[Senate Hearing 109-435]
[From the U.S. Government Publishing Office]
S. Hrg. 109-435
CONFIRMATION HEARING ON THE NOMINATION OF BRETT KAVANAUGH TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MAY 9, 2006
__________
Serial No. J-109-73
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa 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
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 28
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 39
prepared statement........................................... 93
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 37
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 24
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 98
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 101
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 3
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 35
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
PRESENTERS
Kozinski, Alex, Judge, U.S. Court of Appeals for the Ninth
Circuit, Pasadena, California, presenting Brett Kavanuagh,
Nominee to be Circuit Judge for the District of Columbia....... 8
Stapleton, Walter K., Judge, U.S. Court of Appeals for the Third
Circuit, Wilmington, Delaware, presenting Brett Kavanaugh,
Nominee to be Circuit Judge for the District of Columbia....... 7
STATEMENT OF THE NOMINEE
Kavanaugh, Brett, of Maryland, Nominee to be Circuit Judge for
the District of Columbia Circuit............................... 10
Questionnaire................................................ 13
QUESTIONS AND ANSWERS
Responses of Brett Kavanaugh to questions submitted by Senator
Feingold....................................................... 74
SUBMISSION FOR THE RECORD
American Bar Association, Stephen L. Tober, Chair, Standing
Committee on Federal Judiciary, Washington, D.C., statement and
attachment..................................................... 80
NOMINATION OF BRETT KAVANAUGH, OF MARYLAND, TO BE CIRCUIT JUDGE FOR THE
DISTRICT OF COLUMBIA CIRCUIT
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TUESDAY, MAY 9, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:01 p.m., in
room 226, Dirksen Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Kyl, Sessions, Graham,
Cornyn, Brownback, Coburn, Leahy, Kennedy, Feinstein, Feingold,
Schumer, and Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good afternoon, ladies and gentlemen. It
is two o'clock and the Judiciary Committee will proceed with
the nomination of Brett Kavanaugh to be a judge for the Court
of Appeals for the District of Columbia Circuit.
At the outset, we welcome Judge Walter Stapleton, Court of
Appeals for the Third Circuit, and Judge Alex Kozinski, Court
of Appeals for the Ninth Circuit. We appreciate your coming in
today.
Mr. Kavanaugh is in an unusual circumstance of not having
Senators to introduce him. He is a D.C.-Marylander, and as of
this moment the Senators from his home State of Maryland are
not available to make the introductions, and the Committee has
asked Judge Stapleton and Judge Kozinski to do that since they
have special knowledge of the nominee because he clerked for
them. They have special insights into his background.
Just a few words by way of introduction. Mr. Kavanaugh will
take the witness stand and will be sworn, and will speak for
himself, but I think it appropriate to make a few comments
about his record and about my analysis of these proceedings.
I have been surprised to see Mr. Kavanaugh characterized as
not up to the job of judge for the Court of Appeals for the
District of Columbia Circuit. I have taken a look at his record
in some detail, and I had a long session with Mr. Kavanaugh,
and have asked him all of the questions which have been posed
on his nomination. The issue of the NSA surveillance program, a
program that I have raised serious questions about, asked him
about what, if anything, he had to do with it, and he will
speak for himself in responding to that.
I asked him about the issue of allegations of mistreatment
of people on interrogation on the overlay of torture or
rendition, and again, he will have an opportunity to speak for
himself on that subject.
At our Executive Committee session last week, the question
was raised about Mr. Abramoff. He will have an opportunity to
speak for himself about that question.
In reviewing his record, I note that he was Yale College
for his bachelor's degree, cum laude, and he was Yale Law
School, where he was on the Yale Law Journal. Now, that takes
some substantial academic qualification, something I know
about, because I was there. And the only difference between Mr.
Kavanaugh's tenure on the Yale Law Journal and being a high
academic graduate from Yale Law School from my record is that
when he was there, the competition was tougher. He is slightly
younger than I am, and as the years have passed, Yale Law
School has been more difficult to attain academic achievement,
but that is something I know of firsthand.
Then his record beyond law school was to clerk for Judge
Stapleton, to clerk for Judge Kozinski, and they will speak for
themselves.
Then he was in the Office of Solicitor General, where he
argued one case before the Supreme Court of the United States,
and if he were on the Judiciary Committee, it would put him in
second place, not too bad a place to be on the Judiciary
Committee on Supreme Court arguments. Then he has had a number
of arguments on the Court of Appeals and a number of arguments
before District Courts on legal issues.
Then he served in the Office of Independent Counsel, and
that was a highly controversial office, beyond any question.
And Mr. Kavanaugh will describe his activities there, but he
was not counsel, he was not deputy counsel. He was one of a
tier below, where there were 10 associate or assistant counsels
there. I know he will be asked about what his participation was
there, and we will hear from Mr. Kavanaugh himself of that.
He has written two distinguished legal pieces published in
the journals, one on the Independent Counsel and suggesting
changes, hardly the mark of an ideologue who works as
Independent Counsel that has tunnel vision as to what they did,
but has expressed ways to improve the operation of Independent
Counsel, by showing an open mind and showing some progressive
thinking as to utilizing his experience.
Then he wrote an article on the issue of peremptory
challenges for African Americans and has a--very difficult to
use the words ``liberal'' or ``conservative'' or
``progressive'' around here--but he is on the right side of
that issue, an issue that I understand well. When I became
District Attorney of Philadelphia, I did not need to have the
Federal Courts tell me not to have peremptory challenge for
blacks. I issued an instruction to my assistants that they
could not ask for it, and finally the courts caught up with it.
And Mr. Kavanaugh will speak to his views on that subject, but
hardly the views of a cramped conservative, but he will
describe his views on all of these matters.
Then he went to Kirkland and Ellis, which is a very
distinguished law firm. I do not how many people from the
Judiciary Committee could be employed by Kirkland and Ellis
today, let alone out of law school. Tough row to hoe. And he
was taken in as a partner, not an equity partner--it is all
complicated now with law firms--a non-equity partner, but that
is an unusual call for a firm like Kirkland and Ellis or for
any big firm of their nature because of how they evaluated his
background and his experience.
He has been Associate Counsel to the President, and now he
is Staff Secretary to the President. And if he reflects the
views consistent with the President, that is entirely
consistent with having the President nominate judges. That is
our system. That is decided by an election. But he will speak
for himself as to where he stands in the spectrum as to being
in the mainstream.
Just a word about the American Bar Association rating.
Early he was rated well qualified in the majority, and
qualified with the minority camp. And then they reevaluated him
2 years later, and they took some additional interviews, and
not surprisingly, the interviews varied. And now he has been
rated in the majority, qualified and the minority, well
qualified. So you have him moving from well qualified to
qualified, qualified to well qualified, and not a tinker's bit
of difference really in terms of our evaluation, because at
minimal he is qualified, and a great many people think he is
well qualified.
Senator Schumer.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. First let me
thank you for holding this hearing, which many of us had
requested, and we very much appreciate it.
And second, I want to thank Mr. Kavanaugh for being back
here. When we had our private meeting I asked him if he had any
objections to come back to, what you good-naturedly referred to
as the arena at our last hearing, and you said no, and very
much appreciate that. I realize while this is not always the
most pleasant exercise for a nominee, I think we can all agree
it is a very important one, because we are talking about
nothing less momentous than a lifetime appointment to what is
generally regarded as the second-most important court in the
land, a court of great importance to those of us who sit in the
Senate or the House, because it has such jurisdiction over
governmental issues, and years after this nomination, this
court is going to influence a great deal what this Congress and
future Congresses have done.
Now, Mr. Chairman, you know how many of us have deep
concerns about this nominee. Just yesterday they were given
further voice in the form of the American Bar Association's
followup report, which was made public yesterday, which
explained why six members of the ABA Committee felt compelled
to downgrade their rating.
My concerns are twofold. First, although Mr. Kavanaugh has
held several important and influential positions in Government,
they have been almost exclusively political. There is no doubt
that, Mr. Kavanaugh, you are a highly successful young attorney
and your academic credentials, as certainly outlined by the
Chairman, are top notch. But your experience has been most
notable, not so much for your blue chip credentials, but for
the undeniably political nature of so many of your assignments.
For much of your career your considerable talents have been
enlisted in partisan and polarizing issues. In short, you have
been the ``go to'' guy among young Republican lawyers appearing
at the epicenter of so many high-profile controversial issues
in your short career, and it is only natural that such a record
would give many Senators pause, particularly those of us on
this side of the aisle.
From the notorious Starr report, to the Florida recount, to
the President's secrecy and privilege claims to post-9/11
legislative battles including the Victims Compensation Fund, to
ideological judicial nomination fights, if there has been a
partisan political fight that needed a very bright legal foot
soldier in the last decade, Brett Kavanaugh was probably there.
That kind of record is not dispositive, to be sure, but it
feeds an impression of partisanship that is, to put it mildly,
not ideal for a nominee to a critically important lifetime post
as a neutral judge.
Now, for those who question the good faith of these
concerns, who suggest that some of us are reflexively or
unalterably opposed to any Republican involved in the
impeachment of President Clinton or other political causes, let
me mention two names, Tom Griffith and Paul McNulty. Mr.
Griffith, whom I voted to confirm to a seat on the very court
to which Mr. Kavanaugh aspires, was Senate legal counsel during
impeachment; and Paul McNulty, who I voted to confirm--many of
us, I think all of us--voted to confirm to be the No. 2
official at the Department of Justice, was Chief Counsel and
spokesman for the House Judiciary Committee Republicans during
impeachment.
Despite their blue-chip Republican credentials and
participation in hot-button political issues, I was convinced
that both of these men had substantial experience in
professional and nonpartisan work, so that any concerns about
inexperience, cronyism, and partisanship was, for me at least--
and I think for most of us on this side of the aisle--laid to
rest.
So, Mr. Chairman, we are all operating in good faith here,
and we have demonstrated ourselves to be open-minded on the
President's nominees to top judicial and executive posts. At
last count, we have confirmed 240 of President Bush's nominees,
and Democrats have voted for the vast majority of them.
Then there is a second and related concern. Although Mr.
Kavanaugh is extremely well credentialed, he is younger than
and has had less relevant experience than almost everyone who
has joined the D.C. Circuit in modern times. We would have
fewer concerns if the President had nominated a mainstream
conservative with a record of independence from partisan
politics, who has demonstrated a history of nonpartisan service
with a proven record of commitment to the rule of law, and who
we could reasonably trust will serve justice, not political
patrons or ideology if confirmed to this powerful lifetime
post. Both Stephen Breyer and Ruth Bader Ginsberg, whose
biographies are often cited at these proceedings, had
substantial nonpolitical experience before they were nominated
to appellate courts. Mr. Kavanaugh, if confirmed, I believe
would be the youngest person on the D.C. Circuit since his
mentor, Ken Starr. And if you go through the preconfirmation
accomplishments of the active judges who currently sit on the
D.C. Circuit, Mr. Kavanaugh's achievements, though impressive,
are not on the same scale.
Judge Sentelle, for example, had extensive practice as a
prosecutor and trial lawyer, and experience as a State judge
and 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 30 years of
service in both Federal and State Governments, including a
stint as the Corporation Counsel for the District of Columbia,
and several years on D.C.'s equivalent of a State supreme
court.
Like Mr. Kavanaugh, many of the 9 active judges on this
court held prestigious clerkships, including clerkships on the
Supreme Court and involvement at the high levels of Government,
that no doubt involved some partisan work. But they all had
significant additional experience, nonpartisan experience, to
help persuade this Committee that they merited confirmation.
Now, of course, these concerns are echoed in a new report
from the American Bar Association. They cannot be dismissed, as
some of my colleagues suggest, as merely intemperate rants by
Democrats on the Committee, and predictably, of course, some
are already launching a campaign to denigrate the ABA, despite
boasting of Mr. Kavanaugh's original rating 2 years ago, and
attack the character of one of the ABA Committee members, and I
hope we would refrain from doing that.
According to the ABA report released yesterday, one judge
who saw your oral presentation in court, Mr. Kavanaugh, said,
``You were less than adequate,'' that you had been
sanctimonious, and that you had demonstrated experience on the
level of an associate. A lawyer in a different proceeding had
this to say: ``Mr. Kavanaugh did not handle the case well as an
advocate and dissembled.'' That is a pretty serious statement.
According to the report, other lawyers--and note the plural--
expressed similar concerns, repeating in substance that the
nominee was young and inexperienced in the practice of law.
Still others--again note the plural--characterized Mr.
Kavanaugh as, ``insulated,'' and one in particular questioned
Mr. Kavanaugh's ability ``to be balanced and fair should he
assume a Federal judgeship.'' And yet another individual said
this. He said that Mr. Kavanaugh is ``immovable and very
stubborn and frustrating to deal with on some issues.''
These new concerns, apparently based on some 36 additional
interviews, were so serious that six members of the ABA
Committee changed their vote. On the phone call yesterday I
asked Mr. Tober, the head of the Committee, was it rare for
people to change their vote? And he said no. And I said, was it
usual? And he said no. So it happens, but it does not happen
all that often.
We have other reasons for concern. I must say that I was
disturbed by some of the answers I got from you, Mr. Kavanaugh,
the first time around. On the issue of the role of ideology and
judicial philosophy in the picking of judges by this
administration, for example, you repeatedly insisted, totally
implausibly, that such considerations played no role. That was
simply not believable, and, frankly, put your credibility at
issue. You began to clarify your statements in our meeting last
week--and I hope we can have further dialog--but to say that an
ideology had no effect, well, show me some nominees to high
offices, high judicial offices who were Democrats, who were
moderates, who were maybe strongly pro-choice--
Chairman Specter. Senator Schumer, you are past 10 minutes.
How much longer will you be?
Senator Schumer. I just have another minute and a half, Mr.
Chairman. Thank you.
It was not believable, that is the bottom line. And in
addition, Senators will want to ask you, among other things,
about your role in setting of policy relating to executive
power and the separation of powers. You admitted to me, for
example, that in your job as Staff Secretary, you had input on
the controversial issue of Presidential signing statements.
There will be questions about that. I expect you will also get
questions about your involvement, if any, in this
administration's detention policies, torture policies and
rendition policies. These issues, among many others, deserve
further scrutiny, and given the scant record we have, I hope no
one will question the good faith we have in asking them.
So, Mr. Chairman, I would say that many of my colleagues
and I have a sincere and good faith concern about this nominee.
We feel that the nominee is not apolitical enough, not seasoned
enough, not independent enough, and has not been forthcoming
enough. Maybe this hearing will remove those concerns, but it
is certainly necessary.
Last week, Mr. Kavanaugh, I asked you to think of ways to
alleviate these concerns, and I look forward to hearing your
testimony.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Schumer.
Senator Schumer. I just want to say Ranking Member Leahy
could not be here at the beginning of this hearing, but will be
here in about an hour.
Chairman Specter. Thank you, Senator Schumer.
One addendum to my comments. Mr. Kavanaugh also clerked for
Supreme Court Justice Anthony Kennedy.
Judge Stapleton and Judge Kozinski, it is our practice to
ask our witnesses to be sworn at nomination proceedings, as we
had a number of circuit judges sworn during the confirmation of
Justice Alito. So with your consent, would you rise and take
the oath?
Do you solemnly swear that the testimony you will give
before the Judiciary Committee will be the truth, the whole
truth and nothing but the truth, so help you God?
Judge Stapleton. I do.
Judge Kozinski. I do.
Chairman Specter. Let the record show both witnesses
answered in the affirmative.
Judge Stapleton, you are the first circuit judge for whom
Mr. Kavanaugh clerked, so we will begin with you.
PRESENTATION OF BRETT KAVANAUGH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY WALTER K. STAPLETON,
JUDGE, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT,
WILMINGTON, DELAWARE
Judge Stapleton. Thank you. Mr. Chairman and members of the
Committee, I appreciate the invitation to introduce Brett
Kavanaugh. That is not because I think he needs any
introduction to this Committee, but rather because I believe I
am in a position to share information that is quite probative
with respect to the important issue that is before you.
I have been a Federal judge for over 35 years, the last 20
of those years as a member of the Court of Appeals for the
Third Circuit, and based on that experience, I believe I
understand well what it takes to be able to serve well as a
United States Circuit Judge.
I have known Mr. Kavanaugh well for over 15 years. I first
met him in March 1989 when I interviewed him for a clerkship.
He had one of the most impressive resumes I have ever seen, and
believe me, I have seen a lot of resumes. Among other things,
as you noted, Mr. Chairman, he was editor of the Yale Law
Journal, and at the point in time I met him, he had received an
honors grade in every course he had taken at Yale Law School
save one. Best of all, the professors who knew him well,
assured me that--and I quote--``His work is uniformly of very
high quality, thoughtful, independent-minded, yet very
balanced, and always clearly written.''
I have recently resurrected the notes I made after our
lengthy personal interview, and they say, ``extremely talented,
mature, confident yet modest, good sense of humor.'' Now, in
other words, a judge's dream of a law clerk, and I didn't have
to ponder the decision about hiring him for very long. And he
certainly did not disappoint, and I will always treasure the
time that we shared.
We worked very hard and we were asked to resolve many
intractable controversies. Facing challenges like that together
promotes a bonding process in which the participants get to
know each other awfully well, and we talked at length, not only
about the law, and about the challenges we faced, but about his
hopes and aspirations for the future.
Toward the end of the clerkship I urged him to consider the
judiciary as a career if he should ever have that opportunity,
and I did that because I believed he had the makings of my kind
of judge. There was no trace of arrogance and no agenda. He
applied his legal acuity and common sense judgment with equal
diligence to every case, large or small, undertaking his
evaluation of each without predilection. His ultimate
recommendations were based on careful case-by-case analyses of
the facts of each case, and objective application of the
relevant precedents. It was clear to me that he understood the
crucial role of precedent in a society that's committed to the
rule of law.
Brett thanked me for my advice, but in characteristically
modest fashion, said he doubted that he would get the
opportunity to so serve.
Now, Mr. Kavanaugh, of course, has had a variety of
opportunities since that time, as I knew he would. Anyone with
his talents would have many opportunities. As a result, in
addition to his impressive legal skills, I believe Mr.
Kavanaugh has the sophistication, the insight and maturity that
comes from having served in a variety of professional
positions, noteworthy not only because of their variety but
also because of the awesome responsibilities that each carried.
While I believe all of his professional experience would
serve him well as a judge, a substantial portion of that
experience renders Mr. Kavanaugh, I believe, exceptionally well
qualified in terms of experience. I refer, of course, to the
fact that in addition to his exposure to private practice and
his service to the President, Mr. Kavanaugh has had substantial
litigation experience on both sides of the bench. As you're
aware, and as the Chairman has mentioned, he's worked with a
one-and-one relationship not only with the two Court of Appeals
Judges that are here this afternoon, but also with a Justice of
the United States of the Supreme Court and a Solicitor General
of the United States. As you are also aware, Mr. Kavanaugh's
litigation experience has included appearance before all levels
of our Federal courts.
Now, I have stayed in touch with Mr. Kavanaugh, and have
followed his career with interest since he left my chambers. I
have heard nothing from, and I've heard nothing about Mr.
Kavanaugh in the intervening years that has caused me to
question in any way my original judgment about the kind of
judge he would be if he could have that opportunity. His
responsibilities, it's true, from time to time, have called
upon him to make--to take positions on issues which reasonable
minds could differ about. That's part of being a lawyer. But I
believe he has consistently served his client well, and in a
thoroughly professional manner.
In sum, members of the Committee, I believe Mr. Kavanaugh's
intelligence, his common sense judgment, his temperament, and
his dedication to the rule of law, make him a superb candidate
for the position of United States Circuit Judge, and I can
commend him to you without reservation.
Thank you for this opportunity to address the Committee.
Chairman Specter. Thank you very much, Judge Stapleton.
Judge Kozinski.
PRESENTATION OF BRETT KAVANAUGH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT, BY ALEX KOZINSKI, JUDGE,
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, PASADENA,
CALIFORNIA
Judge Kozinski. Good afternoon, Mr. Chairman, members of
the Committee. It's a great pleasure and honor for me to be
back. Thank you for inviting me to introduce my good friend, my
former law clerk, Brett Kavanaugh.
I probably do not need to take my full 5 minutes, because I
can just say ``me too'' to everything that Judge Stapleton
said, but let me just take a few minutes, a couple minutes, if
I can, to give my own personal view.
