Department of Defense Appropriations Act, 2019
Floor Speech
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Mr. HEINRICH. Madam President, I rise today to call on each of us to take seriously one of our most important duties as Senators--our constitutional duty to provide advice and consent on Presidential appointments to the Supreme Court.
As we all know, over the last 3 years, the longstanding tradition of building bipartisan consensus in the Senate around nominees to our highest Court was flown into the ash heap of history. The majority leader and Senate Republicans completely dismantled the rules that made advice and consent real in the Senate--all to steal a Supreme Court nominee from our last President. By making nominations to the highest Court--perhaps the most consequential votes we take as Senators-- subject to only a simple-majority vote, Republicans rigged the system to make it possible for the most extreme nominees to make it all the way to the Bench.
Before they broke the rules, requiring 60 votes ensured that both parties would have a real seat at the table and that mainstream nominees would be nominated and confirmed with the advice and consent of the Senate. Now we have been told that we must accept the resulting new normal of a politicalized and completely partisan selection process to fill any new vacant seat on the Court.
I, for one, refuse to legitimize this broken process. Under these broken rules, the minority party--even in as closely divided a Senate as we currently have today--has effectively zero ability to say: Wait. Hold up. There is something about this nominee that is too extreme or too disqualifying for a lifetime appointment to the highest Court in the land.
That is not democratic. That is not what the Founders had in mind when they created the Senate as a deliberative body. This body was intended by the Founders to be the methodical answer to the fiery passions of the day, not an amplifier of them.
I fear that this broken system will create potentially disastrous consequences for the health of our democracy as a whole. It has already resulted in a crisis of confidence where the public no longer views our Supreme Court as independent. Frankly, the public is correct--not just because of the precedent it set and hostility that it created but also because of the nominee before us.
Because President Trump knew going in that he would not need a single Democratic vote, he went straight to a predetermined list of names given to him by the Heritage Foundation and the Federalist Society. That meant that the President only considered nominees who fulfilled all of the ultraconservative special-interest litmus tests. This ensures that each of the judges he considered opposed women's healthcare, environmental protections, and workers' rights. You don't have to take my word for that; President Trump was very explicit on the campaign trail in saying that he would only choose from this list of extreme conservatives for the Supreme Court. Without real advice and consent, there is no counterbalance and no real voice for Americans who don't want to see the country unrecognizably changed forever by his ultraconservative Court-packing.
We have been asked to go through the motions of a broken and partisan confirmation process for a nominee with a troubling and dangerous track record. If confirmed, a Justice Brett Kavanaugh would be a deciding vote on so many important issues that I have no doubt will come before the Supreme Court. Would a confirmation process in which both parties had a real seat at the table produce a nominee who believes that polluters should be able to poison our air and water unchecked; a nominee who does not believe women have the right to make decisions about their own private healthcare needs; a nominee who has ruled against well-established rights of privacy? No. And that is precisely the point.
Judge Kavanaugh's hyperpartisan opinions formed over a lifetime as a Republican DC operative will influence his decisions from the Bench. He is out of touch with consensus views held by the American people, and his extreme views could drastically alter our daily lives.
Judge Kavanaugh is exactly the type of ideologue and politically motivated nominee we can expect to see not just for this seat but for all Supreme Court seats moving forward if we allow the Senate rules for providing advice and consent to remain in tatters. But I worry that by rushing this through on a completely party-line vote, we are enabling an even greater threat to our democratic institutions and to our Republic itself, and that is because, from what we do know about his judicial record, work experience, and writings, Judge Kavanaugh believes in giving a disturbing amount of deference to the executive branch and to the President of the United States.
Judge Kavanaugh has written and delivered very clear statements saying that he believes a sitting President should not have to face prosecution, criminal investigation, subpoenas, or civil litigation. To be clear, this judge believes the President is above the law. This is the United States of America. No one--I repeat, no one--is above the law.
