[Senate Hearing 108-878]
[From the U.S. Government Publishing Office]
S. Hrg. 108-878
CONFORMATION HEARING ON THE NOMINATION OF BRETT M. KAVANAUGH TO BE
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
APRIL 27, 2004
__________
Serial No. J-108-69
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 146
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 148
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 11
prepared statement........................................... 151
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 7
prepared statement........................................... 155
PRESENTER
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Brett M. Kavanaugh, Nominee to be Ciruit Judge for
the District of Columbia Circuit............................... 4
STATEMENT OF THE NOMINEE
Kavanaugh, Brett M., Nominee to be Circuit Judge for the District
of Columbia Circuit............................................ 13
Questionnaire................................................ 14
QUESTIONS AND ANSWERS
Responses of Brett M. Kavanaugh to questions submitted by
Senators Leahy, Kennedy, Feingold, Schumer and Durbin.......... 93
SUBMISSION FOR THE RECORD
National Association for the Advancement of Colored People,
Hilary O. Shelton, Director, Washington, D.C., letter.......... 152
NOMINATION OF BRETT M. KAVANAUGH, OF THE DISTRICT OF COLUMBIA, TO BE
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
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TUESDAY, APRIL 27, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Kyl, Sessions, Cornyn, Leahy,
Kennedy, Feinstein, Schumer, and Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Good morning. I am pleased to welcome to
the Committee today members, guests, and our nominee, Mr. Brett
Kavanaugh, who has been nominated by President Bush to be
United States Circuit Judge for the District of Columbia
Circuit. We also welcome members of his family. I would note
his father, Mr. Ed Kavanaugh, a long-time president of CTFA. We
all know Ed. We know what a fine person he is and what a great
individual he is, and we all respect him. So we want to welcome
you, Judge, Ed's wife, the mother of Brett, who is a renowned
judge, and we appreciate having both of you here.
Before we turn to the nomination, I want to tell members of
the Committee that I remain hopeful that we can continue to
complete the work of the Committee on both legislation and
nominees. I was disappointed that we were not able to
accomplish more at the markup last week. Earlier this month, we
did report five district judges and two circuit judges. So I do
appreciate the Committee's efforts in that regard.
Now, I remain concerned about the executive calendar and
floor action. I remain hopeful that an accommodation on
nominees can be reached and that floor action can be scheduled
for those judges. The Senate has confirmed only four judges
this year--all district court judges. By comparison, in the
last Presidential election of 2000, with a Democratic President
and a Republican Senate, seven judges had been confirmed by
this point in the year, including five circuit court judges.
Furthermore, we are way behind the pace of that election year,
which saw a total of 39 judges confirmed. And we remain well
behind President Clinton's first-term confirmation total of
203.
So while we have made some progress in reporting nominees
to the full Senate, the work of confirming judges remains. We
presently have 29 judges on the executive calendar. Five
circuit court nominees remain from last year on the executive
calendar in addition to the six reported this year. Eighteen
district nominees are available for Senate confirmation,
including two holdovers from the last session. But we are
making progress, and I thank all members for their support and
ask for their continued cooperation.
Now, today we will consider the nomination of Mr. Brett M.
Kavanaugh. He is an outstanding nominee who has been nominated
to the Circuit Court of Appeals for the District of Columbia.
He comes to us with a sterling resume and a record of
distinguished public service. Mr. Kavanaugh currently serves as
Assistant to the President of the United States and Staff
Secretary, having been appointed to the position by President
George W. Bush in 2003. He previously served in the Office of
Counsel to the President as an Associate Counsel and a Senior
Associate Counsel.
After graduating from Yale Law School in 1990, Mr.
Kavanaugh served as a law clerk for three appellate judges, so
he has extensive judicial experience as well: Justice Anthony
M. Kennedy of the Supreme Court, Judge Alex Kozinski of the
United States Court of Appeals for the Ninth Circuit, and Judge
Walter K. Stapleton of the United States Circuit Court of
Appeals for the Third Circuit. He served for 1 year as an
attorney in the Office of the Solicitor General, where he
prepared briefs and oral arguments.
Mr. Kavanaugh served in the Office of Independent Counsel
under Judge Starr, where he conducted the office's
investigation into the death of former Deputy White House
Counsel Vincent W. Foster, Jr. He also was responsible for
briefs and arguments regarding privilege and other legal
matters that arose during investigations conducted by the
office. Mr. Kavanaugh was part of the team that prepared the
1998 report to Congress regarding possible grounds for
impeachment of the President of the United States.
In addition to this extensive public service, Mr. Kavanaugh
was also in private practice. As a partner at the distinguished
firm of Kirkland and Ellis, one of the great firms in this
country, he worked primarily on appellate and pre-trial briefs
in commercial and constitutional litigation.
Mr. Kavanaugh, as I have said, received his law degree from
Yale Law School, where he was notes editor for the Yale Law
Journal. He is a cum laude graduate of Yale College, where he
received his B.A. degree.
The American Bar Association has rated Mr. Kavanaugh as
``Well Qualified,'' its highest rating. Let me remind everyone
what that rating means. According to guidelines published by
the American Bar Association Standing Committee on Federal
Judiciary, ``To merit a rating of `Well Qualified,' the nominee
must be at the top of the legal profession in his or her legal
community, have outstanding legal ability, breadth of
experience, the highest reputation for integrity and either
have demonstrated, or exhibited the capacity for, judicial
temperament.''
I want to turn now to a few of the arguments which I have
heard raised by a number of Mr. Kavanaugh's opponents and
address some of the concerns I expect to hear today.
First, is that Mr. Kavanaugh is too young and inexperienced
to be given a lifetime appointment to the Federal bench,
particularly to the important Circuit Court of Appeals for the
District of Columbia. Now, there are many examples of judges
who were appointed to the bench at an age similar to Mr.
Kavanaugh, who is 39 years old, and have had illustrious
careers. For example, all three of the judges for whom Mr.
Kavanaugh clerked were appointed to the bench before they were
39, and all have been recognized as distinguished jurists.
Justice Kennedy was appointed to the Ninth Circuit when he was
38 years old; Judge Kozinski was appointed to the Ninth Circuit
when he was 35 years old; and Judge Stapleton was appointed to
the district court at 35 and later elevated to the Third
Circuit Court of Appeals.
I think many of my colleagues would agree that age is not a
factor in public service, other than the constitutional
requirements. I would note that many in this body began their
service in their 30s, if not barely age 30. Through successful
re-elections, we have been benefited from a lifetime of service
from such members of this body and members of the judiciary as
well.
With regard to judicial experience, I would reiterate that
Brett Kavanaugh has all of the qualities necessary to be an
outstanding appellate judge. He has impeccable academic
credentials with extensive experience in the appellate courts
themselves, both as a clerk and as counsel, having argued both
civil and criminal matters before the Supreme Court and
appellate courts throughout this country.
As I have pointed out with previous nominees, a number of
highly successful judges have come to the Federal appellate
bench without prior judicial experience. On this particular
court, the D.C. Circuit, only three of the 19 judges confirmed
since President Carter's term began in 1977 previously had
served as judges. Furthermore, President Clinton nominated and
the Senate confirmed a total of 32 lawyers without any prior
judicial experience to the U.S. Court of Appeals, including
Judges David Tatel and Merrick Garland to the D.C. Circuit.
I would mention that I think the work in the Supreme Court
and the Circuit Courts of Appeals that Mr. Kavanaugh has had,
do qualify him highly, in addition to all the other
qualifications that he has.
Opponents will attempt to portray Mr. Kavanaugh as a right-
wing ideologue who pursues a partisan agenda. I have to tell
you this allegation is totally without merit, and a careful
scrutiny of his record will demonstrate otherwise. He is an
individual who has devoted the majority of his legal career to
public service, not private ideological causes. Within his
public career, he has dedicated his work to legal issues,
always working carefully and thoroughly in a professional
manner.
In short, Mr. Kavanaugh is a person of high integrity, of
skilled professional competence, and outstanding character. He
will be a great addition to the Federal bench, and he has the
highest rating that the American Bar Association can give. And
all of that stands him in good stead.
So I look forward to hearing your testimony and any
responses that you might make to questions from the esteemed
members of this Committee.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Now I will turn to our acting Ranking Member at this time,
Senator Schumer, for any remarks that he would care to make,
and then we will turn to Senator Cornyn, who will introduced
Mr. Kavanaugh. But first I would like to introduce your
fiancee. I will have you do that for us. Why don't you do it
right now?
Mr. Kavanaugh. My fiancee, Ashley Estes, from Abilene,
Texas, is here, as well as my parents, Ed and Martha Kavanaugh.
Chairman Hatch. Ashley, Ed, and Martha, we are so grateful
to have all of you here. Ashley, don't let this affect you,
this meat grinder that we go through around here. Just
understand, okay?
We will turn to Senator Schumer.
Senator Schumer. Mr. Chairman, I will defer to Mr. Cornyn
first to introduce him, and then I will speak.
Chairman Hatch. That will be fine.
PRESENTATION OF BRETT M. KAVANAUGH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY HON. JOHN CORNYN, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. I appreciate that very much, Mr. Chairman
and Senator Schumer, that courtesy. I do just have some brief
comments I want to make by way of introduction.
It is my honor to introduce to the Committee, to supplement
those remarks already made by the Chairman, about a
distinguished attorney and devoted public servant, Brett
Kavanaugh. I have known Brett for several years and had the
privilege of working with him on a case that I argued to the
United States Supreme Court, so I have had the chance to
observe his legal skills from up close. And I have every
confidence that he would be an exceptional jurist on the United
States District Court of Appeals for the D.C. Circuit.
His distinguished academic and professional record confirms
beyond all doubt that he possesses the intellectual ability to
be a Federal judge. His temperament and character demonstrate
that he is well suited to that office. Indeed, I can think of
no better evidence of his sound judgment than the fact he has
chosen to marry a good woman from the great State of Texas, who
has just been introduced to the Committee. Brett deserves the
support of this Committee and the support of the United States
Senate.
As you know, Mr. Chairman, one-fourth of the active D.C.
Circuit Court is currently vacant, and as you know, Mr.
Chairman, the D.C. Circuit is unique among the Federal courts
of appeals. Of course, it is an appellate court, not a trial
court, and appellate judges do not try cases or adjudicate
factual disputes. Instead, they hear arguments about legal
issues. But unlike the docket of other courts of appeals, the
docket of the D.C. Circuit is uniquely focused on the
operations of the Federal Government. Accordingly, attorneys
who have experience working with and within the Federal
Government are uniquely qualified to serve on that
distinguished court.
Brett Kavanaugh is an ideal candidate for the D.C. Circuit.
He has an extensive record of public service. For over a
decade, he has held the most prestigious positions an attorney
can hold in our Federal Government. He is, as you pointed out,
a graduate of Yale College and Yale Law School. He served as
law clerk to three distinguished Federal judges, including
United States Supreme Court Justice Anthony Kennedy.
Brett has also served in the Office of the Solicitor
General representing the U.S. Government in cases before the
United States Supreme Court. He served as a Federal prosecutor
in the Office of Independent Counsel under Hon. Kenneth Starr.
And as you pointed out, he personally has argued civil and
criminal cases in the United States Supreme Court and courts of
appeals throughout the country.
And he has been called upon for his wisdom and counsel by
the President of the United States, first, by his service as
Associate Counsel and Senior Associate Counsel to the
President, and now as Staff Secretary, one of the President's
most trusted senior advisers.
Mr. Chairman, I can think of few attorneys at any age who
can boast this level of experience with the inner workings of
the Federal Government. It is no wonder then that the American
Bar Association has raised him ``Well Qualified'' to serve on
the D.C. Circuit, the gold standard, as you observed.
Ordinarily, a nominee possessing such credentials and
experience would have little difficulty receiving swift
confirmation by the United States Senate. Unfortunately,
observers of this Committee will know that we are not living
under ordinary circumstances today.
I hope that this distinguished nominee will receive fair
treatment. His exceptional record of public service in the
Federal Government will serve him well on the D.C. Circuit
bench. His wisdom and counsel have been trusted at the highest
levels of Government. Yet I fear that it is precisely Brett's
distinguished record of experience that will be used against
him. I sincerely hope that will not happen. After all, it would
be truly a shame to use one's record of service against a
nominee, especially with respect to a court that is so much in
need of jurists who are knowledgeable about the inner workings
of the Federal Government.
Indeed, many successful judicial nominees have brought to
the bench extensive records of service in partisan political
environments. I have often said that when you place your hand
on the Bible and take an oath to serve as a judge, you change.
You learn that your role is no longer partisan, if it once was,
and that your duty is no longer to advocate on behalf of a
party or a client but, rather, to serve as a neutral arbiter of
the law.
The American people understand that when your job changes,
you change, and that people are fully capable of putting aside
their personal beliefs in order to fulfill their professional
duty. That is why this body has traditionally confirmed
nominees with clear records of service in one particular party
or of a particular philosophy.
For example, Ruth Bader Ginsburg served as general counsel
of the ACLU. Of course, it is difficult for me to imagine a
more ideological job than general counsel of the ACLU, yet she
was confirmed by an overwhelming majority of the U.S. Senate,
first by unanimous consent to the D.C. Circuit and then by a
vote of 96-3 to the United States Supreme Court.
Stephen Breyer was the Democrats' chief counsel on the
Senate Judiciary Committee before he, too, was easily confirmed
to the First Circuit and then to the United States Supreme
Court.
Byron White was the second most powerful political
appointee at the Justice Department under President Kennedy
when the Senate confirmed him to the Supreme Court by a voice
vote.
Abner Mikva was a Democrat Member of Congress when he was
confirmed to the D.C. Circuit by a majority of the Senate.
Indeed, as many as 42 of the 54 judges who have served on
the D.C. Circuit came to the bench with political backgrounds,
including service in appointed or elected political office. All
received the respect that they deserved and the courtesy of an
up-or-down vote on the floor of the U.S. Senate, and all
received the support of at least a majority of Senators, as our
Constitution demands.
So, historically, this body and this Committee have
exercise the advise and consent function seriously and
appropriately by emphasizing legal excellence and experience
and not by punishing nominees simply for serving their
political party. It would be tragic for the Federal judiciary
and ultimately harmful to the American people who depend on it
to establish a new standard today and declare that any lawyer
who takes on a political client is somehow disqualified for
confirmation, no matter how talented, how devoted, or how fit
for the Federal bench they may truly be.
Brett Kavanaugh is a skilled attorney who has demonstrated
his commitment to public service throughout his life and
career. He happens to be a Republican, and he happens to be
close to the President. This is a Presidential election year,
but the rigorous fight for the White House should not spill
over to the judicial confirmation process any more than it
already has. Last year, it was wrong for close friends of the
President, like Texas Supreme Court Justice Priscilla Owen, to
be denied the basic courtesy and Senate tradition of an up-or-
down vote simply to score political points against the
President. And this year, it would be terribly wrong for Brett
to be denied confirmation or at least an up-or-down vote simply
because he has ably and consistently served his President, his
party, and his country.
And, with that, I thank you, Mr. Chairman.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Chairman Hatch. Thank you, Senator. Normally we would defer
to the Democrat leader on the Committee, Senator Leahy, but he
has asked that I first go to Senator Schumer, and then the last
statement will be made by Senator Leahy, and then we will turn
to you for any statement you would care to make, Mr. Kavanaugh.
Senator Schumer?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. And, first, I
want to welcome Brett Kavanaugh, his parents, and his fiancee
to today's hearing. Something tells me this won't be the
easiest or the most enjoyable hearing for them or for us. But I
know that Brett appreciates what an important position he has
been nominated to and how important this process is, and I know
how proud his family is of him.
Now, Mr. Chairman, it is really unfortunate we have to be
here again on another controversial nomination. It is
unfortunate because it is so unnecessary. We have offered time
and time and time again to work with the administration to
identify well-qualified, mainstream conservatives for these
judgeships, especially on the D.C. Circuit. Instead, the White
House insists on giving us extreme ideological picks.
In this instance, the nomination seems to be as much about
politics as it is about ideology, and I am sometimes a little
incredulous. The President makes the most political of picks,
and then my colleagues tell us not to be political. Tell the
President, and maybe we could come to some agreement here
together. While the nominations of William Pryor and Janice
Rogers Brown and Priscilla Owen may be among the most
ideological we have seen, the nomination of Brett Kavanaugh is
among the most political in history.
Mr. Kavanaugh is a tremendously successful young lawyer.
His academic credentials are first-rate. He clerked for two
prestigious circuit court judges and a Supreme Court Justice.
And he has been quickly promoted through the ranks of
Republican lawyers. Some might call Mr. Kavanaugh the Zelig of
young Republican lawyers, as he has managed to find himself at
the center of so many high-profile, controversial issues in his
short career, from the notorious Starr Report to the Florida
recount, to this President's secrecy and privilege claims, to
post-9/11 legislative battles, including the victims
compensation fund, to controversial judicial nominations. If
there has been a partisan political fight that needed a good
lawyer in the last decade, Brett Kavanaugh was probably there.
And if he was there, there is no question what side he was on.
In fact, Mr. Kavanaugh would probably win first prize as
the hard-right's political lawyer. Where there is a tough job
that needs a bright, hard-nosed political lawyer, Brett
Kavanaugh has been there.
Judgeships should be above politics. Brett Kavanaugh's
nomination seems to be all about politics. If President Bush
truly wanted to unite us, does anyone believe he would have
nominated Brett Kavanaugh? If President Bush wanted to truly
unite us, not divide us, this would be the last nomination he
would send to the Senate. Anyone who has any illusion that
President Bush wants to change the tone in Washington ought to
look at this nomination. You could not think of another
nomination, given Mr. Kavanaugh's record, more designed to
divide us.
Brett Kavanaugh's nomination to the D.C. Circuit is not
just a drop of salt in the partisan wounds, it is the whole
shaker.
The bottom line seems simple: This nomination appears to be
judicial payment for political services rendered. There is much
that many of us find troubling about this nomination. I look
forward to hearing the nominee address our myriad concerns. I
would just like to take a moment to lay out two areas that will
be central to this discussion.
First, for the first 2 years of the administration, when
the administration was developing and implementing its strategy
to put ideologues on the bench, Mr. Kavanaugh quarterbacked
President Bush's judicial nominations. He spoke frequently at
public events defending the President's decision to nominate
such controversial jurists as Charles Pickering, Carolyn Kuhl,
Priscilla Owen, and William Pryor.
As you all know, many of us have been shocked and appalled
by the extreme and out-of-mainstream ideologies adhered to by
these and other nominees. I speak for myself, many of my
colleagues, and a sizable majority of the American people when
I say we do not want ideologues on the bench, whether too far
right or too far left. Judges who bring their own agendas to
the judiciary are inclined to make law, not interpret law, as
the Founding Fathers intended. We want fair and balanced judges
in the real sense of those words.
Nonetheless, this administration has repeatedly bent over
backwards to choose nominees who defend indefensible ideas and
whose records are rife and replete with extreme activism.