I'm glad, Mr. Chairman, that you mentioned that Brett
Kavanaugh went to Yale and you and he had that in common. We
have that in common too. He went to Yale and I have a son named
Yale.
[Laughter.]
Judge Kozinski. I tried to get in, but I wasn't as
fortunate. I got rejected.
But I have had a number of clerks from Yale and Harvard and
many other fine law schools, and among them, Brett Kavanaugh
was one of the finest. I met him about the same time that Judge
Stapleton met him, in March `89. We both interviewed him for a
job for clerkship right out of law school, but Judge Stapleton
was just faster making an offer. So I had to pick him up the
following year, because he accepted a clerkship with Judge
Stapleton first.
I must tell you that in the time that I had Brett clerk for
me, I found him to be a positive delight to have in the office.
He's really bright and he's really accomplished and he's really
an excellent lawyer. But most, virtually all, folks who qualify
for a clerkship with a circuit judge these days have those
qualities.
But Brett brought something more to the table. He first of
all brought what I thought was a breadth of mind and a breadth
of vision. He didn't look at a case from just one perspective.
Like a good lawyer, like--Mr. Chairman, you were a prosecutor,
you know this very well--you have to look at a case from
different perspectives, not just one, and not early in the case
take one perspective and then stick with it. Brett was very
good in changing perspectives. Sometimes I'd take one position
and he'd take the opposite, and sometimes we'd switch places.
He was very good and very flexible that way.
I never sensed any ideology or any agenda. His job was to
serve me and to serve the court and serve the people of the
United States in achieving the correct result at the court. And
he always did it with a sense of humor and a sense of sort of
gentle self-deprecation. He was always--my staff, my
secretaries, his co-clerks all enjoyed having him and all
enjoyed particularly the fact that he was not in any way
pompous or in any way stuck on himself, but was always ready to
help others or was ready to be friendly with others.
And I think that's a very important quality in a judge.
This may seem trivial and maybe seem like I'm mentioning things
here that ought not to be mentioned in a committee, but part of
what makes the job of judging different from other jobs is that
it is not a mechanical process. It is ultimately a human
process. You have to understand something about how people
think, something about how people live, something about how
people feel. And what I think Brett Kavanaugh brings to the
table, what he brought to the table when he was my law clerk,
is a sense of humanity and a sense of understanding.
I will not speak to the question of confirmation or
nonconfirmation. This obviously is something that is up to the
committee. I can only say that I give Brett Kavanaugh my
highest recommendation. I gave him my high recommendation when
he applied to Justice Kennedy, my own mentor, and I continue to
give him the highest recommendations.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Judge Kozinski.
I have just one question for each of you. Judge Kozinski,
how old were you when you were appointed to the Ninth Circuit?
Judge Kozinski. I was 35 years old, Mr. Chairman.
Chairman Specter. Judge Stapleton, how old were you when
you were appointed to the Federal bench, first to the district
court?
Judge Stapleton. Thirty-five years old.
Chairman Specter. And may the record show that Justice
Kennedy was appointed to the Ninth Circuit when he was 38 years
old.
Anybody have any questions for the judges? Senator Schumer?
Senator Schumer. Just one question for both. Since Mr.
Kavanaugh clerked for each of you right after, a year after law
school, have either of you had occasion to have him appear
before you in your court as a lawyer.
Judge Stapleton. I have not.
Judge Kozinski. Nor have I.
Chairman Specter. Thank you very much, Judge Stapleton.
Thank you very much, Judge Kozinski. Appreciate your being
here.
Judge Kozinski. My pleasure.
Judge Stapleton. Thank you.
Chairman Specter. Mr. Kavanaugh, would you step forward for
the oath?
If you would raise your right hand. Do you swear that the
testimony you will give before the Judiciary Committee will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. Kavanaugh. I do.
Chairman Specter. Before beginning your testimony, Mr.
Kavanaugh, I note an infant in the audience and what appears to
be a mother, and both appear to be wife and child, and perhaps
other family. Would you introduce them, please?
STATEMENT OF BRETT KAVANAUGH, NOMINEE TO BE CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Mr. Kavanaugh. Yes.
Thank you very much, Mr. Chairman, for the opportunity to
appear here before the Committee. I'm grateful to the President
for nominating me to this important--
Chairman Specter. Mr. Kavanaugh, there is a question
pending, and the question was would you introduce your family.
Mr. Kavanaugh. Yes.
[Laughter.]
Mr. Kavanaugh. And I thank my family for being here. Since
I last appeared before the Committee, there have been two major
changes in my record, and they're both sitting behind me. My
wife, Ashley Estes Kavanaugh, and my 8-month-old daughter,
Margaret Murphy Kavanaugh. She's watched a little C-SPAN in her
day. This is her first live Senate hearing, however. I'm not
sure--as you've probably already noticed, Mr. Chairman, I'm not
sure she's going to make it very long, but she wanted to be
here for the start.
My uncle, Mark Murphy, is here. And my brother-in-law, J.D.
Estes, is here. My mom and dad are here, Martha and Ed
Kavanaugh. They are, and have been, an inspiration to me.
They've been married for 43 years, and I am their only child.
I'm just very proud that they're behind me today.
My mom in particular, in terms of career path, has had a
profound influence on my career choices. Throughout her life
she's been dedicated to public service. When she was in her
20's, she taught public high school in the District of
Columbia, at McKinley and H.D. Woodson high schools. She then
decided to go back to law school in the 1970's and became a
State prosecutor out in Rockville, Maryland. She was later
appointed to the State trial bench by Governor Schaefer and
then by Governor Glendening, in Maryland. She's instilled in me
a commitment to public service and a respect for the rule of
law that I've tried to follow throughout my career.
Mr. Chairman, I'm a product of my parents; I'm also a
product of my experiences, and I'd like to take a few minutes
to share a few of those experiences and how I think they might
shape how I would come to the bench as a judge.
I attended Yale Law School in the late 1980's. It was a
challenging yet collegial environment. It was a place that
instilled a desire to make a difference. It was a place that
encouraged public service. And while I was at Yale Law School I
decided, as you know, to seek a judicial clerkship after my
time there.
I clerked for Judge Walter Stapleton on the Third Circuit.
Judge Stapleton is a gentleman and a scholar. He's an
experienced judge, and he's a great friend. If I am confirmed
to be a judge, I will do everything in my power to bring to the
bench the decency and the good judgment and the collegial
manner of Walter Stapleton. And I thank him for being here
today.
After I clerked for Judge Stapleton, I clerked for Judge
Alex Kozinski on the Ninth Circuit. Judge Kozinski, as many of
you know, has a passion for the law. When we started as law
clerks, he told us we work for the people and we should
consider ourselves on the job 24 hours a day, 7 days a week,
365 days a year. And I can say from personal experience that
Judge Kozinski lived up to that promise. We worked very hard,
he was very thorough. I thank him for all he's done for me in
my career and for coming here today from California. If I am
confirmed to be a judge, I would seek to bring to the bench the
thoroughness and the thoughtfulness and the dedication to the
rule of law that Judge Kozinski has demonstrated on the bench
for more than 2 decades.
After I finished those two clerkships, I worked in the
Solicitor General's Office at the Department of Justice. I
experienced the ethic of that office, that the United States
wins its point when justice is done. In that office I had the
opportunity for the first time to argue a case in court before
the Fifth Circuit Court of Appeals. I was able to stand up for
the first time and say Brett Kavanaugh for the United States, a
moment that was very proud for me and remains so.
In the October 1993 term of the Supreme Court, I clerked
for Justice Anthony Kennedy. Justice Kennedy is a student of
history, he's a student of the Supreme Court. He talks often
about the compact between generations that the Constitution
represents. And he conveyed to his clerks, and certainly
conveyed to me--to use one of his favorite phrases--the
essential neutrality of the law. I'm forever grateful to
Justice Kennedy for the opportunity to clerk for him.
After I finished that clerkship, I worked for Judge Starr
in the Independent Counsel's Office. It was a difficult, it was
a tough job, it was an often thankless job. In that capacity, I
had the opportunity to argue cases before the Supreme Court of
the United States and the D.C. Circuit Court of Appeals. I
learned some lessons in that office. I had some thoughts about
how it all operated and, as the Chairman has noted, I tried to
make a contribution, the improvement of the public legal
system, by writing an article in the Georgetown Law Journal
that identified better ways, in my judgment, to conduct
investigations of high-level executive branch officials.
I then went to Kirkland & Ellis, where I became a partner,
represented institutional clients of the firm, and also did pro
bono work for several years.
In 2001, I joined the White House Counsel's Office under
Judge Al Gonzales. In that office I did some of the standard
work of the office--ethics issues, separation of powers issues.
I also worked with many members of the staff of this Committee
and other Members of Congress on civil justice issues, such as
class action reform, medical liability reform, and the very
important terrorism insurance legislation in 2002.
I also worked on judges, on the nomination of judges, and I
had the opportunity to help recommend judges to the President
of the United States for him to nominate to the Federal courts.
In that capacity, on the district court level I worked closely
with many members of the Senate and their staffs in the States
that I was assigned, including some members of this Committee.
In July of 2003, I became staff secretary to President
Bush. This is what I call an honest broker for the President,
someone who tries to ensure that the range of policy views on
various subjects in the administration are presented to the
President in a fair and even-handed way.
I've worked closely with the President and with the senior
staff at the White House and other members of the
administration for nearly 3 years. I think I've earned the
trust of the President, I've earned the trust of the senior
staff, that I'm fair and even-handed. This kind of high-level
experience in the executive branch has been common for past
judicial nominees, especially on the D.C. Circuit, which
handles so many important and complicated administrative and
constitutional issues.
Mr. Chairman, I have dedicated my career to public service.
I revere the rule of law. I know first-hand the central role of
the courts in protecting the rights and liberties of the
people. And I pledge to each member of this Committee, and I
pledge to each member of the Senate, that, if confirmed, I will
interpret the law as written and not impose personal policy
preferences; that I will exercise judicial power prudently and
with restraint; that I will follow precedent in all cases fully
and fairly; and above all, that I will at all times maintain
the absolute independence of the judiciary, which in my
judgment is the crown jewel of our constitutional democracy.
Mr. Chairman, I will be happy to answer any questions.
Thank you.
[The biographical information can be found in Senate
Hearing No. 108-878, Serial No. 108-69, hearing date: April 14,
2004.]
[The updated biographical information of Mr. Kavanaugh
follows:]
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Chairman Specter. Thank you very much, Mr. Kavanaugh.
We now turn to 5-minute rounds for each Senator.
Mr. Kavanaugh, I begin with the question as to what
assurances can you give this Committee and the Senate and the
American people about your independence from the President and
the White House. I look at a long list of nominees who have
voted against their Presidential nominator on many, many
celebrated matters. Just a few: Justice Douglas dissented on
the Korematsu case, the Japanese internment case, against
President Roosevelt's policy. Famous decision by Justice Tom
Clark turning against Truman on the Steel Seizure case not long
after he was nominated. Justice Kennedy, Justice O'Connor
disagreeing on a woman's right to choose from President Reagan.
Justice Souter disagreeing with President Bush the elder.
Famous disagreements that President Eisenhower expressed about
Chief Justice Warren. Perhaps the most famous case, Salmon
Chase had advocated policies as the Secretary of the Treasury,
and then, after being appointed to the Supreme Court, declared
unconstitutional the monetary policy he had implemented as
President Lincoln's treasurer.
What positive assurances can you give of your independence?
Mr. Kavanaugh. Mr. Chairman, if confirmed to be a D.C.
Circuit judge, I will call them as I see them, regardless of
who the litigants may be. I know that independence of the
judiciary, as I said in my opening, is a key part of our
constitutional system. I would not hesitate in any case to rule
the way I saw the case, regardless of who the parties were,
regardless of whether the President was involved.
Chairman Specter. Would you consider yourself independent
in the tradition of the judges, justices whom I've just named?
Mr. Kavanaugh. Absolutely, Mr. Chairman. I know that
there's a long history in our constitutional system of judges
being drawn from the executive branch, and I would--
Chairman Specter. Mr. Kavanaugh, let me interrupt you.
There's a great deal to cover and I only have 5 minutes.
Did you have anything to do with the issues of
interrogation of prisoners relating to the allegations of
torture in the so-called Bybee memorandum?
Mr. Kavanaugh. No, Mr. Chairman.
Chairman Specter. Did you have anything to do with the
questions of rendition?
Mr. Kavanaugh. No, Mr. Chairman.
Chairman Specter. Did you have anything to do with the
questions relating to detention of inmates at Guantanamo?
Mr. Kavanaugh. No, Mr. Chairman.
Chairman Specter. Did you have anything to do with Mr.
Abramoff and the many visits which he apparently made to the
White House?
Mr. Kavanaugh. No, Mr. Chairman.
Chairman Specter. Do you have anything to do with the
President's policy on so-called signing statements?
Mr. Kavanaugh. Mr. Chairman, signing statements come
through the Staff Secretary's Office, and I help ensure that
relevant members of the administration have provided input on
the signing statements. In the first instance they're drafted
in the Justice Department, but I do help clear those before the
President sees them.
Chairman Specter. That poses a very difficult and
contentious issue which this Committee is going to have
hearings on. And I can understand that in your role as
coordinator you would have the responsibility for coalescing
materials. Did you take any position as to the constitutional
authority for the President to limit the substance of
legislation by expressing limitations in the signing
statements?
Mr. Kavanaugh. Mr. Chairman, it is common for signing
statements, this President and previous Presidents, to identify
potential constitutional issues like Appointments Clause
issues, Presentment Clause issues, or issues relating to INS v.
Chaddha, for example, the line item veto case. On those
matters, I make sure that they have been properly staffed to
other members of the White House staff. They come up in the
first instance from the Justice Department and the Office of
Management and Budget.
Chairman Specter. Were you called upon to give the
President any advice as to the constitutional implications of
the signing statements?
Mr. Kavanaugh. Well, Mr. Chairman, I think, without
discussing internal matters, I think it's common to explain the
general parameters of signing statements, for example, that
there's been a history of them, and identifying potential
constitutional issues in legislation, particularly Appointments
Clause, Presentment Clause, and the other issues identified.
Chairman Specter. Mr. Kavanaugh, you wrote an article on
peremptory challenges, where there had been a practice among
prosecutors to issue what are called peremptory challenges--
which, for those who do not know, means that a prospective
juror can be disqualified without stating any reason, where
blacks were eliminated. My time is up and I will quit, but you
can answer.
Mr. Kavanaugh. Mr. Chairman, I think one of the great
Supreme Court decisions ever decided was Batson v. Kentucky. It
overruled Swain v. Alabama, and held that a prosecutor's use of
race in striking potential jurors from the jury box was
unconstitutional under the Equal Protection Clause of the 14th
Amendment.
One of the concerns I had--that was decided in 1986; I was
in law school from 1987 to 1990--one of the concerns I had was
what procedures will be used to help guarantee that right to be
free of racial discrimination in the jury selection procedure.
And I wrote a note that advocated certain procedures that help
ferret out potential racial bias in the jury selection process.
Chairman Specter. Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman.
Just when Senator Specter went over all of the issues, he
mentioned torture in connection with the Bybee memo. Were you
involved in any way in the Counsel's Office in opining about
the proper use of torture?
Mr. Kavanaugh. No, Senator. The first time I learned of
that memo, I believe, was--
Senator Schumer. I did not ask about the memo. I asked just
in general.
Mr. Kavanaugh. No, Senator.
Senator Schumer. Thank you. OK, I would like to ask you a
few questions that you did not answer. These were submitted in
writing or orally at the last hearing. I will tell you all of
them.
First, Senator Leahy asked you whether Karl Rove was
involved in the judicial selection process at any point while
you were there. I asked you how you would have voted on the
impeachment of President Clinton. Senator Kennedy asked you
whether you agreed with Judge Pryor, who called Roe v. Wade an
abomination. And Senator Durbin asked you if you consider
yourself in the mold of Scalia and Thomas, which is the mold
that the President has said he is going to choose judges in.
First, Rove. Was Karl Rove involved in any of the selection
of judges while you were there?
Mr. Kavanaugh. Mr. Chairman, I think that is a question
that the Counsel to the President should answer in the first
instance. I don't think as a judicial nominee here I should
talk about who was involved. The Counsel to the President
chairs the judicial selection committee, and if there is a
question about who is involved in recommending judges--
Senator Schumer. What we are trying to determine, in the
previous time you were here, you said that no ideology was
involved in the selection of judges. I do not see why you
cannot answer that question. What is improper about answering
that question?
Mr. Kavanaugh. Senator, I will check whether I can answer
that question. And if I can, I will provide the answer.
Senator Schumer. What would come to mind which would
prevent you from answering that question?
Mr. Kavanaugh. Senator, I just want to be careful that I
check with the Counsel on something like that and be sure that
there is not an issue before I disclose something in the
context--
Mr. Kavanaugh. Is there any privilege that would prevent
you that you can see, that would come to mind right now?
Mr. Kavanaugh. I can check with the Counsel on that,
Senator.
Senator Schumer. Do you have knowledge of the answer?
Mr. Kavanaugh. Well, I was involved in the judicial
selection process.
Senator Schumer. So you would know yes or no, you just
choose not to answer?
Mr. Kavanaugh. And I would be happy to provide the answer.
I just want to check first.
Senator Schumer. OK.
Next, how would you have voted--I know you were involved in
the impeachment of President Clinton--how would you have voted
if you were a Senator?
Mr. Kavanaugh. Senator, I don't think it's appropriate for
the office that submitted the report to comment on whether the
House made the proper decision to impeach or whether the Senate
made the proper decision not to--
Senator Schumer. When lawyers argue cases, all the time
they say they are disappointed in the verdict, they are happy
with the verdict. That is not a violation of anything, as far
as I know, except your desire not to answer the question.
Mr. Kavanaugh. I guess this gets to an ethic I've learned
about prosecutors offices when I worked in the Solicitor
General's Office, that it's not appropriate to comment on a
jury verdict. And I don't think it's appropriate in this
instance for me, as a member of the Independent Counsel's
Office, to comment on whether the House decision was correct or
whether the Senate decision was correct.
Senator Schumer. In an op-ed in the Washington Post in
1999, you wrote a defense of Ken Starr, where you said ``Starr
uncovered a massive effort by the President to lie under oath
and obstruct justice.'' You also wrote that, ``The word that
ordinarily describes such behavior is not `trapped' but
`guilty.''' You were pretty clear to state your views in 1999,
but you do not want to state them now?
Mr. Kavanaugh. I think that was based on Judge Wright's
finding of contempt, and there was also a censure resolution
introduced in the Senate that used some more language. So I
think the language there, it was a joint op-ed.
Chairman Specter. But you just said you did not think it
was appropriate to answer. And you felt it very appropriate, in
a similar role, to answer, to make some very strong statements
then.
Mr. Kavanaugh. I think this goes to a key point, Senator,
which is impeachment and then conviction take into account more
than just the facts. As you know from participating on the
House side at the time and the Senators know from participating
on the Senate side, there were--
Senator Schumer. I participated in votes.
Chairman Specter. Now, let him finish his answer, please.
Senator Schumer [continuing]. On both sides.
Mr. Kavanaugh. On both sides, that's right, Senator. And I
think, as many of the Senators and House members discussed at
the time, it wasn't just a simple question of whether there was
a violation of law committed, but there were broader
considerations for the country. And that's where it really
gets, really gets, I think, improper for someone in the
Independent Counsel's Office to say whether they think the
President should have been impeached.
Senator Schumer. I fail to see the distinction. Let me ask
you to answer, since my time is ending here, the two other
questions. Do you consider Roe v. Wade to be an abomination?
And do you consider yourself to be a judicial nominee, like the
President said he was going to nominate people, in the mold of
Scalia and Thomas?
Mr. Kavanaugh. Senator, on the question of Roe v. Wade, if
confirmed to the D.C. Circuit, I would follow Roe v. Wade
faithfully and fully. That would be binding precedent of the
Court. It's been decided by the Supreme Court--
Senator Schumer. I asked you your own opinion.
Mr. Kavanaugh. And I'm saying if I were confirmed to the
D.C. Circuit, Senator, I would follow it. It's been reaffirmed
many times, including in Planned Parenthood v. Casey.
Senator Schumer. I understand. But what is your opinion?
You're not on the bench yet. You've talked about these issues
in the past to other people, I'm sure.
