Nomination of Brett Kavanaugh

Floor Speech

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Ms. SMITH. Mr. President, I thank the Senator from New York for her terrific words this morning. I am so grateful to be here with her today.

I rise today to express my opposition to the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States. From the time his nomination was announced, it has been clear to me what type of Supreme Court Justice Judge Kavanaugh would be, and I firmly believe he is not the Justice our country needs. Appointing Judge Kavanaugh to the Supreme Court would be bad for Minnesotans and bad for our country.

First this morning, I would like to speak about the aspects of Judge Kavanaugh's record and scholarship that I find most troubling--his decisions on women's freedoms, the environment, voting rights, and his views on Executive power. Next, I would like to discuss why Judge Kavanaugh's temperament and credibility demonstrate that he does not merit the trust and confidence necessary for the Senate to appoint him to a lifelong appointment to our Nation's highest Court.

I have been opposed to Judge Kavanaugh's nomination since the beginning because his record shows that he is far outside the mainstream of legal thought on issues that matter to Minnesotans, such as women's freedoms, healthcare, voting rights, and the environment.

If you remember, we knew quite a lot about Judge Kavanaugh before he was even formally named as President Trump's Supreme Court nominee. This is because Judge Kavanaugh's name was chosen from a short list prepared by the far-right Federalist Society and Heritage Foundation. This list contained 25 potential nominees who were selected because they could be trusted to fulfill President Trump's repeated campaign pledge to appoint Justices who would ``automatically'' overturn Roe v. Wade and dismantle the Affordable Care Act.

While we can assume that nominees drawn from that short list have convinced the Federalist Society and the Heritage Foundation that they passed these two litmus tests, Judge Kavanaugh has a judicial record to prove it. Therefore, from the time his name first appeared on President Trump's short list, we knew what kind of Justice he would be--one that is out of step with the American people, the legal academy, and the clear dictates of our Constitution, which promise liberty and equality for all and not just for the privileged few. This is not what our country needs, especially now.

A review of Judge Kavanaugh's record shows it includes restricting women's freedoms, supporting efforts to suppress the votes of minorities and low-income people, reliably siding with polluters at the expense of the public's health and allowing unlimited dark money to influence our elections. I find this record deeply concerning. It is evidence that if confirmed, Judge Kavanaugh would take this country backward, reversing course on decades of hard-won progress.

So my assessment of his judicial record is enough for me to conclude that Judge Kavanaugh is not the type of jurist Minnesotans need on the Supreme Court. In this time of unprecedented political polarization, our country needs confidence in knowing that the Supreme Court can fulfill the constitutional promise that we are all equal before the law.

That is why I had hoped President Trump would nominate a consensus Justice--someone dedicated to protecting the rights of all Americans. Yet it is clear Judge Kavanaugh will not be that Justice. So I would like to talk in more depth about three of the reasons it is clear to me that based on his judicial record, Judge Kavanaugh is more dedicated to advancing a far-right partisan policy agenda than in defending the equal rights of all Americans.

First, a judge who would let the government restrict women's access to reproductive healthcare is not someone who is dedicated to protecting the privacy, dignity, and freedom of all women.

Last year, Judge Kavanaugh wrote a dissent in a case called Garza v. Hargan, in which he sided with the Trump administration in its attempt to prevent a young immigrant woman from accessing an abortion. Even though this young woman had complied with every State legal requirement, Judge Kavanaugh argued that the Federal Government could, nonetheless, prevent her from obtaining an abortion until she could be placed with a sponsor. That process took weeks and jeopardized her ability to obtain a procedure at all. Yet, in his dissent, Judge Kavanaugh concluded that this government-caused delay did not constitute an undue burden on this woman's constitutional right to make her own decisions about her reproductive healthcare.

When Senator Durbin questioned him about this case before the Senate Judiciary Committee, Judge Kavanaugh repeated his familiar refrain that he was just following precedent, but the majority of his fellow judges on the DC Circuit Court of Appeals read the Supreme Court's precedent on this issue very differently, as do I.

