[Congressional Record Volume 164, Number 130 (Wednesday, August 1, 2018)]
[Senate]
[Pages S5551-S5553]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Ms. SMITH. Mr. President, I rise to talk about my strong opposition 
to Judge Brett Kavanaugh's nomination to the Supreme Court. I want to 
specifically focus on what his confirmation could mean for the future 
of voting rights in this country.
  The right to vote is our most sacred responsibility as citizens of 
this great Nation. Martin Luther King, Jr., called voting ``the 
foundation stone for political action.'' That is because when the right 
to vote is restricted, it undermines the very foundation of our 
democracy. If certain groups are barred or discouraged from voting, 
then our elected representatives cannot be held accountable for 
protecting the rights and interests of all of us.
  When you cast your vote, you decide who should be entrusted to 
protect all of your rights--your right to make private decisions about 
how and when to start a family, your right to organize and advocate for 
fair pay and safe working conditions, your right to affordable 
healthcare, and your right to breathe clean air and drink clean water. 
Yet, if Judge Kavanaugh is confirmed to the Supreme Court, there is no 
doubt he will help his friends in far-right special interest groups 
continue their coordinated campaign to make it harder for millions of 
Americans to vote. These are the very same groups who recommended his 
nomination to the President.
  These special interest groups have helped to pass State laws that 
have been designed to create obstacles at every step of the voting 
process, like making it more difficult to register to vote, to cast 
your vote, and to have your vote counted equally. These groups also 
know that they can count on Judge Kavanaugh to uphold these 
discriminatory laws.
  As a judge on the DC Circuit Court of Appeals, Judge Kavanaugh has a 
record of supporting laws that perpetuate voting discrimination, 
particularly against communities of color. In 2012, he wrote an opinion 
for a three-judge panel that upheld South Carolina's stringent voter ID 
law even though the Department of Justice had determined that the law 
would violate the Voting Rights Act of 1965.
  Unfortunately, discriminatory voting laws, like the one Judge 
Kavanaugh upheld, have a long and shameful history in this country. 
When this country was founded, generally only property-owning White men 
had the right to vote. It took 80 years to expand the franchise to all 
male citizens regardless of their race or color. It took another 50 
years to grant women the right to vote and another 4 years after that 
to grant that right to all Native Americans. Yet the expansion of the 
legal right to vote did not always translate into access at the polls. 
It took us over a century to pass the Voting Rights Act of 1965, which 
outlawed discriminatory poll taxes, literacy tests, and other voter 
intimidation tactics. This landmark civil rights legislation finally 
put real teeth in the promise of the 15th Amendment--that no one should 
be denied the right to vote on account of one's race or the color of 
one's skin.
  Unfortunately, in 2013, the Supreme Court gutted one of the most 
important protections of the Voting Rights Act in Shelby County v. 
Holder. Since then, far-right special interests at the State level have 
doubled down on their efforts to make it harder for people to vote by 
eliminating same-day and online voter registration, by limiting early 
voting, by enacting voter ID laws, and by purging infrequent voters 
from the registration rolls. These latest efforts make it harder rather 
than easier for people to vote. They show us there is still so much 
work to be done to fulfill the promise of the 14th and 15th 
Amendments--that every citizen can vote.