Mr. Kavanaugh. The Supreme Court has held repeatedly,
Senator, and I don't think it would be appropriate for me to
give a personal view of that case.
Senator Schumer. OK, you are not going to answer the
question. How about being in the mold of Scalia and Thomas?
Mr. Kavanaugh. I don't want to talk about current members
of the Court, but I do think I can describe some of the
justices or judges in the past that I think I would try, that
have been role models to me, including Justice White, Justice
Jackson, and for a couple of reasons. They were people who took
an active part in our Government system, which is some--
Senator Schumer. I understand. Just explain to me why it is
appropriate for the President to say that he will appoint
nominees in a particular mold, but you cannot answer whether
you would be part of that.
Mr. Kavanaugh. As a potential inferior court judge,
Senator, on the D.C. Circuit if confirmed, I just don't want to
talk about currently sitting members of the Supreme Court. I'm
happy to talk about Justice Jackson and Justice White, if you'd
like.
Senator Schumer. OK. I wish I could say it, but I do not
think you have clarified any of these answers that we asked you
the first time.
Thank you, Mr. Chairman.
Chairman Specter. Senator Hatch.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman.
Welcome again to the Committee. You are one of the few who
have had this great experience of being brought back here
twice. Let me just take a--
Mr. Chairman, I would like to take most of my time to make
just a few comments rather than to ask questions at this time.
I think that during his first hearing 2 years ago in 2004
and his written submissions afterwards, Mr. Kavanaugh more than
adequately answered all the questions that had been posed to
him. The Committee already has a 159-page hearing record before
it on this nominee. And I am confident in Mr. Kavanaugh's
abilities and capacities in both the understanding and
knowledge of the law. I suspect that he will continue to show
his intellect, sound judgment, and judicial temperament.
I have no doubt that Mr. Kavanaugh fully appreciates the
proper role and limitations placed on Federal appellate judges
in our constitutional system. And while I am not pleased with
all the circumstances that have resulted in holding this
unusual if not unprecedented second hearing, I take solace in
the fact that Chief Justice Roberts, whom many in the public
and a super-majority of Senators found to be an extremely
capable individual after his confirmation hearings last
September, was also subject to two confirmation hearings before
he was able to sit on the D.C. Circuit. I hope that Brett
Kavanaugh's confirmation will not be delayed as long as now-
Chief Justice Roberts's was. He was delayed for 11 solid years,
between the time that the first President Bush nominated him
and the time that the second President Bush, our current
President, renominated him.
Now, while today's hearing will and should concentrate and
focus on qualifications of Brett Kavanaugh to serve on the D.C.
Circuit Court of Appeals, when you see nominees with the
backgrounds of John Roberts and Brett Kavanaugh having been
held up for so many years for so little reason, sometimes you
have to ask yourself if there may be motivations at play that
have nothing at all to do with the nominee's actual fitness to
sit on the bench. To date it has been almost 3 years since Mr.
Kavanaugh was first nominated. I think it is time to vote on
his nomination, and frankly it is past time for the Senate to
vote on Mr. Kavanaugh's nomination.
So at this point, I would like to welcome you, Mr.
Kavanaugh, your wife and baby and of course your family. Since
the last time before this Committee, you have become a husband
and father, and I join in welcoming Mrs. Kavanaugh here and
your 8-month-old daughter Margaret to the Committee.
I also want to acknowledge the presence of Mr. Kavanaugh's
parents. I have known them for a long time. Ed Kavanaugh for
many years, he headed up the major trade association, the
Cosmetic, Toiletries, and Fragrance Association, and he is
deservedly admired by many in this town. And his mother served
with distinction as a State court judge in Maryland for many,
many years.
Sometimes in these confirmation hearings, in the rush to
get to more controversial matters, there is a tendency to skip
over too quickly on the qualities and attributes that led the
President to nominate the individual--and in this case, Mr.
Kavanaugh--in the first place. And I think Senator Specter has
already given us an overview of the nominee's impressive
educational and employment background. We have also heard the
testimony of two excellent Federal court judges for whom he
clerked, both of whom I know--Judge Kozinski of the Ninth
Circuit and of course Judge Stapleton of the Third Circuit
Court of Appeals. I think we should weigh their words very
carefully. These are people of impeccable reputations and
ability on the bench.
Not only did you distinguish yourself as a clerk on two
appellate courts, but you also served as a clerk on the Supreme
Court. You had an academic career that was pretty impressive as
well, at Yale. You've had a series of impressive and highly
responsible jobs in both the executive branch and in the
private sector. And you're a talented appellate advocate as
well before the Supreme Court.
Now, let me just say--my time is running out, but in
addition to your three judicial clerkships, as you have
mentioned, you worked in the Solicitor General's Office, in the
Department of Justice, with Ken Starr, and of course with the
Office of Special Counsel. And of course nobody should judge
you as an attorney for having worked in something that was as
unpleasant as that. Attorneys work on unpleasant matters in
many ways, and you would be a pretty doggone poor attorney if
you were not willing to work with distinction and with fairness
when called upon to do so. And I think knowing you and knowing
what happened in the Clinton matter, you served with
distinction and fairness.
My time is about up so I just--I will make some more
comments if we have another round, but I just want to
congratulate you for standing in there and being willing to
serve on the circuit court of appeals. I know you could make a
fortune on the outside, but you have made public service your
life and I do not see how we can find a better person to serve
and give public service than you. So I just want to personally
express my fondness for you, my high admiration for you, and
the fact that you will have my support in every step of this
process.
Chairman Specter. Thank you, Senator Hatch.
Under the early bird rule, on the side for the Democrats
are Senator Feinstein, Senator Durbin, Senator Kennedy, Senator
Feingold, and on the Republican side are Senator Coburn,
Senator Graham, Senator Sessions, and Senator Kyl. So under the
early bird rule we now turn to Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Mr. Kavanaugh, thank you for returning. In 2003, Jay Bybee
was confirmed to a seat on the Ninth Circuit. A year and a half
later, we learned he had authored the infamous torture memo
when he headed the Justice Department's Office of Legal
Counsel. In the memo he claimed the President has the right to
ignore the law that makes torture a crime and narrowly defined
torture as abuse that causes pain equivalent to organ failure
or death.
The torture memo was requested by, addressed to the then-
White House Counsel, Alberto Gonzales. So clearly the White
House Counsel's Office knew that Mr. Bybee had authored the
torture memo at the time of his nomination. Did you know that
Mr. Bybee authored the torture memo or similar memos at the
time of his nomination?
Mr. Kavanaugh. No, Senator, I think you're referring to the
August 1, 2002, memo. I was not aware of that memo until there
was public disclosure of it in the news media, I think in the
summer of 2004.
Senator Durbin. The administration has now repudiated the
memo. In retrospect, should the fact that Mr. Bybee authored
the torture memo have disqualified him from consideration as a
nominee?
Mr. Kavanaugh. Senator, I don't think, sitting here as a
prospective judge, as a nominee to a court of appeals, I should
talk about another sitting judge and whether that person should
or should not have been nominated. I just don't think that's a
proper role for me.
Senator Durbin. But you see that is what we are struggling
with here. We do not have a number of cases that you have
argued before a court, because you haven't. We do not have
trials that you have taken to a jury verdict, because there are
none. We have to rely on what you have done with your life and
where you have been to try to determine what your values are.
Senator Schumer asked you a series of questions related to the
work of your life, which you did not feel were appropriate to
answer. And now I am trying to plumb that same type of well to
find out what you really believe and who you are. And every
time we get close, you say sorry, I can't answer. That is a
problem for a person seeking a seat on the second-highest court
in the land. I do not know where to go in questioning you. You
do not want to talk about what you have done that might have
any political implication. And frankly, when it comes to legal
work, there is not much to turn to. Do you see the problem we
are facing?
Mr. Kavanaugh. Senator, on that memo, I can say that the
administration has repealed that memo. I agree with that
decision. I do not believe the analysis in that memo was
correct. I think that memo did not serve the presidency or this
President well. And I am willing to talk about the memo itself.
Senator Durbin. Well, let me ask you. You were in charge of
judicial nominations, or at least involved in judicial
nominations with the White House. And that is why we are going
into this. Let's go to another nominee and see if you might
respond to this.
In September 2003, the President nominated William Haynes
to be a judge on the Fourth Circuit. As General Counsel to the
Department of Defense, Mr. Haynes had been the architect of the
administration's discredited detention and interrogation
policies. For example, Mr. Haynes recommended that Secretary
Rumsfeld approve the use of abusive interrogation techniques,
like threatening detainees with dogs, forced nudity, and for
forcing detainees into painful stress positions. During the
108th Congress, Mr. Haynes's nomination stalled after his
involvement in this scandal came to light. Just this February,
the President decided to renominate him.
What was your role in the original Haynes nomination and
decision to renominate him? And at the time of the nomination,
what did you know about Mr. Haynes's role in crafting the
administration's detention and interrogation policies?
Mr. Kavanaugh. Senator, I did not--I was not involved and
am not involved in the questions about the rules governing
detention of combatants or--and so I do not have the
involvement with that. And with respect to Mr. Haynes's
nomination, I've--I know Jim Haynes, but it was not one of the
nominations that I handled. I handled a number of nominations
in the Counsel's Office. That was not one of the ones that I
handled.
Senator Durbin. So let me try this approach and see if we
can learn a little more. Manny Miranda was an employee of the
Senate Judiciary Committee on the Republican staff and then on
the Senate Majority Leader's staff. He hacked into the
computers of the members and staff of this Committee, stealing
thousands of documents and memoranda which were then shared
with others. Did you know Manny Miranda, or do you know him
today?
Mr. Kavanaugh. I knew Manny Miranda because he was a member
of Senator Hatch's staff and then Senator Frist's staff working
on judicial nominations.
Senator Durbin. Did you ever work with him in terms of
judicial nominations?
Mr. Kavanaugh. He was part of a group of Senate staffers
that did work on judicial nominations with people at the
Department of Justice and the White House Counsel's Office. We
talked about this last time. I did not know about any memos
from the Democratic side. I did not suspect that. Had I known
or suspected that, I would have immediately told Judge
Gonzales, who I'm sure would have immediately talked to
Chairman Hatch about it. Did not know about it, did not suspect
it. He was part, however, of the staff, of course, that worked
on judicial nominations, including with--on both sides.
Senator Durbin. My time is up. But I think one of the
problems you had with the American Bar Association when they
downgraded your rating was they thought you were dismissive of
this, that you did not take this as a serious problem, that a
Republican staffer had broken into the computers of Democratic
Senators and their staff, were stealing documents and sharing
them with those who were plotting the strategy for the White
House. Would you like to respond as to whether or not you think
this was a serious matter, perhaps criminal?
Mr. Kavanaugh. Senator, I don't know what the American Bar
Association said about that, but I know what I told them and
what I've told the Committee. Had I known or suspected anything
like that, I would have immediately told Judge Gonzales, who
I'm sure would have immediately called Chairman Hatch. I know
the matter has been under investigation in the Senate. I know
the matter has been under investigation by a special
prosecutor. That is a serious matter. And that is what I said
to the American Bar Association and that's what I'm saying to
this Committee.
So that's my view on the matter.
Senator Durbin. Thank you.
Chairman Specter. Thank you very much, Senator Durbin.
Senator Coburn.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. Thank you, Mr. Chairman.
I just want to put a few points into the record. Of the 12
members of the D.C. Circuit and the two seniors, none have as
broad experience in terms of measurement points as our nominee
here today. Only five have clerked on the Federal appeals court
out of the 14; only four have clerked on the Supreme Court;
only six have argued before the court of appeals; only five
have argued before the Supreme Court; only seven have had
editorial positions on law review; only four have had previous
judicial experience. Of everybody that is on there now, only
four have had previous judicial experience and only four had
any legislative branch experience.
Again, I want to address the issues out in the open. I
think what is happening here today I am somewhat embarrassed
about. We have somebody who is obviously qualified. The ABA
says he is qualified. He is not downgraded, he is recognized as
qualified. He is extremely well qualified and well qualified.
This time he is well qualified, with a minority extremely well
qualified--or qualified and well qualified.
But what it requires is ``qualified.'' And if you look at
the ABA's position of what ``qualified'' is--and let me read it
for you, should we have any questions regarding that--let me
find it. It means that the nominee meets the committee's very--
this is ``qualified.''--means that the nominee meets the
committee's very high standards with respect to integrity,
professional competence, judicial temperament, and that the
Committee believes that the nominee will be able to perform
satisfactorily all of the duties and responsibilities required
by the high office of a Federal judge.
Everybody on that ABA says you are qualified. And I just
read what it means. The idea that we are fishing around because
we do not like something the Bush administration has done, or
we are going to imply and impugn the integrity of somebody who
has been in a position of responsibility and has offered his
good services to fulfill the requirements of the executive
branch, and anything you do not like about the executive branch
you are going to try to tie to this gentleman, is improper. It
also is dismissive of our open form of Government. And is
exactly, again--I will say again--exactly what the American
people are sick of, partisan sniping that is not about the
issues but trying to score a point and trying to undermine
somebody's integrity who has absolute integrity on these
issues.
They have answered the questions. We are here--we are
here--to give a second look at somebody who has already
answered the questions. And there is precedent to not give
answers to questions about certain privileged communications
within the White House. That does not mean that those are
necessarily devious or wrong. It means you protect the Office
of the Presidency. That is an appropriate role. There is
nothing wrong with that.
I will have one question for you. Why do you want to be a
Federal judge?
Mr. Kavanaugh. Senator, I want to be a Federal judge
because I know from experience and through my upbringing the
role of the courts in protecting the rights and liberties of
the people. I know how essential the rule of law is to our
country. I know how the independence of our Federal judiciary
is central to our constitutional form of Government. I think,
based on my experience and my background, I can make a
contribution to the administration of justice. I think I can be
a good judge. And it's part of my commitment to public service
that I've carried out for most of the 16 years since I
graduated from law school.
Senator Coburn. Do you think it makes any difference on
your ability to be an appellate judge in this country which
side of the issue you were on the impeachment or which side of
the issue you were on any of these issues that have been
raised? Your personal opinion, when you have testified that you
are not going to allow a personal opinion to interfere in your
interpretation of the law and the independence of the
judiciary, does that have a bearing?
Mr. Kavanaugh. Senator, I absolutely believe in the idea
that judges are neutral and impartial and that whatever
activities may have occurred in someone's past life in terms of
Government activities, those are good experience to have to
become a good judge. But it also is true, once you put on the
black robe, you're impartial and you represent the law. As
Justice Kennedy used to tell us, the essential neutrality of
the law. And I think that is a principle that I would seek to
follow were I to be confirmed to the D.C. Circuit Court of
Appeals. I think it's essential to our entire system of
Government. There's no such thing on the courts as a Republican
judge or a Democratic judge. Once you're on the court, all the
judges are there representing the justice system, representing
the idea of justice.
Senator Coburn. Thank you. My time has expired.
Chairman Specter. Thank you, Senator Coburn.
Senator Feinstein.
Senator Feinstein. I am happy to yield to Senator Kennedy.
My understanding is you wanted to go next?
Senator Kennedy. I appreciate that. We have this health
legislation on the floor now which we are trying to work
through. If it is convenient for the Senator from California, I
would just take the time. I thank the Chair.
Congratulations to you, Mr. Kavanaugh, for gaining the
President's confidence. The Circuit Court, as you know, has
such special jurisdiction in terms of so many different areas
of legislation that we pass--National Labor Relations Board,
the relationship of workers and what happens to workers,
discrimination against workers in the workplace, environmental
kinds of issues they are working through. And their judgments
on so many of these end up being the law, and so few go on to
the Supreme Court. And we have seen very interesting trends
that have taken place in the District court. So this has a
special relevancy and importance. So that is at least why we
spend as much time as we do on this particular nomination.
Just on the--I want to just really focus in on this issue,
again, of torture and rendition, your role there. I am on the
Armed Services Committee and we have spent a lot of time. We
have had 10 investigations of torture, and none of them have
revealed what we are constantly seeing revealed now with newer
reports that have come on up in the newspapers and exposed by
Freedom of Information reports. So it is something that is--And
we have a policy of rendition which is of enormous concern to
many of us.
And we also know that Mr. Gonzales was in touch with Mr.
Bybee when he was over at OLC. I mean, we have gone through all
of this. This was all through the Gonzales--when Mr. Gonzales
was up for Attorney General. And we also know that Haynes was
in touch with the White House at that time, good chance that he
was in touch with OLC.
So this is the background. Have you ever previously--as you
well know, that Bybee memorandum effectively said that if you
go on out, you are in the military service or under contract
and you go out and torture someone, it does not make any
difference how badly you torture or what pain you inflict, as
long as your purpose is to get information rather than to hurt
an individual, you are going to be vindicated in terms of any
kind of protections. I mean, effectively. That also was
included in the Bybee.
And Mr. Gonzales repudiated it when he came up before the
Committee to be Attorney General. Is this the first time you
have every made a comment on the Bybee memorandum? You
responded to Senator Durbin and said that, in sort of a
followup question, that you did not agree with the reasoning or
the rationale for it. Is this the first time that you have ever
said anything about the Bybee?
Mr. Kavanaugh. I believe it is. It is possible I have said
something to people I work with, but this is the first time,
certainly, I have been questioned about it.
Senator Kennedy. But you have not, prior to this time, ever
made a comment or statement to others indicating that you found
it particularly offensive. Because it has been a major issue,
an issue in question out there. Please.
Mr. Kavanaugh. Senator, I know that Judge Gonzales in the
summer of 2004 had a press conference where the memo was
repealed and talked about this issue. I think also at his
confirmation hearing in 2005, he said he disagreed, I believe,
with the legal analysis in there, that the legal analysis in
there was incorrect. And so I know members of the
administration have repudiated that memorandum, or at least the
legal analysis in that memorandum.
Senator Kennedy. And your testimony is that you had nothing
with the promotion of Bybee to the Ninth Circuit. Is that
correct?
Mr. Kavanaugh. That was not one of the nominations I worked
on, and I knew he was, of course, being nominated but I didn't
know some of the issues that you're talking about today.
Senator Kennedy. Well, then you are saying that you did not
know he wrote what we know is the Bybee memorandum at the time
that he was being considered for the circuit?
Mr. Kavanaugh. I first learned of the existence of that
memo, I think, when there was a Washington Post story in the
summer of 2004. I think that is the first--I'm pretty sure
that's the first time I learned anything about the August 1
memo.
Senator Kennedy. And for Mr. Haynes, have you expressed an
opinion in terms of the legal counsel for the Defense
Department, for promotion? I understand you have not handled
the Haynes nomination?
Mr. Kavanaugh. That's correct, Senator. And in terms of my
portfolio in the Counsel's office, it involved a lot of civil
justice issues--worked on nominations, some ethics issues,
separation of powers issues. It did not involve the kinds of
issues you're raising in your questions.
Senator Kennedy. Well, are not most of those--I mean, the--
most of those issues, class actions, insurance reform, are not
most of those handled in the various departments, or were
they--are those not sort of policy issues handled in the
departments? Those are the issues that you were working on?
Mr. Kavanaugh. I worked, I would say, primarily on judicial
nominations. In the wake of September 11th, there were a number
of civil justice issues that I worked on, including the
terrorism insurance litigation.
Senator Kennedy. OK. Just finally, on the documents that
were taken here from the Committee and that you have the
familiarity--and you have indicated that you, in reviewing
them, had no understanding or awareness that they had been
taken, been stolen. Have you ever gone back, now that you are
aware of it, and seen what decisions you may or might not have
taken on the basis of documents that were illegally taken? To
see whether you may have made some judgments or decisions to
reach certain conclusions, now that you know that they were not
properly taken? Have you ever thought, well, I ought to go
back, I might have made some judgments or decisions when I was
working for the President and I ought to take a look at this,
since you know that these documents now were taken? Have you
ever thought about that?
Mr. Kavanaugh. Senator, there's a very important premise in
your question that I think is incorrect, which is I didn't know
about the memos or see the memos that I think you're
describing. So I think--
Senator Kennedy. Oh, you never saw any of those?
Mr. Kavanaugh. No, Senator, that's correct. I'm not aware
of the memos, I never saw such memos that I think you're
referring to. I mean, I don't know what the universe of memos
might be, but I do know that I never received any memos and was
not aware of any such memos. So I just want to correct that
premise that I think was in your question.
Senator Kennedy. OK. My time is up, Mr. Chairman.
