10/06/2018 — 

Mr. President, I rise to express my strong opposition to the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy as an Associate Justice on the U.S. Supreme Court. I opposed Judge Kavanaugh’s nomination to his current seat on the DC Circuit because I had serious concerns about his partisan history, expansive view of Presidential power, and his lack of candor about his work in the Bush White House during his testimony before the Senate Judiciary Committee. Judge Kavanaugh’s work on the DC Circuit demonstrated that I was right to be concerned about his view that the President is above the law. I intend to discuss his jurisprudence in a moment, but first it is necessary to list just how many ways in which this process has revealed that Judge Kavanaugh lacks the temperament to serve as a Justice of the Supreme Court. He began this process by continuing to stonewall, and perhaps even mislead, Senators about his career as a political operative and partisan lawyer in the Bush Administration. He dissembled when asked basic questions about his approach to the law—a tactic we have come to expect from nominees who have been selected and vetted by farright interest groups. Yet when Dr. Christine Blasey Ford, Deborah Ramirez, and others came forward with serious and credible allegations of sexual assault against him, this body saw the real Judge Kavanaugh. He emerged at his second hearing combative, blatantly partisan, disrespectful, evasive, and in no way reassuring that he has told the truth to this body and the American people. I will discuss these in turn, but the bottom line is this: Judge Kavanaugh is unqualified for a seat on the Supreme Court because he lacks the basic qualities and judgment for a position that could affect Americans’ everyday lives for generations to come.

The American people are watching this debate with serious, real-world concerns about what a Justice Kavanaugh would mean for them. They are worried that they could wake up someday soon to news that a conservative 5-to-4 majority on the Court has stripped them of their health insurance, abolished their right to privacy and control over their reproductive health, or revoked their right to marry whomever they choose. They see inequality of historic proportions—with the top one percent now earning more than the bottom 50 percent combined, according to the World Inequality Report—and a Supreme Court that continues to overturn laws that were enacted to prevent corporations and wealthy individuals from using their money to rig the political system. It is abundantly clear, given Judge Kavanaugh’s selection by special interest groups and the mad rush to confirm him at all costs, that powerful interests are counting on him to further these trends, which point to a future in which political power will be directly tied to wealth and status. Worse yet, given that we still don’t know the whole truth about the allegations against Judge Kavanaugh, continuing this rush to place him on the Court sends a terrible message to survivors of sexual assault that accountability for these crimes depends on the extent to which the accused person serves the interests of the powerful. The American people deserve better when it comes to this body’s obligation to advise and consent on the next Supreme Court Justice, and the majority has failed in that obligation time and again in the course of this confirmation process. When my Democratic colleagues and I expressed concerns about whether a President under such serious criminal investigations should appoint—prior to seeing the investigative process thorough and completed to the end—a Supreme Court Justice who likely could be called to rule on critical matters in a case against the President and his campaign, the majority ignored us. When we demanded that Judge Kavanaugh’s hearing follow the standard practice for Supreme Court nominees—providing Senators and the public alike with access to the nominee’s full record of public service through appropriate document disclosures from the National Archives—the majority fast-tracked Judge Kavanaugh’s hearing before the National Archives could process the records from his work in the Bush White House. In place of the appropriate process, the majority enlisted a private Republican lawyer to curate a small subset of records for Senators to review, and even that subset was subject to an assertion of ‘‘committee confidentiality,’’ meaning Senators were barred from sharing anything with the public that they may have learned about Judge Kavanaugh. Thousands more records were withheld under a dubious assertion of executive privilege. Even given the small number of Republican-selected records that had been made available to this body, my Democratic colleagues on the Judiciary Committee uncovered troubling inconsistencies that called into question whether Judge Kavanaugh had been truthful in his Senate testimony. No other nominee for the Supreme Court would get away with this. Why is the majority giving this free pass to Judge Kavanaugh? Why does he deserve to shield his record when no other member of the Supreme Court received such treatment? Why must his documents—records of taxpayer-funded public service—be controlled by a private Republican attorney instead of the National Archives like they are for every other man and woman who currently sits on the Supreme Court? Just what is it about Judge Kavanaugh that has rendered stalwart defenders of the Senate’s power to review nominees, including those on the Judiciary Committee, to have such a profound about-face?

