is not picking the best legal mind, he has sworn to nominate a justice, culled from a pre-ordained list vetted by the Heritage Foundation and the Federalist Society – organizations whose mission is to repeal Roe v. Wade and strike at the heart of our health care law. Does anyone believe that a nominee on that pre-vetted list doesn’t want to challenge Roe? How do you think they got to be on that list, with the Federalist Society led by Leonard Leo, whose goal is to repeal Roe v Wade, putting it together, and Trump rubber stamping it? Given what the president has said, it is virtually certain that the members of the list of 25 would vote to overturn Roe.
So let this be a call to action, for Americans from all corners of the country, to rise up and speak out. Don’t let this new court, this new nominee whomever he or she may be, turn back the clock on issue, after issue, after issue because President Trump has embraced a hard-right group, who has a veto power over nominees. Don’t let us turn back the clock, America. Stand up, speak out. Democrats, Republicans, liberals, conservatives, all should want a much fairer process. America, tell your senators that if you do not want a Supreme Court justice who will overturn Roe v. Wade, that those senators should not vote for a candidate from the list.