[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
[[Page S4900]]
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.