Washington, D.C. – U.S. Senator Chuck Schumer today spoke on the Senate floor regarding President Trump’s Supreme Court nominee, Judge Brett Kavanaugh. Below are his remarks which can also be viewed here:
Now, Madam President, last night, President Trump selected Judge Brett Kavanaugh as his nominee for the upcoming vacancy on the Supreme Court.
In selecting Judge Kavanaugh, President Trump did exactly what he said he would do on the campaign trail – nominate someone who will overturn women’s reproductive rights and freedoms and strike down health care protections for millions of Americans, including those with pre-existing conditions. He’s put at risk civil rights, labor rights, environmental rights, and LGBTQ rights.
How do we know? Because President Trump repeatedly promised to nominate justices who will overturn Roe v. Wade, and who will undermine our health care laws. This didn’t come out of the clear blue. President Trump promised it.
Here’s what he said: he would only pick “pro-life” judges who would “automatically” reverse Roe v. Wade. President Trump actually went so far as to say that women should be “punished” for their health care choices.
President Trump also said quote his “judicial appointments would do the right thing, unlike Judge Roberts on health care.”
That is President Trump’s litmus test, and it couldn’t be clearer. And during the campaign, President Trump commissioned a list of 25 people who would meet that litmus test, that were vetted and approved by two organizations that represent the hard-right: the Federalist Society – led by a man named Leonard Leo, whose goal in life has been to overturn Roe v. Wade – and the Heritage Foundation, whose goal is to strike down health care law because they don’t want the government to help people out when they have pre-existing conditions, or other health care needs.
Here’s what Edward Whelan, a prominent conservative activist, said about Leonard Leo, the man who put together the list that Trump promised to pick from: “no one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society’s Leonard Leo.” If anyone believes that Judge Kavanaugh or anyone else on the list would uphold Roe v. Wade, then I have a bridge to sell them. Leonard Leo’s goal in life is to repeal Roe. He comes up with the list, do you think he put any slackers, in his opinion, on that list? No.
Judge Kavanaugh got the nomination, not because he’ll be an impartial judge on behalf of all Americans, but because he passed President Trump’s litmus tests: repeal women’s freedom for their reproductive rights, and repeal people’s health care, including the protections for pre-existing conditions. If Judge Kavanaugh was to be confirmed, women’s reproductive rights would be in the hands of five men on the Supreme Court. That’s not what the women - or the men - of America want.
Judge Kavanaugh’s own writings make clear that he would rule against reproductive rights and freedoms, and that he would welcome challenges to the constitutionality of the Affordable Care Act. Judge Kavanaugh has argued that the Supreme Court should question the constitutionality of the Affordable Care Act. He openly criticized the Supreme Court when they upheld the law. He’s no neutral arbiter, he’s already made up his mind, and he wouldn’t have been approved by the Heritage Foundation if they weren’t certain that he’d repeal the ACA. He wouldn’t have been approved by the Federalist Society if Leonard Leo weren’t certain that he’d repeal Roe v. Wade.
Judge Kavanaugh has argued that the Trump administration could keep a young girl in federal custody to prevent her from obtaining constitutionally protected health care. And he has argued that employers should be able to deny their employees access to affordable contraceptive coverage. If Judge Kavanaugh feels that way about contraceptive rights, imagine how he feels on a woman’s right to choose.
And I’d make one other point about Judge Kavanaugh: he’s a deeply, deeply conservative justice, way out of the mainstream. He has written troubling decisions rejecting something ninety percent of Americans want: commonsense gun laws. He has undone environmental protections, he’s challenged them, and our Clean Air and Clean Water Acts would be at risk. He would make it far more difficult for regulations to exist to enforce those laws.
And here’s the most amazing thing: he has gone so far as to say that a president doesn’t need to follow the law if he “deems” it unconstitutional. Folks, here we have a president, President Trump, who cares less about rule of law, less about the restraints that every other president has felt put in place by the Constitution and the norms that have blessed this great country for 200 years, and we’re going to put someone on the bench that says ‘if this president, President Trump, deems some law unconstitutional he doesn’t have to follow it? How many Americans think that the president would be judicious and limited in doing that? It’s not the president I’ve seen over the past year and a half, oh no.
