[Congressional Record Volume 164, Number 115 (Tuesday, July 10, 2018)]
[Senate]
[Pages S4848-S4854]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mr. SCHUMER. Madam President, last night President Trump selected 
Brett Kavanaugh as his nominee for the upcoming vacancy on the Supreme 
Court. In selecting Judge Kavanaugh, President Trump did exactly what 
he said he would do on the campaign trail--nominate someone who will 
overturn women's reproductive rights and strike down healthcare 
protections for millions of Americans, including those with preexisting 
conditions. He has put at risk civil rights, labor rights, 
environmental rights, and LGBTQ rights. How do we know? Because 
President Trump repeatedly promised to nominate Justices who will 
overturn Roe v. Wade and who will undermine our healthcare laws.
  This didn't come out of the clear blue; President Trump promised it. 
He said he would only pick ``pro-life judges'' who would 
``automatically'' reverse Roe v. Wade. President Trump actually went so 
far as to say that women should be ``punished'' for their healthcare 
choices. President Trump also said that his judicial appointments would 
``do the right thing,'' unlike Justice Roberts on healthcare. That is 
President Trump's litmus test, and it couldn't be clearer.
  During the campaign, President Trump commissioned a list of 25 people 
who would meet the litmus test, who were vetted and approved by two 
organizations that represent the hard right--the Federalist Society, 
led by a man named Leonard Leo whose goal in life has been to overturn 
Roe v. Wade, and the Heritage Foundation, whose goal is to strike down 
healthcare law because they don't want the government to help people 
out when they have preexisting conditions or other healthcare needs.
  Edward Whelan, a prominent conservative activist, said this about 
Leonard Leo, the man who put together the list that Trump promised to 
choose from: ``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.''
  If anyone believes that Judge Kavanaugh or anyone else on the list 
would uphold Roe v. Wade, then I have a bridge to sell them.
  Leonard Leo's goal in life is to repeal Roe. He came up with the 
list. Do you think he put any slackers, in his opinion, on that list? 
No.
  Judge Kavanaugh got the nomination not because he will be an 
impartial judge on behalf of all Americans but because he passed 
President Trump's litmus test--repeal women's freedom for their 
reproductive rights and repeal America's healthcare, including 
protection for preexisting conditions. If Judge Kavanaugh were to be 
confirmed, women's reproductive rights would be in the hands of five 
men on the Supreme Court. That is not what the women or the men of 
America want.
  Judge Kavanaugh in his own writings made clear he would rule against 
reproductive rights and freedoms and that he welcomes challenges to the 
constitutionality of the Affordable Care Act, of our healthcare act. 
Judge Kavanaugh has argued that the Supreme Court should question the 
constitutionality of the Affordable Care Act. He openly criticized the 
Supreme

[[Page S4849]]