  We deserve a Justice who is committed to making our democracy more 
representative so that we remain a government for the people and not 
just for some of the people. We need a Supreme Court Justice who 
appreciates the history of this hard-won fundamental right and who will 
not reverse course on centuries of progress. Judge Kavanaugh's opinions 
show that he will uphold State laws that make it harder for communities 
of color and people of low-income to make their voices heard.
  Our voting laws reflect our beliefs about who should have a voice in 
this country. I am proud to represent Minnesota, the State with the 
highest voter turnout in the Nation, and I believe that our next 
Supreme Court Justice should vigorously defend the right of all 
eligible citizens to exercise their most fundamental constitutional 
right--the right to vote. Unfortunately, Judge Kavanaugh's record 
demonstrates he will not be that Justice.
  I urge my colleagues to join me in opposing his nomination, and I 
urge the American people to make their voices heard.
  I thank the Presiding Officer.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise to discuss the nomination of Judge 
Brett Kavanaugh, as some of my colleagues have been doing today.
  President Trump has chosen a superbly qualified nominee to the 
Supreme Court--and believe me, I know what is good and what isn't good. 
Judge Kavanaugh is one of the most widely respected judges in the 
country. He has authored 300 opinions during his 12 years on the bench 
in the DC Circuit Court of Appeals--the second highest court in the 
country. The Supreme Court has adopted the positions in his opinions a 
dozen times. He has written multiple dissents that have carried the day 
in the Supreme Court. He has authored articles in the Harvard Law 
Review, the Yale Law Journal, and the Georgetown Law Journal. He has 
also taught courses at Harvard, Yale, and Georgetown. None other than 
Elena Kagan, in fact, hired him to teach at Harvard.
  I would like to take some time today to focus on a subject on which 
Judge Kavanaugh has really made his mark as a jurist. I want to talk 
about substance. I want to talk about what Judge Kavanaugh has written 
in his opinions and how he has been a true intellectual leader on the 
court. I hope my colleagues on both sides listen to this because we 
haven't had a nominee like him in a long time.
  So much of the discussion about Judge Kavanaugh, so far, has been 
substance-free. Democrats have hurled accusation after accusation that 
has been divorced from reality. They say those who support Judge 
Kavanaugh are complicit and evil. They say his nomination threatens the 
destruction of the Constitution. They say people will die if he is 
confirmed. Lost in all of this is any actual discussion of Judge 
Kavanaugh's written opinions, of the way he approaches cases.
  When Judge Kavanaugh met with me last month, he said he hoped my 
colleagues would read his opinions. That is how they can learn what 
kind of a judge he is. That is how they can learn how he thinks. That 
is how they can learn why he is so respected by Democrats and 
Republicans alike who are on the circuit courts of appeals and who hold 
other judgeships.
  Regrettably, my Democratic colleagues have been too busy one-upping 
each other's apocalyptic rhetoric to take a look at what Judge 
Kavanaugh has actually written, so I would like to take some time to do 
that today. I would like to focus in particular on the subject on which 
Judge Kavanaugh has arguably had his greatest influence as a judge--the 
separation of powers.
  The separation of powers is a core component of our Constitution. It 
is, in fact, the first and the most important way the Constitution 
protects our liberty.
  Justice Scalia was fond of saying that ``the genius of the American 
constitutional system is the dispersal of

