[Congressional Record Volume 164, Number 166 (Friday, October 5, 2018)]
[Senate]
[Pages S6562-S6563]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The Democratic leader is 
recognized.
  Mr. SCHUMER. Madam President, from start to finish, President Trump's 
nomination of Judge Brett Kavanaugh to the U.S. Supreme Court will go 
down as one of the saddest, most sordid in the long history of the 
Federal judiciary.
  The well was poisoned from the outset when President Trump selected 
Judge Kavanaugh from a list of names preapproved by hard-right special 
interest groups for whom the national interest is a trifling concern 
compared to repealing Roe v. Wade, cutting people's healthcare, and 
achieving a partisan majority on the Supreme Court. The rot worsened 
when the Republican majority on the Judiciary Committee shielded the 
bulk of Judge Kavanaugh's records from the public, discarding decades 
of bipartisan precedent and thwarting norms of transparency and 
fairness. Finally, the dam broke under the weight of credible 
allegations that Judge Kavanaugh committed a sexual assault in high 
school.
  In 2018, the Republican majority conducted a hearing that made the 
Anita Hill hearings in 1991 look fair by comparison. At this hearing, 
there were no corroborating witnesses on either side and no independent 
investigation of the facts to inform the questioning. They even hired 
an outside counsel to put a witness, Dr. Ford, on trial. Only at the 
eleventh-hour urging of breakaway Members of their caucus, Republicans 
submitted, reluctantly, to a 1-week investigation of the allegations--
an investigation which was then severely circumscribed by the White 
House.
  Our Republican friends blame us for this process. They are always 
finding a straw man. But nothing could be further from the truth. 
First, they blame us for delay, knowing full well that Majority Leader 
McConnell has complete control of when nominees are brought to the 
floor. Leader McConnell could have moved this nominee 2 weeks ago or 1 
week ago. Democrats had no say--and don't--when it comes to what is 
scheduled for floor debate. But in each case, Leader McConnell couldn't 
move the nominee forward because he was blocked by fellow Republicans--
not Democrats--from moving forward. When it comes to complaining about 
delay, two words never come from our Republican friends' lips: 
``Merrick Garland.''
  Republicans are also saying that we engaged in ``a smear campaign'' 
or the ``politics of personal destruction'' with this nomination. In 
reality, again, they are using Democrats as a straw man, because what 
they are really talking about is what Dr. Ford said. Democrats did not 
induce her to come forward; her conscience did. Are our Republican 
friends accusing Dr. Ford and her deeply held memories of what happened 
to her of a smear campaign? Are they accusing Dr. Ford of a smear 
campaign, of engaging in the politics of personal destruction? Because 
that is who they are actually blaming. They are decrying her testimony 
and then trying to blame Democrats. I don't blame them--they have a 
flawed nominee. They don't want the focus on the nominee.
  When future Americans look back at these proceedings, let them draw 
no lessons from the Senate's conduct here. Let them look back on this 
chapter as the shameful culmination of the scorched-earth politics 
practiced by the hard right in America--people who will stop at nothing 
to entrench an advantage on our Nation's courts. Let the confirmation 
process for Judge Kavanaugh be recorded as a sorry epilogue to the 
brazen theft of Justice Scalia's seat, the ignominious end of 
bipartisan cooperation and consultation on the confirmation of Supreme 
Court Justices. And for what? For whom were Senate Republican leaders 
willing to discard all semblance of fairness to confirm? Judge Brett 
Kavanaugh--certainly a product of an elite education but also someone 
with a hard-right, conservative jurisprudence, far, far away from what 
average Americans believe.
  Why most Democrats opposed his nomination at the outset feels like 
ancient history now, but let's not forget that, most importantly, we 
strongly disagree with a number of Judge Kavanaugh's views. He is 
deeply skeptical of unenumerated rights, including a woman's right to 
make fundamentally private decisions about her medical care. He is 
deeply skeptical of the government's role in protecting Americans with 
preexisting conditions. He is deeply skeptical of nearly all rules and 
regulations that protect consumers, workers, and the environment.
  The flashing red warning sign at the center of Judge Kavanaugh's 
jurisprudence is his views on Executive power and accountability. 
Somehow, this conservative judge and scholar of the Constitution sees 
at the heart of American democracy a President-cum-King; an Executive 
who is unaccountable to the laws he is sworn to uphold; a head-of-state 
who, while in office, should be beyond the reach of subpoenas, criminal 
investigations, or civil investigations.
  This moment in American history demands deep skepticism about Judge 
Kavanaugh's views on Executive power, nominated as he was by an 
Executive who disdains the constraints of his office and who is, at 
this very moment, the apparent subject of investigations his Supreme 
Court nominee believes should be invalid.
  I met with Judge Kavanaugh for almost 2 hours, and I asked him about 
all of those issues. His answers were constantly evasive and utterly 
unsatisfactory. It was deja vu all over again in the first round of 
hearings, when Judge Kavanaugh deliberately avoided talking about his 
views on Roe, healthcare, Presidential accountability, and more. There 
was no legal reason, rule, or logic that prevented him from being clear 
and saying what he thought. He was evasive because he knows that his 
views are deeply at odds with the progress America has made over the 
last half century of jurisprudence and at odds with what most Americans 
believe. His performance was not only unfair and frustrating to the 
Senate, it was unfair to the American people. When a nominee refuses to 
disclose their views, chances are you have a nominee whose views are 
far outside the mainstream of America, whether they be far right or far 
left.
  My colleagues on the other side of the aisle may not have as grave a 
concern about these views as we do, but let no American be surprised if 
Judge Kavanaugh becomes a decisive vote to restrict the rights and 
privileges of the American people, while stretching the bounds of 
privilege for the current occupant of the White House.
  Judge Kavanaugh's nomination ultimately does not only encompass 
questions of ideology or credentials but questions of character. Here 
again, Judge Kavanaugh falls woefully short of what Americans expect 
and deserve