During his time in the White House Counsel's Office, Brett
Kavanaugh played a major role in selecting these judges,
preparing them for hearings, and defending their nominations at
public events. In the course of defending the administration's
record on judicial nominations, Mr. Kavanaugh routinely cited
the five criteria used by President Bush in selecting judges.
The five criteria he cites are: one, extraordinary intellect;
two, experience; three, integrity; four, respect in the legal
community and the nominee's home State community; and, five,
commitment to interpreting law, not making law.
I don't think I am stepping out on a limb when I say that
every one of us up here sees those five criteria as outstanding
factors to consider when choosing judges. But in the same
public discussions of the President's judicial nominees where
he cited these five criteria, Mr. Kavanaugh has routinely
denied that the President considers a nominee's ideology. The
record before us starkly belies that claim. It just does not
hold water. If ideology did not matter, we would see
nominations scattered across the political spectrum. There
would be a roughly equal number of Democrats and Republicans,
with a healthy dose of independents thrown in. We would see
some nominees edge left of center while others tip right, while
a few outliers would be at each extreme.
Even a President who wanted to have only some ideological
impact on the bench would have some balance. That is not the
case with the nominations Brett Kavanaugh has shepherded.
If you were to map the circuit court nominees on an
ideological scale of 1 to 10, with 10 being very liberal and 1
being very conservative, there is a huge number of 1s and 2s,
some 3s, and only a smattering of 4s and 5s. Of course,
ideology played a role in this process. Suggesting otherwise
insults our intelligence and the intelligence of the American
people.
For the last 3 years, I have been trying to get us to talk
honestly about our differences over judicial nominees. We have
pretty much stopped citing minor personal peccadilloes in the
nominees' histories as pretext for stopping nominations that we
really oppose on ideological grounds. The process is better for
the honesty we have brought to it.
Now, I hope we can have an honest dialogue today. Toward
that end, I look forward to hearing Mr. Kavanaugh explain how
it is possible that the President who has made some of the most
extreme ideological nominations in history does not consider
ideology when he makes those picks.
A second area I expect we will get into is closely related
to the first. As I noted at the outset, there is no question
that Brett Kavanaugh is a bright and talented young lawyer.
There is no question that for someone of his age he has an
extraordinary resume and that he has achieved in every job he
has held. But there are serious questions--and it is not the
age; it is that he has never tried a case; he has a record of
service after he clerked almost exclusively to highly partisan
political matters--why he is being nominated to a seat on the
second most important court in America.
Why is the D.C. Circuit Court so important? The Supreme
Court currently takes fewer than 100 cases a year. That means
that the lower courts resolve the tens of thousands of cases a
year brought by Americans seeking to vindicate their rights.
All other Federal appellate courts handle just those cases
arising from within its boundaries. So the Second Circuit,
where Senator Leahy and I are from, takes cases coming out of
New York and Connecticut and Vermont. But the D.C. Circuit
doesn't just take cases brought by residents of Washington,
D.C. Congress has decided there is a value in vesting one court
with the power to review certain decisions of administrative
agencies. We have given plaintiffs the power to choose the D.C.
Circuit. In some cases, we force them to go to the D.C. Circuit
because we have decided, for better or for worse, when it comes
to these administrative decisions, one court should decide what
the law is for the whole Nation.
So when it comes to regulations adopted under the Clean Air
Act by EPA or labor decisions by the NLRB, rules propounded by
OSHA, gas prices regulated by FERC, and many other
administrative agencies, the decisions are usually made by the
judges on the D.C. Circuit. To most, it seems like this is the
alphabet soup court since virtually every case involves an
agency with an unintelligible acronym--EPA, NLRA, FCC, SEC,
FTC, FERC, and so on and so forth. The letters, though, that
comprise this alphabet soup are what makes our Government tick.
They are the agencies that write and enforce the rules that
determine how much reform there will be in campaign finance
reform. They determine how clean clean water has to be for it
to be safe for families to drink. They establish the rights
that workers have when negotiating with corporations.
The D.C. Circuit is important because its decisions
determine how these Federal agencies go about doing their jobs.
And in doing so, it directly impacts the daily lives of all
Americans more than any other court in the country with the
exception of the Supreme Court.
So there is a lot at stake when considering nominees to the
circuit and how their ideological predilections will impact the
decisions coming out of the court and why it is vital for
Senators to consider how nominees will impact the delicate
ideological balance on the court when deciding how to vote.
Perhaps more than any other court aside from the Supreme
Court, the D.C. Circuit votes, when you study them, break down
on ideological lines with amazing frequency. People who went to
same law schools and clerked for the same courts somehow vote
almost dramatically differently depending on who appointed
them. I wonder why. Ideology. And this divide happens in cases
with massive national impact.
It is not good enough just to cite that someone went to a
great law school and clerked for some very distinguished
judges. We have an obligation to weigh how the ideological and
political predispositions of those who are nominated are going
to affect America. So we have a real duty to scrutinize the
nominees who come before us seeking lifetime appointment to
this court. And it is no insult to Mr. Kavanaugh to say that
there is probably not a single person in this room, except
perhaps Mr. Kavanaugh and his family, who doesn't recognize
that there are scores of lawyers in Washington and around the
country who have equally high intellectual ability but who have
more significant judicial, legal, and academic experience to
recommend them for this post.
It is an honor and a compliment that, despite his relative
lack of experience, this administration wants Brett Kavanaugh
to have this job. But when a lifetime appointment to the second
highest court in the land is at stake, the administration's
desire to honor Mr. Kavanaugh must come into question.
When the President picked Brett Kavanaugh, he was not
answering the question of who has the broadest and widest
experience for this job or who can be the most balanced and the
most fair. He was rewarding a committed aide who has proven
himself in some tough political fights.
Would we have welcomed the renomination of Alan Snyder or
Elena Kagan, now dean of Harvard Law School, two extremely
well-qualified Clinton nominees who never received
consideration from this Committee? Of course we would have. But
we also would have welcomed the nomination of a mainstream
conservative who has a record of independence from partisan
politics, who has demonstrated a history of non-partisan
service, who has a proven record of commitment to the rule of
law, and who we can reasonably trust will serve justice, not
just political ideology and political patrons, if confirmed to
this lifetime post.
Brett Kavanaugh is the youngest person nominated to the
D.C. Circuit since his mentor, Ken Starr. If you go through the
prejudicial appointment accomplishments of the nine judges who
sit on the D.C. Circuit, you will see that Mr. Kavanaugh's
accomplishments pale by comparison.
Chief Judge Ginsburg held several high-level executive
branch posts, including heading the Antitrust Division of DOJ,
and was a professor at Harvard Law School.
Judge Edwards taught at Michigan and Harvard law schools
and was Chairman of Amtrak's Board of Directors and published
numerous books and articles.
Judge Sentelle had extensive practice as a prosecutor and
trial lawyer, and experience as a State judge and a Federal
district court judge.
Judge Henderson had a decade in private practice, a decade
of public service, and 5 years as a Federal district court
judge.
Judge Randolph spent 22 years with Federal and State
Attorneys General offices, including service as Deputy
Solicitor General of the United States, and a law firm
partnership.
Judge Rogers had roughly 30 years of service in both
Federal and State governments, including a stint as corporation
counsel for D.C. and several years on D.C.'s equivalent of a
State Supreme Court.
Judge Tatel divided his nearly 30 years of experience
between the public and private sectors, including a partnership
at a prestigious law firm and service as general counsel of
Legal Services.
Judge Garland practiced for 20 years, held a law firm
partnership, and supervised both the Oklahoma City bombing and
the Unabomber trial while in a senior position at the Justice
Department.
And Judge Roberts spent nearly 25 years going back and
forth between his law firm partnership where he ran his law
firm's appellate practice and significant service in the
Department of Justice.
Like Mr. Kavanaugh, many of the nine current judges on this
court held prestigious clerkships, including clerkships on the
Supreme Court. But they all had significant additional
experience, non-partisan experience, to help persuade us that
they merited confirmation. And, of course, they are of widely
different ideologies.
If Mr. Kavanaugh had spent the last several years on a
lower court or in a non-political position, providing his
independence from politics, we might be approaching this
nomination from a different posture. But he has not. Instead,
his resume is almost unambiguously political. Perhaps with more
time and different experience we would have greater comfort
imagining Mr. Kavanaugh on this court. Suffice it to say, on
the record before us Mr. Kavanaugh faces a serious uphill
battle.
I look forward to hearing his answers to the difficult
questions we will pose.
[The prepared statement of Senator Schumer appears as a
submission for the record.]
Chairman Hatch. Senator Leahy, we will now call on you, and
then we will turn to Mr. Kavanaugh.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman.
I listened with interest to the Chairman's comments at the
beginning about moving judges quickly or not. I would point out
that we have confirmed more judges for President Bush so far in
his term than all of President Reagan's first term, and
President Reagan, of course, had a Republican majority
throughout that.
Now, I know that sometimes there have been some
differences. During the 17 months the Democrats controlled the
Senate, we did confirm 100 of President Bush's nominees. During
the 22 months that the Republicans were in control of the
Senate, I believe they confirmed about 73 or 74.
One could say, if we just wanted to go by statistics, that
the Democrats have been a lot better to President Bush on his
judicial nominees than the Republicans have.
I would like to pick up on something that Senator Schumer
said, and it refers to another statement made about whether
everybody should get votes. We have differing opinions. The
Democrats have blocked a handful of judges from votes. The
Republicans, when they were in charge during President
Clinton's time, blocked 61 judges from having votes. And I will
mention a couple of them, and Senator Schumer has, too: Alan
Snyder and Elena Kagan.
Alan Snyder was 54 years old when he was nominated to the
D.C. Circuit. He had 26 years of experience as an appellate
specialist at the firm of Hogan and Hartson. He was a graduate
of the Harvard Law School. He held the prestigious post of
president of the Harvard Law Review. He clerked with two
Justices of the Supreme Court. But he was not allowed to have a
vote by the Republican-controlled Senate, and the reason for
that, he had represented Bruce Lindsey, who was an aide of
President Clinton. And so I would tell my friend from Texas, he
was told that because of his representation of a client he had
had, he could not have a vote. And it was determined that he
would not be allowed to have a vote by the U.S. Senate, even
though I suspect he would have been confirmed had there been a
vote.
Elena Kagan was another one. She, too, went to Harvard Law
School. She served as a Law Review supervising editor. She
supervised 70 student editors, including Miguel Estrada. She
went on to clerk for a Justice of the Supreme Court, Justice
Marshall, and extraordinarily qualified. But she was told, I
guess, because she had had some association working, I think, a
job similar to yours at the White House that she should not be
allowed to have a vote, and this Committee determined she would
not be allowed to come to a vote. One or two Republicans
opposed her, so she was never allowed to even be given a vote.
Of course, to point out her qualifications, she now has what is
arguably the most prestigious post in legal academia. She is
dean of the Harvard Law School.
I have made a suggestion to the White House--I realize that
they may be disappointed that during Republican control of the
Senate they have not moved as many of the President's nominees
as the Democrats did during their control of the Senate, but I
have made a suggestion to them of a way to move forward. As you
know, Mr. Kavanaugh, because you worked in that area, we have
the so-called Strom Thurmond rule, which has been followed by
this Committee for years, which limits the number of nominees
that you get within a few months of the nomination of
Presidential candidates during a Presidential election year.
I have suggested that the White House do what all six
Presidents have done since I have been here, and that is to
work out, as we always have, a list of those who may well be
confirmed. Every President can determine how they want it. That
is what President Ford did, that is what President Reagan did,
what the former President Bush did, what President Carter did,
and what President Clinton did. Maybe President Bush will
decide to do the same. That is a decision he has to make, not
this Committee.
Senator Hatch and I worked with a number of these other
Presidents in doing that. I would hope that we might be able to
do it again. As we have demonstrated, in the 17 months that the
Democrats were in charge of the Senate, we moved 100, both
district court judges and circuit court judges, President
Bush's nominees. During the 22 months that the Republicans were
in charge, they moved another 70 or 73. I forget what the exact
number is. So we have demonstrated our good faith. We have done
this notwithstanding the 61 of President Clinton's nominees
that were blocked--61 of them were blocked by the Republicans.
Mr. Chairman, I appreciate you and Senator Schumer holding
this hearing. I appreciate your courtesy, which I might say is
typical of the courtesy you always show in having me make a
statement. I will hold my time for questions.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. Well, thank you, Senator.
Mr. Kavanaugh, if you will stand and be sworn. Do you
solemnly swear that the testimony you are about to give will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. Kavanaugh. I do.
Chairman Hatch. Thank you. Mr. Kavanaugh, we will be happy
to take any statement you would care to make at this time.
STATEMENT OF BRETT M. KAVANAUGH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Mr. Kavanaugh. Mr. Chairman, I don't have an opening
statement. I am prepared to answer the Committee's questions.
And Senator Schumer raised a number of important points. I look
forward to answering his questions and the questions of the
Committee today.
I do thank, again, my parents and Ashley for being here and
look forward to the hearing.
[The biographical information follows:]
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Chairman Hatch. Well, thank you. Let me begin the
questioning. We will have 10-minute rounds, and hopefully we
can complete this in a reasonable period of time.
You have served in both the executive and the judicial
branches of Government, the Federal Government. You graduated
from Yale University, one of the finest law schools in the
land. You have clerked for two separate circuit courts, and you
have also clerked for the United States Supreme Court. You have
tried cases before the Supreme Court. You have tried other
appellate cases, so I dispute anybody's argument that you have
never tried a case. There are appellate lawyers and there are
trial lawyers. Some can do both. Some do do both. But primarily
your experience has been on the appellate side, which is
generally considered a very sophisticated side of the law.
But let me just ask you this question: How has your
education and experience prepared you to be a Federal circuit
court of appeals judge?
Mr. Kavanaugh. Well, Mr. Chairman, I've always had a
devotion to public service that I've had since I was young, and
it was instilled in me again at Yale Law School, which has a
deep commitment to encouraging its students to pursue public
service. My mother had been a judge and a State prosecutor. She
had instilled that and a lot more in me. And I went to become a
law clerk after graduation from law school, and then after that
I've chosen a variety of different jobs in public service, in
the Independent Counsel's office, in the White House Counsel's
office, as Staff Secretary. I've had a range of experience in
the judicial branch, in the executive branch, in difficult
matters. Senator Schumer raised a couple of them. I've clearly
been in the arena for a lot of different types of matters, and
I think I've learned a lot from those about the importance of
being fair and impartial. And I come to the bench, were I to be
confirmed, with a broad range of experiences and I think a
commitment to fairness and impartiality in public service.
Chairman Hatch. You have been involved in improving the
law, in the administration of the law, and I am interested in
your work for the Commission on the Future of Maryland Courts.
It is my understanding that this Commission was tasked with
discovering ways to coordinate and promote fair and efficient
criminal justice and public safety systems. Could you just tell
the Committee a little bit about what lessons you have learned
from that type of experience and how that might help you in
your job as a circuit court judge if you are confirmed?
Mr. Kavanaugh. In that Commission, I was asked by a lawyer
in Rockville, Maryland, whom I knew to participate and help
him--he was Chair of the Commission--and to help find ways to
improve access to judicial services, access to legal services
throughout the State of Maryland, which was my home State. So I
helped with that Commission. The idea was that the justice
system, while the best in the world, can always be better, and
the idea of the Commission was to improve the delivery of legal
services and the justice system in the State of Maryland and to
look at recommendations of all kinds, whether it was creating a
new family court, dealing with drug crimes, or what have you.
Chairman Hatch. As you are aware--I am just going to get
into one aspect because that is about all the time I have right
now. You are aware that an investigation was conducted by the
Senate Sergeant-at-Arms into the downloading of certain
Judiciary Committee files by two former Committee staffers.
That investigation is complete and has been referred to the
Department of Justice, so I want to ask you just a few basic
questions about that matter.
Are you generally aware of that incident and that
investigation?
Mr. Kavanaugh. I am.
Chairman Hatch. Okay. I understand that as an Associate
Counsel to the President of the United States, among your
responsibilities was to advise the President on judicial
nominations. Could you briefly outline your responsibilities
and procedures you followed in fulfilling that duty?
Mr. Kavanaugh. I was one of eight Associate Counsels who
worked for Judge Gonzales. We had different areas of the
country that we would work on and different nominations that
we'd work on. I worked on California and Illinois, for example,
with Senator Feinstein's office and Senator Durbin's office. I
also worked on certain circuit court nominations. There's both
the selection side and then the nominations--the confirmation
side, working on the confirmation.
On the confirmation side, the idea was to help prepare the
nominees for their hearings, to coordinate with our press
office and other press offices in the Justice Department and in
the Senate, to coordinate with the public liaison in the White
House and the Justice Department and the Senate regarding any
issues that could arise in connection with hearings or votes on
nominees.
Chairman Hatch. As part of that responsibility, you had to
meet with various staff members of the Senate Judiciary with
regard to the limited work that you did for certain States,
your share of the work on judges. And so I think you met with
various staff members.
Now, did any staff member of the Senate Judiciary Committee
or the Department of Justice ever provide you with information
or documents that you were led to believe were obtained or
derived from Democratic files or from my files?
Mr. Kavanaugh. No.
Chairman Hatch. Do you know Manuel Miranda, the former
Senate staff member?
Mr. Kavanaugh. I do know him from his time and service on
the Committee staff.
Chairman Hatch. Did you ever meet with him to discuss
judicial nominations?
Mr. Kavanaugh. He was part of the team--yes, he was part of
the team that worked in your office and then in Senator Frist's
office on judicial nominations.
Chairman Hatch. What were the circumstances of those
meetings?
Mr. Kavanaugh. Those meetings were usually to discuss
upcoming hearings or upcoming votes, issues related to press
interest in nominations or public liaison activities that
outside groups were interested in.
Chairman Hatch. Now, this is an important question. Did Mr.
Miranda ever share, reference, or provide you with any
documents that appeared to you to have been drafted or prepared
by Democratic staff members of the Senate Judiciary Committee?
Mr. Kavanaugh. No, I was not aware of that matter ever
until I learned of it in the media late last year.
Chairman Hatch. Did Mr. Miranda ever share, reference, or
provide you with information that you believed or were led to
believe was obtained or derived from Democratic files?
Mr. Kavanaugh. No. Again, I was not aware of that matter in
any way whatsoever until I learned it in the media.
Chairman Hatch. Do you know if any other Associate White
House Counsels had access to these type of materials that were
improperly taken?
Mr. Kavanaugh. I don't know of anyone who was aware of this
matter, again, until the media reports late last year.
Chairman Hatch. But you were not?
Mr. Kavanaugh. I was not aware of it.
Chairman Hatch. Okay. Just one final question. Could you
please speak about the significance of judicial temperament and
indicate what aspects of judicial temperament you consider to
be the most important?
Mr. Kavanaugh. Well, I think it's critically important, Mr.
