[Congressional Record Volume 164, Number 124 (Tuesday, July 24, 2018)]
[Senate]
[Pages S5228-S5229]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. SCHUMER. Madam President, the Senate has a constitutional duty to 
provide advice and consent and a special obligation to thoroughly 
examine Supreme Court nominations. After all, there are few positions 
in our government with greater importance or responsibility than a 
lifetime appointment on the Nation's highest Court. It is now our job 
to carefully, thoroughly, and methodically review the record of Judge 
Brett Kavanaugh, and we have quite a job ahead of us.
  As a partisan political lawyer during the Clinton and Bush years, 
Brett Kavanaugh has a paper trail a mile long. There is no doubt the 
White House and Leader McConnell were aware of this history when the 
nomination was made. The length of Judge Kavanaugh's record, however, 
is no reason to shirk our responsibility as Senators to review it.
  Yet the distinguished chairman of the Judiciary Committee has already 
suggested there is no reason to review Judge Kavanaugh's full record 
before proceeding with his nomination. Leader McConnell threatened to 
play political hardball if Democrats insisted on obtaining Judge 
Kavanaugh's full record. Senate Republicans are making hollow arguments 
and petty attempts at advancing Judge Kavanaugh's nomination with as 
little scrutiny as they can manage.
  We have been having trouble getting an agreement with Judiciary 
Committee Chairman Grassley on the scope of the documents the Senate 
should request. Chairman Grassley has had our request for over a week. 
It is the same request that was made when Elena Kagan was nominated to 
the Supreme Court. It is the very same request that Republicans 
insisted on, including Senator Grassley--he was not chairman then--and 
Democrats agreed to when we were in charge.
  Much like Judge Kavanaugh, Elena Kagan spent time in prior 
administrations and had a lengthy paper trail, some of which could have 
been labeled privileged. Did Democrats, in the majority at the time, 
attempt to rush her nomination through? No. Did we lean on former 
administrations to declare her documents privileged? No. Democrats 
actually joined with the Republican minority to request a full and 
complete accounting of Elena Kagan's record. Her former employer waived 
all claims of privilege.
  Let me show you the letter right here that my friend Senator Leahy, 
then chairman of the Judiciary Committee, and Senator Jeff Sessions, 
then ranking member, sent to the Clinton Library. Here is the letter. 
What we have done is use the same letter. We are willing to issue the 
exact same letter, except we have put the address of the person at the 
Bush Library, changed the name of Kagan to Kavanaugh, and changed the 
name of Clinton to Bush; otherwise, it is the exact same letter.
  How can our Republican colleagues resist this simple letter when it 
is the exact same letter they pushed for, and we acceded to, when the 
shoe was on the other foot?
  The letter requests the entirety of Elena Kagan's record, not part of 
it, not a subset of it--all of it. What is good enough for Justice 
Kagan is good enough for Judge Kavanaugh. You could simply replace her 
name with Judge Kavanaugh's name throughout this letter, and the letter 
would be exactly applicable today. This is the standard Democrats and 
Republicans used to agree on, the Kagan standard--and it wasn't just 
Senators Leahy and Sessions.
  At the time, Senator Grassley, now chairman--the burden is on him to 
help

[[Page S5229]]

