Sen. Franken’s remarks as prepared for delivery:
Shortly after I (finally) became a Senator, I was appointed to the Judiciary Committee.
At first I thought: Well, this is weird. I'm not a lawyer. How am I going to ask the right questions?
But I did some research and discovered most Americans aren't lawyers. It's true.
And so to me, the right questions aren’t the ones a lawyer would necessarily ask. They’re questions the American people would ask.
And that’s what I did in my first hearing. It just happened that my first hearing was a high profile one: the Judiciary Committee was considering the nomination for Sonia Sotomayor to the U.S. Supreme Court.
I got an early lesson on my unique challenges as a Senator, because a lot of attention was paid to a colloquy I had with now Justice, then Judge Sotomayor. Sotomayor had told my colleague Amy Klobuchar that she had become a prosecutor because of The Perry Mason Show. So when it was my turn, I told her that it intrigued me that she had been inspired to become a prosecutor by a show in which the prosecutor lost every case. And she said very pointedly, “Except one.”
I said, jokingly, “We’ll get to that later” with absolutely no intention of doing that. But toward the end of my 30 minutes, I had a little less than two minutes left and not enough time to develop my last line of questioning. So, I said, “OK. What was the case that Perry Mason lost?”
And Judge Sotomayor said, “I don’t know.”
And I said, “Didn’t the White House prepare you?
And that got a big laugh and a lot of attention. “Al Franken’s long-awaited first joke.”
Unfortunately, that exchange overshadowed a far more important exchange we had had moments earlier.
Let me set it up a bit. The day before, one of my Republican colleagues had been - I guess the right word is “hectoring” - Judge Sotomayor, repeatedly asking her whether the word “abortion” appeared anywhere in the Constitution.
Of course, it doesn’t. But whether it does or not is beside the point. So she answered by speaking to the question behind the question. But finally after being asked for the third time, Judge Sotomayor replied, “No. The word ‘abortion’ is not in the Constitution.”
Which my colleague treated as an “Aha!” moment.
So the next day, I felt compelled to follow up.
I brought up her exchange with my colleague from the previous day, and then asked, “Do the words ‘birth control’ appear anywhere in the Constitution?”
“No, they don’t,” Judge Sotomayor replied quite correctly.
“How about the word ‘privacy?’ Does that appear anywhere in the Constitution?”
She said. “No, the word ‘privacy’ isn’t in the Constitution either.”
I think you can see where I was going. And so could everyone in the hearing room.
You know, there are a lot of words that express bedrock constitutional principles – words like federalism, checks and balances, and separation of powers – that never appear in the Constitution. That doesn’t mean that the Constitution didn’t set up a federalist system, enumerating certain express powers to the federal government and reserving certain powers for the states. And it doesn’t mean that the Constitution didn’t set up a system of “checks and balances” by creating the legislative, executive, and judicial branches, granting each certain powers, creating what is well known as a “separation of powers.”
And even though the word "privacy" does not appear in the Constitution, the Court has long recognized a protection for privacy.
And that is why I followed my questions about the words “birth control” and “privacy” to ask whether Judge Sotomayor agreed that the Court had held that the Constitution created not just a right to privacy, but that it was also established precedent that women had a right to choose to have an abortion.
She said, yes, that was established precedent. That it was settled law. And she agreed that the job of a Supreme Court justice was not to make new law from the bench.
You know, it’s funny. Whenever a Republican runs for the Senate or for president and is asked, “What do you look for in a prospective Justice for the Supreme Court?” Republicans always answer, “I want a judge that doesn’t make law from the bench.”
And then they’re asked, “Can you name a Justice on the Supreme Court that bests reflects your philosophy?” And then they answer Antonin Scalia or Clarence Thomas. Clarence Thomas, who has voted to overturn more federal laws than any Justice on the Court. And now they might answer “John Roberts.”
John Roberts, who during his own confirmation hearings promised the Senate that he “had no agenda” and that he would follow the precedents of the court.
