WASHINGTON – Today, U.S. Senator Chris Coons (D-Del.) joined NPR to discuss his concerns about confirming a Supreme Court justice before the next inauguration and the impact on health care access.

“Health care, a fundamental human right, and gender equality in how health care is distributed, is on the ballot because literally a week after the election, the Supreme Court will hear a decisive case. I'll remind you the Affordable Care Act prohibits gender discrimination in how insurance companies provide health care, as well as providing pre-existing condition discrimination protection for 100 million Americans. So the issues really are closely linked, both her legacy and what's in front of the Court,” said Senator Coons. “[G]iven President Trump's promise that he will nominate someone who would affect health care for half of all Americans by attacking the Affordable Care Act, I'm concerned about what it means both for her legacy of advancing gender equity and for the future of the Court and our country.”

Full audio is available here. A transcript is provided below.

Q: Senator Coons, welcome back to the program. 

Sen. Coons: Great to be with you, Jenn.

Q: Well, President Trump plans to announce his choice for the Supreme Court appointment on Saturday. You told Fox News last weekend that filling the late Justice’s seat before the November election would, quote, ‘dishonor her legacy.’ Explain why.  

Sen. Coons: Well first, it is important that we take a moment and reflect on her actual legacy. Later today I'll be going to pay my respects as she lays in repose in the Supreme Court before she moves to lie in state in the United States Capitol. And she was a towering figure in American law despite her diminutive stature and her often soft voice, she spoke loudly and fiercely through her writings, through her defense, through her actions about the importance of gender equality, about the significance of our Constitution, about the importance of the Supreme Court. And so I am concerned, gravely concerned, that as the Republican majority here in the Senate barrels towards a partisan confirmation exercise just forty-one days before an election, in which half the states have already started voting, that we would not just dishonor her dying wish, which she dictated on Rosh Hashanah to her granddaughter that the voters would choose the next president and the next president her successor, but given President Trump's promise that he will nominate someone who would affect health care for half of all Americans by attacking the Affordable Care Act, I'm concerned about what it means both for her legacy of advancing gender equity and for the future of the Court and our country.

Q:  Well, many are pointing to 2016 as the rule book for handling this nomination. That's the year Republicans blocked President Obama's Supreme Court nominee, Judge Merrick Garland. Back in 2016, you argued that the seat should've been filled as soon as possible. In your view, why is this nomination different from 2016?

Sen. Coons: There's two differences, but you know frankly the larger point is no president in modern history, no Senate in modern history, has nominated and confirmed a justice to a vacancy this close to an election. Justice Scalia passed in February, more than 10 months before an election. Justice Ginsburg passed very close to this election. As I said, it's just 41 days. But in some ways it's more important that the Republican majority insisted, demanded, forced a new standard four years ago. Many of them came to the floor and spoke about the significance of letting the American people pass judgment on the issues of significance that would be before the Court and thus which president should choose. Health care, a fundamental human right, and gender equality in how health care is distributed, is on the ballot because literally a week after the election, the Supreme Court will hear a decisive case. I'll remind you the Affordable Care Act prohibits gender discrimination in how insurance companies provide health care, as well as providing pre-existing condition discrimination protection for 100 million Americans. So the issues really are closely linked, both her legacy and what's in front of the Court, and I think a key difference between 2016 and 2020 is how the Republican majority is conducting themselves.

Q: So what I hear you saying is really two things. On one hand, you think the American people should, through their election of a president, have a say in who the next Supreme Court Justice should be or that that justice’s views perhaps align with their own. But you also are asking Republicans to follow the same rules they set up during President Obama's nomination of Merrick Garland. Is that an accurate portrayal?

Sen. Coons: That’s right, Jenn. Two of my colleagues have already announced that they will not support or participate in a vote before the next inauguration. And my colleague Senator Murkowski said it concisely, but most appropriately: fair is fair. If we voted for and held up a standard in 2016 that we shouldn't fill a vacancy, even more so in the midst of a pandemic, a national crisis when Majority Leader McConnell isn't negotiating, isn’t making progress towards another pandemic relief package, and where issues of such consequence are clearly on the agenda for the Court, we shouldn't be moving forward.

Q: Yesterday, Senator Mitt Romney, a Republican from Utah, announced that he would not block the president's nominee from being considered. So that means Senate Majority Leader Mitch McConnell likely has the votes he needs to move forward with the nominee. So what happens now? What can Democrats do, if anything, to delay this process? 