No one is entitled to a lifetime appointment to the Supreme Court. Yet the majority has treated this job like the personal property of Judge Kavanaugh ever since the President announced his nomination. My Republican colleagues have said a great deal about the importance of preserving a fair process for the consideration of the Supreme Court nominees. Some of these arguments are simply outrageous. In the recent past, Democrats and the majority worked on a bipartisan basis to obtain nearly all relevant documents from then-Solicitor General Kagan’s work in the White House before holding a vote on her nomination to the Supreme Court. Today, we are set to vote on Judge Kavanaugh with roughly 90 percent of his record still kept secret. Yes, in the recent past, Democrats made the difficult choice to end Republicans’ historically unprecedented obstruction of hundreds of President Obama’s judicial nominees by eliminating the 60-vote threshold for judicial nominees, except to the Supreme Court of the United States. Democrats recognized that the Supreme Court is one of the most important institutions in this country, that it operates as the effective check on both the legislature and the executive branches, that it is the ultimate interpreter of the Constitution of the United States, and that in order to have members on that Court who are consistent with the Constitution and thoroughly accountable to the American people, not special interests, a simple majority to get to the Court is inadequate. This process demonstrates that. Last year, they broke historical precedent and basic decency by denying Chief Judge Merrick Garland so much as a meeting or a hearing on his Supreme Court nomination. Again, for over a year, the Republican majority refused to consider the nomination of Judge Garland to the Supreme Court, and now they insist we have to move expeditiously to fill this gap, that it is so critical that we can’t wait two weeks, three weeks, or four weeks for a thorough investigation. We have to do it now. But we didn’t have to do it when President Obama submitted, pursuant to the Constitution, the nomination of Judge Garland. Once Judge Gorsuch was presented to us, the Republicans abandoned the 60- vote threshold, and at every turn, Republicans have, in my view, escalated these so-called judicial wars, and this rush to confirm Judge Kavanaugh, despite the allegations against him, brings us closer than ever to a crisis of confidence in the Court. The need for more time and more answers with regard to Judge Kavanaugh’s record have become overwhelming since Dr. Ford, Deborah Ramirez, and others came forward. These women have put aside their privacy, professional lives, and the safety and security of their families in order to bring to light their allegations against Judge Kavanaugh. Regardless of how one feels about the truth of their claims, they have been met with treatment that should be beneath us as a nation. They have been mocked and attacked in disgraceful and sexist terms by public figures who should know better, including the President himself. They have been called liars, had their motives questioned, and had their private lives picked apart on the national stage. The Judiciary Committee has now had the opportunity to hear from Dr. Ford, and the FBI has conducted a limited background check on some of the allegations against Judge Kavanaugh, but this process still doesn’t pass the simple common sense test. If there is no truth to these allegations, as the nominee and our Republican colleagues claim, why was it so difficult to agree to an FBI investigation in the first place? For that matter, what serious investigation is forced to finish in less than a week with limits on which leads it can follow? What person, upon hearing that a child or a relative of his or her own had been harmed, would be satisfied with such a short and apparently outcome-driven process? What is the majority hiding? I will not parse the details of every allegation against Judge Kavanaugh here today, but I will say this to my Republican colleagues: Look around you. Our Nation is undergoing a historic and long-overdue reckoning with abuse of power, sexual harassment, and sexual assault. It is regrettable that the Supreme Court confirmation process has once again become a forum for the larger debate about these matters, but there is no convenient way to reckon with longstanding and painful injustice. This is the issue before us, and we must face it. History will not look kindly, if it looks at all, on those who take the easy way out, using distraction, false equivalence, and personal attacks to preserve a partisan win at all costs. Given the growing number of doubts that this process has raised about Judge Kavanaugh’s honesty and trustworthiness, he cannot begin to meet the test that I have applied to every Supreme Court nominee, regardless of party, during my service in the Senate. I have voted against nominees in the past because I did not believe that their jurisprudential records demonstrated that they would use their discretion to give meaning to the promises of the Constitution. But never before have I had to stand here and oppose a nominee to the Supreme Court for those very same reasons and because I do not believe that he is trustworthy. I regret that I must do so now. 

