[Congressional Record Volume 164, Number 148 (Thursday, September 6, 2018)]
[Senate]
[Pages S6046-S6048]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF BRETT KAVANAUGH

  Mr. MERKLEY. Mr. President, the most important words of our 
Constitution are the first three--``We the People.'' It is the mission 
statement of our Nation--a nation of the people, by the people, for the 
people, as President Lincoln so eloquently stated, not a nation of, by, 
and for the powerful and the privileged.
  Yet the powerful and the privileged are working overtime to undermine 
our Constitution. Ironically, they are using the courts to do it. We 
have seen it happening all week long as the Judiciary Committee has 
barreled ahead with hearings on Judge Brett Kavanaugh's nomination to 
the U.S. Supreme Court. This is the same Judge Kavanaugh whose record 
from 5 years of serving in a Presidential administration is still being 
hidden from the Senate and from the people of the United States of 
America.
  For 5 years, Brett Kavanaugh had the ear of the President on a number 
of critical issues--on how we treat enemy combatants, conduct wars in 
Iraq and Afghanistan, use and expand Executive power through signing 
statements, or how the authorization for the use of military force is 
utilized. For 5 years, in the inner circle of America, he had been 
engaged in policy after policy after policy. Yet Chairman Grassley and 
the committee Republicans are unwilling to allow that record of 
insights on his views to be shared with Senators under advice and 
consent responsibility.
  Then there is this parallel process in which the documents that are 
being made available are first being vetted by Bill Burck. Who is Bill 
Burck? He is a partisan Republican lawyer who used to work for the 
nominee. He is the one who has the final say over what the Senate sees. 
He is the one who has the final say over what documents are released, 
not just to the Senate but to the American people.
  He is the one who decided to release 42,000 pages of documents--not 
the ones from those 5 years we are talking about--just hours before the 
hearing began. Who could possibly review 42,000 pages the evening or 
the night before the hearing occurs? It is humanly impossible. There we 
are with a process normally headed by the nonpartisan National 
Archives, which is still trying to do its work but can't do its work 
until the end of October to vet these

[[Page S6047]]

