Schumer Floor Remarks Calling On the Senate Judiciary Committee To Delay Judge Kavanaugh’s HearingAugust 22, 2018
Yesterday, I met with President Trump’s nominee for the Supreme Court, Judge Brett Kavanaugh. Our conversation covered many different topics. Unfortunately, Judge Kavanaugh refused to answer even the most basic questions about his jurisprudence.
He refused to say if he believed Roe was correctly decided. He refused to say if he believed Casey was correctly decided. He could not name for me a restriction on a woman’s right to choose that he would consider an undue burden. Even when I asked him would a ban on an abortion after four to six weeks be an undue burden? He couldn’t answer that. He could not tell me if he believed the Affordable Care Act was constitutional. Nor would he answer or couldn’t recall his level of involvement in a number of controversies during his time in the Bush White House, a portion of his record the Senate has been denied access to by the Republican majority.
Now, I understand the imperative all judges face not to bias themselves by commenting on cases that could come before their court, but these were some basic questions on already decided cases. And, furthermore – I told Judge Kavanaugh, he is in a different place than others. President Trump has said he will only appoint nominees who will undo Roe v. Wade. President Trump has said he will only appoint nominees who will declare the ACA unconstitutional. Judge Kavanaugh is under a burden to refute that. I asked him even when he sat with the president: did he tell the president, don’t count on him, he will absolutely vote to repeal Roe? He didn’t. So Judge Kavanaugh has a burden beyond that of a normal justice because of what President Trump, the person who selected him has said unequivocally. So, Judge Kavanaugh’s silence or refusal to commit to even the most common things that should be said, he said he would say Brown was correctly decided, why can’t he say Roe was correctly decided.
His silence, especially given his recent praise of dissents in both Roe and Casey, in 2016 and 2017 he praised Judge Rehnquist and Judge Scalia’s view that Casey and Roe were decided wrongly. What is anyone supposed to reasonably believe? Given that President Trump said he will only choose people who will repeal Roe and declare ACA unconstitutional. Given that he has praised the dissents in Roe and Casey, the fact that he was unwilling to refute any of that, in anyway, to even say that a limit on abortion after four weeks was an undue burden, should raise real questions for any American who believes in choice; who believes in the constitutionality of the government helping with health care, including pre-existing conditions.
And then there is one issue we discussed yesterday that took on a whole new light mere minutes after our discussion concluded. I asked Judge Kavanaugh about his remarkably expansive views on executive authority. As context, Judge Kavanaugh has said that presidents should not be subject to criminal or civil investigations while in office. He has said that the only remedy for a president who has a committed a serious crime is impeachment by Congress.
So I asked Judge Kavanaugh a more basic question: does he believe that a sitting president must comply with a subpoena to testify or provide records. He would not say that the president must comply with a subpoena. I asked him that in the most extreme situation, a criminal investigation against a sitting president where our national security is at stake, could the investigators subpoena the president? He wouldn’t say he would. Now, that was before the news that broke late yesterday. During our meeting actually, the news broke that President Trump’s former personal attorney, Michael Cohen, implicated the president in a violation of campaign finance laws.
The sequence of those two events –Judge Kavanaugh’s refusal to say that a president must comply with a duly issued subpoena, and Michael Cohen’s implication of the president in a federal crime – makes the danger of Brett Kavanaugh’s nomination to the Supreme Court abundantly clear. It’s a game changer. Should be.
A president, identified as an unindicted co-conspirator of a federal crime – an accusation made not by a political enemy but by the closest of his own confidants – is on the verge of making a lifetime appointment to the Supreme Court. A court that may someday soon determine the extent of the president’s legal jeopardy.
In my view: the Senate Judiciary Committee should immediately pause the consideration of the Kavanaugh nomination. The majority of the Senate still has not seen the bulk of Judge Kavanaugh’s record. At the very least, the very least, it is unseemly for the President of the United States to be picking a Supreme Court Justice who could soon be, effectively, a juror in a case involving the president himself. In light of these facts, I believe Chairman Grassley has scheduled the hearing for Judge Kavanaugh too soon, and I’m calling on him to delay the hearing.
I know that Chairman Grassley and Leader McConnell hold all the cards in terms of scheduling hearings, but the plain facts of the case should compel them to the same conclusion that I have reached: the Judiciary Committee should postpone Judge Kavanaugh’s hearings.
At this moment in our nation’s history, the Senate should not confirm a man to the bench who believes that presidents are virtually beyond accountability, even in criminal cases. A man who believes that presidents are virtually above the law, and only Congress can check a president’s power. Over the past year, despite numerous abuses of presidential authority, despite numerous encroachments on the separation of powers, despite numerous attacks on the rule of law, this Republican Congress has done almost nothing to check this president. If Congress can be captured by one party’s deference to the president, we cannot allow the Supreme Court to be captured as well.
The doubts about Judge Kavanaugh’s fitness for the bench were just magnified by Mr. Cohen’s plea agreement. The prospect of the president being implicated in some criminal case is no longer a hypothetical that can be dismissed; it is very real. If Judge Kavanaugh truly believes that no sitting president, including President Trump, must answer for crimes he may or may not have committed, then he should not become Justice Kavanaugh, with the power to make those views manifest in our books of law.
More broadly, Mr. President, yesterday’s news has blackened an already dark cloud hanging over this administration. In addition to Mr. Cohen’s implication of the president, Paul Manafort was convicted of violating federal law on eight different counts – this, his first of two trials.
To take a step back: President Trump’s campaign manager was convicted of federal crimes, President Trump’s personal attorney pled guilty to federal crimes, President Trump’s first national security adviser pled guilty to federal crimes, a foreign policy advisor to his campaign pled guilty to federal crimes, and more trials are coming. Cabinet officials have been forced to resign for flagrant graft and profligacy funded by the American taxpayer. That’s to say nothing of the fact that the first two congressional endorsements of President Trump’s campaign came from two congressmen who have recently been indicted on counts of insider trading and campaign finance violations. What a swamp. What a swamp. Far worse than the swamp that existed when President Trump took over. He has not cleaned the swamp; he has made it more wretched and more fetid.
No one in America can dismiss what has happened as the actions of a few bad apples. There is a cesspool around this president. There is now an unmistakable, sinister hypocrisy to President Trump’s campaign slogan: “drain the swamp.” President Trump brought the worst swamp we have seen in Washington’s history to town when he came here.
Yesterday’s news leads me to make two points.
First, Special Counsel Mueller’s investigation is clearly doing what it was constituted to do and finding criminal activity in the process. Already there have been four guilty pleas or verdicts and dozens of indictments. The idea of calling Special Counsel Mueller’s investigation a “witch hunt” was already absurd and laughable, and becomes even more so today.
Second, the President should not even consider pardoning Mr. Manafort or Mr. Cohen at any point in the future. To do so would be the most flagrant abuse of the pardon power and a clear obstruction of justice.
The Rosenstein-Mueller investigation must be permitted to complete its work and the president must resist the impulse to interfere with pardons, dismissals, or any other action that prevents the work of the Justice Department from going forward.