[Congressional Record Volume 164, Number 117 (Thursday, July 12, 2018)]
[Senate]
[Pages S4930-S4931]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Brett Kavanaugh

  Mr. MARKEY. Madam President, the retirement of Supreme Court Justice 
Anthony Kennedy has created one of the most consequential vacancies on 
the High Court that this country has ever seen. There is a reason 
pundits have often referred to the Supreme Court as the ``Kennedy 
Court.'' His influence on so many politically salient cases cannot be 
overstated. During his 30 years on the Supreme Court, Justice Kennedy 
was often the swing vote in decisions decided 5 to 4 on a divided bench 
of the Supreme Court. These include some of the most historic cases in 
our Nation's history: on a woman's right to choose, environmental 
protections, and same-sex marriage.
  In 1992 Justice Kennedy wrote the controlling opinion in Planned 
Parenthood v. Casey, which reaffirmed Roe v. Wade's core holding that 
the Constitution protects a woman's right to make a fundamental 
decision about her own healthcare, including a woman's right to choose.
  In 2007 Justice Kennedy joined a 5-to-4 opinion in Massachusetts v. 
EPA, which held that greenhouse gas emissions are pollutants under the 
Clean Air Act and that the EPA must regulate those emissions under that 
statute, unless it can provide a scientific basis for its refusal to do 
so.
  In 2013 Justice Kennedy wrote the majority opinion in United States 
v. Windsor, striking down as unconstitutional the Defense of Marriage 
Act because it violated basic due process and equal protection 
principles by extending certain Federal benefits to opposite-sex 
married couples but denying those same benefits to same-sex married 
couples.
  In 2015 Justice Kennedy wrote the landmark opinion on same-sex 
marriage in Obergefell v. Hodges, which held that the Constitution 
guarantees same-sex couples the right to marriage.
  In 2016 Justice Kennedy wrote the majority opinion in Whole Woman's 
Health v. Hellerstedt, which struck down a restrictive anti-choice law 
in Texas because it put an undue burden on women's access to 
reproductive healthcare services.
  All of these decisions were decided by the single vote of a single 
Supreme Court Justice. That Justice was Anthony Kennedy. The Justice 
who succeeds Anthony Kennedy on the Supreme Court will have the 
opportunity to leave a deep and lasting mark on issues of the highest 
constitutional magnitude--issues that impact the health and freedom of 
women, the environment, LGBTQ rights, consumer protection, labor 
protections, affirmative action, criminal justice, gun safety, and 
more.
  There are, without a doubt, important issues that will be decided. 
These will be the most important decisions of our generation, and this 
Supreme Court will be in a position to make that history.
  Justice Kennedy's retirement handed President Trump the opportunity 
to fulfill his campaign promise to shift the balance of power on the 
Supreme Court to the far right on these issues. So the President dusted 
off a preapproved list of candidates for the High Court--a wish list 
prepared and presented to him by the ultraconservative Federalist 
Society. This is the same list of candidates that the Federalist 
Society assured President Trump would satisfy his litmus test of 
overturning Roe v. Wade and striking down critical healthcare 
protections. This is the same set of candidates from which the 
President selected Neil Gorsuch to fill the late Justice Antonin 
Scalia's seat--the seat that Senate Republicans stole when they 
violated all norms of Senate procedure by refusing even to hold a 
hearing on President Obama's nominee, Merrick Garland. In the short 
time that Justice Gorsuch has been on the Supreme Court, he has proven 
himself to be every bit of the far-right conservative Justice that the 
Federalist Society promised he would be.
  DC Circuit Court Judge Brett Kavanaugh's name was on that Federalist 
Society's wish list as well. With the President's nomination of him to 
the Nation's highest Court, the President has found another Federalist 
Society-approved jurist whom he believes will pass his litmus test, and 
that should concern every single American.
  Brett Kavanaugh is a judicial conservative's dream come true--a young 
jurist who will push the Supreme Court to the right for decades to 
come. His record on issues such as access to healthcare, consumer and 
environmental protections, and a free and open internet portend a 
rubberstamp for a conservative, right-wing agenda that would move us 
backward as a nation.
  At the same time, it is very concerning that Judge Kavanaugh, who 
once served as Ken Starr's top deputy in the White Water and Monica 
Lewinsky investigations of President Clinton, has said that a sitting 
President should not be investigated for allegations of wrongdoing, 
should not be indicted or tried while he is in office, and should not 
have to participate in civil legal proceedings until he leaves office. 
This is from a veteran of Ken Starr's staff, leading the investigation 
against President Clinton throughout the Monica Lewinsky investigation. 
It is no coincidence that a President who now fears all of these legal 
actions would nominate a judge who could shield him from those legal 
actions.
  Perhaps the gravest concern that the Kavanaugh nomination raises is 
the fate of Roe v. Wade. For 45 years, Roe has not just protected 
access to safe and legal procedures for women in our country, but it 
has affirmed the constitutional right to privacy. Roe recognizes that 
all Americans must be able to make their own personal health decisions 
based on their own beliefs, needs, and circumstances.

