Ranking Member Nadler Statement on Nomination of Judge Kavanaugh for the Supreme Court of the United States
Yesterday, President Donald Trump nominated Judge Brett Kavanaugh to replace Justice Kennedy as an Associate Justice of the U.S. Supreme Court. With this nomination, President Trump is attempting to fundamentally shift the balance of our highest court, drastically moving it to the right. The addition of Judge Kavanaugh to an already conservative-leaning Court will likely cement extreme legal ideology in this country for the next quarter century, which is why it is so critical that Americans know what is at stake with this nomination.
During his tenure on the federal appeals court for the District of Columbia, Judge Kavanaugh demonstrated a disturbing lack of concern for Americans’ fundamental rights, for the impact of the law on the well-being of ordinary people, and for the separation of powers that maintains our democracy. His record depicts an ideological slant that routinely sides with big business, defers to the influence of money and power in our political process, allows authority to be consolidated under the President without accountability, and believes in limiting protections based on age, race, gender, religion, ability, sexual orientation or national origin afforded under the Constitution.
Such an extreme ideological slant should be of little surprise to those who know Judge Kavanaugh’s record as a partisan lawyer — the consummate Washington insider — who worked for Kenneth Starr and the independent counsel’s office, as well as for President George W. Bush in the White House. On issues ranging from reproductive rights to health and safety to criminal justice to consumer protections, Judge Kavanaugh has routinely shown a restrictive interpretation of the law. From the NRA to oil and gas corporations to religious extremists, Judge Kavanaugh has sided with those working to force their views, beliefs and preferences on others.
In the coming weeks and months, Judge Kavanaugh will be presented to the Senate and the American people as part of the confirmation process. It is the responsibility of the Senate to uncover Judge Kavanaugh’s judicial philosophy during this process, and I trust my Senate Democratic colleagues to do this with great vigor and commitment, knowing what is at stake for the country. Equally, the American people must understand what rights, protections and freedoms are potentially on the line should President Trump’s nominee be confirmed by a majority in the Senate. Here are a few examples of what is at stake:
Reproductive Rights: What we can review of Judge Kavanaugh’s record demonstrates that he poses a true threat to women’s rights. Last year, Judge Kavanaugh dissented from the D.C. Circuit Court’s decision that a young, undocumented woman being held by the Office of Refugee Resettlement (ORR) could not be prevented from having an abortion. Judge Kavanaugh would have allowed ORR to deny her constitutional right to have an abortion. And Judge Kavanaugh has also shown hostility to contraceptive coverage. In another dissent from a D.C. Circuit Court decision, he would have allowed employers to impose their religious beliefs on employees by denying them contraception coverage guaranteed by the Affordable Care Act. This would have left hundreds of thousands of women with no way to afford contraception simply because their employers objected to it.
Even without these decisions, we know that President Trump promised to nominate only candidates who oppose Roe v. Wade, going so far as to say the long-standing precedent that upholds women’s right to access abortion would be overturned during his presidency. The question must be directly put to Judge Kavanaugh, so the American people know whether he believes Roe v. Wade’s fundamental holding that a woman has a constitutional right to choose is settled law that the Court should not undermine.
Civil Rights and Civil Liberties: At risk with the next Supreme Court Justice, and the ideological swing of the Court, are voting rights enforcement, affirmative action in higher education, the rights of the accused in criminal cases, and the rights of employees who face racial, gender, or religious discrimination. With Judge Kavanaugh’s nomination, civil rights for racial, ethnic and religious minorities, women, and immigrants hang in the balance.
LGBT Equality: Given his conservative record, a Justice Kavanaugh would likely vote to roll back fundamental civil rights protections for LGBT Americans. At risk is the power of states and localities to prohibit discrimination against LGBT individuals, the ability of transgender persons to serve openly in the military, and the right of LGBT people not to be excluded from businesses open to the public. Landmark decisions such as Windsor and Obergefell, which established the right to marriage equality for same-sex couples across the country, could be in jeopardy.
Health Care and Public Health and Safety Protections: Given his expansive views of executive power, Judge Kavanaugh is likely to affirm the completely meritless argument that key provision of the Affordable Care Act are unconstitutional, undermining critical health care protections — particularly for the most vulnerable Americans. Judge Kavanaugh has shown a broad hostility to the ability of administrative agencies to carry out Congressional mandates by issuing regulations that protect the air we breathe, the water we drink, and the food we eat, as well as ensuring the safety of our cars, our workplaces, and the toys our children play with. He has repeatedly voted to strike down actions by the Environmental Protection Agency, and, particularly, to curb Obama-era EPA rules meant to protect the public from the hazards of a polluted environment.
Labor Rights: Judge Kavanaugh has consistently favored the interests of big businesses over the interests of ordinary people in one area of law after another, and labor rights are no exception. In 2016, Judge Kavanaugh voted to overturn a National Labor Relations Board ruling that favored union members’ rights to display pro-union signs in their cars on the employer’s property. With recent Supreme Court decisions overturning long-established law upholding the rights of workers in the workplace, Judge Kavanaugh’s appointment could result in the further erosion of these important protections.
Campaign Finance: Given his favoritism towards big corporations, Judge Kavanaugh is likely to be hostile towards attempts to rein in runaway special-interest campaign spending. The Supreme Court has already inappropriately struck down efforts by Congress to curtail the influence of big money in politics, and Judge Kavanaugh is likely to make this bad situation worse. Decisions like Citizens United could become a regular occurrence, further empowering large financial interest groups to exert their influence on our democratic process at the expense of American voters.
Separation of Powers and the Rule of Law: Given the ongoing investigation by Special Counsel Robert Mueller into links between the Trump campaign and the Russian government, the appointment of Judge Kavanaugh could be of monumental significance for the rule of law and the separation of powers. Judge Kavanaugh has not only suggested that “a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office,” but has also expressed the view that requiring a President to submit to civil or criminal subpoenas — as the Supreme Court required of Presidents Nixon and Clinton — is an undue burden on the presidency. This view could hamstring the Special Counsel investigation and make it more difficult for Congress to check President Trump. This kind of deference could also have troubling implications for any charges of obstruction of justice that may arise against the President, questions about self-pardons and pardons for close associates of the President, and the authority of the President to fire the Special Counsel.
These are just a handful of the issues that are at stake with this nomination. As I noted when Justice Kennedy announced his retirement, the Supreme Court was losing a Justice who served as a bulwark against extreme conservative ideology on certain issues like reproductive rights, marriage equality, and affirmative action, and that whoever replaced Justice Kennedy must be an honest and fair-minded arbiter who does not believe in an imperial presidency and will uphold and defend the rights of all Americans. Based on his record, Judge Kavanaugh falls well short of this test, which is why I oppose his nomination and urge my Senate colleagues to do the same.