[Senate Hearing 109-435]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 109-435




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                              MAY 9, 2006


                          Serial No. J-109-73


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......    28
Cornyn, Hon. John, a U.S. Senator from the State of Texas........    39
    prepared statement...........................................    93
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    37
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................    24
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................    98
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   101
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     3
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    35
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1


Kozinski, Alex, Judge, U.S. Court of Appeals for the Ninth 
  Circuit, Pasadena, California, presenting Brett Kavanuagh, 
  Nominee to be Circuit Judge for the District of Columbia.......     8
Stapleton, Walter K., Judge, U.S. Court of Appeals for the Third 
  Circuit, Wilmington, Delaware, presenting Brett Kavanaugh, 
  Nominee to be Circuit Judge for the District of Columbia.......     7

                        STATEMENT OF THE NOMINEE

Kavanaugh, Brett, of Maryland, Nominee to be Circuit Judge for 
  the District of Columbia Circuit...............................    10
    Questionnaire................................................    13

                         QUESTIONS AND ANSWERS

Responses of Brett Kavanaugh to questions submitted by Senator 
  Feingold.......................................................    74

                       SUBMISSION FOR THE RECORD

American Bar Association, Stephen L. Tober, Chair, Standing 
  Committee on Federal Judiciary, Washington, D.C., statement and 
  attachment.....................................................    80

                      DISTRICT OF COLUMBIA CIRCUIT


                          TUESDAY, MAY 9, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:01 p.m., in 
room 226, Dirksen Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Kyl, Sessions, Graham, 
Cornyn, Brownback, Coburn, Leahy, Kennedy, Feinstein, Feingold, 
Schumer, and Durbin.

                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good afternoon, ladies and gentlemen. It 
is two o'clock and the Judiciary Committee will proceed with 
the nomination of Brett Kavanaugh to be a judge for the Court 
of Appeals for the District of Columbia Circuit.
    At the outset, we welcome Judge Walter Stapleton, Court of 
Appeals for the Third Circuit, and Judge Alex Kozinski, Court 
of Appeals for the Ninth Circuit. We appreciate your coming in 
    Mr. Kavanaugh is in an unusual circumstance of not having 
Senators to introduce him. He is a D.C.-Marylander, and as of 
this moment the Senators from his home State of Maryland are 
not available to make the introductions, and the Committee has 
asked Judge Stapleton and Judge Kozinski to do that since they 
have special knowledge of the nominee because he clerked for 
them. They have special insights into his background.
    Just a few words by way of introduction. Mr. Kavanaugh will 
take the witness stand and will be sworn, and will speak for 
himself, but I think it appropriate to make a few comments 
about his record and about my analysis of these proceedings.
    I have been surprised to see Mr. Kavanaugh characterized as 
not up to the job of judge for the Court of Appeals for the 
District of Columbia Circuit. I have taken a look at his record 
in some detail, and I had a long session with Mr. Kavanaugh, 
and have asked him all of the questions which have been posed 
on his nomination. The issue of the NSA surveillance program, a 
program that I have raised serious questions about, asked him 
about what, if anything, he had to do with it, and he will 
speak for himself in responding to that.
    I asked him about the issue of allegations of mistreatment 
of people on interrogation on the overlay of torture or 
rendition, and again, he will have an opportunity to speak for 
himself on that subject.
    At our Executive Committee session last week, the question 
was raised about Mr. Abramoff. He will have an opportunity to 
speak for himself about that question.
    In reviewing his record, I note that he was Yale College 
for his bachelor's degree, cum laude, and he was Yale Law 
School, where he was on the Yale Law Journal. Now, that takes 
some substantial academic qualification, something I know 
about, because I was there. And the only difference between Mr. 
Kavanaugh's tenure on the Yale Law Journal and being a high 
academic graduate from Yale Law School from my record is that 
when he was there, the competition was tougher. He is slightly 
younger than I am, and as the years have passed, Yale Law 
School has been more difficult to attain academic achievement, 
but that is something I know of firsthand.
    Then his record beyond law school was to clerk for Judge 
Stapleton, to clerk for Judge Kozinski, and they will speak for 
    Then he was in the Office of Solicitor General, where he 
argued one case before the Supreme Court of the United States, 
and if he were on the Judiciary Committee, it would put him in 
second place, not too bad a place to be on the Judiciary 
Committee on Supreme Court arguments. Then he has had a number 
of arguments on the Court of Appeals and a number of arguments 
before District Courts on legal issues.
    Then he served in the Office of Independent Counsel, and 
that was a highly controversial office, beyond any question. 
And Mr. Kavanaugh will describe his activities there, but he 
was not counsel, he was not deputy counsel. He was one of a 
tier below, where there were 10 associate or assistant counsels 
there. I know he will be asked about what his participation was 
there, and we will hear from Mr. Kavanaugh himself of that.
    He has written two distinguished legal pieces published in 
the journals, one on the Independent Counsel and suggesting 
changes, hardly the mark of an ideologue who works as 
Independent Counsel that has tunnel vision as to what they did, 
but has expressed ways to improve the operation of Independent 
Counsel, by showing an open mind and showing some progressive 
thinking as to utilizing his experience.
    Then he wrote an article on the issue of peremptory 
challenges for African Americans and has a--very difficult to 
use the words ``liberal'' or ``conservative'' or 
``progressive'' around here--but he is on the right side of 
that issue, an issue that I understand well. When I became 
District Attorney of Philadelphia, I did not need to have the 
Federal Courts tell me not to have peremptory challenge for 
blacks. I issued an instruction to my assistants that they 
could not ask for it, and finally the courts caught up with it. 
And Mr. Kavanaugh will speak to his views on that subject, but 
hardly the views of a cramped conservative, but he will 
describe his views on all of these matters.
    Then he went to Kirkland and Ellis, which is a very 
distinguished law firm. I do not how many people from the 
Judiciary Committee could be employed by Kirkland and Ellis 
today, let alone out of law school. Tough row to hoe. And he 
was taken in as a partner, not an equity partner--it is all 
complicated now with law firms--a non-equity partner, but that 
is an unusual call for a firm like Kirkland and Ellis or for 
any big firm of their nature because of how they evaluated his 
background and his experience.
    He has been Associate Counsel to the President, and now he 
is Staff Secretary to the President. And if he reflects the 
views consistent with the President, that is entirely 
consistent with having the President nominate judges. That is 
our system. That is decided by an election. But he will speak 
for himself as to where he stands in the spectrum as to being 
in the mainstream.
    Just a word about the American Bar Association rating. 
Early he was rated well qualified in the majority, and 
qualified with the minority camp. And then they reevaluated him 
2 years later, and they took some additional interviews, and 
not surprisingly, the interviews varied. And now he has been 
rated in the majority, qualified and the minority, well 
qualified. So you have him moving from well qualified to 
qualified, qualified to well qualified, and not a tinker's bit 
of difference really in terms of our evaluation, because at 
minimal he is qualified, and a great many people think he is 
well qualified.
    Senator Schumer.

                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. First let me 
thank you for holding this hearing, which many of us had 
requested, and we very much appreciate it.
    And second, I want to thank Mr. Kavanaugh for being back 
here. When we had our private meeting I asked him if he had any 
objections to come back to, what you good-naturedly referred to 
as the arena at our last hearing, and you said no, and very 
much appreciate that. I realize while this is not always the 
most pleasant exercise for a nominee, I think we can all agree 
it is a very important one, because we are talking about 
nothing less momentous than a lifetime appointment to what is 
generally regarded as the second-most important court in the 
land, a court of great importance to those of us who sit in the 
Senate or the House, because it has such jurisdiction over 
governmental issues, and years after this nomination, this 
court is going to influence a great deal what this Congress and 
future Congresses have done.
    Now, Mr. Chairman, you know how many of us have deep 
concerns about this nominee. Just yesterday they were given 
further voice in the form of the American Bar Association's 
followup report, which was made public yesterday, which 
explained why six members of the ABA Committee felt compelled 
to downgrade their rating.
    My concerns are twofold. First, although Mr. Kavanaugh has 
held several important and influential positions in Government, 
they have been almost exclusively political. There is no doubt 
that, Mr. Kavanaugh, you are a highly successful young attorney 
and your academic credentials, as certainly outlined by the 
Chairman, are top notch. But your experience has been most 
notable, not so much for your blue chip credentials, but for 
the undeniably political nature of so many of your assignments. 
For much of your career your considerable talents have been 
enlisted in partisan and polarizing issues. In short, you have 
been the ``go to'' guy among young Republican lawyers appearing 
at the epicenter of so many high-profile controversial issues 
in your short career, and it is only natural that such a record 
would give many Senators pause, particularly those of us on 
this side of the aisle.
    From the notorious Starr report, to the Florida recount, to 
the President's secrecy and privilege claims to post-9/11 
legislative battles including the Victims Compensation Fund, to 
ideological judicial nomination fights, if there has been a 
partisan political fight that needed a very bright legal foot 
soldier in the last decade, Brett Kavanaugh was probably there. 
That kind of record is not dispositive, to be sure, but it 
feeds an impression of partisanship that is, to put it mildly, 
not ideal for a nominee to a critically important lifetime post 
as a neutral judge.
    Now, for those who question the good faith of these 
concerns, who suggest that some of us are reflexively or 
unalterably opposed to any Republican involved in the 
impeachment of President Clinton or other political causes, let 
me mention two names, Tom Griffith and Paul McNulty. Mr. 
Griffith, whom I voted to confirm to a seat on the very court 
to which Mr. Kavanaugh aspires, was Senate legal counsel during 
impeachment; and Paul McNulty, who I voted to confirm--many of 
us, I think all of us--voted to confirm to be the No. 2 
official at the Department of Justice, was Chief Counsel and 
spokesman for the House Judiciary Committee Republicans during 
    Despite their blue-chip Republican credentials and 
participation in hot-button political issues, I was convinced 
that both of these men had substantial experience in 
professional and nonpartisan work, so that any concerns about 
inexperience, cronyism, and partisanship was, for me at least--
and I think for most of us on this side of the aisle--laid to 
    So, Mr. Chairman, we are all operating in good faith here, 
and we have demonstrated ourselves to be open-minded on the 
President's nominees to top judicial and executive posts. At 
last count, we have confirmed 240 of President Bush's nominees, 
and Democrats have voted for the vast majority of them.
    Then there is a second and related concern. Although Mr. 
Kavanaugh is extremely well credentialed, he is younger than 
and has had less relevant experience than almost everyone who 
has joined the D.C. Circuit in modern times. We would have 
fewer concerns if the President had nominated a mainstream 
conservative with a record of independence from partisan 
politics, who has demonstrated a history of nonpartisan service 
with a proven record of commitment to the rule of law, and who 
we could reasonably trust will serve justice, not political 
patrons or ideology if confirmed to this powerful lifetime 
post. Both Stephen Breyer and Ruth Bader Ginsberg, whose 
biographies are often cited at these proceedings, had 
substantial nonpolitical experience before they were nominated 
to appellate courts. Mr. Kavanaugh, if confirmed, I believe 
would be the youngest person on the D.C. Circuit since his 
mentor, Ken Starr. And if you go through the preconfirmation 
accomplishments of the active judges who currently sit on the 
D.C. Circuit, Mr. Kavanaugh's achievements, though impressive, 
are not on the same scale.
    Judge Sentelle, for example, had extensive practice as a 
prosecutor and trial lawyer, and experience as a State judge 
and as a Federal district court judge. Judge Randolph spent 22 
years with Federal and State Attorneys General offices, 
including service as Deputy Solicitor General of the United 
States and a law firm partnership. Judge Rogers had 30 years of 
service in both Federal and State Governments, including a 
stint as the Corporation Counsel for the District of Columbia, 
and several years on D.C.'s equivalent of a State supreme 
    Like Mr. Kavanaugh, many of the 9 active judges on this 
court held prestigious clerkships, including clerkships on the 
Supreme Court and involvement at the high levels of Government, 
that no doubt involved some partisan work. But they all had 
significant additional experience, nonpartisan experience, to 
help persuade this Committee that they merited confirmation.
    Now, of course, these concerns are echoed in a new report 
from the American Bar Association. They cannot be dismissed, as 
some of my colleagues suggest, as merely intemperate rants by 
Democrats on the Committee, and predictably, of course, some 
are already launching a campaign to denigrate the ABA, despite 
boasting of Mr. Kavanaugh's original rating 2 years ago, and 
attack the character of one of the ABA Committee members, and I 
hope we would refrain from doing that.
    According to the ABA report released yesterday, one judge 
who saw your oral presentation in court, Mr. Kavanaugh, said, 
``You were less than adequate,'' that you had been 
sanctimonious, and that you had demonstrated experience on the 
level of an associate. A lawyer in a different proceeding had 
this to say: ``Mr. Kavanaugh did not handle the case well as an 
advocate and dissembled.'' That is a pretty serious statement. 
According to the report, other lawyers--and note the plural--
expressed similar concerns, repeating in substance that the 
nominee was young and inexperienced in the practice of law. 
Still others--again note the plural--characterized Mr. 
Kavanaugh as, ``insulated,'' and one in particular questioned 
Mr. Kavanaugh's ability ``to be balanced and fair should he 
assume a Federal judgeship.'' And yet another individual said 
this. He said that Mr. Kavanaugh is ``immovable and very 
stubborn and frustrating to deal with on some issues.''
    These new concerns, apparently based on some 36 additional 
interviews, were so serious that six members of the ABA 
Committee changed their vote. On the phone call yesterday I 
asked Mr. Tober, the head of the Committee, was it rare for 
people to change their vote? And he said no. And I said, was it 
usual? And he said no. So it happens, but it does not happen 
all that often.
    We have other reasons for concern. I must say that I was 
disturbed by some of the answers I got from you, Mr. Kavanaugh, 
the first time around. On the issue of the role of ideology and 
judicial philosophy in the picking of judges by this 
administration, for example, you repeatedly insisted, totally 
implausibly, that such considerations played no role. That was 
simply not believable, and, frankly, put your credibility at 
issue. You began to clarify your statements in our meeting last 
week--and I hope we can have further dialog--but to say that an 
ideology had no effect, well, show me some nominees to high 
offices, high judicial offices who were Democrats, who were 
moderates, who were maybe strongly pro-choice--
    Chairman Specter. Senator Schumer, you are past 10 minutes. 
How much longer will you be?
    Senator Schumer. I just have another minute and a half, Mr. 
Chairman. Thank you.
    It was not believable, that is the bottom line. And in 
addition, Senators will want to ask you, among other things, 
about your role in setting of policy relating to executive 
power and the separation of powers. You admitted to me, for 
example, that in your job as Staff Secretary, you had input on 
the controversial issue of Presidential signing statements. 
There will be questions about that. I expect you will also get 
questions about your involvement, if any, in this 
administration's detention policies, torture policies and 
rendition policies. These issues, among many others, deserve 
further scrutiny, and given the scant record we have, I hope no 
one will question the good faith we have in asking them.
    So, Mr. Chairman, I would say that many of my colleagues 
and I have a sincere and good faith concern about this nominee. 
We feel that the nominee is not apolitical enough, not seasoned 
enough, not independent enough, and has not been forthcoming 
enough. Maybe this hearing will remove those concerns, but it 
is certainly necessary.
    Last week, Mr. Kavanaugh, I asked you to think of ways to 
alleviate these concerns, and I look forward to hearing your 
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Schumer.
    Senator Schumer. I just want to say Ranking Member Leahy 
could not be here at the beginning of this hearing, but will be 
here in about an hour.
    Chairman Specter. Thank you, Senator Schumer.
    One addendum to my comments. Mr. Kavanaugh also clerked for 
Supreme Court Justice Anthony Kennedy.
    Judge Stapleton and Judge Kozinski, it is our practice to 
ask our witnesses to be sworn at nomination proceedings, as we 
had a number of circuit judges sworn during the confirmation of 
Justice Alito. So with your consent, would you rise and take 
the oath?
    Do you solemnly swear that the testimony you will give 
before the Judiciary Committee will be the truth, the whole 
truth and nothing but the truth, so help you God?
    Judge Stapleton. I do.
    Judge Kozinski. I do.
    Chairman Specter. Let the record show both witnesses 
answered in the affirmative.
    Judge Stapleton, you are the first circuit judge for whom 
Mr. Kavanaugh clerked, so we will begin with you.

