Trump's Lifelong Legacy: Stacking the Courts

Floor Speech

Date: July 23, 2018
Location: Washington, DC
Issues: Judicial Branch


Ms. NORTON. Mr. Speaker, I very much appreciate the kind words of my friend from Pennsylvania, and I certainly appreciate his leadership of this Special Order this evening. It is a subject of immense importance to the American people, none more so, Mr. Speaker, than people of color in the United States of America.

So I would like to begin this Special Order by speaking about President Trump's district and circuit court nominees and then about his Supreme Court nominee, Brett Kavanaugh, who serves on the Court of Appeals for the District of Columbia. That is the circuit of my own home district, the District of Columbia.

Mr. Speaker, long before I came to the House, I had the distinct honor of arguing and winning a case before the United States Supreme Court. That case was a free speech case where I represented plaintiffs with whom I profoundly disagreed. As we look at the President's nominees, especially to the Supreme Court, one wonders today how these nominees would rule.

Let's look first at President Trump's nominees so far to the circuit courts and the district court. This is an amazing, unprecedented figure for the 21st century. His nominees are 90.1 percent white, 2.3 percent African American.

Now, one way to look at this is to look at another Republican President. So I said to my staff: Find the racial makeup of President Bush's nominees.

Remember, African Americans don't expect a Republican President to offer anything like the number of nominees of, for example, President Barack Obama, not because he was African American, but because he was, after all, a Democrat. That is not the standard to which I am holding this President. The standard I am holding this President to is, by comparison, to Republican Presidents.

The lion's share of President Bush's appointees was also White. I had no complaint then. I don't recall the Congressional Black Caucus taking to the floor and saying: How come the lion's share of President Bush's nominees was White, more than 85 percent?

That reflected his party and his supporters.

But 8.5 percent of President Bush's nominees were African American, compared to 2.3 percent of Trump's nominees. So that means that President Bush--and I am looking at the comparable period; I am not looking at his overall two terms in office; I am looking at up until now--he had appointed three times as many African Americans to the bench. Far more Whites, and I have no complaint about that.

But the Supreme Court and the Federal courts have meant everything to African Americans. I do not need to point out that the political bodies, the House and the Senate, took many years to recognize equal protection for African Americans. It didn't happen, indeed, until the courts made it happen in Brown v. Board of Education in 1954, showing, I think, that the courts are of immense importance to a group that is not the majority and must depend upon the fairness of the majority and even more so on the courts, which are supposed to play no favorites whatsoever, only to equal justice under the law.

The President and the Republican Senate have made the Federal courts a top priority. I believe they have appointed as many as 40 nominees, if I am not mistaken. In fact, the Supreme Court means so much to them, even though they already have a majority on the Supreme Court with their most recent nominee, it means so much to them that our Republican friends in the Senate are wiping out their entire August recess to stay here to try to get Brett Kavanaugh nominated, and there is a fierce fight underway.

I am speaking about not only Brett Kavanaugh, the judge who sits on the D.C. Circuit Court of Appeals, but I want to give you some sense of judges who sit on other circuits in other district courts, to make it clear why the Congressional Black Caucus is so alarmed at what is happening with federal court nominees.

Some Federal court nominees proposed by this President have had to be rejected because they were unacceptable on any court, beyond any sense of conservatism.

Most recently--I believe it was just last week--Ryan Bounds was to serve on the Ninth Circuit Court of Appeals. A Republican Senate forced Majority Leader Mitch McConnell to withdraw his name because two Republican Senators, Senator Tim Scott of South Carolina and Senator Marco Rubio of Florida, had indicated that they could not vote for Ryan Bounds because of remarks he had made on multiculturalism and racial issues. You don't want anybody on the bench who has already shown racial animus.

Since the Senate is so closely divided--51 Republicans to 49 Democrats--they were forced to withdraw Ryan Bounds' nomination.

I point that out to let you know that it is not a done deal that Brett Kavanaugh will go on the Supreme Court. That close number is going to hold up, we think, not only for Democrats, but when Senate hearings are over, we believe it will be very difficult even for some of our Republican friends to vote for Judge Kavanaugh.

