[Congressional Record Volume 164, Number 136 (Thursday, August 16, 2018)]
[Senate]
[Pages S5673-S5674]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. SCHUMER. Madam President, on the Supreme Court, as we return from 
the State work period, the Republican majority continues to steam 
forward on President Trump's nomination to the Supreme Court, 
announcing that hearings will begin on September 4. That is just 12 
business days from today. Yet the Senate remains unable to do its due 
diligence on the nominee because we have access to only a tiny 
percentage of his record.
  Why is this? Senate Republicans are in the midst of a blatant and 
historic obstruction of a Supreme Court nominee's record, denying the 
Senate and the American people critical information about this 
potential Supreme Court Justice.
  The entire record of Judge Kavanaugh's 3 years as Staff Secretary in 
the White House--the most senior position he held before joining the 
bench--is being deliberately withheld from the Senate and from the 
public. The Republican majority has unilaterally declared those papers 
irrelevant even though Judge Kavanaugh himself has testified to the 
importance of the position and the work he did there.
  Meanwhile, the small percentage of documents the Judiciary Committee 
will get to see are being prescreened by a political operative named 
Bill Burck--a longtime Republican lawyer and former deputy to Brett 
Kavanaugh when he worked in the White House. A deputy to Brett 
Kavanaugh is now determining what Brett Kavanaugh's record should be 
there--somebody who was a lawyer for Steve Bannon--notorious Steve 
Bannon--a lawyer for Reince Priebus, a lawyer for McGahn, White House 
Counsel.
  Mr. Burck and his team have already started delivering documents to 
the Judiciary Committee, but they are refusing to provide a privilege 
log. Why are they giving us this document and not that one? Aren't we 
entitled to know what their reasoning, at least, is? So the Judiciary 
Committee cannot understand how many documents are being held back and 
on what basis. A privilege log has always been provided in previous 
Supreme Court vetting processes, and without it, we have no idea 
whether the basis for Mr. Burck's withholding all of these documents is 
legitimate.
  Where is our chairman of the Judiciary Committee? He says: Oh, this 
is the best ever. Then why aren't we getting such a log? What is his 
answer to that? I know he will come to the floor and rail and rail, but 
the process--the actual facts--is much worse than we have seen.
  Here is something new--also being done by the chairman of the 
Judiciary

[[Page S5674]]

Committee. One-third of the documents we are getting, which is a small 
percentage of the total documents, are being deemed as ``committee 
confidential'' by the majority and have not been released, stacking an 
additional layer of secrecy on top of multiple layers of existing 
secrecy.
  Why are I and my staff and the other 79 Senators not on the Judiciary 
Committee being denied the ability to review so many of these documents 
that have been given to the Judiciary Committee? What are the 
Republicans on the Judiciary Committee hiding? The moniker ``committee 
confidential'' sounds like another way to shield Judge Kavanaugh's 
record from the eyes of the American people and the Senate, and we have 
no knowledge of why these documents are being withheld.
  Even the National Archives--nonpartisan and neutral--felt compelled 
to release a statement about this process. They are usually very quiet. 
They are archivists. They go ahead and do their job. They felt that 
what was going on was wrong. You can tell by the statement they 
released. The Archives clarified that Burck's review of Kavanaugh's 
records is ``a separate review--completely apart from the National 
Archives and the George W. Bush Presidential Library's efforts. This 
effort by former President Bush does not represent the National 
Archives or the George W. Bush Presidential Library.'' That is what the 
archivists said. They are separating themselves from such a secretive, 
nondemocratic process. For a down-the-middle organization like the 
National Archives--very reluctant to comment on political matters--to 
put out a statement like this goes to show how far the Republicans and 
Chairman Grassley have departed from precedent.