Court when they upheld the law. He is no neutral arbiter. He has 
already made up his mind. He wouldn't have been approved by the 
Heritage Foundation if they weren't certain that he would repeal the 
ACA. He wouldn't have been approved by the Federalist Society if 
Leonard Leo wasn't certain that he would repeal Roe v. Wade.
  Judge Kavanaugh has argued that the Trump administration could keep a 
young girl in Federal custody to prevent her from obtaining 
constitutionally protected healthcare. He has argued that employers 
should be able to deny their employees access to affordable 
contraceptive coverage. If Judge Kavanaugh feels that way about 
contraceptive rights, imagine what he feels about a woman's right to 
choose.
  I will make one other point about Judge Kavanaugh. He is a deeply, 
deeply conservative justice, way out of the mainstream. He has written 
troubling decisions rejecting something 90 percent of Americans want--
commonsense gun laws. He has undone environmental protections. He has 
challenged them. Our Clean Air and Clean Water Acts would be at risk. 
He would make it far more difficult for regulations to exist to enforce 
those laws.
  Here is what is most amazing: He has gone so far as to say that a 
President doesn't need to follow the law if he ``deems'' it 
unconstitutional.
  Folks, here we have a President, President Trump, who cares less 
about the rule of law, less about the restraints that every other 
President has felt were put in place by the Constitution and the norms 
that have blessed this great country for 200 years, and we are going to 
put on the Bench someone who says: If this President, President Trump, 
deems some law is unconstitutional, he doesn't have to follow it. How 
many Americans think the President would be judicious and limited in 
doing that? That is not the President I have seen over the last year 
and a half--oh, no.
  An analysis by Professor Epstein of Washington University of St. 
Louis found that Judge Kavanaugh would be the second most conservative 
Justice on the Court, to the right of Judge Gorsuch, second only to 
Justice Thomas. This is the most conservative Court we have had in 80, 
90 years--since the 1930s, at the very minimum. To those who say that 
President Trump has made a moderate selection from the judicial 
mainstream in the form of Judge Kavanaugh, think again and look at his 
record. He is a deeply conservative justice.
  His judicial philosophy appears to spring from his history. Judge 
Kavanaugh was embedded in the partisan fights of the past few decades 
involving the notorious Starr report, the Florida recount, President 
Bush's secrecy and privilege claims once in office, and ideological 
judicial nomination fights throughout the Bush era.
  The hard right has had a goal. They can't achieve their hard-right 
philosophy through the two elected branches of government, try as they 
might--the Congress and President--but if they get control of the one 
nonelected branch, the judiciary, they can turn the clock back in 
America for decades, maybe centuries. That has been their goal. When 
Judge Kavanaugh worked in the White House, he helped them achieve that 
goal. Judge Kavanaugh's background as a partisan political operative 
seems exactly like the kind of man President Trump would want on the 
Supreme Court if legal issues from the Mueller probe arise--deferential 
to a fault to Executive authority.
  Judge Kavanaugh's long track record of partisan politics comes with a 
long paper trail. The Senate must now be able to access and have the 
time to adequately review all documents, emails, and other paperwork 
associated with Judge Kavanaugh before the process moves forward. Judge 
Kavanaugh's papers may be critical to helping the American people 
understand the kind of jurist that Judge Kavanaugh would be on the 
Supreme Court, and if that makes us take a little more time, so be it.
  As the President himself has said, this is one of the most 
consequential nominations we have had in a generation. To get the full 
record before any of us vote is absolutely necessary, important, 
essential, and fair. Judge Kavanaugh's papers may give the Senate the 
best and only chance of understanding Judge Kavanaugh's personal views.
  No doubt, Judge Kavanaugh will be schooled, as were his most recent 
predecessors, to reveal as little as possible about his philosophy and 
personal views in his confirmation hearing. No doubt he will employ 
practiced evasions that have become a farcical tradition of the 
nomination process: I will respect precedent. I will follow settled law 
and strive to uphold stare decisis. Gee, Senator, I can't comment lest 
I bias myself on a future case.
  We have seen what happened when Justice Roberts, Justice Gorsuch, and 
Justice Alito said that. Once they got on the Bench, they overturned 
precedent with alacrity to achieve their political goals. Probably the 
worst was Citizens United, where Chief Justice Roberts undid close to a 
century of tradition and allowed wealthy people to send millions of 
dollars undisclosed into our politics, making the swamp so much worse. 
Most recently, Justice Gorsuch, Justice Roberts, and the rest 
dramatically overturned precedent in the Janus case on a whim, as the 
dissent noted. They just pulled a theory out of a hat--a First 
Amendment ruling that the First Amendment prohibited unions from 
organizing. My, oh my, how can anyone believe that Judge Kavanaugh will 
stick to precedent when Justice Roberts, Justice Gorsuch, and Justice 
Alito ignore precedent and make their own political rulings regularly?
  We need to review the record--Judge Kavanaugh's written history, 
where the best clues of his jurisprudence may lie. It is no less than 
the standard my Republican colleagues demanded of then-Judge Kagan 
during her confirmation process. They asked for her entire record; 
170,000 documents were sent here.
  We need those documents now more than ever because this new Justice 
will be so pivotal in determining the future of our Nation for so long. 
The nomination could alter the balance of the Court in favor of 
powerful special interests against working families for a generation. 
The pro-hard-right business Heritage Foundation wants only nominees who 
will side with the big boys against the average person, and in Judge 
Kavanaugh, they have someone who would do just that.
  We cannot let it happen. If the Senate blocks this nomination, it 
will lead to a more independent, moderate selection that both parties 
could support.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Madam President, I enjoyed listening to the minority 
leader and disagree with almost everything he said. I do believe he is 
one of the great Senators here, and I care for him. He has a job to do, 
I suppose.
  It seems strange that every time a Supreme Court nominee comes from 
the Republicans, there is every reason in the world not to confirm that 
nominee in the eyes of the current Democrats. Even without the first 
day of hearings, we are getting that type of situation. It is hard to 
believe. It is really hard to believe.
  I rise today in strong support of the nomination of Brett Kavanaugh 
to be an Associate Justice of the Supreme Court. I have known Brett for 
quite a while. He is a terrific human being. He is honest, decent, and 
a good family man. He is everything you would want on the Bench. He is 
fair. He is considerate. He is knowledgeable. He is intelligent. He 
understands the law, and when he doesn't understand the law, he will 
search it until he does.
  President Trump has made an outstanding choice. He has kept his 
commitment to the American people. He has selected a nominee with deep 
experience in the law and an understanding of the proper role of a 
judge under our Constitution.
  I first met Brett Kavanaugh 14 years ago when he came before the 
Judiciary Committee for his first confirmation hearing to the DC 
Circuit. I was the chair of the Judiciary Committee at that time. I was 
impressed at that time by Brett's sterling credentials, his broad 
knowledge of the law, and his demeanor. At only 39 years of age, he 
knew more about the law than most lawyers who have practiced a 
lifetime. I think anybody who is fair would acknowledge that.
  Brett was confirmed to the DC Circuit in 2006 following years of 
obstruction by Senate Democrats. I was pleased and proud to support 
Brett's

[[Page S4850]]

