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Floor Speech

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Mr. SCHATZ. Mr. President, the Senate should demand a better nominee for the Supreme Court. These last 2 weeks have torn our country apart, but even before these allegations against Judge Kavanaugh became public, there was enough in Judge Kavanaugh's record to cause me to vote no.

His record is clear. As a Justice, he will damage women's rights, civil rights, the environment, voting rights, and economic fairness. He will also damage Native Hawaiian self-determination.

Let's start with Native Hawaiian. In a Wall Street Journal op-ed, he wrote that Native Hawaiians didn't deserve protections as indigenous people. He wrote an amicus brief in the case Rice v. Cayetano, arguing that Hawaii violated the Constitution by permitting only Native Hawaiians to vote in their elections for the Office of Hawaiian Affairs--the agency charged with working to advocate for the Native Hawaiian community.

These views come from a lack of knowledge of the history of Native Hawaiians, as well as Federal law and policies related to U.S. indigenous people.

Based on nothing at all, he thinks indigenous people are just another race. In his words, ``Hawaii's naked racial spoils system . . . makes remedial set-asides and hiring and admissions preferences look almost trivial by comparison.''

He also said: ``[I]f Hawaii is permitted to offer extraordinary privileges to residents on the basis of race or ethnic heritage, so will every other state.''

This is wrong on policy. This is wrong on the law. This is wrong historically, but it is also important to recognize the tone here. ``Remedial set-asides,'' ``racial spoils''--this is not someone who understands the plight of indigenous people and the history of our country as it relates to indigenous people. These views have serious consequences for Alaska Natives and also for American Indians.

The Federal Government's protections for indigenous people are built on tenets of the Constitution, Federal statutes, legal precedent, and congressional actions. They exist against the backdrop of U.S. injustice against indigenous American Indian, Alaska Native, and Native Hawaiian communities. Judge Kavanaugh's misinformed views on the status of indigenous people are alarming.

His views on women are also alarming. There is no doubt in my mind that Judge Kavanaugh will undermine reproductive rights. He knows better than to say in public that he is going to vote to overturn Roe v. Wade. That is not what they do. The Federalist Society trains these people really well to not say what they are going to do. There is a reason everybody who wants to ban abortion is so enthusiastic about this judge. They are not dumb. They understand his views, and they understand the one thing you can't say is, yes, I will vote to overturn Roe.

Here is an email from his days in the Bush administration--which, by the way, the Republicans tried to hide from the public. He said: ``I am not sure 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.'' This is exactly why the Senate deserves to know if Judge Kavanaugh would overrule this precedent. I think he will.

Time after time during the hearing, he evaded answers to that question, but we already know he embraces restrictive limitations on abortion that would, in practice, deprive women of their constitutional rights.

Judge Kavanaugh argued in one case that the Federal Government can and should override a young woman's constitutional right to seek an abortion because she was an immigrant.

This young woman had complied with the requirements of State law to make that decision herself. She did not need the Federal Government to transport her, pay for, or in any way facilitate the procedure. She just needed them to let her out of detention to do the procedure, but they didn't want to. They wanted to pressure her to voluntarily deport herself. They put up artificial barriers to prevent her from exercising her constitutional right. Judge Kavanaugh endorsed those barriers. Making a young woman wait weeks to obtain an abortion for no reason based on the Constitution, Federal or State law, or even public policy is an undue burden. Republicans who worry about the overstepping of the State should care about this.

Judge Kavanaugh's dissent shows his lack of respect for Roe, but even if he avoids directly overturning Roe, he could be green-lighting State or Federal laws that, in a practical effect, outlaw abortion.