Chairman Specter. Thank you, Senator Kennedy.
On the Republican side, we have, in sequence, Senator
Graham, Senator Sessions, Senator Cornyn, and Senator Kyl. And
on the Democratic side, we have, who has not questioned,
Senator Feinstein and Senator Feingold. I had Senator Feinstein
ahead of Senator Kennedy on the list.
Senator Feinstein. Yes, I yielded to Senator Kennedy.
Chairman Specter. OK, I just wanted to be sure that the
list is correct. It is sometimes judgmental. Senator Feinstein
was here first, but she left for awhile. Senator Kennedy came.
But at any rate, Senator Feinstein yielded. But I wanted it
known that that was the list that I had. And now Senator
Graham.
Senator Graham. Thank you, Mr. Chairman. I want to
congratulate you for having the hearing, because I think it is
appropriate. It is a lifetime appointment, that people be able
to ask questions and he be able to answer within his ability to
do so without compromising what he believes to be his ethics or
any proper role he may have played as a lawyer.
Do you believe you were treated fairly by the ABA?
Mr. Kavanaugh. Senator, the American Bar Association has
rated me three times. I'm going to get directly to the
question, but I'm going to give you some background, if I
could. I've been rated three times by the American Bar
Association. And each time, there were 14 individual reviews
conducted by members of the Committee. So there have been a
total of 42 separate reviews conducted of me based on
interviews with lots of people and review of lots of record.
All 42 have found that I'm well qualified or qualified to
serve on the D.C. Circuit Court of Appeals. So I'm pleased with
that and I'm proud of that. And to the extent--and none of the
42 has found that I'm not qualified, and I think the Chair of
the Committee yesterday said that there's not been a breath of
anyone saying that I'm not qualified. So I'm proud and pleased
with the 42 of 42.
Senator Graham. So do you think you were fairly treated?
Mr. Kavanaugh. Senator, I think, sitting here as a nominee,
I would prefer not to talk about my--you know, about the
American Bar Association other than to say that I'm pleased and
proud to have 42 of 42 rating me well qualified or qualified.
Senator Graham. Based on your going through that
experience, would you recommend that we continue to consult the
ABA when it comes to judges?
[Laughter.]
Mr. Kavanaugh. Senator, again, I'm pleased and proud of the
ratings. Their--in the future, maybe, will look back and have
some observations, but right now I don't think I have any
observations to offer the Committee about the American Bar
Association.
Senator Graham. Your time at the White House, you dealt
with, I think you described your job. One of these
constitutional questions that we are trying to wrestle with
here is the inherent authority of the President in a time of
war versus any designated role of the judiciary or the Congress
in general. Do you agree with Justice Jackson's evaluation in
the Youngstown Steel case that the President or the executive
branch is at their strongest maximum power when they have
concurrence of the legislative body?
Mr. Kavanaugh. I agree completely with that, Senator.
Senator Graham. Very specific question. Do you believe that
at a time of war, the Congress has the ability to amend, pass
the Uniform Code of Military Justice and not infringe on the
President's inherent authority as commander in chief?
Mr. Kavanaugh. Senator, that sounds like a specific
hypothetical that could come before the court, so I'd hesitate
to give an answer. In terms of Justice Jackson's framework,
that of course for a half century has been the guiding
framework. I think it's a work of genius, that opinion, in
terms of setting out the different categories of Presidential
power and Congressional power in times of war and otherwise, in
terms of, as you say, category I, when the President and the
Congress work together, that's when the power is at the
strongest. And category II, that's what they call the twilight
zone in the opinion. And then in category III, where a
President acts against the express or implied will of Congress,
that's where the President's power is at its lowest ebb and
raises some very serious constitutional questions, according to
Justice Jackson. I think that's an exceptional opinion that has
guided American law, the relationship between Congress and the
executive for about a half-century, and it's really been the
foundation of these kinds of issues that I know you and the
Committee have been working on.
Senator Graham. Finally, and if you don't want to answer
it, you don't have to, but are you a Republican? If so, why?
Mr. Kavanaugh. Senator, I am a registered Republican. As I
said before to Senator Coburn, I believe very much that it's
good to have judges who've participated in Government. That's
been part of our experience in the past, to have judges on the
D.C. Circuit who've participated in the executive branch,
who've worked in the executive branch; judges on the Supreme
Court.
Specifically, to answer your question, when I was first
registering to vote, President Reagan was President and I
agreed with him on some issues and registered Republican in the
first election in--I guess 1984 was the first one I voted in.
Chairman Specter. Thank you very much, Senator Graham.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Let me just say this. This is a difficult nomination. First
of all, you're very young, which is, I think, a blessing for
you. But in terms of an appellate judge, I think it is a
detriment. Obviously, you've had a good education, you have
done well. You have spent a lot of your life in at least a
semi-political capacity. The question comes up, how can you
assure us that you will be fair? Would you recuse yourself from
any judgment that concerned this administration?
Without a record either as a trial lawyer or as a judge,
it's very difficult for some of us to know what kind of a judge
you would be and whether you can move away from the
partisanship and into that arena of objectivity and fairness.
Mr. Kavanaugh. Senator, thank you for the question. I think
in the past, on the D.C. Circuit and on the Supreme Court and
on other courts of appeals other than the D.C. Circuit, prior
Government experience in the legislative branch or the
executive branch has been seen as a very valuable asset,
whether it was Judge Abner Mikva or Judge Patricia Wald, Judge
John Roberts on the D.C. Circuit, Judge Merrick Garland, who
President Clinton appointed to the D.C. Circuit. That kind of
experience has been seen as very valuable experience and
valuable background.
And of course the question--I think only four of the last
21 judges on the D.C. Circuit have actually had prior judicial
experience, so the norm on the D.C. Circuit, in fact the
overwhelming norm, is for the judges on the D.C., Circuit since
1977, not to have had prior judicial experience. What they've
had usually is Government experience in the legislative
branches or the executive branches.
And your question really goes to how do you assess
someone's record. And I think that's done through an assessment
of going back, in my case 16 years in my career, and looking at
the things I've done. In the Staff Secretary's Office now,
where I'm an honest broker, where I have to be fair and even-
handed in the kind of role I perform for the President, some of
the work I've done in the Counsel's Office on judges, I've
worked with your office and Senator Boxer's office in the past
on judges I know and worked closely on that. When I was in
private practices, working on not just institutional clients,
but pro bono cases. One of my proudest cases is I worked on a
pro bono case for a synagogue in my home county that was
seeking to build in a new location. Some of the neighbors
didn't want it there. I represented them. They won in Federal
district court.
And the Independent Counsel's Office, I know, Senator, that
that's controversial and that's raised some questions. And I
think in that office, my record shows that I was fair and
conducted myself responsibly. I've written an article about
some reforms that I think would help avoid some of the problems
that I think were systemic in the Independent Counsel's--
Senator Feinstein. I am running out of time. Answer the
recusal question?
Mr. Kavanaugh. On the recusal question, I know that there
will be issues of recusal that I will face. There are standards
in place under 28 U.S.C. 455, and I will analyze those closely
were I to be confirmed to be a judge. There will be some
difficult questions. I do not want to prejudge how I would rule
on any recusal motion or how I would handle any particular
case, but I do know, Senator, that it will be an issue in
certain cases. I pledge to you that I'll take that seriously,
that I'll study the precedents of people like myself who've
come to the bench, that I will talk to my colleagues, were I to
be confirmed, and that I'll make the judgment responsibly. I
pledge that to you.
Senator Feinstein. As you look back at the Kenneth Starr
investigation today--I just read the op-ed you wrote in 1999--
what are your thoughts? What do you think?
Mr. Kavanaugh. On the Independent Counsel Office
investigation in general, I think a couple things, Senator.
First of all, I think it was, in retrospect, probably a mistake
for Judge Starr to be assigned additional investigations after
the initial Whitewater and Madison investigations. So he got
new jurisdiction over a Travel Office matter, an FBI files
matter, and eventually the Lewinsky matter. I think it would
have been better in retrospect for Judge Starr to have handled
what he was initially assigned and, if there was a new Special
Counsel needed in these other matters, for new people to be
appointed. By adding to the jurisdiction, it created the
impression that Judge Starr was somehow the permanent special
investigator of the administration. He was assigned a very
specific matter.
So that's one thing in retrospect. And frankly, even at the
time that I thought it was a concern, I think the way the
report was released was a real problem. I thought that at the
time. And I think the way that was released did not serve
anyone well. And I've written in my law journal article about
the problems with prosecutorial reports, the way people's
reputations are damaged. So I've proposed some real reforms
there.
I also know that it was a very serious matter in terms of
the underlying issue in 1998 in terms of the things that
members of this body weighed and members of the House of
Representatives weighed and that Judge Wright dealt with in
terms of the contempt motion that she dealt with. So there was
a serious underlying matter there; I believe that. I believe
that there was--that Judge Starr tried to do it thoroughly. But
again, to go back to the core problem, I think there was too
much jurisdiction added to Judge Starr that created a mistaken
public impression that harmed the credibility of the
investigation.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Feinstein.
The next questioner on the Republican side is Senator
Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Mr. Kavanaugh, thank you for your
thoughts on Senator Feinstein's question about the Starr
investigation. I think you have provided some good insight and
I think that probably is a reason why your reputation as a
member of that prosecutorial team was very high, and people had
a clear impression that you were a cool head and a wise member
of that team. And that is the reputation I have heard, and I
can see why you had that.
I would note that Ken Starr was a former Solicitor General
of the United States, a man of impeccable integrity,
extraordinary legal skill, and anyone would have been proud to
answer his call to serve him.
Looking at the ABA evaluation, I think, first of all, you
did extremely well, extraordinarily well to be rated well
qualified by them, in the sense that you were relatively young
and were working in the Bush administration. You were given the
highest possible rating by them. And you have been there now in
a less legal capacity and a few new members decided to give you
the qualified rating instead of well qualified rating, but I do
not think that is a big issue.
In fact, I would quote Mr. Tober, Stephen Tober, the
Chairman of the Committee on the Judiciary. This is what he
said to me in a telephone conversation. He said this: ``Let me
underscore, we did not find him unqualified. There's not a
breath in that report or any earlier report. We found him
qualified; minority, well qualified. What I said at the end is
what in fact many people said, that he has a solid reputation
for integrity, intellectual capacity--a lot of people refer to
him as brilliant--and an excellent writing and analytical
ability. Those are great skills to bring to the court of
appeals. There's no question about that.''
You wouldn't object to them saying that about you, would
you?
Mr. Kavanaugh. As I said, Senator--
Senator Sessions. We will pass over that.
Then he went on to say this: ``He is found to have high
integrity. He is found to be brilliant. He is a very skilled
writer and legal analyst. He has those components. He has those
skills that will serve him well, certainly on a Federal
court.''
And then he goes on to say: ``It is true''--I think maybe
to Senator Hatch's question--``it is true there's not a single
not-qualified vote in the picture.''
So I think the ABA rating, whether it is as high as it
could be, and all of them did not vote you well qualified, the
highest possible rating, but they did rate you qualified and
the Chairman of the Committee gave some very interesting
insights, I think.
I would just like to note on the age question that you are
6 years older, I believe, than Judge Stapleton when he was
appointed to the bench, the court of appeals, and 6 years older
than Judge Kozinski when he was appointed to the bench, both of
whom you clerked for. I think the Chairman made that earlier.
And Justice Kennedy was appointed to the Ninth Circuit 3 years
younger than you are today. I think those are qualities that--I
think other qualities are at stake here.
Let me just say this about my thinking of how you evaluate
a nominee, that is, you consider the entire breadth of the
gifts and graces they bring to the job. And if a person has
less--I like a person who has been in private practice. I think
that is fine. But if a person does not have private practice or
a lot of--you were a partner in one of the country's best law
firms; that ought to be some private practice experience. But
whether you had a great deal of that experience or not, other
factors are considered in here. You were editor of the Yale Law
Journal, one of the editors of that. You clerked for two
circuit judges, both of whom have testified for you. The first
one said you should be a judge, he saw that in you when you
first clerked for him and advised you of that as a career path.
So you worked for two court of appeals judges. You sat at
the right hand of two judges who hold the very position you
will be holding today. And then you were given the rare honor
of clerking for a justice on the U.S. Supreme Court, Justice
Kennedy, a judge who is considered a moderate, middle-of-the-
road judge, I guess. You served under his leadership. So those
are things that I think are extraordinarily important.
And you served in the Solicitor General's Office of the
United States. That is the greatest law office in the world,
where you represent the United States before the Federal
appellate courts in the country arguing cases before the very
court that you would sit upon, as well as arguing cases before
the U.S. Supreme Court, an honor very few lawyers have.
So I think it is a good experience and extraordinary
academic record, Mr. Chairman, and I believe he should be
confirmed.
Chairman Specter. Thank you very much, Senator Sessions.
Senator Feingold arrived earlier but has departed. Senator
Leahy arrived later and is ranking, and Senator Leahy has
agreed he will yield to Senator Feingold.
Senator Leahy. Go ahead. After these tough, tough questions
that Senator Sessions has been asking, where the nominee just
sits there and is canonized, I am overwhelmed by that. So I
yield to Senator Feingold.
Chairman Specter. You should have been here earlier to hear
Senator Hatch's tough questions.
[Laughter.]
Chairman Specter. Senator Feingold?
Senator Leahy. He only asks tough questions of Democrats.
He coordinates the others.
Senator Sessions. Well, this is the second time around.
STTEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. I thank both the Chairman and the Ranking
Member. And I thank you, Mr. Chairman, for holding this
hearing. It was obviously the right thing to do, given that it
has been nearly 2 years since the first hearing and, frankly,
in light of Mr. Kavanaugh's incomplete responses to written
questions, even though he delayed providing those responses for
7 months.
Among those written questions were several questions that I
submitted concerning ethical issues that came up in connection
with the nominations of three judges who I believe Mr.
Kavanaugh assisted as part of his duties in the White House:
Charles Pickering, who received a recess appointment and
subsequently retired; and D. Brooke Smith and Ron Clark, who
are currently on the bench.
In his November 2004 responses, Mr. Kavanaugh essentially
refused to answer my questions. I wrote him a letter on Friday
explaining why I believe these questions are appropriate and
asking him to supplement his responses. Late yesterday I
received a response, not from Mr. Kavanaugh but from Mr.
Moschella at the Justice Department, that said the following:
``As you know, Chairman Specter has scheduled a hearing on Mr.
Kavanaugh's nomination on May 9, 2006. At that time, Mr.
Kavanaugh will be available to respond to questions from all
Senators on the Committee.''
Mr. Chairman, first, I would like to put in the record a
copy of my letter and Mr. Moschella's response.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Feingold. Thank you, Mr. Chairman.
Now, Mr. Kavanaugh, I assume you were consulted and
approved of Mr. Moschella's response. I hope that you will now
respond to my questions. Here is the first one for which I
sought an additional response.
During the Senate's consideration of Judge Charles
Pickering's nomination to the Fifth Circuit, the Judiciary
Committee learned that he solicited and collected letters of
support from lawyers who had appeared in his courtroom and
practiced in his district. It later became apparent that some
of these lawyers had cases pending before him when they wrote
the letters that Judge Pickering requested. Professor Stephen
Gillars of NYU Law School has written, ``Judge Pickering's
solicitation creates the appearance of impropriety in violation
of Canon 2 of the Code of Conduct for U.S. Judges. The
impropriety becomes particularly acute if lawyers or litigants
with matters currently pending before the Judge were
solicited.''
So, sir, my first question is this. Did you know that Judge
Pickering planned to solicit letters of support in this manner
before he did so? And if not, when did you become aware that
Judge Pickering had solicited these letters of support?
Mr. Kavanaugh. The answer to the first question, Senator,
is no. This was not one of the judicial nominees that I was
primarily handling. I became aware of suggestions of this sort,
I assume, at some time during the proceedings, probably when it
was raised. I don't know if it was raised in the media or
raised by the Senate in the first instance. Without commenting
on the facts and circumstances of that matter, because I really
don't know the facts and circumstances, when a judge asks a
lawyer who's got a case before him or her to do something, that
does put the lawyer in a very awkward position and makes it
difficult for the lawyer to say no. So just in terms of a
hypothetical situation, there is a situation there. Again, I
don't know the facts and circumstances of what was going on
there. I only heard about it, really, from either the media or
from when the members of this Committee were talking about that
issue.
Senator Feingold. Well, I would like to know if you think
that Judge Pickering's conduct was consistent with the ethical
obligations of a Federal judge.
Mr. Kavanaugh. Senator, I don't know if there's been fact
finding on what his conduct was. In terms of the hypothetical
situation of a judge asking a lawyer who has a case before him
or her to do something, I know that raises some questions.
Again, I don't know the facts and circumstances of what Judge
Pickering did. I've given you my general principle.
Senator Feingold. Well, it's a good general principle, but
the facts are pretty clear. I don't think he denied that he
solicited these letters and that these were individuals that
appeared before him. There was some debate about the
significance of it, but-- Am I off track in suggesting that it
looks like at least those set of facts, whether you think they
occurred in this case, would be a violation of the Code of
Ethics?
Mr. Kavanaugh. I hesitate to comment on another judicial
nominee. Again, Senator, I'm happy to state a general principle
that I believe in. Again--
Senator Feingold. Let's go with the general principle,
then. If a judge is up for nomination and he solicits letters
from lawyers who have cases before him, is it not the general
principle that that would be a violation of the Code of Ethics?
Mr. Kavanaugh. I think that raises some questions that
warrant some further questions to find out what happened.
Senator Feingold. Mr. Kavanaugh, I--my time is up. Thank
you.
Chairman Specter. Thank you very much, Senator Feingold.
The next questioner is Senator Cornyn.
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Mr. Chairman.
Welcome back, Mr. Kavanaugh.
Mr. Kavanaugh. Thank you, Senator.
Senator Cornyn. This is the second hearing 2 years,
roughly, after your first hearing, and we have learned a lot
has changed in your personal life.
Mr. Kavanaugh. Yes, sir.
Senator Cornyn. But I do not think a lot has changed in
terms of your professional record as it would relate to your
qualifications to serve on the D.C. Circuit.
Mr. Chairman, I have a statement that I would like to make
part of the record, without objection.
Senator Hatch. [Presiding.] Without objection.
Senator Cornyn. Thank you.
I want to ask a little bit about some of the questions that
you have been asked here today. The rationale given for a
second hearing that was requested is that there might be some
new information that would be revealed that might change the
minds of some of those who have previously expressed some
skepticism as to whether you should be confirmed or not. But I
think--this is my observation, not yours, but I think what we
have seen is part of what has become a fairly common practice
in the course of these hearings, and that is to ask you
questions, the nominee questions that they cannot or should not
ethically answer. And that, coupled frequently with demanding
documents which are not in your possession and which you cannot
produce because they are the subject of a privilege. And then
of course there is, of course, then the claim that you are
somehow too extreme, out of the mainstream.
Unfortunately, I do not think those are the kinds of
questions or the kind of approach that is designed really to
reveal very much in the way of information that is helpful to
us to make decisions, but rather part of a plan to try to
damage your nomination and to justify a No vote, or perhaps
even a filibuster of your nomination on the Senate floor. You
have been asked about everything from the Clinton impeachment
to torture to rendition policy to Judge Pickering. It strikes
me that, rather than finding out about your experience and
background and your qualifications as an individual, that there
has been some attempt to associate you with other issues with
which you have no knowledge and perhaps, as you say, have not
had any contact.
So I know that Chairman Specter had agreed to do this
second hearing based on the representation that there might be
some bona fide attempt to elicit information that would
actually change some votes and attitudes, but unfortunately I
do not see that happening in the course of this hearing so far.
I guess one can always hope.
Of course, as you know, I met you a number of years ago
when I was Attorney General of Texas and had the honor to
represent my State in an argument before the U.S. Supreme
Court. That was Santa Fe Independent School District v. Doe,
which involved a question of whether school children could
voluntarily offer a prayer or an inspirational saying before
school football games in Texas. And as you know, the Court
ultimately ruled against that voluntary student prayer in the
case. Chief Justice Rehnquist, in dissent, said that the
Court's ruling exhibited hostility to all things religious in
public life. And I am very concerned about that because I do
believe that the Founders thought that the posture of the
Government with regard to religious expression should be one of
neutrality, not hostility.
