Nomination of Brett Kavanaugh

Floor Speech

BREAK IN TRANSCRIPT

Mr. SCHUMER. Mr. President, on Saturday, the Senate Judiciary Committee received the completed questionnaire from Brett Kavanaugh, President Trump's nominee to the Supreme Court.

As legal minds on both sides of the aisle pore over these preliminary documents, a common thread has already emerged: Brett Kavanaugh seems to have an imperial conception of the American Presidency. He has written that a sitting President shouldn't be subject to civil or criminal investigations while in office.

In at least three separate instances, Brett Kavanaugh has shown a willingness to openly question precedent relating to Presidential power and Presidential accountability.

First, in his opinion in Seven-Sky v. Holder, Kavanaugh wrote that the President does not have to enforce the laws if he ``deems'' a statute unconstitutional, regardless of whether a court has already held it constitutional.

What the heck do we have a Supreme Court for? If the President can deem a law unconstitutional even after the courts have ruled it is and then not obey it--wow. That goes very far. I fear to think what this President, in particular, who doesn't seem to have much respect for the rule of law or people who disagree with him, will do if that becomes the law.

Second, when Brett Kavanaugh was asked which case he would choose if he could overturn precedent in any one case, he said the decision in Morrison v. Olson. That is the case that upheld the constitutionality of the independent counsel law.

Many of us did not agree with the independent counsel law, but it is telling that the first and only case Brett Kavanaugh cited when asked ``What case would you overrule, would you overturn stare decisis on?'' was a case about executive accountability.

Third and most recently, on Saturday, we learned that Brett Kavanaugh even believes that the 8-to-0 decision in United States v. Nixon may have been wrongly decided. This new revelation adds to the body of evidence that Kavanaugh believes sitting Presidents should be free from civil and criminal investigations while in office--a view, of course, that could have significant ramifications for the future of the Presidency and our democracy.

Let me ask this Senate and the American people a very important question: If Kavanaugh would have let Nixon off the hook, what is he willing to do for President Trump? Alarm bells should be going off for anyone who believes in checks and balances.

It is a fundamental principle of our democracy that no one is above the law, including the President. Our Presidents are not Kings. But Brett Kavanaugh's jurisprudence does not bode well for the future rulings on the accountability of the President, including those that may arise from Special Counsel Mueller's investigation.

Kavanaugh's views of an imperial Presidency would be alarming under any President, but it is especially alarming under President Trump, who almost daily tests the bounds of our Constitution, the separation of powers, and the rule of law. It almost seems that anyone who criticizes him is beyond the pale, is fake, is dishonest.

As the revelation about the Nixon case shows, there is still much we don't know about Judge Kavanaugh. The Senate and the American people deserve to know where Judge Kavanaugh stands on a host of issues. After all, the Supreme Court is a lifetime appointment with enormous power-- the power to overrule the elected bodies of government.

Given that the hearing process for the Supreme Court has tended to be more of a public relations exercise for nominees rather than a legitimate examination of judicial philosophy, Judge Kavanaugh's papers might be the best and only way to judge what kind of a Justice he might be. My Republican friends understood this when it came to Justice Kagan, who had served in key positions in prior administrations, much like Judge Kavanaugh. They were then in the minority, as we are now, when Judge Kagan was nominated, but our Republican colleagues demanded the entire paper history of then-Solicitor General Kagan before moving forward with her nomination, and Democrats agreed.

In a joint letter to the director of the Clinton Library, the chairman and ranking member of the Judiciary Committee at the time-- Senator Leahy, the chairman, and Senator Jeff Sessions, now Attorney General, but then the ranking Republican on the committee--wrote that they expected ``all records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Elena Kagan, as well as documents referencing Elena Kagan by name, initials, or title, and documents received by or sent to Elena Kagan.''

A Democratic chairman and Republican Senator Sessions, the ranking member, asked for every single document of Elena Kagan's record. Why should such a standard apply to Justice Kagan but not to Judge Kavanaugh?

I have taken the liberty of editing the letter sent by Senators Sessions and Leahy. It didn't take much work to make it directly applicable today. It is the same letter, same request, simply crossing out every time it mentions Kagan and putting in the name ``Kavanaugh.'' There was no change. It is the same standard.

I have already heard from my Republican colleagues, including Chairman Grassley, that there is no reason to review Judge Kavanaugh's full record before proceeding with his nomination.

I have had enough of the two-facedness, the total hypocrisy on judges, where somehow our Republican colleagues say it is good one way when we have a Democratic President and the opposite should take effect when we have a Republican President. That is what they are doing with the records here first of Judge Kagan and now Judge Kavanaugh.

Well, I say to my Republican colleagues, what is good for Justice Kagan--let's call it the Kagan standard--is good enough for Judge Kavanaugh--paraphrasing, of course, what is good for the goose is good for the gander.

The Senate's duty to advise and consent does not mean move as hastily as possible. For the benefit of this body, for the sake of consistency, and for the honor of this Chamber, I hope my Republican friends join Democrats in asking for and waiting for all the documents related to Judge Kavanaugh. The American people have a right to know what is there, and the Senate must have enough time to review the body of work before making an unalterable decision on a lifetime appointment to the Nation's highest Court.

BREAK IN TRANSCRIPT

Source