[Senate Hearing 108-878]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 108-878



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION


                             APRIL 27, 2004


                          Serial No. J-108-69


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................   146
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................   148
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    11
    prepared statement...........................................   151
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     7
    prepared statement...........................................   155


Cornyn, Hon. John, a U.S. Senator from the State of Texas 
  presenting Brett M. Kavanaugh, Nominee to be Ciruit Judge for 
  the District of Columbia Circuit...............................     4

                        STATEMENT OF THE NOMINEE

Kavanaugh, Brett M., Nominee to be Circuit Judge for the District 
  of Columbia Circuit............................................    13
    Questionnaire................................................    14

                         QUESTIONS AND ANSWERS

Responses of Brett M. Kavanaugh to questions submitted by 
  Senators Leahy, Kennedy, Feingold, Schumer and Durbin..........    93

                       SUBMISSION FOR THE RECORD

National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Director, Washington, D.C., letter..........   152



                        TUESDAY, APRIL 27, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Kyl, Sessions, Cornyn, Leahy, 
Kennedy, Feinstein, Schumer, and Durbin.

                       THE STATE OF UTAH

    Chairman Hatch. Good morning. I am pleased to welcome to 
the Committee today members, guests, and our nominee, Mr. Brett 
Kavanaugh, who has been nominated by President Bush to be 
United States Circuit Judge for the District of Columbia 
Circuit. We also welcome members of his family. I would note 
his father, Mr. Ed Kavanaugh, a long-time president of CTFA. We 
all know Ed. We know what a fine person he is and what a great 
individual he is, and we all respect him. So we want to welcome 
you, Judge, Ed's wife, the mother of Brett, who is a renowned 
judge, and we appreciate having both of you here.
    Before we turn to the nomination, I want to tell members of 
the Committee that I remain hopeful that we can continue to 
complete the work of the Committee on both legislation and 
nominees. I was disappointed that we were not able to 
accomplish more at the markup last week. Earlier this month, we 
did report five district judges and two circuit judges. So I do 
appreciate the Committee's efforts in that regard.
    Now, I remain concerned about the executive calendar and 
floor action. I remain hopeful that an accommodation on 
nominees can be reached and that floor action can be scheduled 
for those judges. The Senate has confirmed only four judges 
this year--all district court judges. By comparison, in the 
last Presidential election of 2000, with a Democratic President 
and a Republican Senate, seven judges had been confirmed by 
this point in the year, including five circuit court judges. 
Furthermore, we are way behind the pace of that election year, 
which saw a total of 39 judges confirmed. And we remain well 
behind President Clinton's first-term confirmation total of 
    So while we have made some progress in reporting nominees 
to the full Senate, the work of confirming judges remains. We 
presently have 29 judges on the executive calendar. Five 
circuit court nominees remain from last year on the executive 
calendar in addition to the six reported this year. Eighteen 
district nominees are available for Senate confirmation, 
including two holdovers from the last session. But we are 
making progress, and I thank all members for their support and 
ask for their continued cooperation.
    Now, today we will consider the nomination of Mr. Brett M. 
Kavanaugh. He is an outstanding nominee who has been nominated 
to the Circuit Court of Appeals for the District of Columbia. 
He comes to us with a sterling resume and a record of 
distinguished public service. Mr. Kavanaugh currently serves as 
Assistant to the President of the United States and Staff 
Secretary, having been appointed to the position by President 
George W. Bush in 2003. He previously served in the Office of 
Counsel to the President as an Associate Counsel and a Senior 
Associate Counsel.
    After graduating from Yale Law School in 1990, Mr. 
Kavanaugh served as a law clerk for three appellate judges, so 
he has extensive judicial experience as well: Justice Anthony 
M. Kennedy of the Supreme Court, Judge Alex Kozinski of the 
United States Court of Appeals for the Ninth Circuit, and Judge 
Walter K. Stapleton of the United States Circuit Court of 
Appeals for the Third Circuit. He served for 1 year as an 
attorney in the Office of the Solicitor General, where he 
prepared briefs and oral arguments.
    Mr. Kavanaugh served in the Office of Independent Counsel 
under Judge Starr, where he conducted the office's 
investigation into the death of former Deputy White House 
Counsel Vincent W. Foster, Jr. He also was responsible for 
briefs and arguments regarding privilege and other legal 
matters that arose during investigations conducted by the 
office. Mr. Kavanaugh was part of the team that prepared the 
1998 report to Congress regarding possible grounds for 