nomination to the DC Circuit. I have followed his work on that court 
the last dozen years with great interest. He spent a dozen years on 
that court, the second greatest court in our country, without 
criticism, by the way--or at least, I should say, without fair 
criticism. He has been a true intellectual leader, authoring landmark 
opinions on the separation of powers, administrative law, and national 
security.
  It is no overstatement to say that Judge Kavanaugh is among the most 
distinguished and most influential judges in the entire country. The 
Supreme Court has adopted his positions and his opinions no less than 
11 times. He has authored multiple dissents that ultimately prevailed 
in the Supreme Court. That ought to be complimented, not condemned.
  He has taught courses at Harvard, Yale, and Georgetown. I would have 
preferred if he had taught some courses at Brigham Young University and 
the University of Utah, but that was too far west, I guess. But you 
can't knock Harvard, Yale, and Georgetown.
  It bears mention that liberal and conservative Justices alike have 
hired his former clerks, which shows the respect he has across the 
ideological spectrum.
  Truly, there is no one more qualified and more prepared to serve on 
the Supreme Court than Brett Kavanaugh. The funny thing is most people 
know that, including my friends on the other side. That is one reason 
they are afraid to have him on the Court. I speak from experience on 
this. I am the former chairman of the Judiciary Committee. I have 
participated in the confirmation of more Federal judges than any 
Senator in our Nation's history--more than half of all Federal judges 
ever confirmed. I have participated in the last 14 Supreme Court 
confirmation battles, including the confirmations of all current 
members of the Court.
  I know a good nominee when I see one. Brett Kavanaugh is not just a 
good nominee; Brett Kavanaugh is an exceptional nominee, and any fair 
person has to admit it.
  It has been a little over a year since we last considered a nominee 
to the Supreme Court. That nominee was Neil Gorsuch.
  I have to say, President Trump hit a home run with Justice Gorsuch. I 
came to this floor nearly a dozen times in support of Justice Gorsuch's 
nomination because I knew Neil Gorsuch, and I knew what kind of a 
Justice he would be. I knew he would interpret the Constitution 
according to its original meaning, not according to the pet theories of 
liberal law professors or progressive activists. I knew he would give 
effect to the plain text of statutes rather than roaming around to find 
bits and pieces of legislative history to support his preferred view. I 
knew he would hold the administrative state to task and help check the 
unrestrained growth of the unelected, unaccountable fourth branch of 
government.
  Justice Gorsuch has done all of that and more. He has shown himself 
to be an independent thinker who faithfully applies the text of the 
Constitution and the text of statutes. He has shown that he is 
perfectly comfortable disagreeing with the administration when the 
administration advances what he believes is a wrongheaded argument. 
Most of all, he has shown that he understands deeply that under our 
Constitution, political power lies with the people and their elected 
representatives, not nine Justices in Washington, DC.
  In all the ways Neil Gorsuch has been a home run, Brett Kavanaugh 
will be one too. In his dozen years on the DC Circuit, Judge Kavanaugh 
has been an independent, fair-minded jurist who is deeply committed to 
the Constitution and the rule of law. He has made his mark especially 
in cases involving the separation of powers and agency decision making. 
He is serious about ensuring that the branches of government stay 
within their proper spheres and that agency officials have sufficient 
political accountability. He has also shown a commitment to our First 
and Second Amendment freedoms. In all this, he has been a true 
intellectual leader. And like Justice Gorsuch, Judge Kavanaugh has 
demonstrated that he understands that in our system of government, 
judges interpret the law. They don't make the laws; they interpret 
them. Policymaking is for the other branches of government.

  In a rational world, Judge Kavanaugh's nomination would be confirmed 
by the Senate overwhelmingly. I don't think there is any question about 
that. His qualifications are unquestionable. His integrity is beyond 
reproach. He is respected throughout the country as one of our Nation's 
leading jurists.
  Sadly, however, sometimes we don't live in a rational world, at least 
not when it comes to the Supreme Court. We saw this last year. My 
Democratic colleagues attacked Justice Gorsuch as unfit and 
unqualified. They said he had not sided often enough with the right 
sort of causes and that he would not do enough to protect the ``little 
guy'' when deciding cases. Democrats' objection, at root, was that they 
did not think Neil Gorsuch would rule the way they wanted. They did not 
think he would reach liberal enough outcomes. Of course they couldn't 
say that directly, as that would have given the whole game away and 
shown that their opposition was really just about politics, which is 
exactly what it was. So they latched on to a couple of cases, blew them 
entirely out of proportion, and misrepresented what then-Judge Gorsuch 
had actually said.
  They asked him questions about cases likely to come before the 
Supreme Court that neither he nor any other nominee could answer 
without violating the canons of judicial ethics. He could not answer 
without violating the canons of judicial ethics. Yet they asked these 
questions anyway. I guess they expected an answer, but no self-
respecting nominee would have given an answer.
  They claimed he would be some sort of rubberstamp for the 
administration, when there was nothing in his record at all to suggest 
he had ever been a rubberstamp for anything.
  My Democratic colleagues could not with a straight face oppose Neil 
Gorsuch or Neil Gorsuch's nomination on the merits, so they kicked up a 
cloud of half-truths and misrepresentations and used those to justify 
their opposition. Fortunately, the majority of my colleagues saw these 
desperate tactics for what they were--complete baloney, and that is 
putting it mildly.
  Now we are about to replay the same game. In the coming weeks, my 
Democratic colleagues are going to throw everything they have at Judge 
Kavanaugh. We are going to see Judge Kavanaugh's opponents twist his 
words, misrepresent his opinions, and do everything they can to make 
him into some sort of a monster, a judicial monster. They will call him 
a rubberstamp for the rich and powerful and warn that his confirmation 
will mean the end of liberty and civil rights. That is trash talk, but 
that is what we are used to around here when they are afraid of the 
nominations that come from the Republican side. There is no reason to 
be afraid; these are people who are going to abide by the law, live in 
accordance with the law, and decide cases the way the law demands and 
dictates.
  This is the same playbook we have seen before. It is the same 
playbook we saw last year with Neil Gorsuch. It is the same playbook we 
would have seen no matter whom the President nominated because the 
opposition will not be about Judge Kavanaugh's credentials or his 
qualifications; it will be about politics, straight and simple. My 
Democratic colleagues want a Justice who will reach the outcomes they 
want, who will use the Constitution to make policy, but Judge Kavanaugh 
is not that kind of a judge. He interprets the Constitution as written. 
He interprets our laws as written. He follows the separation of powers 
and leaves policymaking to the political branches.
  Brett Kavanaugh is one of the most respected judges in our country 
for good reason--because he is a real judge. He has been an 
intellectual leader on one of our Nation's most important courts for 
over a decade. He has heard thousands of cases and issued hundreds of 
opinions. He is a great thinker, a powerful writer, and, I might add as 
somebody who knows him well, a kind and humble man. I cannot think of a 
better person to fill Justice Kennedy's seat on the Supreme Court than 
his former clerk because Justice Kennedy is a kind and humble man, and 
he is excited about having this nominee take his place.
  After all the kicking and screaming last year, after all the 
obfuscations and misrepresentations, we confirmed Neil

