[Congressional Record Volume 164, Number 138 (Monday, August 20, 2018)]
[Senate]
[Pages S5706-S5707]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. SCHUMER. Mr. President, as we continue the review of the 
nomination of Brett Kavanaugh to the Supreme Court, let's recap what we 
already know about the judge.
  Judge Kavanaugh's judicial opinions reveal a man skeptical about our 
healthcare laws, reproductive rights, contraceptive coverage, and the 
basic powers and independence of Federal agencies. His public speeches 
and writings reveal a man with a nearly unbounded, almost monarchical 
view of Executive power, and yet an incredibly limited interpretation 
of Executive accountability. Those beliefs are profoundly troubling at 
any moment in time, but they are particularly troubling at this moment 
in time as the President of the United States routinely belittles the 
rule of law and as his lawyers pronounce that they will fight a duly 
authorized subpoena--a subpoena that has been obeyed in the past by 
previous Presidents.
  There is still much about Judge Kavanaugh we don't know because 
Senate Republicans have engaged in a blatant, historic obstruction of a 
large portion of his record.
  First, Chairman Grassley broke with tradition and fired off a one-
sided, partisan request for documents. Senator Feinstein is known as 
the most reasonable of Members, and if she couldn't join with Senator 
Grassley in a request for documents, clearly, it indicates how biased 
that request was.
  Chairman Grassley unilaterally declared papers from Judge Kavanaugh's 
time as Staff Secretary irrelevant, even though those documents 
constitute the bulk of Judge Kavanaugh's record, and Judge Kavanaugh 
himself has said those years were among the most instructive as to his 
work as a judge.
  They keep chipping away at what we are allowed to see, what the 
American public is allowed to see about Judge Kavanaugh. Then it was 
revealed that a small percentage of the documents we will receive are 
being prescreened by a political operative named Bill Burck, a longtime 
Republican lawyer and former deputy to Brett Kavanaugh--a man who has 
counted among his clients Steve Bannon, Reince Priebus, and Don McGahn. 
This man is hardly a fount of impartiality. He is a partisan. Mr. Burck 
also refuses to provide us with a log of the documents he has withheld.
  Why are you withholding this one but not this one? No one is going to 
know.
  Could it be that some of the information being withheld would be 
embarrassing to Judge Kavanaugh or, at the very least, harmful to his 
quest to become a Supreme Court Justice? Possibly. The American people 
have a right to know.
  We have been denied the opportunity to evaluate whether the documents 
are being withheld for legitimate or self-interested purposes by a 
lawyer who is clearly a partisan.
  That is two layers of obfuscation already. First, we are not allowed 
to see the most important documents of Judge Kavanaugh's time as 
Secretary. Second, of the counsel documents, which are a small 
percentage of his total documents, those are being prescreened by a 
Republican lawyer, not an impartial observer, who tells us which ones 
we can have and which ones we can't, without giving us any reason as to 
why one is OK and one isn't.
  To make matters worse, Chairman Grassley has added a third level of 
withholding documents. He has declared that one-third of the small 
prescreened universe of documents only from the counsel's office, only 
prescreened by Burck--that wasn't good enough for people who want to 
avoid Judge Kavanaugh's record coming out in full. So those are now 
deemed ``committee confidential,'' meaning no one outside of the 
Judiciary Committee, not even other Senators, can see those documents, 
at least by Chairman Grassley's determination. It is outrageous.
  Chairman Grassley is usually a fair-minded man. I have enjoyed 
working with him on many issues. We are the two Charles E's of the 
Senate. We carry, for instance, rural hospital legislation all the time 
and help our rural hospitals. When it comes to this area, Chairman 
Grassley's actions are manifestly unfair, not typical of his character. 
I understand the pressures he is under, but that doesn't forgive the 
result.
  Withholding documents from the Senate and the American people under