In Planned Parenthood v. Casey, the Supreme Court firmly established that our constitutional right to privacy protects women from ``unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.'' This has come to be known as the undue burden standard. It means the government is prohibited from making laws, rules, or policies that have the ``purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.''

Yet Judge Kavanaugh saw no problem with forcing this young woman to wait 9 weeks to obtain the medical care she needed--the medical care a Texas judge agreed she was competent to request and entitled to obtain. Instead, in arguing that this delay was justified, Judge Kavanaugh implied that this young woman was incapable of making her own medical decisions because she did not have her ``family and friends to rely on'' in her decision-making process.

I trust women to make these decisions for themselves and their families, and I am here to tell you that women do not need the government looking over their shoulders in the examination room and telling them what they can and cannot do. As the only Senator who has ever worked at Planned Parenthood, I know that when women do not have the freedom to make their own choices about their reproductive healthcare, they lose the freedom to direct their own lives--their personal lives, their families, their economic security.

I believe we deserve a Supreme Court Justice who is dedicated to protecting a woman's right to make her own private decisions about her reproductive healthcare. Yet, based on his dissent in the Garza case and the President's repeated promises to nominate only anti-choice Justices, it is clear that if confirmed, Judge Kavanaugh would continue to chip away at this fundamental freedom.

The second reason it is clear Judge Kavanaugh is not dedicated to protecting all Americans equally is, he has repeatedly ruled against restrictions on pollutants that threaten our health. He has not been dedicated to protecting the air we breathe, the water we drink, and the land we share.

In a 2012 case, Judge Kavanaugh authored an opinion that found the Environmental Protection Agency had exceeded its authority when the Agency told upwind States to, literally, stop blowing smoke onto their downwind neighbors. Then, in 2014, Judge Kavanaugh objected to using the Clean Air Act to establish programs to reduce mercury--a potent toxin that harms developing brains--and greenhouse gases.

Judge Kavanaugh's narrow view of the Clean Air Act could be extremely harmful to our efforts in addressing climate change by regulating greenhouse gases. Although the Act does not mention greenhouse gases by name, the Supreme Court has held that the EPA does have the power to regulate them. In fact, the Court held that the act requires the EPA to address any air pollutants that are found to endanger human health. I agree with the Supreme Court as do most Americans. An April 2018 poll found that 75 percent of Americans support even stricter limits on smog.

Judge Kavanaugh claims to believe what virtually every scientist tells us; that manmade climate change is real, and it is an enormous threat to our planet and our health. Yet he still seems to have a problem with allowing the government to take action to protect us from new pollutants which threaten our health.

At a time when President Trump is attempting to backpedal on every commitment our country has made toward fighting global warming, it is more imperative than ever that we have a Supreme Court Justice who believes in our collective right to protect and preserve our planet.

President Trump is pulling out of the Paris climate agreement. He is pulling back the Clean Power Plan. He is looking for ways to force utilities to keep expensive coal plants online, a move that would cost Americans billions of dollars in increased electricity bills. All of these moves will hurt the environment and harm the health of the American people, and in each case, Judge Kavanaugh's record shows he is likely to act as an enabler.

The third area in which Judge Kavanaugh has demonstrated that he is likely to serve the interests of a far-right partisan agenda rather than the interests of our democracy is with regard to voting rights.

A judge who upholds a State law that makes it harder for minorities and low-income people to vote is not someone who is going to be dedicated to protecting our most fundamental democratic right--the right to vote. If Judge Kavanaugh is confirmed to the Supreme Court, there is no doubt he will help his friends in far-right special interest groups--the same groups that recommended his nomination in the first place--to continue their coordinated campaign to make it harder for millions of Americans to vote.

These groups know they can count on Judge Kavanaugh to uphold laws that make it harder rather than easier for people to vote. These groups have helped Republican-controlled State legislatures pass laws that are designed to create obstacles at every step of the voting process, making it more difficult to register to vote, to cast your ballot, and to have your vote counted equally.