[[Page S4851]]

Gorsuch to the Supreme Court. We did so because he was unquestionably 
qualified and because he had demonstrated a firm understanding of the 
judge's proper role under the Constitution.
  Like Neil Gorsuch, Brett Kavanaugh is unquestionably qualified. Like 
Neil Gorsuch, Brett Kavanaugh has shown a commitment to the 
Constitution and to the principle that judges are to interpret the law, 
not make it up. Like Neil Gorsuch, Brett Kavanaugh will be confirmed. I 
have confidence in my colleagues that he will be confirmed. He is a 
good man. I know him personally. I have known him for a long time. He 
is a good man. He is a brilliant man and a man whose nomination I am 
honored to support.
  I intend to do everything in my power to see Judge Kavanaugh 
confirmed to the Supreme Court. I could not be more pleased that one of 
my final acts here in the U.S. Senate will be to help shepherd through 
one last nominee to our Nation's highest Court. I could not be more 
pleased that this nominee is Judge Brett Kavanaugh.
  I know Judge Kavanaugh. I know what a great Justice he will make. I 
know that he will be fair. I know that he will live in accordance with 
the law. I also know that he has courage and conviction and that he 
will do what Justices have to do; that is, interpret the Constitution 
and our statutes in this country in ways that will please the vast 
majority of all Americans. That is about all we can ask for. I know he 
will do that because I know the man. I know his family. I know his 
parents. All I can say is that I am very pleased that our President has 
decided to nominate him as a Justice on the United States Supreme 
Court.
  I would caution my colleagues to pay attention to his record because 
you can't keep voting against people just because politically they are 
not on your team. I think you can if they are not qualified, but he is 
qualified. I think you can if they are not willing to abide by the law 
as written, but he is and has proven that.
  I could go on and on. All I can say is that he is a good nominee. I 
hope all of my colleagues will support him. I hope my friends on the 
Democratic side will do the right thing. The right thing will help 
propel the confirmation process along. Who knows who the next President 
is going to be. It could be a Democrat, and I would hope that Brett 
Kavanaugh would be an example to Republicans, if they are in the 
minority, to do what is right--make your case, but don't slander people 
or libel them, and certainly don't stop decent, honorable candidates 
from holding these positions on the Federal bench.
  I wish Judge Kavanaugh well because I think he will make a great 
Justice on the Court. I think he will be the type of Justice who will 
make everybody proud, even those with whom he disagrees. He is a decent 
man. He is an honorable man. He is a family man. He is brilliant. He is 
exactly like the person our Founding Fathers would like to have on the 
Supreme Court Bench. I believe that if we give him a chance, he will do 
a very good job. He is not going to always please me. He is not going 
to always please the Republicans. He will do what is right. I hope my 
colleagues on the other side will understand that and will not make 
this another cause celebre.
  Be that as it may, we are going to push as hard as we can, and 
hopefully he will become our next Justice on the United States Supreme 
Court.
  With that, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Young). Without objection, it is so 
ordered.
  Mr. CORNYN. Mr. President, last night the President of the United 
States announced that Brett Kavanaugh is his choice to fill the vacancy 
on the U.S. Supreme Court left by the impending retirement of Justice 
Anthony Kennedy. I was glad to have the occasion to join the President 
and others at the White House last night, and I could not be more 
pleased with the President's choice.
  Now that the President has performed his duty under the Constitution, 
it now falls to us to do our duty. The appointments clause to the U.S. 
Constitution says that subject to the advice and consent of the Senate, 
the President shall appoint members of the Supreme Court, among other 
officials. The President has done his job, and now it falls to the U.S. 
Senate to do our job under the Constitution of the United States.
  We have all learned a little bit more about the nominee in just the 
few hours since his nomination. Of course, we know he is a judge on the 
U.S. Circuit Court of Appeals for the DC Circuit--what some have called 
the second highest court in the land. By that, they mean that because 
it sits in the District of Columbia, many important cases involving the 
U.S. Government go up through that court as opposed to courts in Texas 
or Indiana or other places around the country. For more than 10 years, 
he has served in that capacity.
  We know he has had a distinguished academic and legal career. He 
graduated from an elite law school--Yale--and clerked for Justice 
Kennedy himself, the man he will succeed when confirmed. Most 
importantly and as evidence of Judge Kavanaugh's good judgment, he made 
the wise decision to marry a Texan. His wife grew up in Abilene and 
graduated from the University of Texas.
  Now that the nomination has been made, the Senate will follow what we 
refer to here as regular order. That means the Judiciary Committee, led 
by Chairman Grassley, will thoroughly vet the nominee, and then the 
committee will debate and vote on the nomination, and then the 
nomination will come to the floor of the Senate, where we will debate 
and vote on the nomination.
  We have already heard some say that there is not enough time to carry 
out this process before the midterm elections, which should raise all 
of our antennae. Both Justice Gorsuch and Justice Sotomayor were 
confirmed 66 days after they were nominated, so the truth is that we 
have plenty of time to do our job under the Constitution. We do want to 
be thorough, and we will, but we also owe it to the Court and to the 
American people to move expeditiously to fill this post so as not to 
leave it vacant. Justice Kennedy said that he intends to leave at the 
end of the month.
  As the senior Democratic Senator from Kentucky said recently, ``The 
Senate should do nothing to artificially delay consideration of the 
next Justice.'' I agree with him, and that is consistent with the 
standard here in the Senate.
  Some have said: Well, we have a midterm election coming up, and maybe 
we ought to defer filling the vacancy. But I would note that in 2010, 
leading up to a midterm election, just like this year, Senate Democrats 
confirmed President Obama's nominee to the Court, Elena Kagan. So there 
is plenty of precedent for moving expeditiously, thoroughly, not 
recklessly but in a focused fashion to confirm this nomination once it 
has been vetted and voted on.
  It is no secret that Judge Kavanaugh will help decide cases that will 
be important in the life of our Nation. That is the role of the Supreme 
Court, and it is already clear from his previous experience that he has 
had plenty of preparation--academically and work experience and life 
experience--that has prepared him to do exactly that.
  Judge Kavanaugh has demonstrated the intellectual capacity that we 
would expect of a Supreme Court Justice, and over the years, he has 
demonstrated a rigorous understanding of the law. He has demonstrated 
his sharp mind and analytical skills in a variety of jobs--working in 
the White House as a lawyer and as Staff Secretary to the President.
  By the way, for those who don't know what a Staff Secretary does in 
the White House, that is the person who has the final eyes on a 
document before the President is presented something for his signature. 
It is a very, very important job. Brett Kavanaugh was Staff Secretary 
to the President of the United States during the term of office of 
President George W. Bush.
  He has also taught at law schools, such as Harvard, where he was 
actually hired by now-Justice Elena Kagan, whom he would serve 
alongside, as well