impeachment of the President of the United States.
    In addition to this extensive public service, Mr. Kavanaugh 
was also in private practice. As a partner at the distinguished 
firm of Kirkland and Ellis, one of the great firms in this 
country, he worked primarily on appellate and pre-trial briefs 
in commercial and constitutional litigation.
    Mr. Kavanaugh, as I have said, received his law degree from 
Yale Law School, where he was notes editor for the Yale Law 
Journal. He is a cum laude graduate of Yale College, where he 
received his B.A. degree.
    The American Bar Association has rated Mr. Kavanaugh as 
``Well Qualified,'' its highest rating. Let me remind everyone 
what that rating means. According to guidelines published by 
the American Bar Association Standing Committee on Federal 
Judiciary, ``To merit a rating of `Well Qualified,' the nominee 
must be at the top of the legal profession in his or her legal 
community, have outstanding legal ability, breadth of 
experience, the highest reputation for integrity and either 
have demonstrated, or exhibited the capacity for, judicial 
    I want to turn now to a few of the arguments which I have 
heard raised by a number of Mr. Kavanaugh's opponents and 
address some of the concerns I expect to hear today.
    First, is that Mr. Kavanaugh is too young and inexperienced 
to be given a lifetime appointment to the Federal bench, 
particularly to the important Circuit Court of Appeals for the 
District of Columbia. Now, there are many examples of judges 
who were appointed to the bench at an age similar to Mr. 
Kavanaugh, who is 39 years old, and have had illustrious 
careers. For example, all three of the judges for whom Mr. 
Kavanaugh clerked were appointed to the bench before they were 
39, and all have been recognized as distinguished jurists. 
Justice Kennedy was appointed to the Ninth Circuit when he was 
38 years old; Judge Kozinski was appointed to the Ninth Circuit 
when he was 35 years old; and Judge Stapleton was appointed to 
the district court at 35 and later elevated to the Third 
Circuit Court of Appeals.
    I think many of my colleagues would agree that age is not a 
factor in public service, other than the constitutional 
requirements. I would note that many in this body began their 
service in their 30s, if not barely age 30. Through successful 
re-elections, we have been benefited from a lifetime of service 
from such members of this body and members of the judiciary as 
    With regard to judicial experience, I would reiterate that 
Brett Kavanaugh has all of the qualities necessary to be an 
outstanding appellate judge. He has impeccable academic 
credentials with extensive experience in the appellate courts 
themselves, both as a clerk and as counsel, having argued both 
civil and criminal matters before the Supreme Court and 
appellate courts throughout this country.
    As I have pointed out with previous nominees, a number of 
highly successful judges have come to the Federal appellate 
bench without prior judicial experience. On this particular 
court, the D.C. Circuit, only three of the 19 judges confirmed 
since President Carter's term began in 1977 previously had 
served as judges. Furthermore, President Clinton nominated and 
the Senate confirmed a total of 32 lawyers without any prior 
judicial experience to the U.S. Court of Appeals, including 
Judges David Tatel and Merrick Garland to the D.C. Circuit.
    I would mention that I think the work in the Supreme Court 
and the Circuit Courts of Appeals that Mr. Kavanaugh has had, 
do qualify him highly, in addition to all the other 
qualifications that he has.
    Opponents will attempt to portray Mr. Kavanaugh as a right-
wing ideologue who pursues a partisan agenda. I have to tell 
you this allegation is totally without merit, and a careful 
scrutiny of his record will demonstrate otherwise. He is an 
individual who has devoted the majority of his legal career to 
public service, not private ideological causes. Within his 
public career, he has dedicated his work to legal issues, 
always working carefully and thoroughly in a professional 
    In short, Mr. Kavanaugh is a person of high integrity, of 
skilled professional competence, and outstanding character. He 
will be a great addition to the Federal bench, and he has the 
highest rating that the American Bar Association can give. And 
all of that stands him in good stead.
    So I look forward to hearing your testimony and any 
responses that you might make to questions from the esteemed 
members of this Committee.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Now I will turn to our acting Ranking Member at this time, 
Senator Schumer, for any remarks that he would care to make, 
and then we will turn to Senator Cornyn, who will introduced 
Mr. Kavanaugh. But first I would like to introduce your 
fiancee. I will have you do that for us. Why don't you do it 
right now?
    Mr. Kavanaugh. My fiancee, Ashley Estes, from Abilene, 
Texas, is here, as well as my parents, Ed and Martha Kavanaugh.
    Chairman Hatch. Ashley, Ed, and Martha, we are so grateful 
to have all of you here. Ashley, don't let this affect you, 
this meat grinder that we go through around here. Just 
understand, okay?
    We will turn to Senator Schumer.
    Senator Schumer. Mr. Chairman, I will defer to Mr. Cornyn 
first to introduce him, and then I will speak.
    Chairman Hatch. That will be fine.


