Nomination of Brett Kavanaugh

Floor Speech

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Mr. MARKEY. Madam President, I rise to speak in opposition to the nomination of Judge Brett Kavanaugh to serve as an Associate Justice on the U.S. Supreme Court.

The vacancy that Judge Kavanaugh seeks to fill is not an ordinary one. The retirement of Supreme Court Justice Anthony Kennedy created one of the most consequential vacancies on the High Court that this country has ever seen. There is a reason why scholars and pundits refer to the Supreme Court of the last 30 years as the ``Kennedy Court.'' His influence on so many important cases cannot be overstated.

Throughout his three decades on the Supreme Court, Justice Kennedy was often the swing vote in decisions decided 5 to 4 on a divided Bench. After John Roberts became Chief Justice in 2005, Justice Kennedy was the deciding vote in 92 percent of all cases decided by one vote. Let me repeat that. Of the 203 cases decided by a 5-to-4 vote in the John Roberts era, Justice Kennedy was the deciding vote in 186 of them--92 percent.

The Justice who succeeds Anthony Kennedy on the Supreme Court will have the opportunity to leave a deep and lasting mark on issues of the highest magnitude. Any nominee to the Supreme Court carries significance, but a nominee at this moment, for this seat, will play a defining role in our Nation's history.

The constitutional obligation conferred on Senators to provide their advice and consent on a Supreme Court nomination is a powerful, a serious, and a sacred responsibility. As Senators, we are duty-bound to determine whether Brett Kavanaugh is worthy of our trust. Even before President Trump nominated Brett Kavanaugh to the Supreme Court, there were serious concerns that his views were too extreme, that he lacked the independence we seek in our judges, and that he had a difficult relationship with the truth.

During the confirmation process for his current position on the U.S. Court of Appeals for the DC Circuit, Brett Kavanaugh made misleading statements under oath to the Senate Judiciary Committee on issues such as the Bush administration's policies on torture, his involvement in the nominations of controversial judges, and his knowledge about the theft of emails from the Democratic staff of the Senate Judiciary Committee.

Then, when it came time to fill Justice Kennedy's seat on the Supreme Court, Judge Kavanaugh was hand-picked by the Federalist Society--an ultraconservative group that is dedicated to installing far-right judges on our Federal bench. The Federalist Society promised Donald Trump that the judges on that list would support his partisan agenda if they were elevated to the Supreme Court. Donald Trump repeatedly assured his supporters about that agenda and promised them that he would only appoint Justices to the Supreme Court who would overturn Roe v. Wade and the Affordable Care Act. Let me restate that. Donald Trump promised that he would only appoint Justices to the Supreme Court who would overturn Roe v. Wade and the Affordable Care Act.

As to Brett Kavanaugh, the promises that Donald Trump and the Federalist Society made were backed up by Kavanaugh's judicial record on the DC Circuit.

As a Federal appeals court judge, Brett Kavanaugh wrote a dissenting opinion that questioned Congress's authority to enact the Affordable Care Act and suggested that the President could choose not to enforce it.

Judge Kavanaugh would have blocked a lower court's order allowing an undocumented minor to safely and legally terminate her pregnancy.

Judge Kavanaugh supported employers who sought to deny their employees access to contraception.

Judge Kavanaugh wrote an opinion that unless guns were regulated either at the time the Constitution was written or traditionally throughout history, they could not be regulated now. He would have struck down the District of Columbia's assault weapons ban because assault weapons have not historically been banned.

How about 3D-downloaded guns? That was not in the original Constitution. There was no 3D gun. Are we bound by what the Founding Fathers thought about weapons or can we ourselves make a determination here? He says no. It goes back to the time when the Constitution was drafted or throughout history but not today. That is just wrong.

Judge Kavanaugh has consistently opposed strong environmental protections and sought to restrict the authority of the Environmental Protection Agency. He also authored a dissenting opinion that argued that net neutrality rules were unconstitutional.

Time and again, on all of these issues--access to healthcare, gun control, consumer and environmental protections, and a free and open internet--Judge Kavanaugh has been a rubberstamp for a far-rightwing agenda. Yet that is not the only reason President Trump chose Brett Kavanaugh for the Supreme Court.