Judge Kavanaugh would also rip apart of the ACA, if given a chance. He ruled to limit access to contraception under the ACA, and he has made it clear he thinks the Affordable Care Act is a ``significant expanse of congressional authority--and thus also a potentially significant infringement of individual liberty.'' A significant expansion of congressional authority and potentially a significant infringement of individual liberty--now that sounds like something a Republican colleague would say. It is just a view about the Affordable Care Act which that is to the extent we are collecting taxes and establishing some statutory mandates to try to make sure more people have healthcare that is affordable, a zero-sum game. And the more people who have healthcare, the less liberty either the rest of us have or maybe even those people have. I don't really know how it works, but that is a view.

It is a view we hear, and I respect my Republican colleagues for their views. I believe they are sincere in those views. That is not normally the kind of thing you hear from a judge. He has a clear view about the Affordable Care Act that isn't based in jurisprudence; it is based in his long history as a Republican operative.

I want to be very clear. A Republican operative sounds like an epithet. It sounds like a personal insult. I work with a lot of operatives. They tend to be Democrats. Operatives--not all of them-- some of them are pretty cool. Some of them are honorable. A lot of them are really effective. It is not a bad thing to be a political operative. Someone has to run a campaign. Someone has to mobilize voters. It is part of our democracy, like it or hate it. It is just that we don't put them on courts at all. It is just that we have literally never put an operative from either political party on the highest Court in the land.

In his speeches, Judge Kavanaugh has left not-so-subtle bread crumbs about how he would rule on the constitutionality of the individual mandate, which is really the linchpin of the ACA. In a lecture at the Heritage Foundation, he highlighted that the majority of the Supreme Court agreed that ``the individual mandate, best read, could not be sustained as constitutional.'' To him, the Chief Justice upheld the ACA only because he tried too hard to avoid deciding the constitutional issue. The whole speech is about how Judge Kavanaugh would not try too hard to avoid the constitutional issue. The risk that he will provide the vote to strike down the healthcare law is not a hypothetical.

Now, there were a lot of what most people in the bar thought were rather nonserious challenges on the Affordable Care Act in various circuit courts across the country, but I think we have learned that the Supreme Court has an interest in the Affordable Care Act, maybe even a kind of unhealthy obsession with the Affordable Care Act. So the idea that these seemingly frivolous lawsuits will not be successful, I think, is belied by the enthusiasm with which the Supreme Court wants to take these circuit court decisions which are getting appealed and rule on them.

Challenges to the ACA could come before the Supreme Court as early as this term. So I think it is really important for people to remember that. Listen, we all have our talking points on both sides of the aisle. I understand that. It is not a theoretical risk. It is a real risk that ACA is gutted; that the individual mandate is gutted; that protections for people with preexisting conditions is gutted; that what they call essential health benefits could fall away; that the whole architecture of our healthcare system could be gutted in this term.

I am also voting no because Judge Kavanaugh puts corporations above people--again, not a rhetorical flourish. This is most apparent in his opinions about the environment. I want you to know about a case which concerned the EPA's authority to regulate mercury emissions. The mercury rule was based on decades of research that showed devastating health impacts of mercury on the brain, on the lungs, and on fetuses. The Obama administration found that the mercury rule prevented as many as 11,000 premature deaths by reducing heart and lung disease.

Let's be clear. It happened during the Obama administration, but this isn't the EPA; these are professional scientists and researchers. These are civil servants. They are not like Obama appointees who have some ax to grind with a particular chemical. They just found that this chemical is dangerous to people. The EPA was directed by law to study the public health hazards of emissions from electric utilities, including mercury, and to regulate emissions ``if appropriate and necessary.'' That is the standard, ``if appropriate and necessary.'' Judge Kavanaugh thought the mercury rule was inappropriate because it didn't take into account the cost to the electric utilities to implement.

I mean, think about that. You see a law, and it says ``regulate emissions where appropriate and necessary,'' and then you are a judge and you read that law and you say: Listen, Agency, you didn't think about the corporations enough. So somehow that is violative of the law.

To arrive at his decision, he substituted his own judgment of what is ``appropriate'' for EPA. ``Appropriate'' means saving 11,000 lives. For Judge Kavanaugh, it meant not imposing too many costs on polluters.