Chairman, for any judge to exhibit the proper temperament on
and off the bench at all times, and what that means is in
dealings with one's colleagues on the bench, having an open
mind, being respectful of a colleague's views, both at oral
argument and in writing opinions. I think it means being
respectful of the lawyers who come before the court and not
treating them disrespectfully, but to have proper respect for
the lawyers in the court. And it means having a proper respect
for the law and a humility, understanding that you are just one
judge on a panel. There's a reason you wear a black robe. It's
because you lose your individual preferences, your
individuality when you take a seat on the bench. The black robe
signifies that you're part of the judicial system and you're
there to interpret the law fairly.
So I think that's all encompassed within judicial
temperament, and it's something I've seen firsthand with
Justice Kennedy and Judge Stapleton and Judge Kozinski, and
it's something that I, were I to be confirmed, would always
remember my proper place in the system.
Chairman Hatch. One last question. Would you please explain
to the Committee why you want to be a Federal judge?
Mr. Kavanaugh. I've always had, Mr. Chairman, a commitment
to public service since I was young. Since I got out of law
school, I've always thought that being a judge was the highest
form of public service that a lawyer could render because it
helps maintain our constitutional system, which has been in
place for over two centuries, and helps protect the rights and
liberties of the people.
What the courts do every day--and I think Senator Schumer
alluded to this--is not always apparent to the people, but it's
critically important, and there's much of what Senator Schumer
said about that that I agree wholeheartedly with about how
important it is.
And so in terms of commitment to public service, a
commitment to our constitutional form of government, and a
commitment to protecting rights and liberties of the people,
that's why I think I would want to be a judge.
Chairman Hatch. Okay. I have a little bit of time left, but
I think I will turn to Senator Schumer at this point.
Senator Schumer. Thank you, Mr. Chairman. And thank you,
Mr. Kavanaugh.
First, I just want to clear up the questions that Orrin
asked. You had said that Mr. Miranda never provided these
documents, you know, that were from this.
Mr. Kavanaugh. Right.
Senator Schumer. Had you seen them in any way? Did you ever
come across memos from internal files of any Democratic members
given to you or provided to you in any way?
Mr. Kavanaugh. No.
Senator Schumer. Thank you.
Okay. Now, as I noted in my opening remarks, you have cited
the five criteria the President uses in selecting nominees, and
at the same time you have repeatedly denied the President
considers ideology when selecting judges. Am I correct to
anticipate you stand by that claim?
Mr. Kavanaugh. Yes, Senator.
Senator Schumer. Thank you. Now, you get high marks for
consistency, but this claim raises serious credibility
concerns.
If ideology doesn't affect the nomination process, how is
it possible we have seen so many extreme conservatives and
almost no progressives?
Ninth Circuit nominee William Myers thinks the Clean Air
Act and the Endangered Species Act have harmed the environment.
District court nominee James Lee Holmes endorsed Booker T.
Washington's notion that God brought slaves to America to teach
white people how to be more Christ-like.
D.C. Circuit nominee Janice Rogers Brown has praised the
Supreme Court's notorious ruling in Lochner, perhaps the most
criticized decision of the 20th century, and has said the New
Deal is the triumph of America's socialist revolution.
Charles Pickering unethically intervened on behalf of a
convicted cross-burner, and William Pryor has spent a career
trying to undo Federal laws that have achieved broad consensus
in America that protect women, workers, and the disabled.
Carolyn Kuhl has one of the most restrictive views on the
right to privacy of any judge in the country, ruling that a
woman has no meaningful right to privacy in her own doctor's
office.
The list goes on and on, extreme views all from the far
right. How do you square the reality of these totally
ideological nominations with the lack of any nominations that
would be the mirror image or even close to those people when
you say with the rhetoric that there is a non-ideological
judicial nomination process?
Mr. Kavanaugh. Senator, I'd like to answer that in a couple
ways. First, as you and Senator Leahy pointed out, the vast
majority of the President's nominees have been approved by this
Committee and confirmed by the Senate. That's point one.
Point two is in terms of court of appeals nominees, we've
worked very closely with home State Senators in individual
States to find nominees that were consensus nominees in that
State. We've worked, including States with two Democratic
Senators, we've worked closely with Senator Leahy on the one
nomination, and Rena Raggi in New York, Judge Callahan and
Judge Bea on the Ninth Circuit in California. We have tried to
work closely, and in each of those cases those nominations--
Senator Schumer. Did you work closely with the Senators
from Michigan on the Sixth Circuit?
Mr. Kavanaugh. The Sixth Circuit situation in Michigan,
Senator, is one that goes back many years. I don't understand
that situation to be related to the particular nominees, but to
a--
Senator Schumer. But you haven't consulted either Senators
Levin or Stabenow on that. Is that correct?
Mr. Kavanaugh. My understanding is that Judge Gonzales has
talked often to the two Senators, but they have not reached an
accommodation that's--
Senator Schumer. What about on the D.C. Circuit? Have you
talked to any Senators on this side, Senator Leahy or any of
the members of this Committee, about nominees for the D.C.
Circuit?
Mr. Kavanaugh. I don't know who Judge Gonzales talked to
before the nominations, the D.C. Circuit nominees. But I know
as a general proposition we've been very careful to consult
with the home State Senators.
Senator Schumer. So you would say ideology has no factor in
the nominations you have put forward for circuit court judges?
Is that correct? Do you truly stand by that statement?
Mr. Kavanaugh. We don't--Senator, I appreciate the
question, but we don't ask questions about one's personal views
on--
Senator Schumer. I didn't ask that.
Mr. Kavanaugh. Well--
Senator Schumer. I asked you: Does ideology play a role in
who you select? And if it does not, why have there not been
hardly any nominees--I mean, the most you could say are one or
two, mainly from my circuit, who tend to be a little more
moderate. Why are there nominees that are almost exclusively
conservative? And we discussed the degrees of conservative.
Many of the nominees I have voted for, some of us have voted
for, we don't think are down-the-middle. We voted for them
because we feel we have to pick our shots and because we give
the President some deference. But I don't think anyone in this
room, when they look at it fairly, believes that the President
is choosing judges without ideology entering into it. And if
that is the case, then answer again: Why have there been
virtually no progressive nominees to circuit courts of appeals
if ideology doesn't play a role?
Mr. Kavanaugh. Senator, in terms of ideology, what the
President is looking for is nominees who have a respect for the
law and who understand that the legal system and the role as a
judge is different from one's personal views or political views
or political affiliation. So you're looking for someone who
understands what the judicial function is.
Senator Schumer. You don't think there are any liberal
people who feel that way?
Mr. Kavanaugh. I think there are people of all political
ideologies, Senator--
Senator Schumer. Well, how come no liberals have been
nominated? I am not objecting to the President using ideology.
Presidents do. I am objecting to the denial. It seems there is
a credibility problem, because you know and I know--and my
guess is if I was a fly on the wall and you had conversations
with your other counsels and other things like that, that
ideological considerations of course were part of the vetting
process.
Mr. Kavanaugh. Senator--
Senator Schumer. Have you ever used the word to any of the
counsels when you were vetting judges, ``This one may be too
liberal''? Never?
Mr. Kavanaugh. Senator, the important thing that Judge
Gonzales emphasized to us and that the President has emphasized
is to find people of experience who have good records and who
know--
Senator Schumer. Have you ever used the words that someone
might be ``too liberal'' to be a good judge--to be nominated by
President Bush?
Mr. Kavanaugh. I am confident, Senator, that in the course
of 3 years I have thought that some people did not understand
the proper judicial--
Senator Schumer. Did you ever use those words?
Mr. Kavanaugh. I don't know whether I ever--
Senator Schumer. What do you think?
Mr. Kavanaugh. --used the word ``too conservative'' or
``too liberal'' to be a--in the sense that they don't
understand the proper judicial function.
Senator Schumer. Let me go to the second part of the
questioning. It defies belief, in all due respect, sir, for
anyone who looks at the broad nature of the nominees,
particularly the court of appeals, that ideology didn't play
some role as you selected judges.
The second--
Mr. Kavanaugh. Senator--
Senator Schumer. I just want to ask my second, because my
time is limited. Now, when Ken Starr started his Independent
Counsel investigation, he was tasked with looking into
financial improprieties tied to a land deal in Arkansas. When
he finished, he produced, with substantial assistance from you,
a lengthy report that frequently dwelt on salacious details
from President Clinton's personal life. I am not asking did
you--I am asking your personal opinion because we have to get
your personal opinions here. I am not asking did you serve your
client well.
In retrospect, did you go too far?
Mr. Kavanaugh. Senator Schumer, in terms of the first part
of your question, Judge Starr was assigned by Attorney General
Reno to look into the Whitewater and Madison-related issues. It
was then her decision to add on other investigations to his
original jurisdiction, including the Travel Office matter--
Senator Schumer. But that is not my question, sir. I am
asking your personal opinion. When the Whitewater commission
ended up dwelling on the salacious details from President
Clinton's personal life, do you believe personally that that
was the correct thing to do or that went too far?
Mr. Kavanaugh. I have said publicly before, as has Judge
Starr, Senator--and I've written this publicly--that the way
that the House of Representatives released the report without
reviewing it beforehand caused unnecessary harm, combined with
the way the report was structured--
Senator Schumer. I am not asking you a procedural issue. I
am asking--you, as the chief cook and bottle washer here,
working for Starr, came up with a report that focused on the
salacious details--this is the last chance. Did it go too far?
Yes or no.
Mr. Kavanaugh. I think the way the House of Representatives
released the report was a mistake, and I've said so publicly.
Senator Schumer. Do you think you are being--do you think
you are giving me an answer to my question?
Mr. Kavanaugh. I think given the public release of the
report--
Senator Schumer. I am asking your personal views, not on
the House of Representatives' procedure. I am asking you, just
as a person, an observer, and a nominee to an important court,
ended up with a report that focused on personal detail. Was
that the correct thing to do?
Mr. Kavanaugh. Senator, this is an important question, so I
want to take a minute to answer this.
Senator Schumer. I know, but I would like you to answer
your personal view on it, not what the House of Representatives
did, not what Ken Starr did, not what Janet Reno did, but what
you think now, 4 years later?
Chairman Hatch. Let him answer the question.
Mr. Kavanaugh. And this is an important question so I want
to take a minute to answer this.
First I worked on the grounds section part of the report,
which was the part of the report that outlined possible legal
grounds consistent with Judge Starr's statutory obligation
under Section 595(c), so that is the first point I want to make
clear.
Second, I have said publicly, I think I said it in my
Committee submission, that I regret that the report was
released to the public in the way it was released. I personally
regret how that was released because I don't think it put the
case in the perspective that Judge Starr thought about it, as
he testified later, and you were there, in November of 1998
before the House Judiciary Committee. It was a serious legal
matter. I think, Senator, you at the time made some strong
statements about the legalities involved, and I regret how the
report was released because I think it created a misimpression
of what we thought and Judge Starr thought were the important
aspects of the investigation, which he subsequently made clear
in his House testimony.
So I personally regret how that report was released because
I think it was--parts of it that were released were unnecessary
to be in the public domain.
Senator Schumer. Do you think the President should have
been convicted by the Senate? If you were a Senator, would you
have voted aye or nay? And you cannot use Scottish law.
[Laughter.]
Senator Schumer. How would you have voted, aye or nay?
Mr. Kavanaugh. Senator, as a--
Senator Schumer. Please answer my question.
Mr. Kavanaugh. That is an important question as well, but I
think I need to explain.
Senator Schumer. Can you give me a yes or no answer and
then explain it, please?
Mr. Kavanaugh. I cannot, because it was exclusively the
Senate's province to make that determination--
Senator Schumer. I am asking you as a--
Chairman Hatch. Let him answer.
Senator Schumer. He said he cannot answer it, Mr. Chairman.
Chairman Hatch. He said he can answer it. He just cannot
answer it the way you want him to.
Senator Schumer. Yes or no is a pretty simple way to put
it.
Chairman Hatch. This is not a court of law. Let him answer
it the way he wants to answer it.
Mr. Kavanaugh. It would be a simple answer, but it is a
complicated question. In our role, in Judge Starr's role as
assigned by Attorney General Reno, was to find the facts and to
submit any evidence to Congress that may constitute grounds for
an impeachment based on history and historical practice. As
part of the office that submitted that report, Judge Starr made
it very clear in his November testimony--and I have always
tried to maintain this as well--that it was not our place to
say what the House should do with that or what the Senate
should do with that evidence. There is an important reason for
that.
Senator Schumer. Sir, I am not asking you as a member
working for Ken Starr. I am asking you now as an individual who
has broad ranges of opinions--we know that--on all sort of
things, who is before this Committee, where there is a great
deal of doubt whether how you feel about things or whether you
can be fair and dispassionate. It is not a question that seals
your nomination or guarantees a veto. I am asking you as a
person, as a nominee, would you have voted yes or no, or do you
refuse to give me a yes or no answer.
Mr. Kavanaugh. Senator, again, I think that is an important
question, and because I worked--
Senator Schumer. That is why I asked it.
Mr. Kavanaugh. Right, I understand. And because I worked in
that office, just as a prosecutor works on a criminal case
should not be commenting about whether the jury got it wrong or
got it right, I do not think it is appropriate for me to say
whether the House got it right in impeaching President Clinton
or the Senate got it right in declining to convict. I think
there was serious legal issues involved, as Judge Starr
explained, and there was a debate about what to do about what
everyone agreed were serious issues. I know Senator Feinstein
authored the censure resolution in the Senate, and that many
members of the Committee joined her censure resolution, which
used very strong language about President Clinton in that
censure resolution. There was a debate about what sanction
should be imposed, and having worked in the office that was
assigned a narrow legal duty, I just do not think it is
appropriate for me to say what my personal view is on that
issue.
Chairman Hatch. Certainly not in retrospect.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
Welcome to the pit, Mr. Kavanaugh.
Mr. Kavanaugh. Thank you, in the arena.
Senator Sessions. The arena. It is a great country. People
have a right to express their views, and I appreciate your
willingness and your consistent dedication to public service. I
think it is something to be respected and not denigrated. Your
legal skills are extraordinary, and I think the way your
background and record has been portrayed is not fair, is not
accurate, and does not fully reflect your contributions to law
and what you would do on the bench.
As a Yale undergraduate, Yale Law School graduate, you came
out and clerked for three Court of Appeals Judges. As a law
clerk to a Court of Appeals Judge, and you are being nominated
to a Court of Appeals position, what do you do? What kind of
experience do you have in dealing with the cases and how does
that help you take a position that you might take with the D.C.
Circuit?
Mr. Kavanaugh. I think, Senator, I was very fortunate to
serve as a law clerk to three outstanding judges, and serve as
a law clerk on the Supreme Court.
Senator Sessions. That is correct. Two Court of Appeals
Judges and one Supreme Court Justice, Anthony Kennedy, you
clerked for.
Mr. Kavanaugh. Right. I learned a lot from each of them
about how I should perform my role were I to be confirmed to be
a Judge. Judge Stapleton, as Senator Biden knows well, in
Delaware, is one of the most widely respected judges in that
circuit or in the country because of his judicial temperament,
because of his dedication and fairness. I do not think there is
anyone who has ever said anything negative about Judge
Stapleton. He treats everyone with complete respect. He works
hard, and he taught me how to try to get the right answer in
every case.
Judge Kazinski has a unbelievable passion for the law,
unbelievable passion for getting the right answer, for working
and working and working, and for his law clerks working and
working and working, to get the right answer. He is someone who
I think has proved to be as a judge someone who takes a new
angle on a lot of different cases. He does not just see a case
and say the accepted wisdom or the conventional wisdom about an
issue is right. He is someone who rethinks everything from
first principles. That is something I learned from him.
Justice Kennedy has passion for the law, has passion for
American history, has devotion to how the Supreme Court fits
into our constitutional system. Anyone who has heard Justice
Kennedy talk about the role of the Supreme Court or the history
of the Supreme Court cannot help but be influenced, and I heard
that day in and day out for a year and it just had a profound
effect on me.
If I were to be confirmed to be a judge, I would, I think,
take lessons from each of those three with me, and I hope I
could be like all three of them.
Senator Sessions. You were just participating and doing the
very thing you would do now. You were participating with those
judges and helping them write opinions, to analyze complex
legal questions and briefs, and to distill that into a
principled decision. I think that is terrific background for
you, and I also notice you were in the Solicitor General's
Office of the Department of Justice, where in that position you
represent the United States of America in Appellate Courts
around the country, which also is extraordinarily good
background for an appellate lawyer, and I also notice you
served a period of time as a partner with the great law firm of
Kirkland and Ellis, one of the best known law firms I guess in
the country.
Senator Schumer and I, we have had--I chair the Courts
Committee now. For a while he chaired it. We had a different
view about this ideology question, and I think he uses the word
maybe a little differently, people interpret it differently.
Let me tell you what I think we are dealing with.
Is it not appropriate, Mr. Kavanaugh, for the President of
the United States, when he appoints someone to a life term
appointment on a bench, to know what that person's judicial
philosophy is, his approach to the law, how it should be
interpreted and how decisions should be made?
Mr. Kavanaugh. It is important to know that the person is
someone who will put aside personal beliefs, prior political
affiliations, and will approach the law, follow precedent
fairly and impartially, follow the text and the precedent and
the history to try to reach the right answer that will come to
each case impartially. All of that is very important and people
use different labels to describe those factors that I just
described, but the President has made clear, and Judge Gonzales
to us, those are the things we should be looking at, not an
individual's views on any particular issues.
Senator Sessions. The President would not be concerned
about a person's view on the death penalty or an issue like
that. He would be more concerned, in making an appointment, as
to how he would interpret the Constitution's injunctions or
requirements with regard to the death penalty; is that correct?
Mr. Kavanaugh. I think the President has spoken publicly
many times about how it is important that a judge or a judicial
nominee be someone who is going to interpret the Constitution
fairly and consistent with precedent, and not superimpose his
or her personal beliefs onto any judicial decision, and it is a
very critical function of a judge.
Senator Sessions. I think ideology is an entirely different
matter. Ideology suggests that judges should in fact, according
to Senator Schumer's arguments, it seems to me, allow their
personal ideological views to affect their judicial
decisionmaking processes. Let me ask you, do you believe that?
Do you believe that a person's political philosophy, whether or
not they think a death penalty is good or bad, should affect
their interpretation of existing Supreme Court precedent or the
Constitution of the United States when it speaks to the death
penalty?
Mr. Kavanaugh. I do not think one's personal views on that
issue or on other policy issues should affect how you go about
deciding the cases. I think what Senator Schumer points out on
pointing out some differences between judges on the D.C.
Circuit is that judges reach different results in different
cases, but I think that happens because judges just analyze the
cases differently, not because of any partisan affiliations. It
is critically important for judges, when they become judges, to
recognize that they are entering a new phase, a new role, and
political background has been very common, Government service
background has been very common for judges, not because we want
the Judiciary to be an extension of the Congress, quite the
contrary, but we want the Judiciary to be independent and for
the judges on the Judiciary to understand how the Government
operates. So that is why political service has been common in
judicial nominees' backgrounds in the past. That is why it is
important, but it is not because courts are then just an
extension of the political differences that may exist
elsewhere. It is because of that important Government service
gives you a perspective, whether it is Judge Buckley or Judge
Mikva on the D.C. Circuit, or Justice Breyer who served on this
Committee.