When it comes to Supreme Court Justices, character is a nonnegotiable requirement. Supreme Court Justices are expected to have a record of high personal and professional achievement. They are not supposed to be partisans or politicians. They are given an awesome power for life. They can certainly have flaws, but their relationship to the truth and their willingness to avoid the appearance of emotion are not up for debate. To serve in judgment of 325 million of their fellow citizens, they must be above the fray, particularly in these difficult and divided times. If Supreme Court decisions were simply a mechanical application of foregone legal conclusions, then it wouldn’t matter who sat on the Court. Rather, a Justice’s power rests in the discretion to choose among competing and well-reasoned arguments to decide how the promises of the Constitution will apply for generations to come. In order to support a Supreme Court nominee, I must believe she or he will use that discretion to give meaning to the American tradition of equal justice under law. This means strictly scrutinizing laws that obstruct and distort the effective operation of government and channels of political participation. It means rejecting arbitrary abuse of power and demanding the most compelling justification for laws that single out powerless, discrete, and insular minority groups for disfavored treatment under the law. When the Court has acted in accordance with these principles, it has resolved issues of national concern that threaten to tear the fabric of our Nation apart, and has done so in a manner that preserves the perception of impartiality that is vital to our judicial institutions. The Court struck the final blow against legal segregation. It safeguarded constitutional voting rights, guaranteed Americans the power to choose how to start their families, separated church and State for the mutual benefit of both institutions, and even ordered sitting Presidents to comply with the law.

The snarling, conspiratorial partisanship that Judge Kavanaugh displayed at his second hearing was a far cry from the historical principles that have preserved the Court as an institution. Without evidence, he blamed ‘‘the left’’ and ‘‘left-wing opposition groups’’ for revelations about his past behavior, calling it ‘‘a calculated and orchestrated political hit.’’ He characterized Dr. Ford and others as liars and claimed that their desire to come forward was simply ‘‘pent-up anger about President Trump and the 2016 election.’’ How many of the advocacy organizations that regularly try cases before the Court fit his definition of ‘‘leftwing opposition groups’’? How is anyone supposed to believe that Justice Kavanaugh would approach a politically charged case with an open mind after this display? I fear that some are willing to overlook the clear defects in this nominee and this confirmation process because they want a Justice Kavanaugh to deliver long-desired legal victories for partisan causes. President Trump has clearly expressed his expectations for his nominees to the Court and even outsourced the vetting process to farright special interest groups. The goal of this process is no mystery: a decisive majority on the Supreme Court that will eviscerate the underpinnings of Roe v. Wade and undo the constitutional right to privacy, as well as expand the Second Amendment to block even commonsense gun safety laws.

Critically, the President also wants to bring even more functions of government solely under the control of the White House so that he can quickly and easily dismantle protections for workers, the vulnerable, and the environment. This wish list is nothing new. It has long been the agenda of groups like the NRA and the Federalist Society to take control of the Supreme Court and accomplish from the bench what they cannot win from the ballot box. In President Trump and this majority, however, they have found their opportunity to radically change American law for the few and the powerful. I have no illusion about Judge Kavanaugh’s familiarity with, and enthusiasm for, the partisan victories he is expected to deliver for President Trump and special interest groups as a Justice. It is also difficult for me to imagine that there would be such a rush to put Judge Kavanaugh on the Court if he were not a lifelong DC political operative and reliable partisan and an architect of the conservative legal movement, which is designed to pack the Federal judiciary with outcome-driven ideologues like him. He has already amassed a body of work that shows how he can and will deliver for the movement that has groomed him for this moment. Judge Kavanaugh has demonstrated a dangerously expansive view of Presidential power.

