[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
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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
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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.