Senator Sessions. I agree with that, and I think that is
why the American Bar Association, which is certainly a liberal
political institution, in my view, has rated you the highest
rating, well qualified. They believe that if their members
appear before you, your demonstrated record of commitment to
following the law as written, whether you agree with it or not,
is clear. In fact, let me ask you, is it a deep personal
philosophy of yours that a judge should follow the law whether
or not he agrees with it, and is that one of the most key
points of your personal judicial philosophy?
Mr. Kavanaugh. It is critical, Senator, for a lower court
judge to follow Supreme Court precedent faithfully in all
instances. Whether you might agree with it, you might have
decided differently, you have to follow that precedent
faithfully. It is something I learned when I was a law clerk,
and I have seen in practice, and it is something I can commit
to this Committee, were I to be confirmed, that I would do.
Senator Sessions. We have a difference of views in America
today about what judges should be--their philosophy as a judge.
There is no doubt about it. A number of members of this
Committee and this Senate are determined to see judges
appointed that believe--that are activists, as Senator Hatch
described it, and he defined very carefully what that word
means. It means promoting a political, ideological agenda from
the bench, which I believe is incorrect, President Bush
believes is incorrect, and I believe overwhelmingly the
American people believe it is incorrect. The reason it is
incorrect is judges, if you are confirmed, are not accountable
to the public. You never stand for election again. You hold
your office for life. Many of your decisions are unreviewable
ultimately, and it leaves the American people subject to
decisions in an anti-democratic forum unless that judge
restrains him or herself, and enforces the law as written or
the Constitution as declared by the people of the United
States. I think that is important. We do not need ideology, and
as Lloyd Cutler, the White House Counsel under President
Clinton and Carter, really criticized the idea that we should
politicize the courts and bring ideology into the courts.
Chairman Hatch. Senator, your time is up.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Hatch. We will turn to Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
Let me shift to a slightly different area. I am sure
everybody is going to ask these questions on some of the other
areas. I am thinking back to right after September 11th, back
in 2001. On September 20th, a week later, you came to the Hill
as a representative of President Bush to offer legislation
designed to protect the airline business from having to take
responsibility for the death and destruction of the attacks in
New York and Pennsylvania and Virginia. That is a bill that
ultimately became law. It provided victims compensation in
return for immunizing the airlines from liability.
When you brought the bill up, it had no compensation for
victims. It had immunization for the airlines, nothing for the
victims. It actually had sort of a wish list of tort reforms
that the airline industry had punitive damages caps for the
airlines, attorney fee limits against victims' lawyers, but not
against the airlines' lawyers. It even reduced victim
compensation court by disaster payments that may have been in
there.
I remember the negotiations on this bill. You vehemently
opposed any compensation for the victims' families. You
insisted the bill only limit the liability of the airline
industry. Now, wisely, we rejected that approach. We
established the September 11th Victims Compensation Fund. I
happened to write it. And in that bill, while we limited
liability for the airlines, we did compensate the victims.
Why were you so opposed to compensating the victims, and
why were you so singularly fixed on protecting just the
airlines?
Mr. Kavanaugh. Senator, I do not think the facts as stated
in the question are accurate.
Senator Leahy. How would you state them?
Mr. Kavanaugh. They are not consistent.
Senator Leahy. How would you state them? Let me ask you
this then. Let me break it down. Did you not come up with a
bill that had nothing in it for victims, but did have a list of
areas where airline liability would be limited?
Mr. Kavanaugh. Senator, I think there were two separate
issues. One was the airlines, which were going to go bankrupt
that Monday.
Senator Leahy. But I am thinking--I may not have stated my
question well. I am just a small-town lawyer from Vermont, but
let me try it one more time. Did you not come up with a bill
that had a number of different limits of liability for the
airlines and nothing for the victims? Yes or no?
Mr. Kavanaugh. And to answer that question, I need to
explain, Senator, and the reason is there were two separate
issues that were in play at that time. One was the airline
liability issues because the airlines were potentially going to
go bankrupt on that Monday unless Congress acted. That is why,
as I recall, there was--
Senator Leahy. They found out afterward they were not going
to go bankrupt on that Monday, but did the bill--
Mr. Kavanaugh. There was bipartisan agreement that the
airlines were going to go bankrupt that Monday unless Congress
acted and the President signed the bill.
Senator Leahy. Did you object strongly, or did you object
to putting in compensation for victims?
Mr. Kavanaugh. No. The question was what kind of precedent
should be used to compensate the victims.
Senator Leahy. Mr. Kavanaugh, I was there. You are under
oath. I am not. But let me ask you again, did you object on
that legislation--you are under oath--to having compensation
for the victims?
Chairman Hatch. Senator, let him answer the question.
Senator Leahy. I will.
Chairman Hatch. He said there were two--
Senator Leahy. That is why I made sure he understood it.
Chairman Hatch. But let him state it.
Mr. Kavanaugh. Senator, I was there as a representative of
the administration, and there were two separate issues that
needed to be addressed, one which needed to be addressed
immediately, as I recall, was the question of liability for the
airlines. I think there was bipartisan agreement. And I
participated in a meeting in the Speaker's Office after the
President's speech on Thursday night, the 20th, where the
Speaker and Senator Lott, Representative Gephardt, and Senator
Daschle were all present, as was the Director of OMB.
The question was there at the airlines' liability. There
was a separate question which was important, and the two
ultimately got linked in the same bill, of compensation for the
victims of September 11th. On that separate question there was
an issue, what precedent do we have for compensation for
victims of terrorism? There was the Oklahoma City issue, which
Senator Nichols raised, that they had not received significant
compensation. There was the Police Safety Officers Benefit
Legislation. That was a possible precedent. We were looking at
those precedents.
Then there were further discussions including with Mr.
Pagano and your staff, Senator Leahy, and there was a
discussion of if we are going to do the limitations on
airlines' liability, we should give the victims the same kind
of compensation that they would recover had they been allowed
to litigate the matter in court, but to do it more
expeditiously.
Senator Leahy. What position did you take on that?
Mr. Kavanaugh. On that we were concerned about the fact--
Senator Leahy. I am not asking what you were concerned
about. What position did you take?
Mr. Kavanaugh. At the ultimate meeting on behalf of the
administration, Director Daniels agreed to that.
Senator Leahy. Did you oppose that initially?
Mr. Kavanaugh. There were discussions about how to do it
and there was concerns about--
Senator Leahy. Did you oppose that initially?
Mr. Kavanaugh. The precedent that was on point that we
cited initially was the Police Safety Officer's Benefits Fund.
That was the most relevant precedent. We had not thought, at
least I had not thought of doing a separate litigation model
for--essentially a damages model at that point. That was an
idea that was raised during the discussions with Senator Lott's
staff, as I recall. Senator Lott's staff, I believe, first
raised that idea, at least in my presence. And the one concern
about that at the time that I recall being discussed with your
staff, Senator Leahy, was the fact that that would mean unequal
compensation. In other words, the victims of a relatively poor
family would get a much smaller amount. The family of a poor
victim would get a much smaller amount.
Senator Leahy. Did you oppose linkage of the two?
Mr. Kavanaugh. As I recall--
Senator Leahy. When the proposal was made to you, okay, we
will agree on protecting the liability of the airlines--and I
was meeting with the heads of all the airlines at that time
too--we will do that, but we are going to take care of the
victims and get this is. We will Public Service Commission them
both. Did you oppose that linkage?
Mr. Kavanaugh. I remember personally being involved in
those discussions and saying that it was important, I thought--
at least this was in the fluid negotiations--of compensating
each victim's family equally. That was the principle that I had
stated at the time.
Senator Leahy. Did you oppose linking them?
Mr. Kavanaugh. Linking the two bills?
Senator Leahy. Yes.
Mr. Kavanaugh. I do not remember opposing linkage of the
two bills. I knew the two had to be--both had to occur. Whether
they had to occur together I think was a discussion. It was
fluid discussions. I was not speaking for the administration
either. It was Director Daniels who was.
Senator Leahy. So you did not oppose the idea of putting
victims' compensation in that airline bill? It is kind of hard
to understand your answer with all the caveats, and I realize
you have not spent much time in trying cases, but let me assure
you that if you had, the judge would be all over you on the way
you are answering.
Mr. Kavanaugh. Senator, I do not recall opposing the
linkage of the two. I remember they started as two separate
issues and then they got linked. Then the second question,
which was important, was what precedent do we look to for
compensation? There were precedents out there in terms of
Oklahoma City, in terms of the Police Safety Officer Benefit
Fund. I remember also being concerned about the administrative
time it would take for people to get compensated through the
kind of fund.
Now I want to say--
Senator Leahy. You did not have any problem with the
administration trying to wipe out all our liability statutes to
help the airlines to make sure that their attorneys were
compensated, but to put limits on anybody else's attorneys?
That did not bother you.
Mr. Kavanaugh. Senator, as I recall, there was bipartisan,
I think unanimous--
Senator Leahy. It did not bother you. I do not care what--I
was involved in those negotiations, Mr. Kavanaugh. I remember
them very well. It did not bother you.
Mr. Kavanaugh. It was unanimous agreement, as I recall,
Senator, that something had to be done for the airlines or they
were going to go bankrupt that Monday morning.
Senator Leahy. Let me go to a different subject because you
are not going to answer my question, so let me go to another
one.
The question of secrecy in Government, and this
administration has shown more secrecy than any administration I
have served with from the Ford administration forward. You were
the author, one of the first indicators of this increase in
secrecy, Executive Order 13233, that drastically changed the
presidential records. It gave former Presidents, their
representatives, and even the incumbent President, virtual veto
power over what records of theirs would be released, posed a
higher burden on researchers petitioning for access to what had
been releasable papers in the past. After the order was issued,
a number of historians, public interest organizations, opposed
the change. The Republican-led House Committee on Government
Reform approved a bill to reverse this. A lawsuit to overturn
it was filed by Public Citizen, American Historical
Association, Organization of American Historians, and a number
of others. Why did you favor an increase in the secrecy of
presidential records?
Mr. Kavanaugh. Senator, with respect to President Bush's
Executive Order, I think I want to clarify how you described
it. It was an order that merely set forth the procedures for
assertion of privilege by a former President, and let me
explain what that means.
The Supreme Court of the United States in Nixon v. GSA in
1977, opinion by Justice Brennan, had concluded that a former
President still maintains a privilege over his records, even
after he leaves office. This was somewhat unusual because there
was an argument in the case that those are Government records.
But the Court concluded that both the current President and the
former President have the right to assert privilege to prevent
the release of presidential records. That is obviously a
complicated situation. The issue was coming to a head for the
first time because there is a 12-year period of repose, so 12
years after President Reagan left office was when this
President Bush came into office, and there was a need to
establish procedures. How is this going to work, two different
Presidents asserting privilege or having the right to review?
No one really had a good idea how this was going to work.
The goal of the order was merely to set forth procedures. It
specifically says in Section 9 of the order that it is not
designed in any way to suggest whether a former President or
current President should or should not assert privilege over
his records.
You are quite right, Senator Leahy, that there was initial
concern by historians about the order. I like to think it was
based on a misunderstanding, and Judge Gonzales and I undertook
to meet every 6 months or so with a large group of historians
first to discuss the order and to explain it, and then after
that, to discuss any problems they were having with the order,
and to help improve it if they suggested ways for improvement.
I think those meetings, I think the historians who come to see
us, have found them useful, and I think we helped to explain
what we had in mind and what the President's Order meant in
terms of the procedure. So that is my explanation of that
order.
Senator Leahy. Thank you, Mr. Chairman. I have other
questions for the record, although I suspect they probably will
not be answered, but I will still submit them. Thank you.
Chairman Hatch. Thank you, Senator.
Senator Cornyn.
Senator Cornyn. Mr. Kavanaugh, as I understand, the
objections to your nomination go like this. First, you do not
have the proper experience. Alternatively, you have the wrong
kind of experience. And alternatively, or maybe concurrently,
you have represented the wrong clients. Could you explain to
the Committee how you view the role of a lawyer as an advocate,
which has been your professional career to this point, and how
you view the role of Judge, which of course will be your duty
and obligation when you are confirmed?
Mr. Kavanaugh. Senator, every lawyer has ethical obligation
to zealously represent his or her client in court or in other
matters, regardless of whether the lawyer might agree with the
position of the client. That is true as well as a law clerk for
a judge or Justice. You have the obligation to give the judge
your best advice, but then to do what the judge decides, not
what you may think is right. When you are working in public
service in the Independent Counsel's Office or in the White
House Counsel's Office or in my current role as staff
secretary, my job is to give recommendations and advice, but
ultimately to carry out the direction of my superiors without
regard to whether I might have chosen a different path. And
that is an important function of our legal system, the
adversary system when I was in private practice, and in
Government service, and it is something that I feel strongly
about.
As a judge, again, it is not your personal views. It is a
similar kind of mindset in some ways. It is not your personal
views that are relevant or your past affiliations that are
relevant. It is important to follow the law faithfully, the
precedent of the Supreme Court, regardless of what those views
may be.
Senator Cornyn. I happen to agree with the distinction of a
lawyer as an advocate and a judge as an impartial decider of
the law and fact as the case may be. Unfortunately, we seem to
have--some seem to be engaging in what I think is a very
dangerous tendency to associate a lawyer, who is a professional
advocate, with the views of their client as if they were always
inseparable and as if they were always one.
I don't have any doubt that if you were a criminal defense
lawyer and represented those accused of crime in courts on a
daily basis, members of this Committee and others would surely
have no trouble distinguished between the views of your client
and your duties as a criminal defense lawyer to represent that
client in court. But somehow when it comes to the
administration's policies or lawyers representing the President
or the Department of Defense in the case of Mr. Haynes, who has
been nominated to the Fourth Circuit, people have trouble
making that distinction. But I believe it is a very important
one, and I appreciate your answer.
And I have to say that Senator Schumer said no one in the
room disagrees with him about the role of ideology in judicial
selection, and I just want to say ``me, too'' to Senator
Sessions who said he had disagreed with Senator Schumer on
that.
But as I understand the role of the Committee and the
advise and consent role under the Constitution, it is to
explore qualifications and judicial philosophy, that is,
whether you are willing to subjugate any personal views that
you may have, whether they be political, ideological, or
otherwise, to what the law is and to faithfully enforce the law
as written by the Congress or as determined by precedents of
the United States Supreme Court.
Do you have a similar understanding of what the role is of
a judge and how that is different from any personal opinions,
philosophical or ideological or others that you may have?
Mr. Kavanaugh. Well, I think, Senator, the Founders
established an independent judiciary, discussed it in the
Federalist Papers, because they wanted people who would be
independent of the legislative and executive branches to decide
cases fairly and impartially, without regard to their personal
preferences.
There was discussion at the time, I think Federalist 81
discusses making the judiciary an extension of the legislature,
or somehow having review by the legislature. But there was a
decision made to have an independent judiciary, and that is the
foundation of our system of rule of law.
The Founders also recognized, I think necessarily and
certainly at the time, that people with Government service who
had served in the legislative branch or served in the executive
branch would become judges--Chief Justice Marshall, for
example--would have backgrounds that involved Government
service or political service. But they also had confidence in
the ability of people in our system, once they became judges
and put on the black robes, to decide cases fairly and
impartially. And that's the way that system has worked for more
than two centuries. And I know there has been some discussion
about that, but that's the way the system has worked in terms
of deciding cases fairly and impartially and not based on
political of personal views.
Senator Cornyn. In your opinion, did Justice Kennedy in
your experience, was he able to make the transition from lawyer
to judge and make that sort of transition you described?
Mr. Kavanaugh. Justice Kennedy always decided cases fairly
and impartially and taught a lot to his law clerks about how to
do the same.
Senator Cornyn. And in my introductory comments, I pointed
out that you are not the only person to come before the Court
who has represented a client in the arena, for example, Justice
Ruth Bader Ginsburg. In your opinion, has she been able to
successfully distinguish between her role as general counsel
for the American Civil Liberties Union and her role as a judge?
Mr. Kavanaugh. In my observation, she's--yes, she's an
excellent Justice on the Supreme Court. It's not for me to be
commenting too much on Supreme Court Justices, but I think she
obviously decides cases fairly and impartially and was a judge
on the D.C. Circuit before that who was widely respected, as
she is on the Supreme Court.
Senator Cornyn. And Justice Breyer, who was the Democrats'
chief counsel on the Senate Judiciary Committee, do you think
he has been able to successfully make the change between that
job and the role as judge, a circuit judge first and then now
as a member of the United States Supreme Court?
Mr. Kavanaugh. Yes.
Senator Cornyn. And Byron White, who was a political
appointee at the Justice Department under President Kennedy,
Abner Mikva, I guess the list could go on and on. But in your
experience and in your observation, have others that have had
perhaps not the same but a similar experience, either in the
political arena or representing clients who were, been able to
successfully make the transition from advocate to impartial
judge?
Mr. Kavanaugh. Yes, Senator, absolutely.
Senator Cornyn. And I guess the problem is, in some
instances, there are those who just don't simply believe that
is true, that anyone can actually make that transition. There
are those, I guess, who think that those who come to the bench
continue to be advocates for an ideology or political
persuasion or see it as appropriate to issue judicial edicts or
decisions that satisfy only their own sense of justice and not
what the law is.
I don't know how anyone can truly believe that and still
say that we are Nation of laws and not individuals. Do you have
any thoughts on that?
Mr. Kavanaugh. I agree with that, Senator, very much, and I
guess I firmly disagree with the notion that there are
Republican judges and Democrats judges. There is one kind of
judge. There is an independent judge under our Constitution.
And the fact that they may have been a Republican or Democrat
of an independent in a past life is completely irrelevant to
how they conduct themselves as judges. And I think two
centuries of experience has shown us that that ideal which the
Founders established can be realized and has been realized and
will continue to be realized.
Senator Cornyn. And I know for all the attempts made during
the confirmation process to try to predict how an Article III
judge will act once they have a life-tenured position and have
the responsibility of being a judge, we don't have a
particularly good track record of making that prediction. I
point out Harry Blackmun, who I believe was appointed by
President Nixon; Justice Souter, appointed by President Bush;
and Earl Warren, appointed by President Eisenhower.
Have you observed judges consciously or unconsciously make
that transition of judge in your experience, in your clerking
experience? Or have you discussed that with Justice Kennedy or
Judge Kozinski or any other judges you have worked with?
Mr. Kavanaugh. I believe that the judges for whom I've
worked and all the judges I've observed in my experience
understand the importance of putting on the robe and understand
the importance of sitting in the courtroom as a fair and
impartial arbiter of cases, and I think they all have
understood that and helped pass it along.
Chairman Hatch. Senator, your time is up. Thank you.
Senator Feinstein? Then we will go to Senator Kennedy and
finally Senator Durbin.
Senator Feinstein. Thank you very much, Mr. Chairman.