An analysis by Professor Lee Epstein of Washington University of St. Louis found that Judge Kavanaugh would be the second-most conservative Justice on the Court – to the right of Judge Gorsuch, second only to Justice Thomas, and this is the most conservative court we’ve had in eighty, ninety years, since the thirties at the very minimum. To those who say that President Trump has made a moderate selection from the judicial mainstream in the form of Judge Kavanaugh – think again, and look at his record. He is a deeply conservative jurist.
And his judicial philosophy appears to spring from his history. Judge Kavanaugh was embedded in the partisan fights of the past few decades: the notorious Starr report, the Florida recount, President Bush’s secrecy and privilege claims once in office, and ideological judicial nomination fights throughout the Bush Era. The hard-right has had a goal. They can’t achieve their philosophy through the elected two branches of government, try as they might: the Congress, the president. But if they get control of the one non-elected branch, the judiciary, they can turn the clock back in America decades, maybe centuries. That has been their goal, and Judge Kavanaugh when he worked in the White House helped them achieve that goal.
Judge Kavanaugh’s background as a partisan political operative seems exactly like the kind of man President Trump would want on the Supreme Court if legal issues from the Mueller probe arise: deferential to a fault to executive authority, and with a long track record of partisan politics.
Judge Kavanaugh’s long track record of partisan politics comes with a long paper trail.
The Senate must now be able to have access and time to adequately review all documents, emails, and other paperwork associated with Judge Kavanaugh before the process moves forward. Judge Kavanaugh’s papers may be critical to helping the American people understand the kind of jurist that Judge Kavanaugh would be on the Supreme Court. And if that makes us take a little more time, so be it. As the president himself has said, this is one of the most consequential nominations we have had in a generation. To get the full record before any of us vote is absolutely necessary, important, essential, and fair.
Judge Kavanaugh’s papers may give the Senate the best and only chance of understanding Judge Kavanaugh’s personal views because there’s no doubt he will be schooled, as his most recent predecessor was, to reveal as little about his philosophy and personal views in his confirmation hearing. No doubt he will employ practiced evasions that have become a farcical tradition of the nomination process: “I will respect precedent”; “I will follow settled law and strive to uphold stare decisis”; “Gee Senator, I cannot comment lest I bias myself on a future case.”
Well, we have seen what happened when now-Justice Roberts, now-Justice Gorsuch, and now-Justice Alito had said that. Once they got on the bench, they overturned precedent with alacrity to achieve their political goals. Probably the worst: Citizens United, where Chief Justice Roberts undid close to a century of tradition, and allowed wealthy people to send millions of dollars, undisclosed, into our politics, making the swamp so much worse. And most recently, Justice Gorsuch, Justice Roberts, and the rest dramatically overturning precedent in the Janus case, on a whim. As the dissent noted, they just pulled a theory out of the hat, a First Amendment ruling that the First Amendment prohibited unions from organizing. My oh my, how can anyone believe that Judge Kavanaugh will stick to precedent when Justice Roberts, Justice Gorsuch, and Justice Alito ignore precedent and make their own political rulings regularly.
So we need to review the record: Judge Kavanaugh’s written history, where the best clues to his jurisprudence may lie. It is no less than the standard my Republican colleagues demanded of Justice Kagan during her confirmation process. They asked for her entire records, a hundred seventy thousand documents were sent here. We need those documents, now more than ever because this new justice will be so pivotal in determining the future of our nation for so long.
Madam President, the Senate has come together on a bipartisan basis to protect women’s reproductive rights and to protect health care for millions of Americans before – including those with preexisting conditions. We need to do it again. I will oppose Judge Kavanaugh’s nomination, and I hope a bipartisan majority will ultimately do the same.
This nomination could alter the balance of the court in favor of powerful special interests and against working families for a generation. The pro-hard-right business Heritage Foundation wants only nominees that will side with the big boys against the average person, and in Judge Kavanaugh they’ve gotten someone who will do just that. We cannot let that happen. If the Senate blocks this nomination, it will lead to a more independent, moderate selection that both parties could support.