[[Page S5552]]

power.'' By separating authority among competing branches of government 
and then further dividing it between the Federal Government and the 
States, the Constitution makes it extremely difficult--indeed, nearly 
impossible--for any one individual or faction to consolidate enough 
power to truly threaten liberty. The side effect, of course, is a 
degree of inefficiency because you must get so many people with so many 
divergent interests to agree in order to enact lasting changes.
  Policymaking can be a messy, slow process, but that was the point. By 
creating multiple power centers, the Founders ensured that no one 
person or group could exercise too much power.
  Sometimes we forget that the purpose of the separation of powers is 
to protect liberty. We get frustrated with the slow pace of 
legislation, and so we want to give more power to the executive branch 
because the President can act more quickly than a large, multimember 
body like Congress. Yet we do not want to give the executive branch too 
much power because the President might not always be of our same party. 
So we create these weird hybrids called agencies that, like Congress, 
create rules for people to follow but that, like the President, are 
able to act quickly when necessary. Also, like the President, these 
agencies decide when and how to enforce the law. They decide when to 
bring suit or when to levy penalties for violations of agency rules. 
They exercise significant power over our lives, and they don't fit 
neatly within the constitutional design because they partake of all 
three branches of government.
  Judge Kavanaugh sits on the U.S. Court of Appeals for the DC Circuit, 
often called the second highest court in the land. The DC Circuit 
enjoys this esteemed position because it hears many of the cases that 
involve these agencies that I have just described.
  Federal agencies have significant power over many aspects of our 
lives, and the DC Circuit has authority to review the actions of nearly 
every Federal agency--important parties, important court.
  Judge Kavanaugh's central contribution to separation of powers 
jurisprudence has been his commitment to upholding the structure of our 
constitutional design against misguided efforts to insulate agencies 
from political accountability.
  I described earlier how agencies are these weird hybrids. Like 
Congress, they make laws in the form of regulations. Like the 
President, they enforce those laws. Like the judiciary, they adjudicate 
disputes that arise under those laws, the very same laws they wrote in 
the first place. It is a recipe for abuse if not kept under control. 
That is why Judge Kavanaugh has been so careful to scrutinize agency 
design and agency decision making to ensure that officials have the 
necessary accountability. Accountability is what keeps these agencies 
in check, given that the traditional separation of powers, which is 
what keeps our three branches of government in check, does not apply.
  In only his second term on the DC Circuit, Judge Kavanaugh authored a 
masterful dissent in Free Enterprise Fund v. Public Company Accounting 
Oversight Board. The Public Company Accounting Oversight Board was a 
newfangled agency that Congress created in 2002 in the Sarbanes-Oxley 
Act. The Board has broad authority to regulate audits of public 
companies and oversees the registration and inspection of audit firms. 
It also sets audit standards and brings enforcement actions against 
violators. It is, in short, a very important agency.
  The problem with the Board was that Congress had chosen to completely 
insulate it from political accountability. Board members are not chosen 
by the President. They are chosen by the Securities and Exchange 
Commission, which is, in turn, chosen by the President. Board members 
cannot be removed by the President. They can be removed only by the 
SEC, which, in turn, can be removed by the President.
  The rub was that Congress had placed strict limits on the SEC's 
ability to remove Board members and strict limits on the President's 
ability to remove SEC Commissioners. The Securities and Exchange 
Commission could remove a Board member only for ``good cause shown,'' 
and the President could remove an SEC Commissioner only for 
``inefficiency, neglect of duty, or malfeasance in office.'' So not 
only could the President not remove a Board member who was doing a bad 
job, but he also could not remove an SEC Commissioner for refusing to 
remove a Board member who was doing a bad job unless he could somehow 
show that the SEC Commissioner's failure to remove the Board member was 
a neglect of duty.
  As Judge Kavanaugh explained:

       The President's power to remove is critical to the 
     President's power to control the Executive Branch and perform 
     his Article II responsibilities. Yet under this statute, the 
     President is two levels of [removal limitations] away from 
     Board members. . . . This structure effectively eliminates 
     any Presidential power to control the [Board], 
     notwithstanding that the Board performs numerous regulatory 
     and law-enforcement functions at the core of executive power.