    Senator Cornyn. I appreciate that very much, Mr. Chairman 
and Senator Schumer, that courtesy. I do just have some brief 
comments I want to make by way of introduction.
    It is my honor to introduce to the Committee, to supplement 
those remarks already made by the Chairman, about a 
distinguished attorney and devoted public servant, Brett 
Kavanaugh. I have known Brett for several years and had the 
privilege of working with him on a case that I argued to the 
United States Supreme Court, so I have had the chance to 
observe his legal skills from up close. And I have every 
confidence that he would be an exceptional jurist on the United 
States District Court of Appeals for the D.C. Circuit.
    His distinguished academic and professional record confirms 
beyond all doubt that he possesses the intellectual ability to 
be a Federal judge. His temperament and character demonstrate 
that he is well suited to that office. Indeed, I can think of 
no better evidence of his sound judgment than the fact he has 
chosen to marry a good woman from the great State of Texas, who 
has just been introduced to the Committee. Brett deserves the 
support of this Committee and the support of the United States 
    As you know, Mr. Chairman, one-fourth of the active D.C. 
Circuit Court is currently vacant, and as you know, Mr. 
Chairman, the D.C. Circuit is unique among the Federal courts 
of appeals. Of course, it is an appellate court, not a trial 
court, and appellate judges do not try cases or adjudicate 
factual disputes. Instead, they hear arguments about legal 
issues. But unlike the docket of other courts of appeals, the 
docket of the D.C. Circuit is uniquely focused on the 
operations of the Federal Government. Accordingly, attorneys 
who have experience working with and within the Federal 
Government are uniquely qualified to serve on that 
distinguished court.
    Brett Kavanaugh is an ideal candidate for the D.C. Circuit. 
He has an extensive record of public service. For over a 
decade, he has held the most prestigious positions an attorney 
can hold in our Federal Government. He is, as you pointed out, 
a graduate of Yale College and Yale Law School. He served as 
law clerk to three distinguished Federal judges, including 
United States Supreme Court Justice Anthony Kennedy.
    Brett has also served in the Office of the Solicitor 
General representing the U.S. Government in cases before the 
United States Supreme Court. He served as a Federal prosecutor 
in the Office of Independent Counsel under Hon. Kenneth Starr. 
And as you pointed out, he personally has argued civil and 
criminal cases in the United States Supreme Court and courts of 
appeals throughout the country.
    And he has been called upon for his wisdom and counsel by 
the President of the United States, first, by his service as 
Associate Counsel and Senior Associate Counsel to the 
President, and now as Staff Secretary, one of the President's 
most trusted senior advisers.
    Mr. Chairman, I can think of few attorneys at any age who 
can boast this level of experience with the inner workings of 
the Federal Government. It is no wonder then that the American 
Bar Association has raised him ``Well Qualified'' to serve on 
the D.C. Circuit, the gold standard, as you observed.
    Ordinarily, a nominee possessing such credentials and 
experience would have little difficulty receiving swift 
confirmation by the United States Senate. Unfortunately, 
observers of this Committee will know that we are not living 
under ordinary circumstances today.
    I hope that this distinguished nominee will receive fair 
treatment. His exceptional record of public service in the 
Federal Government will serve him well on the D.C. Circuit 
bench. His wisdom and counsel have been trusted at the highest 
levels of Government. Yet I fear that it is precisely Brett's 
distinguished record of experience that will be used against 
him. I sincerely hope that will not happen. After all, it would 
be truly a shame to use one's record of service against a 