                      WILMINGTON, DELAWARE

    Judge Stapleton. Thank you. Mr. Chairman and members of the 
Committee, I appreciate the invitation to introduce Brett 
Kavanaugh. That is not because I think he needs any 
introduction to this Committee, but rather because I believe I 
am in a position to share information that is quite probative 
with respect to the important issue that is before you.
    I have been a Federal judge for over 35 years, the last 20 
of those years as a member of the Court of Appeals for the 
Third Circuit, and based on that experience, I believe I 
understand well what it takes to be able to serve well as a 
United States Circuit Judge.
    I have known Mr. Kavanaugh well for over 15 years. I first 
met him in March 1989 when I interviewed him for a clerkship. 
He had one of the most impressive resumes I have ever seen, and 
believe me, I have seen a lot of resumes. Among other things, 
as you noted, Mr. Chairman, he was editor of the Yale Law 
Journal, and at the point in time I met him, he had received an 
honors grade in every course he had taken at Yale Law School 
save one. Best of all, the professors who knew him well, 
assured me that--and I quote--``His work is uniformly of very 
high quality, thoughtful, independent-minded, yet very 
balanced, and always clearly written.''
    I have recently resurrected the notes I made after our 
lengthy personal interview, and they say, ``extremely talented, 
mature, confident yet modest, good sense of humor.'' Now, in 
other words, a judge's dream of a law clerk, and I didn't have 
to ponder the decision about hiring him for very long. And he 
certainly did not disappoint, and I will always treasure the 
time that we shared.
    We worked very hard and we were asked to resolve many 
intractable controversies. Facing challenges like that together 
promotes a bonding process in which the participants get to 
know each other awfully well, and we talked at length, not only 
about the law, and about the challenges we faced, but about his 
hopes and aspirations for the future.
    Toward the end of the clerkship I urged him to consider the 
judiciary as a career if he should ever have that opportunity, 
and I did that because I believed he had the makings of my kind 
of judge. There was no trace of arrogance and no agenda. He 
applied his legal acuity and common sense judgment with equal 
diligence to every case, large or small, undertaking his 
evaluation of each without predilection. His ultimate 
recommendations were based on careful case-by-case analyses of 
the facts of each case, and objective application of the 
relevant precedents. It was clear to me that he understood the 
crucial role of precedent in a society that's committed to the 
rule of law.
    Brett thanked me for my advice, but in characteristically 
modest fashion, said he doubted that he would get the 
opportunity to so serve.
    Now, Mr. Kavanaugh, of course, has had a variety of 
opportunities since that time, as I knew he would. Anyone with 
his talents would have many opportunities. As a result, in 
addition to his impressive legal skills, I believe Mr. 
Kavanaugh has the sophistication, the insight and maturity that 
comes from having served in a variety of professional 
positions, noteworthy not only because of their variety but 
also because of the awesome responsibilities that each carried.
    While I believe all of his professional experience would 
serve him well as a judge, a substantial portion of that 
experience renders Mr. Kavanaugh, I believe, exceptionally well 
qualified in terms of experience. I refer, of course, to the 
fact that in addition to his exposure to private practice and 
his service to the President, Mr. Kavanaugh has had substantial 
litigation experience on both sides of the bench. As you're 
aware, and as the Chairman has mentioned, he's worked with a 
one-and-one relationship not only with the two Court of Appeals 
Judges that are here this afternoon, but also with a Justice of 
the United States of the Supreme Court and a Solicitor General 
of the United States. As you are also aware, Mr. Kavanaugh's 
litigation experience has included appearance before all levels 
of our Federal courts.
    Now, I have stayed in touch with Mr. Kavanaugh, and have 
followed his career with interest since he left my chambers. I 
have heard nothing from, and I've heard nothing about Mr. 
Kavanaugh in the intervening years that has caused me to 
question in any way my original judgment about the kind of 
judge he would be if he could have that opportunity. His 
responsibilities, it's true, from time to time, have called 
upon him to make--to take positions on issues which reasonable 
minds could differ about. That's part of being a lawyer. But I 
believe he has consistently served his client well, and in a 
thoroughly professional manner.
    In sum, members of the Committee, I believe Mr. Kavanaugh's 
intelligence, his common sense judgment, his temperament, and 
his dedication to the rule of law, make him a superb candidate 
for the position of United States Circuit Judge, and I can 
commend him to you without reservation.
    Thank you for this opportunity to address the Committee.
    Chairman Specter. Thank you very much, Judge Stapleton.
    Judge Kozinski.


    Judge Kozinski. Good afternoon, Mr. Chairman, members of 
the Committee. It's a great pleasure and honor for me to be 
back. Thank you for inviting me to introduce my good friend, my 
former law clerk, Brett Kavanaugh.
    I probably do not need to take my full 5 minutes, because I 
can just say ``me too'' to everything that Judge Stapleton 
said, but let me just take a few minutes, a couple minutes, if 
I can, to give my own personal view.
    I'm glad, Mr. Chairman, that you mentioned that Brett 
Kavanaugh went to Yale and you and he had that in common. We 
have that in common too. He went to Yale and I have a son named 
    Judge Kozinski. I tried to get in, but I wasn't as 
fortunate. I got rejected.
    But I have had a number of clerks from Yale and Harvard and 
many other fine law schools, and among them, Brett Kavanaugh 
was one of the finest. I met him about the same time that Judge 
Stapleton met him, in March `89. We both interviewed him for a 
job for clerkship right out of law school, but Judge Stapleton 
was just faster making an offer. So I had to pick him up the 
following year, because he accepted a clerkship with Judge 
Stapleton first.
    I must tell you that in the time that I had Brett clerk for 
me, I found him to be a positive delight to have in the office. 
He's really bright and he's really accomplished and he's really 
an excellent lawyer. But most, virtually all, folks who qualify 
for a clerkship with a circuit judge these days have those 
    But Brett brought something more to the table. He first of 
all brought what I thought was a breadth of mind and a breadth 
of vision. He didn't look at a case from just one perspective. 
Like a good lawyer, like--Mr. Chairman, you were a prosecutor, 
you know this very well--you have to look at a case from 
different perspectives, not just one, and not early in the case 
take one perspective and then stick with it. Brett was very 
good in changing perspectives. Sometimes I'd take one position 
and he'd take the opposite, and sometimes we'd switch places. 
He was very good and very flexible that way.
    I never sensed any ideology or any agenda. His job was to 
serve me and to serve the court and serve the people of the 
United States in achieving the correct result at the court. And 
he always did it with a sense of humor and a sense of sort of 
gentle self-deprecation. He was always--my staff, my 
secretaries, his co-clerks all enjoyed having him and all 
enjoyed particularly the fact that he was not in any way 
pompous or in any way stuck on himself, but was always ready to 
help others or was ready to be friendly with others.
    And I think that's a very important quality in a judge. 
This may seem trivial and maybe seem like I'm mentioning things 
here that ought not to be mentioned in a committee, but part of 
what makes the job of judging different from other jobs is that 
it is not a mechanical process. It is ultimately a human 
process. You have to understand something about how people 
think, something about how people live, something about how 
people feel. And what I think Brett Kavanaugh brings to the 
table, what he brought to the table when he was my law clerk, 
is a sense of humanity and a sense of understanding.
    I will not speak to the question of confirmation or 
nonconfirmation. This obviously is something that is up to the 
committee. I can only say that I give Brett Kavanaugh my 
highest recommendation. I gave him my high recommendation when 
he applied to Justice Kennedy, my own mentor, and I continue to 
give him the highest recommendations.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Judge Kozinski.
    I have just one question for each of you. Judge Kozinski, 
how old were you when you were appointed to the Ninth Circuit?
    Judge Kozinski. I was 35 years old, Mr. Chairman.
    Chairman Specter. Judge Stapleton, how old were you when 
you were appointed to the Federal bench, first to the district 
    Judge Stapleton. Thirty-five years old.
    Chairman Specter. And may the record show that Justice 
Kennedy was appointed to the Ninth Circuit when he was 38 years 
    Anybody have any questions for the judges? Senator Schumer?
    Senator Schumer. Just one question for both. Since Mr. 
Kavanaugh clerked for each of you right after, a year after law 
school, have either of you had occasion to have him appear 
before you in your court as a lawyer.
    Judge Stapleton. I have not.
    Judge Kozinski. Nor have I.
    Chairman Specter. Thank you very much, Judge Stapleton. 
Thank you very much, Judge Kozinski. Appreciate your being 
    Judge Kozinski. My pleasure.
    Judge Stapleton. Thank you.
    Chairman Specter. Mr. Kavanaugh, would you step forward for 
the oath?
    If you would raise your right hand. Do you swear that the 
testimony you will give before the Judiciary Committee will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Mr. Kavanaugh. I do.
    Chairman Specter. Before beginning your testimony, Mr. 
Kavanaugh, I note an infant in the audience and what appears to 
be a mother, and both appear to be wife and child, and perhaps 
other family. Would you introduce them, please?


