Nomination of Brett Kavanaugh

Floor Speech

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Ms. CANTWELL. Mr. President, I come and join my colleague from Oregon on the floor this evening and thank him very much for his comments and hard-fought efforts to try to illuminate the issues that are before the American people in this nomination that we are going to be voting on.

As nightfall does not come at once, neither does oppression. In both instances, there is a twilight . . . and it is in such twilight that we all must be most aware of change in the air--however slight--lest we become unwitting victims of the darkness.

Those aren't my words; those are the words of the late Supreme Court Justice William O. Douglas. Yes, that is right, I quoted William O. Douglas--not because he was from Yakima, WA, via Maine, originally, but because I wanted to bring up the rights of Americans that could be undermined by the confirmation of Judge Kavanaugh to the Supreme Court. That is because for generations the U.S. Supreme Court has been an institution that affirmed rights of Americans and moved our country forward, especially when we needed it most.

In 1954, it made a landmark decision to end segregation of our schools and to rightly give access to equal education. In 1964, it recognized the right to privacy and the ability to access contraception. It is hard to imagine today, in this era, that we needed that fundamental right and that it had been previously blocked. Yet it was. In 2015, the Supreme Court upheld the fundamental rights of marriage for same-sex couples, holding that they had equal protection under the law.

Yes, these are rights that have been decided by our Court and have moved our country forward. So I became very concerned when President Trump nominated Judge Brett Kavanaugh to the Supreme Court because he was on a list of an organization that wanted to see the literal text of the statute over upholding the hard-won rights of all Americans.

When it comes to the rights of consumers--healthcare rights, environmental laws, privacy rights, labor rights--I want to know where a Supreme Court Justice is going to be in upholding those hard-won rights that Americans and our society have pushed forward for decades. In this case, he will be replacing a Justice who has been a key vote on many fundamental rights in America.

So I definitely express my opinion that I do not believe that Judge Kavanaugh will protect those hard-won rights. And my concern is that he does not have a judicial philosophy that is in the mainstream views of America. He has the most dissents of any judge on the DC Circuit. That is to say that he is dissenting from even the most conservative judges on that Court. He is still dissenting. So I don't find those views in the mainstream views of Americans.

Let's just take one example: healthcare. More than 3 million Washingtonians in my State have preexisting conditions, such as diabetes, heart disease, and asthma, and Americans don't want to be discriminated against because of their medical history.

More than 75 percent of Americans support the preexisting condition protections that have been put into law under the Affordable Care Act. These protections help keep them from having medical debt and uncompensated care. All of these issues are very important for us to continue to protect.

In 2011, Judge Kavanaugh refused to uphold the constitutionality of the Affordable Care Act, and he has criticized the Supreme Court's decision to uphold parts of that law. In his confirmation hearings, he refused to say whether these current protections for Americans are constitutional. His record suggests that he will not defend these protections or Congress's clear intent in writing them.

It is not just some theoretical issue. Today, these protections are being threatened in the courts. They are being threatened by a group of Republican attorneys general who are trying to get a Federal court in Texas to strike down these protections in the healthcare law, and the Justice Department has decided to join those States in asking the courts to strike down these preexisting condition protections. So this case is definitely working its way through the court system and could likely end up before the Supreme Court.

Some have suggested: Well, don't worry about that. Don't worry about that because Justice Roberts will uphold the healthcare law. He will be the swing vote, and Judge Kavanaugh's appointment to the Supreme Court is irrelevant on this point.

That is wrong. First, you really can't count on Chief Justice Roberts in upholding the Affordable Care Act. In fact, that is what the attorneys general are arguing, that his previous decision will help to strike down the law. The times and circumstances are different now because the Federal Government isn't fighting to protect the Affordable Care Act, which it did in previous administrations, and there is no guarantee that Justice Roberts will rule in favor of the law. There are other aspects of the Affordable Care Act that he has also sided against.

