Federal Courts and Nominations

RELEASE: On Kavanaugh, At Least Two Key Senators Face “Career-Defining Moment”

CAC President Elizabeth Wydra: “Today, the Judiciary Committee handed the full Senate what amounts to a ‘pig in a poke.’… Senators Collins and Murkowski have dedicated their professional lives to promoting the strength of institutional norms, and their careers have reflected a willingness to buck their party when that was the right thing to do. If their legacies mean anything to them, they must act immediately to stop this nomination from moving any further until the FBI has completed a comprehensive investigation into the serious, credible allegations against Judge Kavanaugh. To confirm Judge Kavanaugh without such an investigation would do incredible damage to the integrity of both the Senate and the Supreme Court. Make no mistake, this is a career-defining moment for both of them, as it is for every other Senator, and a pivotal moment for the nation.”

WASHINGTON—On news today that the Senate Judiciary Committee reported the nomination of Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Anthony Kennedy on the U.S. Supreme Court, to the full Senate on a party line vote, Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

Senate Judiciary Committee Republicans have gravely, perhaps irreparably, wounded the institution they serve this morning. By pushing Judge Kavanaugh’s nomination at all costs, running roughshod over Dr. Christine Blasey Ford and for all practical purposes ignoring her allegations—doing everything in their power to interfere with and block calls for a neutral, objective investigation by the FBI into the credible and profoundly serious charges leveled at Judge Kavanaugh by multiple women—Senate Republican leaders have proven what millions of Americans concluded long ago. They have proven that they care little for protecting America’s oldest and august institutions. They care little for protecting the reputation of the Supreme Court. Perhaps least of all, they care virtually nothing for women who allege sexual abuse by conservative men of privilege. Instead, what they care about—and perhaps all they care about—is power. Installing a hard-right conservative majority on the Court, and showing their hard-right base of voters that they did so, are their only priorities.

Even after the shocking allegations by Julie Swetnick, coming on the heels of those made by Dr. Blasey Ford and Deborah Ramirez, plus multiple witnesses who support their stories, Republican Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley insisted on rushing Judge Kavanaugh through an offensive and obvious sham of a process, making a mockery of the Senate’s advice-and-consent role. They did all of this knowingly and intentionally. They insisted on this even after Dr. Blasey Ford’s compelling in-person testimony yesterday before the Judiciary Committee.

The Constitution requires each Senator to provide their advice and consent before the confirmation of any nominee to the Supreme Court, and they cannot faithfully discharge this duty without having all the facts. The McConnell/Grassley process has been an insult to and dereliction of that solemn responsibility our nation’s Founders assigned them and every Senator.

The Senate divides itself into committees because all 100 Senators cannot conduct all of the nation’s legislative business all at one time. Each of these committees specializes in discrete issues, and the Senators on those committees develop expertise and judgment that the balance of their colleagues are expected to trust, because they themselves are not always privy to the same kind and amount of information available to those committee members, and thus do not possess the same expertise. This process is time-honored and entrenched in the Senate’s practices. However, because of how Chairman Grassley and Republican Leader McConnell have intentionally rigged the management of the Judiciary Committee’s vetting of Judge Kavanaugh, Senators not on the Committee cannot possibly trust the Committee’s recommendation. Millions of pages from Judge Kavanaugh’s record in the George W. Bush White House have been blocked from view. A full and fair investigation by the FBI of the litany of allegations leveled against Judge Kavanaugh has also been blocked.

Today, the Judiciary Committee handed the full Senate what amounts to a “pig in a poke.” Why any Senator would vote to confirm Judge Kavanaugh under such circumstances is incomprehensible. This process should shock any Senator still capable of being shocked by such outrageous treatment of the institution they serve.

Senators Susan Collins and Lisa Murkowski have long been viewed as the two women who hold the fate of this nomination in their hands and that has not changed after today. Senators Collins and Murkowski have dedicated their professional lives to promoting the strength of institutional norms, and their careers have reflected a willingness to buck their party when that was the right thing to do. If their legacies mean anything to them, they must act immediately to stop this nomination from moving any further until the FBI has completed a comprehensive investigation into the serious allegations of sexual assault made against Judge Kavanaugh.

Make no mistake, this is a career-defining moment for both of them, as it is for every Senator, and a pivotal moment for the nation. To confirm Judge Kavanaugh to a lifetime appointment on the Supreme Court without such an FBI investigation is a momentous and unnecessary gamble. Constitutional Accountability Center continues to demand such an investigation.

As a Supreme Court Justice, Brett Kavanaugh would decide cases that will affect the lives of countless Americans for decades. We have already concluded that Judge Kavanaugh has displayed a selective approach to reading the Constitution in his career on the D. C. Circuit, where he often chose to apply or emphasize constitutional provisions he likes while ignoring the parts he does not. We have also detailed his troubling approach to business cases, and our concern that he will be a reliable vote for big business over the interests of all Americans—concerns that are particularly troubling in light of the historic success of the U.S. Chamber of Commerce at the Roberts Court. We have also consistently pointed out President Trump’s repeated abortion litmus test for his Supreme Court nominees, promising over and over again to appoint only “pro-life Justices,” predicting that Roe v. Wade would be overturned if he were able to appoint two or three new Justices to the Court.

In our evaluation, those were reasons enough to oppose Judge Kavanaugh’s confirmation. But even Senators who disagree with us on those counts should nonetheless be disturbed by the conduct of this nomination, and this nominee, to pause long enough to get all the facts about the nominee. There is no timetable. Senator McConnell was proud to hold open Justice Scalia’s seat for over a year. Surely a handful of Republican Senators can require the additional time needed to complete an FBI investigation of Judge Kavanaugh and the claims of his accusers, as the non-partisan American Bar Association has recommended.

No one is entitled to a lifetime appointment on the Supreme Court. It is an incredibly important job, but it is still just that, a job. Before hiring someone to fill that job on behalf of the American people, Senators Collins and Murkowski should be certain that the vote they cast is one they can be proud of—not only next week or next month, or even next year, but for the rest of their lives, as the rulings of a Justice Kavanaugh would affect the lives of the American people for generations to come.

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Now in our tenth year, Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit the new CAC website at www.theusconstitution.org.

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