Department of Defense Appropriations Act, 2019--Continued

Floor Speech

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Mr. DURBIN. Mr. President, I note my colleagues have come before me to discuss the nomination of Brett Kavanaugh to fill the vacancy on the U.S. Supreme Court after the retirement of Justice Kennedy.

I checked, just to make sure I understood the section of the Constitution. It is article II, relative to the President's powers, which talks about the power of the President to fill that vacancy on the Supreme Court, subject to the advice and consent of the U.S. Senate. One hundred U.S. Senators ultimately have the last word on any nominee. I am fortunate to serve on the Senate Judiciary Committee, where we get the first chance to review any nominee and take a look at their background and vote as a committee before the matter is brought to the floor of the U.S. Senate.

I have listened to my colleagues who support Judge Kavanaugh ascending to the bench and to a lifetime appointment to the highest Court of the land. I am troubled by one particular aspect of this nomination. It is different than any nomination to the Supreme Court in the history of the United States in this respect: This President made it clear that any person who wanted to be eligible for the U.S. Supreme Court needed to pass a clearance by two organizations. One is called the Federalist Society and the other is the Heritage Foundation. Both of these are conservative organizations which reviewed all of the potential Supreme Court nominees and produced a list of 20 or more men and women who would be eligible for the Supreme Court by their judgment.

Is their judgment important? I will point to one fact in history which illustrates. When Neil Gorsuch was considered by President Trump to serve on the Supreme Court and fill the vacancy of Antonin Scalia, he was not notified by the White House. The White House called the Federalist Society head, Leonard Leo, and asked him to call Mr. Gorsuch and tell him the good news. So to say that the Federalist Society and the Heritage Foundation played a critical role in the selection of a nominee is an understatement. If you don't clear their background test, their litmus test, you cannot be considered by the Trump administration for the Supreme Court.

That is offensive to me. We don't see any reference to the Federalist Society or the Heritage Foundation in the U.S. Constitution. There is a clear reference to a President elected by the people of the United States, but to give to any special interest group, right, left or center, that kind of authority is way beyond what our Founding Fathers imagined would be this process for selecting someone for the Supreme Court.

Then it gets even more complicated. Before we consider a nominee for the Supreme Court, we have to carefully review their records. It takes time. Literally, scores of lawyers sit down and go through the published opinions and speeches and other documents which evidence a person's background, and when it comes to Brett Kavanaugh, it is an extensive background. He has had a role at the highest levels of the Federal Government for years: Ken Starr's Office of Independent Counsel, the Bush v. Gore lawsuit that went down to the State of Florida and beyond.

The cases he was involved in as a member of the court are pretty obvious and published, but many of his other activities--particularly in the White House when he served as Staff Secretary to the President of the United States--were extensive. For a 3-year period of time, for 35 months, he was the gatekeeper in the White House as to the documentation the President would receive and read. It involved a pretty massive amount of time and documentation on all of the major issues facing the Presidency for almost 3 years. Should we take a look at it? Is it worth our investigation and inquiry into what Mr. Kavanaugh said and did during those years?

Well, there was a time here when Republicans thought it was not only important but essential when it came to a nominee named Elena Kagan. Elena Kagan had never served on the Federal judiciary. She was nominated by President Obama. At the time, the ranking Republican on the Senate Judiciary Committee, Jeff Sessions of Alabama, insisted on the full documentation of her role in the White House, and the Democratic Senator, Patrick Leahy of Vermont, joined him in making that request. As a result, 170,000 pages of documents were produced because of the request made by Senator Sessions and Senator Leahy. It was a bipartisan request. It established a standard.

The same standard was applied for Democratic nominee Sonia Sotomayor. Documentation had to be presented to the committee and carefully reviewed before there was a vote on whether that person would serve in a lifetime appointment to the highest Court in the land.

Most of us assumed, at that point, that it was a settled practice in the U.S. Senate Judiciary Committee when it came to the documentary proof we would ask for when nominees came before us for the Supreme Court. We thought that, but we were wrong because when the Republicans took control, everything changed. It changed, of course, with Antonin Scalia's vacancy as a result of his untimely death--a vacancy President Obama sought to fill during his last year in office. He ended up nominating Merrick Garland, a DC Circuit Court judge of impeccable credentials to fill the vacancy. Many Republicans in the Senate refused to even meet with Merrick Garland, let alone consider him and vote on him. So, for a whole year, the vacancy continued at the Supreme Court while the Republicans broke Senate tradition and refused to consider President Obama's nominee.