[[Page S6563]]

in a Supreme Court Justice. He has repeatedly misled the Senate about 
his involvement in some of the most serious controversies of the Bush 
administration, including warrantless wiretapping of American citizens, 
our policy against torture, the theft of electronic records from 
Democratic Senators, and his involvement in the nomination of very 
controversial judges. Faced with credible allegations of various types 
of misconduct, Judge Kavanaugh's credibility was again tested, and he 
continued to dissemble and even prevaricate about easily refuted facts.
  Beyond the issue of credibility, Judge Kavanaugh presented to the 
Senate the bitterest partisan testimony I have ever heard coming from a 
candidate seeking the Senate's approval, whether they be for the bench 
or the executive branch.
  There are many who think that what happened when Judge Kavanaugh was 
17 years old should not be dispositive. Even if you believe that, his 
actions at age 53 in terms of demeanor, partisanship, and, above all, 
credibility, should be dispositive. Judges at every level of the 
Federal bench should be held to the highest standard of ethics and 
moral character. Judges at every level should be judicious and credible 
and independent but especially--especially--on the Supreme Court.
  I do not see how it is possible for my colleagues to say with perfect 
confidence that Judge Kavanaugh has the temperament, independence, and 
credibility to serve on the U.S. Supreme Court. So I ask my colleagues 
on the other side of the aisle: Why Judge Kavanaugh? There is no 
dictate that you have to march blindly forward with a nominee when 
there are others available to you. There are many judges whom I am sure 
conservatives would be happy to have on the Court. I would remind my 
colleagues, the seat that Brett Kavanaugh aspires to fill was held by a 
Justice who assumed the Bench after one nominee was voted down by the 
Senate and a second nominee withdrew his nomination. But the Republican 
majority has pressed forward blindly on Judge Kavanaugh, even when 
brave women came forward to speak truth to power. Why? For what cause? 
For the sake of winning? That is not reason enough.

  My colleagues on the other side, if you have doubts about Judge 
Kavanaugh's credibility, about his ability to tell the truth, about his 
ability to be impartial and nonpartisan--no matter what you think of 
his jurisprudence or what he may or may not have done in high school 
and college--you should not vote to confirm him to the Supreme Court.
  So my friends, Democratic and Republican, for all the controversy, 
all the heavyhandedness of the process, all the hyperbole and 
vilification of both sides, there is always hope that the Senate can 
save itself. We can salvage some decency here at the end.
  If Judge Kavanaugh is rejected, President Trump will select another 
nominee--likely right-of-center, probably not to my liking but without 
the cloud that hangs over this nominee--and we can proceed to consider 
that nominee in a much less bitter, much better, less partisan way. A 
bipartisan majority of Senators, considering fully the weight of Judge 
Kavanaugh's testimony, record, credibility, trustworthiness, and 
temperament, considering fully the heartbreaking testimony of Dr. 
Christine Blasey Ford, can vote to reject Judge Kavanaugh's nomination 
and ask the President to send the Senate another name.
  For the sake of the Senate, of the Supreme Court, and of America, I 
hope, I pray, my colleagues will do so.
  I yield the floor.