I realize as a lower court judge you are going to be bound
by the Supreme Court's precedents, but I wonder if you would
address the issue of religious liberty and religious speech
insofar as how you believe in your position as a circuit court
judge, how you would approach those issues.
Mr. Kavanaugh. Senator, if I were confirmed to be a D.C.
Circuit judge, I would of course follow the precedent of the
Santa Fe case. That case addressed a question that had been
left open in the Lee v. Weisman case in 1992. In that case,
there was a school-sponsored prayer at a graduation ceremony
where the Government was actually involved, and one of the
questions that was left open was what happens if a student or a
private speaker participates in a school event as a private
speaker. And in the Santa Fe case, I think the Court concluded,
based on the facts and circumstances of the case, that it could
be attributed to the school and so was a violation of the
Establishment Clause.
I think the overall area represents a tension the Supreme
Court has attempted to resolve throughout the years in terms of
facilitating the free exercise of religion without crossing the
Establishment Clause lines that the Court has set out for many
years now. I know that the Court in recent years has made clear
in a number of cases that private religious speech, religious
people, religious organizations cannot be, or should not be,
discriminated against and that treating religious speech,
religious people, religious organizations equally--in other
words, on a level playing field with nonreligious
organizations--is not a violation of the Establishment Clause.
In past years there had been some suggestion that treating
religious organizations the same way in the public square as
nonreligious organizations could sometimes be a violation of
the Establishment Clause. I think the Court's really gone to a
principle of equality of treatment does not ordinarily violate
the Establishment Clause--again, equality of treatment of
religious speech, religious people, religious organizations;
equality in the public square. That's been something we've seen
over the last, I'd say, decade or a little more.
The Santa Fe case, again, the issue there was that although
it was a private speaker, the Court found, based on all the
facts and circumstances, that it was attributed to the school
and therefore fell within the prohibition in Lee v. Weisman.
Chairman Specter. Thank you, Senator Cornyn.
Mr. Kavanaugh, we are almost to the 2-hour mark. Would you
care to take a break?
Mr. Kavanaugh. I'm OK, Mr. Chairman.
Chairman Specter. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman. Mr. Chairman, I
have an opening statement, which I will not make, but I would
like to put in the record.
Chairman Specter. Without objection, your opening statement
will be made a part of the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Leahy. I would also note for the record, in that, I
realize we have--the President wants to move forward Judge
Terrence Boyle, and I have suggested, in fact, call on the
President to withdraw Terrence Boyle's name. The North Carolina
Police Benevolent Association, North Carolina Troopers
Association, Police Benevolent Associations, South Carolina,
Virginia, the National Association of Police Organizations,
many other civil rights groups and others have opposed it. I
can think of an awful lot of reasons why he should withdraw it.
That is not in the province of what Mr. Kavanaugh has to worry
about, but I would hope, rather than go through a needless
exercise, that Terrence Boyle's name be withdrawn, especially
in light of the recent allegations of unethical conduct.
Mr. Kavanaugh, you are aware of the somewhat unique--we
originally understood there would be ABA to testify here today.
That had been agreed to, but apparently that was done by a
phone call Monday while most of us were out of town. Are you
aware of what transpired in that phone call?
Mr. Kavanaugh. Senator, I'm--
Senator Leahy. You have seen the transcript?
Mr. Kavanaugh. I have not read the whole transcript. I have
seen some excerpts of the transcript that were reported in news
articles, as well as other excerpts that I've seen.
Senator Leahy. I'd ask that the transcript be made part of
the record if it's not already.
Chairman Specter. Without objection, it will be made part
of the record.
Senator Leahy. They spoke of you as not having handled a
case to verdict; is that right; you never tried a case to
verdict, or have you?
Mr. Kavanaugh. That is correct, Senator. I have not been a
trial lawyer. I think I'm in the same boat there with people
like Chief Justice Roberts and Justice Breyer.
Senator Leahy. I am asking about you. We had a hearing on
Chief Justice Roberts. I voted for him for Chief Justice, and I
voted for him for the D.C. Circuit. I know Chief Justice
Roberts. You are not Chief Justice Roberts. You have your own
qualities, so let's just talk about you, if that is all right,
if you do not mind.
Mr. Kavanaugh. Senator, I have not tried a case to verdict.
I have been an appellate lawyer.
Senator Leahy. That was my question. They also said your
litigation experiences over the years was in the company of
senior counsel; is that correct?
Mr. Kavanaugh. I've argued many cases on my own, Senator
Leahy. I've argued in the Supreme Court of the United States.
I've argued in the Fifth Circuit. I've argued twice in the D.C.
Circuit Court of Appeals.
Senator Leahy. Did you do those as the sole person arguing?
Mr. Kavanaugh. Yes, Senator.
Senator Leahy. Thank you.
Mr. Kavanaugh. Senator, let me just add one thing. In one
D.C. Circuit case there were two counsel that argued on our
side, so I just want to be clear on that, but I also--I argued
for myself on--it was a Government attorney client privilege
case.
Senator Leahy. I was going to ask you about that, but you
clarified it. Thank you.
Why did you take 7 months to answer the written questions
you were given after your hearing last time?
Mr. Kavanaugh. Senator, I take responsibility for that, and
I'm happy to answer any additional questions.
Senator Leahy. Why did you take 7 months?
Mr. Kavanaugh. Senator, again, I take responsibility for
that, and--
Senator Leahy. Of course you take responsibility for it.
Obviously, they are your answers. But why 7 months?
Mr. Kavanaugh. Senator, if there was--I take responsibility
for that. I think I had a misunderstanding, which is my
responsibility. I'm happy to answer additional questions today
that you may have, or other members of the Committee may have.
Again, I take--
Senator Leahy. What was the misunderstanding?
Mr. Kavanaugh. Senator, I take responsibility for that.
Senator Leahy. Mr. Kavanaugh, we are not playing games. I
am just asking you a question.
Mr. Kavanaugh. Yes, Senator.
Senator Leahy. One of the--I will not go into one of the
ways one judge described your conduct in court. I began to
think that perhaps he was right. But I take responsibility,
fine. That is kind of a catch-all. Everybody says that. I just
asked you why? I mean is it that difficult?
Mr. Kavanaugh. Senator, my understanding was that the
timeline for the questions was to make sure they were in before
the end of the Congressional session because there was going to
be no further action on my nomination in the Committee. I met
that timeline. From a later letter that members of the
Committee, that you signed, it appears that I had a
misunderstanding of that, and I take responsibility for that,
and I'm happy to answer any questions you have.
Senator Leahy. What was your reaction--as Staff Secretary,
you see virtually every piece of paper that goes to the
President; is that correct?
Mr. Kavanaugh. On many issues, yes, Senator. Not
everything, but on many issues.
Senator Leahy. Did you see documents relating to the
President's NSA warrantless wiretapping program?
Mr. Kavanaugh. Senator, I learned of that program when
there was a New York Times story--reports of that program when
there was a New York Times story that came over the wire, I
think on a Thursday night in mid December of last year.
Senator Leahy. You had not seen anything, or had you heard
anything about it prior to the New York Times article?
Mr. Kavanaugh. No.
Senator Leahy. Nothing at all?
Mr. Kavanaugh. Nothing at all.
Senator Leahy. What about the documents relating to the
administration's policies and practice on torture; did you see
anything about that, or did you first hear about that when you
read about it in the paper?
Mr. Kavanaugh. I think with respect to the legal
justifications or the policies relating to the treatment of
detainees, I was not aware of any issues on that or the legal
memos that subsequently came out until the summer, sometime in
2004 when there started to be news reports on that. This was
not part of my docket, either in the Counsel's Office or as
Staff Secretary.
Senator Leahy. I have more questions. My time is up, and I
will save them for the next round.
Mr. Kavanaugh. Thank you.
Chairman Specter. Thank you, Senator Leahy.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Just on that last point, I gather that in the briefings to
the President by the CIA and other members of the intelligence
agency, there were a lot of things that did not come across
your desk, that they were given directly to the President; is
that correct?
Mr. Kavanaugh. That's correct.
Senator Kyl. I was not here, unfortunately, to hear the
introduction of you, but I was impressed by what was said. It
was written down for me, and I am very impressed that these
judges for whom you clerked would have such a high opinion of
you. Judge Kozinski, who is one of the finest judges that I
know, said that you were one of the finest clerks he has had,
and a breadth of mind and breadth of vision, and a great sense
of humanity. And I think Judge Stapleton, a judge's dream as a
law clerk, and that you understand the rule of precedent,
exceptionally well qualified in terms of experience, superb
candidate, and so on.
I think those are important because they represent the
opinion of someone for whom we have a great deal of regard, as
sitting appellate judges, of you, and I think that is an
important qualification.
There have been a couple of questions raised about this
matter of qualification, one, the ABA rating, and two, your
relative age. I just want to talk about a couple of those here.
As I understand it from Mr. Stephen Tober's statement, that
this entire difference between qualified and well qualified
boils down--and I will quote it from his statement, page 7,
``It is, at its most basic, the difference between the highest
standard and a very high standard.'' And so it seems to me that
for us to try to make some distinction, and somehow deem you
not qualified based upon that very fine distinction, is to
establish a standard that we have never applied in this
Committee in the past.
May I just ask you, how many of the people that rated you
were there again who either rated you qualified or well
qualified, and was there anyone who dissented from either of
those two rankings?
Mr. Kavanaugh. Senator, from the ABA ratings, there were 42
individual reviews conducted over the course of 3 years, and
all 42 found me well qualified or qualified to sit on the D.C.
Circuit.
Senator Kyl. So this seems to me, in terms of making a
decision on this Committee, a distinction without a difference.
I will just quote from page 9 and then move on to the next
point. After talking about your breadth of experience,
consistently praiseworthy statements, and so on, here is what
Mr. Tober said: ``The nominee enjoys a solid reputation for
integrity, intellectual capacity, and writing and analytical
ability.'' And it seems to me that that pretty well answers
that point.
Now, this matter of age is something that perhaps we should
take a look at. As was noted, several important nominees--
Justice Kennedy, appointed to the Ninth Circuit when he was 38;
Judge Kozinski, 35; Judge Stapleton, 35. I also note the
current chief of the Ninth Circuit, my circuit, Marie
Schroeder, 38 when she was appointed. Judge Sam Alito, age 40,
all younger than you are. But it seems to me that we could
actually take some solace from your age based upon the
experience in this Committee, Mr. Chairman. We have to look no
further than the distinguished Ranking Member of the Committee
and the senior Senator from Massachusetts and the second-
ranking member of this Committee to note that in all three
cases of Senator Biden, Senator Kennedy, and Senator Leahy--
Senator Leahy. We were elected.
Senator Kyl. Elected at the age of 30, 30, and 34. And look
what great things each of them accomplished from those early
beginnings.
[Laughter.]
Senator Schumer. May I interrupt? Each of them has almost a
lifetime appointment.
[Laughter.]
Senator Kyl. Well, we did not have any say in that.
Senator Leahy. My Republican State did.
Senator Kyl. And it certainly makes the point that at the
constitutional age, that is, the age at which the Constitution
says one must be qualified, we have elected to the U.S. Senate
and confirmed to the courts of appeals and even the U.S.
Supreme Court some incredibly qualified individuals who have
acquitted themselves very well, and I count all of the
colleagues whom I have mentioned here in that category. And,
therefore, it seems to me that if that is any precedent, we
have nothing but the greatest expectations for your service on
the court of appeals, and I am very proud to add my voice to
those who are in support of that nomination.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kyl.
Senator Brownback?
Senator Brownback. Thanks, Mr. Chairman, and welcome, Mr.
Kavanaugh. I appreciate your meeting with me. I think I am only
one of two people on the Committee now that were not on the
Committee when you previously--or the first time you came in
front of the Committee, and I appreciated your time that you
spent with me answering my questions. I appreciate the
information you provided to my staff, and that has been very
helpful in my decisionmaking process with you.
I want to ask a couple of questions that I find important.
You may have answered them in other types of settings, but I
wanted to look at--and they are general, but I think they are
the sort of thing that we on the legislative side need to get
out in the open for our decisionmaking--your view of the
Constitution and the issue of judicial restraint. These were
key items on Judge Roberts's and Judge Alito's hearings. They
are important going to a circuit court.
Just if you would--and you have probably answered this
already, and I apologize if you have and I have not heard it.
But just give me your view of the Constitution as a document
itself. Can you put yourself in a category? Do you have a view
that it is established as a living document, as a strict
constructionist of the Constitution itself?
Mr. Kavanaugh. Senator, I believe very much in interpreting
text as it is written and not seeking to impose one's own
personal policy preferences into the text of the document. I
believe very much in judicial restraint, recognizing the
primary policymaking role of the legislative branch in our
constitutional democracy.
I believe very much, as a prospective inferior court judge,
were I to be confirmed, in following the Supreme Court
precedent strictly and absolutely. Once as a lower court judge,
I think that is very important for the stability of our three-
level system for lower courts to faithfully follow Supreme
Court precedent, and so that is something that I think is very
important.
In terms of the independence of the judiciary, I think that
is something that is the hallmark of our judiciary, the
hallmark of our system that judges are independent from the
legislative branch and independent from the executive branch. I
think that is central to my understanding of the proper
judicial role.
So in terms of text, precedent, restraint, independence,
those are the kinds of principles that I think would inform my
approach to judicial decisionmaking were I to be confirmed.
Senator Brownback. Let me go specifically to the issue of
judicial restraint, if I could, on that particular area. I
believe it was Judge Roberts who noted that that is the--where
a number of us are concerned about areas that the court has
gotten involved in in recent years, and that that has really
led to the public's concern about the judiciary in general
because it keeps getting into more and more areas that many of
us thought were the proper purview of the legislative process
rather than the judicial branch. And so the judicial activism
charge then gets put forward.
Several have said, well, the key restraint on the judiciary
is the judiciary itself. And yet if the judiciary does not show
restraint on what cases that it brings up or what cases that it
takes, you know, the Congress is left to try to act on limiting
review by the courts to try to amend the Constitution, to
change the court interpretation, all of which are difficult
things to do.
There was a case recently--we just held the flag-burning
amendment that passed through the Subcommittee that I chair,
and that is in response to the Court saying that you can burn
the flag as a statement of free speech. And it was as a
response to a court that overturned a prior court opinion
saying you could not do it.
It is those sorts of things that I think really frustrate
the public, and then the issue of marriage that is coming up
that has been a longstanding issue for legislative process,
coming now, working through the court system.
Do you have a viewpoint on issues, say, as marriage and the
determination of the definition of that? Is that something that
the court should establish or is it left to the legislative
bodies?
Mr. Kavanaugh. Well, Senator, that is the kind of question
that, were I to be confirmed, could come before me, so I would
hesitate to talk about the specific issue.
In terms of your general principle about judicial activism,
I do think that some of the worst moments in the Supreme
Court's history have been moments of judicial activism, like
the Dred Scott case, like the Lochner case, where the Court
went outside its proper bounds, in my judgment, in interpreting
clauses of the Constitution to impose its own policy views and
to supplant the proper role of the legislative branch.
So I think in terms of judicial activism, that is something
that all judges have to guard against. That is something that
the Supreme Court has to guard against. And throughout our
history, we have seen that some of the worst moments in the
Supreme Court history have been moments of judicial activism
where courts have imposed their own policy preferences.
Senator Brownback. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Brownback.
Let me make an assessment here as to a potential second
round. Senator Leahy, do you care for a second round?
Senator Leahy. I do.
Chairman Specter. Senator Schumer?
Senator Schumer. Yes.
Chairman Specter. I infer that all those absent do not.
Senator Leahy. I would not infer. We will ask them on this
side.
Chairman Specter. Could you find out?
Senator Leahy. We are doing that right now.
Chairman Specter. Senator Hatch?
Senator Hatch. Frankly, I will pass for now.
Chairman Specter. Senator Cornyn?
Senator Cornyn. Mr. Chairman, my intention would be to
pass, but if questions come up during the questioning, if you
would give me an opportunity to followup on that. Otherwise, I
will pass.
Chairman Specter. That is a qualified pass. All right.
Senator Hatch. Same here. Qualified pass.
Chairman Specter. Qualified pass for Senator Hatch.
Well, we will proceed with the second round. I think we
will finish before 5 o'clock, as it appears to me, Mr.
Kavanaugh. You declined a break 20 minutes ago. You may
reconsider that without petition at any time you choose, if you
would like a break.
Mr. Kavanaugh. Thank you, Mr. Chairman. I am OK.
Chairman Specter. You are OK. OK, then you have established
a number of qualities without further comment.
[Laughter.]
Chairman Specter. Mr. Kavanaugh, on the second round, which
we begin now, I have noticed a reticence on your part to
criticize people, not necessarily a bad habit. You did not want
to criticize Karl Rove. You did not want to say how you would
vote on impeachment to criticize President Clinton. You did not
want to criticize Judge Pryor on Roe being an abomination. You
did not want to criticize Judge Bybee on the Bybee memo. You
did not want to criticize Mr. Manny Miranda. You did not want
to criticize Judge Pickering. You did not even want to
criticize the American Bar Association.
Now, I do not consider that--and you did not want to
criticize Justice Scalia or Justice Thomas. I do not consider
that necessarily a bad quality. Senators sometimes criticize
people. In fact, it is seldom when we do not. That seems to be
a stock in trade by the United States Senators, and perhaps
most people in public office. Maybe that is our calling really
in connection with our oversight responsibilities.
But let's take up the values behind your declination to
criticize. As to what Judge Pickering is alleged to have done--
never mind the hypothetical--would you ask lawyers to write
letters for you? If you were a judge sitting on their cases,
and you were under consideration for a higher court, would you
do that?
Mr. Kavanaugh. No, Mr. Chairman.
Chairman Specter. When you were asked about Mr. Manny
Miranda, the investigation is still ongoing, but there has been
considerable information about his having invaded the
Democrats' computer system and downloaded and used it for
partisan political purposes. Now, without characterizing it as
larceny, would you engage in that kind of a practice?
Mr. Kavanaugh. No, Mr. Chairman.
Chairman Specter. Would you sanction or participate in
torture?
Mr. Kavanaugh. No, Mr. Chairman.
Chairman Specter. Would you accept the principle that you
could inflict any amount of pain in order to get information,
as long as you were seeking information, no limit as to the
amount of pain you would inflict?
Mr. Kavanaugh. No, Mr. Chairman.
Chairman Specter. Would you engage in rendition, send a
suspect to a foreign country where torture was a practice, in
order to get information where you would not have to commit the
torture on U.S. soil?
Mr. Kavanaugh. No, Mr. Chairman. I do not want to--no, Mr.
Chairman. I think that is an issue I have not been involved in.
I do not know the facts and circumstances--
Chairman Specter. I know you have not been involved in it,
but now we are trying to find out your values.
Mr. Kavanaugh. Right, and I--
Chairman Specter. You have not criticized certain people,
and somebody may say you have not answered the question, so
let's go beyond the hypothetical or let's go beyond the
criticism, and let's take up the values, which is what I am
asking you now.
Now, you did not want to criticize Justice Scalia or
Justice Thomas, but when you were asked the question would you
consider yourself in their mold, you selected Justice Byron
White and Justice Robert Jackson.
Now, Mr. Kavanaugh, there may be some implicit criticism
there, but we will move beyond that. Why do you choose Justice
White? What are his qualities distinguished from Justice Scalia
or Justice Thomas that you choose Justice White?
Mr. Kavanaugh. I do not want to comment on currently
sitting Justices. The reason I chose Justice White is for
several reasons: He was a rock of integrity. His work as Deputy
Attorney General in the Department of Justice enforcing the
civil rights laws in the early 1960's I think was heroic. I
think his approach to judging, judicial restraint, in terms of
recognizing the primary policy--
Chairman Specter. OK. That is enough. Why did you choose
Justice Jackson?
Mr. Kavanaugh. I chose Justice Jackson--
Chairman Specter. You are not permitted to filibuster, Mr.
Kavanaugh.
Mr. Kavanaugh. Yes, Mr. Chairman.
Chairman Specter. Why did you choose Jackson?
Mr. Kavanaugh. I chose Justice Jackson because of, again,
his leading role in the Department of Justice, being involved
in the public--
Chairman Specter. That is enough, Mr. Kavanaugh.
Now, on independent counsel, you have some criticism of the
structure of independent counsel on the operation you had with
Judge Starr, and that is why you made some recommendations for
changes, right?
Mr. Kavanaugh. That's correct, Mr. Chairman.