    Mr. Kavanaugh. Yes.
    Thank you very much, Mr. Chairman, for the opportunity to 
appear here before the Committee. I'm grateful to the President 
for nominating me to this important--
    Chairman Specter. Mr. Kavanaugh, there is a question 
pending, and the question was would you introduce your family.
    Mr. Kavanaugh. Yes.
    Mr. Kavanaugh. And I thank my family for being here. Since 
I last appeared before the Committee, there have been two major 
changes in my record, and they're both sitting behind me. My 
wife, Ashley Estes Kavanaugh, and my 8-month-old daughter, 
Margaret Murphy Kavanaugh. She's watched a little C-SPAN in her 
day. This is her first live Senate hearing, however. I'm not 
sure--as you've probably already noticed, Mr. Chairman, I'm not 
sure she's going to make it very long, but she wanted to be 
here for the start.
    My uncle, Mark Murphy, is here. And my brother-in-law, J.D. 
Estes, is here. My mom and dad are here, Martha and Ed 
Kavanaugh. They are, and have been, an inspiration to me. 
They've been married for 43 years, and I am their only child. 
I'm just very proud that they're behind me today.
    My mom in particular, in terms of career path, has had a 
profound influence on my career choices. Throughout her life 
she's been dedicated to public service. When she was in her 
20's, she taught public high school in the District of 
Columbia, at McKinley and H.D. Woodson high schools. She then 
decided to go back to law school in the 1970's and became a 
State prosecutor out in Rockville, Maryland. She was later 
appointed to the State trial bench by Governor Schaefer and 
then by Governor Glendening, in Maryland. She's instilled in me 
a commitment to public service and a respect for the rule of 
law that I've tried to follow throughout my career.
    Mr. Chairman, I'm a product of my parents; I'm also a 
product of my experiences, and I'd like to take a few minutes 
to share a few of those experiences and how I think they might 
shape how I would come to the bench as a judge.
    I attended Yale Law School in the late 1980's. It was a 
challenging yet collegial environment. It was a place that 
instilled a desire to make a difference. It was a place that 
encouraged public service. And while I was at Yale Law School I 
decided, as you know, to seek a judicial clerkship after my 
time there.
    I clerked for Judge Walter Stapleton on the Third Circuit. 
Judge Stapleton is a gentleman and a scholar. He's an 
experienced judge, and he's a great friend. If I am confirmed 
to be a judge, I will do everything in my power to bring to the 
bench the decency and the good judgment and the collegial 
manner of Walter Stapleton. And I thank him for being here 
    After I clerked for Judge Stapleton, I clerked for Judge 
Alex Kozinski on the Ninth Circuit. Judge Kozinski, as many of 
you know, has a passion for the law. When we started as law 
clerks, he told us we work for the people and we should 
consider ourselves on the job 24 hours a day, 7 days a week, 
365 days a year. And I can say from personal experience that 
Judge Kozinski lived up to that promise. We worked very hard, 
he was very thorough. I thank him for all he's done for me in 
my career and for coming here today from California. If I am 
confirmed to be a judge, I would seek to bring to the bench the 
thoroughness and the thoughtfulness and the dedication to the 
rule of law that Judge Kozinski has demonstrated on the bench 
for more than 2 decades.
    After I finished those two clerkships, I worked in the 
Solicitor General's Office at the Department of Justice. I 
experienced the ethic of that office, that the United States 
wins its point when justice is done. In that office I had the 
opportunity for the first time to argue a case in court before 
the Fifth Circuit Court of Appeals. I was able to stand up for 
the first time and say Brett Kavanaugh for the United States, a 
moment that was very proud for me and remains so.
    In the October 1993 term of the Supreme Court, I clerked 
for Justice Anthony Kennedy. Justice Kennedy is a student of 
history, he's a student of the Supreme Court. He talks often 
about the compact between generations that the Constitution 
represents. And he conveyed to his clerks, and certainly 
conveyed to me--to use one of his favorite phrases--the 
essential neutrality of the law. I'm forever grateful to 
Justice Kennedy for the opportunity to clerk for him.
    After I finished that clerkship, I worked for Judge Starr 
in the Independent Counsel's Office. It was a difficult, it was 
a tough job, it was an often thankless job. In that capacity, I 
had the opportunity to argue cases before the Supreme Court of 
the United States and the D.C. Circuit Court of Appeals. I 
learned some lessons in that office. I had some thoughts about 
how it all operated and, as the Chairman has noted, I tried to 
make a contribution, the improvement of the public legal 
system, by writing an article in the Georgetown Law Journal 
that identified better ways, in my judgment, to conduct 
investigations of high-level executive branch officials.
    I then went to Kirkland & Ellis, where I became a partner, 
represented institutional clients of the firm, and also did pro 
bono work for several years.
    In 2001, I joined the White House Counsel's Office under 
Judge Al Gonzales. In that office I did some of the standard 
work of the office--ethics issues, separation of powers issues. 
I also worked with many members of the staff of this Committee 
and other Members of Congress on civil justice issues, such as 
class action reform, medical liability reform, and the very 
important terrorism insurance legislation in 2002.
    I also worked on judges, on the nomination of judges, and I 
had the opportunity to help recommend judges to the President 
of the United States for him to nominate to the Federal courts. 
In that capacity, on the district court level I worked closely 
with many members of the Senate and their staffs in the States 
that I was assigned, including some members of this Committee.
    In July of 2003, I became staff secretary to President 
Bush. This is what I call an honest broker for the President, 
someone who tries to ensure that the range of policy views on 
various subjects in the administration are presented to the 
President in a fair and even-handed way.
    I've worked closely with the President and with the senior 
staff at the White House and other members of the 
administration for nearly 3 years. I think I've earned the 
trust of the President, I've earned the trust of the senior 
staff, that I'm fair and even-handed. This kind of high-level 
experience in the executive branch has been common for past 
judicial nominees, especially on the D.C. Circuit, which 
handles so many important and complicated administrative and 
constitutional issues.
    Mr. Chairman, I have dedicated my career to public service. 
I revere the rule of law. I know first-hand the central role of 
the courts in protecting the rights and liberties of the 
people. And I pledge to each member of this Committee, and I 
pledge to each member of the Senate, that, if confirmed, I will 
interpret the law as written and not impose personal policy 
preferences; that I will exercise judicial power prudently and 
with restraint; that I will follow precedent in all cases fully 
and fairly; and above all, that I will at all times maintain 
the absolute independence of the judiciary, which in my 
judgment is the crown jewel of our constitutional democracy.
    Mr. Chairman, I will be happy to answer any questions. 
Thank you.
    [The biographical information can be found in Senate 
Hearing No. 108-878, Serial No. 108-69, hearing date: April 14, 
    [The updated biographical information of Mr. Kavanaugh 








