Nomination of Brett Kavanaugh
Floor Speech
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Mr. SCHUMER. Mr. President, as we continue the review of the nomination of Brett Kavanaugh to the Supreme Court, let's recap what we already know about the judge.
Judge Kavanaugh's judicial opinions reveal a man skeptical about our healthcare laws, reproductive rights, contraceptive coverage, and the basic powers and independence of Federal agencies. His public speeches and writings reveal a man with a nearly unbounded, almost monarchical view of Executive power, and yet an incredibly limited interpretation of Executive accountability. Those beliefs are profoundly troubling at any moment in time, but they are particularly troubling at this moment in time as the President of the United States routinely belittles the rule of law and as his lawyers pronounce that they will fight a duly authorized subpoena--a subpoena that has been obeyed in the past by previous Presidents.
There is still much about Judge Kavanaugh we don't know because Senate Republicans have engaged in a blatant, historic obstruction of a large portion of his record.
First, Chairman Grassley broke with tradition and fired off a one- sided, partisan request for documents. Senator Feinstein is known as the most reasonable of Members, and if she couldn't join with Senator Grassley in a request for documents, clearly, it indicates how biased that request was.
Chairman Grassley unilaterally declared papers from Judge Kavanaugh's time as Staff Secretary irrelevant, even though those documents constitute the bulk of Judge Kavanaugh's record, and Judge Kavanaugh himself has said those years were among the most instructive as to his work as a judge.
They keep chipping away at what we are allowed to see, what the American public is allowed to see about Judge Kavanaugh. Then it was revealed that a small percentage of the documents we will receive are being prescreened by a political operative named Bill Burck, a longtime Republican lawyer and former deputy to Brett Kavanaugh--a man who has counted among his clients Steve Bannon, Reince Priebus, and Don McGahn. This man is hardly a fount of impartiality. He is a partisan. Mr. Burck also refuses to provide us with a log of the documents he has withheld.
Why are you withholding this one but not this one? No one is going to know.
Could it be that some of the information being withheld would be embarrassing to Judge Kavanaugh or, at the very least, harmful to his quest to become a Supreme Court Justice? Possibly. The American people have a right to know.
We have been denied the opportunity to evaluate whether the documents are being withheld for legitimate or self-interested purposes by a lawyer who is clearly a partisan.
That is two layers of obfuscation already. First, we are not allowed to see the most important documents of Judge Kavanaugh's time as Secretary. Second, of the counsel documents, which are a small percentage of his total documents, those are being prescreened by a Republican lawyer, not an impartial observer, who tells us which ones we can have and which ones we can't, without giving us any reason as to why one is OK and one isn't.
To make matters worse, Chairman Grassley has added a third level of withholding documents. He has declared that one-third of the small prescreened universe of documents only from the counsel's office, only prescreened by Burck--that wasn't good enough for people who want to avoid Judge Kavanaugh's record coming out in full. So those are now deemed ``committee confidential,'' meaning no one outside of the Judiciary Committee, not even other Senators, can see those documents, at least by Chairman Grassley's determination. It is outrageous.
Chairman Grassley is usually a fair-minded man. I have enjoyed working with him on many issues. We are the two Charles E's of the Senate. We carry, for instance, rural hospital legislation all the time and help our rural hospitals. When it comes to this area, Chairman Grassley's actions are manifestly unfair, not typical of his character. I understand the pressures he is under, but that doesn't forgive the result.
Withholding documents from the Senate and the American people under the bogus label of ``committee confidential'' is a dark development for the Senate. ``Committee confidential,'' by the way, means that Senators on the Judiciary Committee can see the documents, but they can't tell anyone about it--not their fellow Senators, not the American people. Why shouldn't the American people see them? There are key issues here that we need to understand better.
On Friday, three of my colleagues raised questions about Judge Kavanaugh's truthfulness regarding testimony he gave about the Bush administration's post 9/11 terrorism policies in 2006. We need to understand the issue better, and we also need to know what he thought about the Bush administration's efforts on warrantless wiretapping, efforts to curtail reproductive rights, and more. He testified in 2006, when he was nominated to join the DC Circuit, and we have to see if he was being truthful. This is such an important position, the Supreme Court. We should see those. The American people should.
Locking up documents in committee, even on those important issues, is an affront to transparency, openness, and to the basic integrity of the confirmation process. We have been given no reason--no legitimate reason--why the committee confidential documents are acceptable for some Senators but not others to see.
My understanding of the Senate rules is that every Senator has the right to access documents in the possession of a Senate committee, any Senate committee. I am now going to ask the Chair to confirm that understanding.
Mr. President, am I correct that under Rule 26.10(a) of the Standing Rules of the Senate, all committee records are the property of the Senate as a whole and that all Senators ``shall have access to such records''?
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Mr. SCHUMER. Thank you. The words say ``shall have access to those records.''
Is there anything that undoes those words in the rules?
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Mr. SCHUMER. Yes. I asked if, under the rules, all committee Senate records are the property of the Senate as a whole and that all Senators shall have access to those records--shall have access.
The Presiding Officer said: Yes, those are, in part, the rules. Of course, those are not all of the rules.
Is there anything the Presiding Officer knows in the rules that would undercut that ruling in the Senate rules?
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Mr. SCHUMER. Fine. Then it is clear there is nothing that undercuts-- I appreciate the Chair's reading of the entire rule. Nothing in the rest of the rule undercuts what I have said, obviously.
Based on your ruling--the ruling of the Chair--I will therefore be submitting a request to the chairman and the ranking member of the Judiciary Committee for access by all Senators to all of the Kavanaugh documents in the possession of the committee. This request will include approximately 81,000 pages of documents that have been deemed ``committee confidential'' by the private lawyer, Mr. Burck, and by the chairman of the committee, Senator Grassley. My colleagues should do the same.
Again, the purpose here isn't dilatory. We will work hard, day and night, to go through these documents to see if anything worth questioning Judge Kavanaugh arises in them. We certainly have that right, by the rules of the Senate, and I am glad the Chair so interpreted it.
This is not just about rules or about having more reading material. This is about the Senate, and by extension the American people, understanding the stakes and consequences of elevating Judge Kavanaugh to a lifetime appointment on our Nation's highest Court. This is about our constitutional duty to advise and consent on a Supreme Court nominee. Senators cannot do that in an informed manner without fair and full access to a nominee's record. And, of course, the Constitution assigns this duty to Senators on behalf of the American people. Without access to the nominee's record, the American people will be in the dark. That is unacceptable.
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