  The obstruction here is shocking. Everywhere you look, Republicans 
are deciding what constitutes the proper review of a nominee chosen by 
a Republican President. Republicans have unilaterally decided what 
documents are relevant to the Senate. Republican lawyers are the ones 
combing through those documents and deciding unilaterally which can be 
released to the Senate. The Republican majority and the chairman of the 
Judiciary Committee are then deciding unilaterally which of those 
documents remain under the committee's lock and key. It is like letting 
only the defendant in a lawsuit decide what evidence is admissible. Let 
me say that again. This is exactly like letting only the defendant in a 
lawsuit decide what evidence to admit. It would be a rigged trial. That 
is what is happening here.
  It seems as though the Republicans are trying to rush Judge Kavanaugh 
through with as little scrutiny as possible because they know there are 
some troubling beliefs in his history. Think about what we already 
know. Judge Kavanaugh has written opinions skeptical of our healthcare, 
reproductive rights, and even the contraceptive coverage requirement. 
On this issue, he is far to the right of the American people. That is 
maybe why our Republican friends don't want people to know his views. 
He has argued that Presidents should effectively be above the law; that 
they should be immune from civil and criminal investigations while in 
office; that Presidents can decline to enforce a law they deem 
unconstitutional, even if a court has held it constitutional; that 
Presidents should be able to reach into independent Federal agencies to 
hire and fire the heads of those agencies at will. He rules almost 
reflexively against actions by Federal agencies, whether it is net 
neutrality, environmental protections, or dark money.
  That is another one. He seems to agree with the Citizens United 
decision and would seem to allow dark money--poisoning our politics, 
leaving American people with little faith in government, that they will 
have an influence--to have greater influence than ever.
  This isn't just about allowing the Senate to review documents for the 
sake of it; we need to scrutinize Judge Kavanaugh's record because his 
beliefs will matter a great deal in the decades ahead, if he gets 
approved, on issues ranging from healthcare, to women's reproductive 
rights, to Executive power and accountability.
  Rudy Giuliani, the President's lawyer, just declared that the 
President may not decide to comply with a subpoena issued by the 
special counsel or whomever. A court case on this matter could reach 
the Supreme Court. So this isn't a hypothetical case; it is well within 
the realm of possibility that the Supreme Court will have to decide 
whether President Trump, who has shown so little respect for rule of 
law, will have to comply with a duly issued subpoena. So it really 
matters what Brett Kavanaugh thinks about this.
  Before we elevate someone to the Supreme Court who may have to rule 
on the issue of Presidential subpoenas, don't the Senate and American 
people deserve to know what the nominee thinks? This is just one of 
many reasons the Senate and the public must be able to review the 
nominee's full record.
  There must be a reason Republicans are so intent on hiding this 
nominee's record and rushing through his confirmation. What are they 
hiding? What are they hiding? What are they afraid of? I think they 
realize that if the American people knew exactly how Judge Kavanaugh 
felt before he became a judge, they might not want him to be there.
  Republicans demanded all of Elena Kagan's documents, and Democrats 
agreed to request them. Again, we have this hairsplitting argument by 
the chairman of the Judiciary Committee. He says: We are giving more 
documents before--it is the percentage of documents that matter. Are 
you seeing the whole record or only part of the record? Some people 
have bigger records than others. Kagan--we Democrats in the majority, 
when our Republican friends, including the Senator from Iowa, asked, 
gave them the whole record. That is what we should be getting as well.
  In fact, Republicans, including the distinguished majority leader, 
demanded all of Judge Sotomayor's records, including documents from her 
time as district attorney and even her records as a board member of the 
Puerto Rican Legal Defense Fund. We agreed. But now they have totally 
changed the rules. And I understand. The chairman of the Judiciary 
Committee is a decent man, and when he has to do things like this, he 
doesn't like it. But he ought to rise to the occasion.
  What they are doing is flat-out wrong. The American people deserve a 
methodical and thorough examination of a nominee who will yield immense 
influence over their lives for generations. The Republican majority 
seems intent on denying the American people that basic right.
  I yield the floor, and I suggest the absence of a quorum.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________