us get a bipartisan letter--said: ``In order for the Senate to fulfill 
its constitutional duty of advise and consent, we must get all of 
[Elena Kagan's] documents from the Clinton Library and have enough time 
to analyze them so we can determine whether she should be a Justice.''
  Let me read it again. This is what Chairman Grassley said--now 
chairman, then a member of the Judiciary Committee: ``In order for the 
Senate to fulfill its constitutional duty of advise and consent, we 
must get all of [Elena Kagan's] documents from the Clinton Library and 
have enough time to analyze them so we can determine whether she should 
be a Justice.''
  Senator Grassley is a good man. Senator Grassley has a real sense of 
integrity and fairness. That is why so many of us are wondering why 
there is such a double standard right now. We hope he will join Senator 
Feinstein in a joint letter, just as Senator Leahy and Senator Sessions 
came together on such a letter a while ago.
  Senator Cornyn at the time, now the No. 2 man in the Republican 
hierarchy here in the Senate, said: ``I think it would be a mistake to 
hold the hearing until we've had a chance to see [Elena Kagan's] 
documents and any other documents that might exist . . . [and] we've 
had an adequate time to review the documents.''
  This happens especially when it comes to judges. The double standard 
of the other side is enormous. When they are in the minority, they 
profess strong arguments, push us to go along, and usually we do. But 
now that they are in the majority, it is as if there is a whole new 
world and what happened in the past doesn't make a darn bit of 
difference. That is not fair. That is not right.
  We, on this side, have had enough of the other side's hypocrisy on 
judges. We know there is a push by the hard right to fill the bench so 
they can achieve their agenda, which they could never achieve--even 
with Republican majorities in the House, Senate, and Presidency--
through the elected bodies.
  The kinds of attitudes that we have seen by the conservative 
Justices--which we believe Judge Kavanaugh might well accede to, and 
that is why we want a hearing--are not what America wants on issue 
after issue after issue. This is the hard right's No. 1 goal.
  They embraced Donald Trump only after he agreed to a list of 25 
judges that the Federalist Society and Heritage Foundation suggested; 
both are far away from where Americans feel on issues like healthcare, 
government involvement, and choice. That is when they embraced him.
  There is huge pressure; I get that. We have pressure on our side too. 
But the double standard is so glaring, so unfair, that it is appalling.
  People say: Well, on judges, it has been tit for tat. It really 
hasn't. It really hasn't. Leader Reid changed the rules after four 
vacancies existed on the DC Court of Appeals because Republicans 
wouldn't put them in. It was a 60-vote rule, but we kept it open for 
the Supreme Court. Leader McConnell changed that. Leader McConnell, 
unprecedentedly, let Merrick Garland stew and not have a hearing.
  We understand the pressure, but it is not good for the Republicans, 
and it is not good for comity in this body, which we are seeking. I see 
the chairman of the Appropriations Committee. We are trying to get 
comity on appropriations. Stuff like this poisons the well. It does.
  Just last week, we witnessed the firsthand importance of reviewing a 
nominee's full record. The White House was forced to withdraw the 
nomination of Ryan Bounds for a seat on the Ninth Circuit after 
abhorrent writings from his college newspaper came to light. If the 
college newspaper writings of a potential appellate judge are 
significant enough to disqualify him from consideration, how can my 
colleagues on the other side argue with a straight face that Judge 
Kavanaugh's record should not be fully considered before the Senate 
moves forward on his nomination to this Nation's highest Court--one of 
the most powerful institutions in the world?
  There is a lot we don't know about Judge Kavanaugh. We are learning 
more about him each day. Just a few days ago, for example, we learned 
he had expressed skepticism about the Supreme Court that held President 
Nixon accountable. It is another example of Judge Kavanaugh expressing 
the view that Presidential power should be virtually unconstrained. One 
that is still amazing to me, and I would like to see if there is more 
of it in his records because it is so extreme a view, is that Judge 
Kavanaugh suggested a President can ignore a statute he ``deems''--his 
word--unconstitutional even if a court ruled it was constitutional. 
That is like a King, not a President. We have the rule of law here.

  He said sitting Presidents should not be subject to an investigation 
of any kind, other than an impeachment inquiry by Congress.
  Judge Kavanaugh's belief in unchallenged Presidential power is so 
ingrained that he has even questioned the constitutionality of what he 
calls the ``independent regulatory state,'' a phrase that sounds 
awfully familiar to the hard-right myth of a deep state.
  This is a radically activist view for a judge who advertises himself 
as someone who will merely interpret the law as written. Congress has, 
by law, given certain agencies varying degrees of independence from the 
Executive. That started in the 1890s. That is not new, and there is an 
ebb and flow to it. Sometimes Congress feels the regulations have gone 
too far and push back; sometimes they feel they need more, and they 
push forward. There has been an ebb and flow in history since the 
1890s, but almost no one has said--except the hard right and deep state 
people--that there shouldn't be regulations.
  If Judge Kavanaugh has his way, agencies that have been somewhat 
independent with good success, such as the Social Security 
Administration, the SEC, the IRS, and the FBI, would be subject to vast 
political influence from the White House. That is exactly the opposite 
of what Congress has provided by law.
  Senators and the public will have to make up their minds about what 
Judge Kavanaugh believes, and they will have to think of it in the 
broad, long-term context but also in the context of this President, who 
seems to have less respect for the rule of law, less respect for 
separation of power, and less respect for anyone who stands in his way 
than any President I have seen in my lifetime.
  Everyone will have to make up their minds about that. I understand 
that. That is what we are here for, but it seems clear that in the 
context of Judge Kavanaugh's writings about the Presidency, that the 
statement questioning the Nixon decision reflects his actual beliefs. 
That is why we need to obtain, analyze, and scrutinize his record. That 
is our job as U.S. Senators, a job Members from both sides of the aisle 
used to agree on.

                          ____________________