[[Page S4931]]

  Judge Kavanaugh's record on the DC Circuit inspires no confidence 
that he will protect this fundamental right. He has supported 
restricting access to contraception, and he recently would have forced 
an undocumented minor in Texas to delay receiving a safe and legal 
termination of her pregnancy despite her taking all of the necessary 
steps to access that procedure under Texas State law. If confirmed, 
Judge Kavanaugh will almost certainly have more opportunities to inject 
the government into women's decisions about their own bodies.
  Over recent years, State legislators across the country and their 
allies have pushed the boundaries of restrictions on legal abortion. 
Challenges to these laws are winding their way through the judicial 
system now and could certainly land in the welcoming arms of a nominee 
whom the Federalist Society have assured the President would reverse 
Roe v. Wade.
  Confirming Judge Kavanaugh to the Supreme Court is an invitation for 
anti-choice advocates to intensify their crusade against women having 
access to procedures which they choose to make, taking them closer to 
their dream of overturning Roe v. Wade and turning back the clock on 
women's health freedom and economic security.
  Let's be clear. Overturning Roe wouldn't end these procedures across 
this country. It would just end safe abortions that women would have 
access to.
  Those across the country who care about protecting individual liberty 
and autonomy in healthcare decisions, including access to safe and 
legal procedures, are galvanized and mobilized politically in a way we 
haven't seen in a generation. They are organized, and I believe they 
will bring that political power to bear in opposition to the Kavanaugh 
nomination. Our judicial system--and the Supreme Court, in particular--
has a special role in our democracy as a neutral arbiter of the law. 
The American people must have faith that this institution and its 
Justices will uphold this sacred responsibility.
  Stepping back and from a larger perspective, looking at the 
Affordable Care Act, we have to ensure that, ultimately, protections 
for those with preexisting conditions in the healthcare system, which 
are guaranteed under ObamaCare, are continued. Every family in our 
country has somebody with a preexisting condition, and we have to make 
sure this nomination does not lead to such fundamental changes in the 
Affordable Care Act, eviscerating those protections and rights.
  The President had an opportunity to choose a nominee that would unify 
this country and assure the public of the independence of the judicial 
branch. Instead, he shamelessly, in a partisan way, picked someone who 
would only serve to propel our highest Court into a far-right orthodoxy 
for generations to come, becoming the ``supreme rightwing court.''
  If Judge Kavanaugh is confirmed, women's freedom to make decisions 
about their bodies, reforms to our healthcare system, the quality of 
our air and water, and much more will be at risk. This is a critical 
moment for our country and much too important for any Senator to 
rubberstamp this nominee in the name of deference to the President.
  I am going to fight this nominee every step of the way, and I ask 
every American to join me in this fight. We will need all Americans to 
organize, to march, to raise their voices, and to say: Judge Kavanaugh 
does not represent the values we need on the Supreme Court of the 
United States of America.

  Thank you.
  I yield back.
  The PRESIDING OFFICER. The Senator from Colorado.