  Judge Kavanaugh's logic was inescapable: The President cannot do his 
job if he cannot control his subordinates, and he cannot control his 
subordinates if he cannot remove them from office. The structure of the 
Public Company Accounting Oversight Board made it immune from 
Presidential control and, thus, immune from political accountability. 
Here, you had an agency exercising executive power with no oversight 
from the Chief Executive himself. This is contrary to the separation of 
powers, which vests executive authority in the President precisely 
because the President is a politically accountable actor.
  As Justice Jackson memorably taught, the power to enforce the law is 
among the most awesome of powers granted to government. By cutting off 
the exercise of executive power from Presidential oversight, the 
Board's structure violated the Constitution.
  Although Judge Kavanaugh's position was the minority view among his 
DC Circuit colleagues, his position ultimately prevailed at the Supreme 
Court. It was a significant victory for a young judge and a sign of 
things to come.
  Over the next decade, Judge Kavanaugh continued to uphold the 
separation of powers in a range of cases that called on him to 
interpret the scope of agency authority. He brought a discerning eye to 
these cases, always careful to ensure that agencies did not act beyond 
the powers Congress had granted them.
  In Loving v. Internal Revenue Service, for example, he rejected an 
effort by the IRS to stretch the words of a statute authorizing the IRS 
to regulate the practice of ``representatives of persons before the 
Department of the Treasury'' to include the authority to regulate tax 
preparers.
  Similarly, in White Stallion Energy Center v. EPA, Judge Kavanaugh 
concluded that the EPA contravened the Clean Air Act when it refused to 
consider costs in setting air quality regulations. This was yet another 
case in which Judge Kavanaugh's position ultimately prevailed at the 
Supreme Court itself.
  Of course, Judge Kavanaugh's searching review doesn't mean that 
agencies always lose. In American Trucking Association v. EPA, for 
instance, he upheld the EPA decision to authorize a State emissions 
rule over a vigorous dissent because he concluded the Agency had met 
the statutory requirements in rendering its decision.
  The key is that Judge Kavanaugh reviews agency action carefully to 
ensure that it conforms to Congress's commands. This is an essential 
aspect of the separation of powers. Congress determines the limits of 
agency authority. Congress sets the rules for when agencies may and may 
not act and for what they may and may not do. That is the very essence 
of legislative power--the power to set the rules that others must 
follow.
  When agencies transgress the bounds Congress has laid down, they 
exercise power that no one has granted them, power that Congress alone 
can give.
  Judge Kavanaugh returned to the theme of agency accountability and 
the separation of powers in another powerful dissent earlier this year. 
The case is PHH Corporation v. CFPB, and it is another tour de force 
for Judge Kavanaugh.
  At issue in the case is the structure of the Consumer Financial 
Protection

[[Page S5553]]

Bureau, or CFPB. The CFPB is an incredibly powerful agency with vast 
authority over American life. Its jurisdiction includes banks, credit 
unions, securities firms, payday lenders, mortgage servicers, and an 
array of other financial services companies.
  When Congress created the CFPB in the 2010 Dodd-Frank Act, it placed 
strict limits on the President's ability to remove the agency's head. 
Specifically, Congress provided that the President may remove the CFPB 
Director only for ``inefficiency, neglect of duty, or malfeasance.''
  You may recall that language from my discussion of the Free 
Enterprise Fund case. It is the same restriction that Congress placed 
on the President's ability to remove SEC Commissioners, but there is a 
significant difference between the SEC and the CFPB.
  The SEC is a multimember body. It cannot act without the agreement of 
a majority of Commissioners. The CFPB, by contrast, is a unitary body. 
It has a single Director. The only person the CFPB Director has to 
agree with is himself. Coupled with the fact that the CFPB is an 
incredibly powerful agency whose funding isn't even directly controlled 
by Congress, this raises serious separation of powers concerns.

  An agency head who can do virtually whatever he wants without fear of 
Presidential reprimand, and who can do it on his own without having to 
get the consent of fellow Commissioners, is accountable to no one. The 
President cannot check him. His colleagues cannot check him. In a very 
real sense, he is a law unto himself.
  Judge Kavanaugh's dissent confronts this problem head-on in its very 
opening lines:

       This is a case about executive power and individual 
     liberty. To prevent tyranny and protect individual liberty, 
     the Framers of the Constitution separated the legislative, 
     executive, and judicial powers of the new national 
     government. To further safeguard liberty, the Framers 
     insisted upon accountability for the exercise of executive 
     power. The Framers lodged full responsibility for the 
     executive power in a President of the United States who is 
     elected by and accountable to the people.

  Judge Kavanaugh then eloquently explains how the CFPB's structure and 
limits on Presidential oversight violates these core principles. He 
said:

       The Director of the CFPB wields enormous power over 
     American businesses, American consumers, and the overall U.S. 
     economy. . . . The Director alone may decide what rules to 
     issue. The Director alone may decide how to enforce, when to 
     enforce, and against whom to enforce the law. The Director 
     alone may decide whether an individual or entity has violated 
     the law. The Director alone may decide what sanctions and 
     penalties to impose on violators of the law. Because the CFPB 
     is an independent agency headed by a single Director and not 
     by a multi-member commission, the Director of the CFPB 
     possesses more unilateral authority--that is, authority to 
     take action on one's own, subject to no check--than any 
     single commissioner or board member in any other independent 
     agency in the U.S. Government.

