Heinrich Delivers Floor Speech On Kavanaugh's Nomination To The Supreme Court

WASHINGTON, D.C. (Aug. 22, 2018) – In a speech delivered on the Senate Floor today, U.S. Senator Martin Heinrich (D-N.M.) spoke out against the nomination of Brett Kavanaugh to serve on the Supreme Court.  In his remarks, Senator Heinrich outlined the issues at stake and urged his colleagues to oppose his nomination. 

Yesterday, Senator Heinrich sent a letter to the Senate Judiciary Committee Chairman demanding full transparency on Judge Kavanaugh's record.

Senator Heinrich's remarks as prepared for delivery are below:

I rise today to call on each of us to take seriously one of our most important duties as United States Senators.

Our constitutional duty to provide "advice and consent" on presidential appointments to the Supreme Court.

As we all know, over the last three years, the longstanding tradition of building bipartisan consensus in the Senate around nominees to our highest court was thrown into the ash heap of history.

The Majority Leader and Senate Republicans completely dismantled the rules that made "advice and consent" real in the United States Senate. All to steal a Supreme Court nominee from our last president.

By making nominations to the highest court-perhaps the most consequential votes we take as senators-subject to only a simple-majority vote, Republicans rigged the system to made it possible for the most extreme nominees to make it to the bench.  

Before they broke the rules, requiring 60 votes ensured both parties would have a real seat at the table and that mainstream nominees would be nominated and confirmed with the "advice and consent" of the Senate.  

Now we have been told that we must accept the resulting "new normal" of a politicized and completely partisan selection process to fill any new vacancy on the Court.

Well, I refuse to legitimize this broken process.

Under these broken rules, the minority party, even in as closely divided Senate as we currently have today, has effectively zero ability to say, "Wait." 

"Hold up." 

"There is something about this nominee that is too extreme or disqualifying for a lifetime appointment to the highest court in the land."

That's not democratic.

That's not what the Founders had in mind when they created the Senate as a deliberative body. 

This body was intended by the Founders to be the methodical answer to the fiery passions of the day, not an amplifier of them.  And I fear this broken system will create potentially disastrous consequences for the health of our democracy. 

It has already resulted in a crisis of confidence where the public no longer views our Supreme Court as independent. And frankly, the public is correct. Not just because of the precedent it set and hostility that is created, but also because of the nominee before us. Because President Trump knew going in that he would not need a single Democratic vote, he went straight to a pre-determined list of names given to him by the Heritage Foundation and the Federalist Society.

That meant the President only considered nominees that fulfilled all of the ultra-conservative special interest litmus tests.  This ensures each of the judges he considered opposed women's health care, environmental protections, and workers' rights.  

You don't have to take my word for that. 

President Trump was very explicit on the campaign trail in saying he would only choose from this list of extreme conservatives for the Supreme Court. And without real advice and consent, there is no counterbalance and no real voice for Americans who don't want to see the country unrecognizably changed forever by his ultra-conservative court packing.

So we have been asked to go through the motions of a broken and partisan confirmation process for a nominee with a troubling and dangerous track record.

If confirmed, a Justice Brett Kavanaugh would be a deciding vote on so many important issues that I have no doubt will come before the Supreme Court. 

Would a confirmation process in which both parties had a real seat at the table produce a nominee that believes polluters should be able to poison our air and water unchecked?

A nominee who does not believe women have the right to make decisions about their own private health care needs?

A nominee who has ruled against well-established rights to privacy?

No.

And that's precisely the point. 

Judge Kavanaugh's hyper-partisan opinions, formed over a lifetime as a Republican D.C. operative, will influence his decisions from the bench. 

He is out of touch with consensus views held by the American people, and his extreme views could drastically alter our daily lives.

Judge Kavanaugh is exactly the type of ideologue and politically motivated nominee that we can expect to see not just for this seat, but for all Supreme Court seats moving forward, if we allow the Senate rules for providing "advice and consent" to remain in tatters.

But I worry that by rushing this through on a completely party-line vote, we are enabling an even greater threat to our democratic institutions, and to our republic itself. And that's because, from what we do know about his judicial record, work experience, and writings, Judge Kavanaugh believes in giving a disturbing amount of deference to the executive branch and to the President of the United States.