    Chairman Specter. Thank you very much, Mr. Kavanaugh.
    We now turn to 5-minute rounds for each Senator.
    Mr. Kavanaugh, I begin with the question as to what 
assurances can you give this Committee and the Senate and the 
American people about your independence from the President and 
the White House. I look at a long list of nominees who have 
voted against their Presidential nominator on many, many 
celebrated matters. Just a few: Justice Douglas dissented on 
the Korematsu case, the Japanese internment case, against 
President Roosevelt's policy. Famous decision by Justice Tom 
Clark turning against Truman on the Steel Seizure case not long 
after he was nominated. Justice Kennedy, Justice O'Connor 
disagreeing on a woman's right to choose from President Reagan. 
Justice Souter disagreeing with President Bush the elder. 
Famous disagreements that President Eisenhower expressed about 
Chief Justice Warren. Perhaps the most famous case, Salmon 
Chase had advocated policies as the Secretary of the Treasury, 
and then, after being appointed to the Supreme Court, declared 
unconstitutional the monetary policy he had implemented as 
President Lincoln's treasurer.
    What positive assurances can you give of your independence?
    Mr. Kavanaugh. Mr. Chairman, if confirmed to be a D.C. 
Circuit judge, I will call them as I see them, regardless of 
who the litigants may be. I know that independence of the 
judiciary, as I said in my opening, is a key part of our 
constitutional system. I would not hesitate in any case to rule 
the way I saw the case, regardless of who the parties were, 
regardless of whether the President was involved.
    Chairman Specter. Would you consider yourself independent 
in the tradition of the judges, justices whom I've just named?
    Mr. Kavanaugh. Absolutely, Mr. Chairman. I know that 
there's a long history in our constitutional system of judges 
being drawn from the executive branch, and I would--
    Chairman Specter. Mr. Kavanaugh, let me interrupt you. 
There's a great deal to cover and I only have 5 minutes.
    Did you have anything to do with the issues of 
interrogation of prisoners relating to the allegations of 
torture in the so-called Bybee memorandum?
    Mr. Kavanaugh. No, Mr. Chairman.
    Chairman Specter. Did you have anything to do with the 
questions of rendition?
    Mr. Kavanaugh. No, Mr. Chairman.
    Chairman Specter. Did you have anything to do with the 
questions relating to detention of inmates at Guantanamo?
    Mr. Kavanaugh. No, Mr. Chairman.
    Chairman Specter. Did you have anything to do with Mr. 
Abramoff and the many visits which he apparently made to the 
White House?
    Mr. Kavanaugh. No, Mr. Chairman.
    Chairman Specter. Do you have anything to do with the 
President's policy on so-called signing statements?
    Mr. Kavanaugh. Mr. Chairman, signing statements come 
through the Staff Secretary's Office, and I help ensure that 
relevant members of the administration have provided input on 
the signing statements. In the first instance they're drafted 
in the Justice Department, but I do help clear those before the 
President sees them.
    Chairman Specter. That poses a very difficult and 
contentious issue which this Committee is going to have 
hearings on. And I can understand that in your role as 
coordinator you would have the responsibility for coalescing 
materials. Did you take any position as to the constitutional 
authority for the President to limit the substance of 
legislation by expressing limitations in the signing 
    Mr. Kavanaugh. Mr. Chairman, it is common for signing 
statements, this President and previous Presidents, to identify 
potential constitutional issues like Appointments Clause 
issues, Presentment Clause issues, or issues relating to INS v. 
Chaddha, for example, the line item veto case. On those 
matters, I make sure that they have been properly staffed to 
other members of the White House staff. They come up in the 
first instance from the Justice Department and the Office of 
Management and Budget.
    Chairman Specter. Were you called upon to give the 
President any advice as to the constitutional implications of 
the signing statements?
    Mr. Kavanaugh. Well, Mr. Chairman, I think, without 
discussing internal matters, I think it's common to explain the 
general parameters of signing statements, for example, that 
there's been a history of them, and identifying potential 
constitutional issues in legislation, particularly Appointments 
Clause, Presentment Clause, and the other issues identified.
    Chairman Specter. Mr. Kavanaugh, you wrote an article on 
peremptory challenges, where there had been a practice among 
prosecutors to issue what are called peremptory challenges--
which, for those who do not know, means that a prospective 
juror can be disqualified without stating any reason, where 
blacks were eliminated. My time is up and I will quit, but you 
can answer.
    Mr. Kavanaugh. Mr. Chairman, I think one of the great 
Supreme Court decisions ever decided was Batson v. Kentucky. It 
overruled Swain v. Alabama, and held that a prosecutor's use of 
race in striking potential jurors from the jury box was 
unconstitutional under the Equal Protection Clause of the 14th 
    One of the concerns I had--that was decided in 1986; I was 
in law school from 1987 to 1990--one of the concerns I had was 
what procedures will be used to help guarantee that right to be 
free of racial discrimination in the jury selection procedure. 
And I wrote a note that advocated certain procedures that help 
ferret out potential racial bias in the jury selection process.
    Chairman Specter. Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman.
    Just when Senator Specter went over all of the issues, he 
mentioned torture in connection with the Bybee memo. Were you 
involved in any way in the Counsel's Office in opining about 
the proper use of torture?
    Mr. Kavanaugh. No, Senator. The first time I learned of 
that memo, I believe, was--
    Senator Schumer. I did not ask about the memo. I asked just 
in general.
    Mr. Kavanaugh. No, Senator.
    Senator Schumer. Thank you. OK, I would like to ask you a 
few questions that you did not answer. These were submitted in 
writing or orally at the last hearing. I will tell you all of 
    First, Senator Leahy asked you whether Karl Rove was 
involved in the judicial selection process at any point while 
you were there. I asked you how you would have voted on the 
impeachment of President Clinton. Senator Kennedy asked you 
whether you agreed with Judge Pryor, who called Roe v. Wade an 
abomination. And Senator Durbin asked you if you consider 
yourself in the mold of Scalia and Thomas, which is the mold 
that the President has said he is going to choose judges in.
    First, Rove. Was Karl Rove involved in any of the selection 
of judges while you were there?
    Mr. Kavanaugh. Mr. Chairman, I think that is a question 
that the Counsel to the President should answer in the first 
instance. I don't think as a judicial nominee here I should 
talk about who was involved. The Counsel to the President 
chairs the judicial selection committee, and if there is a 
question about who is involved in recommending judges--
    Senator Schumer. What we are trying to determine, in the 
previous time you were here, you said that no ideology was 
involved in the selection of judges. I do not see why you 
cannot answer that question. What is improper about answering 
that question?
    Mr. Kavanaugh. Senator, I will check whether I can answer 
that question. And if I can, I will provide the answer.
    Senator Schumer. What would come to mind which would 
prevent you from answering that question?
    Mr. Kavanaugh. Senator, I just want to be careful that I 
check with the Counsel on something like that and be sure that 
there is not an issue before I disclose something in the 
    Mr. Kavanaugh. Is there any privilege that would prevent 
you that you can see, that would come to mind right now?
    Mr. Kavanaugh. I can check with the Counsel on that, 
    Senator Schumer. Do you have knowledge of the answer?
    Mr. Kavanaugh. Well, I was involved in the judicial 
selection process.
    Senator Schumer. So you would know yes or no, you just 
choose not to answer?
    Mr. Kavanaugh. And I would be happy to provide the answer. 
I just want to check first.
    Senator Schumer. OK.
    Next, how would you have voted--I know you were involved in 
the impeachment of President Clinton--how would you have voted 
if you were a Senator?
    Mr. Kavanaugh. Senator, I don't think it's appropriate for 
the office that submitted the report to comment on whether the 
House made the proper decision to impeach or whether the Senate 
made the proper decision not to--
    Senator Schumer. When lawyers argue cases, all the time 
they say they are disappointed in the verdict, they are happy 
with the verdict. That is not a violation of anything, as far 
as I know, except your desire not to answer the question.
    Mr. Kavanaugh. I guess this gets to an ethic I've learned 
about prosecutors offices when I worked in the Solicitor 
General's Office, that it's not appropriate to comment on a 
jury verdict. And I don't think it's appropriate in this 
instance for me, as a member of the Independent Counsel's 
Office, to comment on whether the House decision was correct or 
whether the Senate decision was correct.
    Senator Schumer. In an op-ed in the Washington Post in 
1999, you wrote a defense of Ken Starr, where you said ``Starr 
uncovered a massive effort by the President to lie under oath 
and obstruct justice.'' You also wrote that, ``The word that 
ordinarily describes such behavior is not `trapped' but 
`guilty.''' You were pretty clear to state your views in 1999, 
but you do not want to state them now?
    Mr. Kavanaugh. I think that was based on Judge Wright's 
finding of contempt, and there was also a censure resolution 
introduced in the Senate that used some more language. So I 
think the language there, it was a joint op-ed.
    Chairman Specter. But you just said you did not think it 
was appropriate to answer. And you felt it very appropriate, in 
a similar role, to answer, to make some very strong statements 
    Mr. Kavanaugh. I think this goes to a key point, Senator, 
which is impeachment and then conviction take into account more 
than just the facts. As you know from participating on the 
House side at the time and the Senators know from participating 
on the Senate side, there were--
    Senator Schumer. I participated in votes.
    Chairman Specter. Now, let him finish his answer, please.
    Senator Schumer [continuing]. On both sides.
    Mr. Kavanaugh. On both sides, that's right, Senator. And I 
think, as many of the Senators and House members discussed at 
the time, it wasn't just a simple question of whether there was 
a violation of law committed, but there were broader 
considerations for the country. And that's where it really 
gets, really gets, I think, improper for someone in the 
Independent Counsel's Office to say whether they think the 
President should have been impeached.
    Senator Schumer. I fail to see the distinction. Let me ask 
you to answer, since my time is ending here, the two other 
questions. Do you consider Roe v. Wade to be an abomination? 
And do you consider yourself to be a judicial nominee, like the 
President said he was going to nominate people, in the mold of 
Scalia and Thomas?
    Mr. Kavanaugh. Senator, on the question of Roe v. Wade, if 
confirmed to the D.C. Circuit, I would follow Roe v. Wade 
faithfully and fully. That would be binding precedent of the 
Court. It's been decided by the Supreme Court--
    Senator Schumer. I asked you your own opinion.
    Mr. Kavanaugh. And I'm saying if I were confirmed to the 
D.C. Circuit, Senator, I would follow it. It's been reaffirmed 
many times, including in Planned Parenthood v. Casey.
    Senator Schumer. I understand. But what is your opinion? 
You're not on the bench yet. You've talked about these issues 
in the past to other people, I'm sure.
    Mr. Kavanaugh. The Supreme Court has held repeatedly, 
Senator, and I don't think it would be appropriate for me to 
give a personal view of that case.
    Senator Schumer. OK, you are not going to answer the 
question. How about being in the mold of Scalia and Thomas?
    Mr. Kavanaugh. I don't want to talk about current members 
of the Court, but I do think I can describe some of the 
justices or judges in the past that I think I would try, that 
have been role models to me, including Justice White, Justice 
Jackson, and for a couple of reasons. They were people who took 
an active part in our Government system, which is some--
    Senator Schumer. I understand. Just explain to me why it is 
appropriate for the President to say that he will appoint 
nominees in a particular mold, but you cannot answer whether 
you would be part of that.
    Mr. Kavanaugh. As a potential inferior court judge, 
Senator, on the D.C. Circuit if confirmed, I just don't want to 
talk about currently sitting members of the Supreme Court. I'm 
happy to talk about Justice Jackson and Justice White, if you'd 
    Senator Schumer. OK. I wish I could say it, but I do not 
think you have clarified any of these answers that we asked you 
the first time.
    Thank you, Mr. Chairman.
    Chairman Specter. Senator Hatch.

