Executive Session

Floor Speech

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Mr. MARKEY. Madam President, the retirement of Supreme Court Justice Anthony Kennedy has created one of the most consequential vacancies on the High Court that this country has ever seen. There is a reason pundits have often referred to the Supreme Court as the ``Kennedy Court.'' His influence on so many politically salient cases cannot be overstated. During his 30 years on the Supreme Court, Justice Kennedy was often the swing vote in decisions decided 5 to 4 on a divided bench of the Supreme Court. These include some of the most historic cases in our Nation's history: on a woman's right to choose, environmental protections, and same-sex marriage.

In 1992 Justice Kennedy wrote the controlling opinion in Planned Parenthood v. Casey, which reaffirmed Roe v. Wade's core holding that the Constitution protects a woman's right to make a fundamental decision about her own healthcare, including a woman's right to choose.

In 2007 Justice Kennedy joined a 5-to-4 opinion in Massachusetts v. EPA, which held that greenhouse gas emissions are pollutants under the Clean Air Act and that the EPA must regulate those emissions under that statute, unless it can provide a scientific basis for its refusal to do so.

In 2013 Justice Kennedy wrote the majority opinion in United States v. Windsor, striking down as unconstitutional the Defense of Marriage Act because it violated basic due process and equal protection principles by extending certain Federal benefits to opposite-sex married couples but denying those same benefits to same-sex married couples.

In 2015 Justice Kennedy wrote the landmark opinion on same-sex marriage in Obergefell v. Hodges, which held that the Constitution guarantees same-sex couples the right to marriage.

In 2016 Justice Kennedy wrote the majority opinion in Whole Woman's Health v. Hellerstedt, which struck down a restrictive anti-choice law in Texas because it put an undue burden on women's access to reproductive healthcare services.

All of these decisions were decided by the single vote of a single Supreme Court Justice. That Justice was Anthony Kennedy. The Justice who succeeds Anthony Kennedy on the Supreme Court will have the opportunity to leave a deep and lasting mark on issues of the highest constitutional magnitude--issues that impact the health and freedom of women, the environment, LGBTQ rights, consumer protection, labor protections, affirmative action, criminal justice, gun safety, and more.

There are, without a doubt, important issues that will be decided. These will be the most important decisions of our generation, and this Supreme Court will be in a position to make that history.

Justice Kennedy's retirement handed President Trump the opportunity to fulfill his campaign promise to shift the balance of power on the Supreme Court to the far right on these issues. So the President dusted off a preapproved list of candidates for the High Court--a wish list prepared and presented to him by the ultraconservative Federalist Society. This is the same list of candidates that the Federalist Society assured President Trump would satisfy his litmus test of overturning Roe v. Wade and striking down critical healthcare protections. This is the same set of candidates from which the President selected Neil Gorsuch to fill the late Justice Antonin Scalia's seat--the seat that Senate Republicans stole when they violated all norms of Senate procedure by refusing even to hold a hearing on President Obama's nominee, Merrick Garland. In the short time that Justice Gorsuch has been on the Supreme Court, he has proven himself to be every bit of the far-right conservative Justice that the Federalist Society promised he would be.

DC Circuit Court Judge Brett Kavanaugh's name was on that Federalist Society's wish list as well. With the President's nomination of him to the Nation's highest Court, the President has found another Federalist Society-approved jurist whom he believes will pass his litmus test, and that should concern every single American.

Brett Kavanaugh is a judicial conservative's dream come true--a young jurist who will push the Supreme Court to the right for decades to come. His record on issues such as access to healthcare, consumer and environmental protections, and a free and open internet portend a rubberstamp for a conservative, right-wing agenda that would move us backward as a nation.

At the same time, it is very concerning that Judge Kavanaugh, who once served as Ken Starr's top deputy in the White Water and Monica Lewinsky investigations of President Clinton, has said that a sitting President should not be investigated for allegations of wrongdoing, should not be indicted or tried while he is in office, and should not have to participate in civil legal proceedings until he leaves office. This is from a veteran of Ken Starr's staff, leading the investigation against President Clinton throughout the Monica Lewinsky investigation. It is no coincidence that a President who now fears all of these legal actions would nominate a judge who could shield him from those legal actions.

Perhaps the gravest concern that the Kavanaugh nomination raises is the fate of Roe v. Wade. For 45 years, Roe has not just protected access to safe and legal procedures for women in our country, but it has affirmed the constitutional right to privacy. Roe recognizes that all Americans must be able to make their own personal health decisions based on their own beliefs, needs, and circumstances.

Judge Kavanaugh's record on the DC Circuit inspires no confidence that he will protect this fundamental right. He has supported restricting access to contraception, and he recently would have forced an undocumented minor in Texas to delay receiving a safe and legal termination of her pregnancy despite her taking all of the necessary steps to access that procedure under Texas State law. If confirmed, Judge Kavanaugh will almost certainly have more opportunities to inject the government into women's decisions about their own bodies.

Over recent years, State legislators across the country and their allies have pushed the boundaries of restrictions on legal abortion. Challenges to these laws are winding their way through the judicial system now and could certainly land in the welcoming arms of a nominee whom the Federalist Society have assured the President would reverse Roe v. Wade.

Confirming Judge Kavanaugh to the Supreme Court is an invitation for anti-choice advocates to intensify their crusade against women having access to procedures which they choose to make, taking them closer to their dream of overturning Roe v. Wade and turning back the clock on women's health freedom and economic security.

Let's be clear. Overturning Roe wouldn't end these procedures across this country. It would just end safe abortions that women would have access to.

Those across the country who care about protecting individual liberty and autonomy in healthcare decisions, including access to safe and legal procedures, are galvanized and mobilized politically in a way we haven't seen in a generation. They are organized, and I believe they will bring that political power to bear in opposition to the Kavanaugh nomination. Our judicial system--and the Supreme Court, in particular-- has a special role in our democracy as a neutral arbiter of the law. The American people must have faith that this institution and its Justices will uphold this sacred responsibility.

Stepping back and from a larger perspective, looking at the Affordable Care Act, we have to ensure that, ultimately, protections for those with preexisting conditions in the healthcare system, which are guaranteed under ObamaCare, are continued. Every family in our country has somebody with a preexisting condition, and we have to make sure this nomination does not lead to such fundamental changes in the Affordable Care Act, eviscerating those protections and rights.

The President had an opportunity to choose a nominee that would unify this country and assure the public of the independence of the judicial branch. Instead, he shamelessly, in a partisan way, picked someone who would only serve to propel our highest Court into a far-right orthodoxy for generations to come, becoming the ``supreme rightwing court.''

If Judge Kavanaugh is confirmed, women's freedom to make decisions about their bodies, reforms to our healthcare system, the quality of our air and water, and much more will be at risk. This is a critical moment for our country and much too important for any Senator to rubberstamp this nominee in the name of deference to the President.

I am going to fight this nominee every step of the way, and I ask every American to join me in this fight. We will need all Americans to organize, to march, to raise their voices, and to say: Judge Kavanaugh does not represent the values we need on the Supreme Court of the United States of America.

Thank you.

I yield back.

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