Remember, the Senate represents a rather broad swath of people, so they will have to watch out for their own elections as well.

Let me give another example of how extreme President Trump's nominees to the Federal courts can be. Three more have had to be withdrawn related to race. Again, I am going to give you examples, and you will say nobody would ever have nominated such people to any court in the United States.

Last year, the White House was forced to withdraw a district court nominee, Brett Talley. What forced his withdrawal were reports that he had defended the first Ku Klux Klan in an online post--that is, the first, I suppose, emergence of the Ku Klux Klan--as recently as in a 2011 posting.

Jeff Mateer had his nomination withdrawn over reports that transgender children were--and I am quoting him now--part of ``Satan's plan.''

Now, look, if I were to call out these remarks, you might think that nobody thought of for the Federal bench would be who I was talking about, but that is exactly who we were talking about. That is why the Congressional Black Caucus cannot possibly support Judge Kavanaugh.

We understand that whatever nominee comes forward is going to be a conservative nominee. We are not asking for the nominee we would appoint. We are simply not asking for and will do all we can to oppose nominees who are beyond the American pale. I am speaking for the Congressional Black Caucus, which represents 17 million African Americans.

It is interesting to note that we have, in looking at Judge Kavanaugh, and here I am going on to the Supreme Court, in looking at his decisions, we have grown truly concerned about his lack of respect for precedent. I say that even though, increasingly, these precedents run against us. But when they have run for us, they have been on matters of equal protection under the law. And Judge Kavanaugh has shown an uncommon disrespect for precedent.

I invite my Republican friends, who also respect precedent because many of those precedents will reinforce their own views, to be leery of any judge who disregards precedent. His views on civil rights and equal protection have been out of the mainstream, but there haven't been a lot of them, so I have had to look closely to see what his views actually are.

I must say that, even his conservative colleagues and, I must emphasize, on the D.C. Circuit, which is now a conservative circuit with more Republican judges than Democratic judges, have often had to disagree with their colleague Judge Kavanaugh. He has achieved a higher number of dissents than any member of the D.C. Circuit Court annually.

How could that happen? This is a conservative court. Who is he dissenting from? He is dissenting from not only the Democratic appointees but from his own colleagues appointed by Republicans.

Now, of course, the notion of equal protection has disproportionately protected minorities and women, so we are very mindful of such decisions, even when they don't directly entail people of color whom we directly represent.

For example, we are concerned that no Americans be arrested without probable cause, and if you are a minority in any country, the probability of arrest will be greater than if you are among the majority.

We are concerned about the Affordable Care Act, again because of the disproportionate number of African Americans who are affected.

I am going to cite some decisions that show that Judge Kavanaugh cannot be trusted to uphold what even his conservative colleagues have said on such issues as these.

Let us look at arrests without probable cause. I bring that up because of the churning of relevent issues in our country. A week does not go by that there hasn't been a shooting of an African American by a police officer. This issue is among the very top in the African American community, the concern about overzealous police officers.

Kavanaugh has both spoken out and written, over and over again, in such a way to indicate that he would weaken probable cause standards that have stood for the ages--that is how long they have been there-- making them, as he has written, more flexible.

As you consider this possible change as one about which African Americans are concerned, I hope you understand that most of the people who need probable cause in this country are White.

So decisions making it easier to do searches without a warrant or ``individualized suspicion''--I am quoting him--are decisions he believes need to be looked at more closely, even though the existing precedents has been clear, and they have not been challenged in other circuits.

Perhaps the rule that most Americans understand best is the so-called Miranda rule. That is a rule that says you don't have to incriminate yourself. Judge Kavanaugh appears to want to narrow that rule. I didn't think I would ever see the day when, after decades--must be 50 years-- of Miranda juris prudence, there would be any judge sitting on any bench who would want to narrow the self-incrimination rule.