He has and will continue to fight any attempt by the EPA to keep up with evolving threats to public health from polluted air and water and from climate change. Even though Supreme Court precedent was clear that greenhouse gases fit with the Clean Air Act's ``capacious definition of air pollutant''--in other words, greenhouse gases are a pollutant. Everybody knows that. It is not a dispute among scientists or even among regular people who understand that climate change is real, but Judge Kavanaugh pushed back. When the majority of the DC Circuit followed this precedent in another EPA case, he dissented. The conservative Justices on the Supreme Court were convinced, and they voted 5 to 4 to strike down the EPA's rule. There will be a lot more of that when Judge Kavanaugh joins them.

When Judge Kavanaugh is confirmed, he will use a far-right doctrine to block Federal agencies from protecting Americans' health and safety. He wants to do away with something called Chevron deference, which prevents judges from substituting their judgment for that of Congress or a Federal agency.

Here is how it works. When Congress passes a law, you can't-- especially as it relates to regulations about pollutants. We don't know exactly--we don't know all the science. So what we say is, for instance: Keep the air clean. Keep the water clean. You, Agency, figure out what is most important to ban, regulate on, and otherwise monitor. So it delegates that authority to Federal agencies which have the technical expertise and knowledge to implement and enforce the law.

Without that authority, we wouldn't have the rules to protect our air and water from pollution. We wouldn't be able to regulate access to new dangerous drugs. We wouldn't have rules to protect consumers from unsafe or predatory products and services because everything is supposed to be legislated.

If you don't believe in Chevron deference, then--we are supposed to every year come up with a new list of chemicals to ban or not ban. What do we know about that? Seriously, what do we know about that? Do you think maybe the lobbyists might be involved in that process more so than if you let the administrative agencies do that?

For the life of me, I don't understand--I mean, I do understand why people want to get rid of Chevron deference, but I don't understand the legal justification for it. The reason they want to get rid of Chevron deference is because it makes life safer for big corporations and less safe for the rest of us.

A vote for Judge Kavanaugh would be a vote against Chevron deference. It would allow judges to decide what a law means without considering Congress's intentions or listening to the Agency.

Perhaps most worrisome for me is Judge Kavanaugh's views on Executive power. The context here is, the Federalist Society provided a list to Donald Trump and Donald Trump said, ``Looks good to me,'' as part of his sort of solidifying the primary, and then Judge Kavanaugh got added at the end. I mean, after the initial list was established, then one person got added at the end.

In terms of their jurisprudence, there is not a big difference between Judge Kavanaugh and the rest of the people on the list, but here is the difference: Judge Kavanaugh has a very unique view of Executive authority and what a President is subjected to in terms of the law.

In his writings and rulings, he has made clear that he thinks a President can choose not to follow the law if he thinks it is unconstitutional. Can you imagine that a President can just say: ``That law is unconstitutional, so I refuse to enforce it''?

Congress couldn't do anything about it because it would all go to the Supreme Court where Judge Kavanaugh sits. Do you think Donald Trump might like that idea? I think Donald Trump might like that idea.

Judge Kavanaugh thinks the President is literally above the law, not just in terms of not enforcing statutes passed by the U.S. Congress; he has made it clear in speeches and writings that he does not think a President can or should be investigated or indicted for criminal offenses while in office.

He said that maybe Nixon was wrongly decided, referring to the United States v. Nixon. It is a 1974 decision in which the Supreme Court unanimously held that President Nixon had to comply with a subpoena to turn over the tapes of his conversations in the White House. He wrote in the Minnesota Law Review in 2009 that he thinks a President shouldn't be indicted for breaking the law. Let me repeat that. He wrote in the Minnesota Law Review in 2009 that he thinks a sitting President shouldn't be indicted for breaking the law.

