[Congressional Record Volume 164, Number 116 (Wednesday, July 11, 2018)]
[Senate]
[Pages S4897-S4900]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mr. BLUMENTHAL. Mr. President, we are at a crossroads, a historic 
turning point for the U.S. Supreme Court and our country. This body is 
often called upon to consider court nominations for the district courts 
and the courts of appeals, but we are at an extraordinary decision 
point for the U.S. Supreme Court--the highest Court in the land, a 
branch of government that can shape the law and culture of this country 
for generations to come.
  When we are called upon to consider a Supreme Court nominee, 
ordinarily we have to read tea leaves. Ordinarily we have no way to 
know with certainty the values and beliefs that someone will bring to 
the Court. Ordinarily Presidents make every effort to persuade us that 
their nominees were picked on the basis of merit, not ideology. So 
ordinarily we look forward to hearing what nominees tell us about their 
beliefs and values, since they are unknown when we first hear their 
names.
  We live in times that are the opposite of ordinary. These are not 
ordinary times. We live at a time when there is, right before our eyes, 
an ongoing assault on the rule of law in this country, coming from the 
President of the United States on down. We live at a time when the 
courts are critically important to our democracy because they are a 
bulwark for fundamental rights and liberty, and when the history of 
this era is written, I believe that our judiciary and our free press 
will be the heroes because they stood between the President defying the 
law and preserving those key freedoms and rights that are foundational 
to our democracy.
  What we know about the President's nominee for the highest Court in 
the land--the most important to that effort against this assault on the 
rule of law--is that he will ``automatically'' vote to overturn Roe v. 
Wade. We know that he will vote effectively to eliminate the Affordable 
Care Act and to undermine protections for millions of Americans who 
suffer from diabetes, obesity, alcohol abuse, addiction to opioids, 
stroke, Parkinson's, and many other preexisting conditions. Millions of 
Americans suffer from those kinds of sicknesses, including more than 
500,000 Connecticut residents. We are a State of about 3.5 million 
people, so you can do the math. There are a lot of Americans who suffer 
from preexisting conditions.
  We know these facts because we have heard them from none other than 
the President of the United States, who said that his nominee would 
automatically overturn Roe v. Wade and who berated Chief Justice 
Roberts for upholding the Affordable Care Act in his decisive swing 
vote. When a President tells you he is trying to eliminate basic legal 
rights and liberties for the people of the United States, you better 
take him at his word, and I do. But in this case, actually we need not 
take the President at his word because we can review the facts--in 
fact, the circumstantial evidence surrounding this nomination.
  The President has allowed himself to become a puppet of rightwing 
fringe groups--the Federalist Society and the Heritage Foundation, 
which have been trying to strike down Roe v. Wade and overturn it for 
decades. As one recent news story put it, if you want a seat on the 
Supreme Court, the man to see is not Donald Trump; it is Leonard Leo, 
the executive vice president of the Federalist Society.
  Leonard Leo and the Federalist Society have made clear their desire 
to overturn Roe v. Wade for years, and Mr. Leo's friend, Ed Whelan, 
brags about Leo's efforts, stating: ``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.''
  The President of the United States outsourced this decision to the 
Federalist Society and other groups long intent on overturning Roe v. 
Wade. They produced for him a list. He selected from that list, and the 
rest is an unfortunate, deeply tragic chapter in American history.
  The Heritage Foundation has been vehement in its desire to overturn 
and strike down the Affordable Care Act and deny many Americans access 
to health insurance. It has fought to end protections for people who 
suffer from these conditions, and they are not only the ones I have 
mentioned but also many others that are common throughout our 
society. Its efforts to shape the Supreme Court are a part of a 
conscious, concerted strategy in a war on the ACA.

  Perhaps as troubling as any other fact about this nominee, to many of 
us who have seen the horrific, unspeakable effects of gun violence, 
Judge Kavanaugh is the dream candidate of the NRA. He has taken the 
view that almost all commonsense, sensible measures to stop gun 
violence violate the Constitution.
  He is the dream pick of the NRA. He is a nightmare for the students 
of Parkland, the survivors of Orlando, Columbine, San Bernardino, and 
all of the mass shootings, including Sandy Hook, and all of the victims 
and survivors, their loved ones, families, and friends, who know the 
tragic effects of those 90 people gunned down every day in America. 
