Reply from Senator Van Hollen

Dear     ________________________ :

Thank you for contacting me to express your support for Judge Brett Kavanaugh to serve on the U.S. Supreme Court. I appreciate hearing from you and apologize for the delayed response.

I respect your position on this nomination, but reached a different conclusion. I reached my conclusion after thoroughly reading and researching the record of Judge Kavanaugh’s opinions, the White House documents the Senate was provided (unfortunately, thousands of documents were withheld), and other materials provided by organizations that were in support of and in opposition to the nomination.

After reviewing the materials, I concluded that Judge Kavanaugh’s decisions were based less on a fair reading of the law and more on the goal of arriving at a certain policy outcome. As you know, during his presidential campaign, Candidate Trump established a litmus test for any Supreme Court nominee — saying he would pick someone who would overturn a woman's right to reproductive choice as decided in Roe v. Wade. He also campaigned on repealing the Affordable Care Act and criticized Chief Justice John Roberts as “somebody that should have, frankly, ended Obamacare, and he didn’t.” After his election, President Trump asked right-wing groups, like the Heritage Foundation and the Federalist Society, to compile a list of names of candidates that they wanted and who fit his criteria.

Judge Brett Kavanaugh was on that list and apparently met President Trump’s litmus tests. One of Judge Kavanaugh’s former law clerks wrote an article entitled “Brett Kavanaugh Said ObamaCare was Unprecedented and Unlawful'' in order to assure some Senate Republicans that Judge Kavanaugh would rule to undo the protections of the Affordable Care Act. Another one of Judge Kavanaugh's own law clerks said that no other contender on President Trump's list is on record so vigorously criticizing the Affordable Care Act. These are the words of Judge Kavanaugh's law clerks.

The case of Texas v. United States, which threatens to take away protections for millions of people with preexisting conditions, is currently making its way through the Federal courts. It was filed by a group of 20 Republican attorney generals. The Trump Administration took the unusual step of not defending the current law. The Texas case is very likely to end up in the Supreme Court of the United States. And, according to Judge Kavanaugh's own former law clerks, Judge Kavanaugh will rule against the Affordable Care Act -- stripping millions of Americans of their protections for preexisting health conditions.

On the issue of a woman's right to reproductive freedom and choice, Candidate Trump promised he would appoint a Justice to take those rights away. Specifically, he said overturning Roe “will happen automatically, in my opinion, because I am appointing pro-life justices on the court.'' In a July 3, 2018, National Review article, one of Judge Kavanaugh’s former clerks wrote: “No court-of-appeals judge in the nation has a stronger, more consistent record of enforcing restrictions on abortion.''

At the confirmation hearing, Judge Kavanaugh said that Roe v. Wade was an important precedent, and he testified that it was settled law. However, many judicial nominees who have testified before the Senate about settled law have gotten on the Supreme Court and overturned such laws. In fact, Judge Kavanaugh, before he was a judge, stated in a 2003 Bush White House memo that came to light: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since the Court can always overrule its precedent'' -- a clear indication of where Judge Kavanaugh's reasoning lies, especially in light of the testimony from his own law clerks.

Other parts of his record reveal that Judge Kavanaugh consistently rules in favor of powerful special interests and against the public interest. He has sided with those who want to lift all of the restrictions on political campaign expenditures. In one opinion, Judge Kavanaugh wrote that PACs are constitutionally entitled to raise and spend unlimited money in support of candidates for elected office because it was “implausible'' that contributions to independent groups could corrupt candidates. In fact, Judge Kavanaugh has been credited by one campaign finance expert as “the man who created the super-PAC.” Judge Kavanaugh has even suggested that limits on direct contributions to candidates are unconstitutional. Back in March of 2002, in an email, he wrote: “I have heard very few people say that the limits on contributions to candidates are unconstitutional, although I, for one, tend to think those limits have some constitutional problems.'' With Judge Kavanaugh, not only can we expect him to double down on Citizens United, which says that corporations can spend unlimited amounts of money for and against candidates, but he will question the constitutionality of putting limits on direct contributions to candidates.

Judge Kavanaugh was also the pick for those who want corporate power to trump workers' rights, consumers' rights, and environmental protections. The day that Judge Kavanaugh was nominated for the Supreme Court, the White House circulated a letter to corporate leaders that touted the fact that he would protect their interests. The White House proudly noted that he had overruled Federal regulators 75 times on cases involving clean air, consumer protections, net neutrality, and other issues. When it comes to workers' rights, Judge Kavanaugh has routinely sided with corporations that want to prevent workers from unionizing, as he did in a case at President Trump's own hotel in Atlantic City, which at the time had admitted its refusal to bargain with workers in a 2012 case. When the card dealers across several hotels voted to unionize, Judge Kavanaugh and a panel of judges invalidated the will of the workers, overturned an administrative law judge's ruling that the union be certified, and allowed the Trump hotel to continue violating workers' rights.

On environmental issues, Judge Kavanaugh's record shows that time and again, he favors polluters over clean water and clean air. With his confirmation, it will be much harder for Americans to seek redress in the courts, and it will be easier for polluters to continue to pollute the environment. As a circuit court judge, he has written 10 dissenting opinions in environmental cases, and in each one, he has argued against the side that sought to protect the public health and the environment.

Judge Kavanaugh's sweeping view of executive power should cause alarm for everyone. We have all heard the testimony, and we have seen the writings. It is clear that President Trump, who is watching the Mueller investigation get closer and closer to his doorstep, wants a judge who will give excessive deference to the executive branch -- somebody who may be on the Supreme Court when that Court has to decide whether or not President Trump can be subpoenaed in that case or make other decisions regarding the scope of presidential powers.

Those were the reasons I decided to oppose the nomination of Judge Kavanaugh to the Supreme Court even before Dr. Ford’s concerning allegations of sexual misconduct and all the other discussions that followed.

As you know, Judge Kavanaugh was confirmed and now serves on the Supreme Court. I hope that he will prove me wrong in how he decides cases that will impact Americans for generations to come.

Again, thank you for sharing your thoughts with me. While we reached different conclusions, I very much appreciate your input. Please do not hesitate to contact me whenever I may be of service.

Sincerely,

Chris Van Hollen
United States Senator