Judge Kavanaugh has written and delivered clear statements saying that he believes a sitting president should not have to face prosecution, criminal investigation, subpoenas, or civil litigation.

To be clear, this Judge believes the President is above the law.

This is the United States of America. 

No one, I repeat no one, is above the law.

It really makes you wonder why President Trump would pick him for a potentially deciding vote on the Supreme Court, doesn't it?

Do I need to remind you that our President and members of his campaign team remain under federal investigation for coordinating with the Russian government's interference in our election?

Just yesterday, the President's long-time attorney and his campaign chairman were each declared guilty of eight separate federal crimes. 

In his guilty plea for campaign finance violations, the President's former attorney, Michael Cohen, implicated the President himself in coordinating payoffs to women who alleged affairs in an effort to influence the election.

Look, combine all of President Trump's ongoing legal troubles with his unbalanced and impulsive style of governing.

There are many plausible-and even likely- questions about the scope of the executive branch's authority that could come before the Supreme Court.

Especially after yesterday's major developments, this is no longer a hypothetical. 

We don't know enough about how Judge Kavanaugh might rule on these questions. But what we do know is deeply concerning.

Judge Kavanaugh has questioned whether presidents should be forced to answer to civil lawsuits, criminal investigations, or questions from a prosecutor while they are in office.

That's unbelievable.

In another example, before he became a judge, Kavanaugh said that he thought the Supreme Court made an "erroneous decision" when it unanimously ruled that President Nixon needed to turn over White House tapes that ultimately proved the role he played in trying to cover up the Watergate scandal.

Kavanaugh has also stated that he opposed the post-Watergate Special Counsel law, and implied that nothing limits the President's authority to terminate a Special Counsel with or without cause. 

It is easy to see how Judge Kavanaugh's views on executive power are especially dangerous during these times.

This view of an executive branch untethered from the checks and balances that form the very norms of our political system should terrify Senators on both sides of the aisle who believe that the separation of powers is a cornerstone of American democracy.  

On top of this, we need to know more about Judge Kavanaugh's actions when he was in the executive branch as a high ranking official in the George W. Bush White House.

Judge Kavanaugh served on the legal team and as the Staff Secretary to President Bush during controversial abuses of executive power.

Senate Republicans have so far obstructed requests to review all of the records that would show what role Kavanaugh played in determining the legality of President Bush's policies.

What side did he take as the Bush Administration's CIA used illegal torture techniques such as waterboarding?

Was he aware of the Bush Administration's warrantless mass surveillance of Americans phone and internet records?

These are unanswered questions until we are able to review relevant presidential records-the same type of review we've been able to do for past nominees when there was real advice and consent. 

The National Archives told Senator Grassley, the Chairman of the Judiciary Committee, that it cannot physically process all of the relevant records until October.

And yet Senate Republicans have scheduled confirmation hearings and then a likely confirmation vote for Judge Kavanaugh to begin in early September. 

We should never proceed on a confirmation vote for a lifetime appointment to the Supreme Court until we have done our due diligence in reviewing every relevant document on a nominee's record.

We should not proceed on Judge Kavanaugh's nomination until we have clear answers to highly important questions about his actions in the Bush White House.

Under a functioning confirmation process the need to review these records would not even be up for debate.

It's just plain common-sense, and part of our constitutional duty to carefully and methodically review the qualifications of nominees as part of providing "advice and consent."

But unfortunately, as is obvious to anyone watching this process unfold, the United States Senate is no longer operating under rules that ensure a fair process.

Instead Republicans are rushing to push this nomination through at a breakneck pace so they can confirm Judge Kavanaugh before this fall's election.

Regardless of legitimate questions about his record. 

Regardless of the dangerous consequences of his extreme views on so many important issues.

At a time when our democratic institutions are under attack - from undermining the free press to foreign influence in our elections - we should be very careful in weighing who sits on our highest court.

Once again, I plead with my colleagues, we can do better than this. 

We must restore "advice and consent" in the Senate before we confirm any nominee that will be tainted by this partisan, broken system.

I call on each of us to work together to create a better system, to restore a bipartisan process that can build consensus and see us through these politically turbulent times.

Until we restore a fair confirmation process, I will fight alongside the American people who are demanding that we do the jobs they elected us to do with the seriousness required to get this right.