[Congressional Record Volume 164, Number 114 (Monday, July 9, 2018)]
[Senate]
[Pages S4829-S4830]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



               Filling the upcoming Supreme Court Vacancy

  Mr. SCHUMER. Mr. President, as everyone knows, later tonight 
President Trump will announce his nomination for the upcoming vacancy 
on the Supreme Court. Whoever fills Justice Kennedy's seat will join an 
otherwise evenly divided Court and immediately obtain the ability to 
affect the laws of the United States and the rights of its citizens for 
generations to come.
  Enormously important issues hang in the balance: the right of workers 
to organize, the pernicious influence of dark money in our politics, 
the right of Americans to marry whom they love, and the right to vote.
  Two issues of similar and profound consequence are the fate of 
affordable healthcare and a woman's freedom to make the most sensitive 
medical decisions about her body. These two rights--affordable 
healthcare and a woman's freedom to make sensitive healthcare 
decisions--hang in the balance with this nominee. The views of 
President Trump's next Court nominee could very well determine whether 
the Senate approves or rejects this nomination.
  President Trump has already made up his mind. President Trump has 
repeatedly said that he believes Roe was wrongly decided. He has 
promised, in his own words, to nominate only ``pro-life judges'' whose 
selection will result in the ``automatic'' overturning of Roe

[[Page S4830]]

v. Wade. Those are his words: ``pro-life judges'' and ``automatic.''
  He also said that Chief Justice Roberts has been ``an absolute 
disaster''--his words--for voting to uphold the healthcare law and said 
his judicial appointments ``will do the right thing, unlike Bush's 
appointee John Roberts, on ObamaCare.''
  It is near impossible to imagine that President Trump would select a 
nominee who isn't hostile to our healthcare law and to healthcare for 
millions and millions of Americans and who isn't hostile to a woman's 
freedom to make her own healthcare decisions.
  We can be sure of this because President Trump, during the campaign, 
asked Leonard Leo, the founder of the Federalist Society, to assemble a 
list of possible Supreme Court Justices for him to pick from. Mr. Leo 
was not only aware of Candidate Trump's preference for a Supreme Court 
that would reverse Roe v. Wade; he himself spent his career in pursuit 
of it.
  That is not just my view. According to Edward Whelan, one of the most 
prominent legal conservative activists and bloggers, ``no one has been 
more dedicated to the enterprise of building a Supreme Court that will 
overturn Roe v. Wade than the Federalist Society's Leonard Leo.'' No 
one has been more dedicated to overturning Roe v. Wade than the very 
man who chose the list of 25.
  That is what we are up against here. That is why America is on 
tenterhooks, so worried about any choice from this list.
  Let me repeat again that Mr. Leonard Leo is the man who assembled 
Trump's list of potential Supreme Court nominees, and no one--no one--
has been more dedicated to overturning Roe v. Wade than Leonard Leo.
  Normally, in the Senate we have a process of advise and consent on 
the Supreme Court. In the old days, the President would consult with 
Republicans and Democrats in the Senate on a qualified judge and, then, 
after careful deliberations, nominate a jurist who could get bipartisan 
support. What we have here is the exact opposite.
  The President has gone to two ``far out of the mainstream'' hard-
right groups--the Heritage Foundation and the Federalist Society--and 
asked them, not the Senate, to advise and consent on a Supreme Court 
nomination.
  Whomever the President selects tonight, if that nominee is from the 
preapproved list selected by Leo and the Heritage Foundation, everyone 
ought to understand what it means for the freedom of women to make 
their own healthcare decisions and for the protections for Americans 
with preexisting conditions: Those rights will be gravely threatened.
  We are going to hear a lot this summer about precedents. The 
traditional question in these matters has been: Will the nominee defer 
to precedent? Nominees will be asked if they respect settled law. This 
is known as the principle of stare decisis. The nominee always answers 
that, yes, he or she will respect and defer to precedent, and Senators 
nod their heads, having received this rickety, vague assurance that the 
nominee will not rock the judicial boat and turn the clock back 
decades. But for two reasons, this standard of settled law--stare 
decisis--is no longer an adequate standard by which to judge nominees. 
Why?
  First, we have ample evidence from the past several years of judges 
who have sworn in their confirmation hearings to respect precedent and 
then have reversed their stand once on the Court. For example, in his 
confirmation hearings, then-Judge Gorsuch said:

       Precedent is like our shared family history of judges. It 
     deserves our respect.

  Last week--just last week--now-Justice Gorsuch voted to overturn 41 
years of precedent in the Janus decision, relying on flimsy and 
fabricated legal theory. It was so flimsy, in fact, that Justice Kagan 
wrote in dissent that the majority overruled precedent, ``for not 
exceptional or special reason, but because it never liked the decision 
. . . subverting all known principles of stare decisis.''
  Justice Roberts--another person who swore he would obey precedent--
said he would call balls and strikes as he saw them, that he would 
interpret law rather than make it. Of course, it was Justice Roberts 
who was then responsible for overturning 40 years of precedent in the 
Citizens United decision, which so set back our politics and so 
deepened the swamp that so many Americans despise, by allowing huge 
amounts of dark money, unreported, to cascade into our political 
system.
  On two of the most important rulings in the history of the Roberts' 
Court, a cumulative 81 years of precedent were thrown out the window, 
despite the earnest promises of Justices Roberts and Gorsuch at their 
hearings.
  When they say they will obey settled law, you can't believe it. You 
can't believe it because it just hasn't happened in this new 
conservative Court that is so eager to make law, not interpret it.
  There is a second reason, which is maybe even more important, why the 
principle of ``I will follow settled law'' no longer works, and that is 
President Trump. We already know that President Trump's nominee will be 
prepared to overturn the precedents of Roe v. Wade and NFIB v. 
Sebelius. We know that because President Trump has said so. When the 
President has a litmus test for his nominees and only chooses from a 
preapproved list of nominees designed to satisfy that litmus test, it 
is certainly not enough for a judge to prove his or her moderation by 
invoking stare decisis. Stare decisis and respect for precedent have 
become an almost meaningless bar to set for a Supreme Court nominee. At 
this critical juncture, with so many rights and liberties at stake, 
U.S. Senators and the American people should expect an affirmative 
statement of support for the personal liberties of all Americans from 
the next Supreme Court nominee.

  The American people deserve to know what kind of a Justice President 
Trump's nominee would be. President Trump is the one who made a litmus 
test for his nominee, not us. The onus is on his nominee to show where 
he or she might stand.
  Considering the ample evidence that President Trump will only select 
a nominee who will undermine protection for Americans with preexisting 
conditions, give greater weight to corporate interests than the 
interests of our citizens no matter what precedent says, and vote to 
overturn Roe v. Wade, the next nominee has an obligation--a serious and 
solemn obligation--to share their personal views on these legal issues 
no matter whom President Trump selects tonight.