It is hard to believe now that this fundamental right that has been so hard fought for so many people may be in danger. I can say that in my State, I have been in hospital after hospital and healthcare facility after healthcare facility. Doctors say to me that they can't even imagine what it is going to be like to go back to prior to the preexisting condition protections. It has become such a norm that they are covering people that they couldn't imagine that kind of discrimination today.

When it comes to reproductive rights, those are under threat as well. In 2017, Judge Kavanaugh suggested that he supported Justice Rehnquist's dissent in Roe v. Wade, which called the landmark decision a product of ``freewheeling judicial creation of unenumerated rights that were not rooted in the nation's history.''

As somebody who sat on the Judiciary Committee for the first 2 years I was in the Senate, I can guarantee that I asked every judicial nominee whether they believed in the penumbra of rights guaranteed in the Constitution for the right to privacy or they didn't. The reason I did that is because those who really don't believe that Roe was rightly decided believe that those rights are not enumerated and could overturn them in the future.

While Judge Kavanaugh may now believe that Roe v. Wade is settled law, records from his days in the administration raise doubts. Perhaps more importantly, during his confirmation hearing, he refused to say whether it was wrongly decided. Why is that important? Because in the near future, if a majority on the Supreme Court decides that it was previously wrongly decided, they can just overturn it.

If Judge Kavanaugh does not believe the Constitution gives women the right to make decisions about their own bodies, then whatever assurance he gives us now about precedent is hollow. This is why it is so important to people in my State. We voted in 1991 by an initiative of the people to have this right in our State law. We in the State of Washington and millions of women want to see every woman in America have these same rights.

I took President Trump at his word when he said he was going to put a nominee on the Court who automatically would overturn this. These Justices--Roberts and conservatives like Alito, Thomas, and Gorsuch-- would now be joined by Kavanaugh and overturn this right in a 5-to-4 decision. Even if they don't fully overturn it, they could effectively undermine its protections piece by piece. Chief Justice Roberts, for instance, has repeatedly upheld restrictive limits on reproductive rights. These Justices have proven themselves very willing to restrict access to safe and legal abortions.

As I said, the people of my State decided that they wanted to protect this, and I am here to help and defend that for other women in the United States of America.

If Judge Kavanaugh were to serve a lifetime appointment on the Court, he could also pose threats to the rights of LGBTQ Americans not just in my State but across the country. The Supreme Court will likely hear cases that impact this community.

There are cases pending like the Arlene Flowers case in the State of Washington where a florist refused to provide services at a gay couple's wedding. The Court could also likely hear arguments on President Trump's discriminatory ban on transgender servicemembers. The rights of LGBTQ Americans are at stake with Judge Kavanaugh on the Bench because his broad view of religious freedom could provide a license to discriminate against these individuals.

Judge Kavanaugh's record also suggests that he will be hostile to the protection of other privacy rights. In 2015, after it was revealed that the National Security Administration, NSA, had been collecting Americans' phone records in bulk without warrant, Judge Kavanaugh decided that national security needs outweighed individuals' right to privacy. He supported expanding warrantless surveillance by the government.

What is more, Judge Kavanaugh has ruled in favor of a restrictive voter identification law, raising concerns that he would support scaling back hard-won voting rights. Those rights are sacred in our country, and the last thing we need is a Supreme Court that would refuse to defend them.

I am also concerned about his views on issues that could affect Native Americans. Native Americans need to have their sovereignty recognized and their rights protected. In this term alone, there could be three cases before the Court, and some of the most basic Tribal rights in our country are at risk. Judge Kavanaugh's position, found in his own writings before he became a Federal court judge, indicated that he did not take seriously the constitutional rights of Tribal governments and the sovereign obligation of the United States when it entered into treaties and agreements with Tribal and Indian people and Alaska Natives.

Time and again, these issues are before us and before a court, and that is why, as I said, I believe in a court that protects these hard- won rights. I know that textualists will tell you something different, but where would we be on just the basic rights of contraception if we didn't have a court that did not find unenumerated rights in our Constitution? Where would we be on the future rights of privacy that need to be protected in the United States of America?