documents. So instead of nonpartisan public servants vetting the 
documents, we have a partisan Republican lawyer, who worked for the 
nominee, deciding what we are going to see in the U.S. Senate, what the 
public and the United States is going to see. This is not transparency. 
This is censorship, and censorship is absolutely wrong in numerous 
contexts but particularly in intervening with the responsibility of the 
Senate.
  Instead of integrity, we have deceit. Instead of honoring advice and 
consent responsibility, we are dishonoring that fundamental 
constitutional role. This is a rigged system, completely and absolutely 
rigged through the censorship of the documents we see and the blockade 
for the documents we need.
  As Kristine Lucius, who is a former Judiciary Committee staff 
director who worked on half a dozen Supreme Court nominees, said, this 
process is ``not just breaking the norms. It, frankly, is bordering on 
absurdity.'' Absurdity, censorship, a complete failure of integrity, 
that is what is happening right this moment during the U.S. Senate's 
deliberation of the Supreme Court nominee.
  Not long ago, there was a time when my Republican colleagues argued 
for a full, transparent examination of a nominee's record before the 
Senate could consider the nomination. When Justice Kagan was nominated 
8 years ago by President Obama, Members of this body, my Republican 
colleagues, said: We stand for the principle of transparency. They 
said: We need the full record of the nominee's White House service.
  Chairman Grassley said on the Senate floor: ``In order for the Senate 
to fulfill its constitutional responsibility of advice and consent, we 
must get all of her documents from the Clinton Library and have enough 
time to analyze them so we can determine whether she should be a 
Justice.''
  That was the Kagan standard articulated by my Republican colleagues 
and shared by my Democratic colleagues, a standard that was 
nonpartisan, a standard that was bipartisan, and a standard that was 
supported by Republicans and Democrats for the nomination process for a 
Supreme Court Justice.
  The Kagan standard is one Democrats supported under a Democratic 
President and a Republican President. That is called integrity. That is 
called principle. What we have today is my Republican colleagues 
saying: We supported transparency under a Democratic President, but we 
support censorship and the blockade of documents under a Republican 
President. That is the opposite of principle. That is the opposite of 
integrity. The Kagan standard, supported by both sides just a couple of 
years ago, should be the standard we all support today.
  We can't fully evaluate Kavanaugh's record if we don't have the full 
record of his involvement on so many issues during his time working in 
the executive branch.
  Hearings are supposed to give us a chance to get at some of those 
issues, but what have we heard? Well, we heard the same, tired, 
obligatory responses, such as: I will be a judge who calls balls and 
strikes. We have heard that before, and then we have seen the rightwing 
judicial activists legislating from the bench on issue after issue 
after issue--on workers' rights, on environmental rights, on consumer 
rights, on reproductive rights. We know it is ``umpire'' before you get 
there, and then suddenly it is a desire to implement a far-right, anti-
American, anti-Constitution philosophy of control by the powerful and 
privileged, undermining the core principle of the Constitution of the 
United States of America.
  What else have we heard from Judge Kavanaugh? We have heard: Well, 
that is settled law. That is, perhaps, the most artificial, phony 
response we can possibly hear. Why is it artificial and phony? Because 
when you are on the Supreme Court, the decisions you make become the 
interpretation. You either reinforce or you unsettle, but you have no 
obligation to follow what the courts have done before.
  The Roberts Court has overturned ``settled precedents'' time after 
time after time, and for a nominee of the Supreme Court to pretend that 
isn't the case, it means either he is ignorant or deliberately 
deceptive. I don't think Judge Kavanaugh is ignorant. He knows the 
record. He knows the Supreme Court changes prior precedents. He knows 
they change ``settled law,'' and so to evade an issue saying, well, 
that is settled, is simply to be deceptive.
  Sometimes, in addition to the hearings, we learn some information 
through a nominee's meetings with Senators, but Judge Kavanaugh has 
refused to answer even the most basic questions about his 
jurisprudence, said Senator Schumer, following his own meeting with the 
nominee.
  Senator Schumer went on to say that Mr. Kavanaugh refused to say if 
Roe v. Wade or Casey v. Planned Parenthood were correctly decided 
because that would actually be to indicate some sense of one's judicial 
view, and we are getting nothing.
  As Senator Schumer said, he couldn't ``recall his level of 
involvement in a number of controversies during his time in the Bush 
White House.'' Here is a thought: If we get the records on his 
involvement in the Bush White House, we will actually know what his 
thoughts were, and maybe we can jog his memory that he so carefully and 
conveniently lost somewhere along the way. The American people deserve 
integrity in this process, and we are not getting it.
  We do know a fair amount from his previous public decisions. We know 
he likes to legislate from the bench against workers, against 
consumers, against clean air, and against clean water. We know he 
doesn't believe healthcare is a fundamental right in the United States. 
We know he wants to strike down Roe v. Wade. We know he has a view of 
the Presidency that is appropriate for a King and a kingdom but not for 
a President and a republic.
  He has this extraordinary view of Presidential power. He doesn't 
believe a President can be indicted. He doesn't believe a President can 
even be investigated. He believes a sitting President can choose to 
ignore laws passed by Congress if the President says they are 
unconstitutional, even if the court has said they are constitutional.
  Think about that for a moment. Here is a judge saying he believes the 
President can ignore what the courts say is constitutional and 
unconstitutional. You can't get more expansive Presidential power than 
that.
  So why was Judge Kavanaugh chosen off of this list of 25 individuals? 
The answer is pretty clear. It is because he is the one who can write a 
``get out of jail free'' card for the President of the United States--
our President, who is under investigation. He is under investigation 
for colluding with foreign powers and flaunting our laws to win a 
national election. His former campaign chairman has been found guilty 
on eight different criminal charges. His former lawyer and fixer pled 
guilty to eight criminal charges and testified, as directed, to make 
illegal campaign payments at the direction of--drumroll, please--a 
candidate for Federal office. Who is this candidate for Federal office? 
None other than President Donald Trump--President Donald Trump, 
directing a felony crime.
  When one hasn't been indicted in that situation, it is referred to as 
an unindicted coconspirator. The Watergate grand jury used that term, 
``unindicted coconspirator,'' to describe the role President Nixon 
played in that national scandal, and it fits perfectly with the role 
President Trump is playing today.
  To say that a dark cloud of corruption hangs over this administration 
and hangs over this nomination would be a massive understatement. Until 
that cloud is lifted and until this President is cleared, this 
nomination should not be considered by this body.
  We have already seen that my colleagues have flipped their position 
from having a Democratic President to a Republican President. They have 
turned transparency into censorship. They have taken the Kagan standard 
and trashed it. We cannot act as if all is well in the Republic. We 
cannot act as if everything is normal. We cannot act as if this is any 
other nomination put forward by any other President because it is not.
  It should be clear to all of us that this nomination should not go 
forward until the Mueller investigation is concluded. I know my 
colleagues are not prepared to take that stand, but surely we can agree 
that the Senate cannot