                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman.
    Welcome again to the Committee. You are one of the few who 
have had this great experience of being brought back here 
twice. Let me just take a--
    Mr. Chairman, I would like to take most of my time to make 
just a few comments rather than to ask questions at this time.
    I think that during his first hearing 2 years ago in 2004 
and his written submissions afterwards, Mr. Kavanaugh more than 
adequately answered all the questions that had been posed to 
him. The Committee already has a 159-page hearing record before 
it on this nominee. And I am confident in Mr. Kavanaugh's 
abilities and capacities in both the understanding and 
knowledge of the law. I suspect that he will continue to show 
his intellect, sound judgment, and judicial temperament.
    I have no doubt that Mr. Kavanaugh fully appreciates the 
proper role and limitations placed on Federal appellate judges 
in our constitutional system. And while I am not pleased with 
all the circumstances that have resulted in holding this 
unusual if not unprecedented second hearing, I take solace in 
the fact that Chief Justice Roberts, whom many in the public 
and a super-majority of Senators found to be an extremely 
capable individual after his confirmation hearings last 
September, was also subject to two confirmation hearings before 
he was able to sit on the D.C. Circuit. I hope that Brett 
Kavanaugh's confirmation will not be delayed as long as now-
Chief Justice Roberts's was. He was delayed for 11 solid years, 
between the time that the first President Bush nominated him 
and the time that the second President Bush, our current 
President, renominated him.
    Now, while today's hearing will and should concentrate and 
focus on qualifications of Brett Kavanaugh to serve on the D.C. 
Circuit Court of Appeals, when you see nominees with the 
backgrounds of John Roberts and Brett Kavanaugh having been 
held up for so many years for so little reason, sometimes you 
have to ask yourself if there may be motivations at play that 
have nothing at all to do with the nominee's actual fitness to 
sit on the bench. To date it has been almost 3 years since Mr. 
Kavanaugh was first nominated. I think it is time to vote on 
his nomination, and frankly it is past time for the Senate to 
vote on Mr. Kavanaugh's nomination.
    So at this point, I would like to welcome you, Mr. 
Kavanaugh, your wife and baby and of course your family. Since 
the last time before this Committee, you have become a husband 
and father, and I join in welcoming Mrs. Kavanaugh here and 
your 8-month-old daughter Margaret to the Committee.
    I also want to acknowledge the presence of Mr. Kavanaugh's 
parents. I have known them for a long time. Ed Kavanaugh for 
many years, he headed up the major trade association, the 
Cosmetic, Toiletries, and Fragrance Association, and he is 
deservedly admired by many in this town. And his mother served 
with distinction as a State court judge in Maryland for many, 
many years.
    Sometimes in these confirmation hearings, in the rush to 
get to more controversial matters, there is a tendency to skip 
over too quickly on the qualities and attributes that led the 
President to nominate the individual--and in this case, Mr. 
Kavanaugh--in the first place. And I think Senator Specter has 
already given us an overview of the nominee's impressive 
educational and employment background. We have also heard the 
testimony of two excellent Federal court judges for whom he 
clerked, both of whom I know--Judge Kozinski of the Ninth 
Circuit and of course Judge Stapleton of the Third Circuit 
Court of Appeals. I think we should weigh their words very 
carefully. These are people of impeccable reputations and 
ability on the bench.
    Not only did you distinguish yourself as a clerk on two 
appellate courts, but you also served as a clerk on the Supreme 
Court. You had an academic career that was pretty impressive as 
well, at Yale. You've had a series of impressive and highly 
responsible jobs in both the executive branch and in the 
private sector. And you're a talented appellate advocate as 
well before the Supreme Court.
    Now, let me just say--my time is running out, but in 
addition to your three judicial clerkships, as you have 
mentioned, you worked in the Solicitor General's Office, in the 
Department of Justice, with Ken Starr, and of course with the 
Office of Special Counsel. And of course nobody should judge 
you as an attorney for having worked in something that was as 
unpleasant as that. Attorneys work on unpleasant matters in 
many ways, and you would be a pretty doggone poor attorney if 
you were not willing to work with distinction and with fairness 
when called upon to do so. And I think knowing you and knowing 
what happened in the Clinton matter, you served with 
distinction and fairness.
    My time is about up so I just--I will make some more 
comments if we have another round, but I just want to 
congratulate you for standing in there and being willing to 
serve on the circuit court of appeals. I know you could make a 
fortune on the outside, but you have made public service your 
life and I do not see how we can find a better person to serve 
and give public service than you. So I just want to personally 
express my fondness for you, my high admiration for you, and 
the fact that you will have my support in every step of this 
    Chairman Specter. Thank you, Senator Hatch.
    Under the early bird rule, on the side for the Democrats 
are Senator Feinstein, Senator Durbin, Senator Kennedy, Senator 
Feingold, and on the Republican side are Senator Coburn, 
Senator Graham, Senator Sessions, and Senator Kyl. So under the 
early bird rule we now turn to Senator Durbin.
    Senator Durbin. Thank you, Mr. Chairman.
    Mr. Kavanaugh, thank you for returning. In 2003, Jay Bybee 
was confirmed to a seat on the Ninth Circuit. A year and a half 
later, we learned he had authored the infamous torture memo 
when he headed the Justice Department's Office of Legal 
Counsel. In the memo he claimed the President has the right to 
ignore the law that makes torture a crime and narrowly defined 
torture as abuse that causes pain equivalent to organ failure 
or death.
    The torture memo was requested by, addressed to the then-
White House Counsel, Alberto Gonzales. So clearly the White 
House Counsel's Office knew that Mr. Bybee had authored the 
torture memo at the time of his nomination. Did you know that 
Mr. Bybee authored the torture memo or similar memos at the 
time of his nomination?
    Mr. Kavanaugh. No, Senator, I think you're referring to the 
August 1, 2002, memo. I was not aware of that memo until there 
was public disclosure of it in the news media, I think in the 
summer of 2004.
    Senator Durbin. The administration has now repudiated the 
memo. In retrospect, should the fact that Mr. Bybee authored 
the torture memo have disqualified him from consideration as a 
    Mr. Kavanaugh. Senator, I don't think, sitting here as a 
prospective judge, as a nominee to a court of appeals, I should 
talk about another sitting judge and whether that person should 
or should not have been nominated. I just don't think that's a 
proper role for me.
    Senator Durbin. But you see that is what we are struggling 
with here. We do not have a number of cases that you have 
argued before a court, because you haven't. We do not have 
trials that you have taken to a jury verdict, because there are 
none. We have to rely on what you have done with your life and 
where you have been to try to determine what your values are. 
Senator Schumer asked you a series of questions related to the 
work of your life, which you did not feel were appropriate to 
answer. And now I am trying to plumb that same type of well to 
find out what you really believe and who you are. And every 
time we get close, you say sorry, I can't answer. That is a 
problem for a person seeking a seat on the second-highest court 
in the land. I do not know where to go in questioning you. You 
do not want to talk about what you have done that might have 
any political implication. And frankly, when it comes to legal 
work, there is not much to turn to. Do you see the problem we 
are facing?
    Mr. Kavanaugh. Senator, on that memo, I can say that the 
administration has repealed that memo. I agree with that 
decision. I do not believe the analysis in that memo was 
correct. I think that memo did not serve the presidency or this 
President well. And I am willing to talk about the memo itself.
    Senator Durbin. Well, let me ask you. You were in charge of 
judicial nominations, or at least involved in judicial 
nominations with the White House. And that is why we are going 
into this. Let's go to another nominee and see if you might 
respond to this.
    In September 2003, the President nominated William Haynes 
to be a judge on the Fourth Circuit. As General Counsel to the 
Department of Defense, Mr. Haynes had been the architect of the 
administration's discredited detention and interrogation 
policies. For example, Mr. Haynes recommended that Secretary 
Rumsfeld approve the use of abusive interrogation techniques, 
like threatening detainees with dogs, forced nudity, and for 
forcing detainees into painful stress positions. During the 
108th Congress, Mr. Haynes's nomination stalled after his 
involvement in this scandal came to light. Just this February, 
the President decided to renominate him.
    What was your role in the original Haynes nomination and 
decision to renominate him? And at the time of the nomination, 
what did you know about Mr. Haynes's role in crafting the 
administration's detention and interrogation policies?
    Mr. Kavanaugh. Senator, I did not--I was not involved and 
am not involved in the questions about the rules governing 
detention of combatants or--and so I do not have the 
involvement with that. And with respect to Mr. Haynes's 
nomination, I've--I know Jim Haynes, but it was not one of the 
nominations that I handled. I handled a number of nominations 
in the Counsel's Office. That was not one of the ones that I 
    Senator Durbin. So let me try this approach and see if we 
can learn a little more. Manny Miranda was an employee of the 
Senate Judiciary Committee on the Republican staff and then on 
the Senate Majority Leader's staff. He hacked into the 
computers of the members and staff of this Committee, stealing 
thousands of documents and memoranda which were then shared 
with others. Did you know Manny Miranda, or do you know him 
    Mr. Kavanaugh. I knew Manny Miranda because he was a member 
of Senator Hatch's staff and then Senator Frist's staff working 
on judicial nominations.
    Senator Durbin. Did you ever work with him in terms of 
judicial nominations?
    Mr. Kavanaugh. He was part of a group of Senate staffers 
that did work on judicial nominations with people at the 
Department of Justice and the White House Counsel's Office. We 
talked about this last time. I did not know about any memos 
from the Democratic side. I did not suspect that. Had I known 
or suspected that, I would have immediately told Judge 
Gonzales, who I'm sure would have immediately talked to 
Chairman Hatch about it. Did not know about it, did not suspect 
it. He was part, however, of the staff, of course, that worked 
on judicial nominations, including with--on both sides.
    Senator Durbin. My time is up. But I think one of the 
problems you had with the American Bar Association when they 
downgraded your rating was they thought you were dismissive of 
this, that you did not take this as a serious problem, that a 
Republican staffer had broken into the computers of Democratic 
Senators and their staff, were stealing documents and sharing 
them with those who were plotting the strategy for the White 
House. Would you like to respond as to whether or not you think 
this was a serious matter, perhaps criminal?
    Mr. Kavanaugh. Senator, I don't know what the American Bar 
Association said about that, but I know what I told them and 
what I've told the Committee. Had I known or suspected anything 
like that, I would have immediately told Judge Gonzales, who 
I'm sure would have immediately called Chairman Hatch. I know 
the matter has been under investigation in the Senate. I know 
the matter has been under investigation by a special 
prosecutor. That is a serious matter. And that is what I said 
to the American Bar Association and that's what I'm saying to 
this Committee.
    So that's my view on the matter.
    Senator Durbin. Thank you.
    Chairman Specter. Thank you very much, Senator Durbin.
    Senator Coburn.