[[Page S4852]]

as Georgetown and Yale. We know that during the years he has been on 
the appellate bench, he has handed down hundreds of decisions. Let's 
not forget that in order to attain that important position, the Senate 
already confirmed him once in 2006 by a vote of 57 to 36.
  We all know that this is President Trump's second nomination to the 
Supreme Court, after that of Justice Neil Gorsuch just last year. In 
his first term on the Court, Justice Gorsuch has already demonstrated 
the power of his pen, the clarity of his thought, and the force of his 
legal reasoning, and I am sure that Justice Scalia would be proud of 
his successor's impartiality, his rigor, and his self-discipline. Based 
on his distinguished record, I think Judge Kavanaugh will display many 
of the attributes Justice Gorsuch has displayed on the Supreme Court.
  In the coming weeks, we will hear a lot about Judge Kavanaugh's 
interesting life story, his long career as a dedicated public servant, 
his service to his community, and, yes, his strong Catholic faith, but 
at the end of the day, the decisions of the Supreme Court should not be 
affected by personal agendas, political or otherwise. That is because 
the interpretation of the law is a discipline unto itself, and it 
should always be separated from the personalities, the preferences, or 
the ideological or political agenda of the judge. That is what judges 
do. If they can't do it, then they shouldn't serve as judges.
  Justices, by their work, must be insulated from the day-to-day 
politics that are all too common here in the Congress. The Court, of 
course, should not be a partisan or political institution. It was 
created by the Founders to be something apart from the political 
branches of government, the executive and legislative branches. That is 
because the political branches of the government run for election and 
are held accountable by the voters--not so with judges who serve for a 
life term.
  I know President Obama once argued in favor of what he called an 
empathy standard in judicial decision-making, but that is not my 
standard, and I know it is not Judge Kavanaugh's standard either. It is 
another way to call for results-oriented judging, which is the opposite 
of what a good judge should do.
  As a former judge and justice of the Texas Supreme Court, I believe 
those who serve in the judicial branch must put their personal beliefs 
aside and apply the law as written and faithfully interpret those laws 
passed by Congress, signed into law by the President, as well as 
interpreting the text of the Constitution. If they want to be 
policymakers, they ought to run for Congress. They ought to be subject 
to the vote of the electorate. They ought to run for school board. They 
ought to run for city council. If you want to be a judge, you have to 
take an oath to do something different from serving in those sorts of 
political offices.
  It is crucial that as this process begins to unfold, we remember 
that. It is important that the President's nominee not be subjected to 
personal attacks from the angry and unhinged element we have seen 
already reflected on our TV screens and that at times seems to forget 
that judges in our political system are not charged with making the law 
or making policy but rather interpreting the law and the Constitution 
and the laws written by the Congress and signed by the President.
  Based on what we have seen so far, the confirmation process will no 
doubt be contentious. We have seen activists already encourage Members 
of the Senate to abandon civility and decorum, and I hope we resist. We 
have seen some of our colleagues already engage in various publicity 
activities and talk about battle lines being drawn, as if this is some 
sort of war to be fought. They indicated their unwavering opposition to 
the President's nominee before we even knew who the nominee might be. 
One of our colleagues came to the floor of the Senate before the 
nomination was announced and said he would oppose whomever President 
Trump were to nominate. Well, that should tell us a lot--that it is not 
about the individual, it is about the office, and it is about kowtowing 
to a political base that demands opposition at all costs and at all 
turns to anything this President might do, no matter how qualified the 
nominee might be.
  In the days ahead, I think we can predict from experience that these 
attacks will continue. Some of our colleagues will demand that Judge 
Kavanaugh reveal how he will rule in a particular case in exchange for 
their vote. How corrupt would that be, to insist that the judge tell 
you ahead of time how he would rule in a particular case in exchange 
for a vote for confirmation? That would clearly be wrong. It would be 
wrong for any judge, without hearing the case--the arguments of the 
lawyers, the facts of the case--to prejudge an outcome. That, again, is 
not what judges do. They don't run for office based on a political 
platform as do the political branches of government. Those of us who 
run for office for the Senate or the House are happy to talk about what 
we believe in and what we would do if elected to office, but that is 
not what judges are supposed to do.
  What is more, there is clear precedent for resisting those sorts of 
guarantees ahead of time. Justice Ruth Bader Ginsburg said during her 
own confirmation process that sort of assurance is completely 
inappropriate. Justice Ginsburg gave what I think is the correct 
response to such requests, saying she would offer no hints, no 
forecasts, no previews of her rulings.
  Trying to predict how ethical Justices will decide particular cases 
is a futile endeavor because, for good judges, it depends on learning 
the facts as well as entertaining the legal arguments by the lawyers 
involved, not coming into it with a preconceived notion of how you 
would rule in any case under any facts involving a particular topic. 
Sure, hypotheticals can be dreamed up, but no judge knows the right 
decision until he or she studies the case before them.
  I can tell my colleagues, we relish the opportunity to support and 
defend the President's nominee against any and all baseless attacks. We 
will not back down. We will not surrender the field to those who make 
unjustified criticisms of the nominee or attribute to him some 
characteristic or some experience which is entirely false. We will 
defend the record of Judge Kavanaugh, who I believe is a thoughtful and 
willing public servant, against deliberate attacks to denigrate him. We 
will not allow others to distort the nature of his previous judicial 
decisions or use him as a sacrificial lamb in some sort of vengeance 
campaign against this President. We pledged that same level of support 
for Justice Gorsuch, and we showed we were able to do just that--defend 
the President's nominee against unjustified attacks--and will do so 
again, joined by Judge Kavanaugh's many other supporters, including 
those who do not share his political or judicial philosophy.

