Executive Session

Floor Speech

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Mr. BLUMENTHAL. Madam President, there are few responsibilities--I would say none--more important than our duties in connection with the appointment of a Supreme Court Justice. Much is at stake in the nomination that is before the Senate now to appoint Judge Brett Kavanaugh as the Justice who will replace Justice Kennedy. So much is at stake--the future of Roe v. Wade, affordable healthcare, particularly, preexisting conditions and the protections of them for millions of Americans.

But I am not here to talk about Judge Kavanaugh as a nominee. I am here to talk about how we reach a conclusion as to how my colleagues and I vote and how we seek and pursue the truth about Judge Kavanaugh, his qualifications, his temperament, his integrity and intellect, who he is, and what kind of Justice he will be.

The best way to do it is to know what he has written and said--all of his writings and opinions and the articles he has written. These points are pretty basic.

I am struck by our colleagues' objection to our seeking documents they have sought in connection with past nominees when they were made by Presidents of our party. When President Obama nominated Justice Kagan, Republicans asked for documents from her years in the Clinton administration, her tenure as dean of the Harvard Law School, and even her clerkship for Justice Thurgood Marshall. Senator Grassley, now the chairman of the Judiciary Committee said at the time: ``For the Senate to fulfill its constitutional responsibility of advice and consent, we must get all of her documents . . . and have enough time to analyze them so we can determine whether she should be a Justice.''

I agree. Now, unfortunately, Republicans want to apply a completely different standard to Judge Kavanaugh. They want his documents kept sealed and stored so that he can waltz onto the Court without having to answer tough questions about what he has written, said, and done. They maintain that there is nothing in the documents that would be relevant or revelatory. Well, we can't know this supposed irrelevance, and neither can they until we all see those documents.

For some reason, the Republicans seem worried. They seem concerned. They seem apprehensive. The American people and we have a right to ask: What are they concealing and why are they scared of it? What is Judge Kavanaugh hiding and why is he afraid of it? That is a question he should answer and which they have a responsibility to address before we begin the hearings. Our questions require those documents.

There is, in fact, a lot of good reason to think that those documents will be relevant and revelatory, particularly the documents from his time in the White House. My Republican colleagues are now downplaying the role Judge Kavanaugh had while working for President Bush. Republican whip and Judiciary Committee member John Cornyn, our friend and colleague from Texas, said that Judge Kavanaugh was ``more or less a traffic cop,'' but that contention contradicts what our colleagues said at the time when Judge Kavanaugh was a nominee to the DC Circuit Court of Appeals. Senator Cornyn himself said then of Kavanaugh: ``He . . . is currently Staff Secretary to President Bush, a job whose title belies the very serious and important responsibilities that individual performs.''

Senator Hatch, also a colleague and a very distinguished member of the Judiciary Committee, said of Judge Kavanaugh: ``His background as Staff Secretary may prove to be particularly good judicial training.''

But for me the best indication of how important his role as Staff Secretary to President Bush was--not just as counsel, but as Staff Secretary--comes from Judge Kavanaugh himself. He said:

When people ask me which of my prior experiences has been most useful to me as a judge, I tell them that all of them have been useful, and I certainly draw on all of them. But I also do not hesitate to say that my five and a half years in the White House--and especially my three years as Staff Secretary for President Bush--were the most interesting and in many ways the most instructive.

I would read that sentence again, but I am not sure I need to. It will be in the Record, and it is well-known to many of my colleagues.

Judge Kavanaugh went on:

As Staff Secretary, I sat in meetings where he talked with President Hu and then-President Musharraf and President Karzai and Prime Minister Blair and Pope John Paul. I was at the G-8 in Scotland when the London subway bombing occurred. I saw and participated in the process of putting legislation together, whether it was terrorism insurance or Medicare prescription drug coverage or attempts at immigration reform. I worked on drafting and revising executive orders. I remember times on the Hill in negotiating last-minute changes in legislation. I saw regulatory agencies screw up. I saw how they might try to avoid congressional mandates. I saw the relationship between independent agencies and executive agencies and the President and White House and OMB. I saw FOIA requests.

That is from Judge Kavanaugh.

If there is any indication as to why we need those documents from the time he was Staff Secretary to President Bush, it is from Judge Kavanaugh's own words. If we want to know what kind of Justice he will be, we need to understand the decisions he has made and the lessons he has learned in that most informative job. If we refuse to even try, we have abdicated our constitutional responsibility. We have a duty.

I submit, with great respect, that the request made by the chairman of the Judiciary Committee involves all of us abdicating that responsibility unless we protest and raise a hue and cry and force the production of additional documents. This goes beyond any sort of partisan divide, and it goes beyond the question of whether any of my colleagues are voting for or against Judge Kavanaugh. It is about our constitutional responsibility.

These documents, as Judge Kavanaugh himself has said, would, in effect, reveal much about Judge Kavanaugh, for he worked on just about every major issue as counselor to President Bush and as Staff Secretary to him.

In a recent interview, Karl Rove noted: ``Literally every document that goes to the president on a policy issue has to pass through the hands of the staff secretary.''

As he himself has said, Judge Kavanaugh was at the President's side at many pivotal moments of the Bush Presidency--from the passage of the partial-birth abortion ban to debates over same-sex marriage and well beyond. We should know just what Judge Kavanaugh said as Staff Secretary to President Bush during those and other critical moments of the Bush Presidency. His advice to President Bush and his role in those decisions are relevant. I think that word understates its importance. It is critical to our judgments about his qualifications.

Perhaps--maybe just by chance--there is nothing in those documents. When Judge Kavanaugh was in the White House, maybe he was just a traffic cop, as Senator Cornyn has claimed, or was an honest broker, as the judge described himself at his confirmation hearing. Yet, if that were true, what are they hiding? Why do they need to conceal it? We should have the opportunity to determine whether Judge Kavanaugh had truly been an honest broker, just a traffic cop, or had just passed documents through his hands without his having had any input. The best way to determine this is by reviewing those documents.

Judge Kavanaugh made this very point when he was an appellate court nominee. At his confirmation hearing, he was asked how Senators should assess his record. He answered: ``I think that's done through an assessment of going back, in my case, 16 years of my career and looking at the kinds of things I've done in the staff secretary's office.''

We should heed those words. They are the words of Judge Kavanaugh. We should examine all of the documents. It may take some additional time to review all of those documents but maybe not if there is nothing in there that relates to his view and his opinion and his role. If he were just a traffic cop or an honest broker, we can get through them very, very quickly. Regardless of the time involved, there is no more important task that we will undertake as U.S. Senators than to decide on his qualifications for being a Justice on the U.S. Supreme Court. Anything less would be a dereliction of our duty.

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