Now, near as I can tell--I am not a lawyer--but near as I can tell, this is the main difference between Judge Kavanaugh's views and the rest of the people on the Federalist Society list. I mean, the head of the Federalist Society, before Judge Kavanaugh was nominated, was asked: Do you have any favorites? He said: Anyone on this list would be great.

It is just weird to me that the President of the United States picked this guy, a Bush person. It is not normally his preference to pick a Bush person, but this person has this really specific view about how powerful a President should be, and that is really worrisome.

He also wrote that there is ``a serious constitutional question regarding whether a President can be criminally indicted and tried while in office.'' This is the tip of the iceberg.

Judge Kavanaugh has also asserted that the President has ``absolute authority'' to pardon all offenders for any crime at any time, even before a trial or a charge; even before he or she is charged. Does he mean all offenders, even the President? Judge Kavanaugh may have refused to answer this question at the hearing, but his expansive view of Executive power speaks for him.

His view puts the President above the law, and this is dangerous because right now Special Counsel Robert Mueller is in the middle of an investigation into the President's campaign. Instead of following Supreme Court case law, Judge Kavanaugh may try to undermine that investigation and stop attempts to subpoena the President or to collect evidence.

The context, of course--sometimes we in the Senate pretend not to know things we know. There are a lot of smart people here, but we sometimes don't say what is actually going on, which, as everybody knows, even people who are loyal to him--or people who pretend to be loyal to him but privately grouse about him--the President demands loyalty to him, not to the Constitution, not to the country. The President is a person who demands personal loyalty. He could have picked anybody, but he picked Brett Kavanaugh, the one judge who believes the President is above the law and should be left alone.

These issues have been clear since the nomination, and that is why I pledged to vote no. Others came to light last week when the whole country had the chance to hear from Christine Blasey Ford and Judge Kavanaugh. What we saw, I think, was alarming for a lot of people. Whatever your view on all of the stuff I just talked about, actually, we saw behavior that was just weird. It was kind of manic. It was angry. It was wild-eyed. It was threatening. I mean, we talk--listen, I was in the State house of representatives, so I wasn't in a position to deal with advice and consent on State judges, so I hadn't dug into what the criteria were when you are considering a judge.

So when I got to the Senate--I am in my sixth year--there were a lot of conversations about judicial temperament. You think about qualifications. You want to make sure the views are not too extreme. Then you think about temperament. This thing about temperament is being totally ignored by the majority because if you care at all about temperament, if you care at all about the idea of equal justice for all, if you care--and we are so close to the U.S. Supreme Court physically right now. If you care about that magnificent building and the idea that anybody going before that highest Court in the land is going to get a fair shake, it is just vanishingly unlikely that if you are with the National Resource Defense Council or NARO or Planned Parenthood or MoveOn, or whoever he views as part of this attempt to smear him, they are going to court and they are going to be a litigant and they are going to be looking at Judge Kavanaugh saying: Oh, yes, he is undecided.

This is the important thing: Some people will argue that he is going to be an evenhanded jurist, that he sort of lost his cool, but he cleaned it up in this most recent Wall Street Journal editorial. Maybe. I don't think so. I think it is implausible. The point is, he can't even appear--you are not supposed to even appear to be anything less than impartial, and he ripped the mask off.

Again, he is a Republican. That is fine. I get along with Republicans--not all of them, but I get along with Republicans--and he can have all of those views. It is just that once you start articulating really partisan views, especially in the context of a nomination process, then the mask is off, and you don't belong on the Court. You have to display the proper temperament on and off the Bench at all times. ``What that means is in dealings with one's colleagues on the bench, having an open mind, being respectful of a colleague's views, being respectful of the lawyers who come before the court and not treating them disrespectfully, but to have proper respect for the lawyers on the court.''

I am quoting Judge Kavanaugh, and I did not see that Judge Kavanaugh last week.