nominee, especially with respect to a court that is so much in 
need of jurists who are knowledgeable about the inner workings 
of the Federal Government.
    Indeed, many successful judicial nominees have brought to 
the bench extensive records of service in partisan political 
environments. I have often said that when you place your hand 
on the Bible and take an oath to serve as a judge, you change. 
You learn that your role is no longer partisan, if it once was, 
and that your duty is no longer to advocate on behalf of a 
party or a client but, rather, to serve as a neutral arbiter of 
the law.
    The American people understand that when your job changes, 
you change, and that people are fully capable of putting aside 
their personal beliefs in order to fulfill their professional 
duty. That is why this body has traditionally confirmed 
nominees with clear records of service in one particular party 
or of a particular philosophy.
    For example, Ruth Bader Ginsburg served as general counsel 
of the ACLU. Of course, it is difficult for me to imagine a 
more ideological job than general counsel of the ACLU, yet she 
was confirmed by an overwhelming majority of the U.S. Senate, 
first by unanimous consent to the D.C. Circuit and then by a 
vote of 96-3 to the United States Supreme Court.
    Stephen Breyer was the Democrats' chief counsel on the 
Senate Judiciary Committee before he, too, was easily confirmed 
to the First Circuit and then to the United States Supreme 
    Byron White was the second most powerful political 
appointee at the Justice Department under President Kennedy 
when the Senate confirmed him to the Supreme Court by a voice 
    Abner Mikva was a Democrat Member of Congress when he was 
confirmed to the D.C. Circuit by a majority of the Senate.
    Indeed, as many as 42 of the 54 judges who have served on 
the D.C. Circuit came to the bench with political backgrounds, 
including service in appointed or elected political office. All 
received the respect that they deserved and the courtesy of an 
up-or-down vote on the floor of the U.S. Senate, and all 
received the support of at least a majority of Senators, as our 
Constitution demands.
    So, historically, this body and this Committee have 
exercise the advise and consent function seriously and 
appropriately by emphasizing legal excellence and experience 
and not by punishing nominees simply for serving their 
political party. It would be tragic for the Federal judiciary 
and ultimately harmful to the American people who depend on it 
to establish a new standard today and declare that any lawyer 
who takes on a political client is somehow disqualified for 
confirmation, no matter how talented, how devoted, or how fit 
for the Federal bench they may truly be.
    Brett Kavanaugh is a skilled attorney who has demonstrated 
his commitment to public service throughout his life and 
career. He happens to be a Republican, and he happens to be 
close to the President. This is a Presidential election year, 
but the rigorous fight for the White House should not spill 
over to the judicial confirmation process any more than it 
already has. Last year, it was wrong for close friends of the 
President, like Texas Supreme Court Justice Priscilla Owen, to 
be denied the basic courtesy and Senate tradition of an up-or-
down vote simply to score political points against the 
President. And this year, it would be terribly wrong for Brett 
to be denied confirmation or at least an up-or-down vote simply 
because he has ably and consistently served his President, his 
party, and his country.
    And, with that, I thank you, Mr. Chairman.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Senator. Normally we would defer 
to the Democrat leader on the Committee, Senator Leahy, but he 
has asked that I first go to Senator Schumer, and then the last 
statement will be made by Senator Leahy, and then we will turn 
to you for any statement you would care to make, Mr. Kavanaugh.
    Senator Schumer?