    Senator Coburn. Thank you, Mr. Chairman.
    I just want to put a few points into the record. Of the 12 
members of the D.C. Circuit and the two seniors, none have as 
broad experience in terms of measurement points as our nominee 
here today. Only five have clerked on the Federal appeals court 
out of the 14; only four have clerked on the Supreme Court; 
only six have argued before the court of appeals; only five 
have argued before the Supreme Court; only seven have had 
editorial positions on law review; only four have had previous 
judicial experience. Of everybody that is on there now, only 
four have had previous judicial experience and only four had 
any legislative branch experience.
    Again, I want to address the issues out in the open. I 
think what is happening here today I am somewhat embarrassed 
about. We have somebody who is obviously qualified. The ABA 
says he is qualified. He is not downgraded, he is recognized as 
qualified. He is extremely well qualified and well qualified. 
This time he is well qualified, with a minority extremely well 
qualified--or qualified and well qualified.
    But what it requires is ``qualified.'' And if you look at 
the ABA's position of what ``qualified'' is--and let me read it 
for you, should we have any questions regarding that--let me 
find it. It means that the nominee meets the committee's very--
this is ``qualified.''--means that the nominee meets the 
committee's very high standards with respect to integrity, 
professional competence, judicial temperament, and that the 
Committee believes that the nominee will be able to perform 
satisfactorily all of the duties and responsibilities required 
by the high office of a Federal judge.
    Everybody on that ABA says you are qualified. And I just 
read what it means. The idea that we are fishing around because 
we do not like something the Bush administration has done, or 
we are going to imply and impugn the integrity of somebody who 
has been in a position of responsibility and has offered his 
good services to fulfill the requirements of the executive 
branch, and anything you do not like about the executive branch 
you are going to try to tie to this gentleman, is improper. It 
also is dismissive of our open form of Government. And is 
exactly, again--I will say again--exactly what the American 
people are sick of, partisan sniping that is not about the 
issues but trying to score a point and trying to undermine 
somebody's integrity who has absolute integrity on these 
    They have answered the questions. We are here--we are 
here--to give a second look at somebody who has already 
answered the questions. And there is precedent to not give 
answers to questions about certain privileged communications 
within the White House. That does not mean that those are 
necessarily devious or wrong. It means you protect the Office 
of the Presidency. That is an appropriate role. There is 
nothing wrong with that.
    I will have one question for you. Why do you want to be a 
Federal judge?
    Mr. Kavanaugh. Senator, I want to be a Federal judge 
because I know from experience and through my upbringing the 
role of the courts in protecting the rights and liberties of 
the people. I know how essential the rule of law is to our 
country. I know how the independence of our Federal judiciary 
is central to our constitutional form of Government. I think, 
based on my experience and my background, I can make a 
contribution to the administration of justice. I think I can be 
a good judge. And it's part of my commitment to public service 
that I've carried out for most of the 16 years since I 
graduated from law school.
    Senator Coburn. Do you think it makes any difference on 
your ability to be an appellate judge in this country which 
side of the issue you were on the impeachment or which side of 
the issue you were on any of these issues that have been 
raised? Your personal opinion, when you have testified that you 
are not going to allow a personal opinion to interfere in your 
interpretation of the law and the independence of the 
judiciary, does that have a bearing?
    Mr. Kavanaugh. Senator, I absolutely believe in the idea 
that judges are neutral and impartial and that whatever 
activities may have occurred in someone's past life in terms of 
Government activities, those are good experience to have to 
become a good judge. But it also is true, once you put on the 
black robe, you're impartial and you represent the law. As 
Justice Kennedy used to tell us, the essential neutrality of 
the law. And I think that is a principle that I would seek to 
follow were I to be confirmed to the D.C. Circuit Court of 
Appeals. I think it's essential to our entire system of 
Government. There's no such thing on the courts as a Republican 
judge or a Democratic judge. Once you're on the court, all the 
judges are there representing the justice system, representing 
the idea of justice.
    Senator Coburn. Thank you. My time has expired.
    Chairman Specter. Thank you, Senator Coburn.
    Senator Feinstein.
    Senator Feinstein. I am happy to yield to Senator Kennedy. 
My understanding is you wanted to go next?
    Senator Kennedy. I appreciate that. We have this health 
legislation on the floor now which we are trying to work 
through. If it is convenient for the Senator from California, I 
would just take the time. I thank the Chair.
    Congratulations to you, Mr. Kavanaugh, for gaining the 
President's confidence. The Circuit Court, as you know, has 
such special jurisdiction in terms of so many different areas 
of legislation that we pass--National Labor Relations Board, 
the relationship of workers and what happens to workers, 
discrimination against workers in the workplace, environmental 
kinds of issues they are working through. And their judgments 
on so many of these end up being the law, and so few go on to 
the Supreme Court. And we have seen very interesting trends 
that have taken place in the District court. So this has a 
special relevancy and importance. So that is at least why we 
spend as much time as we do on this particular nomination.
    Just on the--I want to just really focus in on this issue, 
again, of torture and rendition, your role there. I am on the 
Armed Services Committee and we have spent a lot of time. We 
have had 10 investigations of torture, and none of them have 
revealed what we are constantly seeing revealed now with newer 
reports that have come on up in the newspapers and exposed by 
Freedom of Information reports. So it is something that is--And 
we have a policy of rendition which is of enormous concern to 
many of us.
    And we also know that Mr. Gonzales was in touch with Mr. 
Bybee when he was over at OLC. I mean, we have gone through all 
of this. This was all through the Gonzales--when Mr. Gonzales 
was up for Attorney General. And we also know that Haynes was 
in touch with the White House at that time, good chance that he 
was in touch with OLC.
    So this is the background. Have you ever previously--as you 
well know, that Bybee memorandum effectively said that if you 
go on out, you are in the military service or under contract 
and you go out and torture someone, it does not make any 
difference how badly you torture or what pain you inflict, as 
long as your purpose is to get information rather than to hurt 
an individual, you are going to be vindicated in terms of any 
kind of protections. I mean, effectively. That also was 
included in the Bybee.
    And Mr. Gonzales repudiated it when he came up before the 
Committee to be Attorney General. Is this the first time you 
have every made a comment on the Bybee memorandum? You 
responded to Senator Durbin and said that, in sort of a 
followup question, that you did not agree with the reasoning or 
the rationale for it. Is this the first time that you have ever 
said anything about the Bybee?
    Mr. Kavanaugh. I believe it is. It is possible I have said 
something to people I work with, but this is the first time, 
certainly, I have been questioned about it.
    Senator Kennedy. But you have not, prior to this time, ever 
made a comment or statement to others indicating that you found 
it particularly offensive. Because it has been a major issue, 
an issue in question out there. Please.
    Mr. Kavanaugh. Senator, I know that Judge Gonzales in the 
summer of 2004 had a press conference where the memo was 
repealed and talked about this issue. I think also at his 
confirmation hearing in 2005, he said he disagreed, I believe, 
with the legal analysis in there, that the legal analysis in 
there was incorrect. And so I know members of the 
administration have repudiated that memorandum, or at least the 
legal analysis in that memorandum.
    Senator Kennedy. And your testimony is that you had nothing 
with the promotion of Bybee to the Ninth Circuit. Is that 
    Mr. Kavanaugh. That was not one of the nominations I worked 
on, and I knew he was, of course, being nominated but I didn't 
know some of the issues that you're talking about today.
    Senator Kennedy. Well, then you are saying that you did not 
know he wrote what we know is the Bybee memorandum at the time 
that he was being considered for the circuit?
    Mr. Kavanaugh. I first learned of the existence of that 
memo, I think, when there was a Washington Post story in the 
summer of 2004. I think that is the first--I'm pretty sure 
that's the first time I learned anything about the August 1 
    Senator Kennedy. And for Mr. Haynes, have you expressed an 
opinion in terms of the legal counsel for the Defense 
Department, for promotion? I understand you have not handled 
the Haynes nomination?
    Mr. Kavanaugh. That's correct, Senator. And in terms of my 
portfolio in the Counsel's office, it involved a lot of civil 
justice issues--worked on nominations, some ethics issues, 
separation of powers issues. It did not involve the kinds of 
issues you're raising in your questions.
    Senator Kennedy. Well, are not most of those--I mean, the--
most of those issues, class actions, insurance reform, are not 
most of those handled in the various departments, or were 
they--are those not sort of policy issues handled in the 
departments? Those are the issues that you were working on?
    Mr. Kavanaugh. I worked, I would say, primarily on judicial 
nominations. In the wake of September 11th, there were a number 
of civil justice issues that I worked on, including the 
terrorism insurance litigation.
    Senator Kennedy. OK. Just finally, on the documents that 
were taken here from the Committee and that you have the 
familiarity--and you have indicated that you, in reviewing 
them, had no understanding or awareness that they had been 
taken, been stolen. Have you ever gone back, now that you are 
aware of it, and seen what decisions you may or might not have 
taken on the basis of documents that were illegally taken? To 
see whether you may have made some judgments or decisions to 
reach certain conclusions, now that you know that they were not 
properly taken? Have you ever thought, well, I ought to go 
back, I might have made some judgments or decisions when I was 
working for the President and I ought to take a look at this, 
since you know that these documents now were taken? Have you 
ever thought about that?
    Mr. Kavanaugh. Senator, there's a very important premise in 
your question that I think is incorrect, which is I didn't know 
about the memos or see the memos that I think you're 
describing. So I think--
    Senator Kennedy. Oh, you never saw any of those?
    Mr. Kavanaugh. No, Senator, that's correct. I'm not aware 
of the memos, I never saw such memos that I think you're 
referring to. I mean, I don't know what the universe of memos 
might be, but I do know that I never received any memos and was 
not aware of any such memos. So I just want to correct that 
premise that I think was in your question.
    Senator Kennedy. OK. My time is up, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kennedy.
    On the Republican side, we have, in sequence, Senator 
Graham, Senator Sessions, Senator Cornyn, and Senator Kyl. And 
on the Democratic side, we have, who has not questioned, 
Senator Feinstein and Senator Feingold. I had Senator Feinstein 
ahead of Senator Kennedy on the list.
    Senator Feinstein. Yes, I yielded to Senator Kennedy.
    Chairman Specter. OK, I just wanted to be sure that the 
list is correct. It is sometimes judgmental. Senator Feinstein 
was here first, but she left for awhile. Senator Kennedy came. 
But at any rate, Senator Feinstein yielded. But I wanted it 
known that that was the list that I had. And now Senator 
    Senator Graham. Thank you, Mr. Chairman. I want to 
congratulate you for having the hearing, because I think it is 
appropriate. It is a lifetime appointment, that people be able 
to ask questions and he be able to answer within his ability to 
do so without compromising what he believes to be his ethics or 
any proper role he may have played as a lawyer.
    Do you believe you were treated fairly by the ABA?
    Mr. Kavanaugh. Senator, the American Bar Association has 
rated me three times. I'm going to get directly to the 
question, but I'm going to give you some background, if I 
could. I've been rated three times by the American Bar 
Association. And each time, there were 14 individual reviews 
conducted by members of the Committee. So there have been a 
total of 42 separate reviews conducted of me based on 
interviews with lots of people and review of lots of record.
    All 42 have found that I'm well qualified or qualified to 
serve on the D.C. Circuit Court of Appeals. So I'm pleased with 
that and I'm proud of that. And to the extent--and none of the 
42 has found that I'm not qualified, and I think the Chair of 
the Committee yesterday said that there's not been a breath of 
anyone saying that I'm not qualified. So I'm proud and pleased 
with the 42 of 42.
    Senator Graham. So do you think you were fairly treated?
    Mr. Kavanaugh. Senator, I think, sitting here as a nominee, 
I would prefer not to talk about my--you know, about the 
American Bar Association other than to say that I'm pleased and 
proud to have 42 of 42 rating me well qualified or qualified.
    Senator Graham. Based on your going through that 
experience, would you recommend that we continue to consult the 
ABA when it comes to judges?
    Mr. Kavanaugh. Senator, again, I'm pleased and proud of the 
ratings. Their--in the future, maybe, will look back and have 
some observations, but right now I don't think I have any 
observations to offer the Committee about the American Bar 
    Senator Graham. Your time at the White House, you dealt 
with, I think you described your job. One of these 
constitutional questions that we are trying to wrestle with 
here is the inherent authority of the President in a time of 
war versus any designated role of the judiciary or the Congress 
in general. Do you agree with Justice Jackson's evaluation in 
the Youngstown Steel case that the President or the executive 
branch is at their strongest maximum power when they have 
concurrence of the legislative body?
    Mr. Kavanaugh. I agree completely with that, Senator.
    Senator Graham. Very specific question. Do you believe that 
at a time of war, the Congress has the ability to amend, pass 
the Uniform Code of Military Justice and not infringe on the 
President's inherent authority as commander in chief?
    Mr. Kavanaugh. Senator, that sounds like a specific 
hypothetical that could come before the court, so I'd hesitate 
to give an answer. In terms of Justice Jackson's framework, 
that of course for a half century has been the guiding 
framework. I think it's a work of genius, that opinion, in 
terms of setting out the different categories of Presidential 
power and Congressional power in times of war and otherwise, in 
terms of, as you say, category I, when the President and the 
Congress work together, that's when the power is at the 
strongest. And category II, that's what they call the twilight 
zone in the opinion. And then in category III, where a 
President acts against the express or implied will of Congress, 
that's where the President's power is at its lowest ebb and 
raises some very serious constitutional questions, according to 
Justice Jackson. I think that's an exceptional opinion that has 
guided American law, the relationship between Congress and the 
executive for about a half-century, and it's really been the 
foundation of these kinds of issues that I know you and the 
Committee have been working on.
    Senator Graham. Finally, and if you don't want to answer 
it, you don't have to, but are you a Republican? If so, why?
    Mr. Kavanaugh. Senator, I am a registered Republican. As I 
said before to Senator Coburn, I believe very much that it's 
good to have judges who've participated in Government. That's 
been part of our experience in the past, to have judges on the 
D.C. Circuit who've participated in the executive branch, 
who've worked in the executive branch; judges on the Supreme 
    Specifically, to answer your question, when I was first 
registering to vote, President Reagan was President and I 
agreed with him on some issues and registered Republican in the 
first election in--I guess 1984 was the first one I voted in.
    Chairman Specter. Thank you very much, Senator Graham.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Let me just say this. This is a difficult nomination. First 
of all, you're very young, which is, I think, a blessing for 
you. But in terms of an appellate judge, I think it is a 
detriment. Obviously, you've had a good education, you have 
done well. You have spent a lot of your life in at least a 
semi-political capacity. The question comes up, how can you 
assure us that you will be fair? Would you recuse yourself from 
any judgment that concerned this administration?
    Without a record either as a trial lawyer or as a judge, 
it's very difficult for some of us to know what kind of a judge 
you would be and whether you can move away from the 
partisanship and into that arena of objectivity and fairness.
    Mr. Kavanaugh. Senator, thank you for the question. I think 
in the past, on the D.C. Circuit and on the Supreme Court and 
on other courts of appeals other than the D.C. Circuit, prior 
Government experience in the legislative branch or the 
executive branch has been seen as a very valuable asset, 
whether it was Judge Abner Mikva or Judge Patricia Wald, Judge 
John Roberts on the D.C. Circuit, Judge Merrick Garland, who 
President Clinton appointed to the D.C. Circuit. That kind of 
experience has been seen as very valuable experience and 
valuable background.
    And of course the question--I think only four of the last 
21 judges on the D.C. Circuit have actually had prior judicial 
experience, so the norm on the D.C. Circuit, in fact the 
overwhelming norm, is for the judges on the D.C., Circuit since 
1977, not to have had prior judicial experience. What they've 
had usually is Government experience in the legislative 
branches or the executive branches.
    And your question really goes to how do you assess 
someone's record. And I think that's done through an assessment 
of going back, in my case 16 years in my career, and looking at 
the things I've done. In the Staff Secretary's Office now, 
where I'm an honest broker, where I have to be fair and even-
handed in the kind of role I perform for the President, some of 
the work I've done in the Counsel's Office on judges, I've 
worked with your office and Senator Boxer's office in the past 
on judges I know and worked closely on that. When I was in 
private practices, working on not just institutional clients, 
but pro bono cases. One of my proudest cases is I worked on a 
pro bono case for a synagogue in my home county that was 
seeking to build in a new location. Some of the neighbors 
didn't want it there. I represented them. They won in Federal 
district court.
    And the Independent Counsel's Office, I know, Senator, that 
that's controversial and that's raised some questions. And I 
think in that office, my record shows that I was fair and 
conducted myself responsibly. I've written an article about 
some reforms that I think would help avoid some of the problems 
that I think were systemic in the Independent Counsel's--
    Senator Feinstein. I am running out of time. Answer the 
recusal question?
    Mr. Kavanaugh. On the recusal question, I know that there 
will be issues of recusal that I will face. There are standards 
in place under 28 U.S.C. 455, and I will analyze those closely 
were I to be confirmed to be a judge. There will be some 
difficult questions. I do not want to prejudge how I would rule 
on any recusal motion or how I would handle any particular 
case, but I do know, Senator, that it will be an issue in 
certain cases. I pledge to you that I'll take that seriously, 
that I'll study the precedents of people like myself who've 
come to the bench, that I will talk to my colleagues, were I to 
be confirmed, and that I'll make the judgment responsibly. I 
pledge that to you.
    Senator Feinstein. As you look back at the Kenneth Starr 
investigation today--I just read the op-ed you wrote in 1999--
what are your thoughts? What do you think?
    Mr. Kavanaugh. On the Independent Counsel Office 
investigation in general, I think a couple things, Senator. 
First of all, I think it was, in retrospect, probably a mistake 
for Judge Starr to be assigned additional investigations after 
the initial Whitewater and Madison investigations. So he got 
new jurisdiction over a Travel Office matter, an FBI files 
matter, and eventually the Lewinsky matter. I think it would 
have been better in retrospect for Judge Starr to have handled 
what he was initially assigned and, if there was a new Special 
Counsel needed in these other matters, for new people to be 
appointed. By adding to the jurisdiction, it created the 
impression that Judge Starr was somehow the permanent special 
investigator of the administration. He was assigned a very 
specific matter.
    So that's one thing in retrospect. And frankly, even at the 
time that I thought it was a concern, I think the way the 
report was released was a real problem. I thought that at the 
time. And I think the way that was released did not serve 
anyone well. And I've written in my law journal article about 
the problems with prosecutorial reports, the way people's 
reputations are damaged. So I've proposed some real reforms 
    I also know that it was a very serious matter in terms of 
the underlying issue in 1998 in terms of the things that 
members of this body weighed and members of the House of 
Representatives weighed and that Judge Wright dealt with in 
terms of the contempt motion that she dealt with. So there was 
a serious underlying matter there; I believe that. I believe 
that there was--that Judge Starr tried to do it thoroughly. But 
again, to go back to the core problem, I think there was too 
much jurisdiction added to Judge Starr that created a mistaken 
public impression that harmed the credibility of the 
    Senator Feinstein. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Feinstein.
    The next questioner on the Republican side is Senator 

