Nomination of Brett Kavanaugh

Floor Speech

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Mr. SCHUMER. Madam President, today the Senate Judiciary Committee continues its hearings on Judge Brett Kavanaugh's nomination to the Supreme Court. During yesterday's session, the American people got to see a nominee who refused to answer even the most basic, fundamental questions about his jurisprudence. They got to see a coverup of Judge Kavanaugh's records by himself and the Republican members of the committee.

When Judge Kavanaugh was asked specific questions about important issues that might someday come before a court, like women's reproductive freedom, he pleaded the need for independence and refused to answer. When Democratic Senators asked him hypothetical questions, instead, to avoid the possibility of the judge tipping his hand on a future case, then he said he wouldn't engage in hypotheticals--can't talk about specific cases, can't talk about general situations. He is ducking. He is hiding.

Judge Kavanaugh was asked how he might view the constitutionality of a Presidential subpoena arising from the Mueller probe. He said he could not tip his hand about a potential issue before the Court. Asked, then, about the constitutionality of a Presidential subpoena in general, he said he would not engage in a hypothetical. This is not a hypothetical issue; this is a fundamental constitutional issue.

There is no legal, ethical, or judicial reason for Judge Kavanaugh to avoid directly answering these questions unless he has something to hide. If the nominee can't answer questions about already decided cases, pending cases, or hypothetical cases, honestly, what is there left to talk about--charity work and basketball? Your favorite Federalist Paper?

How does the nominee expect the Senate and the public to evaluate him? He doesn't. He doesn't want it. His lifelong record as a hard- right warrior, if he talked about it and talked about his views, would rule him out, so he hides. That should not happen when it comes to nominating one of the most powerful positions in American society.

Let me just mention a few topics Judge Kavanaugh ducked.

Judge Kavanaugh would not expand or even revisit his views on Presidential power, where he already enumerated some in a Minnesota Law Review article. As Senator Klobuchar pointed out, he has already talked about them publicly. Why can't he elaborate? He has given his view on that one. Very bad view. Does he still hold it? Nobody knows.

Judge Kavanaugh could not assure the American people he would uphold the healthcare law, including protections for up to 130 million Americans with preexisting conditions, protections that are under threat right now by a lawsuit in Texas.

He could not assure the American people he would uphold the landmark decision in Roe v. Wade. He did repeat a view, which he reportedly shared with Senator Collins, that Roe v. Wade was settled precedent of the Court, but as Judge Kavanaugh himself points out in a 2003 email made public this morning, ``I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.'' That is an email from Brett Kavanaugh explaining that Roe vs. Wade is only settled law until a majority of the Court decides it isn't.

Since the time he wrote that email, one more Justice has joined the Court likely to overturn Roe. Judge Kavanaugh could be the deciding vote, and he will not even talk about it. That is an issue that affects all Americans. It is an issue that is so important to our jurisprudence. It is an absolute disgrace that a nominee for the Supreme Court refuses to talk about such a fundamental issue at the core of one of the great debates of American society and hides behind legal subterfuge, chicanery, so he doesn't have to speak--verbal chicanery.

I wonder why the Republican majority labeled the email about Roe v. Wade ``committee confidential'' until this morning. Was that email withheld for privacy reasons? No. National security reasons? No. It is ridiculous. The only explanation is that Judge Kavanaugh's record was being withheld for political reasons. They don't want the American people to see his view. If the American people knew that Judge Kavanaugh would decide against Roe v. Wade, as it seems this email feels he thinks he can, not bound by legal precedent if he changes his mind, if the Court changes its mind, they would rise up and say: Don't put him on the bench. So, instead, they hide the records.

My Republican colleagues set up an entire process to go around the nonpartisan National Archives, and it appears that the purpose was to hide documents that might shed real light on Judge Kavanaugh's actual record.

Now, finally, a little late in the game, the truth is coming out, but this is only the tip of the archives. These are the only documents that have slipped through the Republican filter. What else is hidden in Judge Kavanaugh's record? What else don't we know about the nominee? When did the Republican majority decide that Supreme Court nominees should be like icebergs, only a small portion showing, while the real nominee lurks unseen underwater and potentially dangerous?

So I strongly support and commend the Democrats on the Judiciary Committee in their efforts to make these confidential documents public. I stand with them. They did the right thing. The American people desire to see these documents.

In this case, committee confidential is a complete fiction, a subterfuge to avoid the American people knowing the real Brett Kavanaugh. The members of the committee should be praised, not chastised, for making these documents available. They did the right thing, and they had an obligation to do it. The Republican members of the committee should be ashamed of themselves--ashamed of themselves-- for participating in the administration and Judge Kavanaugh's coverup of his record. The Senate and the American people have a right to see the nominee's record, especially now, since the nominee appears unwilling to answer substantive questions about his views.

Whatever the rules may be of the Senate, they should not be twisted to ensure partisan advantage and prevent transparency and openness. They should not be twisted to cover up the truth rather than reveal it.

There is so much at stake in this Supreme Court nomination. Will Americans with preexisting conditions be able to get healthcare? Will women be able to make private personal choices about their medical care? Will LGBTQ Americans be able to marry whom they love? Will every American's constitutional right to vote be protected? Can the President of the United States be held accountable, especially at this time? We know how much we need that. Yet, at every turn, the Republican majority, the Trump administration, and Brett Kavanaugh have prevented the Senate and the American people from being truly able to vet a nominee who could affect the lives of Americans for a generation.

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