Let me quote John Roberts from his confirmation hearing: “I do think that it is a jolt to the legal system when you overrule a precedent. ... It is not enough that you may think the prior decision was wrongly decided.” And then, “The role of the judge is limited; the judge is to decide the cases before them; they’re not to legislate; they’re not to execute the laws.
This is the same Roberts who, just last month, decided that he was neither guided nor bound by precedent. It was Roberts and his court who overturned a century’s worth of established precedent, and gave corporations even more power to drown out the voices of average Americans in our electoral system.
It was Roberts who made the term “settled law” an oxymoron. (I’ll take a break for a moment while you think about that.)
I think Norm Ornstein put it best: “Chief Justice Roberts broke every vow he made in his confirmation hearings… It is sad – made sadder by knowing that for perhaps decades to come, the United States will have a chief justice who would, and did, say anything to burnish his reputation and avoid a rocky confirmation hearing, and showed that his words mean nothing.”
For anyone who took comfort in claims made by conservative justices that they would respect the precedents of Roe, the Citizens United case should be the wake-up call of the century.
And that is why…
Even though we have elected a pro-choice president to the White House.
Even though we have confirmed Sonia Sotomayor to the Supreme Court.
Even though we have expanded the pro-choice majorities in the House and Senate.
Even though we ended the international gag rule.
Even though we saw the abortion funding ban lifted in the District of Columbia.
… we cannot get complacent.
In the last year alone….
We saw Representative Bart Stupak use the health care bill as a bludgeon, restricting women’s health choices in a bill that was meant to expand them.
We watched with frustration as the Supreme Court overturned a century’s worth of precedents to further their conservative activist agenda.
We are watching as the Senate continues to block Dawn Johnsen’s confirmation to a critical role at the Department of Justice because of her pro-choice views.
And we saw Dr. Tiller murdered at church… AT HIS CHURCH…. murdered for the choice he provided for women.
I want to thank Dr. Sella for being here today, and I want to join you in honoring his memory.
And that’s why the work you do at NARAL is indispensible. Because the forces on the other side are persistent, single-minded, and even violent
A woman’s right to choose is never fully won. It must be won anew every day, every year, every Congress, and every generation.
Even though most Americans support abortion rights, even though most Americans understand that no woman ever plans an unwanted pregnancy, that no woman ever thinks she’ll have to make such a painful and personal choice, those who would deny that choice press on, undeterred.
In a lot of ways that fight is going to be incremental. In 2007 – after Justice O’Connor’s departure, we saw the Roberts Court reject the longstanding precedent that an exception for a woman’s health must be a component of any law that restricts abortion rights.
Even when the woman’s health includes her reproductive health. That’s what Dr. Tiller did so often in his work. Perform abortions on fetuses that would not be viable outside the womb in order to protect a woman’s ability to bear children in the future. Ironically, what could be more pro-life?
I fear this Court – and anti-choice advocates – are happy to adopt an incremental strategy that makes it harder for you to marshal your forces. They’re happy to keep chipping away, again and again, at abortion rights in a way that the American people might not even notice.
If we’re waiting for that one big galvanizing event, that one event that will mobilize progressives to action, I think we have to recognize that that day may never come.
Not until the force of Roe has already been degraded beyond recognition.
So what do we know?
We know that having pro-choice majorities in Congress isn’t enough.
That anti-choice legislators – on both sides of the aisle – can and will do whatever they can to force those of us who believe unconditionally in a woman’s reproductive rights to choose between two bad outcomes:
Look at what they did, pitting abortion issues against health care expansion – pitting the president’s signature legislative goal against a position that he, and we, abhor.
We learned that in the House, a group of anti-choice Democrats wield incredible power. And that in the Senate, a filibuster could only be overcome when anti-choice Democrats imposed humiliating conditions on women who simply want to pay extra for health insurance that covers abortion.
