High Stakes on the High Court: Justice Hanging in the Balance

Floor Speech

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Ms. NORTON. Mr. Speaker, I thank my good friend from New York, and I particularly thank her for her very cogent remarks and wish to associate myself with those remarks in every sense of the word; and I say so to the good lady from the State of New York as the leader of the CBC task force on Federal court nominations, including the Supreme Court nomination, where I have had the opportunity to look deeply at the decisions of this nominee now serving on the court of appeals, as it turns out, for the District of Columbia, Brett Kavanaugh.

I think the gentlewoman's remarks are telling in their understanding of the extreme damage he would do--and I must add not only to African Americans, but to the rule of law as we have known it.

I rise to indicate that the Congressional Black Caucus stands in strong opposition to the nomination of Judge Brett Kavanaugh, and we will be doing all we can to keep that nomination from proceeding to the floor of the Senate. We do have two members of the Congressional Black Caucus on the Judiciary Committee in the Senate, and we are working closely with them as well.

We in the Congressional Black Caucus are not the only Members of Congress opposed to this nomination, but we represent those Americans who have been disproportionately dependent on a fair Supreme Court. African Americans have always been a minority group in our country. For that reason, from slavery on to the days of discrimination in the 19th and 20th centuries, the African American community has been particularly dependent on the courts of the United States to protect them from unequal treatment by the majority.

We have had every reason to know that, if we are in the hands of the partisan majority, given 400 years of history, we have no protection. African Americans are disproportionately dependent on an objective Supreme Court. Now, that doesn't mean a Supreme Court of our choosing, but a Supreme Court that is open to all points of view and capable of seeing beyond partisanship.

Brett Kavanaugh is not that nominee. We know so because he has perhaps the longest record of opinions of names submitted to Republicans for review.

The D.C. circuit, which is the federal Court of Appeals for the District of Columbia, which happens to be my district, has been a circuit where Kavanaugh has been very mindful of the Supreme Court. I say that because he has so often written in dissent from his own colleagues on a Republican Court that it has been as if he were trying to write his way onto the Supreme Court.

Remember Kavanaugh's background. He started his career as a political operative in the Bush administration, and he has brought that extreme partnership, as a political operative, straight into the D.C. circuit.

We are not asking the Senate for a nominee of the kind we would have chosen. That is not our demand. But because this is the most partisan Congress since the Civil War, I believe we are within our rights in asking for a Court that would be a stabilizing influence so the American people could see that not all is lost because there is an objective actor on the scene, and that actor is the Supreme Court of the United States.

It is that Court which has protected us, we who are African Americans, from unequal treatment ever since Brown v. Board of Education in 1954. That does not mean that African Americans have always won at the Supreme Court level, but they have always had reason to believe that there was a court of last resort that would be open to them.

We no longer would have that sense of openness to their views if Brett Kavanaugh becomes the nominee put forward in this session. We have seen no evidence that he would adhere to equal protection of the laws.

I will cite some examples that illustrate where his views in his cases lead that he would not protect the long-held holding of the courts that no American can be arrested without probable cause, that he would not protect even the separation of powers, and that he would not uphold the rights of Americans to qualify for affordable healthcare.

All of those notions have a disproportionate effect on African Americans, though they affect every American in the United States.

Remember, Judge Kavanaugh would be appointed to a Court that already has a majority appointed by Republican Presidents. Yet, while sitting on the D.C. court of appeals, he has distinguished himself by seeking to overturn long-existing precedent, even when members of that court, also appointed by Republican Presidents, have disagreed with him.

Let me give an example in an area of criminal law.

We now see African Americans in the streets protesting overzealous law enforcement because African American men have been shot and killed and people go to the streets because, if you can't get justice to the courts, that is all they have.

Yet, Judge Kavanaugh has suggested that it is appropriate for the probable cause standard to be more ``flexible.'' Why?

Virtually no police have indeed been indicted, even given the evidence of African Americans shot down in the streets. Why do we need to narrow the ancient probable cause requirement?

He has indicated that police searches without a warrant or individualized suspicion should be allowed. He has even praised narrowing the rights long ago afforded to all defendants against incriminatory statements against themselves. How deep does that go in American constitutional law? How dangerous would it be to have a justice who would question the right against self incrimination?

Judge Kavanaugh's extreme views also show no respect for the fundamental right of women to make decisions about their own bodies, even though, 45 years ago, the Supreme Court itself established the right to abortion. That is a controversial right in our country, but it has withstood the test of time.

Let me offer an indication from a recent decision by Brett Kavanaugh, which his own court had to overturn, that shows he has no respect for precedent. That is perhaps our chief issue with this nominee. Precedent must be respected or else we are all open to whatever Congress or the Court wants to do.

A young woman, immigrant, undocumented, sought an abortion. As it turns out, she had gone through the most rigorous of requirements, those required by Texas, because that is where she entered the country. This matter came to the D.C. court of appeals, however.

Judge Kavanaugh found, with the time running--remember, if abortions are to be performed, they are to be performed, according to the Supreme Court, as early as possible--found that more time was needed because she needed a sponsor, something that the Supreme Court has never required, in order for that abortion to occur. The court overturned Judge Kavanaugh's opinion. Look how dangerous it would have been. She could have gone past the 12-week, the 15-week, the 20-week deadline, which the House has approved on occasion.

These are rights not to be tampered with, but he has already tampered with them on the court of appeals. This court, the Court of Appeals for the District of Columbia--and I won't go into all the cases--has shown that he is an executive-oriented justice. That is to say, whatever the President wants, the President gets. This is the court that looks at most administrative law decisions before they go anywhere else.

Kavanaugh tried to strike down the net neutrality rule. Now, that is controversial here in Congress. But the basis he used for the courts to do it, the majority said--remember, this is a majority which our Republican President has appointed--the majority noted that the dissent was, using their words, ``misconceived'' because Kavanaugh claimed a First Amendment protection for large internet service providers never found by any court, and certainly not the Supreme Court but found to be, again, by his Republican colleagues on the D.C. Circuit, to be ``counterintuitive.''

I cannot go through each and every one of Judge Kavanaugh's decisions here, but I must point to perhaps his most extreme opinion. In a decision on the Affordable Care Act, this is what a jurist in the United States of America said, and I quote:

``Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.''

That is bold. It says that the President may choose to rise above the law and enforce a law even if found unconstitutional. The Congress of the United States should not be willing to go along with this. I cite a case on my side of an issue but surely you can see the implications for yours.

The President is supposed to make sure to ``take care that the laws are faithfully executed.'' To faithfully execute that law, you would have to enforce whatever the Congress or the Courts had found.

Of course, most concerning for many is his view of the special counsel where he has opined that it may be unconstitutional, and there is every reason to believe that he may well believe that Mueller's special counsel role should be struck down.

A Republican President is entitled to a Republican nominee. He is not entitled to a nominee whose opinions fly in the face of the law for the last 75 years.

Judge Brett Kavanaugh's long list of opinions mark an extreme departure from established American constitutional and other law. We ask that every effort be made to oppose a man who would ignore established precedent, even precedent that his own conservative colleagues agree with, and who, I believe, cannot uphold the law fairly to protect the rights of all American citizens.

We believe that the first to feel the effect of such a nominee would be the millions of Americans who are of African American ancestry whom the Congressional Black Caucus represents.

I thank my good friend, again, from New York, for permitting me to go on at length about some of the precedents I have discovered that I thought would be particularly troubling, not only to the African American community, but to the American people.

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