Climate Change
Floor Speech
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Mr. SCHUMER. First, let me thank my good friend--who did a great and outstanding job this morning on the Judiciary Committee--for his graciousness and thoughtfulness as always. I also thank my friend from New Mexico.
Mr. President, the Senate Judiciary Committee began hearings today on Judge Brett Kavanaugh's nomination to the Supreme Court. Democrats on the committee have pointed out that over 40,000 of Judge Kavanaugh's documents were handed over to the committee last night. It is the latest insult in what has been an insulting process for reviewing the nominee's record on the issues. It has not just been insulting to Democrats in the Senate but insulting to the Senate as a whole and insulting to the American people: We can jam this through, and it doesn't matter what you think and what you need to know.
More than 90 percent of the nominee's record has been shielded from public scrutiny. The chairman keeps claiming that there are several hundred thousand pages that have been made available. That is not the point. If only 7 percent of the documents are made available, the question is, What looms in the other 93 percent? It is the percentage that matters because we want to know what is hidden.
Furthermore, we have no knowledge of why we were given these documents and not given the vast bulk of the documents. What is the rule? Is there some objective rule finding? They should make it public. Why? They haven't, and the reason is simple. The obvious conclusion-- and we can't prove it because we don't have the documents--is that in the 93 percent, there are things they don't want to be made public. Otherwise, there would be a set system, and they would say: Here is why you are getting this, and here is why you are not getting that.
Again, it is not the number; it is the percentage. Almost everything the Republicans requested with Elena Kagan and Sotomayor when they were in the minority--in our position now--was granted. Very little of what we have requested has been granted. So the question looms: What are they hiding?
I commend my colleagues, sincerely and strongly, for standing up and raising these issues this morning. The Judiciary Committee members were lending their voices to a large and growing chorus of people out in America who are deeply concerned about how this process has been run. Every member of the Judiciary Committee was eloquent and forceful in their clarifying of just how far the Republicans have gone to keep Judge Kavanaugh's record a secret. Here, for the highest Court in the land--which has huge power over every one of our lives in many different ways--we are hiding what he really thinks. Maybe it is because they don't want the American people to know what he really thinks.
Nonetheless, the Judiciary Committee proceedings are going forward even though the Republican majority has taken great pains to shield a great bulk of Kavanaugh's record from the American public. Since they are in the majority, they can do this against the will of all of the Democrats and of, probably, much of the American people, but it is so wrong. Let's review what we already know about this nominee.
For the bulk of his career, Brett Kavanaugh has been a loyal Republican foot soldier who has consistently found himself near the center of the most heated, partisan legal fights of the past two decades. From the Starr report to Bush v. Gore and through the myriad controversies of the Bush White House, Brett Kavanaugh was front and center in representing the political interests of the Republicans. His service as a partisan warrior was rewarded with a judgeship, wherein he immediately began to establish a jurisprudence far outside the judicial mainstream.
As a judge, he ruled against commonsense gun safety measures. He ruled against commonsense environmental protections. He consistently ruled against the rulemaking powers of independent agencies. He went so far as to label the CFPB, the Consumer Financial Protection Bureau, unconstitutional, and he has praised the dissents in both Roe and Casey, which are two landmark cases that established a woman's right to privacy with respect to her medical decisions.
Remember--we can't forget--Brett Kavanaugh was selected from a preapproved list of candidates that had been vetted by the Federalist Society and the Heritage Foundation--two hard-right groups that are dedicated to the destruction of our healthcare law and the repeal of Roe v. Wade. He was selected by a President who explicitly promised to pick judges who would do those two things exactly.
Unlike with former nominees, Brett Kavanaugh has the special burden of explaining his views on these crucial issues. The President didn't just say: I am going to choose the best legal mind available. He said: I am going to choose someone who will repeal Roe. He said: I am going to choose someone who will overturn many of the healthcare protections that we have, as in the ACA. So he has a special obligation.
When I interviewed him in my office, he ducked. I asked him if he believed Planned Parenthood v. Casey was correctly decided, not whether it were precedent. That doesn't matter. Precedents change. Supreme Court Justices do it. I asked him whether it was correctly decided. He refused to say. He refused to say whether any restriction on a woman's reproductive freedom constituted an undue burden. There was nothing that I heard from Judge Kavanaugh in our interview to dispel the presumption that has been created by President Trump's litmus test that a Justice Kavanaugh would vote to overturn Roe and protections for Americans with preexisting conditions.