After a year of watching the health care debate unfold, it’s clear that the voices of the pro-choice movement are muted in our halls of Congress, to the extent that several Democrats who had previously had 100% ratings with this very organization felt safe in voting for the Stupak amendment.
Now, let me say that there are millions of people in this country who have a sincere objection to abortion, and much of that is based on strongly held religious conviction. And I respect that. In America, we respect each other’s religious beliefs. But we are not governed by them.
It’s called the “separation of church and state,” a phrase which, like “separation of powers,” does not appear in the Constitution, but which is created just as clearly in the establishment clause of the First Amendment.
So to those people whose religious conviction leads them to a moral opposition to abortion, I say that’s your right, that’s your choice. Don’t have an abortion. But also, do everything you can to work together with us to diminish the reasons we have abortions
Support comprehensive sex education and access to affordable family planning services. Support funding for maternal child health programs, WIC, and affordable child care so new mothers have security and the resources they need to raise a healthy child.
Oh yeah, and support comprehensive affordable health care for all.
So this is my pledge to you: I will be unwavering in my support for women’s choice and women’s rights:
Last year I introduced the “Justice for Survivors of Sexual Assault Act” to address the backlog of rape kits. It guarantees that survivors of sexual assaults never have to pay for their own rape kit analysis. It requires more health professionals get trained to administer rape kit exams. And most importantly, it requires that local law enforcement address their backlogs of unexamined rape kits. Too many rape kits are taken, and then left to collect dust on the shelf.
In the interest of justice, we have to do better than that.
This is a fight we must wage.
In December, I introduced a bill that would guarantee that 350,000 women serving in the military all have the same access to emergency contraception as civilian women living here at home.
It’s unfathomable to me that people who are anti-choice would oppose the ability of women to have emergency contraception. Especially women in uniform who are putting themselves in harm’s way in Iraq and Afghanistan. Women who we know are victims of a high rate of sexual assault.
The ironic fact is that Plan B is available on many bases here in the U.S. and at some bases overseas. My bill, for which Olympia Snowe is the lead co-sponsor, would simply require that it is available at every base. If this one doesn’t fall in the “no-brainer” category, I don’t know what does.
It’s one thing to be against women having emergency contraception. It’s quite another to be for them randomly not having it.
And where they don’t have it is Baghdad and Kabul, where they can’t just walk to a pharmacy.
Women are outnumbered in the military. They are outnumbered in the Senate. They are outnumbered in the House, and outnumbered in the courts. Everywhere women are outnumbered, there’s an unfortunate tendency for their rights to be marginalized.
This isn’t a fight about a single choice. It’s a fight about choices. It’s a fight about rights. And it’s a fight we must continually wage.
I want to leave you today with a story. It’s one that should sound familiar to the millions of women across this country who understand in a very personal way the importance of protecting women’s reproductive rights.
The story is about a Minnesotan named Kim. Kim was a 19-year-old single mother. She was struggling to make ends meet, working full time as a receptionist. Her daughter had health insurance through the state, but she did not. Her boyfriend, her daughter’s father, was extremely abusive.
She was getting the pill through Planned Parenthood at a reduced rate, but after her car broke down, she couldn’t afford that either.
One day her boyfriend demanded that they have sex, but refused to use a condom. He threatened her. She was too afraid to say no. And she ended up pregnant.
She said, “Abortion was absolutely the right choice for me at that time… Had I stayed in that relationship and brought another child into the mix, I would have continued the cycle of abuse and poverty.”
“Making the decision to stop the cycle [allowed me] to concentrate on my daughter and ensure that she will have the financial and emotional stability to go to college and live a successful, happy life. Women need options, women need choices.”
I am here to ask you to keep up the fight, for Kim, and for every woman who has learned – and will learn – that women need options and choices.
Thank you for the work you’ve done – and are continuing to do -- to stand up for women’s rights.
I’m proud to stand with you.