The President is not a King, and this is because the Constitution establishes separation of powers and a system of checks and balances to ensure that no arm of government can overpower the others. The Framers recognized the particular danger of a Supreme Court without judicial independence. In Federalist 78, Alexander Hamilton quoted Montesquieu, saying that ‘‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’’ He added that ‘‘liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.’’ Based on his writings, I fear that a Justice Kavanaugh is predisposed to provide the deciding vote on the President’s agenda before cases against him even reach the Supreme Court. For example, the Supreme Court has never had to decide whether a sitting President can be prosecuted for Federal crimes. It is perhaps more important now than ever in our history to ensure that a nominee to the Court can approach questions of Presidential accountability with independence and an open mind. Judge Kavanaugh cannot seriously claim to have either on this issue. As a veteran of the Starr investigation into the Clinton White House, Judge Kavanaugh understandably has strong feelings on the issues of civil and criminal prosecutions of sitting Presidents. In 1998, Kavanaugh authored a law review article discussing a now-defunct independent counsel statute in detail and recommending changes to the statutory scheme. He argued there that Congress should pass a law prohibiting the indictment of a sitting President until after the President’s term in office. But he made it clear at several points that he believes such a law would codify what to him is already plain in the Constitution—that a President is above our criminal law while he holds office. His views about Presidential accountability did not evolve over time, as seen in the various ways he continued to share his views over the years. In 1999, he told a reporter that he doubted whether the Supreme Court got it right in United States v. Nixon, the landmark case that held the President could not always use Executive privilege to escape a subpoena to turn over records in a criminal case. For those who lived through Watergate, it was the Supreme Court’s decision that I think, more than anything else, preserved the stability of the Union and the power of the Constitution over partisan politics. It led to President Nixon’s resignation. It also convincingly showed that the Court could take a decision seriously with respect to the Constitution without considering the political effects. Justice Kavanaugh believes they were wrong, that President Nixon should have been allowed to defy the Court, defy the country, and maintain secret the tapes of his discussions in the White House that ultimately led to his resignation.

In 2008, as a judge on the DC Circuit, Kavanaugh published another article suggesting policies to improve the functioning of the Federal Government, which reiterated his support for a law to defer all civil and criminal cases against the President while the President holds office. To be clear, lawyers and legal academics have debated these issues of Presidential power and accountability from the founding of the Republic. This debate is particularly relevant in light of how easily a governing majority of the President’s party can crush congressional efforts to investigate wrongdoings by the President and his administration. Judge Kavanaugh has every right to publish his thoughts for legal academia, but he cannot have it both ways. He cannot spend 20 years arguing that the Constitution forecloses criminal investigations of a sitting President and claim now that he approaches the issue with an open mind. We may soon need clear answers from the Court about whether a President can pardon himself and whether he can be subpoenaed, indicted, or otherwise held to account for wrongdoing. If such a case were to rise to the Supreme Court, it would be gravely damaging to the Court as an institution if the American people were to believe that the President had already secured the votes he needed to win because of his judicial appointments.

It is also clear that Judge Kavanaugh comes to this nomination with his mind made up to deliver other important victories for the President and powerful corporate interests at the expense of Federal agency autonomy and independence. Judge Kavanaugh spoke two years ago on a panel before a conservative special interest group where he was asked if he could think of a case that deserves to be overturned. After some hesitation, he answered that he would ‘‘put the final nail in the coffin’’ of Morrison v. Olson, which upheld the constitutionality of an independent counsel who could be fired only ‘‘for cause’’ by the President. This deserves consideration. When given the chance to name any case he would overturn, Judge Kavanaugh did not think to name any of the most egregious cases from our early history as a nation, such as the now-overturned Korematsu decision, which upheld Japanese internment, or Buck v. Bell, which upheld compulsory sterilization of the intellectually disabled. Instead, Judge Kavanaugh made it clear that he would strip Congress of its constitutional authority to protect apolitical public officials, like Special Counsel Mueller, from arbitrary interference and firing by the President. Just this year, Judge Kavanaugh showed that he was serious. In PHH Corporation v. Consumer Financial Protection Bureau, the full DC Circuit upheld the constitutionality of the statute creating the CFPB and providing that its independent Director could be removed by the President only for cause. In his scathing dissent, Judge Kavanaugh quoted at length from Justice Scalia’s dissent in Morrison v. Olson and made it clear that he would have placed the CFPB Director under the thumb of the President. I believe it is safe to assume he would have gone even further in undermining the consumer agency’s independence if he had the power to overturn Morrison altogether. This is not the only area where a Justice Kavanaugh would deliver longsought-after victories for conservative operatives and special interests. He has also made clear that he would undercut or even overturn the law of Chevron deference. As this body discussed at length in debate over Justice Gorsuch’s nomination, the Chevron case stands for the proposition that when someone sues a Federal agency and a reasonable person could read the statute at issue in more than one way, the Court should defer to the agency’s reasonable interpretation of the law that the agency is charged with enforcing. Put simply, Chevron prevents big businesses that are trying to escape regulation from pouring millions into lawsuits to second-guess and slow down every piece of the rulemaking process that they don’t like. Even Justice Scalia defended Chevron as a reasonable check on judicial activism. But like Judge Gorsuch, Judge Kavanaugh has made it clear in his academic writings that he would overturn Chevron as we know it and systematically tip the scales in favor of well-funded challengers of regulation. In my view, such a major change in the law would put our Nation on a path back to the bad old days when companies could pollute the environment, scam their customers, and discriminate against their employees as long as they could pay enough lawyers to get the right judge when the Federal agency sues. This would bring us one step closer to the ‘‘deconstruction of the administrative state’’ that the Trump administration envisions and could severely obstruct future administrations in their efforts to protect consumers, the environment, and those who need a helping hand against the very powerful.