Those 90 victims every day in this country who die as a result of gun 
violence bear witness to why we should reject this nominee.
  Just minutes after Judge Kavanaugh's nomination was announced, the 
NRA endorsed him, showering praise on his extreme record against gun 
safety. As an appellate judge, Judge Kavanaugh heard the sequel to 
Heller, a case regarding the constitutionality of the District of 
Columbia's gun registration requirement and semiautomatic assault rifle 
ban. On a panel of all Republican appointees, Judge Kavanaugh was the 
only judge to vote to strike down both gun safety measures as 
unconstitutional.
  His basic premise is that gun laws have to be similar or identical to 
laws that he considers ``traditional'' or ``longstanding.'' He rejects 
bans on assault weapons and gun registration requirements. He has no 
clear definition of what is ``longstanding'' and enables a statute to 
be upheld. But consider his logic. He has, in effect, ruled out any 
statute that bears no resemblance or connection to laws on gun violence 
on the books in 1789. That is a breathtaking concept of the 
constitutional test that should be applied to measures against gun 
violence.
  The Founders almost certainly never considered the possibility of 
universal background checks at a time when it might have been 
impossible to do it anyway and when the kinds of firearms available 
were very different than they are now. By Judge Kavanaugh's logic,

[[Page S4898]]

Congress would seemingly be prohibited from requiring universal 
background checks, even though more than 90 percent of all Americans 
want them on the books.
  That is a radical view, even for the far right. Should Judge 
Kavanaugh be confirmed to the U.S. Supreme Court, you can say good-bye 
to a slew of gun safety measures around the country in States like 
Connecticut, California, New York, or, now, Florida. Many other States 
are realizing that they should be on the right side of history and the 
right side of the American people and adopt commonsense, sensible 
measures. They would be struck down by the logic that Judge Kavanaugh 
would bring to the Supreme Court. We would have fewer safeguards 
against the scourge of gun violence.
  There is now one mass shooting every day and 90 deaths every day in 
America. This country is in the midst of an epidemic of gun violence--a 
public health emergency. With Judge Kavanaugh as a member of the 
Nation's highest Court, this epidemic would continue unabated.
  This nominee is part of a concerted, coordinated effort to roll back 
the clock, to take the Nation back to a time--one of our darkest eras--
when abortion was criminalized, when women died and they were denied 
access to contraception and the morning-after pill, when Americans were 
denied healthcare because of those preexisting conditions, and when 
civil rights, LGBT rights, voting rights, and workers' rights were 
largely ignored.
  That prospect is frightening. For President Trump, the nomination of 
Judge Kavanaugh is about more than just undermining or eviscerating 
these fundamental rights. It is about undermining and eviscerating the 
rule of law.
  Judge Kavanaugh has written that the President can refuse to enforce 
a law if he believes that it is unconstitutional--if he alone believes 
it is unconstitutional--even if that law was duly passed by Congress 
and upheld by the courts. He has written that special counsels--like 
Robert Mueller, who is investigating the President--should be appointed 
only by the President and should be removable by the President. Under 
that rule, Robert Mueller never would have been appointed as special 
counsel, and the President would be able to fire him for no reason at 
all--except that he is investigating the President.
  Finally, Judge Kavanaugh has written that the President should not 
have to deal with those responsibilities or burdens that the rest of 
us, ordinary Americans, fulfill. A President under Judge Kavanaugh's 
rule could not be investigated or indicted, could not be held 
accountable under the law, and would not have to respond to a civil 
suit, a subpoena, or a request to be investigated by law enforcement. 
He need not be interviewed by the FBI or cooperate with law enforcement 
because under Judge Kavanaugh's concept the President is above the law. 
Nothing is more fundamental, no principle more sacrosanct in this 
country--no one is above the law. No President. No one is above the 
law.
  A President who has demonstrated unprecedented disdain for the rule 
of law has nominated a Justice who will tell him he can ignore the law. 
A President who has fought tooth and nail against the special counsel's 
investigating some of the most serious crimes has nominated a Justice 
who would allow him to fire the special counsel at will for no reason. 