Mr. Kavanaugh, while you worked for Mr. Starr in the Office
of the Independent Counsel, you argued to the D.C. Circuit in
an opinion entitled In re Bruce Lindsey. There you convinced
the D.C. Circuit that the Deputy White House Counsel Bruce
Lindsey must testify to a grand jury despite his claims that
the information sought was protected by attorney-client
privilege.
Since then, you yourself have worked in the White House
Counsel's Office. There you drafted Executive Order 13233. That
order significantly limits which documents the administration
releases to the public.
Do you see any contradiction between the arguments you made
in the D.C. Circuit in the Lindsey case, which weakened
Presidential privilege, and your work on the Executive Order,
which strengthened Presidential privilege?
Mr. Kavanaugh. Senator Feinstein, let me explain that in
two ways.
First, in both instances, I was representing a client, in
the first in Judge Starr's office, and the second working in
the White House.
But, second, let me answer the heart of the question, which
is, I think, the two positions are consistent in that the
Lindsey case arose in the context of a criminal investigation,
and the Supreme Court had said years ago in the U.S. v. Nixon
case that the needs of a criminal investigation trump any
governmental interest in confidentiality, whether it be
Everything privilege--and the question in the Lindsey case was
whether that Nixon case also extended to Government attorney-
client privilege. And the court concluded that it would.
The Executive Order, as I explained to Senator Leahy in
some part, was merely designed to set up procedures for the
assertion of privilege. The order itself didn't assert any
privileges. President Bush wasn't asserting any privileges
there. It merely set up the procedures to implement the
assertion of privilege by a former President. And so that's
what the order was designed to do. It didn't address the
context of the criminal investigation at all.
So I think the two are, in fact, consistent.
Senator Feinstein. Okay. In response to a question by
Senator Schumer, you indicated that ideology is not--and you
were rather definite--any kind of a test for a Bush judge. Let
me read you from a Patriot News editorial. This is a
Pennsylvania newspaper, and the date is April 30, 2003. The
editorial stated, ``Only two things apparently guided Bush's
selection: first, that the candidate be sure of Senate
confirmation; and, second, that he be opposed to abortion.''
The article goes on to add, ``What we find perplexing and
more than just a little disturbing is that the abortion issue
was put forward by the Bush administration as the sole litmus
test.''
I would like you to respond to that.
Mr. Kavanaugh. Senator, as Judge Gonzales has said before
publicly, as have I, we don't ask judicial nominees or
candidates their positions on issues like that. We don't know
in the vast, vast majority of cases, unless there has been a
public record before--
Senator Feinstein. You say you don't know?
Mr. Kavanaugh. Don't know, correct. We don't know what
someone's position is.
Senator Feinstein. Well, let me ask you this: Could you
identify five pro-choice judges that the White House sent to
the Hill?
Mr. Kavanaugh. I don't know whether the nominees are pro-
choice or pro-life unless--
Senator Feinstein. Four? Three? Two? One?
Mr. Kavanaugh. Senator, I'm sure there are many. I don't
know what someone's--I don't know and we don't ask what
someone's position on issues like that is. So I don't know if
there are some, many, of any particular viewpoint on any
particular issue like that. So we don't ask, and that's an
important part of the process.
Senator Feinstein. Well, let me ask this question: Would
you agree, then, that most nominees that come up here are
politically conservative?
Mr. Kavanaugh. This goes to a question that Senator Schumer
asked, and I'm going to answer you directly. Most of the
nominees of any President share the same political affiliation
as the President. That's been a tradition in our country going
back two centuries. Most of President Clinton's nominees were
Democrats. Now, that didn't mean they couldn't be independent
and fair judges. It just meant that their prior political
affiliation was Democrat. So, too, most of President Bush's
nominees--not all by any stretch, but most are Republicans.
Again, that's part of the tradition.
Again, as with President Clinton's nominees, it doesn't
mean that they won't be--because they will be--fair and
impartial judges. It's a difference between political
affiliation and political beliefs and being a fair and
impartial judge. And I believe firmly in the notion that there
is a strong difference in those two things, and I think our
system has reflected that for two centuries.
So they might be mostly Republican, just as President
Clinton's might be mostly Democrat. But they'll be all good
judges.
Senator Feinstein. Well, we take that for a given and that
isn't the problem. The problem is where they are on the
political spectrum and whether their ideology is so strong that
they can't separate themselves from that ideology to be a fair
and impartial judge on major questions that come up before an
appellate court. And what I'm trying to find out is if you're
willing to do that, and thus far the indicators are that you
are not.
Mr. Kavanaugh. Willing to be a fair--
Senator Feinstein. Willing to separate yourself from the
ideology. I think to say that ideology is not any kind of a
test, it is just that somebody belongs to the Republican Party,
really I find dismaying because the evidence of the people that
come before us doesn't really display that in any way, shape,
or form.
Mr. Kavanaugh. I understand the question, Senator--
Senator Feinstein. And what I had hoped you would be is up
front and direct with this Committee.
Mr. Kavanaugh. Well, Senator Feinstein, it's important that
a judge understand the proper role of a judge to decide cases
based on the law before him or her. In terms of the judges that
have come before the Committee, I know there have been a few
that have been raised here today and discussed publicly, but
the vast majority have been approved by the Committee. We've
worked closely with your office and Senator Boxer's office. In
California, a commission has been set up. The district court
judges have moved through, Judge Bea and Judge Callahan,
Consuelo Callahan and Carlos Bea. I talked to your office and
Senator Boxer's office about those two nominees, and they were
approved.
So there have been some that have been highlighted, I
understand, but I think the vast majority have been approved,
and I think we've worked--tried to work well with the home
State Senators.
Senator Feinstein. Well, let me just set the record
straight. I don't review nominees to the district court. We
have a screening committee, three Republicans, three Democrats,
non-partisan. All the nominees go there. They review them and
they make recommendations. I don't believe Senator Boxer--and I
know do not interfere in that process.
With respect to the circuit court, what has happened is, on
occasion, I would receive a call from Judge Gonzales. Now, if
this is conferring, so be it. But it is, ``Do you have an
objection to Carlos Bea?'' That is the specific question. It
really isn't conferring in the traditional sense.
However, I must tell you, I welcome even that phone call.
So, you know, I am not being critical about it. But, you know,
for me--and I can only speak for myself as to how I judge a
nominee. It is my interest--because I happen to know that
everybody coming out here is conservative. Do I believe they
can be a fair and impartial judge? Do I believe they can
interpret the law without a particular political bias of any
kind?
Mr. Kavanaugh. And I agree that should be--
Senator Feinstein. Now, say something that gives me some
assurance that you can do that, because the questions that
Senator Schumer asked to detect just that you wouldn't respond
to.
Mr. Kavanaugh. Senator, I have throughout my career
committed myself to public service. When I work in the
independent counsel's office, I thought deeply about the issues
raised by that investigation and raised by the statute. I wrote
an article in the Georgetown Law Journal trying to outline a
new approach for independent counsel investigations, and I
hope, you know, you have it. And it's important because it
shows that I took what I thought was a fresh look, an
independent look at an issue raised by the investigation. I
talked about how reports were a problem, how they were
inevitably perceived as political acts. I wrote that in 1997. I
talked about some of the problems in the investigation in terms
of the statute afterwards. I think I was trying to--what I was
trying to do there was taken an independent look at an issue
that I had personally been involved in. When I've written other
matters--when I wrote on Batson procedures when I was in law
school, about the hearings for Batson v. Kentucky, I tried to
take a fresh look at an issue on how procedures should work.
When I was in law practice, I tried to--I represented
clients of the firm, but I also made sure to do pro bono cases.
And I got a range of pro bono clients that I worked on for the
firm.
When I was in public service in the Starr office, before
the Lewinsky matter came to the office, one of the important
things that I worked on was what was known as the Foster
documents investigation. And we received a referral from the
Committee about a few people, and we concluded in that office
not to seek charges against any of the individuals named in
those referrals from the Senate.
When I was in the Starr office, we prepared a report under
Section 595(c)--and Judge Starr has talked about this before
publicly--a report on the Whitewater-Madison matter outlining
whether there were grounds for an impeachment. And we looked at
that report, and we decided the evidence was not sufficient
under the statute to send it to the Senate.
When I worked for Justice Kennedy--and he knows--I gave him
my independent advice on matters that probably didn't always
fit a pre-existing impression of what I would say.
When I worked in the Justice Department, I represented
clients on--I represented the United States on a variety of
issues, and I think the people who worked with me in the
Solicitor General's office know I took an independent looks.
The judges I clerked for on the court of appeals, the same.
I think throughout my career in the White House as Staff
Secretary, one of my jobs is to be the honest broker for
competing views that come in on memos to the President. Will
those views be reflected accurately in the memo? One of my jobs
is to make sure not to let the memo get slanted, not to let one
person dominate the memo, to make sure the President is getting
the best advice from all sides, regardless of what I think is
the right answer or the right policy position the President
should take in a particular case. I was selected for that job
to be the honest broker for the President in making sure he got
competing views.
In the counsel's office, so too I tried to work very
closely with home State Senators in Illinois and in California.
I might not have always agreed with particular recommendations
that came from Senators. I tried to work closely to do the best
job I could for the President.
So I think my record is replete with examples where I've
been independent, where I've tried to take a fresh look, where
I've done something because I'm an honest broker. And I think
that's how I would serve as a judge as well.
Chairman Hatch. Senator, your time is up.
Senator Feinstein. Thank you. My time is up.
Chairman Hatch. Senator Kyl?
Senator Kyl. Mr. Kavanaugh, I want to get back to the
privilege issue. You have been criticized on the one hand for
attacking the Clinton administration's assertions of various
privileges during your work in the Office of Independent
Counsel, and on the other hand helping to draft Executive Order
13233, which establishes policies and procedures to govern the
processing of requests for Presidential records and the
assertion of constitutionally based privileges.
Does this Executive Order set forth those circumstances
under which an assertion of Executive privilege should be made
or would be successful? Or does anything in the Executive Order
purport to block prosecutors or grand juries from gaining
access to Presidential records in a criminal investigation?
Mr. Kavanaugh. Senator, nothing in the order purports to
assert a privilege at all. It's up to the individual President,
former President or current President, to assert a privilege
following the procedures in the order. So nothing blocks
anything from a criminal or grand jury investigator. And,
again, there have been some misimpressions about the order when
it first came out. Some historians were concerned, and we took
proactive steps. Judge Gonzales and I met with historians to
try to allay their concerns and explain the order. We met with
people on the Hill also who had questions about it, and over
time I think we've explained what the order was designed to do,
which is merely to set up procedures.
Senator Kyl. And with regard to the criminal aspect, does
it block prosecutors or grand juries from gaining access to
Presidential records in a criminal proceeding?
Mr. Kavanaugh. It does not block any access.
Senator Kyl. And your arguments on behalf of the Office of
Independent Counsel regarding privilege was that Government
attorneys in the Clinton administration could not invoke the
attorney-client privilege to block the production of
information relevant to a Federal criminal investigation,
right?
Mr. Kavanaugh. The court ruled that the Government could
not assert a privilege to block it from a criminal
investigation under Nixon. It said that it would--yes, that's
correct.
Senator Kyl. So I don't understand where the inconsistency
is here. I know some of my colleagues may have tried to assert
it, but I don't see it. And correct me if I'm wrong or if I'm
missing something here. But the key issue is the assertion of
privileges in the context of Federal criminal investigations.
In fact, you referred to your Georgetown Law article in 1998
which was authored during the Clinton administration, and
didn't you there specifically recognize the difference between
asserting Executive privilege in the criminal context versus
outside of the criminal context?
Mr. Kavanaugh. I did recognize the difference in that
article. That was a difference that had been also recognized in
the cases.
Senator Kyl. And isn't it further the case that you
actually acknowledged or argued a presumptive privilege for
Presidential communications--and I have a quotation here that
was supplied to me by the staff--and that ``it may well be
absolute in civil, Congressional, and FOIA proceedings''?
Mr. Kavanaugh. That's correct. That's from my Georgetown
article.
Senator Kyl. And entirely consistent with this statement,
doesn't the Executive Order that I referred to specifically
recognize that there are situations where a party seeking
access to Presidential records may overcome the assertion of
constitutionally based privileges?
Mr. Kavanaugh. Yes.
Senator Kyl. Okay. A few more points here.
During your service as Associate White House Counsel, have
you ever worked on a matter where the President invoked or
threatened to invoke Executive privilege in a criminal context?
Mr. Kavanaugh. Senator, I'd like to answer that question,
but I don't think it's my place to talk about internal
discussions of privilege claims.
Senator Kyl. Okay.
Mr. Kavanaugh. I just want to be careful not to go down a
road--
Senator Kyl. All right. Well, let me ask you--
Mr. Kavanaugh. There's been no public assertion. I just
don't want to go down that road.
Senator Kyl. I appreciate your desire to treat that with
confidentiality.
Did you work on the Bush administration's assertion of
Executive privilege to shield the records regarding the pardons
issued by Bill Clinton at the end of his Presidency and to
withhold from Congress Justice Department documents related to
the investigation of alleged campaign fundraising abuses by the
Clinton administration?
Mr. Kavanaugh. I was involved in that matter working for
Judge Gonzales, who in turn was providing advice to the
President, yes.
Senator Kyl. So it seemed, at least I would assert, Mr.
Chairman, that Mr. Kavanaugh has been evenhanded and hardly
partisan with respect to the privilege issue. And if I have
just a little bit more time--
Chairman Hatch. You do.
Senator Kyl. One of the last questions had to do with the
Starr Report. I understand you were one of several authors for
that report, and that that report was actually required as a
matter of Federal law. Is that correct?
Mr. Kavanaugh. That report was required as a matter of
Federal law based on the jurisdiction that Attorney General
Reno had given Judge Starr.
Senator Kyl. And what part of the report did you help
draft?
Mr. Kavanaugh. I helped on the grounds section of the
report, which outlined possible grounds for an impeachment,
which was the standard specifically in the statute.
Senator Kyl. Did the independent counsel's report ever
state that President Clinton should be impeached?
Mr. Kavanaugh. It never did.
Senator Kyl. Now, of course, majorities in the House of
Representatives determined that information presented by the
independent counsel constituted grounds for impeachment, but
that report did not state that conclusion. Is that correct?
Mr. Kavanaugh. That is correct. And Judge Starr in his
November testimony before the House Judiciary Committee
emphasized over and over again that it was for the House solely
to decide whether to impeach, that he was making no
recommendation.
Senator Kyl. And the House concluded that the evidence was
sufficient to impeach, and 50 members of the Senate found the
evidence compelling enough and acted accordingly. Much of the
report was criticized for containing extensive details of
certain activities which some considered sensational.
What part, if any, did you have in the authorship of that
section of the report?
Mr. Kavanaugh. On the narrative section of the report, I
did not write or work on the grounds section of the report. I
worked on, again, how the report was released, I think was an
issue I've discussed publicly before, and said how it was
released by the House turned out to be a mistake, but--and I've
said that publicly before.
Senator Kyl. Is it fair to ask you whether you had an
opinion on whether or not some of the details in the narrative
part of the report should have been included?
Mr. Kavanaugh. They were relevant to the facts in the case,
but I've said that how the report was released publicly was a
mistake because some of those facts should not have been
necessarily released publicly.
Senator Kyl. Well, again, Mr. Chairman, it seems to me that
in looking at the entirety of Mr. Kavanaugh's record and the
activities in which some of have criticized him for
participating, in fact, the record reveals a very evenhanded,
straightforward, honest, forthright, and very non-partisan
approach to these issues. And I would hope that my colleagues,
unhappy about certain historical events, would not transfer
that unhappiness to a candidate here who is obviously
extraordinarily well qualified, has served in a variety of
public capacities, and in my view would make a tremendous
addition to the bench. I hope that they wouldn't transfer that
unhappiness with certain things that occurred in the past to
Mr. Kavanaugh, who I think has demonstrated that he would not
be the source of any of the unhappiness if the issue were
carefully considered.
Chairman Hatch. I certainly agree. Would the Senator yield
his last 2 minutes to me?
Senator Kyl. I am happy to do that.
Chairman Hatch. Because I just want to clarify a few
things. The editorial referred to by Senator Feinstein, that
was not a White House statement.
Mr. Kavanaugh. I am not sure where that came from.
Chairman Hatch. I am not either, but let me just say this.
The Committee questionnaire asks judicial nominees if any
specific case, legal issue, or question has been discussed in a
manner that could reasonably be interpreted as asking how a
nominee would rule on such a case, question, or issue. So I
think the question is this: Is it a practice of the White House
to discuss particular issues, like abortion, with the nominees?
Mr. Kavanaugh. No, it's--
Chairman Hatch. I know that that's true. You don't. And one
reason you don't is because of the Committee's requisite there,
plus it is just you know darn well somebody would make a fuss
about it if you did up here. Is that right? I may have said it
in more blunt terms than you would with your finesse, but--
Mr. Kavanaugh. Mr. Chairman, the President has said and
Judge Gonzales has said that one's personal views on particular
policy issues is not relevant to how one goes about being a
fair and impartial judge.
Chairman Hatch. I agree with that.
Mr. Kavanaugh. And so we don't ask questions about personal
views on policy issues.
Chairman Hatch. Or on litmus test issues that have become
litmus test issues up here, apparently.
Mr. Kavanaugh. We don't ask questions on that and don't
know the answers.
Chairman Hatch. Now, with regard to the airlines, as I
understand it, the proposed legislation did not provide
immunity to the airlines; rather, it limited their liability to
their insurance policy limits. Is that correct?
Mr. Kavanaugh. That is correct, Senator.
Chairman Hatch. Okay. Now, the administration did not
oppose the principle of victim compensation, but wanted to get
that issue right. The airline liability issue was a more urgent
matter in that they were facing bankruptcy. And that is why
these issues were not originally linked. Isn't that a fair
appraisal?
Mr. Kavanaugh. That's absolutely right, Mr. Chairman. The
two issues were separate.
Chairman Hatch. I just wanted to clarify that because if
you just listen to one side up here, you might get the wrong
impression. But that is actually what happened, isn't it?
Mr. Kavanaugh. That's correct, Mr. Chairman.
Chairman Hatch. I stated it correctly.
Mr. Kavanaugh. They're two separate issues. The question--
ultimately in the discussions, the two became part of the same
bill, and there were discussions then about what kind of
compensation fund, we were looking at precedents that were
already in place, and then ultimately the administration
supported the proposal that was discussed on the night of
September 20th, after the President's speech.
Chairman Hatch. Senator Kyl was kind enough to give his
time to me. I appreciate it. My time is up.
Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Mr. Kavanaugh, thank you for joining us today.
Mr. Kavanaugh. Thank you.
Senator Durbin. You have many friends in this room, but you
certainly do not have as many as your mother and father who
have many friends in Washington on Capitol Hill and many of
them have contacted me. And it is a testament to your family,
and I am sure you are very proud of them and the support that
they give you.
I listen to the questions that have been asked, and no one
has questioned your honesty, nor should they. There is no
indication on the record of any reason to question, but it
comes down to two areas, repeatedly: your skill and talent,
whether you are up to this job and, second, whether you can be
fair and objective. That is really, all of the questions focus
on those two areas.