                           OF ALABAMA

    Senator Sessions. Mr. Kavanaugh, thank you for your 
thoughts on Senator Feinstein's question about the Starr 
investigation. I think you have provided some good insight and 
I think that probably is a reason why your reputation as a 
member of that prosecutorial team was very high, and people had 
a clear impression that you were a cool head and a wise member 
of that team. And that is the reputation I have heard, and I 
can see why you had that.
    I would note that Ken Starr was a former Solicitor General 
of the United States, a man of impeccable integrity, 
extraordinary legal skill, and anyone would have been proud to 
answer his call to serve him.
    Looking at the ABA evaluation, I think, first of all, you 
did extremely well, extraordinarily well to be rated well 
qualified by them, in the sense that you were relatively young 
and were working in the Bush administration. You were given the 
highest possible rating by them. And you have been there now in 
a less legal capacity and a few new members decided to give you 
the qualified rating instead of well qualified rating, but I do 
not think that is a big issue.
    In fact, I would quote Mr. Tober, Stephen Tober, the 
Chairman of the Committee on the Judiciary. This is what he 
said to me in a telephone conversation. He said this: ``Let me 
underscore, we did not find him unqualified. There's not a 
breath in that report or any earlier report. We found him 
qualified; minority, well qualified. What I said at the end is 
what in fact many people said, that he has a solid reputation 
for integrity, intellectual capacity--a lot of people refer to 
him as brilliant--and an excellent writing and analytical 
ability. Those are great skills to bring to the court of 
appeals. There's no question about that.''
    You wouldn't object to them saying that about you, would 
    Mr. Kavanaugh. As I said, Senator--
    Senator Sessions. We will pass over that.
    Then he went on to say this: ``He is found to have high 
integrity. He is found to be brilliant. He is a very skilled 
writer and legal analyst. He has those components. He has those 
skills that will serve him well, certainly on a Federal 
    And then he goes on to say: ``It is true''--I think maybe 
to Senator Hatch's question--``it is true there's not a single 
not-qualified vote in the picture.''
    So I think the ABA rating, whether it is as high as it 
could be, and all of them did not vote you well qualified, the 
highest possible rating, but they did rate you qualified and 
the Chairman of the Committee gave some very interesting 
insights, I think.
    I would just like to note on the age question that you are 
6 years older, I believe, than Judge Stapleton when he was 
appointed to the bench, the court of appeals, and 6 years older 
than Judge Kozinski when he was appointed to the bench, both of 
whom you clerked for. I think the Chairman made that earlier. 
And Justice Kennedy was appointed to the Ninth Circuit 3 years 
younger than you are today. I think those are qualities that--I 
think other qualities are at stake here.
    Let me just say this about my thinking of how you evaluate 
a nominee, that is, you consider the entire breadth of the 
gifts and graces they bring to the job. And if a person has 
less--I like a person who has been in private practice. I think 
that is fine. But if a person does not have private practice or 
a lot of--you were a partner in one of the country's best law 
firms; that ought to be some private practice experience. But 
whether you had a great deal of that experience or not, other 
factors are considered in here. You were editor of the Yale Law 
Journal, one of the editors of that. You clerked for two 
circuit judges, both of whom have testified for you. The first 
one said you should be a judge, he saw that in you when you 
first clerked for him and advised you of that as a career path.
    So you worked for two court of appeals judges. You sat at 
the right hand of two judges who hold the very position you 
will be holding today. And then you were given the rare honor 
of clerking for a justice on the U.S. Supreme Court, Justice 
Kennedy, a judge who is considered a moderate, middle-of-the-
road judge, I guess. You served under his leadership. So those 
are things that I think are extraordinarily important.
    And you served in the Solicitor General's Office of the 
United States. That is the greatest law office in the world, 
where you represent the United States before the Federal 
appellate courts in the country arguing cases before the very 
court that you would sit upon, as well as arguing cases before 
the U.S. Supreme Court, an honor very few lawyers have.
    So I think it is a good experience and extraordinary 
academic record, Mr. Chairman, and I believe he should be 
    Chairman Specter. Thank you very much, Senator Sessions.
    Senator Feingold arrived earlier but has departed. Senator 
Leahy arrived later and is ranking, and Senator Leahy has 
agreed he will yield to Senator Feingold.
    Senator Leahy. Go ahead. After these tough, tough questions 
that Senator Sessions has been asking, where the nominee just 
sits there and is canonized, I am overwhelmed by that. So I 
yield to Senator Feingold.
    Chairman Specter. You should have been here earlier to hear 
Senator Hatch's tough questions.
    Chairman Specter. Senator Feingold?
    Senator Leahy. He only asks tough questions of Democrats. 
He coordinates the others.
    Senator Sessions. Well, this is the second time around.

                       STATE OF WISCONSIN

    Senator Feingold. I thank both the Chairman and the Ranking 
Member. And I thank you, Mr. Chairman, for holding this 
hearing. It was obviously the right thing to do, given that it 
has been nearly 2 years since the first hearing and, frankly, 
in light of Mr. Kavanaugh's incomplete responses to written 
questions, even though he delayed providing those responses for 
7 months.
    Among those written questions were several questions that I 
submitted concerning ethical issues that came up in connection 
with the nominations of three judges who I believe Mr. 
Kavanaugh assisted as part of his duties in the White House: 
Charles Pickering, who received a recess appointment and 
subsequently retired; and D. Brooke Smith and Ron Clark, who 
are currently on the bench.
    In his November 2004 responses, Mr. Kavanaugh essentially 
refused to answer my questions. I wrote him a letter on Friday 
explaining why I believe these questions are appropriate and 
asking him to supplement his responses. Late yesterday I 
received a response, not from Mr. Kavanaugh but from Mr. 
Moschella at the Justice Department, that said the following: 
``As you know, Chairman Specter has scheduled a hearing on Mr. 
Kavanaugh's nomination on May 9, 2006. At that time, Mr. 
Kavanaugh will be available to respond to questions from all 
Senators on the Committee.''
    Mr. Chairman, first, I would like to put in the record a 
copy of my letter and Mr. Moschella's response.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Feingold. Thank you, Mr. Chairman.
    Now, Mr. Kavanaugh, I assume you were consulted and 
approved of Mr. Moschella's response. I hope that you will now 
respond to my questions. Here is the first one for which I 
sought an additional response.
    During the Senate's consideration of Judge Charles 
Pickering's nomination to the Fifth Circuit, the Judiciary 
Committee learned that he solicited and collected letters of 
support from lawyers who had appeared in his courtroom and 
practiced in his district. It later became apparent that some 
of these lawyers had cases pending before him when they wrote 
the letters that Judge Pickering requested. Professor Stephen 
Gillars of NYU Law School has written, ``Judge Pickering's 
solicitation creates the appearance of impropriety in violation 
of Canon 2 of the Code of Conduct for U.S. Judges. The 
impropriety becomes particularly acute if lawyers or litigants 
with matters currently pending before the Judge were 
    So, sir, my first question is this. Did you know that Judge 
Pickering planned to solicit letters of support in this manner 
before he did so? And if not, when did you become aware that 
Judge Pickering had solicited these letters of support?
    Mr. Kavanaugh. The answer to the first question, Senator, 
is no. This was not one of the judicial nominees that I was 
primarily handling. I became aware of suggestions of this sort, 
I assume, at some time during the proceedings, probably when it 
was raised. I don't know if it was raised in the media or 
raised by the Senate in the first instance. Without commenting 
on the facts and circumstances of that matter, because I really 
don't know the facts and circumstances, when a judge asks a 
lawyer who's got a case before him or her to do something, that 
does put the lawyer in a very awkward position and makes it 
difficult for the lawyer to say no. So just in terms of a 
hypothetical situation, there is a situation there. Again, I 
don't know the facts and circumstances of what was going on 
there. I only heard about it, really, from either the media or 
from when the members of this Committee were talking about that 
    Senator Feingold. Well, I would like to know if you think 
that Judge Pickering's conduct was consistent with the ethical 
obligations of a Federal judge.
    Mr. Kavanaugh. Senator, I don't know if there's been fact 
finding on what his conduct was. In terms of the hypothetical 
situation of a judge asking a lawyer who has a case before him 
or her to do something, I know that raises some questions. 
Again, I don't know the facts and circumstances of what Judge 
Pickering did. I've given you my general principle.
    Senator Feingold. Well, it's a good general principle, but 
the facts are pretty clear. I don't think he denied that he 
solicited these letters and that these were individuals that 
appeared before him. There was some debate about the 
significance of it, but-- Am I off track in suggesting that it 
looks like at least those set of facts, whether you think they 
occurred in this case, would be a violation of the Code of 
    Mr. Kavanaugh. I hesitate to comment on another judicial 
nominee. Again, Senator, I'm happy to state a general principle 
that I believe in. Again--
    Senator Feingold. Let's go with the general principle, 
then. If a judge is up for nomination and he solicits letters 
from lawyers who have cases before him, is it not the general 
principle that that would be a violation of the Code of Ethics?
    Mr. Kavanaugh. I think that raises some questions that 
warrant some further questions to find out what happened.
    Senator Feingold. Mr. Kavanaugh, I--my time is up. Thank 
    Chairman Specter. Thank you very much, Senator Feingold. 
The next questioner is Senator Cornyn.