                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. And, first, I 
want to welcome Brett Kavanaugh, his parents, and his fiancee 
to today's hearing. Something tells me this won't be the 
easiest or the most enjoyable hearing for them or for us. But I 
know that Brett appreciates what an important position he has 
been nominated to and how important this process is, and I know 
how proud his family is of him.
    Now, Mr. Chairman, it is really unfortunate we have to be 
here again on another controversial nomination. It is 
unfortunate because it is so unnecessary. We have offered time 
and time and time again to work with the administration to 
identify well-qualified, mainstream conservatives for these 
judgeships, especially on the D.C. Circuit. Instead, the White 
House insists on giving us extreme ideological picks.
    In this instance, the nomination seems to be as much about 
politics as it is about ideology, and I am sometimes a little 
incredulous. The President makes the most political of picks, 
and then my colleagues tell us not to be political. Tell the 
President, and maybe we could come to some agreement here 
together. While the nominations of William Pryor and Janice 
Rogers Brown and Priscilla Owen may be among the most 
ideological we have seen, the nomination of Brett Kavanaugh is 
among the most political in history.
    Mr. Kavanaugh is a tremendously successful young lawyer. 
His academic credentials are first-rate. He clerked for two 
prestigious circuit court judges and a Supreme Court Justice. 
And he has been quickly promoted through the ranks of 
Republican lawyers. Some might call Mr. Kavanaugh the Zelig of 
young Republican lawyers, as he has managed to find himself at 
the center of so many high-profile, controversial issues in his 
short career, from the notorious Starr Report to the Florida 
recount, to this President's secrecy and privilege claims, to 
post-9/11 legislative battles, including the victims 
compensation fund, to controversial judicial nominations. If 
there has been a partisan political fight that needed a good 
lawyer in the last decade, Brett Kavanaugh was probably there. 
And if he was there, there is no question what side he was on.
    In fact, Mr. Kavanaugh would probably win first prize as 
the hard-right's political lawyer. Where there is a tough job 
that needs a bright, hard-nosed political lawyer, Brett 
Kavanaugh has been there.
    Judgeships should be above politics. Brett Kavanaugh's 
nomination seems to be all about politics. If President Bush 
truly wanted to unite us, does anyone believe he would have 
nominated Brett Kavanaugh? If President Bush wanted to truly 
unite us, not divide us, this would be the last nomination he 
would send to the Senate. Anyone who has any illusion that 
President Bush wants to change the tone in Washington ought to 
look at this nomination. You could not think of another 
nomination, given Mr. Kavanaugh's record, more designed to 
divide us.
    Brett Kavanaugh's nomination to the D.C. Circuit is not 
just a drop of salt in the partisan wounds, it is the whole 
    The bottom line seems simple: This nomination appears to be 
judicial payment for political services rendered. There is much 
that many of us find troubling about this nomination. I look 
forward to hearing the nominee address our myriad concerns. I 
would just like to take a moment to lay out two areas that will 
be central to this discussion.
    First, for the first 2 years of the administration, when 
the administration was developing and implementing its strategy 
to put ideologues on the bench, Mr. Kavanaugh quarterbacked 
President Bush's judicial nominations. He spoke frequently at 
public events defending the President's decision to nominate 
such controversial jurists as Charles Pickering, Carolyn Kuhl, 
Priscilla Owen, and William Pryor.
    As you all know, many of us have been shocked and appalled 
by the extreme and out-of-mainstream ideologies adhered to by 
these and other nominees. I speak for myself, many of my 
colleagues, and a sizable majority of the American people when 
I say we do not want ideologues on the bench, whether too far 
right or too far left. Judges who bring their own agendas to 
the judiciary are inclined to make law, not interpret law, as 
the Founding Fathers intended. We want fair and balanced judges 
in the real sense of those words.
    Nonetheless, this administration has repeatedly bent over 
backwards to choose nominees who defend indefensible ideas and 
whose records are rife and replete with extreme activism.
    During his time in the White House Counsel's Office, Brett 
Kavanaugh played a major role in selecting these judges, 
preparing them for hearings, and defending their nominations at 
public events. In the course of defending the administration's 
record on judicial nominations, Mr. Kavanaugh routinely cited 
the five criteria used by President Bush in selecting judges. 
The five criteria he cites are: one, extraordinary intellect; 
two, experience; three, integrity; four, respect in the legal 