I have been a fan of baseball since I was a little kid. If
the owner of the Chicago Cubs called me and said, ``Listen, we
know you follow baseball very closely, and we would like you to
be the starting pitcher tonight in Arizona,'' I would say,
``Stop. I know my limitations. I am flattered that you would
even consider me.''
Did that thought ever cross your mind when they said it is
time for the D.C. Circuit Court of Appeals, that it was a
flattering offer, but frankly your resume just was not strong
enough? When you listen to what Senator Schumer says about the
people serving on that court, Republicans and Democrats, when
you consider the fact that despite your commitment to public
service, you have limited experience when it comes to
litigation, and trial work, and things that may be very
important in decisions that you make, did it ever just dawn on
you at some point to say, ``Stop. I am flattered, but in all
honesty, I am not ready to be the starting pitcher on that
team''?
Mr. Kavanaugh. Senator, when it was mentioned to me, I was
humbled and honored to be considered, but I also, based on my
record and experience, am ready to hit the ground running, were
I to be confirmed to be a judge, based on my experience as a
law clerk, in the Justice Department, performing grand jury
work, working on matters in litigation, arguing before the
Supreme Court, private practice for major clients, for pro bono
clients, working in the White House Counsel's Office on
difficult matters, several of which we have discussed here
today that were difficult matters, working now as staff
secretary for the President and anticipating a lot of
conversations with senior staff and with the President at the
White House.
Senator Durbin. But, Mr. Kavanaugh--
Mr. Kavanaugh. I think that record means that I think I can
hit the ground running.
Senator Durbin. It is a good record. It is a great record,
but it does not avoid the obvious, and that is that you come to
this position, the second-highest court in America, the second-
highest court in America, the training ground for the U.S.
Supreme Court, with less legal experience than virtually any
Republican or Democratic nominee in more than 30 years. Of the
54 judges appointed to this court in 111 years, only one--
Kenneth Starr--had less legal experience. That is a fact.
And you have made it your professional life now, for some
time now, to look closely at the qualifications of nominees.
Were you able to look at your own qualifications in this
context? Would it not have been better for you to have started
off at a District Court or some other appointment and work your
way up? But to start at this level is--I do not think it is
warranted.
Mr. Kavanaugh. Senator, I think the President made the
decision to nominate me. I know the American Bar Association,
which many in this Committee have relied on for years, rated me
well-qualified for a seat on this bench at this time. And so I
look to other evaluations of me--the American Bar Association
conclusion--and based on my own record in appellate law, and my
experience in a wide range of difficult issues, which I have
not shied away, but have tackled the best I could, I think I am
prepared to be a judge on the circuit.
Senator Durbin. Let us talk about that wide range of
issues. Of course, the fear is, if you hit the ground running,
are you only going to be running to the right, and that is a
legitimate fear.
As I look through all of the different issues that you have
been involved in as an attorney in public service and the
private sector, it seems that you are the Zelig or Forrest Gump
of Republican politics. You show up at every scene of the
crime. You are somehow or another deeply involved, whether it
is Elian Gonzalez or the Starr Report, you are there.
And it strikes me as worrisome, as Senator Schumer and
others have noted, that you have been in this position
consistently and raises the question in my mind, would you not
understand that an attorney coming before the D.C. Circuit
Court, looking at your resume, has to assume--just assume--
where you are going to end up. There are so few exceptions, if
any, in your legal career that point to objectivity.
Give me a good example of where you just flat out disagreed
with the Republican Party and leadership and said, ``I am going
to do the right thing, even if my party elders do not agree
with me on this.'' Give me an example of that.
Mr. Kavanaugh. Well, Senator, my background has not been in
party politics. I have been a lawyer for clients, working for
judges, Justice Kennedy, working in the Justice Department,
working in the Independent Counsel's Office. I guess I cited to
Senator Feinstein an example where the Senate had referred some
people over for possible violations. We declined to seek
charges in those cases. In private practice, again, my clients
were not Republican clients or Democratic clients. They were
just clients, whether institutional clients of the firm or pro
bono clients that I worked on at the firm.
So my background and experience is one where I have been in
the law, primarily. And then in the White House Counsel's
Office and as staff secretary, as in any White House, there is
the mix of law and policy that goes with it to be sure, but my
background has been one where I have been involved in legal
issues.
Senator Durbin. Well, I would disagree. I think your high-
profile work has all been on one side, but I want to go to one
area that is particularly personal to me.
I was victimized by Manny Miranda and the computer theft
more than any other member of this Committee. We believe over
2,000 documents were stolen from my computer. At the time, Mr.
Miranda served first on the Republican staff of the Senate
Judiciary Committee and then in Senator Frist's office,
involved in judicial nominees. And, clearly, you had a working
relationship with him. You have conceded that point.
He, also, we believe, distributed the memoranda, which he
stole from my computer and other computers, to organizations
such as C. Boyden Gray's operation--I am going to get these
names wrong, so I better read them--something called the
Committee for Justice, a fellow named Sean Rushton. Do you
happen to know Sean Rushton?
Mr. Kavanaugh. I have met him, yes.
Senator Durbin. In what context did you meet him?
Mr. Kavanaugh. I think I met him where the people from the
administration and from the Senate would speak to outside
groups who were supporting the President's nominees, and he is
a member of a group that supports the President's nominees. I
think I have met him at those meetings.
Senator Durbin. And so the horror that has been expressed
by the right-wing press about members of the Senate meeting
with outside groups to speak of nominees turns out to be a sin
committed by the administration, as well.
Mr. Kavanaugh. I think it is quite proper, and certainly we
did it, and appropriate for anyone to speak to members of the
public who are interested in public issues. That is one of the
important functions of anyone in Government, and we certainly
do it.
Senator Durbin. How about Kay R. Daly, president of a group
called the Coalition for a Fair Judiciary, do you know her?
Mr. Kavanaugh. I have met her as well and do know her.
Senator Durbin. In what context?
Mr. Kavanaugh. Same context.
Senator Durbin. She published on her website the stolen
memos. Were you aware of that?
Mr. Kavanaugh. I was not aware of that until I read it in
some stories in the media or on the Internet, I guess.
Senator Durbin. I guess what it boils down to is this.
Since you've worked up here for so long. You had to be able to
spot things that were being said that looked revealing. When
Manny Miranda has a revelation about questions that might be
asked of a nominee or what the schedule is going to be under a
Democratic Chairman, did that ever come up, and did it ever
raise a question in your mind that perhaps he knew just a
little bit too much for a staffer on Capitol Hill?
Mr. Kavanaugh. There was--I have thought about this,
Senator--there was nothing out of the ordinary of what Senate
staffs would tell us or what we would hear from our Legislative
Affairs folks. That said, I cannot tell you whether something
that he said at some point, directly or indirectly, derived
from his knowledge that may have come from these documents. I
just cannot speak to that at all. I can say, in direct response
to your question, that, no, I never suspected anything
untoward. Had I suspected something untoward, I would have
talked to Judge Gonzalez about it, who I know would have talked
to Senator Hatch about it, but I never did suspect anything
untoward.
Senator Durbin. One last brief question. One percent of the
lawyers in America are members of the Federalist Society, a
third of the Circuit Court nominees you have sent to the
Judiciary Committee have been members of that society.
Coincidence?
Mr. Kavanaugh. I think the Federalist Society is a group
that brings together lawyers for conferences and legal panels.
I guess others would have to make a judgment about that. The
Federalist Society does not take position on issues. It does
not have a platform. It brings together people of divergent
views. Many of them may share a political affiliation, I do not
know that, but they do not take a platform on particular
issues.
Senator Durbin. Just a coincidence.
Mr. Kavanaugh. I think a lot of them are members of the
American Bar Association and of the Federalist Society
because--and I have been a member of both--because, for me at
least, both organizations put on conferences and panels that
you can attend or speak at to learn more about legal issues you
are interested in and meet some of your colleagues. So I have
always found both organizations helpful to me in my legal
practice.
Senator Durbin. Thank you, sir.
Chairman Hatch. Senator, your time is up.
Senator Kennedy?
Senator Kennedy. Thank you very much.
There is a very definite philosophical common view with
regard to members of the Federalist Society, is there not,
though, Mr. Kavanaugh? You are not trying to suggest that this
is just some social group that they are getting together.
Mr. Kavanaugh. No. And I agree with that, Senator Kennedy.
I do think there is wide disparity in views, for example, on
some might call it libertarian versus conservative, whether the
text of the Eleventh Amendment or the sovereign immunity
principle behind the Eleventh Amendment should govern, I have
heard debates on that by people who are members of the
Federalist Society. So I think that within the group that are
members, there are wide views.
And the panels they put on, and the ones I have worked on,
are designed to bring together divergent views. I was
responsible for putting on a Federalist Society panel one time
on First Amendment cases. And on it, I recruited the people to
be on the panel, and it was Judge Starr, Mr. Dellinger and
Nadine Strossen, the head of the ACLU, to talk about the
Supreme Court's First Amendment jurisprudence. I thought that
was a representative panel of diverse views to discuss the
Supreme Court. That is what the--
Senator Kennedy. Well, I had not planned to go down this,
but, as I understand, you were co-chair of one of the practice
groups?
Mr. Kavanaugh. Yes, I was co-chair of the School Choice
Practice Group.
Senator Kennedy. And do you agree with the following
statement from the Federalist Society's mission statement that
``law schools and the legal professions are currently strongly
dominated by a form of orthodox liberal ideology which
advocates a centralized and uniform society''?
Mr. Kavanaugh. I can only speak to Yale Law School, where I
attended, and the professors I attended there--
Senator Kennedy. Well, that is not what I am asking you.
That is in the, that is part of the--
Mr. Kavanaugh. But I cannot--
Senator Kennedy. You can answer the question in any other
way, but I am just telling you what we are trying to find out
here. You can say anything you want to, but I mean that is
the--you have the right, obviously, to do it.
But I am just asking you whether you agree. That is the
mission statement. If you want to answer what happened at Yale,
that is fine, too, but if you want to answer it with regard to
that question, that is what I would like to hear.
Mr. Kavanaugh. There is a common perception that law school
faculties are more Democratic than the population as a whole,
but I do not know if that is--I have not done my own survey at
Yale Law School. My mentors, and the people I looked up to, and
the people who wrote my recommendations were Harold Koh, Paul
Gewirtz, and George Priest, three people with different views,
who recommended me for my initial clerkships out of law school.
I think I will leave it at that, Senator.
Senator Kennedy. I am going to come back. I just wanted--I
am sorry Senator Cornyn is not here because I want to make a
brief comment. He mentioned about Byron White being a political
appointee. Of course, Byron White was a Rhodes Scholar. Byron
White was the leading law partner at one of the prestigious law
firms in Denver. Byron White was a deputy attorney general.
Byron White was a Silver Star winner. I know that some are
disparaging about people who fought in wars recently, but he
was a hero in World War II, in the Navy. Plus, he was a leading
ground-gainer when he was in his first year at Yale Law School,
and he served with great distinction in the Justice Department.
So I resent, very deeply--I am sorry Senator Cornyn is not
here. I will make sure he knows. I did not have a chance
because others wanted to question--and I will just talk about
Byron and about Judge Breyer was probably one of the leading
antitrust and deregulation professors in the country. And to
somehow, I guess it is meant to be in a disparaging way, that
they are nominated by political individuals to serve in this
part, and was extraordinarily thoughtful, and his record can
speak for itself.
Mr. Kavanaugh. Senator, can I say one thing there?
Senator Kennedy. Yes.
Mr. Kavanaugh. I think the question there was about prior
Government service in the administration with Justice White,
and I just want to say--
Senator Kennedy. It was generally about the, the question
about legal experience. I mean, the fact is, on the average,
judges appointed to the D.C. Circuit in the past three decades
have over 20 years of experience--Justice Scalia, 22 years;
Rogers, 30 years; Tatel, 28 years.
You have had just over 13 years of legal, counting your
service as a law clerk. You have been a practicing attorney for
only 10 years, and you have never tried a case.
Mr. Kavanaugh. I have been--
Senator Kennedy. I think the record is, when people were
talking about or characterizing some of the concerns that
people have up here about that background and experience and
comparing them to the others, I just wanted to make--you can
make whatever comment you want to make.
Mr. Kavanaugh. I was going to say that Justice White is one
of the justices--and people who know me know this well--who I
have the most admiration for, in terms of his background, and
his record, and how he conducted himself as a Supreme Court
justice. He is one of the ones, maybe with Chief Justice
Marshall, if you put aside the current Court, that I really
think did a tremendous service to the Court.
And so when you mentioned Justice White, I just wanted to
underscore that people who have known me for years know how
much I talk about him, and I have read a lot of his--
Senator Kennedy. Well, I appreciate that. I appreciate
that. He was an extraordinary individual.
Let me come at this in a somewhat different way, and that
is about the District Court, the D.C. Circuit Court and its
importance to the millions of Americans. This court draws the
opinions on the air we breathe, and the water, the cleanliness
of the water the children are going to drink, whether workers
will be safe on the job, can join unions without fear of
reprisal, minorities will be free to work in the workplace
without harassment.
So, for me, the nominees to this important Court must
demonstrate a commitment to the core constitutional issues, but
also to the statutory principles that protect these basic
rights. Many of us have worked long and hard to get these
rights, and we are not going to support, at least this Senator
is not going to support someone that is going to undo them or
vote to undo these parts.
And as you are familiar, in the sixties and seventies, the
D.C. Circuit expanded public access to administrative
proceedings, protected the interests of the public against big
business. The Court enabled more plaintiffs to challenge agency
decisions. It held that a religious group, as a member of the
listening public, could oppose the license renewal of a
television station accused of racial and religious
discrimination. It held that an organization of welfare
recipients was entitled to intervene in proceedings before
Federal agencies, and these decisions empowered, at least from
this Senator's point of view, individuals and organizations to
shine a brighter light on the governmental agencies.
Then, we have over the same period of time, for example,
with the NLRB, which, as you know, guarantees a worker's right
to join a union without discrimination or reprisal from
employers, and the NLRB interprets the act, and those are
appealable to the Circuit Court.
As a result, the D.C. Circuit is available as a forum to
challenge the decision. In 1980, the D.C. Court fully enforced
the Board's decision 83 percent of the time, at least partly
enforced the Board's decision in all other cases. By the year
2000, when the Court had a 5-4 Republican majority, including a
solid majority of Reagan and Bush appointees, the D.C. enforced
it only 57 percent of the time and enforced at least part of
the Board's decision just 70 percent of the time.
These enforcement statistics puts the D.C. Circuit
significantly below the national average of 83-percent
enforcement for the Board in all of the Courts of Appeals.
Now, I am concerned about your own kind of background,
experience, commitment in these areas that affect working
families and the national labor protections that are protected
in this, and ask you what is your experience involving labor
law?
Mr. Kavanaugh. Senator, if I were to be confirmed as a
judge, I would follow and enforce the laws passed by the
Congress, signed by the President, faithfully, regardless of
what position they took, faithfully enforce the environmental
laws of this country and the workers' rights laws of this
country, absolutely.
In terms of my background, it has been primarily in public
service, in Government positions. In those positions, I have
tried to work for the benefit of all of the people. I have had
specific assignments in those and tried to do them to the best
of my ability.
In private practice, I have represented a few institutional
clients of the firm and also made sure that I did pro bono work
and also did outside activities.
So I have not been involved in some of the areas that you
have mentioned, but I have a range of experience, and I can
commit to you that I will faithfully interpret all of the laws
passed by this Congress.
Senator Kennedy. Well, this is important. I mean, we passed
the Americans With Disabilities Act. It took a long time to get
there, a long time to make progress.
Mr. Kavanaugh. That is right.
Senator Kennedy. And we are seeing, at least for many of us
who were very much involved in the passage of that, the
gradually whittling away in terms of the rights and protections
and this kind of--as someone who was very much involved in the
shaping of that legislation, interpretations that are far
beyond what was--in restricting these rights.
This is a very deep concern, since this is the Court. The
Supreme Court, obviously, number one. This is the number one
court in terms of interpreting Americans With Disability, the
wide range of environmental acts. Many of us are deeply
concerned by judgments, and decisions, and orders that this
administration has taken with regards to environmental, and
these are going to be directly appealed to the District Court.
I see this red light on.
And the real concern that many of us have is what, in your
background and experience, could give us at least some
indication or show some sensitivity to these kinds of concerns,
to these interests, to the issues on clean air and clean water,
to the issues in terms of affecting the disabled in the
society, to the concerns in terms of working families that they
are going to get a fair shake. And that is, with all respect to
it, I give great respect to a brilliant background, academic
background, and I admire your commitment to public service, but
this is something that is of concern.
My red light is on.
Mr. Kavanaugh. I appreciate that, Senator. What the
Committee is entitled to expect from a judge on the D.C.
Circuit or any court is that that judge will follow the law
passed by the Congress and signed by the President faithfully,
and independently, and impartially. And I can commit to you, my
public service has been in different areas than the few that
you have mentioned, but I can commit to you that I will
faithfully follow the law, and enforce the law in all respects
were I to be confirmed to sit as a judge. And I think, although
it has been in different areas, I have background with a wide
range of experiences that I could bring, and it shows that I
would do that, but I commit to you that I would.
Chairman Hatch. Thank you, Senator.
Senator Schumer, we will turn to you.
Senator Schumer. Thank you, Mr. Chairman. I appreciate the
witness staying for a second round.
First, Senator Sessions described you as nonpartisan. Do
you believe you are nonpartisan?
Mr. Kavanaugh. I am a--
Senator Schumer. I do not mean how you will be as a judge.
I mean, in your life, up to now, have you been nonpartisan?
Mr. Kavanaugh. Let me explain that. I am a registered
Republican. I have been a Republican. I have supported
Democrats for office. I have contributed to Democrats for
office. My background, family background, shows bipartisanship,
I would say. But anyway, in my personal life, I have supported
Democrats.
Senator Schumer. I am asking you do you consider yourself
nonpartisan?
Mr. Kavanaugh. I consider myself someone who, as a judge,
would be independent--
Senator Schumer. I am not asking that.
Mr. Kavanaugh. I know, and I am going to answer the
question.
Senator Schumer. You are never answering my questions, sir,
I have to tell you.
Mr. Kavanaugh. Senator--
Chairman Hatch. I think he does. I mean, he said he is a
Republican.
Senator Schumer. We will have to disagree.
I asked him if he considered--Jeff Sessions, Senator
Sessions described as nonpartisan. I think that defies, I mean,
we are in ``Alice in Wonderland'' here. I do not think anybody,
I would say even you, yourself, do not consider yourself
nonpartisan. You treat the two parties equally. You are not
involved.
I mean, let us talk, frankly.
Mr. Kavanaugh. I am a Republican, and I work for President
Bush--
Senator Schumer. You consider yourself nonpartisan?
Mr. Kavanaugh. I consider myself--
Senator Schumer. If you are a Republican, and you have
worked mainly for Republican causes, 99,999 people out of
100,000 would say you cannot consider yourself nonpartisan.