Chairman Specter. And you have a value not to exclude
blacks, African Americans, on peremptory challenges. That is
your value.
Mr. Kavanaugh. Yes, Mr. Chairman, and I believe in proper
procedures to make sure that racial bias does not occur in the
courtroom in the jury selection process.
Chairman Specter. OK. My red light went on on round two. I
will yield now to Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
You know, the reason I kept asking about your taking 7
months to answer the questions and why I found your answer
inadequate, you did spend years vetting judicial nominees up
here and telling them what they were supposed to do and
everything else. And it is difficult to understand, having told
them how they are supposed to answer, that you did not
understand yourself.
Be that as it may, tomorrow the White House is finally
going to release its logs of visitors to the White House,
having been forced by a Federal judge to do so, something they
did not want to do. So I ask you this: Do you know Mr.
Abramoff?
Mr. Kavanaugh. I do not.
Senator Leahy. Have you ever met him or seen him at the
White House?
Mr. Kavanaugh. No.
Senator Leahy. Have you ever met Susan Ralston, who is Karl
Rove's personal assistant at the White House, formerly worked
as Mr. Abramoff's secretary?
Mr. Kavanaugh. She works in the Deputy Chief of Staff's
office today.
Senator Leahy. You know her.
Mr. Kavanaugh. I do know her, yes, sir.
Senator Leahy. Thank you. Have you ever met David Safavian?
Mr. Kavanaugh. No.
Senator Leahy. When did you learn that he was being
investigated for receiving illegal payments?
Mr. Kavanaugh. Senator, on that matter, I think whatever I
learned, I learned reading the newspapers.
Senator Leahy. So prior to the time it became public that
he was being charged, you did not know about it prior to that
time?
Mr. Kavanaugh. That's correct, Senator.
Senator Leahy. Have you ever met Michael Scanlon?
Mr. Kavanaugh. No.
Senator Leahy. When did you learn that he was being
investigated for criminal activities? These are all people from
the White House. That is why I am asking.
Mr. Kavanaugh. I don't think Michael Scanlon worked at the
White House. I could be wrong about that.
Senator Leahy. He was connected--well, go ahead. When did
you first learn of his--
Mr. Kavanaugh. Again, reading the newspapers is all I know
about that matter.
Senator Leahy. And what about the disclosure of the
identity of Valerie Plame?
Mr. Kavanaugh. I do not know anything about the facts and
circumstances of that matter.
Senator Leahy. So you did not do anything about it or were
not required to do anything about it? You did not do anything
about it?
Mr. Kavanaugh. I didn't know anything about the facts and
circumstances of that matter. I know it's under investigation,
of course, and it's not part of my responsibilities nor have I
learned about it.
Senator Leahy. So what you would know about it would be
what you have gotten from news sources, public sources?
Mr. Kavanaugh. What I've read in the newspapers, that's
correct. I do not know the facts and circumstances of that
matter. It is under investigation, of course.
Senator Leahy. Did you see documents of the President
relating to the NSA's warrantless wiretapping program?
Mr. Kavanaugh. No.
Senator Leahy. What about documents related to the
administration's policies and practice on torture? Did you see
any documents on that whatsoever, according to the President?
Mr. Kavanaugh. No. The only time I have learned of the
legal memos and have read some of them was after there was
public disclosure of some of those memos in the summer of 2004,
and I think in late 2004 or early 2005 I might have read some
of those memos. Of course, they had already been publicly
released at that point.
Senator Leahy. What about the Presidential signing
statements that indicated reservation on the part of the
President regarding provisions in law passed by the Congress?
You have seen those signing statements, have you not?
Mr. Kavanaugh. Signing statements come through the staff
secretary's office and also when I was in the counsel's office
before that, the counsel's office sometimes has a role in
signing statements. So signing statements traditionally for
past Presidents and this President identified potential
constitutional issues such as Appointments Clause, Presentment
Clause, or record--
Senator Leahy. These signing statements reserving the
President's rights of whether to follow or not follow some
parts of the law that he is signing, there have been more--you
said this has been done by past Presidents, but there have been
more done by this President than all past Presidents put
together. So let me ask you this: There was a great deal of
publicity here on the Hill and at the White House when the
President signed the so-called McCain amendment against torture
or inhuman treatment of detainees and prisoners, far less
fanfare a couple days later there was a signing statement to
basically reserve--the President reserved the right to
determine who is going to have to follow the law. Did you see
that signing statement?
Mr. Kavanaugh. I did see that signing statement, Senator.
Senator Leahy. What was your reaction to it?
Mr. Kavanaugh. Senator, the President has made clear that
the United States and this Government does not torture or
condone--
Senator Leahy. That is not my question. Do you believe that
the President had a right to reserve the exercise of parts of
that law that he might not like or to reserve its application
to certain people?
Mr. Kavanaugh. My understanding of that signing statement,
which is what the President's spokesman said a few days after
it was issued, and questions like the one you are raising were
raised to him, is that the President intends to follow that law
as written. He shook hands with Senator McCain in the Oval
Office about that. He has made clear and the President's
spokesman made clear that the administration will follow that
law as written, as I understand it.
Senator Leahy. Then why the--I mean, you saw the signing
statement. It passed through your hands. Why have a signing
statement then that basically reserves the President's right
not to follow the law if he does not want to? Why do that? Do
you have any qualms about these kind of signing statements?
Mr. Kavanaugh. Senator, that signing statement, as I recall
it, identified a number of issues other than the one you are
talking about. On the specific sentence that relates to the
question you are raising, I believe the signing statement
identified that this fell into something that the President has
authority on, to go back to Justice Jackson's Youngstown
concurrence that I--
Senator Leahy. Well, that also makes it very clear if there
is a law that the President's ability to act, as Justice
Jackson pointed out, is at its absolute minimum.
Let me ask you this: Does the President, if he is claiming
a Commander-in-Chief override or anything else, does he have
the authority to authorize or excuse the use of torture in
interrogations of enemy prisoners despite domestic and
international laws prohibiting the practice?
Mr. Kavanaugh. Senator, the President under Article II of
the Constitution has the constitutional responsibility to
follow the Constitution and the laws passed by the Congress of
the United States. That is part of his responsibility,
including--
Senator Leahy. In treaties we--
Chairman Specter. Let him finish his answer.
Senator Leahy. I want to make--
Chairman Specter. No, no. Let him finish his answer. He is
in the middle of an answer.
Senator Leahy. Go ahead.
Mr. Kavanaugh. Including the laws against torture reflected
in 18 U.S.C. 2340 and related provisions, including other
statutes passed by this body. That is part of his Article II
responsibility.
Senator Leahy. Including treaties that this country has
entered into, which have become the law of the land once we
have entered into them.
Mr. Kavanaugh. When the treaty is the law of the land, the
President has the constitutional responsibility to follow the
Constitution of the United States and the laws of the United
States.
Senator Leahy. So is your answer--and I do not want to
interrupt you from answering. Does the President have the
authority to authorize or excuse the use of torture in
interrogation of enemy prisoners when there are domestic or
international laws that we have entered into prohibiting the
practice?
Mr. Kavanaugh. Senator, the President has said that the
administration follows the law, that the United States does not
torture, that the United States does not condone torture, the
United States does not participate in torture. The President
has said that many times. He said he met with Senator McCain in
the Oval Office on one statute. The President's spokesman
clarified a question you raised and said that the President
intends to follow that law as written.
Senator Leahy. You know, it is funny, but I would think
differently after Abu Ghraib and after the rendition by
Americans under the authority of the Commander-in-Chief,
renditioning of people to countries knowing they would be
tortured.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Leahy.
Senator Hatch, anything further?
Senator Hatch. Let me take just a few seconds. You know, I
do not know why we needed this second hearing. In fact, I know
we did not. Everybody had a shot at the first hearing and,
frankly, I do not see any reason--and especially when I read
through this transcript of the ABA. Here is what they say:
``This nominee''--I am just reading a few of the accolades
toward you. And, by the way, I read the ABA description of each
member on the Standing Committee. A number of them are
Democrats, have very strongly supported Democratic Senators and
others, but found you not only qualified but well qualified.
Here is what they say: ``This nominee enjoys a solid
reputation of integrity, intellectual capacity, and writing and
analytical ability. The concern has been and remains focused on
the breadth of his professional experience and the most recent
supplemental evaluation has enhanced that concern. Taken in
combination with the additional concern of whether this nominee
is so insulated that he should be unable to judge fairly in the
future and placed alongside the consistently praiseworthy
statements about the nominee in many other areas, the 2006
rating can be seen in context.''
And then he said, when he was asked by Mr. Jensen whether--
you know, you provided a few negative quotes about Mr.
Kavanaugh in your written statement. He said, ``Let me
underscore, Pete, that we did not find him not qualified. There
is not a breath of bad in this report or the earlier report. We
found him qualified, minority well qualified. What I said at
the end is that, in fact, many people said he has a solid
reputation for integrity, intellectual capacity. A lot of
people refer to him as brilliant and an excellent writing and
analytical ability. These are great skills to bring to the
court of appeals.''
Now, these are just a few of the comments. Let me just give
a couple others.
Mr. Tober again for the Bar Association: ``The positive
factors haven't changed a whole lot. He is found to have high
integrity. He is found to be brilliant. He is a very skilled
writer and legal analyst. He has those components. And I have
said this before, but I think you were probably doing better
things. He has those skills that will serve him well certainly
on a Federal court.''
Well, I asked him, I said, ``I just wanted to mention that
I am correct in looking at the record that he has had some 24
people evaluate him, and not one has found him not qualified.''
Mr. Tober of the Bar Association: ``I don't know the number to
be 24. I would take your word on that. But it is true there is
not a single `not qualified' vote in the picture.''
I wonder what all the fuss is about. Frankly, to force a
second hearing--now, I acknowledge our colleagues have a right
to do that, but the fact of the matter is I have not heard
anything here today that would cause anybody to vote against
you who is fair. I have just got to say, you know, I came here
expecting to hear some bombastic things that might show that
they think you might not be qualified to sit on the court. My
gosh, your experience is virtually, other than the law firm
experience where you were a partner in Kirkland and Ellis, one
of the greatest law firms in the country, your experience has
been an experience of service. And everybody with whom you have
worked has felt the same way.
I want to put in the record, Mr. Chairman, a whole list of
letters from former Attorneys General, former Solicitors
General, your classmates, bipartisan, both Democrats and
Republicans, all of whom support you wholly and without
reservation.
Again, I just say, you know, I do not want to question my
colleagues. They have a right to ask these questions, and I
suspect they had a right to call for this second meeting. But I
have not heard anything here today that justifies having had
the second meeting.
Now, all I can say is that I am proud to support you
because I believe that the Bar Association is right here.
Thanks, Mr. Chairman.
Chairman Specter. Thank you, Senator Hatch.
Senator Schumer?
Senator Schumer. Thank you, and I would say to my good
friend from Utah, hope springs eternal. Many of us had hoped
that maybe Mr. Kavanaugh would answer some of the questions he
did not answer in the first hearing in the writings, but he has
not, in general.
In your written responses to Senator Durbin, you said--
well, let me first--you said you were not involved in the
nomination process either of Mr. Haynes or of Judge Bybee. Is
that right? You said that in reference to questions asked
before?
Mr. Kavanaugh. I did not have primary responsibility--
Senator Schumer. I did not ask that. Were you involved?
Mr. Kavanaugh. There is a Committee that meets to discuss
prospective judicial nominees.
Senator Schumer. Were you involved in those discussions?
Did you voice opinions about Haynes and Bybee at that
committee?
Mr. Kavanaugh. Senator, I don't remember the timing of
that, but if it was when I was in the counsel's office, it
would have come through the Judicial Selection Committee when I
was part of it, and it would have been part of the
committee's--
Senator Schumer. Can you give me a yes or no answer? Were
you involved in discussions involving the nominations of Haynes
or Bybee?
Mr. Kavanaugh. Senator, I believe those were when I was
still in the counsel's office, so the answer would be yes.
Senator Schumer. Thank you. I think before you--
Mr. Kavanaugh. I want to--
Senator Schumer. I would just like--I do not have the
record in front of me, but I would like to look at what you
said in reference to other people's questions there.
Here is what you said in your written questions in
response. You said, ``It is fair to say that all of the
attorneys in the White House Counsel's Office who worked on
judges, usually ten lawyers, participated in discussions and
meetings concerning all of the President's judicial nominees.''
Do you remember, were you supportive of the nominations of
Haynes and Bybee at the time?
Mr. Kavanaugh. I don't remember talking about them, but
they were members of the administration who people had worked
with and knew. So I don't--
Senator Schumer. You don't remember talking--
Chairman Specter. Let him finish his answer.
Mr. Kavanaugh. I assume it would have come up at a Judicial
Selection Committee meeting, and maybe I should explain how
that works, Senator.
Senator Schumer. I don't have that kind--unless I can have
a little extra time, and I would be happy to let him explain.
Chairman Specter. Well, that is part of the answer to the
question, Senator Schumer.
Senator Schumer. OK. Then I will--I will not--
Chairman Specter. You can have an extra 2 minutes. Go
ahead.
Senator Schumer. Well, that is very kind of you. Thanks,
Mr. Chairman. Go ahead.
Mr. Kavanaugh. Judge Gonzales, when he was counsel, set up
a Committee which included members of the White House Counsel's
Office as well as Justice Department officials. Within the
White House Counsel's Office, one of the associate counsel--
there were eight of us--would ordinarily be assigned to
particular States, particular circuit seats, so--
Senator Schumer. I understand that. I am just asking a--
Chairman Specter. Senator Schumer, let him finish his
answer.
Senator Schumer. Mr. Chairman, please, we have limited--all
right. Then I will ask for a third round, because there is
limited time here, and we know the general structure. It is
described in the writings. I am asking a specific question. I
am asking whether Mr. Kavanaugh can recall whether he was
supportive in those discussions. He said here, it is fair to
say, all of the attorneys participated in the discussions
concerning all of the President's judicial nominations. He is
brilliant. He went to every law school--or the best law
schools--Haynes and Bybee, no, he cannot. OK. I am now on that.
He said so he probably did.
I am asking if he remembers being supportive of either of
those nominees, not--you were not in charge of those nominees.
We have established that three times over. Were you supportive
in those general discussions, which you say all of the
attorneys participated in?
Mr. Kavanaugh. If both of them were nominated before July
2003, then the answer is yes.
Senator Schumer. Were you supportive?
Chairman Specter. Now he is right in the middle of an
answer, Senator Schumer. Let him finish.
Senator Schumer. That was not my question.
Mr. Kavanaugh. Then the answer would have been yes, because
it would have come before the Judicial Selection Committee.
Senator Schumer. Thank you. Now, let me ask you this.
Mr. Kavanaugh. Senator, if I may--
Senator Schumer. Please.
Mr. Kavanaugh. What question--the answer is yes, that they
would have been discussed at the Judicial Selection Committee.
Senator Schumer. I thought you were answering--so, please,
answer my question, not the general procedure. Were you
supportive of the nominations of Haynes and Bybee when they
came before that committee? Did you dissent? Did you say
nothing? Were you supportive?
Mr. Kavanaugh. With respect to--this is a line that I think
Judge Gonzales has maintained--with respect to individual
deliberations about prospective judicial nominees, that's
something that it's not appropriate for me to disclose in this
context.
Senator Schumer. And why is that?
Mr. Kavanaugh. Because the President benefits from having
candid and full discussions of his prospective judicial
nominees, and for those to be candid, there has to be a
guarantee of confidentiality there.
Senator Schumer. Let me ask you this. Do you ever recall
having dissented when a name was brought before this Committee
in the general discussions? Did you ever--to any of them, do
you ever recall having dissented and saying, ``I don't think
this person should be put forward?''
Mr. Kavanaugh. Senator, in all the deliberations that we've
had on judges and other issues, I've never been a shrinking
violet. I've always been--put forward my views, and you can
assume I put forward my views strongly. Once Judge Gonzales or
the President makes a decision, I also adhere to that decision.
Senator Schumer. I understand. I am asking you did you
dissent about potential nominees before--when the Committee
discussed it before the President made a decision? You were the
Committee that was vetting these people.
Mr. Kavanaugh. And I'm giving you an answer that says there
were a lot of deliberations. A lot of people would debate the
merits of nominations, and you can assume that various people
would disagree about particular nominees.
Senator Schumer. Did you disagree?
Mr. Kavanaugh. Senator, I don't want--
Senator Schumer. To any of these nominees, any of these
potential nominees when it came before the committee? You said
you are a person of strong opinion, which you are. I know that,
or my colleague, the Chairman, said you did not criticize this
list of people, but I have a long list of people you were free
to criticize, who happen to be at a different political
viewpoint. But that is not what I am asking here. I am asking
you, did you object and say, ``I don't think this person or
that person should be nominated,'' when you were in this
committee?
Mr. Kavanaugh. Senator, I do not think it's appropriate--
Senator Schumer. I am not asking about a specific person.
Mr. Kavanaugh. I do not think it's appropriate for members
of the President's staff to disclose whether they agreed or
disagreed with recommendations on particular judicial nominees.
Senator Schumer. Why is it not appropriate? There is no
privilege, I presume?
Mr. Kavanaugh. Because that would chill the candid
discussion that the President benefits from in hearing advice
about prospective--
Senator Schumer. You mean not to mention a specific name,
but to simply ask someone whether they dissented on any would
chill discussion? That if you admitted you dissented on some,
then people would be chilled from saying that? I did not ask a
particular name.
Mr. Kavanaugh. I'm saying that there were candid
deliberations in the judicial selection process.
Senator Schumer. We know that.
Mr. Kavanaugh. That there would be particular people that
would come up for consideration, and there would be debate
about them.
Senator Schumer. Did you dissent? Did you ever say in the
meetings, ``I don't think this particular person belongs on the
bench?'' That is not a question that should chill anybody.
That, in fact, I would argue, sir, is your obligation to answer
us. We do not have much of a record here. My colleagues here,
justifiably, have said you have had a lot of Government service
and that is what justifies you. We try to find out anything
about that Government service, and we do not get an answer.
Now, what is the harm to future deliberations of future
counsels, deputy counsels, by your saying I did or I did not
dissent and say certain people should not be on the bench,
other than you just do not want to answer the question for us,
and we cannot compel you, particularly when everyone on the
other side is going to vote for you no matter what you say.
Mr. Kavanaugh. Senator, let me try it this way. On a
previous question you had, I said I needed to check with the
counsel. I went back. Karl Rove does participate in the White
House Judicial Selection Committee.
Senator Schumer. Thank you.
Mr. Kavanaugh. On this question I would like also to go
back to the counsel, if I could, and I'll try to provide you a
timely answer in the same way.
Senator Schumer. But I have some followup questions I would
then ask you to answer as well. What was the basis of your
dissent? I do not want to ask about specific people. I would
like to. I think it is relevant, but there you might have an
argument. I would also like you then, if the counsel says that
it is OK to answer, that you tell us the basis for the dissent.
Was it temperament? Was it ideology? Was it this? Was it that?
Chairman Specter. Senator Schumer, you are 2 minutes over
the extended time. That means you are 9 minutes plus into this
questioning. How much longer would you like?
Senator Schumer. I would like another few minutes. I think
it is important. I cannot tell you. It depends where the
questions go, but I will not take a half hour. I will not take
much time.
Chairman Specter. Well, we are going to go--
Senator Schumer. I think this is--
Chairman Specter. You are almost up to 10 minutes. We are
going to go to this side for a minute or two, and we will come
back to you for another round.
Senator Schumer. Thank you. That is just fine. Thank you,
Mr. Chairman.
Chairman Specter. Senator Schumer, I do not want you to be
cut short.
When you say that everybody on this side is going to vote
in favor of Mr. Kavanaugh, if that raises any suggestion that
everybody on this side is not going to vote against him, that
might draw some raised eyebrows.
Senator Schumer. Mr. Chairman--
Chairman Specter. Now wait a minute. It is my 5 minutes.
Start the clock. I am on round 3, because Senator Schumer is
going to have round 3. And I will come back to you too, Senator
Coburn.
I have listened to your testimony very carefully, Mr.
Kavanaugh, but, frankly, it has been hard because there have
been so many interruptions. But let me plow this ground again
to see if I understand what you have said.
You have said that when you had a certain job up till 2003,
it was your responsibility to sit on a panel, a group of people
evaluating judges; is that right?
Mr. Kavanaugh. That's correct, Senator.
