September 12, 2018
On July 9, 2018, the President nominated Judge Kavanaugh to fill the Supreme Court seat vacated by retiring Justice Anthony Kennedy. Judge Kavanaugh previously served as White House Counsel and Staff Secretary under President George W. Bush, and as Associate Counsel in the Independent Counsel's Office under Independent Counsel Kenneth Starr. He currently sits on the United States Court of Appeals for the D.C. Circuit. In the near future, some of the most important and precedential matters may come before the Supreme Court for a decision. The new justice may be called upon to determine the constitutionality of Special Counsel Robert Mueller's investigation, whether a sitting president can be indicted, and the bounds of the President's power to pardon. With such serious constitutional questions of executive power at stake, I do not believe this President should be making lifetime appointments to the highest court.
Judge Kavanaugh is on record that sitting presidents should be free from criminal investigation and prosecution as a matter of policy. In my view, however, if a president commits a crime, he or she should be held accountable - just like everyone else. We do not know whether a Justice Kavanaugh would apply the rule of law to this President. This question is too important to leave the American people in the dark. Judge Kavanaugh is also on record that a president has authority under the Constitution to fire an independent counsel at will. But under current U.S. Department of Justice (DOJ) regulations, Special Counsel Mueller is now protected from arbitrary removal by the President, and may only be fired for cause by the Deputy Attorney General (as acting Attorney General). Our entire onstitutional system is based on checks and balances. In my view, the DOJ regulations provide a constitutionally acceptable check on the President's power.
Judge Kavanaugh's confirmation hearing was rushed before the Senate before we had a full opportunity to review his record. The Senate Judiciary Committee was notified that a complete review of documents related to his tenure in the executive branch would not be available until October 2018 -- after the Senate votes on this nomination under the Republican majority's current schedule. As of today, only a fraction of Judge Kavanaugh's written record has been made publicly available. This nomination should not have gone forward without full disclosure of these documents to the American people. As ranking member of the Senate Committee on Indian Affairs, I requested the Senate Judiciary Committee Chair to make available all records pertaining to Judge Kavanaugh's involvement with Native American issues during his tenure in the White House. Judge Kavanaugh has a record of hostility toward the rights of indigenous people. Yet, the Chair refused my request. Supreme Court decisions have great consequence to Indian Country, and Judge Kavanaugh's full record should be made available for review.
During his confirmation hearing, Judge Kavanaugh refused to answer questions on where he stands on our most critical constitutional rights -- including a woman's right to choose and the right to marry who you want no matter their gender. These issues are too consequential for Americans not to know his view of the law. A women's right to choose is not the only healthcare right now at risk with the nomination of Judge Kavanaugh. A group of Republican Attorneys General and Governors has filed suit in federal court to gut critical protections provided under the Affordable Care Act (ACA). They want to remove the prohibition on insurance companies from covering people with pre-existing conditions, do away with the restrictions against lifetime limits on benefits, and eviscerate Medicaid expansion. Since Congress passed the ACA in 2010, more than 300,000 New Mexicans have gained access to health care through the ACA and Medicaid Expansion. The ACA has already been successfully tested before the Supreme Court. But a Justice Kavanaugh may do the President's bidding and vote to overturn these critical health care rights.
Judge Kavanaugh's record also shows he favors corporate interests over public health and the environment, workers, and consumers. Interpreting environmental statutes, he has veered far from the legal text to reach the result he wants. For example, he blocked the Environmental Protection Agency (EPA) from protecting "downwind" states from nitrogen oxide and sulfur dioxide coming from "upwind" states under the "Good Neighbor Provision" of the Clean Air Act. These toxic pollutants cause respiratory illnesses and other health risks. In case after case, he has sided against the environment and public health to invalidate EPA rules. This is not the record the American people want from a justice likely to be involved for decades in the most important environmental law decisions.
Judge Kavanaugh also is not likely to put balance back into our campaign finance system. He has been clear that he believes that money equals free speech. Our campaign finance system is broken and in need of urgent repair. Unless we change the rules - either through a Supreme Court decision or congressional action and constitutional amendment - we will continue to see the kind of perverse results where a few super-wealthy individuals and big corporations drown out the many. Based on his record, it is almost certain that a Justice Kavanaugh will not change the rules that now allow unfettered dark money to undermine our elections.
The importance of this Supreme Court nomination cannot be overstated. The American people want a nominee who will act as a check on the powerful and who will ensure that no one stands above the law - even, and especially, the President. Judge Kavanaugh did not give this assurance to the American people, and I cannot support his nomination.
Thank you again for sharing your thoughts with me. Please feel free to contact me with your concerns regarding any federal issue by visiting my website at www.tomudall.senate.gov. For more information, you may also visit my Facebook page at .facebook.com/senatortomudall and receive up to the minute updates through my Twitter page at