[Congressional Record Volume 164, Number 140 (Wednesday, August 22, 2018)]
[Senate]
[Pages S5792-S5793]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. SCHUMER. Mr. President, yesterday I met with President Trump's 
nominee for the Supreme Court, Judge Brett Kavanaugh. Our conversation 
covered many different topics. Unfortunately, Judge Kavanaugh refused 
to answer even the most basic questions about his jurisprudence.
  He refused to say if he believed Roe was correctly decided. He 
refused to say if he believed Casey was correctly decided. He could not 
name for me a restriction on a woman's right to choose that he would 
consider an undue burden. Even when I asked him if a ban on abortion 
after only 4 to 6 weeks would be an undue burden, he said he couldn't 
answer that.
  He could not tell me if he believed the Affordable Care Act was 
constitutional. Nor would he answer or recall his level of involvement 
in a number of controversies during his time in the Bush White House, a 
portion of his record the Senate has been denied access to by the 
Republican majority.
  Now, I understand the imperative all judges face not to bias 
themselves by commenting on cases that could come before their court, 
but these are some basic questions of already decided cases. 
Furthermore, I told Judge Kavanaugh that he is in a different place 
than others.
  President Trump has said that he will only appoint nominees who will 
undo Roe v. Wade. President Trump has said he will only appoint 
nominees who will declare the ACA unconstitutional. Judge Kavanaugh is 
under a burden to refute that.
  I asked him if, even when he sat with the President, did he tell the 
President not to count on him, that he will not absolutely vote to 
repeal Roe. He didn't.
  So Kavanaugh has a burden beyond that of a normal Justice because of 
what President Trump, the person who selected him, has said 
unequivocally.
  So here is Justice Kavanaugh's silence or refusal to commit to even 
the most common things that should be said. He said he would say Brown 
was correctly decided. Why can't he say Roe was correctly decided? 
There is his silence, especially given his recent praises of dissent in 
Roe and Casey. In 2016 and 2017 he praised Justice Rehnquist and 
Justice Scalia's views that Casey and Roe were decided wrongly. What is 
anyone supposed to reasonably believe?
  Given that President Trump said that he will only choose people who 
will repeal Roe and declare ACA unconstitutional, given that he has 
praised the dissents in Roe and Casey, the fact that he was unwilling 
to refute any of that in any way or to even say that a limit on 
abortion after 4 weeks was an undue burden should raise real questions 
for any American who believes in choice and who believes in the 
constitutionality of government helping with healthcare, including 
preexisting conditions.
  Then, there is one issue we discussed yesterday that took on a whole 
new light mere minutes after our discussion concluded. I asked Judge 
Kavanaugh about his remarkably expansive views on executive authority. 
As context, Judge Kavanaugh has said that Presidents should not be 
subject to criminal or civil investigations while in office. He said 
the only remedy for a President who committed a serious crime is 
impeachment by Congress.
  So I asked Judge Kavanaugh a more basic question: Does he believe 
that a sitting President must comply with a subpoena or testify or 
provide records? He would not say that the President must comply with a 
subpoena.
  I asked him that in the most extreme situation: In a criminal 
investigation

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against a sitting President, where our national security is at stake, 
could the investigator subpoena the President? He wouldn't say he 
would.
  Now, that was before the news that broke late yesterday. During our 
meeting, actually, the news broke that President Trump's former 
personal attorney, Michael Cohen, implicated the President in a 
violation of campaign finance laws.
  The sequence of those two events--Kavanaugh's refusal to say that a 
President must comply with a duly issued subpoena and Michael Cohen's 
implication of the President in a Federal crime--makes the danger of 
Brett Kavanaugh's nomination to the Supreme Court abundantly clear. It 
is a game changer. It should be.
  The President, identified as an unindicted coconspirator of a Federal 
crime--an accusation made not by a political enemy but by the closest 
of his own confidants--is on the verge of making a lifetime appointment 
to the Supreme Court, a court that may someday soon determine the 
extent of the President's legal jeopardy.

