[Congressional Record Volume 164, Number 148 (Thursday, September 6, 2018)]
[Senate]
[Pages S6042-S6043]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. SCHUMER. Madam President, today the Senate Judiciary Committee 
continues its hearings on Judge Brett Kavanaugh's nomination to the 
Supreme Court. During yesterday's session, the American people got to 
see a nominee who refused to answer even the most basic, fundamental 
questions about his jurisprudence. They got to see a coverup of Judge 
Kavanaugh's records by himself and the Republican members of the 
committee.
  When Judge Kavanaugh was asked specific questions about important 
issues that might someday come before a court, like women's 
reproductive freedom, he pleaded the need for independence and refused 
to answer. When Democratic Senators asked him hypothetical questions, 
instead, to avoid the possibility of the judge tipping his hand on a 
future case, then he said he wouldn't engage in hypotheticals--can't 
talk about specific cases, can't talk about general situations. He is 
ducking. He is hiding.
  Judge Kavanaugh was asked how he might view the constitutionality of 
a Presidential subpoena arising from the Mueller probe. He said he 
could not tip his hand about a potential issue before the Court. Asked, 
then, about the constitutionality of a Presidential subpoena in 
general, he said he would not engage in a hypothetical. This is not a 
hypothetical issue; this is a fundamental constitutional issue.
  There is no legal, ethical, or judicial reason for Judge Kavanaugh to 
avoid directly answering these questions unless he has something to 
hide. If the nominee can't answer questions about already decided 
cases, pending cases, or hypothetical cases, honestly, what is there 
left to talk about--charity work and basketball? Your favorite 
Federalist Paper?
  How does the nominee expect the Senate and the public to evaluate 
him? He doesn't. He doesn't want it. His lifelong record as a hard-
right warrior, if he talked about it and talked about his views, would 
rule him out, so he hides. That should not happen when it comes to 
nominating one of the most powerful positions in American society.
  Let me just mention a few topics Judge Kavanaugh ducked.
  Judge Kavanaugh would not expand or even revisit his views on 
Presidential power, where he already enumerated some in a Minnesota Law 
Review article. As Senator Klobuchar pointed out, he has already talked 
about them publicly. Why can't he elaborate? He has given his view on 
that one. Very bad view. Does he still hold it? Nobody knows.
  Judge Kavanaugh could not assure the American people he would uphold 
the healthcare law, including protections for up to 130 million 
Americans with preexisting conditions, protections that are under 
threat right now by a lawsuit in Texas.
  He could not assure the American people he would uphold the landmark 
decision in Roe v. Wade. He did repeat a view, which he reportedly 
shared with Senator Collins, that Roe v. Wade was settled precedent of 
the Court, but as Judge Kavanaugh himself points out in a 2003 email 
made public this morning, ``I am not sure that all legal scholars refer 
to Roe as the settled law of the land at the Supreme Court level since 
[the] Court can always overrule its precedent, and three current 
Justices on the Court would do so.'' That is an email from Brett 
Kavanaugh explaining that Roe vs. Wade is only settled law until a 
majority of the Court decides it isn't.
  Since the time he wrote that email, one more Justice has joined the 
Court likely to overturn Roe. Judge Kavanaugh could be the deciding 
vote, and he will not even talk about it. That is an issue that affects 
all Americans. It is an issue that is so important to our 
jurisprudence. It is an absolute disgrace that a nominee for the 
Supreme Court refuses to talk about such a fundamental issue at the 
core of one of the great debates of American society and hides behind 
legal subterfuge, chicanery, so he doesn't have to speak--verbal 
chicanery.
  I wonder why the Republican majority labeled the email about Roe v. 
Wade ``committee confidential'' until this morning. Was that email 
withheld for privacy reasons? No. National security reasons? No. It is 
ridiculous. The only explanation is that Judge Kavanaugh's record was 
being withheld for political reasons. They don't want the American 
people to see his view. If the American people knew that Judge 
Kavanaugh would decide against Roe v. Wade, as it seems this email 
feels he thinks he can, not bound by legal precedent if he changes his 
mind, if the Court changes its mind, they would rise up and say: Don't 
put him on the bench. So, instead, they hide the records.
  My Republican colleagues set up an entire process to go around the 
nonpartisan National Archives, and it appears that the purpose was to 
hide documents that might shed real light on Judge Kavanaugh's actual 
record.
  Now, finally, a little late in the game, the truth is coming out, but 
this is only the tip of the archives. These are the only documents that 
have slipped through the Republican filter. What else is hidden in 
Judge Kavanaugh's record? What else don't we know about the nominee? 
When did the Republican majority decide that

[[Page S6043]]

Supreme Court nominees should be like icebergs, only a small portion 
showing, while the real nominee lurks unseen underwater and potentially 
dangerous?
  So I strongly support and commend the Democrats on the Judiciary 
Committee in their efforts to make these confidential documents public. 
I stand with them. They did the right thing. The American people desire 
to see these documents.
  In this case, committee confidential is a complete fiction, a 
subterfuge to avoid the American people knowing the real Brett 
Kavanaugh. The members of the committee should be praised, not 
chastised, for making these documents available. They did the right 
thing, and they had an obligation to do it. The Republican members of 
the committee should be ashamed of themselves--ashamed of themselves--
for participating in the administration and Judge Kavanaugh's coverup 
of his record. The Senate and the American people have a right to see 
the nominee's record, especially now, since the nominee appears 
unwilling to answer substantive questions about his views.
  Whatever the rules may be of the Senate, they should not be twisted 
to ensure partisan advantage and prevent transparency and openness. 
They should not be twisted to cover up the truth rather than reveal it.
  There is so much at stake in this Supreme Court nomination. Will 
Americans with preexisting conditions be able to get healthcare? Will 
women be able to make private personal choices about their medical 
care? Will LGBTQ Americans be able to marry whom they love? Will every 
American's constitutional right to vote be protected? Can the President 
of the United States be held accountable, especially at this time? We 
know how much we need that. Yet, at every turn, the Republican 
majority, the Trump administration, and Brett Kavanaugh have prevented 
the Senate and the American people from being truly able to vet a 
nominee who could affect the lives of Americans for a generation.
  I yield the floor.
  Mr. COTTON. Madam President.
  The ACTING PRESDIENT pro tempore. The Senator from Arkansas.

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