Schumer Remarks On Judge Kavanaugh’s Hearings

September 6, 2018
Washington, D.C. – U.S. Senator Chuck Schumer today delivered the following remarks [at approx. 12:18 p.m. EST] regarding Judge Kavanaugh’s hearings and the topics he has refused to provide concrete answers on.  Senator Schumer’s remarks can also be viewed here.
Today, the Senate Judiciary Committee continues its hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court. During yesterday’s session, the American people got to see a nominee who refused to answer even the most basic, fundamental questions about his jurisprudence. They got to see a cover-up of Judge Kavanaugh’s records, by himself and the Republican members of the committee.
When Judge Kavanaugh was asked specific questions about important issues that might someday come before a court, like women’s reproductive freedom, he pleaded the need for independence and refused to answer. When Democratic Senators asked him hypothetical questions instead to avoid even the possibility of the Judge tipping his hand on a future case, he said he wouldn’t engage in hypotheticals. ‘Can’t talk about specific cases, can’t talk about general situations.’ He’s ducking. He’s hiding.
Judge Kavanaugh was asked how he might view the constitutionality of a presidential subpoena arising from the Mueller probe – he said he could not tip his hand about a potential issue before the court. Asked then about the constitutionality of a presidential subpoena in general, he said he would not engage in a hypothetical. This is not a hypothetical issue. This is a fundamental constitutional issue.
Madam President, there is no legal, ethical, or judicial reason for Judge Kavanaugh to avoid directly answering these questions unless he has something to hide. If a nominee can’t answer questions about already decided cases, pending cases, or hypothetical cases, honestly, what is there left to talk about? Charity work and basketball? Your favorite federalist paper? How does the nominee expect the Senate and the public to evaluate him? He doesn’t. He doesn’t want it. His lifelong record as a hard-right warrior – if he talked about it, if he talked about his views – would rule him out. So he hides, and that should not happen when it comes to nominating one of the most powerful positions in American society.
Let me just mention a few topics Judge Kavanaugh ducked:
Judge Kavanaugh would not expand or even revisit his views on presidential powers, where he already enumerated some in the Minnesota Law Review article as Senator Klobuchar pointed out. He’s already talked about them publically. Why can’t he elaborate? He’s given his view on that one -- a very bad view. Does he still hold it? Nobody knows.
Judge Kavanaugh could not assure the American people that he would uphold the health care law, including protections for up to 130 million Americans with pre-existing conditions – protections that are under threat right now by a lawsuit in Texas.
He could not assure the American people he would uphold the landmark decision in Roe v. Wade. He did repeat a view, which he reportedly shared with Senator Collins, that Roe v. Wade was a settled precedent of the court. But as Judge Kavanaugh himself points out in a 2003 email made public this morning: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.”
That’s an email from Judge Brett Kavanaugh explaining that Roe v. Wade is only settled law until a majority on the Supreme Court decides it isn’t. Since the time he wrote that email, one more justice has joined the court likely to overrule Roe. Judge Kavanaugh could be the deciding vote. And he won’t even talk about it. That is an issue that affects all Americans. It is an issue that is so important to our jurisprudence. It is an absolute disgrace that a nominee for the Supreme Court refuses to talk about such a fundamental issue at the core of one of the great debates of American society and hides behind legal subterfuge, chicanery, so that he doesn’t have to speak. Verbal chicanery.
I wonder why the Republican majority labeled the email about Roe v. Wade “committee confidential” until this morning. Was that email withheld for privacy reasons? No. National security reasons? No. It’s ridiculous. The only explanation is that Judge Kavanaugh’s record was being withheld for political reasons. They don’t want the American people to see his view. If the American people knew that Judge Kavanaugh would decide against Roe v. Wade -- as it seems in this email he feels he thinks he can, not bound by legal precedent if the Court changes its mind – they would rise up and say “don’t put him on the bench.” So instead, they hide the records. My Republican colleagues set up an entire process to go around the non-partisan national archives, and it appears the purpose of that was to hide documents that might shed real light on Judge Kavanaugh’s actual record. 
Now, finally, a little late in the game, the truth is coming out, but this is only the tip of the archives. These are the only the documents that have slipped through the Republican filter. What else is hidden in Judge Kavanaugh’s record? What else don’t we know about this nominee? When did the Republican majority decide that Supreme Court nominees should be like icebergs, only a small portion showing while the real nominee lurks unseen, underwater, and potentially dangerous?
So I strongly support and commend the Democrats on the Judiciary Committee in their efforts to make these confidential documents public. I stand with them. They did the right thing. The American people desire to see these documents. In this case, “committee confidential” is a complete fiction, a subterfuge, to avoid the American people getting to know the real Brett Kavanaugh. The members of the committee should be praised – not chastised – for making these documents available. They did the right thing, and they had an obligation to do it. The Republican members of the committee should be ashamed of themselves. Ashamed of themselves in participating in the administration and Judge Kavanaugh’s cover-up of his record.
The Senate and the American people have a right to see the nominee’s record, especially now since the nominee appears unwilling to answer substantive questions about his views. Whatever the Senate rules may be, they should not be twisted to ensure partisan advantage and prevent transparency and openness. They should not be twisted to cover up the truth rather than reveal it.
Madam President, there is so much at stake with this Supreme Court nomination. Will Americans with pre-existing conditions be able to get healthcare? Will women be able to make private, personal choices about their medical care? Will LGBTQ Americans be able to marry whom they love? Will every American’s constitutional right to vote be protected?  Can the President of the United States be held accountable? Especially at this time, we know how much we need that.
And yet, at every turn, the Republican majority, the Trump administration, and Judge Brett Kavanaugh have prevented the Senate and the American people from being truly able to vet the nominee who could affect the lives of Americans for a generation.