Judge Kavanaugh, who once served as Ken Starr's top deputy in the investigation of President Clinton, has since written that a sitting President should not be investigated for allegations of wrongdoing, should not be indicted or tried while in office, and should not even have to participate in civil legal proceedings until he leaves office. This is a convenient reversal of a pro-investigation and pro-litigation position that Kavanaugh held when a Democrat was in the White House. It is a reversal that synchronizes very well with Donald Trump's interests.

With Donald Trump under criminal investigation and with legal issues arising from that investigation potentially headed to the Supreme Court and with Brett Kavanaugh's having articulated strong views about shielding a sitting President from criminal proceedings, his confirmation is a constitutional crisis in the making. It is no coincidence that a President who fears the long arm of the law would nominate to the Supreme Court a jurist who would keep him from its reach.

Brett Kavanaugh has left a lengthy paper trail on all of these hot- button issues. That is why President Trump and his allies closed ranks and fought to keep so much of his record hidden from the American public. Despite repeated requests from Senate Democrats for documents relating to Brett Kavanaugh's service in the Bush White House, we--the Members of the Senate--have only seen 7 percent of those records that were, in fact, part of Kavanaugh's record inside the Bush White House, and only about half of that 7 percent are available to the public.

To put it another way, no Senator has seen 93 percent of all of Brett Kavanaugh's work in the White House. That work includes reflections on his views on the detention of enemy combatants, interrogation techniques and the use of torture, warrantless wiretapping, and the banning of same-sex marriage.

We on the Senate floor--and as we cast a vote today--do not have access to any of those documents that he worked on while he served in the Bush White House. How can we give advice before we vote on consent if we can't even gain access to the documents which he himself handled in the Bush White House and which he himself may have commented upon during the time they were being considered? We have no access to it. Ninety-three percent of all of the documents are not available to the Members of the Senate. Even though there are reams of paper detailing Brett Kavanaugh's involvement in these issues, his record on them remains a blank slate for Senators.

To summarize, even before the events of the last 3 weeks, we knew a lot of things about Brett Kavanaugh and yet, at the same time, shockingly little about Brett Kavanaugh. We knew we had a blatantly partisan person, but as you are trying to be nominated for the Supreme Court, we--the Senators and the American public--have a right to know what you think about issues. That is why every preceding nominee had to provide all of the documentation, with the notable exception of Brett Kavanaugh, who is denying us 93 percent.

This is happening with the acquiescence of the Trump White House and the Republican leadership here in the Senate. No Member of the Senate, Democrat or Republican, knows what is in the 93 percent of all of the papers. No one knows. It is a deliberate coverup of all of those documents so that we cannot know, so that the public cannot know. So we begin with that--the 93 percent of all of his records in the White House that are not accessible to us even though this nominee is given to us from this White House. We know a lot, but there is much, much more that we do not know.

We knew that we had a Federalist Society-approved nominee who would overturn Roe and the Affordable Care Act. We knew we had a President with a vested interest in finding a future Justice who could shield him from legal jeopardy, and we knew that there was much else we didn't know because that 93 percent was being hidden from public scrutiny. All of these reasons alone were enough to warrant a ``no'' vote on Judge Kavanaugh's lifetime appointment to the Supreme Court.

Then we learned of Dr. Christine Blasey Ford. Dr. Blasey Ford bravely came forward to tell us about the Brett Kavanaugh she knew. She came forward to share a deeply personal and traumatic experience of sexual assault. Dr. Blasey Ford did not want to share this painful story with the American public. She did not want to have her life upturned and picked apart. She did not want to subject her family to harassment and death threats. She did not want the President of the United States to shamefully and appallingly mock her at a political rally, but she came forward anyway. She came forward because she believed it was her civic duty to do so.

From the beginning, it was clear that her allegations were credible. She had recounted the painful experiences to her husband, in couples' counseling, years before Brett Kavanaugh was ever considered for the Supreme Court--something her therapist's contemporaneous notes corroborate. Three days before Brett Kavanaugh was nominated, while his name was publicly in play for the Supreme Court, Dr. Blasey Ford reached out to her Congresswoman in the hope that she could help inform President Trump as he decided on a nominee to fill Justice Kennedy's seat.

Dr. Blasey Ford took a polygraph test to prove that she was truthful, and she only shared her story publicly when reporters made it untenable to remain silent. Every detail shows Dr. Blasey Ford to be consistent, honest, and trustworthy. As hard as it was for her, Dr. Ford did our country an invaluable service by coming forward, testifying before the Senate, and telling the entire country her story.