community and the nominee's home State community; and, five, 
commitment to interpreting law, not making law.
    I don't think I am stepping out on a limb when I say that 
every one of us up here sees those five criteria as outstanding 
factors to consider when choosing judges. But in the same 
public discussions of the President's judicial nominees where 
he cited these five criteria, Mr. Kavanaugh has routinely 
denied that the President considers a nominee's ideology. The 
record before us starkly belies that claim. It just does not 
hold water. If ideology did not matter, we would see 
nominations scattered across the political spectrum. There 
would be a roughly equal number of Democrats and Republicans, 
with a healthy dose of independents thrown in. We would see 
some nominees edge left of center while others tip right, while 
a few outliers would be at each extreme.
    Even a President who wanted to have only some ideological 
impact on the bench would have some balance. That is not the 
case with the nominations Brett Kavanaugh has shepherded.
    If you were to map the circuit court nominees on an 
ideological scale of 1 to 10, with 10 being very liberal and 1 
being very conservative, there is a huge number of 1s and 2s, 
some 3s, and only a smattering of 4s and 5s. Of course, 
ideology played a role in this process. Suggesting otherwise 
insults our intelligence and the intelligence of the American 
    For the last 3 years, I have been trying to get us to talk 
honestly about our differences over judicial nominees. We have 
pretty much stopped citing minor personal peccadilloes in the 
nominees' histories as pretext for stopping nominations that we 
really oppose on ideological grounds. The process is better for 
the honesty we have brought to it.
    Now, I hope we can have an honest dialogue today. Toward 
that end, I look forward to hearing Mr. Kavanaugh explain how 
it is possible that the President who has made some of the most 
extreme ideological nominations in history does not consider 
ideology when he makes those picks.
    A second area I expect we will get into is closely related 
to the first. As I noted at the outset, there is no question 
that Brett Kavanaugh is a bright and talented young lawyer. 
There is no question that for someone of his age he has an 
extraordinary resume and that he has achieved in every job he 
has held. But there are serious questions--and it is not the 
age; it is that he has never tried a case; he has a record of 
service after he clerked almost exclusively to highly partisan 
political matters--why he is being nominated to a seat on the 
second most important court in America.
    Why is the D.C. Circuit Court so important? The Supreme 
Court currently takes fewer than 100 cases a year. That means 
that the lower courts resolve the tens of thousands of cases a 
year brought by Americans seeking to vindicate their rights. 
All other Federal appellate courts handle just those cases 
arising from within its boundaries. So the Second Circuit, 
where Senator Leahy and I are from, takes cases coming out of 
New York and Connecticut and Vermont. But the D.C. Circuit 
doesn't just take cases brought by residents of Washington, 
D.C. Congress has decided there is a value in vesting one court 
with the power to review certain decisions of administrative 
agencies. We have given plaintiffs the power to choose the D.C. 
Circuit. In some cases, we force them to go to the D.C. Circuit 
because we have decided, for better or for worse, when it comes 
to these administrative decisions, one court should decide what 
the law is for the whole Nation.
    So when it comes to regulations adopted under the Clean Air 
Act by EPA or labor decisions by the NLRB, rules propounded by 
OSHA, gas prices regulated by FERC, and many other 
administrative agencies, the decisions are usually made by the 
judges on the D.C. Circuit. To most, it seems like this is the 
alphabet soup court since virtually every case involves an 
agency with an unintelligible acronym--EPA, NLRA, FCC, SEC, 
FTC, FERC, and so on and so forth. The letters, though, that 
comprise this alphabet soup are what makes our Government tick. 
They are the agencies that write and enforce the rules that 
determine how much reform there will be in campaign finance 
reform. They determine how clean clean water has to be for it 
to be safe for families to drink. They establish the rights 
that workers have when negotiating with corporations.
    The D.C. Circuit is important because its decisions 
determine how these Federal agencies go about doing their jobs. 
And in doing so, it directly impacts the daily lives of all 
Americans more than any other court in the country with the 
exception of the Supreme Court.
    So there is a lot at stake when considering nominees to the 
circuit and how their ideological predilections will impact the 
decisions coming out of the court and why it is vital for 
Senators to consider how nominees will impact the delicate 
ideological balance on the court when deciding how to vote.
    Perhaps more than any other court aside from the Supreme 
