[Congressional Record Volume 164, Number 123 (Monday, July 23, 2018)]
[Senate]
[Pages S5117-S5118]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. SCHUMER. Mr. President, on Saturday, the Senate Judiciary 
Committee received the completed questionnaire from Brett Kavanaugh, 
President Trump's nominee to the Supreme Court.
  As legal minds on both sides of the aisle pore over these preliminary 
documents, a common thread has already emerged: Brett Kavanaugh seems 
to have an imperial conception of the American Presidency. He has 
written that a sitting President shouldn't be subject to civil or 
criminal investigations while in office.
  In at least three separate instances, Brett Kavanaugh has shown a 
willingness to openly question precedent relating to Presidential power 
and Presidential accountability.
  First, in his opinion in Seven-Sky v. Holder, Kavanaugh wrote that 
the President does not have to enforce the laws if he ``deems'' a 
statute unconstitutional, regardless of whether a court has already 
held it constitutional.
  What the heck do we have a Supreme Court for? If the President can 
deem a law unconstitutional even after the courts have ruled it is and 
then not obey it--wow. That goes very far. I fear to think what this 
President, in particular, who doesn't seem to have much respect for the 
rule of law or people who disagree with him, will do if that becomes 
the law.
  Second, when Brett Kavanaugh was asked which case he would choose if 
he could overturn precedent in any one case, he said the decision in 
Morrison v. Olson. That is the case that upheld the constitutionality 
of the independent counsel law.
  Many of us did not agree with the independent counsel law, but it is 
telling that the first and only case Brett Kavanaugh cited when asked 
``What case would you overrule, would you overturn stare decisis on?'' 
was a case about executive accountability.
  Third and most recently, on Saturday, we learned that Brett Kavanaugh 
even believes that the 8-to-0 decision in United States v. Nixon may 
have been wrongly decided. This new revelation adds to the body of 
evidence that Kavanaugh believes sitting Presidents should be free from 
civil and criminal investigations while in office--a view, of course, 
that could have significant ramifications for the future of the 
Presidency and our democracy.
  Let me ask this Senate and the American people a very important 
question: If Kavanaugh would have let Nixon off the hook, what is he 
willing to do for President Trump? Alarm bells should be going off for 
anyone who believes in checks and balances.
  It is a fundamental principle of our democracy that no one is above 
the law, including the President. Our Presidents are not Kings. But 
Brett Kavanaugh's jurisprudence does not bode well for the future 
rulings on the accountability of the President, including those that 
may arise from Special Counsel Mueller's investigation.
  Kavanaugh's views of an imperial Presidency would be alarming under 
any President, but it is especially alarming under President Trump, who 
almost daily tests the bounds of our Constitution, the separation of 
powers,

[[Page S5118]]

and the rule of law. It almost seems that anyone who criticizes him is 
beyond the pale, is fake, is dishonest.
  As the revelation about the Nixon case shows, there is still much we 
don't know about Judge Kavanaugh. The Senate and the American people 
deserve to know where Judge Kavanaugh stands on a host of issues. After 
all, the Supreme Court is a lifetime appointment with enormous power--
the power to overrule the elected bodies of government.
  Given that the hearing process for the Supreme Court has tended to be 
more of a public relations exercise for nominees rather than a 
legitimate examination of judicial philosophy, Judge Kavanaugh's papers 
might be the best and only way to judge what kind of a Justice he might 
be. My Republican friends understood this when it came to Justice 
Kagan, who had served in key positions in prior administrations, much 
like Judge Kavanaugh. They were then in the minority, as we are now, 
when Judge Kagan was nominated, but our Republican colleagues demanded 
the entire paper history of then-Solicitor General Kagan before moving 
forward with her nomination, and Democrats agreed.
  In a joint letter to the director of the Clinton Library, the 
chairman and ranking member of the Judiciary Committee at the time--
Senator Leahy, the chairman, and Senator Jeff Sessions, now Attorney 
General, but then the ranking Republican on the committee--wrote that 
they expected ``all records containing documents written by, edited by, 
prepared in whole or part by, under the supervision of, or at the 
direction of Elena Kagan, as well as documents referencing Elena Kagan 
by name, initials, or title, and documents received by or sent to Elena 
Kagan.''
  A Democratic chairman and Republican Senator Sessions, the ranking 
member, asked for every single document of Elena Kagan's record. Why 
should such a standard apply to Justice Kagan but not to Judge 
Kavanaugh?
  I have taken the liberty of editing the letter sent by Senators 
Sessions and Leahy. It didn't take much work to make it directly 
applicable today. It is the same letter, same request, simply crossing 
out every time it mentions Kagan and putting in the name ``Kavanaugh.'' 
There was no change. It is the same standard.
  I have already heard from my Republican colleagues, including 
Chairman Grassley, that there is no reason to review Judge Kavanaugh's 
full record before proceeding with his nomination.
  I have had enough of the two-facedness, the total hypocrisy on 
judges, where somehow our Republican colleagues say it is good one way 
when we have a Democratic President and the opposite should take effect 
when we have a Republican President. That is what they are doing with 
the records here first of Judge Kagan and now Judge Kavanaugh.
  Well, I say to my Republican colleagues, what is good for Justice 
Kagan--let's call it the Kagan standard--is good enough for Judge 
Kavanaugh--paraphrasing, of course, what is good for the goose is good 
for the gander.
  The Senate's duty to advise and consent does not mean move as hastily 
as possible. For the benefit of this body, for the sake of consistency, 
and for the honor of this Chamber, I hope my Republican friends join 
Democrats in asking for and waiting for all the documents related to 
Judge Kavanaugh. The American people have a right to know what is 
there, and the Senate must have enough time to review the body of work 
before making an unalterable decision on a lifetime appointment to the 
Nation's highest Court.

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