Of special interest to African Americans are Judge Kavanaugh's apparent views on Roe v. Wade, or the right of a woman to choice. We don't know precisely where he stands on choice, but there is a very troubling precedent from this circuit involving an undocumented woman who had been found to be entitled to an abortion.

Now, that hadn't happened here. The case was in the D.C. Circuit, but the ruling was from a Texas court, perhaps the most conservative on matters of abortion, which made this woman go through many steps before deciding that she, indeed, qualified under Roe v. Wade for an abortion.

Judge Kavanaugh tried to do something that is unfathomable. The time was running. The House wants abortions done within 20 weeks. Roe v. Wade allows more time. The time was running, but Judge Kavanaugh ruled that she should have to get a sponsor before she could, in fact, enforce her constitutional rights to choice. His own court overruled Judge Kavanaugh.

I bring that up in no small part because African American women, for example, use abortion at a rate that is beyond the average American woman, so this issue matters to the Congressional Black Caucus.

On the Affordable Care Act, we have perhaps the most astonishing of Judge Kavanaugh's decisions. He hasn't said the ACA is unconstitutional. That is pretty hard to say at the circuit court level. But he has said something that has never been said before in American juris prudence: that a President may decline to enforce a law even after the Supreme Court has said that the law or statute is constitutional.

Understand what this means. The Affordable Care Act has been found to be constitutional. Yes, there are still attempts in this House to overturn it, but it stands. It is so popular that, while Brett Kavanaugh is being discussed in the Senate during the month of August, Senate Democrats are going to be talking about the Affordable Care Act because it has become one of the most popular laws in the United States today, even though the Republicans have done all they could to cripple it.

Judge Kavanaugh has said that the President may decline to enforce a law like the Affordable Care Act even after it is found to be constitutional. What happens to the rule of law if that becomes the standing law of the United States?

This is not just a wrong view but a dangerous view. It would allow Presidents to pick and choose which laws to enforce, notwithstanding the courts, that a President could stand as the sole decider of what laws to enforce, notwithstanding the jurisdiction of the United States Supreme Court.

Mr. Speaker, Brett Kavanaugh isn't fit to go to the Supreme Court of the United States based on the record he has shown. Yet Judge Kavanaugh seems to have gone out of his way to try to write his way onto the Supreme Court.

Why would he write so often in dissent? Why would he so often in write the law, views that are uncommon among Republicans?

I think he was trying to draw the attention of President Trump. And one of the reasons I think so is the last issue I will discuss, and that is this nominee's view, Judge Kavanaugh's view, of the independent counsel. You really had to dig this one up.

As recently as 2017, he dug back into a decision of long ago. This is a 1988 decision, Morrison v. Olson. He said he had not agreed with the author of the decision. It was Chief Justice William Rehnquist, the Republican Chief Justice. But he went out of his way to wonder about Judge Rehnquist's holding in that case, Morrison v. Olson, that the independent counsel was constitutional.

Why has Judge Kavanaugh gone out of his way to talk about the independent counsel when, in fact, there was no such case before him?

I think he was sending a signal to this President: Don't worry about the independent counsel as far as I am concerned. I quarrel with whether or not the independent counsel law is constitutional.

If there wasn't an independent counsel law, really, what would be the deterrent to a lawless President?

The deterrent, of course, would have to be impeachment. Impeachment is understood to be a political but difficult process. That is why it is very hard to get.

So right now, we have matters before the independent counsel that, indeed, are ordinary criminal and civil matters. The notion that somebody sitting on any Federal court of the United States believes that the independent counsel statute is unconstitutional or could be-- he hasn't said that it is unconstitutional. He has come so close to it that it is noteworthy, for anyone judging whether he should go on the Supreme Court of the United States.

Judge Kavanaugh has demonstrated such a departure from established American law that one wonders why he wants to be on the Supreme Court of the United States. He has made a lifetime record of numerous dissents, I think, in order to show that he means to bring an even sharper departure from precedent than we have seen.

One of the most important and most conservative ways in which the courts operate is by precedent. So it is very hard to overturn precedent. But a determined member of the Court can chip away at precedent, and, we are sure, can chip away at the rights of the minority who is disproportionately dependent on a fair Supreme Court.