Chairman Specter. And then when you changed jobs, it was no
longer your responsibility to sit on a panel evaluating judges?
Mr. Kavanaugh. That's correct, Mr. Chairman.
Chairman Specter. And what date is that?
Mr. Kavanaugh. That would be early July 2003.
Chairman Specter. And that is when you changed from being
an Assistant White House Counsel to being Staff Secretary?
Mr. Kavanaugh. That's correct.
Chairman Specter. Now, you said that you are no shrinking
violet and you disagreed when you thought that there was
somebody up whom you disagreed with as to their qualifications.
Isn't that what you said?
Mr. Kavanaugh. Yes, Mr. Chairman.
Chairman Specter. And you would not specify which
individuals you disagreed on?
Mr. Kavanaugh. No.
Chairman Specter. You are not going to specify which
individuals you disagree on because you think that is part of
the deliberative process and it would unfairly impinge on
freedom of discussion there, or a chilling effect. Is that what
you have testified to, the Senator Schumer?
Mr. Kavanaugh. That's correct, Mr. Chairman.
Chairman Specter. Now, you also testified, as I could de-
garble it through the interruptions, that you do not remember
which people you disagreed on, or do you remember which people
you disagreed on? I am not asking you which ones they were, but
do you recall the specific individuals whom you thought should
not be submitted for a judgeship?
Mr. Kavanaugh. I think the question here is because there
can be multiple candidates for a particular judgeship that
would come up, and you may rank them differently from how the
ultimate decision comes out. That doesn't mean that the final
selection is a bad decision.
Chairman Specter. Are you saying then that you never said
as to any, ``I think they're unqualified,'' but only that you
ranked them?
Mr. Kavanaugh. Well, Mr. Chairman, I don't think I should
talk about that issue, at least without checking.
Chairman Specter. Well, let's explore that for just a
minute. We are talking about generalized procedures, and you
sit on a panel. This is while you are Assistant White House
Counsel. And you are asked about a number of possible nominees
for a judgeship. That is the procedure. Do you feel comfortable
answering that?
Mr. Kavanaugh. Yes. Yes, Mr. Chairman, that's the
procedure.
Chairman Specter. You have said that you are not a
shrinking violet and you speak your mind. So at some point you
either disagreed with the qualification of an individual, or
thought that they fell behind some others in terms of a ranking
system. Is that a fair inference or conclusion from your
testimony?
Mr. Kavanaugh. I think it is, Mr. Chairman. The one thing I
want to be careful about is talking about the qualifications of
an individual as opposed to ranking individuals. And that's, in
terms of the qualifications of an individual, some people are
more qualified than others. You may rank them differently from
how some other members of the committee, and you may disagree
with the ultimate selection. I'm sure that happens all the time
in any process like that.
Chairman Specter. I am sure it does too. That is what you
are testifying about. How many individuals were you
considering, many, many, many, were you not?
Mr. Kavanaugh. There have been hundreds, Senator, that have
been confirmed, and that means that there are many hundreds
more, because you assume for each one of those spots--
Chairman Specter. OK, so we are in the hundreds.
Mr. Kavanaugh. It could be over a thousand.
Chairman Specter. I am not asking you whom you disagreed
with or whom you ranked where. Do you remember among those
hundreds you confirmed and hundreds more you considered, among
those hundreds and hundreds of people, can you recall specific
individuals and rankings at this time, some 3 years after the
fact?
Mr. Kavanaugh. I certainly, Mr. Chairman, do not recall the
specific deliberations. I do recall some, of course, and that
is natural. It is also natural for there to be debate and
discussion on judicial nominations by the Judicial Selection
Committee. That's what we want so that the President gets the
best advice, the best recommendations of the staff.
Chairman Specter. OK. There are some that you recollect
because they stand out for one reason or another, right?
Correct?
Mr. Kavanaugh. That's correct, Mr. Chairman.
Chairman Specter. And you are not prepared to identify
those individuals because you believe that would restrict the
candid discussion. We have been through this on Chief Justice
Roberts, on the Solicitor General's Office. We have been
through it on a lot of decisionmaking processes, and I do not
want to get into the question about limited privilege here
today. I just want to understand your thinking as to why, among
those whom you remember, you will not identify. And as I think
you have testified in response to Senator Schumer, but I am not
sure because of the garbled nature with the interruptions, that
you will not be specific even as to those whom you remember
because you do not want to impinge upon that deliberative
process. Is that right?
Mr. Kavanaugh. That's correct, Mr. Chairman.
Chairman Specter. Senator Schumer, you have five more
minutes, and then we are going to wrap up your side.
Senator Leahy. I just wanted to respond to something that
you said, Mr. Chairman, this idea of a closed mind. I spent 17
months as Chairman of this Committee.
Chairman Specter. Let's start the clock if Senator Leahy is
speaking.
Senator Leahy. I spent 17 months as Chairman of this
Committee during President Bush's term. We moved 100 judges. We
have had two Republican chairmen since. Both are friends of
mine. Neither one of them have moved President Bush's nominees
through as fast as I did. So let's not talk about closed minds
or the partisanship. And we did this notwithstanding the fact
that the Republicans had pocket-filibustered 64 of President
Clinton's nominees in the few years leading up to that. We
Democrats moved 100 of President Bush's nominees through in 17
months, an all-time record.
Now, what I want to know is how do you approach recusal?
You have been a key member of the Bush-Cheney administration.
We have a President making sweeping claims, nearly unchecked
executive power. A number of these matters, issues are going to
come before the D.C. Circuit, assuming we have any check and
balances. The Congress has not done much in the way--with some
few notable exceptions, has not done much in the way of checks
and balances. The rest of America waits for the courts to do
that. How do you determine what you are going to recuse
yourself from? What about if it is a challenge to the
administration's practice of rendition, of sending people to
other countries to be tortured? What if it is about the
administration's interrogation practices in detention? What
about their wiretapping of Americans without warrants through
NSA? Where do you recuse yourself?
Mr. Kavanaugh. Senator, if I am confirmed to the D.C.
Circuit, I will do the analysis under 28 U.S.C. 455. There are
some specific recusal obligations in Section 455(b), which I
would of course follow. There's also a more general recusal
prescription in Section 455(a), which talks about when a
judge's impartiality reasonably might be questioned. I would do
the analysis of that by looking at the precedents. There have
been other people who have gone from the executive branch to
the judicial branch, of course. I would do it by consulting
with my colleagues, and do it by looking at the facts and
circumstances of each particular case.
I think it's hard to make a recusal determination in the
abstract here--
Senator Leahy. Would you think if a question came up about
the administration's practice, the Bush-Cheney administration's
practice of rendition of people to other countries, would that
at least raise a red flag in your mind?
Mr. Kavanaugh. Senator, on recusal questions generally, I
don't think I can--because I haven't done the work necessary--
identify specific cases, and we don't know what those cases
might be where I might recuse. I can pledge to you a serious
process. I understand there could be issues. I would follow the
precedents, look at the precedents, consult with my colleagues.
Senator Leahy. What if it is questioning a policy or
practice with which you were involved at the White House,
either forming the policy or making the decisions; would that
be a pretty easy one?
Mr. Kavanaugh. Well, I think without knowing exactly where
you're saying, on 28 U.S.C. 455(b), there's a specific
prohibition that applies to Government lawyers who have worked
on certain matters, and depending on the hypothetical, if that
fell within that, I would have no hesitation about recusing.
And just generally, Senator, I would have no hesitation about
recusing. I just want to do the work and know the facts and
circumstances before I make any determination.
Senator Leahy. These are not dissimilar to questions I
asked Judge Roberts both when he was up for D.C. Circuit, and
the Supreme Court. In his case, I was satisfied with his
answer, and I voted for him, in his case.
I understand, Mr. Chairman, Senator Feingold is not able to
return for another round. He has written a followup letter to
Mr. Kavanaugh. I ask that that letter be made part of the
record.
Chairman Specter. Without objection it can be made part of
the record, but he is not seeking followup answers from the
witness, is he?
Senator Leahy. I think that this is--yes, there is a
specific one to which the nominee has expressed a willingness
to respond, so that is very specific. Mr. Kavanaugh has been
handed this. He has not seen it yet. The staff has--
Chairman Specter. I want all the questions for Mr.
Kavanaugh to be asked because as stated during our Executive
last week, it is the intention to vote on him on Thursday, and
he is going to stay here long enough within reason to answer
the questions.
Senator Leahy. Well, I would hope that he would look at
this, and I would hope that he might be prepared to answer. I
think it can be done fairly quickly.
Chairman Specter. Let me take a look at it first, and give
him a copy, and I will pass it on to him, and meanwhile we will
go on to Senator Coburn for a round of questions.
Senator Coburn. Thank you, Mr. Chairman.
Mr. Kavanaugh, does the president have--
Chairman Specter. But we are coming back to you, Senator
Schumer.
Senator Coburn [continuing]. An obligation to try to
preserve Presidential powers through signing statements? Is
that not the purpose for them?
Mr. Kavanaugh. Presidential signing statements have been
used throughout our history, Senator, and particularly in the
last four Presidents that I'm aware of, to identify specific
constitutional issues that can arise in provisions of statutes.
They're usually focused on things like the Appointments Clause.
Suppose there's a new board or commission and there's an
Appointments Clause issue. The Recommendations Clause, when
reports are required that might be inconsistent with the
Recommendations Clause. This is part of the conversation, the
dialog, that the executive and the legislative branch have on
issues like this through the years.
Senator Coburn. But it is an important function of the
president to elicit those areas of potential conflict on a
constitutional basis, and to put a statement from the sitting
President in regards to those. Is that not correct?
Mr. Kavanaugh. That is correct, Senator, and Presidents
have been doing that throughout our history.
Senator Coburn. So a reasonable man could believe somebody
would not necessarily believe in torture, but might put
something into the record on a signing statement that might be
related to preserve Presidential powers or appointments or some
other area, and not necessarily believing in torture, but be
castigated that they do believe in torture because they
happened to put that in, not for the purpose of torture, but
for the purpose of protecting and enhancing or--not enhancing--
protecting and securing what was there before in terms of
Presidential powers. Is that not--a reasonable man could not
think that?
Mr. Kavanaugh. Senator, Presidential signing statements, I
think, the Counsel's Office in particular in the Department of
Justice, seek to rely on the precedents of the executive branch
and legislative branch interaction, where there have been
issues identified, and when new legislation comes up, say an
Appointments Clause issue, a Presentment Clause issue, or
Recommendations Clause issue, to identify that kind of issue.
That's been done throughout our history, and I think it's
very traditional.
Senator Coburn. Would you think much of a President, who if
they just ignored not doing that, they just decided, well, that
is not important, I am not going to do that?
Mr. Kavanaugh. Senator, I think all the Presidents, at
least in modern times, have identified issues when they come
up. And again, it's part of the conversation, part of the
healthy back and forth between the executive and the
legislative when these kinds of issues come up.
Senator Coburn. But it is also done to preserve a point of
view, so that when it is looked at in the future, somebody can
understand what the debate was at that time; is that not
correct?
Mr. Kavanaugh. Exactly, Senator. Puts it on the record.
People know. It's an open process. Then there can be discussion
about issues that might be, for example, an Appointments Clause
problem with a new board or commission, then there can be
discussion back and forth. If there is a problem, it can be
fixed in a subsequent statute, for example.
Senator Coburn. Do you believe President Bush's statements
on torture?
Mr. Kavanaugh. President Bush has said the United States
does not torture, condone torture--
Senator Coburn. I know what he said. I am asking you do you
believe him?
Mr. Kavanaugh. Absolutely, Senator.
Senator Coburn. So you do not have any heartburn over his
signing statements in regard to anything if they are consistent
with what he said and what he believes?
Mr. Kavanaugh. That's absolutely correct, Senator. He has
stated that the United States will not torture, does not
condone torture, follows the laws against torture. He's made
that clear.
Senator Coburn. Thank you.
I yield back, Mr. Chairman.
Chairman Specter. Thank you, Senator Coburn.
Senator Schumer, you had a little over 10 minutes on an
opening statement, 6\1/2\ minutes on your first round, a little
over 10 minutes on the last round. I want to conclude by five
o'clock. You have five more minutes.
Senator Schumer. Mr. Chairman, it is a lifetime
appointment, and I think we should be allowed to ask questions.
You put people in a box. If he goes on, I do not get a chance
to ask all my questions. If I try to get to my answer by
cutting him short, you take some umbrage. I do not think that
is a fair way to proceed. OK?
Chairman Specter. Well, I do not cut short. I asked you not
to cut him short.
Senator Schumer. Well, then just give me the time that I
need instead of telling me we must end at five o'clock for a
lifetime appointment.
Chairman Specter. Well, your questions may exceed the
tenure of his appointment, Senator Schumer.
Senator Schumer. No. My questions are fair questions for
somebody who is going to have tremendous power. I think they
are relevant.
Chairman Specter. Let's put the clock back to 5 minutes,
and start in, and see how we do.
Senator Schumer. Thank you, Mr. Chairman. I appreciate it.
And I just make a couple of quick comments here.
First, I did not ask you, Mr. Kavanaugh, although Senator
Specter interpreted it that way, to name specific judges. I
asked you did you ever dissent--and I was explicit--not on
specific judges. And you said to me you would not be able to
answer that question until you checked with counsel. Is that
correct?
Mr. Kavanaugh. That's correct, Senator.
Senator Schumer. Did you then answer Senator Specter saying
you did dissent? Did you change that answer? That is what I am
trying to figure out here.
Mr. Kavanaugh. I think it goes, Senator, to whether there
was a different rank order in particular discussions, or
whether you thought someone was unqualified for the--
Senator Schumer. I never asked about a rank order. I asked
you--
Mr. Kavanaugh. It just came up.
Senator Schumer. Yes, Senator Specter did, but he was
saying what I asked you, and he was not interpreting what I
asked you. I asked you explicitly, was there ever a nominee--
you don't have to name him, and I was explicit--that you
thought should not go forward and you said that? Not where you
ranked him, but that you said should not go forward and you
ranked him. Now, you said to me, as I recall--we can check the
transcript--that you were not sure you could answer that
question, although I expressed befuddlement as to why because
we were not asking a specific name. Are you willing to say that
you blocked certain--not blocked--that you urged that certain
potential nominees not go forward, or do you want to go to
counsel and see if you can answer that question?
Mr. Kavanaugh. Senator, I'm sure I, in the course of 2\1/2\
years of debate over judges, I'm sure that all of us had
preferences that weren't reflected in the final decision. Is
that your question?
Senator Schumer. My question is did you, do you recall
having ever stated that you do not think X potential nominee
should move forward for whatever reason?
Mr. Kavanaugh. I'm confident, Senator, that on occasion, I
would have rank ordered them differently from how the--so that
the final decision was different from what my recommendation
would have been.
Senator Schumer. I did not ask that. I asked you did you
ever express, at these meetings of the 10 counsel, this person
should not be nominated? Do you want to go back and check your
recollection and answer in writing before tomorrow?
Mr. Kavanaugh. Can I just ask a followup?
Senator Schumer. Please.
Mr. Kavanaugh. Which is, do you mean should not go forward,
period, regardless of who else was in the mix? Is that the--
Senator Schumer. I mean, yes, that a person, regardless of
who is in the mix, there might be certain people who you did
not think deserved to be on the bench, whether someone else was
in the mix or not?
Mr. Kavanaugh. I think that kind of question goes to the
heart of the deliberative process that the President relies on
for picking judges, to talk about whether you disagreed with
the final selection, really, that's something the President--
Senator Schumer. OK. I am not asking an explicit name. I am
just asking whether that happened. And you cannot recall, you
cannot give me a yes or no answer to that?
Mr. Kavanaugh. Senator, again, I think that would go to the
heart of the deliberative process. As I understand it, it's
important to protect the deliberative process so that the
President gets the best advice. When the President makes a
decision to nominate someone, it defeats the process for
members of the staff subsequently to go out and say, ``Well, I
disagreed with the President on that,'' or even if you don't
name names, to say, ``I disagreed with some of his
selections,'' that's--
Senator Schumer. I think that is--
Mr. Kavanaugh [continuing]. Inconsistent with--
Senator Schumer. Is--
Chairman Specter. Let him finish, Senator Schumer.
Senator Schumer. I have 1:27 left here. Are you going to
let me ask a few more questions if I might?
Chairman Specter. How many?
Senator Schumer. I do not know. A few.
Chairman Specter. Finish your answer, Mr. Kavanaugh, if you
can remember where you were.
Mr. Kavanaugh. I think that's inconsistent with the
deliberative process that the President needs to rely on to
pick the best judges for the Federal judiciary.
Senator Schumer. I fail to see any reason. I think people
are put on the Committee to make that very decision, and I have
a lot of questions. It puts questions in my mind why you refuse
to answer that question. But let's move on.
You did say you would check with counsel earlier, and then
you came back to me about Karl Rove, and you said he was
involved in the process. OK. In what capacity was he involved?
How often did he consult with you and the other counsels about
prospective nominees?
Mr. Kavanaugh. Again, Senator, he's part of the committee.
The Committee meets weekly. I'm not sure how often he attended.
I know he participated though.
Senator Schumer. Was it more than once?
Mr. Kavanaugh. He was a regular participant.
Senator Schumer. A regular participant in the Committee of
10?
Mr. Kavanaugh. Well, it's actually much bigger than 10. The
committee--
Senator Schumer. But he was a regular participant in the
decisions?
Mr. Kavanaugh. In the committee process there's many more
than 10. I'd say it's about--
Senator Schumer. And what do you recall--
Chairman Specter. He is right in the middle of an answer,
Senator Schumer.
Senator Schumer. Go ahead.
Mr. Kavanaugh. I just want to be careful to make sure you
understood that the committee, at least when I was on it--I
don't--haven't gone since 2003--but included all the people in
the White House Counsel's Office plus several Justice
Department lawyers, plus people from other White House offices
like the Legislative Office on occasion it would attend. So
it's many more than 10. I don't know the exact number though.
Senator Schumer. And did he ever discuss politics relevant
to why this judge should go forward or that one should not,
like it is am important State to us, it is an important reason,
so-and-so wants him? Did that ever come up?
Mr. Kavanaugh. Senator, I think it's important not to
disclose the internal deliberations that might occur. Of course
we worked very closely with the Senators in each State. We've
worked closely in New York with you and Senator Clinton on
judicial nominations, and Judge Raggi, and many district court
nominations. We've worked well together with you, and so that's
of course part of the process, is, OK, the Senators in this
home State are suggesting so-and-so. Is that person the best
person? And then a back and forth of the home State Senators.
That's part of the process, and those discussions would often
occur at the--those kinds of discussions would often occur. And
so I think that's--
Senator Schumer. And Karl Rove was involved in those?
Mr. Kavanaugh. Karl Rove participated in the process.
Senator Schumer. OK. Let me ask you this. Who else was on
that--you said Karl Rove was a regular participant. Who else
who was not in the Counsel's Office was a regular participant?
Mr. Kavanaugh. Senator, I would think the Counsel's Office,
if the Counsel thought this was appropriate, could provide you
a list, if she thought it was appropriate, and I don't know the
answer to that question.
Senator Schumer. But you said you consulted her and it was
OK to mention that Karl Rove was part of the process?
Chairman Specter. Mr. Kavanaugh, answer the questions
within the scope of your recollection, not referencing anybody
else who can provide a list. I do not want to have any strings
outstanding. You are here today to answer questions.
Senator Schumer. I thank you, Mr. Chairman.
Chairman Specter. You answer the questions as to what you
know.
Mr. Kavanaugh. Mr. Chairman, Senator Schumer, I don't know
that it's appropriate for me to list everyone who's on the
committee. I can tell you the offices that are in it, the White
House Counsel's Office, the Department of Justice, offices that
work closely with the committee, Office of Legal Policy on
Judges, Karl Rove was involved. Chief of Staff's Office on
occasion. I think those are the people--if I'm leaving anyone
out, Senator Schumer, I'll make sure to--
Senator Schumer. Was there ever anyone outside of
Government who participated in these groups?
Mr. Kavanaugh. No.
Senator Schumer. And if you told us that Karl Rove
participated, is there any legal, imaginable, legal reason that
you couldn't tell us who else participated by name, not by
their offices?
Mr. Kavanaugh. Senator Schumer, I think I was saying that I
could tell you the offices. I don't know that I could remember
all the names, sitting here, of who was at the particular
meetings, but I told you the offices.