Her testimony was powerful. It was heart-wrenching. When she spoke of her strongest memory of the assault--the laughter of the two boys as Brett Kavanaugh pinned her down--we felt her profound pain. When she spoke of Brett Kavanaugh's covering her mouth as she tried to scream, we felt her visceral fear. For countless women and men across the country whose experiences mirror that of Dr. Blasey Ford's, this testimony was their voice. For many of them, Dr. Blasey Ford's bravery gave them the courage to come forward with their own stories of sexual assault.

On the day of her testimony, my office received over 100 calls from survivors who courageously shared with my staff the painful details of their own assaults. Many of these men and women were telling their stories for the first time. Women have stopped me at the airport and on the street to tell me their stories.

Dr. Ford has given them the counsel to come forward so they can share their own experiences. Dr. Ford's courage opened a wellspring of emotion. I applaud her. We owe her a deep debt of gratitude. She was a role model for all of us, for the children of the country, and for future generations. She has given new meaning to what it means to be a good citizen.

Dr. Ford was compelling. She was convincing. She was courageous. She had nothing to gain and everything to lose. No reasonable, open-minded person could have listened to Dr. Blasey Ford and concluded anything other than that she is telling the truth about what happened between her and Brett Kavanaugh.

Yet there are two sides to every story. What about the other side of the story? What did Judge Brett Kavanaugh have to say about it after we heard Dr. Ford testify before the Judiciary Committee? It was Judge Kavanaugh's turn. What did we hear from Judge Kavanaugh? We heard anger. We heard belligerence. We heard evasiveness. We heard disrespect. Judge Kavanaugh's testimony before the Judiciary Committee reinforced the old concerns about his credibility. He gave answers about his behavior in high school, about supposed drinking games, and about his yearbook page that simply defy credulity. Recent reports from those who knew him in high school and college contradict his assertions that he was never aggressive or belligerent after drinking or that the terms he used in his yearbook had the meanings as ascribed to them before the Judiciary Committee.

In fact, in a letter Judge Kavanaugh himself wrote in 1983 that surfaced after his testimony, he described himself and his friends as ``loud, obnoxious drunks.''

The point is not that Brett Kavanaugh engaged in questionable behavior in high school. The point is he was not honest about it with the Judiciary Committee under oath at his confirmation hearing. The point is he was not credible. The point is he misled the Judiciary Committee. As my colleagues framed the issue yesterday, the point is that if we are assessing whether Dr. Ford's allegations satisfy a more- likely-than-not standard, they do and do so easily. The point is that Judge Kavanaugh showed an alarming lack of judicial temperament in addressing those issues.

Don't take my word for it. Consider what Judge Brett Kavanaugh has to say. What would Judge Brett Kavanaugh say about Supreme Court nominee Brett Kavanaugh's appearance before the Judiciary Committee?

Well, in 2015, Judge Brett Kavanaugh gave a speech at the Catholic University on what makes a good judge. He set forth litmus tests for a good judge--the characteristics and qualities he or she must have. Here is what he said then. Brett Kavanaugh said: ``First and obviously, a good judge, like a good umpire, cannot act as a partisan.'' He went on to say that it is very important for a judge ``to avoid any semblance of that partisanship, that political background.'' Yet in his opening statement to the Judiciary Committee--his opening statement--Judge Kavanaugh launched into a nakedly partisan screed. He blamed Democratic Senators for a conspiracy to destroy his nomination. He called the recent allegations against him a part of some ``revenge of the Clintons.'' He told the Democratic Senators on the dais that ``what goes around comes around,'' making an unvarnished political threat. That was in his opening statement to the Judiciary Committee. Judge Kavanaugh failed his own test of partisanship.

Next, in his 2015 Catholic University speech, Judge Kavanaugh said: ``[I]t is critical to have the proper demeanor.'' Judge Kavanaugh added that it is important for judges ``to keep our emotions in check, and be calm against the storm.''

Anyone watching Judge Kavanaugh's testimony before the Judiciary Committee saw just the opposite. Judge Kavanaugh was angry, emotional, and belligerent. What we saw was a performance we would expect from a judge on the ``People's Court,'' not on the Supreme Court of the United States. Judge Kavanaugh failed his own test for judicial temperament.

