Schumer Floor Remarks On Republican Efforts To Conceal Key Kavanaugh Documents, What’s At Stake With Judge Kavanaugh’s Nomination, And President Trump’s Recent Attempt To Politicize The Department Of Justice

September 5, 2018

Washington, D.C. – U.S. Senator Chuck Schumer today spoke on the Senate floor [at approx. 4:00 PM] regarding Republican efforts to conceal key Kavanaugh documents, what’s at stake with Judge Kavanaugh’s nomination, and President Trump’s recent attempt to politicize the Department of Justice.  Below are his remarks, which can also be viewed here:

First, let me thank my good friend, who did a great, outstanding job this morning on the Judiciary Committee, for his graciousness and thoughtfulness as always, and also my friend from New Mexico, as well. Mr. President, today the Senate Judiciary Committee began hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court. Democrats on the committee have pointed out that over 40,000 of Judge Kavanaugh’s documents were handed over to the committee last night. It is the latest insult in what has been an insulting process for reviewing the nominee’s record on the issues. Not just insulting to Democrats in the Senate, insulting to the Senate as a whole, and insulting to the American people, like, ‘we can jam this through and it doesn’t matter what you think, what you need to know.’ More than 90% of the nominee’s record has been shielded from public scrutiny. The chairman keeps claiming, ‘well there have been several hundreds of thousands of pages made available.’ That is not the point. If only 7% of the documents are made available, the question is: what looms in the other 93%? It’s the percentage that matters because we want to know what’s hidden. Furthermore, we have no knowledge of why we were given these documents and not given the vast bulk of the documents. What is the rule? Is there some objective rule or finding? They should make it public. Why?

 

They haven’t and the reason is simple. The obvious conclusion, can’t prove it because we don’t have the documents, is the 93% have things that they don’t want to be made public. Otherwise, there would be a set system and they’d say here’s why you’re getting this and here’s why you’re not getting that. So again, it’s not the number, it’s the percentage. Almost everything the Republicans requested with Justice Kagan and Justice Sotomayor, when they were in the minority, our position now, were granted. Very little of what we’ve requested has been granted and the question looms: what are they hiding?

 

I commend my colleagues, sincerely and strongly, for standing up and raising these issues this morning. The Judiciary Committee members were lending their voices to a large and growing chorus of people out in America deeply concerned about how this process has been run.  Every member of the Judiciary Committee was eloquent and forceful, clarifying just how far Republicans have gone to keep Judge Kavanaugh’s record a secret. Here, for the highest court in the land, with huge power over every one of our lives in many different ways, they were hiding what he really thinks and maybe it’s because they don’t want the American people to know what he really thinks.

 

Nonetheless, the Judiciary Committee proceedings are going forward even though the Republican majority has taken great pains to shield the great bulk of Judge Kavanaugh’s record from the American public. Since they’re in the majority, they can do this. It’s against the will of all the Democrats and probably much of the American people. But it is so wrong.

 

Let’s review what we already know about the nominee. For the bulk of his career, Brett Kavanaugh has been a loyal Republican foot soldier who has consistently found himself near the center of the most heated partisan legal fights of the past two decades. From the Starr Report to Bush v. Gore and through the myriad controversies of the Bush White House, Brett Kavanaugh was front and center, representing the political interests of Republicans. His service as a partisan warrior was rewarded with a judgeship, where he immediately began to establish a jurisprudence far outside the judicial mainstream.

 

As a judge, he ruled against commonsense gun safety measures. He ruled against commonsense environmental protections. He consistently ruled against the rulemaking powers of independent federal agencies, going so far as to label the Consumer Financial Protection Bureau “unconstitutional.” And he’s praised the dissents in both Roe and Casey, two landmark cases establishing a woman’s right to privacy with respect to her medical decisions.

 

Remember, we can’t forget, Brett Kavanaugh was selected from a pre-approved list of candidates vetted by the Federalist Society and the Heritage Foundation – two hard-right groups dedicated to the destruction of our health care law and the repeal of Roe v. Wade. He was selected by a president who explicitly promised to pick judges who would do those two things exactly.