Judge Kavanaugh will, no doubt, refuse to answer these important questions in the committee hearings as well. We are not going to get clear answers. That is what judicial nominees have been taught to do. Yet, given how he was chosen--in his coming from a preappointed list-- that makes, No. 1, his obfuscation even more troubling. No. 2, it makes the need for documents all the more compelling.
Another area of examination this week should be of Judge Kavanaugh's views on Executive power and accountability. During his time in the White House, it seems that Judge Kavanaugh developed an adulation for powers of the Presidency. He said that Presidents should not be subject to investigations of criminal or civil wrongdoing while in office. He said that a President can refuse to enforce any law that he deems unconstitutional even if a court has ruled otherwise. In our meeting, he refused to say that a President must comply with a duly issued subpoena. Judge Kavanaugh also wrote that Presidents should be able to hire and fire, at will, the heads of independent agencies. In Brett Kavanaugh's jurisprudence, the Executive of the United States is nearer a King than a coequal branch of government.
At a time when the President of the United States routinely tests the bounds of powers of his office, at a time when the President disdains and routinely disparages the rule of law, at a time when the President has been named as a coconspirator in a Federal criminal case, Brett Kavanaugh's views on Executive power are more than dangerous; they are disqualifying.
This week, the Judiciary Committee has the task of scrutinizing Kavanaugh. I would remind my colleagues there is no legal standard, rule, or logic that prohibits nominees from answering questions that don't involve immediate and specific cases that are or could become before the Court. I would remind my colleagues that indications of stare decisis and solemn promises to respect precedent have been called before the committee before and generally have little bearing, unfortunately, as to whether the nominee will abide by those principles on the bench.
Only a few months ago, Judge Gorsuch reminded us of that with his ruling in the Janus case, as Justice Roberts reminded us with his ruling in Citizens United. Justices will overturn decades of well-worn precedent if given the opportunity. The debate this week about the future of the Supreme Court may get wonky and technical, but what is at stake is not abstract. It is real; it is concrete for Americans whose lives, health, happiness, and freedoms are on the line at the Supreme Court. Closely divided decisions recently have meant that the difference between the ability to marry the person you love or not, to have your right to vote protected or not, to make personal choices about your healthcare or not are all at stake. Stakes in this nomination today could not be higher.
The need for openness and lack of secrecy is as high as it has ever been. The responsibility of the Judiciary Committee this week is to drill down and examine Judge Kavanaugh's views to the extent that he will share them and to point out those areas in which he fails to be forthcoming. The American people have a right to know who may become the deciding vote on issues ranging from women's reproductive rights, to civil rights, to labor rights, to voting rights, to LGBTQ rights, and more. I believe the Judiciary Committee's proceedings this week will reveal to the American people a nominee unfit for the job of Associate Justice.
Mr. President, there is one more issue--that of President Trump's unconscionable statement of politicizing the Justice Department. Yesterday, the President made the following statement:
Two long-running, Obama era investigations of two very popular Republican Congressmen were brought to a well- publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff. . . .
That is the President speaking. Yes, I think he spoke. He didn't tweet.
For so long, President Trump's actions have suggested that he views the Justice Department not as an independent law enforcement agency but as a tool to prosecute his enemies and protect himself and his friends. President Trump's statement yesterday comes right out and says it. Trump is chastising the Attorney General of the United States for enforcing the law--for announcing two indictments, backed up by ample evidence, because it may hurt members of his political party from winning elections. How outrageous is that?
So I say to President Trump: America is not some fiefdom in which the lord of the manor gets to decide who the law applies to and who it doesn't apply to. The beauty and the greatness of American democracy is that we are all equal in the eyes of the law--Republicans, Democrats, and, yes, even Presidents.
President Trump, you do not seem to understand or choose not to understand the basic principles of the rule of law that have governed our great Nation since its founding.
President Trump seems to think he is above the law, so it is no wonder he selected Judge Kavanaugh--who believes sitting Presidents should not be investigated--to sit on a potential jury on the Mueller probe.
Again, I thank my colleagues for their courtesy. I might note that I am very proud of the job the Senator from Rhode Island and all of his colleagues on the Judiciary Committee did this morning.
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