John Kennedy’s opening statement in Barrett Supreme Court confirmation hearing
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October 12, 2020

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On 10/12/2020, in Barrett Supreme Court confirmation hearing, Senator John Kennedy painted a colorful picture for how Barrett’s confirmation hearing could take a turn for the worse, recalling the chaos that engulfed Kavanaugh’s confirmation hearings in 2018. “Now look, judge, I’m not naive. I understand this thing can turn sour real fast. We all watched the hearings for Justice Kavanaugh. It was a freak show. It looked like the cantina bar scene out of Star Wars,” said Kennedy. “I know it hurts to be called a white colonialist. I know it must hurt for someone of deep Christian faith like yourself to be called a religious bigot. And to have it implied that because you’re a devout Christian that you’re somehow unfit for public service. I know you think it’s unfair, it is unfair for my colleagues to suggest some overtly, some more indirectly that if you’re put on the United States Supreme Court that you will be on a mission from God to deny health care coverage for pre-existing conditions for every American. I know that seems preposterous to you and it seems that way because it is.”

“This process is not supposed to be the Big Rock Candy Mountain,” Sen. Kennedy said. “Our job is to advise and consent, and that’s one way of saying that we’re supposed to make sure that the president has – whatever president makes the nomination – hasn’t made a mistake.” ” I think our founders intended federal judges to call balls and strikes. I don’t think our founders intended for judges to be able to draw the strike zone,” Sen. Kennedy said in a baseball analogy.

“It sounds as if one of the attacks against her will be the allegation that if she is confirmed to be on the Supreme Court, she will be on a mission from God to personally deny insurance coverage to all Americans [with] pre-existing conditions. I think most of my colleagues know that’s not true.”
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Full Transcript
Kennedy: You have a beautiful family judge. We claim you in Louisiana. We’re proud of the fact in Louisiana that you were born in Metairie, a suburb of New Orleans, and we’re proud of the fact that you got a solid education at St. Mary’s Dominican High School. Come back and visit us. I know your mom and dad still live there and we’re very proud of you and your career.

Kennedy: This was a solemn occasion, as it should be. I can’t think of another position, at least not a position that is for life, not a position in which the occupant is not elected by the people, that is more powerful, at least not in the Western world, than an associate justice of the Supreme Court. This process is not supposed to be the Big Rock Candy Mountain, our job is to advise and consent. That’s one way of saying that we’re supposed to make sure that whatever president makes the nomination hasn’t made a mistake, and we all, as you can see, take that job seriously, as you can see, and we know you respect that.

Kennedy: That’s why I think over the next several days, it’s appropriate for us to talk about your intellect, which is obvious, by the way, and your temperament, your character and your judicial philosophy. I hope we can talk about something else. That’s the role of the federal judiciary in American life. Now, look, judge, I’m not naive. I understand this thing can turn sour real fast. We all watched the hearings for Justice Kavanaugh. It was a freak show. It looked like the cantina bar scene out of Star Wars.

Kennedy: I know, for someone unaccustomed to it, that it hurts to be called a racist. I think it’s one of the worst things you can call an American. I know that it hurts to be called a white colonialist and I know it must hurt for someone of deep Christian faith like yourself to be called a religious bigot, and to have it implied that because you are a devout Christian, that you’re somehow unfit for public service, before it’s over with, they may call you Rosemary’s baby for all I know. I hope not.

Kennedy: I know, as we’ve seen this morning, I know you think it’s unfair, it is unfair, for my colleagues to suggest some overtly, some more indirectly, that you’re put on the United States Supreme Court, you will be on a mission from God to deny healthcare coverage for free existing conditions for every American. I know that seems preposterous to you, and it seems that way because it is. Take comfort in the fact that the American people, some of my colleagues disagree with this statement, they believe in government. I believe in people. The American people are not morons. They can see drivel when they see it and they can appreciate it when they see it for being what it is.

Kennedy: Now, let me turn to what I hope, quickly, we can talk about today. Americans love democracy. We’ll even fight for it, and we have, and that’s a wonderful thing. It’s an important thing in today’s world as this world becomes more authoritarian, and our founders … But we don’t have a pure democracy. As a columnist I read this morning said, “When we have to decide a complex issue dealing with social norms or economic issues, we don’t all put on a Toga and go down to the forum and vote. We have elected representatives.” Those are members of Congress, and it is our elected representatives job to decide social and economic policy, and if we don’t like what they do, they’re accountable, we vote them out.

Kennedy: But in the last 50 years, certainly in the last 25, the United States Congress, either voluntarily or involuntarily, has seeded a lot of its power to the executive branch and to the federal judicial. When I say the executive branch, I’m not necessarily talking about the president, I’m talking about the administrative state. The bureaucracy as some call it. It’s this giant rogue beast that enjoys power now, that only kings once enjoyed.

Kennedy: Members of the administrative state write their own laws, they interpret their own laws, they litigate their own laws in their own courts before judges that they oppose, and Congress has allowed that to happen. I think Congress has also abdicated a lot of power to the federal judiciary. I do. I’m not sure saying that federal judges don’t make law, of course they make law. They make law in the context of a specific case, it’s called judicial precedent.

Kennedy: But our founders intended federal judges to exercise judicial restraint and to understand the special role, scope and mission of the federal judiciary vis-a-vis the United States Congress. I don’t think our founders intended judges to be politicians in robes. I think our founders intended judges, federal judges, to tell us what the law is, not what the law to be. I think our founders intended, as the chief justice put it, I think our founders intended federal judges to call balls and strikes.

Kennedy: I don’t think our founders intended for federal judges to be able to redraw the strike zone. I don’t I think our founders intended for judges to be politicians in robes. Politicians, you don’t want the United States Supreme Court to turn into this, trust me. Politicians get to vote their preferences under our democracy. Judges do not. Judges do not.

Kennedy: Finally, unlike some of my colleagues, I don’t think our founders intended the United States Supreme Court to become a mini congress. I don’t think our founders intended members of the United States Supreme Court to try to rewrite our statutes, or the United States constitution every other Thursday to prosecute a social or an economic agenda that they can’t get out the voters. That goes on in America every day. We’ve reached the point where one single solitary judge, in a limited venue, can enjoin a federal statute or an executive order of the president of United States for the entire country. Our founders never intended that.

Kennedy: I want to close with two very short quotations, the first stated much more eloquently than I can is Justice Curtis in 1857, you probably read it. He was dissenting in the Dred Scott Case. This is what Judge Curtis said, ” When a strict interpretation of the constitution, according to the fixed rules which govern the interpretation of laws is abandoned, and the theoretical opinions of individuals are allowed to control it’s meaning we have no longer a constitution. We’re under the government of individual men, who for the time being, have power to declare what their constitution is, according to their own views of what it ought to mean.”

Kennedy: And finally, a more contemporary statement from a gentleman that you’re very familiar with, Justice Scalia. He said it in real-world terms, this is what he said, “The American people love democracy, and the American people are not fools. The American people know their value judgments are quite as good as those taught in any law school, maybe better. Value judgements after all should be voted on, not dictated.” Thank you, Mr. Chairman.
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