Time and again, Judge Kavanaugh has favored big companies over everyday Americans, using a twisted logic to defend big corporate polluters. Kavanaugh seems to have a particular animus against the Environmental Protection Agency and its efforts to follow Congress in a direction that has been given in law to reduce air and water pollution. That is a direct affront to the leadership of people like Ed Muskie, who led Congress in its effort to pass the Clean Air Act in 1970 and control pollution and in 1990 when Congress amended the law to combat acid rain, ozone depletion, and auto emissions. And since then, the U.S. Supreme Court has upheld the Clean Air Act.

In 2007, in the Massachusetts case, the Supreme Court ruled that the U.S. Environmental Protection Agency has the authority to regulate greenhouse gases under the Clean Air Act, and Justice Kennedy, whom Judge Kavanaugh will replace, provided the fifth and deciding vote in that decision. But as Kennedy's replacement on the Court, the government's ability to mitigate climate change could be lost. That would mean everything from not addressing these impacts we are seeing on our coastal communities to what we are seeing in damage from wildfires, and it could mean that the report that was done by the Government Accountability Office saying that climate change impacts are costing us over $620 billion every 10 years will continue to be ignored.

We want a Supreme Court Justice who is going to follow the law and abide by and uphold what Congress has said, and that is what the Court has said as well. Judge Kavanaugh said he didn't think the EPA had the authority to regulate air pollution across States. The U.S. Supreme Court reversed his opinion. In a 6-to-2 decision, they concluded that Judge Kavanaugh had improperly applied his own policy judgment rather than the plain text of the statute written by Congress. That is what the Supreme Court said in reversing him.

I will say it again. The U.S. Supreme Court said Judge Kavanaugh used his own policy judgments rather than the law as it was written by Congress.

So, yes, I have concerns that his views are not in the mainstream of America and of judicial philosophy when it comes to protecting our environment.

In another case, he opposed the EPA's interpretation that it could control ``any air pollutant'' because he thought that the terms of the Clean Air Act didn't include that. He also sought to limit its authority to protect Americans from greenhouse gases. In a 2013 case-- the Center for Biological Diversity--Kavanaugh said that the Clean Air Act does not even cover carbon dioxide at all.

In fact, he ruled to weaken environmental protections in 89 percent of the cases that have come before him. So I do not call that in the mainstream views of judicial philosophy.

Tomorrow, we will have major issues before us as this vote takes place. When it comes to whether you are siding on behalf of the American worker or large corporations, I, too, have concerns.

In a 2015 case, he overruled the National Labor Relations Board, siding with a hotel that had requested police officers to issue criminal citations to union demonstrators who were legally protesting.

In another case, Kavanaugh sided with a company that had banned employees who interacted with customers or who worked in public from wearing union shirts that said certain words on them. The NLRB found that the employer committed an unfair labor practice, but Judge Kavanaugh disagreed, concluding that the union members did not have a right to wear the shirts because the company believed it would be damaged.

In 2013, a SeaWorld trainer was dismembered and killed by a whale during a live show. Kavanaugh ruled against the Occupational Health and Safety Commission's conclusions that SeaWorld had acted wrongly and had insufficiently limited trainers' physical contact with orcas.

I am concerned about the information age that we live in and that when it comes to issues relating to protecting consumer rights, there is no bigger consumer right than protecting the right of those on the internet to access information. We cannot have a two-tiered internet system in which these rights are not protected by a court.

In this case, Judge Kavanaugh wrote that the FCC did not have the right to regulate broadband providers as ``common carriers.'' Instead, he made it clear that he believes that broadband cable companies should be able to control your internet experience as they see fit.

Part of his flawed analysis rested on the idea that what the FCC was purporting to do by protecting consumers was a type of rule that was so consequential that it could only stand if Congress bestowed ``clear and unambiguous authority'' on the agency. This is in contradiction to the Supreme Court's own precedent, which determined that the FCC did have the authority to decide whether and how to regulate broadband.