  And then Judge Kavanaugh drops the hammer. He said:

       [O]ther than the President, the Director enjoys more 
     unilateral authority than any other official in any of the 
     three branches of the U.S. Government. That combination--
     power that is massive in scope, concentrated in a single 
     person, and unaccountable to the President--triggers the 
     important constitutional question at issue in this case.

  Judge Kavanaugh eloquently explains how the CFPB's structure, coupled 
with the agency's complete lack of accountability, poses a threat to 
individual liberty. The CFPB wields enormous power and yet is 
accountable to no one--not the President, not the Congress, not the 
American people.
  The central purpose of the separation of powers is to prevent any one 
individual group from wielding too much power. It does this by 
dispersing authority and by playing the branches off of each other. But 
the CFPB's structure does not disperse power. It consolidates power, 
and it does so in a single individual who has no superior. This is a 
textbook violation of the separation of powers and one that I fully 
expect the Supreme Court to correct if it hears this particular case.

  I have spoken at length today about Judge Kavanaugh's writing and 
jurisprudence. I focused on actual cases that he has decided and on his 
important contributions to constitutional law.
  In short, I have done what Judge Kavanaugh asked me to do. I have 
reviewed his opinions and considered his analyses. I have done what all 
of my colleagues should be doing. We should be reading what Judge 
Kavanaugh has actually written. We should be looking at his judicial 
philosophy and how he decides cases.
  Judge Kavanaugh is an outstanding choice for the Supreme Court. His 
opinions are cogent, his writing eloquent, and his reasoning ironclad. 
He understands that the purpose of the Constitution is to preserve 
liberty and that the Constitution does so both through the substantive 
guarantees in the Bill of Rights and reconstruction amendments, and 
through the structural protections in articles I, II, and III of the 
Constitution.
  Congress may from time to time experiment with new ways of delegating 
authority or structuring agencies, but it cannot do so in ways that 
violate our Constitution's separation of powers. Individuals who 
exercise Executive power must be accountable to the President. Agency 
officials cannot be fully insulated from Presidential oversight. A 
person who has power to regulate broad swaths of our Nation's economy 
must have some checks on his or her authority. This is a requirement 
for our system of government. It is a requirement of our Constitution, 
and it is essential to the preservation of liberty.
  Judge Kavanaugh understands this. He understands the Constitution. He 
understands the proper role of a judge. He is one of the most brilliant 
and most distinguished legal thinkers in our country today. I am proud 
to support his nomination to the U.S. Supreme Court, and I urge all of 
my colleagues to support him as well.
  We have to get away from the politics of the Supreme Court. When we 
have someone who has the qualities, the ability, the reputation, and 
the historicity of doing what is right on the bench, we should give 
that person an opportunity to serve.
  Judge Kavanaugh deserves an opportunity to serve. He has more than 
adequately proved that he deserves it. We are going to be lucky to have 
him on the U.S. Supreme Court.
  I am not sure that he is always going to rule the way I want him to 
rule, either, but nobody does, and from time to time, we may be 
disappointed. But the fact is that I know one thing: He is going to 
apply the best of legal knowledge to the opinions that he writes, and 
he will be a force on the Court who will get along with the other 
Justices by showing mutual respect for them and receiving mutual 
respect back from them.
  Judge Kavanaugh is the type of guy who really will make a tremendous 
difference for our country. He deserves this appointment. We need to 
sustain him and support him, and we need to get the politics out of 
this nomination.
  We are lucky that he is willing to serve. I believe that almost 
everyone in this body will henceforth, once he is confirmed, come to 
the conclusion that we are really lucky to have him as a Justice on the 
U.S. Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.

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