  I noted today a liberal law professor, Akhil Amar, who wrote an 
opinion piece saying that, yes, even liberals should support this 
nominee, and he gives his reasons why. You can read it for yourself in 
the New York Times, but the stakes are simply too important to let 
unfair and inaccurate accusations be made about the nominee without 
correcting them. The American people deserve better. This nominee 
deserves better.
  The American people demand judges like Brett Kavanaugh, who are fair 
and independent arbiters of the law. The basic problem is, in recent 
years, some have viewed the court as a way to circumvent and evade the 
political process and achieve their preferred policy outcomes when 
judges pronounce some radical change in the law or public policy from 
the bench without the chance for voters to vote on that individual or 
on those policies. Many have come to see this as an end-run around the 
normal political process. Those who can't win at the ballot box, well, 
let's win on the court, but that is not the right philosophy. That is 
not the one preferred by most Americans, nor shared by the Founding 
Fathers of this country or evidenced in the Constitution.
  During the first 18 months of this administration, President Trump 
has nominated, and we have confirmed, 42 members of the Federal 
judiciary, including Justice Gorsuch. Next on our list is Judge 
Kavanaugh. So we look forward to doing our duty under the Constitution 
to vet the nominee, to ask the tough questions, to have the debate and 
then the vote in the Judiciary Committee, and then bring that nominee 
to the floor of the Senate and have that debate and that vote here.

[[Page S4853]]