Senator Schumer. Anyone from outside those three offices
that you mentioned, the White House Counsel, the Office of
Legal Council, the Justice Department, anyone else from--Rove
was not part of those--anyone else from outside of those
offices?
Mr. Kavanaugh. Office of Legal Policy. Again, going back,
it was Office of Legal Policy at Justice, just to be clear.
Senator Schumer. Right, thank you.
Mr. Kavanaugh. Going back to my own time, from 2001 to
2003, and keeping in mind what the Chairman told me to testify
what I remember--
Senator Schumer. Well, the Chairman is trying to move your
nomination forward as quickly as possible. That is why he did
that.
Chairman Specter. Senator Schumer and I finally found an
agreeable point.
[Laughter.]
Senator Schumer. There are more than you think, but not on
judges.
Mr. Kavanaugh. If I'm leaving anyone out, I'll send it in
later, but Legislative Affairs, of course, on occasion because
we deal with the Senate staffs; the Chief of Staff's Office on
occasion--
Chairman Specter. When you send it in later, Mr. Kavanaugh,
anything you are going to send in later has got to be in by
tomorrow.
Mr. Kavanaugh. It will be in this evening, Mr. Chairman.
Chairman Specter. OK.
Mr. Kavanaugh. I just want to make sure I'm not leaving
anyone out, so the offices that I've mentioned, Deputy Chief of
Staff's Office on occasion would participate.
Senator Schumer. OK. Just one final line of questioning,
Mr. Chairman.
And this involves what you said last time, which is that
you testified that what the President is looking for is
nominees who have respect for the law and who understand the
legal system, and the role as a judge is different from one's
personal views. Do you believe that Justice Ginsburg and
Justice Breyer have a respect for the law?
Mr. Kavanaugh. Absolutely, Senator.
Senator Schumer. Why then do you believe the President
keeps talking about judges in the mold of Scalia and Thomas, if
the methodology, the rationale is respect for the law?
Mr. Kavanaugh. Senator, I think the President has talked
about a general judicial philosophy that he's looking for in
prospective judicial nominees.
Senator Schumer. But you indicated to me in the first
hearing that you did not think ideology played a role at all in
the selection of nominees, which I found incredulous.
Mr. Kavanaugh. Senator, in the first hearing, there was--I
don't think I explained clearly what ideology could entail. To
my mind, the President considers, of course, one's judicial
approach, whether someone believes in interpreting the law and
not imposing their own policy views. We do not ask your views
on specific cases or issues.
Senator Schumer. Understood.
Mr. Kavanaugh. Do not ask your views on policy issues that
might exist. The President looks and wants his staff to look
for people who share the kind of judicial approach he's
outlined, and of course, with this President, as with past
Presidents, most judicial nominees are of the same party--
Senator Schumer. So let me ask you this. If you believe
that Justice Ginsburg and Justice Breyer have a respect for the
law, as well as Justice Scalia and Justice Thomas, why are
there so few nominees who seem to have the judicial philosophy
of Justice Ginsburg and Justice Breyer, and many, many, many,
who have the judicial philosophy of Justice Scalia and Thomas
if ideology does not play a role in the selection? I am not
saying it is wrong that it does, and I am not saying that it--
but I was surprised that you, at your initial hearing, said it
did not. If respect for the law is the judicial philosophy,
that is what the President is looking for, then theoretically,
the panoply of nominees should be much broader in terms of all
kinds of things, their political affiliation, their judicial
philosophy, their views on a variety of issues, and you are
saying it did not play any role when you were there or others
were there. I find that hard to believe, given who the
President has sent before us.
And one other point I would make just parenthetically. The
reason I mentioned I sort of had an idea that that side of the
Committee would vote one way, was because they voted yes on
every single nominee the President has sent forward thus far.
There has not been one single dissent of the 240 nominees,
where on our side there have been a lot of yeses and a lot of
noes. So it would be harder, at least by past experience, to
judge that. That is why I said that.
But anyway, go ahead.
Mr. Kavanaugh. Senator, I want to be very clear that the
President has said that one's judicial philosophy does play a
role, does in fact play a role in the types of judges he's
looking for. Your approach to judging, whether you're someone
who believes in interpreting the law and not legislating from
the bench. He's made it very clear that does matter. What
doesn't matter is your view on--and what we do not ask--
Senator Schumer. I understand. You have said that, and I
accept that, that you do not ask about specific issues like are
you pro-choice or pro-life.
Mr. Kavanaugh. Correct.
Senator Schumer. But still, do you think that, for
instance, Justice Breyer and Justice Ginsburg have any less
respect for the law or are less likely to try to interpret the
law than say Justice Thomas or Justice Scalia?
Mr. Kavanaugh. Well, Senator, as a nominee for an inferior
court, I don't think I should be talking about the Supreme
Court Justices and trying to assess them. What I will say is
the President has--
Senator Schumer. How about between--
Chairman Specter. What he will say is? Let him finish his
answer.
Senator Schumer. He did not answer my question. That is why
I am trying to get an answer.
Chairman Specter. Well, that is his answer.
Senator Schumer. Go ahead. As long as we have time.
Chairman Specter. And you may have a followup question.
Senator Schumer. Thank you.
Mr. Kavanaugh. What I will say is the President has made it
very clear that he does believe in appointing judges who will
interpret the law as written, who will not legislate from the
bench, who will not seek to impose their own policy views. He's
made that very clear. So judicial philosophy is a part of the
judicial selection process. He said that many times, and I just
want to be clear on that.
Senator Schumer. Do you think that former Justice, the last
Justice Thurgood Marshall, and say, Robert Bork, have a
different view of what interpreting the law is, as opposed to
imposing their own views, or do you think they each do it the
same way?
Mr. Kavanaugh. I think Judge Bork has made clear that he
has a different interpretive approach than say, Justice
Marshall. For example, both in his testimony before this
Committee, and in books he's written since, Judge Bork made
clear he had a different type of approach than Justice
Marshall.
Senator Schumer. Even though both have a respect for the
law and understand the legal system?
Mr. Kavanaugh. Senator, I think--
Senator Schumer. Those were your words.
Mr. Kavanaugh. Respect for the law is a necessary
qualification, of course, but it does not encompass judicial
philosophy. That's a separate issue to look at in terms--
Senator Schumer. The reason I ask you this is we rarely get
an opportunity to question somebody who has sat on the
Committee in this administration who does this. But it is
obvious to me in what you say that clearly judicial philosophy
and ideology make a difference here, and you have more or less
said that. Nothing wrong with it. Democratic Presidents might
do it too. But that is clearly happening. Would you disagree
with that?
Mr. Kavanaugh. Judicial philosophy is part of what the
President looks at because he's made clear he wants to appoint
judges who interpret the law.
Senator Schumer. How is that different than the word
``ideology'' which I used to you at the first hearing?
Mr. Kavanaugh. Because I think ``ideology'' can encompass
four different things, and we need to be very clear what we're
talking about so there's no confusion. Ideology could encompass
political affiliation. It could encompass your general approach
to judging. It could encompass your specific view on particular
cases, and it could encompass your policy views. The first two
are the factors that are looked at in the final--
Senator Schumer. But if what you mean by ideology is
differing judicial philosophies, then clearly the President--if
you mean that--then clearly ideology enters into the selection
process, right?
Mr. Kavanaugh. Judicial philosophy matters, and if that's
how you're defining it, then judicial philosophy matters.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Schumer.
Mr. Kavanaugh, I do not want the record to be incomplete in
any way. Senator Feingold, rather, Senator Leahy handed to me a
letter that Senator Feingold purportedly wrote to you, dated
yesterday, marked ``hand delivery,'' relating to answers to
questions 3 through 7, which he had asked you before. Did you
get this letter? Aside from what was just handed to you, Mr.
Kavanaugh--look at me--did you get this letter?
Mr. Kavanaugh. Yes, sir.
Chairman Specter. Hand him the letter, would you, please?
Mr. Kavanaugh. I think this is a copy, sir. I was told
about this letter and that--
Chairman Specter. Now, never mind what you were told about.
Just answer my question. Did you get this letter?
Mr. Kavanaugh. I don't believe I got this letter, Senator.
I'm just making sure.
Chairman Specter. OK. Well, it is dated yesterday. Senator
Feingold was here. He could have handed you the letter, or he
could have asked you these questions. But he says he did not
ask you questions 3 through 7, so I am going to take his part
and ask his questions, although he should have. I do not want
any loose threads hanging out of this hearing. I will ask them
as best I can because his questions are not, with all due
respect, self-explanatory. The staff has marked up the record
on his written questions, saying that he had asked you all of
the parts of question 3.
Mr. Kavanaugh. That's correct.
Chairman Specter. And moving on to question 4, he asked you
about Judge D. Brook Smith's not resigning from a club which he
promised during a Senate hearing he would resign from. If you
promised to resign from a club, Mr. Kavanaugh, would you keep
that promise and resign from the club?
Mr. Kavanaugh. Yes, Mr. Chairman.
Chairman Specter. On to question 5. This also refers to
Judge Smith, but the relevant question is your values. And you
probably already covered this in connection with other
questions, but I will ask it to be sure that everything Judge
Feingold wants asked is asked. Would you conform to the
Judicial Disqualification Statute, 28 U.S.C. Section 455, and
recuse yourself if it is called for by that statute?
Mr. Kavanaugh. Yes, Mr. Chairman.
Chairman Specter. On to Number 6. There was a question
about whether Judge Smith complied with Advisory Opinion No.
67, which sets forth the standards for free trips to
educational seminars sponsored by, as he put it, ideological
organizations, such as the Montana-based Foundation, et cetera.
Will you comply with the requisite ruling with respect to
acceptance of free trips?
Mr. Kavanaugh. Yes, Mr. Chairman, I certainly will.
Chairman Specter. Would you go further, and decline to go
on free trips? There are quite a few of us around here who
decline to go on free trips because of the conflicts question
involved and the reporting. I made a speech at NYU several
years ago on a legal issue, took the train up and back, and
read about it in the newspaper forever. Would you consider
declining going on free trips?
Mr. Kavanaugh. That's my intention, Mr. Chairman, for the
reason you identify, that I would not go on any trips, and, you
know, basically would go by a pay my own way philosophy. That's
my intention.
Chairman Specter. Senator Feingold's last question, No. 7,
was related to a district judge, after confirmed by the Senate
to a district judgeship in Texas, he told the New York Times
that despite his confirmation, right now he is running for
State representative. If you are confirmed, will you run for
any other office?
[Laughter.]
Chairman Specter. Would that articulate a value that you
would avoid?
Mr. Kavanaugh. I will not run for any other office, Mr.
Chairman.
Chairman Specter. Wise answer. Now, back to a revisit on
dissenting and ranking. We played a tennis game here with
Senator Schumer questioning you and my trying to clarify it,
and Senator Schumer going back and asking some more questions,
some might say not clarifying it, but Senator Schumer would not
agree with that, so I will not press it. But let me review the
bidding here very briefly.
You engaged in a system where you ranked prospective
nominees where there were a number of people for a single
judgeship, correct?
Mr. Kavanaugh. That's correct, Mr. Chairman, through a
process. It may not be as formal as you're describing, but,
yes, basically.
Chairman Specter. In that process, were you ever called
upon to dissent, in Senator Schumer's terms, that is to say,
``Candidate X is unqualified as far as I am concerned,'' or did
you pursue the ranking, which you have already testified to?
Mr. Kavanaugh. Well, certainly with respect to candidates,
of course there would be certain candidates you'd say, ``I
don't think this person is suitable for the bench,'' when
you're talking about candidates. I think Senator Schumer was
talking about whether ultimate nominees, if there was dissent
on ultimate nominees.
Senator Schumer. If I might, Mr. Chairman?
Chairman Specter. I will yield to you, Senator Schumer.
Senator Schumer. Thank you.
Chairman Specter. For one question.
Senator Schumer. I was asking about potential nominees.
Were there potential nominees that you said, as it came before
this committee--not the ranking system, I have said it three
times. I think it is clear as a bell, even if my colleague does
not want to say that is true.
Chairman Specter. Are you saying who came before the
committee?
Senator Schumer. Who were discussed at this committee, who
you said--I am not asking names--who said, ``This person does
not belong on the bench, and I don't think we should recommend
to the President that that person be nominated.'' It is a very
simple, clear question that I have asked three or four times.
Chairman Specter. I do not--
Senator Schumer. Can I--
Chairman Specter. Go ahead.
Senator Schumer. And at one point you said to me that you
would have to ask counsel if you could answer that question,
and at another point I believed you said that you did not think
it was appropriate to answer that question, and now, in
reference to Senator Specter's question--maybe you did not know
it was potential nominees--you said--well, why don't you answer
it?
Mr. Kavanaugh. If it's talking about--
Chairman Specter. If you understand that question, go
ahead.
[Laughter.]
Mr. Kavanaugh. If we're talking about--
Senator Schumer. I think everybody understands that
question.
Mr. Kavanaugh. If we're talking about the general--
Chairman Specter. I do not care about everybody. I care
about him. Do you understand that question?
Mr. Kavanaugh. I now do. I think there might have been some
confusion. Of course, when there's a list of candidates that
come before the committee, you might say someone's not
qualified, of course, before the Judicial Selection Committee.
Some people just are not suitable for the bench. They might be
recommended by someone. For example, they get on a list of
recommended people that come from a Senator, from a Governor,
from a Member of Congress, and you might assess that person's
record and say, ``You know what? That person is just not
suitable for the Federal bench.'' Of course that happens.
Senator Schumer. Then may I ask a followup question, Mr.
Chairman?
Chairman Specter. Yes.
Senator Schumer. Give us some of the reasons. Did you ever
invoke the notion that their judicial philosophy was not
appropriate for a judge?
Mr. Kavanaugh. The President's made clear that judicial
philosophy matters, so if someone did not share the judicial
philosophy that the President has articulated, of course, that
would be a reason, yeah. Also--
Senator Schumer. And you would say that? You would say, ``I
don't think Mr. X or Ms. X shares the President's judicial
philosophy?''
Mr. Kavanaugh. I think the President's made clear that he
will not appoint judges who seek to use the bench to impose
their own personal--
Senator Schumer. I understand. So you would say that on
occasion when a nominee came before the committee?
Mr. Kavanaugh. Well, that's what the President wanted, so
we work for the President.
Chairman Specter. Can you give him a simple yes?
Mr. Kavanaugh. Yes.
Senator Schumer. Thank you. Thank you, Mr. Chairman. I
think the question was pretty clear.
And do you recall--and again, I do not need the name of the
nominee--an example of why this person was not appropriate in
terms of judicial philosophy?
Mr. Kavanaugh. If someone in our judgment or the assessment
of the committee or the assessment of the interviewers,
concluded that this person, in either direction, had policy
views that they couldn't separate from their judicial views,
who didn't seem to understand the difference that I think I've
articulated today between the judicial role and the legislative
role--and there are such people who sometimes get interviewed--
if someone doesn't understand that role, then that person would
be--could be deemed not suitable for--
Senator Schumer. And how often did that happen? And I do
not need an exact number or anything like it.
Mr. Kavanaugh. I think most of the candidates that members
of the Senate recommend, that Governors recommend, usually come
with the proper appreciation of the judicial role, but there
are occasions where people share a different philosophy, or
where people simply do not--someone might be interviewed who
simply does not seem to recognize the distinction, which is
critical in my judgment, between the policymaking role and the
judicial role, but that--
Senator Schumer. But you would never use the words, too
liberal or too conservative, or would you?
Mr. Kavanaugh. Well, I think too activist.
Senator Schumer. Would you? You would say too activist?
Mr. Kavanaugh. If someone doesn't understand the judicial
role and you would say that person believes in judicial
activism and not judicial restraint, and the President's made
clear to us and made clear to the American people, that he's
looking for people who believe in judicial restraint to be
judges. And, of course, that person wouldn't fit what the
President told us to look for.
Senator Schumer. So you would occasionally say somebody
would be too activist, in your opinion, to meet the President's
criteria?
Mr. Kavanaugh. Well--
Chairman Specter. That is what you are saying, Mr.
Kavanaugh. Can you give him another yes?
Mr. Kavanaugh. I'll give him a yes, and say that's what the
President said to the American people--
Senator Schumer. I understand.
Mr. Kavanaugh. --twice--
Chairman Specter. OK, Senator Schumer.
Senator Schumer. Just one more question. Were there ever
people who were too activist from the conservative side as
opposed to the liberal side?
Mr. Kavanaugh. Yes.
Chairman Specter. This is your last question, Mr.
Kavanaugh. Did you say yes?
Mr. Kavanaugh. Yes.
Chairman Specter. Atta boy.
[Laughter.]
Senator Schumer. You can see why the Senator from
Pennsylvania was a very fine prosecutor. He is very good at
helping his witness.
[Laughter.]
Chairman Specter. All out in the open, all out in the open,
all transparent.
Senator Graham, you have been waiting patiently. I have
tabulated Senator Schumer's questions were 42\3/4\ minutes, so
you are limited now to 37\3/4\ minutes.
[Laughter.]
Senator Graham. I really do not have much to add, but that
will not stop me. I found it actually fascinating. I mean you
seem no worse for the wear. Senator Kennedy's staff has a good
question I think. Maybe I should not have said that, but I
think it is a good enough question I will make it my own.
Mr. Bybee, Judge Bybee, if you had known--well, you
repudiated the memo, you thought it was not good legal
reasoning; is that correct, the Bybee memo?
Mr. Kavanaugh. Yes. The administration has repealed that
memo, and I stated my own personal agreement with repealing the
memo.
Senator Graham. Would that have disqualified him, in your
opinion, from being a judge if you had known it?
Mr. Kavanaugh. Senator, I've drawn a line here today which
I think is important for maintaining the integrity of the
judicial selection process, not to talk about people who are
currently sitting judges or other judicial nominees by name. I
don't think that is appropriate for me to do.
Senator Graham. I will just end it and take my time. There
is a fine line between doing your job as a White House
counselor, being part of the judicial selection team and being
a judge yourself. There is a line between being advocate and
being a judge. I think you understand that line. And I think
the questions have been very, very good, to be honest with you.
And I expect President Bush to live up to his campaign promise
of picking strict constructionist, non-judicial activists as he
sees it. That is what the election was about. And if you have
been part of that weeding-out process to make sure somebody in
the conservative movement or the liberal movement does not get
on the court, then I think not only have you done a good job in
the White House, you fulfilled your obligation to the
President.
Now, your obligation is no longer to President Bush. Your
obligation is to those people that come before you like they
came before your mother. You are going to have a lot of
characters come before you in a courtroom where their case is
on appeal. And some of them you won't like, and some of them
you may feel close to philosophically.
If you could, just in a very short statement, tell me what
your job, what you will do with that responsibility, no matter
who the person is that comes before you. What is your job now?
Mr. Kavanaugh. Senator, if I were confirmed, I believe in
the absolute sanctity of ensuring the integrity of the--
sanctity and integrity of the judicial process, which means
treating all parties who come before the court equally. I think
I did that as a law clerk for the two Court of Appeals judges
and Justice Kennedy. I understand that function. That's really
central to the whole judicial role, equal justice under law. It
doesn't matter where you come from, it doesn't matter what you
look like, doesn't matter what your background is. When you
come into that courtroom, you have the right to present your
case, and if you're right on the law, you should prevail in
your case. It doesn't matter.
And that's the genius of our system. It's been part of our
system throughout our history, and if I were confirmed, I
pledge to you and to all the members of the Senate that I would
absolutely fall within that tradition.
Senator Graham. I look forward to voting for you. Thank
you.
Chairman Specter. Thank you very much, Mr. Kavanaugh. As
previously announced, we will proceed to a vote on Mr.
Kavanaugh on Thursday. I believe at this date--and I have
checked with staff, who have been listening attentively, as
have I--there are no outstanding questions for you to answer.
Gone over what Senator Feingold's letter said, and I believe
you have responded on the Karl Rove answer, and I believe all
the issues have been responded to.
I want to compliment you on your stamina. I will reserve
comments on your testimony until we meet on Thursday, when we
will discuss your nomination, Mr. Kavanaugh, but I do not think
there will be any disagreement in 3 hours and 27 minutes,
without having moved from the witness chair, of your stamina,
which is a tribute to your age and good health.
[Laughter.]
Chairman Specter. That concludes the hearing.
[Whereupon, at 5:27 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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