The other part of his faulty analysis rested on the view that cable and broadband companies that operate the pipes that serve as a ramp to the internet have First Amendment rights, and they should be able to exercise that right to deny or limit consumers' access to content.

I guarantee you that saying that the First Amendment gives cable companies the right to charge whatever they want to charge you for the future is not in the mainstream view of judicial philosophy or what the American people have come to expect.

So let me say again that these important issues are not part of Judge Kavanaugh's willingness to protect these rights to healthcare, of the environment, of privacy, of consumer rights, and the things that we hold so dear, that we have all fought for, legislated for, and had courts uphold and preserve.

I am not buying the notion that a strict textualist is the way to go. I believe my colleagues on the other side of the aisle have every right to disagree with that, but I would ask them, how are you ever going to move America forward in decisions like our desegregation of education or on contraception or on these other privacy rights if you don't interpret the Constitution to today's needs?

I would say now that the biggest threat we face is the overreaching of an administration that every single day does something to not comply with the law as it is written. The President just issued an Executive order weeks ago that exempted administrative law judges from the competitive service; instead allowing the agencies to hire them.

The President's Executive order does not reflect the mainstream views of Americans. Administrative law judges should be well qualified and impartial, and the process to select them nonpartisan and fair.

Is this judge going to challenge the President or is he just going to say that he agrees with the President of the United States? As one White House Counsel from the Nixon administration said, if Judge Kavanaugh is confirmed, it ``will be the most Presidential powers- friendly Supreme Court in the modern era.''

Well, I can tell you this: If those on the other side of the aisle are promoting this nomination because they want a rubberstamp on the Trump administration, we will fight them every step of the way. The Supreme Court is supposed to be the impartial arbitrator, the one that, even though we have different Congresses and different views, interprets the law over a period of time, that does not make political decisions but makes impartial decisions. To have somebody on the Court now when every day an administration is not following the law and basically subverting it--it is a time where we need a Supreme Court to stand up and do their job and hold the administration accountable.

I am sure it is not pleasant to hold an administration accountable, but this is an important time for checks and balances in the United States of America. I don't believe that the rights of individuals will be protected from the overreach of this administration or be defended by this nominee.

I know a lot has been said today about what the process for this nominee has been for the Court. I know there is a lot that will continue to be discussed after this day about how this institution has handled this situation and the accusations against Judge Kavanaugh. All I can say is that we need to do better. We need, as an institution, to have a better process for evaluating these situations and how to make them less partisan.

But I will tell you this: I found the testimony by Dr. Ford credible, and those saying ``Well, it must have happened; it just wasn't him'' is another example of denial of information instead of getting to the truth of the situation. We have to do better because we are an institution that is supposed to lead on this issue. We are not supposed to be an institution like the other institutions we have seen sweep these allegations under the rug, only to come back at some point in time when there are 300 cases or 400 cases or X number of people who have been impacted.

This institution has to figure out a better way to lead on this issue, and I plan to continue to work with my colleagues on both sides of the aisle to help us continue to focus on this. So many people in America are counting on us, so many women in America are counting on us, and so many Tribal women are counting on us. The statistics are just too high to leave a nominee on the Court with a doubt about this investigation, with this situation not rendered to a point where more people felt that the information was fully investigated. We have to do better. We are going to be challenged as we move forward.

As I said, I don't believe that Judge Kavanaugh's nomination is in the mainstream of judicial philosophy in the United States of America. That is why I am not supporting him. I didn't support him when he was first nominated for the DC Circuit Court because I had doubts that he would be that individual who would put political, partisanship aside and be that impartial Justice. I didn't make a decision right away; I went back and researched his record. I looked at the decisions on basic rights that so many Americans are counting on, and I can tell you this: For these rights, you cannot count on Judge Kavanaugh. Therefore, he does not get my consent to move forward to the Supreme Court.

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