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Kaine Statement on Judge Kavanaugh

WASHINGTON, D.C. – U.S. Senator Tim Kaine released the following statement today on his decision to vote against the nomination of Judge Brett Kavanaugh to the Supreme Court:

“I will oppose the nomination of Judge Brett Kavanaugh to the United States Supreme Court. I have diligently studied his record of academic writings and judicial opinions. I have read the limited documents we’ve been provided from his time working for Independent Counsel Kenneth Starr and the Administration of President George W. Bush. I have interviewed him face-to-face in my office. And I have observed his testimony before the Senate Judiciary Committee. I conclude that Judge Kavanaugh should not be confirmed to the Supreme Court, particularly at this pivotal time in our nation’s history, because he cannot be counted on to serve as an independent check on the President or to uphold critical precedents that affect the wellbeing of millions of Americans.

“First, Judge Kavanaugh has failed to show he’ll be an independent check against unlawful action by the President. He has said that a 1988 Supreme Court opinion upholding, by a 7-1 vote, an independent counsel to investigate the President was wrongly decided. He has suggested that the unanimous Supreme Court opinion forcing President Nixon to comply with a subpoena and turn over secret tapes was wrongly decided. He refused to say in his confirmation hearing whether a President must comply with a lawfully issued subpoena. He would not say whether a President could pardon himself. He has written, with no significant legal authority for the proposition, that a President may refuse to enforce a law validly passed by Congress even if that law has been upheld as Constitutional by the Supreme Court. He refuses to criticize this President’s scorched-earth attacks on the Mueller investigation and our nation’s law enforcement officials, even though he bitterly complained about President Clinton’s criticism of Kenneth Starr. And in many opinions in cases of individuals challenging government action, even torture, he has found all manner of reasons to reject the claims of persons in favor of a broad view of executive power.

“I asked Judge Kavanaugh about these matters when I interviewed him. I sought no commitment on future cases but just endeavored to understand what he had written in the past. I was searching for something basic—would he have the backbone to stand against a President if the law compelled such a result? And I watched his testimony with the same question in mind. Although he offered some context and backtracking to potentially soften his pattern of excessive deference to the executive, those efforts suggested, at best, only ambivalence, not a firm commitment to independence. 

“Second, Judge Kavanaugh’s views about Supreme Court precedent do not inspire confidence. He has stated in his hearings that he views Roe v. Wade as ‘settled law.’ But in a 2003 email while working for the Bush Administration he resisted characterizing Roe as ‘settled law’ since the ‘Court can always overrule its precedent and three current Justices on the Court would do so.’ The number of justices on the Court who are hostile to reproductive rights has only grown since 2003. And given Judge Kavanaugh’s professed admiration for Justice Rehnquist’s dissenting opinion in Roe, there is a significant possibility that he would join that group to deny women their right to make reproductive health care decisions.

“The candid admission that the ‘Court can always overrule its precedent’ raises a whole series of questions about what other ‘settled’ areas of law—in an era of 5-4 Supreme Court decisions—might suddenly be unsettled by this nominee. The constitutionality of the Affordable Care Act, the right of same-sex couples to marry, key immigration issues, the acceptability of reasonable rules to reduce gun violence, the ability to detain U.S. citizens as enemy combatants, and so many other issues currently under discussion could shift dramatically with this nominee. With the expectation that the Court could soon take up another challenge to the ACA and its protections for people with pre-existing conditions, these matters are more than just hypothetical to families in Virginia who worry about losing their care. Judge Kavanaugh’s selective refusal to answer questions about issues deeply important to millions of Americans did nothing to allay these fears. And these concerns are magnified by the Administration’s unwillingness to produce over 100,000 pages of his written records, material that would likely shed additional light on his views.

“After waging a successful battle in 2016 to maintain a Supreme Court vacancy that occurred nine months before an election, the Senate GOP majority is trying to force through a rushed vote to fill a vacancy that occurred three months before a Senate election. To do so, they are pushing through the nominee weeks before Senators have access to documents that even the GOP majority acknowledge are relevant to the body’s deliberations. This rush reveals a desire to hide aspects of Judge Kavanaugh’s written record.

“We have always needed a Court independent of Congress and the Executive. We give federal judges life tenure so they can declare a Presidential action or Congressional statute unconstitutional without fear of losing their jobs. That independence is needed now more than ever with a President who disrespects so many of our democratic norms and institutions. His actions have and will continue to create an avalanche of litigation, much of which will be decided by the United States Supreme Court. This nomination—in a manner unique in our history—is akin to a President picking a juror for his own trial. And thus the stakes are high—we must make sure that the nominee has the character of independence that the Framers sought when they designed our government.

“I acknowledge that Judge Kavanaugh is a hard-working public servant who has won the admiration of many. His position on the appellate court will give him the ability to shape American law for a long time, subject, of course, to review by the Supreme Court. But in these troubling times, I fear his confirmation to the Supreme Court would compromise judicial independence and threaten critical precedents.”

Kaine practiced as a civil rights lawyer for 17 years with cases in state and federal trial and appellate courts, including the United States Supreme Court. He also taught constitutional law and legal ethics at the University of Richmond Law School. As Governor of Virginia, he appointed numerous trial and appellate court judges to serve in state courts.