  In my view, the Senate Judiciary Committee should immediately pause 
the consideration of the Kavanaugh nomination.
  The majority of the Senate has still not seen the bulk of Judge 
Kavanaugh's record. At the very least--the very least--it is unseemly 
for the President of the United States to be picking a Supreme Court 
Justice who could soon be, effectively, a juror in a case involving the 
President himself.
  In light of these facts, I believe Chairman Grassley has scheduled a 
hearing for Judge Kavanaugh too soon, and I am calling on him to delay 
the hearing.
  I know that Chairman Grassley and Leader McConnell hold all the cards 
in terms of scheduling hearings, but the plain facts of the case should 
compel them to the same conclusion I have reached--that the Judiciary 
Committee should postpone Judge Kavanaugh's hearings.
  At this moment in our Nation's history, the Senate should not confirm 
a man to the bench who believes that Presidents are virtually beyond 
accountability, even in criminal cases, and a man who believes that 
Presidents are virtually above the law and that only Congress can check 
a President's power.
  Over the past year, despite numerous abuses of Presidential 
authority, despite numerous encroachments on the separation of powers, 
despite numerous attacks on the rule of law, this Republican Congress 
has done almost nothing--nothing--to check this President. If Congress 
can be captured by one party's deference to the President, we cannot 
allow the Supreme Court to be captured as well.
  The doubts about Judge Kavanaugh's fitness for the bench were just 
magnified by Mr. Cohen's plea agreement. The prospect of the President 
being implicated in some criminal case is no longer a hypothetical that 
can be dismissed. It is very real.
  If Judge Kavanaugh truly believes that no sitting President, 
including President Trump, must answer for crimes he may or may not 
have committed, then he should not become Justice Kavanaugh with the 
power to make those views manifest in our books of law.
  More broadly, yesterday's news has blackened an already dark cloud 
hanging over this administration. In addition to Mr. Cohen's 
implication of the President, Paul Manafort was convicted of violating 
Federal law on eight different counts in this trail, his first of two 
trials.
  To take a step back, President Trump's campaign manager was convicted 
of Federal crimes. President Trump's personal attorney pled guilty to 
Federal crimes. President Trump's first National Security Advisor pled 
guilty to Federal crimes. A foreign policy advisor to his campaign pled 
guilty to Federal crimes, and more trials are coming.
  Cabinet officials have been forced to resign for flagrant graft and 
profligacy funded by the American taxpayer. That is to say nothing of 
the fact that the first two congressional endorsements of President 
Trump's campaign came from two Congressmen who have recently been 
indicted on counts of insider trading and campaign finance violations--
what a swamp, what a swamp. It is far worse than the swamp that existed 
when President Trump took over. He has not cleaned the swamp. He has 
made it more retched and more fetid.
  No one in America can dismiss what has happened as the actions of a 
few bad apples. There is a cesspool around this President. There is now 
an unmistakable sinister hypocrisy to President Trump's campaign 
slogan: Drain the swamp. President Trump brought the worst swamp we 
have seen in Washington's history to town when he came here.
  Yesterday's news leads me to make two points. First, Special Counsel 
Mueller's investigation is clearly doing what it was constituted to do 
and finding criminal activity in the process. Already there have been 
four guilty pleas or verdicts and dozens of indictments. The idea of 
calling Special Counsel Mueller's investigation a witch hunt was 
already absurd and laughable, and it becomes even more so today.
  Second, the President should not even consider pardoning Mr. Manafort 
or Mr. Cohen at any point in the future. To do so would be the most 
flagrant abuse of pardon power and a clear obstruction of justice.
  The Rosenstein-Mueller investigation must be permitted to conclude 
its work, and the President must resist the impulse to interfere with 
pardons, dismissals, or any other action that prevents the work of the 
Justice Department from going forward.
  I yield the floor.

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