Finally, in his 2015 Catholic University speech, Judge Kavanaugh counseled that a good judge ``must demonstrate civility.'' Yet in his appearance before the Judiciary Committee, Judge Kavanaugh impugned the motives of Democratic Senators. He was rude. He interrupted questions. He went so far as to ask my colleague Senator Klobuchar whether she ever blacked out from drinking--an affront by a nominee who was there to provide answers, not to ask questions. Brett Kavanaugh failed his own test of civility.

That is why more than 2,400 law professors have written to the Senate and told us ``Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest Court of this land.''

That is why former Supreme Court Justice John Paul Stevens took the extraordinary step of stating publicly that Judge Kavanaugh's performance at his qualification hearing disqualified him from serving on the Supreme Court.

Let me say this: Brett Kavanaugh is not entitled to a job on the Supreme Court--no one is--but the American people are entitled to the truth. President Trump and the Senate Republicans have kept it from them.

The FBI background investigation that was reopened after Dr. Blasey Ford's testimony was not a real investigation. It was a figleaf to cover for Republicans with concerns about Judge Kavanaugh.

The FBI interviewed only nine witnesses. Unbelievably, Dr. Blasey Ford and Judge Kavanaugh were not among the people interviewed by the FBI. The FBI was forced to ignore countless leaks or not to follow up on them. Then Senators were given 1 hour to review the results of the so-called investigation.

I was locked in a secure room with 17 Senators, and there was one copy of the FBI report for all of us. It was like a bad game show, where Senators had to compete with each other to get pages of the report from the hands of their colleagues, read them, and digest them before the clock ran out on the 1 hour we were given to read the report. It was the single most absurd thing I have experienced in my time in Congress.

Sadly, it was entirely consistent with the manner in which the Senate Republicans have handled this nomination throughout the confirmation process. That is because the White House and the Senate Republicans weren't interested in getting to the truth. They were interested in covering it up and ramming through Judge Kavanaugh's nomination.

They have gone so far as to stoke claims that Dr. Ford's supporters have an ulterior motive and that Dr. Ford is being used for political reasons. It seems that many of my Republican colleagues just cannot bring themselves to believe a woman's account of a sexual assault and that other women and men would rise up in support of her. It is shameful that people think this is what has occurred. It is just shameful.

Article III of the Constitution says that a Supreme Court Justice ``shall hold their Office during good behavior.'' That is the standard after someone serves on the Supreme Court. What this body has been unwilling to do is to actually determine whether Judge Kavanaugh has engaged in good behavior before he is put on the Court. They have truncated that process. They have made it impossible for us to get to the bottom of that truth.

The Republicans control this Chamber. They control the schedule. They have rushed to judgment on Brett Kavanaugh in order to confirm him before the midterm elections.

They have 51 votes to confirm anyone they want. The Democrats do not control this Chamber. The Republicans have 51 votes. If they wanted to bring in someone else who did not have these problems, they could have done it anytime. They could do it today.

Some say we have no power to stop the Republicans from confirming a Justice this year--no power. That is absolutely untrue. What the Republicans have in their power, however, is to nominate someone--even today--who is worthy of serving on the Supreme Court.

We know they want a Supreme Court Justice who would overturn Roe v. Wade. We know they want a Supreme Court Justice who will take away health insurance coverage for preexisting conditions. We know they want a Justice who will oppose any gun control, and we know they want a Supreme Court Justice who will not question Donald Trump or let him be investigated.

If Brett Kavanaugh is confirmed, it will further harm a Supreme Court that has never fully recovered from Bush v. Gore--the partisan decision that threw the 2000 Presidential election to George W. Bush. It will further harm a Supreme Court that has not recovered from Judge Neil Gorsuch joining the Court after Senate Republicans stole that seat from Judge Merrick Garland. Confirming Judge Kavanaugh to the Supreme Court will further erode and undermine the Court's legitimacy and continue to diminish the American people's trust in it.

The Supreme Court of the United States deserves better than Brett Kavanaugh. The American people deserve better. Our democracy deserves better.

I will therefore vote no on the nomination of Judge Kavanaugh to serve as an Associate Justice on the Supreme Court of the United States, and I urge my colleagues to vote no as well.

Thank you.

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