As a judge on the DC Circuit Court of Appeals, Judge Kavanaugh has a record of supporting these laws, including laws that perpetuate voting discrimination, particularly against communities of color. In 2012, he wrote an opinion for a three-judge panel that upheld South Carolina's stringent voter ID law even though the Department of Justice had determined the law would violate the Voting Rights Act of 1965.

I am proud to represent the State with the highest voter turnout in the Nation. Minnesotans understand that when the right to vote is restricted, it undermines the very foundation of our democracy. Our voting laws reflect our beliefs about who should have a voice in this country, and I am profoundly concerned that his record shows that Judge Kavanaugh will allow States to pass laws that will make it harder for communities of color and low-income people to make their voices heard.

Minnesotans and all Americans deserve a Supreme Court Justice who is committed to making our democracy more representative so we remain a government for the people and not just some of the people, and it is clear Judge Kavanaugh would not be that Justice.

Judge Kavanaugh's record as a judge on the DC Circuit Court of Appeals and the process that led to his nomination were enough to convince me that he should not be elevated to the Supreme Court. His decisions and opinions demonstrate that he should not be entrusted with protecting the hard-won rights and freedoms of all Americans.

It is troubling enough that Judge Kavanaugh could be the deciding vote on cases that affect every aspect of life in America--cases that determine whom you can marry, whether you can access healthcare, or your rights in the workplace. I am also extremely concerned about Judge Kavanaugh's commitment to fulfilling the other sacred responsibility of our Supreme Court--to be a check against legislative and executive overreach as a coequal branch of our government.

The very design of our system of constitutional checks and balances demonstrates that no one, not even our elected leaders, is above the law. This is a fundamental American principle, but Judge Kavanaugh has a dangerously expansive view of Executive power that is well outside the mainstream of current legal thought.

He has repeatedly argued that Presidents, effectively, are above the law. His writings and speeches suggest he believes a sitting President cannot be indicted or prosecuted. He has argued that Presidents can only be investigated by Congress, which raises questions about his views of the constitutionality of the ongoing Mueller investigation. Perhaps what is the most troubling is, he has claimed Presidents don't have to enforce laws they believe are unconstitutional.

Kavanaugh's expansive views of the limits of Executive power suggest he would abdicate the solemn responsibility of the Court to both hold the executive branch accountable to its constitutional duties and to prevent it from engaging in constitutional excesses.

The need for the other branches of government to be a strong check against an errant executive has, arguably, never been greater. Yet during his confirmation process, Judge Kavanaugh refused to answer even the most basic questions about his views on Executive power and accountability. He also refused to answer Senators' questions about topics like whether he believes a President can be required to respond to a subpoena or whether a President can pardon himself or pardon others in exchange for their silence.

It is easy to see why President Trump would want a Supreme Court nominee who believes a President is above the law. It is not easy to see how this body can consider confirming him without learning more about whether he is prepared to help the Court fulfill its duty as an independent, coequal branch of government.

For all of these reasons, I believe Judge Kavanaugh's jurisprudence and scholarship provide a more than sufficient basis for opposing his nomination.

Now I turn to the Senate Judiciary Committee hearings last Thursday.

I was grateful for Dr. Blasey Ford's powerful testimony before the Senate Judiciary Committee and to the American public. Since her testimony, my office has received dozens of letters from survivors of sexual assault, some of whom are telling their stories for the first time. In reading these letters, I have been heartbroken by their trauma and pain, which we know is suffered by too many in this country. Many of these survivors were victimized by people they knew and trusted. Some were too young to have words to even describe their assaults. Some tried to come forward and report their abuses but gave up when they faced doubt and shame and suspicion from those who should have helped but didn't. All of them deserve to have their stories taken seriously and to be fully investigated.

So I want to acknowledge that this is an important, historic moment-- one that shows us the cultural forces that seek to shame and silence survivors of sexual violence are shifting and that survivors and those who love them and those who stand with them are watching this process very carefully.

In stark contrast to the clarity and conviction of Dr. Blasey Ford's testimony, to me, Judge Kavanaugh's performance raised deep questions about his temperament and credibility. Judge Kavanaugh showed us he has an injudicious temperament, a powerful sense of entitlement, and a partisan perspective that was right out there for everyone to see. He showed us who he is--and I believe him--and I firmly believe these characteristics disqualify him from elevation to the Supreme Court.