[[Page S5707]]

the bogus label of ``committee confidential'' is a dark development for 
the Senate. ``Committee confidential,'' by the way, means that Senators 
on the Judiciary Committee can see the documents, but they can't tell 
anyone about it--not their fellow Senators, not the American people. 
Why shouldn't the American people see them? There are key issues here 
that we need to understand better.
  On Friday, three of my colleagues raised questions about Judge 
Kavanaugh's truthfulness regarding testimony he gave about the Bush 
administration's post 9/11 terrorism policies in 2006. We need to 
understand the issue better, and we also need to know what he thought 
about the Bush administration's efforts on warrantless wiretapping, 
efforts to curtail reproductive rights, and more. He testified in 2006, 
when he was nominated to join the DC Circuit, and we have to see if he 
was being truthful. This is such an important position, the Supreme 
Court. We should see those. The American people should.
  Locking up documents in committee, even on those important issues, is 
an affront to transparency, openness, and to the basic integrity of the 
confirmation process. We have been given no reason--no legitimate 
reason--why the committee confidential documents are acceptable for 
some Senators but not others to see.
  My understanding of the Senate rules is that every Senator has the 
right to access documents in the possession of a Senate committee, any 
Senate committee. I am now going to ask the Chair to confirm that 
understanding.
  Mr. President, am I correct that under Rule 26.10(a) of the Standing 
Rules of the Senate, all committee records are the property of the 
Senate as a whole and that all Senators ``shall have access to such 
records''?
  The ACTING PRESIDENT pro tempore. That is, in fact, in part how the 
rule reads.
  Mr. SCHUMER. Thank you. The words say ``shall have access to those 
records.''
  Is there anything that undoes those words in the rules?
  The ACTING PRESIDENT pro tempore. Will the Senator restate the 
question?
  Mr. SCHUMER. Yes. I asked if, under the rules, all committee Senate 
records are the property of the Senate as a whole and that all Senators 
shall have access to those records--shall have access.
  The Presiding Officer said: Yes, those are, in part, the rules. Of 
course, those are not all of the rules.
  Is there anything the Presiding Officer knows in the rules that would 
undercut that ruling in the Senate rules?
  The ACTING PRESIDENT pro tempore. Rule 10(a) reads as follows:

       All committee hearings, records, data, charts, and files 
     shall be kept separate and distinct from the congressional 
     office records of the Member serving as chairman of the 
     committee; and such records shall be the property of the 
     Senate and all members of the committee and the Senate shall 
     have access to such records. Each committee is authorized to 
     have printed and bound such testimony and other data 
     presented at hearings held by the committee.

  Mr. SCHUMER. Fine. Then it is clear there is nothing that undercuts--
I appreciate the Chair's reading of the entire rule. Nothing in the 
rest of the rule undercuts what I have said, obviously.
  Based on your ruling--the ruling of the Chair--I will therefore be 
submitting a request to the chairman and the ranking member of the 
Judiciary Committee for access by all Senators to all of the Kavanaugh 
documents in the possession of the committee. This request will include 
approximately 81,000 pages of documents that have been deemed 
``committee confidential'' by the private lawyer, Mr. Burck, and by the 
chairman of the committee, Senator Grassley. My colleagues should do 
the same.
  Again, the purpose here isn't dilatory. We will work hard, day and 
night, to go through these documents to see if anything worth 
questioning Judge Kavanaugh arises in them. We certainly have that 
right, by the rules of the Senate, and I am glad the Chair so 
interpreted it.
  This is not just about rules or about having more reading material. 
This is about the Senate, and by extension the American people, 
understanding the stakes and consequences of elevating Judge Kavanaugh 
to a lifetime appointment on our Nation's highest Court. This is about 
our constitutional duty to advise and consent on a Supreme Court 
nominee. Senators cannot do that in an informed manner without fair and 
full access to a nominee's record. And, of course, the Constitution 
assigns this duty to Senators on behalf of the American people. Without 
access to the nominee's record, the American people will be in the 
dark. That is unacceptable.

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