 

So unlike former nominees, Brett Kavanaugh has a special burden to explain his views on these crucial issues. The president didn’t just say, ‘I’m going to choose the best legal mind available.’ He said, ‘I’m going to choose someone who will repeal Roe.’ He said, ‘I’m going to choose someone who will overturn much of the health care protections we have,’ as in the Affordable Care Act. He has this special obligation, and when I interviewed him in my office, he ducked. I asked him if he believed Planned Parenthood v. Casey, which reaffirmed Roe, was correctly decided. Not whether it’s precedent – that doesn’t matter, precedents change, Supreme Court justices do it – whether it was correctly decided. He refused to say. He refused to say whether any restriction on a woman’s reproductive freedom constituted an “undue burden.” There was nothing that I heard from Judge Kavanaugh in our interview to dispel the presumption, created by President Trump’s litmus test, that Justice Kavanaugh would vote to overturn Roe and protections for Americans with pre-existing conditions.

 

Judge Kavanaugh will no doubt refuse to answer these important questions in the committee hearings as well. We’re not going to get clear answers, that’s what judicial nominees have been taught to do. But given how he was chosen, coming from a pre-appointed list, that makes, number one, his obfuscation even more troubling, but two, it makes the need for documents all the more compelling.

 

Another area of examination this week should be Judge Kavanaugh’s views on executive power and accountability. During his time in the White House, it seems that Judge Kavanaugh developed an adulation for the powers of the presidency. He’s said that presidents should not be subject to investigations of criminal or civil wrongdoing while in office. He’s said that a president can refuse to enforce any law that they deem unconstitutional, even if a court has ruled otherwise. In our meeting, he refused to say that a president must comply with a duly issued subpoena. Judge Kavanaugh also wrote that presidents should be able to hire and fire the heads of independent agencies at will. In Judge Brett Kavanaugh’s jurisprudence, the executive of the United States is nearer a king than a co-equal branch of government.

 

At a time when the President of the United States routinely tests the bounds of power of his office, at a time when the president disdains and routinely disparages the rule of law, at a time when the president has been named as a co-conspirator in a federal criminal case, Judge Brett Kavanaugh’s views on executive power are more than dangerous; they’re disqualifying.

 

This week, the Judiciary Committee has the task of scrutinizing Judge Kavanaugh. I’d remind my colleagues that there is no legal standard, rule, or logic prohibiting nominees from answering questions that don’t involve immediate and specific cases that are or could come before the court. I’d remind my colleagues that invocations of stare decisis and solemn promises to “respect precedent” have been hauled before the committee before, and generally have little bearing, unfortunately, as to whether or not the nominee will abide by those principles once on the bench. Only a few months ago, Justice Gorsuch reminded us of that with his ruling in the Janus case, as Justice Roberts reminded us with his ruling in Citizens United. Justices will overturn decades of well-worn precedent given the opportunity.

 

The debate about the future of the Supreme Court this week may get wonky and technical but what is at stake is not abstract. It is real, and it is concrete, for Americans whose lives, health, happiness, and freedoms are on the line at the Supreme Court. Closely divided decisions recently have meant that the difference between the ability to marry the person you love, or not, to have your right to vote protected, or not, to make personal choices about your health care, or not, are all at stake. The stakes in this nomination debate could not be higher. The need for openness and lack of secrecy is as high as it’s ever been.

 

The responsibility of the Judiciary Committee this week is to drill down and examine Judge Kavanaugh’s views, to the extent that he’ll share them, and to point out those areas where he fails to be forthcoming. The American people have a right to know who may become the deciding vote on issues ranging from women’s reproductive rights to civil rights to labor rights to voting rights to LGBTQ rights and more. I believe that the Judiciary Committee’s proceedings this week will reveal to the American people a nominee unfit for the job of associate justice.

 

And one more issue Mr. President: President Trump’s unconscionable statement politicizing the Justice Department. Yesterday, the president made the following statement: “Two long-running, Obama era, investigations of two very popular Republican Congressmen were brought to a well-publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff...

 

For so long, President Trump’s actions have suggested that he views the Department of Justice not as an independent law enforcement agency, but as a tool to prosecute his enemies and protect himself and his friends. President Trump’s statement yesterday comes right out and says it. President Trump is chastising the Attorney General of the United States for enforcing the law! For announcing two indictments, backed up by ample evidence, because it may hurt members of his political party from winning elections. How outrageous is that?

 

So I say to President Trump: America is not some fiefdom in which the lord of the manor gets to decide who the law applies to and who it doesn’t apply to. The beauty and the greatness of American democracy is that we are all equal in the eyes of the law, Republicans, Democrats, and yes, even presidents. President Trump, you do not seem to understand or choose not to understand, the basic principles of the rule of law, which have governed our great nation since its founding.

 

President Trump seems to think he’s above the law, so it’s no wonder he selected Judge Kavanaugh – who believes sitting presidents should not be investigated -- to sit on a potential “jury” in the Mueller probe.

 

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