I would like to take a minute to return to the concept of judicial discretion. As I discussed, I have evaluated every nominee for the Supreme Court during my time in this body based on whether I believed the nominee would have an open mind to be able to use his or her discretion to promote equal justice under the law, and to safeguard the powerless against the powerful. Upon review of Justice Kavanaugh’s opinions, I do not believe he would. He has routinely sided with employers and big business against workers, consumers, and those seeking to hold powerful interests to account. Two of his notable opinions illustrate the contrast between his treatment of interests he favors and those he does not. The case of SeaWorld of Florida v. Perez concerned a tragic incident at the theme park in which a killer whale grabbed its trainer, pulling her into the water and killing her. This was not the first trainer this whale had killed in this way. The Department of Labor sanctioned SeaWorld upon concluding that the company knew about the danger this whale posed to trainers and failed to take reasonable steps to lessen the risk. A Federal district court affirmed this conclusion, as well as the District of Columbia Circuit. Judge Kavanaugh dissented. He argued that it was inappropriately ‘‘paternalistic’’ for the Federal Government to regulate matters of workplace safety for entertaining displays such as killer whale exhibitions. To him, the free market, rather than potentially lifesaving workplace safety regulations and standards, should decide how dangerous is too dangerous for workers. Compare this narrow view of a worker’s right to a safe workplace with Judge Kavanaugh’s broad view of an employer’s religious right to opt out of regulations. The case of Priests for Live v. HHS concerned an attempt to broaden the Supreme Court’s holding in the Hobby Lobby case. In Hobby Lobby, a five-to-four majority of the Supreme Court held that a closely held, for-profit corporation could refuse to comply with the Affordable Care Act’s mandate that employers provide health coverage, including contraceptives, on grounds that doing so would conflict with the corporation’s purported religious rights under the Religious Freedom Restoration Act, or RFRA. In Priests for Life, a religious nonprofit corporation similarly objected to providing contraceptives to its employees on religious grounds but also objected to an accommodation provided under Affordable Care Act regulations specifically for religious nonprofits. Under the accommodation, the organization could file a form that lodged a faith-based objection to contraceptive coverage, thereby permitting its employees to access coverage through alternative means, and not through the company directly. Priests for Life sued to invalidate even this alternative, claiming that filing the faith-based objection was a religious burden because it caused its employees to receive contraceptive coverage. The DC Circuit decided against the organization because the organization was wrong, strictly as a matter of law, that the filing of the form caused a change in the employees’ access to coverage. Judge Kavanaugh dissented, arguing that it should not matter whether a nonprofit’s religious objections were strictly correct as a matter of law in order for the objection to excuse it from complying with the law. If the Supreme Court were to adopt this view, it would open the door to dangerous possibilities. In addition to nonprofits, for-profit corporations like Hobby Lobby and others could use religious objections to excuse themselves from an untold number of Federal laws, ignoring, in the process, the religious and practical needs of the employees— the men and women of conscience who work there and the consumers who would suffer the consequences.