Vote we will this fall on this nominee, and I trust we will keep the 
same sort of timeframe we have seen applied impartially in cases like 
Justice Sotomayor, Justice Kagan, and Justice Gorsuch. There is no 
reason to drag this out other than for partisan, political purposes.
  So let's do our job. Let's be dignified about it. Let's not engage in 
unnecessary name-calling or falsely attribute to the nominee beliefs he 
does not have or make wild, unhinged predictions about what may happen 
to the Supreme Court were he to be confirmed.
  I look forward to confirming this new equally outstanding nominee 
this fall.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. MURPHY. Mr. President, I come to the floor to talk for just a 
few, quick moments about what the stakes are as we begin this debate 
over a new swing vote on the U.S. Supreme Court.
  This is a fairly simple chart listing off a number of preexisting 
conditions that tens of millions of Americans have. What it says is, 
the Supreme Court could take away your healthcare if you have a history 
of cancer, diabetes, heart disease, strokes, cerebral palsy, mental 
illness, ALS, lupus, epilepsy, Parkinson's--the list goes on.
  The reason for this is, the new priority for those who oppose the 
Affordable Care Act and the protections that are built in it for 
Americans who are sick or have ever been sick--their new strategy is to 
use the court system as a means to try to invalidate the protections in 
the law for people with preexisting conditions--protections, by the 
way, Republicans said they supported during the debate over the 
Affordable Care Act.
  The case currently before the district court level, Texas v. United 
States, has drawn interest because of an exceptional decision by the 
Trump administration. The Trump administration has decided to weigh in 
on behalf of the petitioners, abandoning the traditional role of the 
executive to defend a statute. Traditionally, an executive will defend 
a statute regardless of whether they politically support it because who 
else will defend a statute if not the Department of Justice and the 
U.S. Government?
  In this case, the Trump administration is going to court to argue the 
U.S. Congress cannot, under the Constitution, provide protection to 
people with preexisting condition against discrimination and rate 
increases from insurance companies. Now, this should freak out the tens 
of millions of Americans who have preexisting conditions because 
without the protection in the law today, healthcare will be 
unaffordable and unavailable to the over 100 million Americans who have 
any history of disease.
  Given the importance the Trump administration has placed on this case 
by weighing in, in this exceptional, unprecedented way on behalf of 
those who are trying to pull apart protections for people with 
preexisting conditions, we have to expect, we have to prepare for the 
fact that this case may move from the district court to the appellate 
court and eventually to the Supreme Court. If it does, this seat we are 
about to debate will likely, potentially, be the deciding vote as to 
whether Americans in this country who have preexisting conditions will 
continue to be able to get healthcare. So I just wanted to come to the 
floor, as we start, to set the table for this conversation to make very 
clear what the stakes are.
  The Trump administration has taken the exceptional position of 
arguing against people with preexisting conditions, saying Congress 
cannot, by law, protect people with preexisting conditions. President 
Trump, as a candidate, made it very clear that his priority was to put 
Justices on the Court who would correct for the fatal flaw of John 
Roberts. He identified that fatal flaw as John Roberts' defense of the 
Affordable Care Act. He made a promise he wouldn't make that mistake 
again; that he would not put somebody on the Court who would vote to 
uphold parts of the Affordable Care Act.
  You have to take the President at his word. Most of the things he 
said he would do as President of the United States, when he was a 
candidate, he has done. A lot of folks here didn't take him seriously--
didn't think he would really try to unwind NATO, didn't think he would 
really try to ban Muslims from the United States, didn't think he would 
pursue this crazy idea of a wall. He did all those things.
  So let's take him at his word when he says he is not going to appoint 
a Supreme Court Justice who will uphold the Affordable Care Act, and 
the case that is moving up to the Supreme Court today is a case that 
would take away protections for people with preexisting conditions.
  Second, he essentially outsourced the decision over who would be his 
nominee to these two political groups: the Federalist Society and the 
Heritage Foundation. We know where the Heritage Foundation is on the 
Affordable Care Act. They have basically made it their mission, over 
the course of the last 7 years, to try to destroy the Affordable Care 
Act. They have essentially written the legislation that has been put 
before this Congress, on a variety of occasions, to try to replace the 
Affordable Care Act with something that provides no protections for 
people with these illnesses, but the Federalist Society is in this 
game, too, of trying to attack the Affordable Care Act.
  In one of the main judicial attacks on the Affordable Care Act, NFIB 
v. Sebelius, one of the lead counsels of record was a Federalist 
Society member, and 24 other Federalist Society members signed and 
filed amicus briefs in support of this judicial attack against the 
Affordable Care Act and the protections for preexisting conditions.
  The Heritage Foundation and Federalist Society have been in the 
business of trying to take away protections for people with preexisting 
conditions from the beginning of this fight. So when you outsource the 
selection of the Supreme Court Justice to those groups, you know whom 
you are going to get. You are going to get a Justice who is going to 
vote to unwind these protections. You don't have to do that kind of 
supersleuthing because the President effectively already told you he 
was going to appoint someone who would remedy the fatal sin of John 
Roberts, which was to uphold at least a central tenet of the Affordable 
Care Act.
  I understand what Senator Cornyn is saying; that we should just 
accept that the nominee, when he comes before the Judiciary Committee, 
isn't going to answer any questions and that we shouldn't assume 
anything we don't know, but we have some pretty good evidence thus far. 
In addition, we have Judge Kavanaugh's writings, Judge Kavanaugh's 
attacks in his judicial opinions on the Affordable Care Act.
  Seven-Sky is a really interesting case that came before the DC 
Circuit Court. It essentially, in the end, upheld the constitutionality 
of the individual mandate. Judge Kavanaugh dissented. I will admit, it 
was an interesting dissent, and people should read it, but in that 
dissent, he goes out of his way to suggest that Congress has gone far 
afield from its constitutional limitations in adopting the Affordable 
Care Act.
  He wrote in his dissent that the individual mandate is 
``unprecedented on the federal level in American history'' and 
predicted that upholding the mandate would ``usher in a significant 
expansion of congressional authority with no obvious principled 
limit.'' Those are extraordinary words.
  It is interesting because if you read the dissent, it, in fact, hints 
that ultimately the individual mandate can be upheld as a tax. So I 
acknowledge the subtleties in that dissent, but that is an 
extraordinary phrase, that upholding the individual mandate would 
``usher in a significant expansion of congressional authority with no 
obvious principled limit.'' The obvious limit is the Constitution, and 
the idea that judges would decide what the principled limit is, other 
than the Constitution, I think is something that should be part of our 
debate. The fact that Judge Kavanaugh went out of his way to talk about 
his fears as to how broad the Affordable Care Act may be, in addition 
to his inclusion on the Federalist Society and Heritage Foundation list 
and in addition to Trump's very clear signaling that he is only going 
to appoint a judge who is willing to overturn the Affordable Care Act, 
tells you that if you have any of these conditions, you are in the 
crossfire right now.
  One hundred thirty million people in America have preexisting 
conditions.