[[Page S6048]]

perform its advice and consent while our hands are tied by a partisan 
vetting process, hiding hundreds of thousand documents from the Senate 
and from we the people.
  I call upon my colleagues to rise from this low point of censorship 
and the trashing of the responsibility of advice and consent. Stand up 
for the same principles you stood up for just a couple of years ago, 
when you demanded the full record for the Senate to undertake its 
investigation into a nominee. Bring courage and integrity into this 
process. Publicly refuse to proceed until we the Senate and we the 
people have the full set of documents about this individual's records. 
To do any less is to bring shame and injustice upon this body that I 
believe in so strongly, a responsibility of advice and consent that I 
believe in so strongly, and a responsibility that my colleagues 
believed in so strongly just a couple of years ago.
  Let's stand together, as we stood together just a couple of years 
ago, Democrats and Republicans, demanding transparency and integrity. 
Let this not be the moment when my colleagues fail to uphold their 
constitutional responsibilities.
  Thank you.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. PORTMAN. Mr. President, first, I would like to comment briefly on 
the last two speeches. The first was from Senator Leahy. He talked 
about the appropriations process. I commend him, as I did on the floor 
today in person, for the work he has done with Senator Shelby and 
others to actually move these appropriations bills, these spending 
bills, through the process. For the first time in a couple of decades, 
we have the opportunity to actually get our work done. It is incredibly 
important for all the right reasons, including having proper oversight 
of the Federal agencies and departments. He deserves credit for that.
  My colleague from Oregon just talked for a moment about the Kavanaugh 
hearings. He talked about the fact that he believes there is not enough 
information out about Brett Kavanaugh. Let me just say this. There has 
never been more information about any nominee to the Supreme Court, 
ever, in the history of our country. In fact, there are more pages of 
documents that have been provided on Brett Kavanaugh than for the past 
five Supreme Court confirmations combined--over 450,000 pages.
  Maybe my colleagues who raised these concerns decided a long time ago 
they were going to vote no and said they are and that is fine, but I 
don't think you can blame it on the fact that there isn't enough 
documentation.
  I know what they went, and I understand why they would want it. What 
they want is the documents that went through his office when he was 
Staff Secretary, which is a job at the White House where you are kind 
of like the traffic cop, where everything that goes into the Oval 
Office and everything that comes out is coordinated and disseminated 
properly. But those weren't his documents. Yes, it is not appropriate 
to see all of those documents. That would be, by the way, millions of 
additional pages--millions. But the 488,000 pages that have been 
provided--including all of the documents from his legal positions where 
he was a judge, where he was an associate counsel in the White House--
those have all been provided. That is good, and we should look at them 
and look at them carefully.

  It is not about the documents. It is about some fundamental 
differences about philosophy. I like his philosophy. He says that you 
shouldn't legislate from the bench and that you should be independent 
as a judge and be fair.
  He is totally qualified. The American Bar Association is sometimes 
criticized by Republicans as being too far to the left. It just said 
that he is ``eminently qualified.'' In fact, they gave him their 
highest rating, and they gave it unanimously. This just happened last 
Friday. Not everybody knows this. This person is not just qualified. I 
believe he is as qualified as anybody in the country to be on the U.S. 
Supreme Court. I am looking forward to having the opportunity to have 
this vote here on the floor. I hope it can be bipartisan, as it has 
been for the nominees that President Obama brought forward, including 
then-Solicitor General Kagan and Judge Sotomayor. They were big 
bipartisan votes. Let's get back to that when somebody is as qualified 
as this candidate clearly is.

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