Then came the election of Donald Trump, the nomination of Judge Neil Gorsuch, and the process went forward to fill the vacancy the Republicans had kept open for more than a year before Neil Gorsuch was finally voted on by the U.S. Senate.

So here came the second vacancy under the Trump administration--a vacancy created by the retirement of Justice Kennedy--and the question was obviously asked: What standard will you use for asking for the documentary evidence of the person's background in public service?

Many of us assumed it would have been the same standard that was pushed by Senator Sessions, a Republican of Alabama, and Senator Leahy, a Democrat of Vermont. We were wrong. Instead, what the Republicans said is, we are going to have a new rule when it comes to Republican nominees from the Trump administration in the case of Judge Brett Kavanaugh, and that new rule said we will not ask for documentation for the 35 months when he served in the White House as the closest adviser to the President of the United States. I can tell you there were a myriad of issues that were considered by the President in that period of time, and Brett Kavanaugh, then assistant to the President, was involved in these decisions. We will not know what he said or did because the Republicans have refused to ask for the documentary evidence of his time there.

There is more to the story. The Republicans decided, for those documents they might consider asking for, they would have a final filter, and the final filter is a man named Burck, who has served as an attorney for not only President Bush but also in the past for Steve Bannon. Does the name ring a bell? Steve Bannon of Breitbart News. Burck has served as his counsel and was a deputy to Brett Kavanaugh in the White House.

Mr. Burck is literally going through Kavanaugh's documents from his time in the White House Counsel's Office to decide which ones will be given to the Senate Judiciary Committee to consider. So it means he is the filter of things he doesn't want us to see and he doesn't want the American people to see. This Republican advocate attorney is going to be a decisionmaker when it comes to whether we can see documents that were produced by Brett Kavanaugh when he served in the White House Counsel's Office.

It gets even worse. It turns out, those documents, which he preclears for us to read in the Senate Judiciary Committee, are subject to some sort of committee confidentiality. I have served on the Senate Judiciary Committee for a number of years, and I know there are documents which are considered somewhat committee confidential, but it is rare, and it is usually a case you wouldn't argue over; classified information, for example. In this case, these Republicans on the Senate Judiciary Committee will be the final, final filter as to whether the American people will know the background of Brett Kavanaugh.

Why is there so much secrecy here? Why wouldn't these documents be made public? Well, let's look back in time. When Elena Kagan was asked to produce her documents from the time when she served in the White House, she produced every one of them except those that were personal and private. On how many of those 170,000 pages did she assert executive privilege and say: I can't produce them? None. Every single document was turned over to the Senate Judiciary Committee.

Now, when it comes to Brett Kavanaugh, I can't tell you what is going on here. There is a concealment which is impossible to explain. What would we find in those documents that have been carefully screened by Mr. Burck and then again by the Senate Judiciary Committee Republican majority?

I am concerned about it because this is a lifetime appointment to the highest Court in the land. We know the Court is carefully divided. It is legitimate for us to ask the questions about Judge Kavanaugh's background because of our constitutional responsibility to advise and consent, but we can't ask those questions if they don't produce the documents, and that is where we are today.

So my colleagues can come to the floor and talk about Judge Kavanaugh's record leading up to this nomination. They are limited in the information they have been given, and the limitations are unprecedented in the U.S. Senate.

The Republicans, when it comes to the Supreme Court, just rewrite the rules. Merrick Garland, President Obama's nominee: Sorry. No thanks. We are not interested in interviewing him or even considering him for that appointment. When it came to this judge, Judge Kavanaugh, the ordinary production of documents, by a standard established by the Republicans and Senator Sessions, is being ignored now when it comes to the nomination of Brett Kavanaugh. We will be given limited information because of this process and have to do our best to carefully review this nominee before he is considered for this lifetime appointment to the highest Court in the land.

I yield floor.

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