Court, the D.C. Circuit votes, when you study them, break down 
on ideological lines with amazing frequency. People who went to 
same law schools and clerked for the same courts somehow vote 
almost dramatically differently depending on who appointed 
them. I wonder why. Ideology. And this divide happens in cases 
with massive national impact.
    It is not good enough just to cite that someone went to a 
great law school and clerked for some very distinguished 
judges. We have an obligation to weigh how the ideological and 
political predispositions of those who are nominated are going 
to affect America. So we have a real duty to scrutinize the 
nominees who come before us seeking lifetime appointment to 
this court. And it is no insult to Mr. Kavanaugh to say that 
there is probably not a single person in this room, except 
perhaps Mr. Kavanaugh and his family, who doesn't recognize 
that there are scores of lawyers in Washington and around the 
country who have equally high intellectual ability but who have 
more significant judicial, legal, and academic experience to 
recommend them for this post.
    It is an honor and a compliment that, despite his relative 
lack of experience, this administration wants Brett Kavanaugh 
to have this job. But when a lifetime appointment to the second 
highest court in the land is at stake, the administration's 
desire to honor Mr. Kavanaugh must come into question.
    When the President picked Brett Kavanaugh, he was not 
answering the question of who has the broadest and widest 
experience for this job or who can be the most balanced and the 
most fair. He was rewarding a committed aide who has proven 
himself in some tough political fights.
    Would we have welcomed the renomination of Alan Snyder or 
Elena Kagan, now dean of Harvard Law School, two extremely 
well-qualified Clinton nominees who never received 
consideration from this Committee? Of course we would have. But 
we also would have welcomed the nomination of a mainstream 
conservative who has a record of independence from partisan 
politics, who has demonstrated a history of non-partisan 
service, who has a proven record of commitment to the rule of 
law, and who we can reasonably trust will serve justice, not 
just political ideology and political patrons, if confirmed to 
this lifetime post.
    Brett Kavanaugh is the youngest person nominated to the 
D.C. Circuit since his mentor, Ken Starr. If you go through the 
prejudicial appointment accomplishments of the nine judges who 
sit on the D.C. Circuit, you will see that Mr. Kavanaugh's 
accomplishments pale by comparison.
    Chief Judge Ginsburg held several high-level executive 
branch posts, including heading the Antitrust Division of DOJ, 
and was a professor at Harvard Law School.
    Judge Edwards taught at Michigan and Harvard law schools 
and was Chairman of Amtrak's Board of Directors and published 
numerous books and articles.
    Judge Sentelle had extensive practice as a prosecutor and 
trial lawyer, and experience as a State judge and a Federal 
district court judge.
    Judge Henderson had a decade in private practice, a decade 
of public service, and 5 years as a Federal district court 
    Judge 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 
    Judge Rogers had roughly 30 years of service in both 
Federal and State governments, including a stint as corporation 
counsel for D.C. and several years on D.C.'s equivalent of a 
State Supreme Court.
    Judge Tatel divided his nearly 30 years of experience 
between the public and private sectors, including a partnership 
at a prestigious law firm and service as general counsel of 
Legal Services.
    Judge Garland practiced for 20 years, held a law firm 
partnership, and supervised both the Oklahoma City bombing and 
the Unabomber trial while in a senior position at the Justice 
    And Judge Roberts spent nearly 25 years going back and 
forth between his law firm partnership where he ran his law 
firm's appellate practice and significant service in the 
Department of Justice.
    Like Mr. Kavanaugh, many of the nine current judges on this 
court held prestigious clerkships, including clerkships on the 
Supreme Court. But they all had significant additional 
experience, non-partisan experience, to help persuade us that 
they merited confirmation. And, of course, they are of widely 
different ideologies.
    If Mr. Kavanaugh had spent the last several years on a 
lower court or in a non-political position, providing his 
independence from politics, we might be approaching this 
nomination from a different posture. But he has not. Instead, 
his resume is almost unambiguously political. Perhaps with more 
time and different experience we would have greater comfort 
imagining Mr. Kavanaugh on this court. Suffice it to say, on 
the record before us Mr. Kavanaugh faces a serious uphill 
    I look forward to hearing his answers to the difficult 
questions we will pose.
    [The prepared statement of Senator Schumer appears as a 
submission for the record.]
    Chairman Hatch. Senator Leahy, we will now call on you, and 
then we will turn to Mr. Kavanaugh.