A President who faces not only the prospect of indictment but an 
ongoing civil suit brought by nearly 200 Members of Congress--I am 
proud to be leading them--for his violation of the chief anti-
corruption provision in the Constitution would be declared above the 
law, immune from lawsuit and accountability.
  We are going to continue with that lawsuit to make sure that the 
President obeys the Constitution and comes to Congress for consent 
before he accepts the payments and benefits in the hundreds of millions 
of dollars that he is doing every day. Judge Kavanaugh would absolve 
him of accountability.
  These are no ordinary times. In the coming days, I will be speaking 
out on other areas where Judge Kavanaugh would undermine the rights of 
everyday Americans and put the rights of corporations and special 
interests above them.
  Judge Kavanaugh would prevent Congress and the States from passing 
commonsense gun violence laws that will save lives. He would invalidate 
a slew of existing laws in States across the country, and he would 
leave powerful corporations to prey on consumers, workers, and anybody 
who wants to breathe clean air or drink clean water.
  These prospects are not imaginary or abstract. Read his opinions and 
his writings. In one area of law after another, Judge Kavanaugh poses a 
clear and present danger to our fundamental liberties, to effective 
government, and to the rule of law. To the people who say to me ``What 
can we do?'' our challenge is a call to action. It is to mobilize and 
galvanize America, just as we did during the healthcare debate, when 
they said the Affordable Care Act would be repealed, and we mustered 
Americans' sense of outrage and alarm.
  I say to the students of Parkland who spoke so eloquently and 
movingly, your time has come; to the patients who came to my townhalls 
in Connecticut and spoke so powerfully about their fear of what would 
happen to them and their insurance coverage if preexisting conditions 
were declared in violation of those insurance policies, your time has 
come; to all who care about civil rights and civil liberties, workers' 
rights, and gay rights, your time has come. We need to hear your voice 
here, just as we did during the healthcare debate, as powerfully and 
eloquently. The challenge is yours in stopping this nomination, as it 
is our responsibility to demand specific answers that this nominee 
recuse himself from any consideration of the President's financial 
dealings or the special counsel and to reject the phony platitudes and 
the evasive and vague answers that have been accepted before, because 
we know that the old platitudes adhering to settled precedent is 
meaningless. We do not live in ordinary times. We need extraordinary 
efforts to make sure that the U.S. Supreme Court remains faithful to 
the rule of law.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BLUNT. Mr. President, I definitely agree with one thing that my 
friend from Connecticut just said, which is that there is a long record 
here on the President's nominee. It is a record I want to look at. It 
is a record I want to be sure that I talk about to the people I work 
for as we go through this process. In this process, we will have some 
time. My guess is it will take about the same amount of time that it 
has taken for the last two nominees, which means sometime in the month 
of September, in all likelihood, we will be on the floor, voting, and 
we will see where that vote takes us.
  A lot of people have jumped to a lot of conclusions here. It wasn't 
my friend Senator Blumenthal at all, but somebody had a news release 
yesterday at a news conference I was in. One of our fellow Senators 
had, apparently, gotten it out a little too quickly. The news release 
read that Supreme Court nominee XXX is the most extreme candidate that 
the President could have possibly picked. Another one of our colleagues 
said yesterday that he didn't care who the President nominated but that 
he wouldn't be voting for him. We are going to hear a lot of that over 
the next few weeks.
  At least going back to 1975, I think every single Republican nominee 
has supposedly been the nominee that would bring an end to so many 
things that people have tried to focus on when these nominations have 
come up. With Gerald Ford's nominee in 1975, who turned out to be 
Justice Stevens, these exact same things were said then. I don't know 
that it is what the President said during the campaign that matters as 
much as what the nominee will say during the next few days.
  I do know of the job the nominee currently has. I want to talk to 
him, and I want to look at the record. I want to visit with him about 
his philosophy personally before I reach a final conclusion. I do know 
the job that Judge Kavanaugh currently has is often cited as the second 
most significant court in the country, the DC Court of Appeals. I do 
know that his 100 most often cited opinions have been cited by more 
than 210 judges around the country. I do know that the Supreme Court 
has endorsed his opinions of the law at least a dozen times and has 
adopted them as the opinions of the Supreme Court.