Now, why is it so hard for you to say that?
Mr. Kavanaugh. I guess I am concerned with how the term is
being used. I am a Republican--
Senator Schumer. I am not asking are you unfair or fair. I
am asking are you nonpartisan? Most of the judges we have voted
for I doubt would say that they are or some of them, at least--
you cannot go through all of them--would say some of them are
partisan. You have had a more partisan record than any single
nominee who has come before us, Democrat or Republican. You
have been more active in more political causes, hot-button
issues than anyone. Now, I am asking you to be, you know, to
give a straight answer with this Committee. Do you consider
yourself nonpartisan?
Mr. Kavanaugh. I consider myself a Republican, and I
support President Bush, and I have worked for him, and others
can attach labels to it.
Senator Schumer. Let me ask another question.
The Committee for Justice, Boyden Gray's group, which very
few consider nonpartisan, they have a distinct point of view;
is that correct?
Mr. Kavanaugh. I know that they support the President's
judicial nominees. Beyond that, I do not know what they might
do.
Senator Schumer. How often--did you go to a fund-raiser for
them?
Mr. Kavanaugh. I attended it was a party where I think it
cost, and it might have been a fund-raiser, I do not know, but
I think it cost $20 or something.
Senator Schumer. Did you make a contribution?
Mr. Kavanaugh. I do not think I did. I think I just went.
Senator Schumer. You just went, okay.
Mr. Kavanaugh. It was a--
Senator Schumer. Do you think that was, if somebody is
trying to be down the middle--
Mr. Kavanaugh. Senator, can I say I will try to check on
that, but I am pretty sure I just went to that. It was a Friday
afternoon.
Senator Schumer. How often do you speak to Boyden Gray?
Mr. Kavanaugh. I--
Senator Schumer. Once every 6 months? More than that?
Mr. Kavanaugh. Less than that.
Senator Schumer. Less than that.
Mr. Kavanaugh. He is, since--
Senator Schumer. How about Sean Rushton.
Mr. Kavanaugh. Since I have been staff secretary, he would
come--Boyden Gray--would come at times to meetings where
members of the administration would talk to outside groups, and
he would be there at times.
Senator Schumer. How often have you--you have had a
conversation with him less than once every 6 months?
Mr. Kavanaugh. Well, since I have been staff secretary, I
do not think I have talked to him at all, not since July of
last year.
Senator Schumer. How about Sean Rushton?
Mr. Kavanaugh. I am pretty sure I have not talked to him
since July of last year either, and I--
Senator Schumer. How about before that?
Mr. Kavanaugh. I do not think I talked to him much. I
think, again, he was in the groups sometimes, but not often. He
would come to those meetings where we would talk about the
President's judicial nominees. There were people who would
come, and we would provide information about them.
Senator Schumer. How often, over the 4 years, say, you have
been in the White House?
Mr. Kavanaugh. On the phone or in person?
Senator Schumer. Either one. I did not qualify it.
Mr. Kavanaugh. Very rarely.
Senator Schumer. Even by signals. Signals would be
included.
[Laughter.]
Mr. Kavanaugh. Rarely. I think the one thing I want to be
careful, the one caveat I will say, is I think he has a mass e-
mail list or had one that would sent out these mass e-mails of
newsletters. So, if those are counted, then that would be more,
but not in terms of personal communication.
Senator Schumer. Now, I asked you another question, and you
are under oath, I asked you had you ever in your course in
vetting judges used the word ``too liberal.'' You said you
could not recall. Have you ever heard others use the word ``too
liberal'' who were White House employees?
Mr. Kavanaugh. Senator, I think with respect to discussions
of nominees, it is not my place to go into internal discussions
of character--
Senator Schumer. You do not want to answer the question?
Mr. Kavanaugh. I do not think it is my place to talk
about--
Senator Schumer. Why not? You have maintained--
Mr. Kavanaugh. I think it is Judge Gonzalez's--
Senator Schumer. --and we have heard maintained that
ideology does not enter into any discussions or vetting. So,
counselor, you have opened this line of questioning up. I am
asking you something that would prove that one way or the
other, and that is because liberal is an ideological term.
Have you heard people use the term ``too liberal,'' yes, no
or you do not want to answer?
Mr. Kavanaugh. I think that is--I am going to answer that
in part--but I think it is a question that is not my place to
answer, but it should be directed to Judge Gonzalez. But in
terms of--I want to say this, though.
Senator Schumer. You are the nominee, not Judge Gonzalez.
This is the first time that you are sort of stepping out on
your own, in a certain sense, you know, except when you did
maybe those pro bono activities that you volunteered for. So we
want to know your views, not Judge Gonzalez's, not George
Bush's. You are going to have a lifetime appointment should you
get this nomination, okay? So I am not asking--if Judge
Gonzalez were here, I would ask him the same question. You are
the nominee. Now, have you heard the words used?
Mr. Kavanaugh. Senator, it is not my place to disclose the
internal communications--
Senator Schumer. Okay. You do not want to answer.
Mr. Kavanaugh. --but there are people who have been too
political in the judgment--
Senator Schumer. I did not ask that question. I asked you
have you heard the term used by others or used yourself ``too
liberal''?
Mr. Kavanaugh. And I was going to say I have heard, and I
know that there have been people who have been judged to be,
who could not shed, in the judgment of people there, personal
beliefs to be fair and impartial judges, and shorthand could
have been used to describe those--
Senator Schumer. Did you ever use it?
Mr. Kavanaugh. --on either way.
I do not recall using it.
Senator Schumer. Next question: We have talked about
judicial activism here. Would you like to define what you think
is judicial activism?
Mr. Kavanaugh. Yes, Senator. I think judicial activism is
when a judge does not follow the law before him or her, but
instead superimposes his personal beliefs on the decisionmaking
process.
Senator Schumer. Fair enough. When Judge Brown says that
she believes Lochner was correctly decided and when she says
that San Francisco should not have any zoning laws, is she
being an activist?
Mr. Kavanaugh. I am not familiar with all of her
statements, but I will say--
Senator Schumer. You said you vetted judges for California.
You didn't vet her?
Mr. Kavanaugh. I wasn't involved in--
Senator Schumer. Well, let me tell you she said repeatedly
both in court decisions and in conversation that Lochner was
correctly decided. I think it is about 70 years ago that that
doctrine was discarded. It meant you couldn't pass any kinds of
labor laws because--is that being an activist, yes or no?
Mr. Kavanaugh. Can I take a minute to answer the question?
Senator Schumer. Yes, surely.
Mr. Kavanaugh. Senator, first of all, I want to clarify
that I am familiar with Judge Brown's judicial record. I am not
familiar with her speeches. So I just want to clarify that.
Senator Schumer. It was in one of the decisions--I don't
remember the name of the decision--it was in one of the
decisions she dissented from. You are not familiar with it?
Mr. Kavanaugh. I don't remember that phrasing. I am
familiar with her judicial record, although it has been a
while, but I am familiar with some of her judicial record.
As to your question of examples of judicial activism, I
think Lochner is often cited as a classic example of judges
superimposing their personal views on the decisionmaking
process in an improper manner. The case has been discredited.
The case isn't followed any longer.
Senator Schumer. So that means it would seem that that is
being an activist to want to undo Lochner, undo zoning laws.
Now, I want to ask you this. I don't like activists on
either side.
Mr. Kavanaugh. Right.
Senator Schumer. Your administration and you in this
process seem to say that activism on the right is just fine.
After all, Judge Brown was sent here. And activism on the left
is activism. How can you discourage us from believing that?
Clearly, many of the judges you have set forward do not
believe in what is established law. And, again, it is not that
they wouldn't as judges--every judge who comes before us says,
I will be fair. We all have to take that with a grain of salt,
obviously. We have to make our own judgment, not just their
assertion.
Yet, we see a nominating process skewed hard to the right.
And then when Jeff Sessions, whom I enjoy bouting with here,
says, well, I am talking about activist judges, activist means
nothing more than conservative because Judge Brown is as
activist as they come. She wants to turn the clock back a
hundred years.
Did you have any dissent in the office when they nominated
her? How do you square the view that it is okay to nominate
Justice Brown and she is okay, but others are activists whose
views are more to the left? I mean, I would just like some
understanding here because I think it is code words. Activist
means liberal; strict interpretation means conservative. The
nominees we have had before us are clearly not interpreting the
law. They believe they should interpret the law as it was 100
years ago or 200 years ago.
I will give you a few minutes to elucidate on this. It
seems to me the whole process is a subterfuge, basically.
Mr. Kavanaugh. Senator, the President's nominees, the
majority of them, the vast majority, have been approved by this
Committee and supported by both sides of this Committee, and
confirmed by the Senate. There have been some examples where
that hasn't occurred and there have been debates about their
records. But in terms of the description of the nominees as a
general class, it is important to make that point.
They are also, as I understand it, the highest rated
nominees ever under the ABA's rating standards.
Senator Schumer. Do they look at activism or non-activism
when the ABA judges? No. You know that.
Mr. Kavanaugh. They look at the traditional criteria for--
Senator Schumer. Right, law school, right. Many of us have
broken with that tradition. The President has forced us to
because he has nominated judges through an ideological prism.
It is obvious.
So I want to ask you again, why is it, if ideology doesn't
matter and the President is just--do you think Democrats or
liberals are less likely to interpret the law fairly--just
interpret the law, than conservatives?
Mr. Kavanaugh. Senator, I think this is an important
question. And I mentioned earlier, but I am not sure you were
here, it is tradition since the founding of our country for
Presidents to select judicial nominees from the party of the
President.
Senator Schumer. That is not the question I asked.
Mr. Kavanaugh. But I want to help explain. And so President
Bush--most of his nominees, not all by any stretch, are
Republicans. President Clinton--most of them were Democrats,
their backgrounds, their political affiliations. That has been
the way. It doesn't have to be that way, but it has always been
that way, and that is the tradition that has--
Senator Schumer. And do you think there were ideological
differences as a whole between the Clinton nominees and the
Bush nominees?
Mr. Kavanaugh. I think there were policy differences in
their backgrounds. I don't know in terms of ruling on the
bench. I do know on the Ninth Circuit, for example--
Senator Schumer. Well, have you seen Cass Sunstein's study?
You don't know that study?
Mr. Kavanaugh. I do.
Senator Schumer. Okay. Doesn't it show that Democratic
nominees, particularly on economic and environmental and other
issues, decide things quite differently than Republicans, and
that the difference is stark?
Mr. Kavanaugh. Senator, I know that that study has been
challenged as to its accuracy, as well.
Senator Schumer. Can you give me a yes or no answer to any
question? I apologize, but you haven't answered it. I asked you
simply is that what Sunstein's study shows?
Mr. Kavanaugh. I am told--
Senator Schumer. If you said, yes, but let me say that it
has been challenged, I would appreciate that a lot more than
refusing to answer just about a single question that any of us
have asked.
Mr. Kavanaugh. Yes, but it has been challenged.
Senator Schumer. Thank you.
Mr. Kavanaugh. And it has been challenged because the
sample was under-representative, and I think the Ninth Circuit
is a good example, Senator. My understanding--and I am familiar
only at the margins with this now--is that the range of
President Clinton's nominees, for example--there is a wide
range of views represented in his nominees and in President
Reagan's nominees on that court, and that some of President
Reagan's nominees joined with some of President Clinton's
nominees.
And the reason for that, Senator--and it is something I
firmly believe and I think it is important--is there should be
no such thing, and there hasn't been such a thing as a
Republican judge or a Democrat judge. And I think it is very
important that we maintain that in our system.
Senator Schumer. So why do we see virtually very few--if
ideology doesn't matter and if we are just nominating people on
legal qualifications and their ability to interpret the law--
and when I asked you the question, you basically acknowledged
that Democrats and Republicans could interpret the law equally.
Mr. Kavanaugh. Yes, I agree firmly with that.
Senator Schumer. Why is it that one-third of the nominees
here are from the Federalist Society, one of the most
conservative groups in town? And everyone knows that. You are
telling me Judge Scalia is no more conservative than Justice
Ginsburg if you don't acknowledge that the Federalist Society
is an extremely conservative group.
Chairman Hatch. Senator, I have been very lenient on the
time.
Senator Schumer. Yes, you have, Mr. Chairman.
Chairman Hatch. You are way over.
Answer that question, and then we will turn to Senator
Kennedy and then I will sum up.
Mr. Kavanaugh. Well, I think there were two questions
there. One, in terms of why most of the nominees of a President
are of the same party, that is the tradition.
Senator Schumer. I didn't ask party; I asked ideology.
Mr. Kavanaugh. Okay, but then the study refers to Democrat
judges and Republican judges, which is party. So I think the
study you cited as evidence of ideology actually is party.
Senator Schumer. So you don't think ideology enters into
President Bush's selection of judges, particularly at the court
of appeals level, at all?
Mr. Kavanaugh. I think it is critical to have people who
have demonstrated experience and--
Senator Schumer. I didn't ask that question. Can you answer
yes or no?
Chairman Hatch. Senator, this isn't a court of law. He
ought to be able answer the question.
Senator Schumer. He ought to be able to.
Chairman Hatch. And if you don't like the answer, rephrase
another question.
Senator Schumer. Okay, I will.
Mr. Kavanaugh. It is important that the judge or judicial
candidate demonstrate both in the interview process and in his
or her record an ability to follow the law fairly, and you
judge that based on an assessment of the entire record.
Senator Schumer. And so ideology has not entered one iota
into President Bush's selection of court of appeals nominees.
Is that correct? Do you believe that?
Mr. Kavanaugh. I am not sure how you are defining ideology.
Senator Schumer. I am not asking you whether people can
judge the law fairly. We have been through that part of this
discussion. I am asking you as someone intimately involved with
the process, has ideology at all entered into the nomination of
judges by President George Bush to the court of appeals?
Mr. Kavanaugh. Can I ask you how you are defining ideology
in that question?
Senator Schumer. I am defining ideology by their
predispositions on the issues that face the day. And I am not
asking you whether you asked them or not. It is plain as the
nose on your face, sir, that the nominees don't come from
across the political spectrum; they come from one side of the
political spectrum. Everyone in this room would admit that.
Chairman Hatch. Not I. That isn't true. That is not true.
Senator Schumer. How many ACLU members have been nominated
by President Bush?
Chairman Hatch. There have been a few, I have got to say.
Senator Schumer. I disagree with the ACLU on a whole lot of
things.
Chairman Hatch. Well, so do I.
Senator Schumer. But the Federalist Society has one-third
and the ACLU probably has none. You are denying the obvious, I
guess is what I have said.
Chairman Hatch. Senator, come on. We have got a
conservative President. He naturally is trying to find people
who agree with his philosophy.
Senator Schumer. Orrin, thank you. I was trying to get Mr.
Kavanaugh to say that for the last 15 minutes.
Chairman Hatch. I think he has been saying it. He just
hasn't said it in the words you want to hear. That is all.
Senator Schumer. Okay.
Mr. Kavanaugh. But in terms of judges who will apply the
law without their personal predisposition on the issues, that
is exactly what the President has said he is looking for, and
that is your definition.
Senator Schumer. It seems to me--and I will conclude,
Orrin, thank you.
Chairman Hatch. Okay.
Senator Schumer. It seems to me and to just about everyone
else, not judging whether they would apply the law despite
their predisposition on the issues, that predisposition on the
issues, for one reason or another, has greatly influenced who
the nominees are because they come from a rather narrow band of
political thinking by and large.
With that, Mr. Chairman--
Chairman Hatch. Well, with that, I just have to make this
comment before I turn to Senator Kennedy. I have been here for
the Carter judges, for the Reagan judges, the Bush I judges,
the Clinton judges, and now George W. Bush's judges. Every one
of those Presidents tried to find people who shared their
philosophy.
I have got to say Carter appointed basically all Democrats,
with very few exceptions. Reagan basically appointed all
Republicans, very few exceptions, and the same with the others.
The fact of the matter is, of course, they are trying to find
people who share their philosophy. That is why they ran for
President.
This is the third of the separated powers of Government. It
is one of the biggest issues there is, whether we are going to
have liberals on the courts throughout the country or
conservatives, or a mixture of both.
Having sat here through all of the George W. Bush's 173
confirmed judges, 29 that are on the executive calendar
reported out of this Committee sitting there vegetating, I have
to say that there is a wide variety--yes, more on the moderate
to conservative side, but a wide variety of judges.
Now, look, I think where you have had trouble is with the
word ``partisan,'' and I would, too, if I were in your shoes.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
Just quickly, I will mention, since this topic has come up,
President Clinton nominated several individuals to both the
circuit and district courts with no close ties to him or other
Democrats who were championed by Republican Senators because
they were either registered Republicans or close friends of
Senators of the other party.
For example, Richard Talman was nominated to the Ninth
Circuit and confirmed at the urging of Republican Senator Slade
Gorton. Judge Barry Silverman was nominated to the Ninth
Circuit and confirmed at the request of Jon Kyl. Judge William
Traxler was put on the district court by President Reagan and
was nominated to the Fourth Circuit and confirmed at the
request of Republican Senator Strom Thurmond. Judge Stanley
Marcus was nominated to the Eleventh Circuit and confirmed at
the urging of Connie Mack.
Did you ever consider that some nominees who were Democrats
should be nominated?
Mr. Kavanaugh. I think, Senator, President Bush has chosen
to nominate some Democrats for a variety of seats, as I
understand it. I know in his first group of nominees, Roger
Gregory was nominated, along with others. I know that in
Pennsylvania--I just know more of the States that I worked on
at the district court level--there were several Democrats, and
some very strong Democrats, nominated for district court seats
in Pennsylvania that I worked on and helped through the
process. So there have been some Democrats. I am sure there are
others, but I can't recall them all here.
Senator Kennedy. Let me, if I could, ask you about your
role in the vetting process, and particularly with regard to
William Pryor. The requirement that appellate judges follow the
Supreme Court is a bedrock principle, but Mr. Pryor repeatedly
criticized decisions of the Supreme Court in ways that raise
serious questions about whether he would follow those
decisions.
He called Roe v. Wade the worst abomination of
constitutional law in our history. He criticized the Supreme
Court's decision in Miranda v. Arizona. He referred to the
members of the Supreme Court as nine octogenarian lawyers.
When you recommended Mr. Pryor for nomination to the
Eleventh Circuit, were you aware that he had made these extreme
statements? And if so, do they cause you any concern?
Mr. Kavanaugh. Senator Kennedy, I know President Bush
nominated Mr. Pryor. And Judge Gonzales, of course, chairs the
judicial selection committee. That was not one of the people
that was assigned to me. I am familiar generally with Mr.
Pryor, but that was not one that I worked on personally.
Senator Kennedy. Well, did you know those remarks had been
made prior to the time that he appeared before the Judiciary
Committee?
Mr. Kavanaugh. Senator, can I answer that this way? It is
not my place to discuss our internal deliberations, but it is
safe to assume that we have done a thorough vet of the
nominee's records.
Senator Kennedy. Well, if you agree it is important that
judges obey the precedent, why didn't you recommend against
Pryor's nomination? Why take the chance that he might seek to
undo an important legal precedent such as Roe v. Wade?