Sen. Coons: Well this is the Republican majority institution, and they have the ability if they're willing to blast through norms and precedent and tradition to race to a confirmation. But the timeline between now and when Chairman Graham will most likely hold these hearings is shorter than it's been for any of the nominees that have come forward at least while I've been here. The ability for us to have a thorough background, and to read, and to meet with the nominee, which is what I've done with Justices Gorsuch and Kavanaugh, will be deprived for us. I frankly also think it'll impede the ability of the American people to have their voices heard because, at least if the public commentary is to be believed, which I think it should be, the Majority Leader and the Judiciary Committee chairman are determined to race ahead with confirmation and votes even if they lose the election in the fall. We may well see a vote in the lame duck of a newly overturned majority.

Q: Well, Emily asks on Facebook: ‘What are he, meaning you, Senator, and other Democrats doing to reach across the aisle to make a SCOTUS decision best for all Americans?

Sen. Coons: I actually had dinner with Republican colleague Monday night to have an earnest conversation both just about how broken the Senate is more broadly in the ways in which we're not reaching another compromise. Six months ago, I’ll remind you, we unanimously passed a 2.3 trillion dollar Covid relief bill that's played a critical role in helping our hospitals, our schools, our states, our communities, individual families respond to this pandemic made worse by the Trump administration's bungled handling of it. Tragically, we were just reflecting this week on the two hundred thousand Americans who’ve died. I had dinner Monday to talk with a dear friend who’s a Republican colleague, who is retiring, about what, if anything, he's willing to do within his caucus and within the Senate. And I've talked individually and by phone and in other ways by a whole series of currently serving and formerly serving Republicans, because bluntly the best outcome here of course would be for four Republican senators to say, ‘We recognize the harm it will do to the institution, to the Senate, to the country to race through with this partisan nomination.

Q:  Well, Elizabeth wrote to us on Facebook saying, ‘If the Democrats threatened to add additional seats to the Supreme Court, it will become a huge Republican talking point and will backfire against the Dems. First, Senator, do you support adding additional seats to the Supreme Court?

Sen. Coons:  I don't think it should come to that, meaning I think we should not have the hearings and a vote that are currently being urged by Republicans.

Q: But with the understanding that Republicans are in the majority and if they make the decision to move forward with this, there's little Democrats can do to block it, would you be open to adding additional seats to the Supreme Court?

Sen. Coons:  You know, I'm not going to speculate on what we might do, because frankly that's a purely hypothetical situation at this point. We’d have to win the presidency, we’d have to win the majority. And frankly, what we do then will depend on what Republicans do now and what we think the country can bear. We are in the middle of three crises right now, Jen: a nationwide public health pandemic... the worst a century…  the worst recession that we've had since the Great Depression, and a renewed focus on racial justice and the need for us to address equities – both of health and education and opportunity and policing. We're going to need to find a clear path forward to address all of these, and the Republicans in the Senate are merely throwing fuel on the fire by doing this and trying to install a generational six to three conservative majority on the Court in a way that just compounds the grievance caused by their holding open for so long the seat of former Justice Scalia. Justice Scalia and Justice Ginsburg, as you noted, were friends. And one of the things that I've repeated in recent days is a quote by Justice Ginsburg: ‘Fight for the things you care about, but do it in a way that will lead others to join you.’ I'm concerned that this body, the Senate, is becoming more and more divided, more bitter, and more partisan... and simply threatening each other publicly more I think contributes to that division.

Q: Very briefly, Senator, we're going to be speaking about the pandemic for the rest of the hour. There have been reports that emerged from NBC that says the CDC's director undercut the work of their own scientists, and there's concern that the CDC director, Robert Redfield, is caving to political influence instead of protecting the integrity of the agency’s work. Do you think Robert Redfield should resign? 

Sen. Coons: I don't have the evidence right in front of me. I’m not a member of the relevant committee. I know there’s a hearing on that this morning. But I worked closely with Tom Frieden, his predecessor, who repeatedly has publicly commented there was only one political appointee when he was there. Now there's six or seven. There's clearly political influence afoot at the CDC, and it may require some remedial action as you suggest.

Q: That’s Democratic Senator Chris Coons of Delaware. Senator, thanks for your time.

Sen. Coons: Thank you, Jenn. 

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