                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    I listened with interest to the Chairman's comments at the 
beginning about moving judges quickly or not. I would point out 
that we have confirmed more judges for President Bush so far in 
his term than all of President Reagan's first term, and 
President Reagan, of course, had a Republican majority 
throughout that.
    Now, I know that sometimes there have been some 
differences. During the 17 months the Democrats controlled the 
Senate, we did confirm 100 of President Bush's nominees. During 
the 22 months that the Republicans were in control of the 
Senate, I believe they confirmed about 73 or 74.
    One could say, if we just wanted to go by statistics, that 
the Democrats have been a lot better to President Bush on his 
judicial nominees than the Republicans have.
    I would like to pick up on something that Senator Schumer 
said, and it refers to another statement made about whether 
everybody should get votes. We have differing opinions. The 
Democrats have blocked a handful of judges from votes. The 
Republicans, when they were in charge during President 
Clinton's time, blocked 61 judges from having votes. And I will 
mention a couple of them, and Senator Schumer has, too: Alan 
Snyder and Elena Kagan.
    Alan Snyder was 54 years old when he was nominated to the 
D.C. Circuit. He had 26 years of experience as an appellate 
specialist at the firm of Hogan and Hartson. He was a graduate 
of the Harvard Law School. He held the prestigious post of 
president of the Harvard Law Review. He clerked with two 
Justices of the Supreme Court. But he was not allowed to have a 
vote by the Republican-controlled Senate, and the reason for 
that, he had represented Bruce Lindsey, who was an aide of 
President Clinton. And so I would tell my friend from Texas, he 
was told that because of his representation of a client he had 
had, he could not have a vote. And it was determined that he 
would not be allowed to have a vote by the U.S. Senate, even 
though I suspect he would have been confirmed had there been a 
    Elena Kagan was another one. She, too, went to Harvard Law 
School. She served as a Law Review supervising editor. She 
supervised 70 student editors, including Miguel Estrada. She 
went on to clerk for a Justice of the Supreme Court, Justice 
Marshall, and extraordinarily qualified. But she was told, I 
guess, because she had had some association working, I think, a 
job similar to yours at the White House that she should not be 
allowed to have a vote, and this Committee determined she would 
not be allowed to come to a vote. One or two Republicans 
opposed her, so she was never allowed to even be given a vote. 
Of course, to point out her qualifications, she now has what is 
arguably the most prestigious post in legal academia. She is 
dean of the Harvard Law School.
    I have made a suggestion to the White House--I realize that 
they may be disappointed that during Republican control of the 
Senate they have not moved as many of the President's nominees 
as the Democrats did during their control of the Senate, but I 
have made a suggestion to them of a way to move forward. As you 
know, Mr. Kavanaugh, because you worked in that area, we have 
the so-called Strom Thurmond rule, which has been followed by 
this Committee for years, which limits the number of nominees 
that you get within a few months of the nomination of 
Presidential candidates during a Presidential election year.
    I have suggested that the White House do what all six 
Presidents have done since I have been here, and that is to 
work out, as we always have, a list of those who may well be 
confirmed. Every President can determine how they want it. That 
is what President Ford did, that is what President Reagan did, 
what the former President Bush did, what President Carter did, 
and what President Clinton did. Maybe President Bush will 
decide to do the same. That is a decision he has to make, not 
this Committee.
    Senator Hatch and I worked with a number of these other 
Presidents in doing that. I would hope that we might be able to 
do it again. As we have demonstrated, in the 17 months that the 
Democrats were in charge of the Senate, we moved 100, both 
district court judges and circuit court judges, President 
Bush's nominees. During the 22 months that the Republicans were 
in charge, they moved another 70 or 73. I forget what the exact 
number is. So we have demonstrated our good faith. We have done 
this notwithstanding the 61 of President Clinton's nominees 
that were blocked--61 of them were blocked by the Republicans.
    Mr. Chairman, I appreciate you and Senator Schumer holding 
this hearing. I appreciate your courtesy, which I might say is 
typical of the courtesy you always show in having me make a 
statement. I will hold my time for questions.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you, Senator.
    Mr. Kavanaugh, if you will stand and be sworn. Do you 
solemnly swear that the testimony you are about to give will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Mr. Kavanaugh. I do.
    Chairman Hatch. Thank you. Mr. Kavanaugh, we will be happy 
to take any statement you would care to make at this time.


    Mr. Kavanaugh. Mr. Chairman, I don't have an opening 
statement. I am prepared to answer the Committee's questions. 
And Senator Schumer raised a number of important points. I look 
forward to answering his questions and the questions of the 
Committee today.
    I do thank, again, my parents and Ashley for being here and 
look forward to the hearing.
    [The biographical information follows:]

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