It really makes you wonder why President Trump would pick him for a potentially deciding vote on the Supreme Court, doesn't it. Do I need to remind you that our President and members of his campaign team remain under Federal investigation for coordinating with the Russian Government's interference in our election?
Just yesterday, the President's longtime attorney and his campaign chairman were each declared guilty in eight separate Federal crimes. In his guilty plea for campaign finance violations, the President's former attorney, Michael Cohen, implicated the President himself in coordinating payoffs to women who alleged affairs in an effort to influence the election.
Look, combine all of President Trump's ongoing legal troubles with his unbalanced and impulsive style of governing, and there are many plausible and even likely questions about the scope of the executive branch's authority that could come before the Supreme Court. Especially after yesterday's major developments, this is no longer purely hypothetical. We don't know enough about how Judge Kavanaugh might rule on these questions, but what we do know is deeply concerning.
Judge Kavanaugh has questioned whether Presidents should be forced to answer to civil lawsuits, criminal investigations, or questions from a prosecutor while they are in office. That, to me, is unbelievable. In another example before he became a judge, Kavanaugh said that he thought the Supreme Court had made an ``erroneous decision'' when it unanimously ruled that President Nixon needed to turn over White House tapes that ultimately proved the role that he played in covering up the Watergate scandal. Kavanaugh has also stated that he opposed the post- Watergate special counsel law and implied that nothing limits the President's authority to terminate a special counsel with or without cause.
It is easy to see how Judge Kavanaugh's views on Executive power are especially dangerous in the current times. This view of an executive branch untethered from the checks and balances that form the very norms of our political system should terrify Senators on both sides of the aisle who believe that the separation of powers is a cornerstone of our American democracy.
On top of this, we need to know more about Judge Kavanaugh's actions when he was in the executive branch. As a high-ranking official in the George W. Bush White House, Judge Kavanaugh served on the legal team and as Staff Secretary to President Bush during controversial abuses of Executive power. Senate Republicans have so far obstructed requests to review all of the records that would show what role Kavanaugh played in determining the legality of President Bush's policies. What side did he take as the Bush administration's CIA used illegal torture techniques, such as waterboarding? Was he aware of the Bush administration's warrantless mass surveillance of Americans' phone and internet records? These are unanswered questions until we are able to review relevant Presidential records--the same types of reviews we have been able to do for past nominees when there was real advice and consent.
The National Archives told Senator Grassley, the chairman of the Judiciary Committee, that it cannot physically process all of the relevant records until October. Yet Senate Republicans have scheduled confirmation hearings and then a likely confirmation vote for Judge Kavanaugh to begin in early September.
We should never proceed on a confirmation vote for a lifetime appointment to the Supreme Court until we have done our due diligence in reviewing every relevant document on a nominee's record. We should not proceed on Judge Kavanaugh's nomination until we have clear answers to highly important questions about his actions in the Bush White House. Under a functioning confirmation process, the need to review these records would not even be up for debate. It is just plain common sense and part of our constitutional duty to carefully, to methodically review the qualifications of nominees as part of providing advice and consent.
Unfortunately, as is obvious to anyone watching this process unfold, the United States is no longer operating under rules that ensure a fair process. Instead, Republicans are rushing to push this nomination through at a breakneck pace so that they can confirm Judge Kavanaugh before this fall's election regardless of legitimate questions about his record, regardless of the dangerous consequences of his extreme views on so many issues.
At a time when our democratic institutions themselves are under attack--from undermining the free press to there being foreign influence in our elections--we should be very careful in weighing who sits on this, the Nation's highest Court.
Once again, I plead with my colleagues that we can do better than this. We must restore advice and consent in the Senate before we confirm any nominee who will be tainted by this partisan, broken system. I call on each of us to work together to create a better system and to restore a bipartisan process on which we can build consensus to see us through these politically turbulent times. Until we restore a fair confirmation process, I will fight alongside the American people, who are demanding that we do our jobs that they elected us to do and with the seriousness required to get this right.
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