Contrasting these two cases—one showing Kavanaugh’s narrow view of an employee’s right to a safe workplace, the other demonstrating his troublingly broad view of an employer’s right to opt out of following the law—it became clear to me that Judge Kavanaugh would use his discretion as a Supreme Court Justice to expand the rights of the powerful at the expense of everyone else. Supreme Court Justices hold extraordinary positions of authority in our constitutional system because they are the only ones with the power to decide that the governing majority—as well as prior Justices on the Court—got it wrong. The Constitution guarantees every American certain rights that are beyond the reach of the President or a simple majority of Congress to change because the popular majority cannot always be trusted to protect the interests of the minority, particularly when that minority includes the most powerless, alienated, and derided among us. The Supreme Court’s work is not automatic. It is not an assembly line. The men and women who sit on the Court must use their values and experience in order to reach the conclusions that determine how the Constitution applies to our daily lives. I read Judge Kavanaugh’s legal record to show that he would advance a dangerous partisan agenda from the bench. Some may disagree with that conclusion, but the fact of the matter is that the majority is advancing Judge Kavanaugh’s nomination in the absence of critical facts that go directly to his character and values. A full and fair investigation—one without predetermined limits—could clear Justice Kavanaugh’s name or it could cause him further trouble. But if the majority proceeds now, and he is confirmed, the shadow of doubt will always linger over his position, over the Court, and over the U.S. Senate. Americans will wonder why this nomination was rushed, and the obvious conclusion will be that it served the interests of partisan politics. Rightly or wrongly, that impression will further harden the cynicism and tribalism of those who are inclined to believe the system is rigged. That doubt in the fundamental fairness and integrity of our government is contagious, and our whole Nation suffers as it spreads. I believe we should stop this and show the American people that facts matter and that character matters. Before I yield the floor, I would like to say one more thing to my colleagues.

This process, and the majority’s elimination of the 60-vote threshold for the Supreme Court to confirm Justice Gorsuch last year, is now the precedent for future Supreme Court nominations. Democratic Members should expect nothing more from the Republican majority. Every Senator should think long and hard if they are prepared for what will come next as a result of this dissolution of the Senate rules that historically preserved the institutions of the Senate as well as the Court. The supermajority requirement for the confirmation of a Supreme Court Justice was a vital backstop against the kinds of displays we have witnessed in the past few weeks. That is why Democrats kept the 60-vote requirement in place when they were forced by a Republican blockade of lower court judges to fill a whole host of judicial vacancies with nominees who had cleared committee for district and circuit courts. Now, with a simple majority threshold, any party in power can pack the Supreme Court on party-line votes with nominees like Judge Kavanaugh, who otherwise could never rise to the highest Court of the land. I would also note that there is no longer any obligation for a nominee to disclose all of his or her records of prior service, nor is there a need to hold fair or impartial hearings. FBI background checks need not be anything more than a mere formality, and nominees have a free hand to appear in campaign-style commercials, disrespect the Senate, and disregard traditions of decorum, so long as they put on a show that plays well with the President and the majority. After all, there is no longer any need for bipartisan consensus for a Justice of the Supreme Court. I have served in this body for over 20 years. I have not been here for all of the so-called judicial wars, supposedly beginning with the nomination of Judge Bork, who, I will remind everyone, was defeated on a strong bipartisan vote, but I have been here for enough of the deterioration of this process to know there is blame on both sides. Democrats in this body have been aggressive when they were in power, but I would also add that scholarly research of many has documented that Republicans always found another way to escalate things each more, resulting in the position in which we now find ourselves. Without some major change on the part of the majority, I hope there is no illusion among my colleagues that what we have endured over the last few weeks is anything but the beginning of what is to come. I stand ready—and I think many of my colleagues on the other side stand ready—to search for a bipartisan solution and return to a path in which all of us—at least the vast majority of the Senate—have overwhelming confidence in the ability and the dedication of a nominee to the Supreme Court under the Constitution of the United States. With that, I yield the floor.