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  Remember the way this works with the job that Brett Kavanaugh 
currently has as a circuit judge with the court of appeals. Unlike all 
the others, it is the court that often has the real jurisdiction over a 
constitutional case. So there have been lots of cases, and we will be 
looking through the 12 years of what he has done as a judge.
  I know there are some requests to see every piece of paper that Brett 
Kavanaugh had in his hands when he was the Staff Secretary, the 
Assistant to the President, when George W. Bush was President. That 
would be every piece of paper that had gone to the White House. Yet the 
job of the Staff Secretary is not to have an opinion on those pieces of 
paper. In fact, he is probably the highest level official appointed by 
the President in the White House whose job it is not to have an opinion 
but to facilitate the work, to get the paper to whom it needs to go. I 
suppose we could get, virtually, every piece of paper from the National 
Archives and the George W. Bush Library. That is possible but not 
necessary and not justified.
  What is justified is to look at all of these opinions. What is 
justified is to look at the individual, to look at what he does on the 
court, to look at what he does in the community, to look at his 
opinions. These are, without any question, important responsibilities 
not just for the President but for the Senate.
  Once again, Americans are reminded that it matters who is in the 
Senate. It matters who composes a majority in the Senate. My guess 
would be, in 2\1/2\ months or so from now, that a majority of votes 
will be cast for Judge Kavanaugh, that they will be bipartisan in 
nature, and that he will go to the Court, probably, before its new term 
begins on October 1. In fact, that should be one of our goals here--to 
have a Justice in place by that time.
  Three of the current Justices on the Court, by the way, were put on 
the Court in an election year, in an off year--Justice Kagan in 2010. 
It was almost exactly analogous. A Democratic President and a 
Democratic Senate put a Democratic nominee on the Court who had, by the 
way, worked at the White House. The only difference was there was not 
as large a body of work to demonstrate the commitment we would hope to 
find to the Constitution and the law.
  In my mind and, I think, in the minds of a vast majority of the 
people I work for, the goal of a Federal judge and a Supreme Court 
Justice is to judge a case based on the law and the Constitution. It is 
to look and be sure that those match up and to be sure that the law is 
applied as it is written, not as a judge thinks it should have been 
written. It is to be sure the Constitution is applied as it is written, 
not as a judge thinks it should be amended. There is a way to pass a 
new law, and there is a way to amend the Constitution, but that is not 
to be done by the Court.

  It seems to me that in the Scalia tradition and in the Gorsuch 
nomination tradition, we have a judge here who appears to be committed 
in every way to looking at the law and enforcing the law. I think it 
was Judge Scalia who said and others who have said that good judges are 
often not happy with the opinions they have to render because the 
opinions they have to render are based on the facts of the cases and 
may not be the way they would have liked the cases to have worked out 
at all. It is not their job to decide how they would like the cases to 
work out. The job of a judge is to judge the application of the law and 
the application of the Constitution.
  Seven Justices, including our most recent nominee to the Court, 
Justice Gorsuch, served as law clerks on the Supreme Court. If he is 
confirmed, Judge Kavanaugh will be the eighth. His background, his 
training, and his work as a circuit judge appear to qualify him in a 
significant way. He was a Supreme Court clerk for Justice Kennedy.
  We ought to understand what is happening here. Justice Kennedy has 
been on the Court for 30 years. He filled a vacancy that was created in 
1987. He served on the Court for 15 years after the person who 
nominated him to the Court had died. Talk about a long-term impact of 
both the President who nominates and the Senate that confirms. Three 
decades of impact on one of the branches of government is pretty 
substantial.
  In addition to being the clerk for Justice Kennedy, Judge Kavanaugh 
was, as I said, not only in the private sector but, for 5 years, served 
in the Bush administration. Probably the most important job he held in 
that administration was, simply, of seeing that things got done in an 
orderly way to produce a result. In 2006, President Bush nominated him 
to serve on the DC Court of Appeals. Twelve years later, we are here 
today.
  Judge Kavanaugh's opinions are cited by judges around the country. 