I just want to make one minor point about that. Whatever we think of that Wall Street Journal editorial, besides the fact that there was no actual apology, it wasn't like a spur-of-the-moment thing where he kind of lost it and said a few things he didn't mean to say. He wrote the speech the day before. That speech was what he wanted to say. That is what he intended to say. So it is not like the passion--I have said lots of things I wish I didn't say, but generally when I write them down, I can't fairly characterize that as a mistake. Maybe I made a factual error. Maybe I stumble. Maybe I shouldn't have said one paragraph.

That whole thing was a mess. That whole thing was an emotional mess. That actually should have been disqualifying, and that should have been the moment where Members of the Republican Party just went over and said: Listen, we have 18 conservative judges. Any of them could get confirmed. This guy is not right for the Bench. This guy is going to be bad for the institution of the Court.

I want to talk a little bit about the Federalist Society, an organization with a mission to alter the legal landscape of the United States. For decades, the Federalist Society has worked to remake the Federal judiciary with the view of power of corporations, Executive authority, social conservatism, and the protection of privilege that is out of the legal mainstream. As Amanda Hollis-Brusky, a professor of politics at Pomona College and the author of ``Ideas with Consequences,'' a study of the Federalist Society, said: ``The idea was to train, credential, and socialize a generation of alternative elites.''

This is because we have Republican Presidents who would nominate and get confirmed Justices that were Republican but not as reliably conservative as they wanted. So the Federalist Society, formed for the purpose of saying, you know, we are not going to get fooled again. We want our stuff. We want our outcomes. We don't want you to actually fairly consider the law and the Constitution and just call balls and strikes and all that. That is what they say. They set up this apparatus to do the opposite; to be very outcome-oriented and to be very conservative. That is what the Federalist Society has done.

This nomination is the latest success story of this ambitious enterprise, and his confirmation will, unfortunately, entrench these judicial views in the Supreme Court for decades to come.

While his views on some issues are known, the Senate and the American people still don't have a full picture of who he is, and that is because at every turn there has been a concerted effort to hide the documents.

Now, this feels like 10 weeks ago, but before the last scandal, what I thought was terribly scandalous was that this man had been in public life, he worked for the government, and so there are tons of records of that, right? You can FOIA it. Most of it is archived because he worked in the White House. In the end, the committee didn't receive 95 percent of the documents related to his public life.

Now, we are not talking about a fishing expedition. We are talking about when he worked in the White House, where are the records of that? We didn't get to see any of it. It was, in my view, a misuse of the process in the Judiciary Committee related to what is considered committee confidential.

In the past, committee confidential essentially means anything that is personally sensitive or anything that is either secret or top secret. Committee confidential is a narrow thing, but what they decided to do is say 95 percent of all the records we just don't get to see. So the U.S. Senate and the public doesn't get to review 95 percent of the records related to Judge Kavanaugh's public service.

These are the reasons I find it hard to believe Judge Kavanaugh is going to have a successful vote tomorrow; and I do understand he will have a successful vote. I guess it is today because we are 3 in the morning.

Judge Kavanaugh's judicial record, his temperament, his views on Executive power should be enough to scare away most Members of this body.

This is a dark day for the Senate, but more important than that--I worry very much about this institution. I worry about the way we have conducted ourselves. I worry about the bastardization of this process. I worry about our ability to come back together. I worry about, the Senate's traditional role, when it is working, is to calm everybody down, is to deal with stuff that is hard. It seems to me that at every stage, instead of being the cooling saucer, instead of being a place where we can deal with tough issues, we serve to inflame the passions of folks on both sides, to cause pain across the country, and to not get to the truth. More important than the institutional aspect, it is a dark day for vulnerable people, women in particular, people of color, indigenous peoples, people with preexisting conditions, people who struggle economically, union members.

The country is feeling torn apart, and the Senate has traditionally played a role in calming tensions down, moving methodically, being fair, and this process is not that. We need another nominee.

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