Judge Kavanaugh showed us he thinks his professional qualifications exempt him from personal scrutiny, but an appointment to the Supreme Court requires more than a pristine legal resume; it requires a strength of character, which we now know from his own testimony that Judge Kavanaugh does not possess.

His impulse, when challenged, is to lash out with conspiratorial, partisan invective--unbecoming of any nominee to the Federal Bench. His behavior, which, incidentally, he would never allow from a litigant in his own courtroom, was angry, disrespectful, even ranting.

I was particularly struck by the disrespect he showed to my good colleague and friend, the senior Senator from Minnesota, Amy Klobuchar. When she asked Judge Kavanaugh about his history with alcohol, he became defensive; refused to answer her question; and actually turned the question back at her. To my mind, this showed a lack of respect not just for Senator Klobuchar but for the whole Senate and our constitutional duty to provide advice and consent to the President's nominees.

I think all of my colleagues should be deeply disturbed by the nominee's angry and disrespectful behavior. I urge all of my colleagues to ask themselves whether they believe Judge Kavanaugh possesses the steady, sensible temperament we should expect from all of our Federal judges but, most especially, from those on the highest Court in the land. I believe Judge Kavanaugh showed us to be incapable of being an impartial and nonpartisan judge when he said he holds Democrats responsible for an ``orchestrated political hit.''

The Framers designed the Supreme Court to be above the partisan fray. In his testimony on Thursday, Judge Kavanaugh abandoned any pretense that he could live up to his own description of a good judge, one that is ``an umpire--a neutral and impartial arbiter who favors no litigant or policy.''

In his initial testimony before the Judiciary Committee, Kavanaugh warned:

The Supreme Court must never, never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle.

If this body elevates Judge Kavanaugh to the Supreme Court after his nakedly partisan diatribe on Thursday, how can the American people believe the Court's decisions are anything other than arbitrary and partisan, and the work of ideologues? Judge Kavanaugh's shocking behavior last Thursday bears directly on the legitimacy of the Supreme Court--our third coequal branch of government.

Over the next few years, the Supreme Court will be called upon to decide important legal questions that will affect the lives of all Americans. Given Judge Kavanaugh's performance last Thursday, the American people will have to wonder: Does Justice Kavanaugh see the Supreme Court as the ultimate venue for providing justice or as a tool for advancing and securing a partisan agenda?

Not only did Judge Kavanaugh's performance last Thursday give us reason to doubt whether he has the necessary judicial temperament to serve on the Supreme Court, but his sworn testimony also raised deep questions about his credibility.

Judge Kavanaugh showed us that he is willing to be misleading and evasive when it serves his interests and when he thinks he will be protected from the consequences of those lies.

When questioned by my colleagues Senator Klobuchar and Senator Whitehouse, Judge Kavanaugh provided answers that were obviously disingenuous, if he answered at all. I am concerned that the way he characterized his behavior during his high school years was less than fully truthful. His apparent lack of candor with the Senate Judiciary Committee should be deeply concerning to all of us in the Senate and to the American public.

Unfortunately, I am not permitted to speak publicly about the details of the FBI's supplemental background investigation of Judge Kavanaugh, but after reviewing these materials, I have even deeper concerns about Judge Kavanaugh's lack of candor. Frankly, the materials raise more questions than they answer. That is part of why I believe the supplemental investigation was woefully inadequate.

Some of my colleagues have been saying that this is not a criminal trial but a job interview. I agree that Judge Kavanaugh is not on trial here, but this isn't any regular job interview either.

The confirmation process allows for the Senate to determine whether Judge Kavanaugh deserves the public's faith as he asks to be entrusted with safeguarding our constitutional and human rights. He is asking for a lifetime appointment that will allow him to affect the lives and freedoms of a whole generation of Americans. I believe Judge Kavanaugh's record and his character preclude him from being worthy of that public faith.

I urge my colleagues to join me in opposing Judge Kavanaugh's nomination to the Supreme Court.

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