Again, the Supreme Court has endorsed his opinions at least a dozen 
times. He has written that the judge's job is to interpret the law, not 
to make the law or to make policy. It is to read the words of the 
statute as written and to read the text of the Constitution as written, 
being mindful of history and tradition--an important point. It is to be 
consistent with the law and the Constitution and to read the text of 
the Constitution as written while being mindful of history and 
tradition. Don't make up new constitutional rights that are not in the 
text of the Constitution. Don't shy away from enforcing constitutional 
rights that are in the text of the Constitution. That is in one of his 
many writings, and we have lots of things to look at here.
  Since 2009, he has been the Samuel Williston Lecturer in Law at 
Harvard Law School. In addition to being a brilliant legal mind, he is 
devoted to his community and, as we saw the other night, to his family 
and to his faith. He spends his time coaching youth basketball and 
serving as a church volunteer, as well as mentoring in local schools. 
His mom was a schoolteacher and went to law school while she was a 
schoolteacher and, eventually, became a judge. He takes these 
qualifications to the Court.
  I think this is an important part of our job--to advise and consent. 
Yet we have a lot of people who have rushed to a determination that 
they absolutely would not be for Judge Kavanaugh. I think a majority is 
likely to come to the determination that we should be for Judge 
Kavanaugh.
  I look forward to visiting with him over the next few days. I look 
forward to learning more about his philosophy as a judge and how he 
thinks the Supreme Court would be different and how his job there may 
or may not vary from being on that second-most important court in the 
country. My guess is he will say that it doesn't vary at all. The job 
of a Supreme Court judge, just like the job of a court of appeals 
judge, is to apply the Constitution, apply the law, and not try to make 
the law or to rewrite the Constitution. I look forward to that 
opportunity. I look forward to looking at many of the judge's opinions.
  I noticed two Pinocchios in the Washington Post today about one of 
the cases that has already been brought up--the determination of this 
argument about the right way to deal with a President while he is in 
office--certainly not a nuisance lawsuit. If the topic of a lawsuit is 
wrong, if it is the wrong thing for the President to do, there is 
clearly a way to remove the President.
  That is the point, I think, in what will be a much discussed law 
journal article that Judge Kavanaugh was making. He didn't suggest that 
the law now prohibited a President from being indicted. He just said 
that there is a constitutional way to return a President to the status 
of a private citizen, and then the President will have all of the same 
vulnerabilities that a private citizen would have if 200 Members of 
Congress filed a lawsuit. There is a place in the Constitution that 
says what 200 Members of the Congress should do if they think the 
President should be removed. That place in the Constitution does not 
say you should harass the President all you can about everything you 
can whenever you can.
  It is going to be an interesting debate for the American people. Once 
again, they are going to be reminded as to how important the courts 
are, as to the incredible impact of the appointing power and the 
nominating power to the Federal courts, and of the partnership 
responsibility and important impact that the U.S. Senate has.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. LANKFORD. Mr. President, I, along with the rest of the Senate, 
look

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forward to going through the process with Brett Kavanaugh, who is an 
exceptionally qualified judge. He has been described as a judge of 
judges. He is one to whom judges look around the country to see what he 
has written and what his opinions have noted. In fact, historically, 
the Supreme Court has also looked to his opinions on the circuit court 
and has taken high notice of those and has quoted several of his 
opinions verbatim in Supreme Court opinions.
  This person has had a lot of respect for what he has done and how he 
has done it in the process. I have enjoyed getting a chance to meet his 
family and to have been introduced to not only his personal faith but 
to his passion for people and his work with the homeless and other 
things that he has done for so many years.
  This will be an interesting process. Over the next 2 months or so, 
this body should do as it has done before with Justice Gorsuch and 
Justice Sotomayor--about 66 days for both of them as we worked through 
their nomination processes until we actually got to the final votes.
  We will see how this goes in the days ahead. I look forward to 
getting a chance to visit with Judge Kavanaugh in my office in the days 
ahead to ask him specific questions. I am reserving judgment on him 
until I have the opportunity to visit with him personally and to finish 
going through all the opinions he has written.
  He seems like an exceptional candidate. I look forward to walking 
through this process judiciously.