Mr. Kavanaugh. Senator, again, the President nominated Bill
Pryor. I know he has got a lot of Democrat and Republican
support in Alabama, support in his home State community. In
terms of internal discussions, I don't think it is my place to
talk about those here.
Senator Kennedy. Well, I know you are talking here about
the background discussions, but once you have the nominee and
you are involved in the process where he calls a case the worse
abomination of constitutional law in our history, criticizes
the Miranda case and refers to the Supreme Court as nine
octogenarian lawyers--you are involved in the vetting process.
Whether you did anything at all about it, I gather you say that
you did not.
Mr. Kavanaugh. No, I was not involved in handling his
nomination. I do know he explained that in his hearing, and I
will leave it at that.
Senator Kennedy. After the Supreme Court decision of five-
to-four in Bush v. Gore, Mr. Pryor said that he--this is Mr.
Pryor--wanted the decision to be decided five-four so that
President Bush would have a full appreciation of the judiciary
and judicial selection so that we can have no more appointments
like Justice Souter.
Did you know about Pryor's criticism of Souter?
Mr. Kavanaugh. Senator, again I think it is safe to assume
that the record was fully vetted and fully known.
Senator Kennedy. So you weren't involved in any of the
vetting, as I understand it, of Mr. Pryor. Is that right?
Mr. Kavanaugh. No. I know him and I have met him before,
but it wasn't one of the--the way the work is divvied up, that
wasn't one of the ones I--
Senator Kennedy. Well, did you know about his involvement
with the Republican Attorney Generals Association?
Mr. Kavanaugh. I actually--I think I heard that for the
first time the day before his hearing, but that doesn't mean it
wasn't known. I am just talking about what I--you asked me
about my personal knowledge.
Senator Kennedy. Did you ever discuss that subject with Mr.
Pryor or anyone before his hearing?
Mr. Kavanaugh. Again, Senator, it is not my place, I think,
here to disclose internal communications, but the background
record of someone is vetted before nomination.
Senator Kennedy. So your response with regard to the
Attorney Generals Association is that you didn't know anything
about it prior to the time of the hearing?
Mr. Kavanaugh. Yes. Again, it is not for me to discuss
internal deliberations. The record, I am sure, was fully known.
Someone's background is fully vetted before nomination, and so
it is safe to assume that people knew about involvement in
various organizations.
Senator Kennedy. Well, did you prepare him for his
testimony on that subject?
Mr. Kavanaugh. I don't remember preparing for his testimony
on that subject. I might have attended a moot court session,
but I don't know--that subject might--I don't know. I might
have attended a moot court session. Oftentimes, we will go to
moot courts to prepare nominees for hearings to prepare them
for this process.
Senator Kennedy. Well, I think you just said that you
didn't know about this until the day before his testimony. Did
that come up during the moot court session?
Mr. Kavanaugh. I think there were news articles, I think,
if I recall. But I want to be careful, Senator. I don't recall
precisely when--
Senator Kennedy. Well, I am just wondering whether this did
come up during the preparation of the nominee.
Mr. Kavanaugh. Again, Senator, it is not for me here, I
think, to disclose internal discussions and deliberations.
Someone's record is thoroughly vetted before nomination. In
terms of internal discussions, what I was referring to by that
is I remember a news article at some point reading, but I can't
place it in time. If I saw the news article in relation to his
hearing, I might be able to place it better.
Senator Kennedy. Well, the Washington Post had reported
that RAGA was founded by Pryor and the Republican National
Committee, with the explicit aim of soliciting funds from the
firearms, tobacco and paint industries and other industries
facing State lawsuits over cancer deaths, lead poisoning,
gunshot wounds and consumer complaints, according to statements
by Pryor and other officials. That was in the newspaper.
I am trying to find out, if you knew about this, what you
did about it, if you did anything about it. And if you didn't
do anything about it, then you didn't do anything about it, but
once you found out about it, whether you thought that it was
important enough to do anything about it. Did you ask the FBI
to check it out or do anything further about it? Did you ask
the FBI to investigate, or did you discuss it with Pryor or
anyone else? That is what we are trying to find out. These are
serious charges, obviously.
Mr. Kavanaugh. Senator, I think that issue was explored at
his hearing, as I recall, and that probably would be the best
record of the issue.
Senator Kennedy. Well, I know he was here, but I am just
trying to find out the information that you all had about it.
He was asked if he ever solicited funds from corporations with
business before the State and he replied he did not think so.
He told the Committee that the RNC had all the records
regarding corporate contributions raised by RAGA.
So the question is you must have had, or someone or prepped
him must have had the conversation and know about those records
before he came to the Committee. The evidence received by the
Committee indicated that Mr. Pryor had repeatedly been assigned
to make RAGA fundraising solicitations of the type he denied
making. That is the issue.
So did you or anyone you were working with receive copies
of the evidence before it was leaked to an Alabama columnist
friendly to Mr. Pryor? And did you or anyone you were working
with leak any of the material, or do you know of anyone who
did?
Mr. Kavanaugh. Senator, I know very little about this. You
know far more than I do about it, and I think it was explored
at the hearing. I don't know enough to give you much of an
answer on that. I don't know much of anything specific about
that.
Senator Kennedy. Thank you, Mr. Chairman.
Chairman Hatch. Well, let me just say with regard to that
the materials were leaked by a former employee of the
organization who basically, according to the record, stole the
materials. By the way, the Democrats set up their own Democrat
Attorney Generals Association to compete with the Republican
one. So, you know, you can find fault on both sides as far as I
am concerned.
I think what you have had trouble with here is the word
``partisan'' and the word ``ideology.'' I wouldn't have
answered those questions either, to be honest with you. What
bothers me about this hearing is that much of the hearing has
been spent attacking other Republican nominees, not you, other
Republican nominees. And in every case, I think their records
have been distorted.
When General Pryor was asked why he said the Roe v. Wade
case was an abomination, I mean he answered it very
forthrightly. He said, if I recall it, because of the millions
of unborn children who were killed. Now, people may not agree
with that assessment, but it was a sincere statement and
certainly a matter of fact, whether you agree with the nature
of it.
With regard to Lochner and Janice Rogers Brown, I certainly
don't remember it the way Senator Schumer does. As a matter of
fact, she gave a speech and it was tremendously distorted here
in this Committee. It bothered me a great deal, to be honest
with you.
Now, let me just say a few other things here with regard to
ideology, and Professor Sunstein's study has been brought up.
Let me just make a few basic observations. First, there is no
doubt that in the vast majority of cases there is a unanimous
result from the court throughout the country.
You agree with that, don't you?
Mr. Kavanaugh. And especially in the D.C. Circuit.
Chairman Hatch. Well, that is right. The law is clear and
the application of the law is straightforward. Professor
Sunstein attempts to explain the context in which Democratic
and Republican appointees largely agree by noting that in many
areas the law is clear and binding, and that judges appointed
by different Presidents largely agree on the appropriate
principles. Ideology apparently doesn't matter in those cases.
We don't hear much about these cases, probably, because
they don't lend themselves very well to charged political
speeches or questions, or emotional fundraising appeals from
the usual suspects. But the fact remains that these cases make
up the lion's share of Federal court jurisprudence.
Do you agree with that?
Mr. Kavanaugh. Excuse me, Senator?
Chairman Hatch. The cases that basically both sides agree
on?
Mr. Kavanaugh. Absolutely, Senator. In the D.C. Circuit, I
think, in response to the Sunstein article, there were some
responsive articles that both, number one, attacked the
methodology that Mr. Sunstein used, and, number two, pointed
out how many cases were unanimous in the D.C. Circuit. And I
think that is because the culture of the D.C. Circuit and the
people who are on that court are outstanding judges.
Chairman Hatch. That collegially work together.
Mr. Kavanaugh. Right.
Chairman Hatch. Which you would do, as well, once
confirmed.
Mr. Kavanaugh. Absolutely.
Chairman Hatch. Now, Professor Sunstein is a brilliant
professor. I have a lot of respect for him, but there is no
question he is a brilliant liberal professor. His study does
not examine large areas of case law, including torts,
bankruptcy, labor law and civil procedure. Those are serious
liabilities to the study, and I think anybody who is fair would
say that.
Second of all, it is difficult to understand several of the
methods used in Professor Sunstein's study. For example, he
counts a vote as pro-life if the judge voted at all to support
the pro-life position. Why this is done is certainly not clear.
Thus, if a judge votes to strike down part of an injunction
against demonstrations near an abortion clinic, his or her vote
is pro-life. Well, we know there are different issues there. Of
course, a judge casting such a vote is likely relying on First
Amendment principles of free speech, but the study takes no
apparent accounting of that fact. Instead, it simply counts as
pro-life. I would suggest that such a vote may be better
counted as pro-free speech or pro-civil liberties, but that
isn't the way he did it.
Third, it may come as a surprise to some that Professor
Sunstein's study reports that ideology does not matter where
some might like to see it. For those who would like to argue
that ideology, which Professor Sunstein's study crudely, and I
think simplistically derives from, the political party of the
appointing President, is especially important in the D.C.
Circuit because of the types of cases it hears.
The study shows something else. We hear a great deal from
the liberal interest groups about Republican appointees casting
extremist anti-environmental votes in taking cases.
Unfortunately, Professor Sunstein's study shows no differences
between Republican-and Democratic-appointed judges in terms of
how their votes are cast.
We also hear so much about how Republican appointees
threaten to, quote, ``roll back the clock,'' unquote, or,
quote, ``take us back to the 19th century,'' unquote, on civil
liberties. But I don't expect these groups to cite Professor
Sunstein's study on this point. He examined criminal appeals
cases in the D.C. Circuit, the Third Circuit and the Fourth
Circuit. Again, there was no difference in how Republican-and
Democratic-appointed judges cast their votes either for the
Government or for the criminal defendant. And I suspect there
is not going to be much more difference when you get on the
court.
I also don't expect the usual interest groups to cite
Professor Sunstein's study to argue that Republican appointees
are striking down Federal statutes on federalism grounds left
and right, day and night. Again, there was no difference in
Republican- and Democratic-appointed judges in the way that
they voted. Both groups have upheld challenged statutes against
federalism or Commerce Clause challenges more than 90 percent
of the time.
You are aware of that; I know you are.
Those who would like to argue that Republican- and
Democratic-appointed judges vote differently in race
discrimination cases will also be severely disappointed by
Professor Sunstein's study. There is no such evidence. It seems
that ideology matters, except when it doesn't.
So I don't blame you for being wary of questions that say
yes or no on ideology. Give me a break.
Mr. Kavanaugh. Mr. Chairman--
Chairman Hatch. Now, let me just finish here because I want
to make a couple of these points before we finish here today
because I don't think you have been treated very fairly with
some of the questions. In fact, I think you have been treated
anything but fairly, and you have had patience, have showed
good judicial temperament. You have taken all this stuff and
answered as best you can back, and I think you have answered
very well.
Now, objections to your nomination based on a supposed lack
of experience ring pretty hollow to anybody who is fair. First,
there is no doubt in my mind that if you had worked in the
Clinton White House defending the former President in the
various legal battles surrounding the impeachment proceedings,
you would be the toast of the national media. And, of course,
my Democratic colleagues would be falling all over themselves
to support your nomination. That is just a matter of fact.
They would point out that Mr. Kavanaugh has achieved their,
quote, ``gold standard,'' unquote. They were the ones who said
the ABA rating was the gold standard, the ``well qualified''
highest rating by the American Bar Association standard given
to you.
They might observe that Mr. Kavanaugh has argued both civil
and criminal matters before the United States Supreme Court--
something that almost none of these other judges that have been
put on the bench have done, in both civil and criminal matters
before the Supreme Court and appellate courts throughout the
country. You have had that experience.
I would just further note your extensive experience in the
appellate courts both as a clerk and as a counsel. Those are
important positions. Very few people have that opportunity to
serve in those areas. You have got to be really somebody
special to get those positions. I know it, you know it, my
colleagues know it.
They would say that it is remarkable that Mr. Kavanaugh
served as a law clerk to not one, but two Federal judges--Judge
Walter Stapleton, of the U.S. Court of Appeals for the Third
Circuit, and Judge Alex Kozinski, of the U.S. Court of Appeals
for the Ninth Circuit.
And then I think any respectful, honest person would praise
you, Mr. Kavanaugh, for your service as a law clerk to the
United States Supreme Court for Justice Anthony Kennedy, the
author of last year's Lawrence v. Texas decision, with which I
am sure most all of our Democrat friends agreed.
Now, if any Republicans were to question Mr. Kavanaugh's
qualifications for the D.C. Circuit, if you were their nominee
and you had worked in the Clinton White House, they would
certainly point out that only 3 of the 18 judges confirmed to
the D.C. Circuit since President Carter's term began in 1977
previously had served as judges.
You have had more judicial experience than them by having
been a clerk on major courts, having watched how judges
operate, having helped them write the opinions, having done the
research for them. Democrat-appointed D.C. Circuit judges with
no prior judicial experience include Harry Edwards, Merrick
Garland, Ruth Bader Ginsburg, Abner Mikva, David Tatel and
Patricia Wald.
Judge Edwards, by the way, was 39 years of age when I
helped to confirm him, the same age as you. He didn't have
quite the same experience as you do, but he is a fine man and
he has been a good judge there. And I don't think any of us can
really legitimately find a lot of fault. We may disagree with
some of his decisions, but he is a good man.
Also, the current Chief Judge of the Ninth Circuit, Judge
Mary Schroeder, was nominated by President Carter and confirmed
at the age of 38. So let's not pretend that the expressed
concerns about Mr. Kavanaugh's age or experience are anything
more than thin pretexts veiling purely political objections.
Democrats would never raise such concerns about a nominee of
similar age and experience if he or she had litigated across
the courtroom aisles from Mr. Kavanaugh.
Finally, let me just point out that President Clinton
nominated and the Senate confirmed without a single filibuster,
which is what we are putting up with right now--I know; I was
Chairman during much of President Clinton's term--a total of 32
lawyers with any prior judicial experience to the Federal
appellate courts. Some of these have turned out to be very good
judges, and I would be the first to say it.
I have to admit that I get tired of the partisanship in
this body. The very people who are trying to use the terms
``partisanship'' and ``ideology'' are the ones who are filled
with it. Frankly, they have a right to be. I don't have any
problem with that. But to try and impose that on you just
because you belong to the Federalist Society--I do, too. I am
on the board of whatever it is, and all I can say is that I
know that it puts on the best seminars in the country right
now.
The Board of Advisers. I guess I had better be clean on
this. I might be held to account to that someday.
Senator Schumer. Only if you are nominated.
Chairman Hatch. Don't worry. I am not so stupid that I
would go through this.
See how dumb you are? I just can't believe it.
My point is this: Every President tries to appoint persons
who share that President's political philosophy. That is why
these presidential elections are so important. Frankly, those
who are very liberal naturally will want a liberal President.
Those who are conservative are going to naturally want a
conservative President in this country.
And you can expect when you get that liberal President that
that liberal President, as was the case with Jimmy Carter, in
particular, and in the case of President Clinton, will nominate
primarily people who agree with his liberal philosophy. And
that is going to be true of President Reagan, President Bush I
and President Bush II. They are going to try and nominate
people of quality, hopefully people like you who have ``well
qualified'' ratings or ``qualified'' ratings, which is no small
thing, who then will serve with distinction on the bench.
Now, let me just close with this final remark. I think you
have handled yourself very well here, when you consider some of
the tough questions. And my colleagues have a right to ask
these questions. I am not finding fault with them. I disagree
with the way some of these questions have been asked and I
disagree with some of the fairness, because I think some of it
was not fair.
I disagree with Senator Kennedy when he brings up Justice
White. We all know Justice White was a great Justice. Nobody
was saying that he wasn't a great Justice, or not qualified. It
is just that he didn't have some of the experience that they
claim you don't have, although you have had a lot of experience
in the courts that I don't think they are giving you much
credit for.
Take Ruth Bader Ginsburg, or take Justice Breyer. Yes, he
was one of the leading authorities on antitrust in the country.
He served as chief counsel of this Committee when Senator
Kennedy was Chairman. I recommended him to President Clinton,
but I don't think he had ever tried a case in his life. I am
not sure he would know how to try one, had he had a chance. He
is smart enough and I am sure he would have figured it out, but
he hadn't had any experience in that area.
I happen to really admire him. I happen to think he is a
great man; I thought he was when he was chief of staff. He was
fair, he was honest, he was decent. That is one of the reasons
why I recommended him to President Clinton, and everybody knows
that who knows anything about it.
The point is some of these straw issues are brought for
only one reason, to try and make nominees look bad or to try
and make nominees look like they are not qualified, when, in
fact, you are eminently qualified. The fact that you are 39
years of age--you know, that is not exactly young anymore in
the eyes of some people. In my eyes, it is very young. In
Senator Kennedy's eyes, it is very young. But to other young
members of the Senate, you are pretty old.
Hardly anybody who has been nominated to these courts has
had the experience that you have had. Now, to sit here and say
that you have got to have every aspect of experience to serve
on the courts that nobody really has had is a little bit unfair
and smacks a little bit of, should I use the word
``partisanship?''
I want to say I think you have done very well. I hope my
colleagues on the other side will give you a fair shake. If
they will, they will pass you out of this Committee and they
will confirm you to the Circuit Court of Appeals for the
District of Columbia, where I suspect you will become one of
the great judges. I suspect that they will find that you will
be one of the most fair judges ever to sit on that court, and I
suspect you will be one of those judges who will understand
those very complex and difficult issues that Senator Kennedy
has so eloquently described.
If I didn't think that, I wouldn't be for you. It is just
that simple. I wouldn't, because this is in one respect the
most important court in the country because it does hear cases
that the Supreme Court will never hear, thousands of cases the
Supreme Court will never hear, because of the limited number of
cases the Supreme Court takes.
The Supreme Court naturally is the more important court,
but the fact of the matter is this court is extremely
important. And I have every confidence, knowing you--and I have
known you for a long time--that not only can you do this job,
but you can do it in an honest, fair way, and that you know the
difference between an activist judge, one who just ignores the
law and does whatever his or her personal predilections
dictate, and a real judge who does what is right and who looks
at the law and lives within the law, as defined by the
legislative body, and perhaps through executive orders of the
President and, of course, by prior decisions by the United
States Supreme Court.
I admire my colleagues on this Committee. They are a tough
bunch. I love my friend from New York. There is no question
about it. He gets on my nerves terribly from time to time with
some of this stuff that he comes up with, but the fact of the
matter is I care a great deal for him. And he is sincere on
this; he really believes in what his position is. He is nuts,
but he believes it.
[Laughter.]
Chairman Hatch. All I can say is that I respect him and I
respect the other members of this Committee, but I hope they
will be fair and give you this shot that you really deserve.
And I will guarantee you I will be watching just like they will
to make sure that you are one of the best judges in the
country, and I believe you will be.
With that, we will adjourn until further notice.
[Whereupon, at 1:22 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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