[[Page S4854]]

Let's take a few of these just to give a sense of the scope of the 
threat. There are more than 15.5 million cancer survivors in the United 
States today; 23 million Americans have been diagnosed with diabetes; 
there are about 100 million adults who have high blood pressure, about 
100 million more who have high cholesterol; 26 million Americans 
diagnosed with asthma; 44 million Americans have mental illness; 
400,000 diagnosed with multiple sclerosis; and 28 million diagnosed 
with heart disease.
  Without the protections in the Affordable Care Act, if you have these 
diagnoses, you likely will not be offered healthcare. That is what 
happened prior to the protections for people with preexisting 
conditions; you just weren't even offered a plan if you had some of 
these conditions. But if you were offered coverage, you were offered 
them at rates that were unaffordable.

  Here is some data based on CMS's calculations around operated risk 
adjustment methodology. They say that for folks who have diabetes 
without complication, the increase in rates without protections for 
people with preexisting conditions could be about $5,600 a year. If you 
have a drug dependence, if you have an addiction, the increase could be 
$20,000 a year. If you have had a heart attack or a history of serious 
heart disease, your increase could be $60,000 a year. If you have 
metastatic cancer, you could be paying a 3,500-percent premium; that 
is, $140,000 in additional surcharge a year. Obviously nobody can 
afford that. That is why, if you have a history of metastatic cancer, 
you are not getting offered insurance unless you have that protection. 
Those are the stakes.
  I want to make people understand that we are going to have a big 
debate over what Judge Kavanaugh will mean for the future of 
reproductive choice in this country, women's access to contraception. 
Those are really, really important debates. But I want everyone to 
understand that this case is coming; Texas v. United States is moving 
through the court system. It is moving through the court system, in 
part, because the Trump administration is trying to get the judicial 
branch to invalidate protections for people with preexisting 
conditions. Despite the fact that the President told us he liked that 
part of the law, he has now instructed his judicial department, 
instructed the Office of the Attorney General to try to strip away 
protections for people who have high cholesterol, mental illness, 
cerebral palsy, multiple sclerosis, and it may mean this seat on the 
Supreme Court is going to decide that case. I think we can be pretty 
sure of how Judge Kavanaugh is going to rule. His hostility to the 
Affordable Care Act in his writings, his inclusion on lists by groups 
that have worked for years to undo these protections, and the clear 
signal from the President that he was only going to pick individuals 
for the Court who would unwind the Affordable Care Act tell you how big 
the stakes are.
  The Supreme Court could take away your healthcare if you have any of 
these diseases, and the likelihood that they will take away your 
healthcare if you have any of these preexisting conditions is radically 
increased if Brett Kavanaugh is confirmed. I announced last night that 
I will oppose his nomination, and I will be on the floor talking at 
length about many of the reasons this body should reject his 
nomination. At the outset, I wanted to make clear that this debate over 
the future of preexisting condition protections for people in this 
country--130 million people who have preexisting conditions--needs to 
be at the center of this conversation regarding Brett Kavanaugh's 
nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank the Senator from Connecticut. 
Certainly I am happy he is bringing to the attention of the Senate this 
critical issue of the future of the Supreme Court and the impact it 
will have on families across America. Certainly, when it comes to 
something as basic as our health insurance, we understand this.
  There are forces at work in Washington in the Trump administration 
that are trying to put an end to the Affordable Care Act, and in 
Congress, many Members of Congress--the House and the Senate--have 
voted 60 times to repeal the Affordable Care Act. We barely saw it 
survive just a few months ago when Senator John McCain, in the middle 
of the night, came and stood in that well and voted no, along with two 
other Republican Senators. They saved the Affordable Care Act.
  Most Americans had their own questions about the Affordable Care Act 
and how important it was, but they couldn't understand how the 
Republicans would come to us and say ``Get rid of it'' and have no 
replacement.
  We realize, as the Senator from Connecticut just explained, that 
under the old rules with insurance companies, under the old rules, many 
of us were victims. If you had someone with a preexisting condition in 
your family--perhaps you had diabetes, perhaps your child was a cancer 
survivor, had asthma, or so many different things--health insurance was 
very expensive, if you could get it. We changed the law. We said: You 
can't discriminate against an American because someone in their family 
has had a preexisting condition. Everybody is in the same pool in 
America. We are going to join together.
  Well, now the Trump administration has said they are going to fight 
that in court. They are going to try to declare it unconstitutional to 
protect people with preexisting conditions, so they filed a brief in a 
lawsuit--a lawsuit that is wending its way to the Supreme Court. When 
the Senator from Connecticut, Mr. Murphy, came before us and talked 
about the new nominee to fill the vacancy on the Supreme Court, it is 
important that he focused on the impact it could have on ordinary 
people.
  Most Americans, put to the test, couldn't name the Justices on the 
U.S. Supreme Court. Well, they know it is a big Court, an important 
Court, the highest Court in the land, but they don't know who is there 
until we get into this kind of debate. As we do, people tend to learn a 
lot more about the Justices and what their core beliefs are.
  When it comes to Judge Brett Kavanaugh, who now sits on the DC 
Circuit Court of Appeals, he has a lengthy record--12 years of opinions 
as a judge, not to mention all the years before that when he was active 
politically in Washington, DC. Senator Murphy of Connecticut is correct 
to note that his approach to the law and his approach to the 
Constitution do not give us great hope in preserving the protections on 
health insurance that are part of the Affordable Care Act. One decision 
by that Supreme Court could undo years of legislative work and 
literally remove protections from families. We are talking about that 
today. We should be talking about that today. But it isn't what we are 
voting on today, and that is why I have come to the floor.