[Congressional Record Volume 164, Number 144 (Tuesday, August 28, 2018)]
[Senate]
[Page S5964]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. SCHUMER. Madam President, on another matter, next week the Senate 
Judiciary Committee will begin hearings on President Trump's nomination 
to the Supreme Court, Judge Brett Kavanaugh. For Senators both on and 
off the committee to do their constitutional duty, to advise and 
consent on his nomination, they must have time to review the nominee's 
record.
  Unfortunately, Chairman Grassley has so far frustrated our effort to 
get full access to the judge's records.
  First, he requested only 10 to 15 percent of Kavanaugh's White House 
record, unilaterally declaring the bulk of his time in the White House 
irrelevant.
  As the National Archives works through that request, the Judiciary 
Committee has been accepting documents from a lawyer hired by the Bush 
Library to prescreen documents. That lawyer, Mr. Burck, who counts 
Steve Bannon, Reince Priebus, and White House Counsel Don McGahn among 
his clients, has provided only 6 percent--6 percent--of Kavanaugh's 
White House record to the Judiciary Committee, recently declaring some 
documents personal rather than Presidential records, a determination we 
have been given no basis for.
  Judiciary Republicans went even further in their efforts to conceal 
Judge Kavanaugh's record by labeling another small portion of those 
documents committee confidential. So of the 6 percent, close to one-
third cannot be seen by anyone but members of the Judiciary Committee, 
and they can't talk about it to others. That is 4 percent of 
Kavanaugh's record being made public, and there are no guidelines, no 
rules, as to which 4 percent is being made public and which 96 percent 
is being withheld. Obviously, one might think the lawyer, who is 
clearly totally hooked into the Republican appointment of Kavanaugh 
mechanism, would not allow things that might be controversial, that 
might put Kavanaugh in not such a good light. Yet there is not even a 
standard as to which documents are made public and which are kept 
confidential.
  Does that sound fair to the Senate? Does that sound fair to the 
American people who have a right to read and understand who this 
potential future Supreme Court Justice may be?
  The burden of proof should not be on disclosure of documents. We 
believe in disclosure. We are an open place. Senator Grassley has made 
disclosure of things throughout the executive branch a hallmark of his 
career. Yet now they make the burden of proof on those who want to 
disclose, and the presumption is documents will not be disclosed. It is 
so wrong.
  Any fairminded observer would be hard pressed to say that the review 
of Judge Kavanaugh's record has been transparent, open, and fair. It 
has not been.
  The Supreme Court Justice, the next one, will have immense influence 
over the lives of Americans for generations on issues ranging from 
women's reproductive rights to healthcare, protections for preexisting 
conditions, civil rights, labor rights, environmental rights, LGBTQ 
rights, and so much more. The next Supreme Court Justice may very well 
make crucial decisions about the limits of Executive power and 
accountability, something that hangs in the balance right now with all 
of President Trump's actions.
  We know already that Judge Kavanaugh has some deeply troubling views 
on these issues, both because of his writings and because he was 
selected by a President who explicitly promised to pick pro-life judges 
and judges hostile to our Nation's healthcare law.
  So, in order to get a complete picture of Judge Kavanaugh's views on 
these crucial issues, his record should be made public. There may be 
some highly relevant information on issues like Roe v. Wade, campaign 
finance, affirmative action, and more, contained within the documents 
Chairman Grassley has labeled ``committee confidential.''
  Again, there is very relevant and significant information, even in 
the committee confidential documents, about Roe, campaign finance, 
affirmative action, and more. They should be made public, and Senator 
Grassley can do it with a flick of his pen. I would appeal to him as a 
man, again, who has stood for disclosure and openness, who has probed 
and gotten angry at executive branch members of both parties for 
withholding information. Now, of course, we have this 180-degree turn. 
It is not like the best of Chairman Grassley, and I hope he will change 
his mind.
  Certainly, there is an offer to allow Senators to view these 
documents, but they ought to be released to the public. We don't have 
secret proceedings when we choose a Supreme Court Justice. It is not 
the Senate going into the Old Chamber and debating among themselves. 
These documents should be made public. The Senate should not be in the 
practice of shrouding the eyes of the public from the crucial business 
of learning what a Supreme Court nominee will be like.
  I yield the floor.

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