So I say to my good friend from Pennsylvania that we have our work cut out for us. But the President's district and circuit nominees have not all been upheld, and that should encourage us to know that, while we are not in the Senate, we do have two members of the Congressional Black Caucus who are in the Senate, and we must all be doing all we can here in the House to help them make the American people understand what is at stake and to make sure that the Court of Appeals for the District of Columbia Judge Brett Kavanaugh, does not become a member of the Supreme Court of the United States.

I thank my good friend for his leadership this evening.


Ms. NORTON. Mr. Speaker, my good friend who raises the question about Brown v. Board of Education may seem to be raising the question about such settled law, both with the American people and the courts, that it couldn't possibly come up.

If I may first respond to the gentleman by saying that one of President Trump's nominees was asked where she stood on Brown v. Board of Education, and she declined to give an answer. More than 50 years after the Supreme Court, for the first time, recognized that African Americans must be treated the same as everyone else in the United States, we now have a nominee who questions even that precedent.

You may not be able to overturn it, but consider the notion of chipping away any part of it, remembering what it meant is spread now not across schools, but across the juris prudence of equality.

I appreciate the question. I say to my good friend from Pennsylvania, I appreciate the question so that Americans will understand that our opposition to Judge Kavanaugh is not far-fetched, that we are talking about a Supreme Court nominee, who leads us to believe that the most settled of decisions could be rocked by this nominee to the Supreme Court.


Ms. NORTON. Mr. Speaker, that is a most interesting question. And as the gentleman indicated, I pointed out that I didn't expect a Republican President to come anywhere near Democratic Presidents in proposing nominees. However, I don't expect complete disdain for the importance of the courts to African Americans. I would not expect the lowest number of African Americans appointed to the courts of the United States in memory, certainly not since the 20th century in Brown v. Board of Education.

There had been some sense among Republican Presidents that one way to indicate that a Republican President believed in equal justice was to propose some African Americans on the court. Now, when you get to 90 percent--more than 90 percent nominees White, you are sending a very strong message on equal protection to African Americans.

This President has been accused of racism because of some of the things he has said. For example, Charlottesville, when he seemed to be for those killing people and not against them. I am not sure what his personal views are, but I am sure that when he shows disdain for equal protection and has given us no evidence that he understands equal protection, that we have every reason to wonder what it is that he intends to do to show people of every background that he is for equal justice.

It does seem to me that the President needs to make some gesture to indicate that he believes that all people are created equal. The best gesture would be to bite into this 90 percent--this 2 percent figure, a little over 2 percent figure of African Americans appointed to the bench, raise that number, as the Congressional Black Caucus calls on him to do this evening.

He may have, for example, been reacting to those staff who have been giving him judges to appoint, but I say to you, I say to my good friend from Pennsylvania, that there are many Senators who, I am sure, have suggested some qualified African American nominees or could do so.

I would urge the President to wipe away this notion that he thinks the United States of America should have as close to an all White judiciary as he can get by talking to, listening to some Senators who I am almost certain will have already put forward some African Americans, or surely will be doing so in the future


Ms. NORTON. Mr. Speaker, the most important thing I would say to the people is look at that 49-51 figure of how close the Senate is, and within a couple of months, there will be an election. We could turn a lot of this around.

If, as the polls tend to show, Democrats capture the House, and they are increasingly showing that they will keep the Senate, it seems to me all the American people can do now is take it to the ultimate remedy, and that is to change the Congress. And that way, it seems to me, would slow these nominees or get nominees where there will be some consultation with Democrats, as there has been in the past, often, in the Senate because you want to get your nominee through.

So I don't think, by any means, that there is anything to fear because there is an election coming and I believe that what this nominee for the Supreme Court and others for the district courts--and here we have African Americans mindful of the district courts and the courts of appeals throughout the United States. Surely all of that is, forgive the word, ammunition to go to the polls to make sure we halt this stripping of equal protection from the Federal courts of the United States.