Massachusetts U.S. Senator Ed Markey (D-Malden) attacks originalism and Amy Coney Barrett during a speech on the floor of the United States Senate. Screenshot of footage from C-Span.
Massachusetts U.S. Senator Ed Markey called originalism — a legal theory that judges should interpret the U.S. Constitution as it was drafted – “racist,” “sexist,” “homophobic,” and “just a fancy word for discrimination.”
He also linked U.S. Supreme Court nominee — and now new justice — Amy Coney Barrett with what he described as discriminatory treatment against various minorities.
Markey spoke Monday, October 26 against the nomination of Barrett to the U.S. Supreme Court – about four and a half hours before the Senate confirmed her, 52-48, largely along party lines. Barrett was sworn in by Justice Clarence Thomas outside the White House at about 9:17 p.m. Monday.
Markey, foreseeing the confirmation vote result, called it “the outright theft of yet another seat on the United States Supreme Court.”
“You can’t spell ‘shameful’ without sham,” Markey said. “And that’s what Republicans have turned this Supreme nomination process into – a sham.”
Markey accused Republicans of dragging their feet on federal coronavirus aid.
“Yet, when it comes to filling a vacancy on the Supreme Court, and confirming a far-right justice,” Markey said, reading from a prepared text, “the same Republicans moved with a speed that would make Usain Bolt jealous.”
Toward the end of his speech Markey said Republicans should have honored the justice Ruth Bader Ginsburg’s reported dying wish that President Donald Trump not name her replacement before the presidential election.
“But if Republicans succeed here today in their efforts to confirm yet another Supreme Court justice just days before the presidential election, as soon as the Democrats take back control of the Senate in January, we must abolish the filibuster, and expand the Supreme Court,” Markey said (at 27:26:50 of the C-Span video). “We cannot allow such corrupt partisanship to take precedence over justice and liberty in our country.”
Earlier (at 27:18:36), Markey sharply criticized Barrett and what she believes in:
Judge Barrett is a proud originalist and textualist, in the mold of her mentor, the late justice Antonin Scalia, one of the staunchest and most arch conservatives ever to serve on the United States Supreme Court. And as Judge Barrett put it at her own confirmation hearing, “Justice Scalia’s judicial philosophy is mine, too.”
As Judge Barrett described so-called “originalism,” it means she’s supposed to interpret the constitution’s text and understand it to have the meaning it had when the constitution was ratified. But interpreting the constitution in that manner has been used over and over to deny rights to women, to communities of color, and to the LGBTQ individuals – members of our community who had no rights when the constitution was ratified.
Originalism is racist. Originalism is sexist. Originalism is homophobic. For originalists, like Judge Barrett, LGBT stands for “Let’s Go Back In Time” – a time when you couldn’t marry who you love, when you couldn’t serve in the military if you were trans, a time when rights were not extended to gay, lesbian, bisexual, transgender, queer, questioning, or intersex individuals.
Originalism is just a fancy word for discrimination. It has become a hazy smokescreen for judicial activism by so-called conservatives to achieve from the bench what they cannot accomplish through the ballot box, and an elected Congress. And as a result, they roll back individual rights through judicial decision.
Nearly six hours later Monday night, Justice Barrett spoke shortly after her swearing-in outside the White House.
The confirmation process has made ever clearer to me one of the fundamental differences between the federal judiciary and the United States Senate. And perhaps the most acute is the role of policy preferences.
It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside.
By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them.
Federal judges don’t stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government. A judge declares independence — not only from Congress and the president, but also from the private beliefs that might otherwise move her. The judicial oath captures the essence of the judicial duty: The rule of law must always control.
Massachusetts U.S. Senator Ed Markey (D-Malden) attacks originalism and Amy Coney Barrett during a speech on the floor of the United States Senate. Screenshot of footage from C-Span. 