    Senator Cornyn. Thank you, Mr. Chairman.
    Welcome back, Mr. Kavanaugh.
    Mr. Kavanaugh. Thank you, Senator.
    Senator Cornyn. This is the second hearing 2 years, 
roughly, after your first hearing, and we have learned a lot 
has changed in your personal life.
    Mr. Kavanaugh. Yes, sir.
    Senator Cornyn. But I do not think a lot has changed in 
terms of your professional record as it would relate to your 
qualifications to serve on the D.C. Circuit.
    Mr. Chairman, I have a statement that I would like to make 
part of the record, without objection.
    Senator Hatch. [Presiding.] Without objection.
    Senator Cornyn. Thank you.
    I want to ask a little bit about some of the questions that 
you have been asked here today. The rationale given for a 
second hearing that was requested is that there might be some 
new information that would be revealed that might change the 
minds of some of those who have previously expressed some 
skepticism as to whether you should be confirmed or not. But I 
think--this is my observation, not yours, but I think what we 
have seen is part of what has become a fairly common practice 
in the course of these hearings, and that is to ask you 
questions, the nominee questions that they cannot or should not 
ethically answer. And that, coupled frequently with demanding 
documents which are not in your possession and which you cannot 
produce because they are the subject of a privilege. And then 
of course there is, of course, then the claim that you are 
somehow too extreme, out of the mainstream.
    Unfortunately, I do not think those are the kinds of 
questions or the kind of approach that is designed really to 
reveal very much in the way of information that is helpful to 
us to make decisions, but rather part of a plan to try to 
damage your nomination and to justify a No vote, or perhaps 
even a filibuster of your nomination on the Senate floor. You 
have been asked about everything from the Clinton impeachment 
to torture to rendition policy to Judge Pickering. It strikes 
me that, rather than finding out about your experience and 
background and your qualifications as an individual, that there 
has been some attempt to associate you with other issues with 
which you have no knowledge and perhaps, as you say, have not 
had any contact.
    So I know that Chairman Specter had agreed to do this 
second hearing based on the representation that there might be 
some bona fide attempt to elicit information that would 
actually change some votes and attitudes, but unfortunately I 
do not see that happening in the course of this hearing so far. 
I guess one can always hope.
    Of course, as you know, I met you a number of years ago 
when I was Attorney General of Texas and had the honor to 
represent my State in an argument before the U.S. Supreme 
Court. That was Santa Fe Independent School District v. Doe, 
which involved a question of whether school children could 
voluntarily offer a prayer or an inspirational saying before 
school football games in Texas. And as you know, the Court 
ultimately ruled against that voluntary student prayer in the 
case. Chief Justice Rehnquist, in dissent, said that the 
Court's ruling exhibited hostility to all things religious in 
public life. And I am very concerned about that because I do 
believe that the Founders thought that the posture of the 
Government with regard to religious expression should be one of 
neutrality, not hostility.
    I realize as a lower court judge you are going to be bound 
by the Supreme Court's precedents, but I wonder if you would 
address the issue of religious liberty and religious speech 
insofar as how you believe in your position as a circuit court 
judge, how you would approach those issues.
    Mr. Kavanaugh. Senator, if I were confirmed to be a D.C. 
Circuit judge, I would of course follow the precedent of the 
Santa Fe case. That case addressed a question that had been 
left open in the Lee v. Weisman case in 1992. In that case, 
there was a school-sponsored prayer at a graduation ceremony 
where the Government was actually involved, and one of the 
questions that was left open was what happens if a student or a 
private speaker participates in a school event as a private 
speaker. And in the Santa Fe case, I think the Court concluded, 
based on the facts and circumstances of the case, that it could 
be attributed to the school and so was a violation of the 
Establishment Clause.
    I think the overall area represents a tension the Supreme 
Court has attempted to resolve throughout the years in terms of 
facilitating the free exercise of religion without crossing the 
Establishment Clause lines that the Court has set out for many 
years now. I know that the Court in recent years has made clear 
in a number of cases that private religious speech, religious 
people, religious organizations cannot be, or should not be, 
discriminated against and that treating religious speech, 
religious people, religious organizations equally--in other 
words, on a level playing field with nonreligious 
organizations--is not a violation of the Establishment Clause. 
In past years there had been some suggestion that treating 
religious organizations the same way in the public square as 
nonreligious organizations could sometimes be a violation of 
the Establishment Clause. I think the Court's really gone to a 
principle of equality of treatment does not ordinarily violate 
the Establishment Clause--again, equality of treatment of 
religious speech, religious people, religious organizations; 
equality in the public square. That's been something we've seen 
over the last, I'd say, decade or a little more.
    The Santa Fe case, again, the issue there was that although 
it was a private speaker, the Court found, based on all the 
facts and circumstances, that it was attributed to the school 
and therefore fell within the prohibition in Lee v. Weisman.
    Chairman Specter. Thank you, Senator Cornyn.
    Mr. Kavanaugh, we are almost to the 2-hour mark. Would you 
care to take a break?
    Mr. Kavanaugh. I'm OK, Mr. Chairman.
    Chairman Specter. Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman. Mr. Chairman, I 
have an opening statement, which I will not make, but I would 
like to put in the record.
    Chairman Specter. Without objection, your opening statement 
will be made a part of the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Leahy. I would also note for the record, in that, I 
realize we have--the President wants to move forward Judge 
Terrence Boyle, and I have suggested, in fact, call on the 
President to withdraw Terrence Boyle's name. The North Carolina 
Police Benevolent Association, North Carolina Troopers 
Association, Police Benevolent Associations, South Carolina, 
Virginia, the National Association of Police Organizations, 
many other civil rights groups and others have opposed it. I 
can think of an awful lot of reasons why he should withdraw it. 
That is not in the province of what Mr. Kavanaugh has to worry 
about, but I would hope, rather than go through a needless 
exercise, that Terrence Boyle's name be withdrawn, especially 
in light of the recent allegations of unethical conduct.
    Mr. Kavanaugh, you are aware of the somewhat unique--we 
originally understood there would be ABA to testify here today. 
That had been agreed to, but apparently that was done by a 
phone call Monday while most of us were out of town. Are you 
aware of what transpired in that phone call?
    Mr. Kavanaugh. Senator, I'm--
    Senator Leahy. You have seen the transcript?
    Mr. Kavanaugh. I have not read the whole transcript. I have 
seen some excerpts of the transcript that were reported in news 
articles, as well as other excerpts that I've seen.
    Senator Leahy. I'd ask that the transcript be made part of 
the record if it's not already.
    Chairman Specter. Without objection, it will be made part 
of the record.
    Senator Leahy. They spoke of you as not having handled a 
case to verdict; is that right; you never tried a case to 
verdict, or have you?
    Mr. Kavanaugh. That is correct, Senator. I have not been a 
trial lawyer. I think I'm in the same boat there with people 
like Chief Justice Roberts and Justice Breyer.
    Senator Leahy. I am asking about you. We had a hearing on 
Chief Justice Roberts. I voted for him for Chief Justice, and I 
voted for him for the D.C. Circuit. I know Chief Justice 
Roberts. You are not Chief Justice Roberts. You have your own 
qualities, so let's just talk about you, if that is all right, 
if you do not mind.
    Mr. Kavanaugh. Senator, I have not tried a case to verdict. 
I have been an appellate lawyer.
    Senator Leahy. That was my question. They also said your 
litigation experiences over the years was in the company of 
senior counsel; is that correct?
    Mr. Kavanaugh. I've argued many cases on my own, Senator 
Leahy. I've argued in the Supreme Court of the United States. 
I've argued in the Fifth Circuit. I've argued twice in the D.C. 
Circuit Court of Appeals.
    Senator Leahy. Did you do those as the sole person arguing?
    Mr. Kavanaugh. Yes, Senator.
    Senator Leahy. Thank you.
    Mr. Kavanaugh. Senator, let me just add one thing. In one 
D.C. Circuit case there were two counsel that argued on our 
side, so I just want to be clear on that, but I also--I argued 
for myself on--it was a Government attorney client privilege 
    Senator Leahy. I was going to ask you about that, but you 
clarified it. Thank you.
    Why did you take 7 months to answer the written questions 
you were given after your hearing last time?
    Mr. Kavanaugh. Senator, I take responsibility for that, and 
I'm happy to answer any additional questions.
    Senator Leahy. Why did you take 7 months?
    Mr. Kavanaugh. Senator, again, I take responsibility for 
that, and--
    Senator Leahy. Of course you take responsibility for it. 
Obviously, they are your answers. But why 7 months?
    Mr. Kavanaugh. Senator, if there was--I take responsibility 
for that. I think I had a misunderstanding, which is my 
responsibility. I'm happy to answer additional questions today 
that you may have, or other members of the Committee may have. 
Again, I take--
    Senator Leahy. What was the misunderstanding?
    Mr. Kavanaugh. Senator, I take responsibility for that.
    Senator Leahy. Mr. Kavanaugh, we are not playing games. I 
am just asking you a question.
    Mr. Kavanaugh. Yes, Senator.
    Senator Leahy. One of the--I will not go into one of the 
ways one judge described your conduct in court. I began to 
think that perhaps he was right. But I take responsibility, 
fine. That is kind of a catch-all. Everybody says that. I just 
asked you why? I mean is it that difficult?
    Mr. Kavanaugh. Senator, my understanding was that the 
timeline for the questions was to make sure they were in before 
the end of the Congressional session because there was going to 
be no further action on my nomination in the Committee. I met 
that timeline. From a later letter that members of the 
Committee, that you signed, it appears that I had a 
misunderstanding of that, and I take responsibility for that, 
and I'm happy to answer any questions you have.
    Senator Leahy. What was your reaction--as Staff Secretary, 
you see virtually every piece of paper that goes to the 
President; is that correct?
    Mr. Kavanaugh. On many issues, yes, Senator. Not 
everything, but on many issues.
    Senator Leahy. Did you see documents relating to the 
President's NSA warrantless wiretapping program?
    Mr. Kavanaugh. Senator, I learned of that program when 
there was a New York Times story--reports of that program when 
there was a New York Times story that came over the wire, I 
think on a Thursday night in mid December of last year.
    Senator Leahy. You had not seen anything, or had you heard 
anything about it prior to the New York Times article?
    Mr. Kavanaugh. No.
    Senator Leahy. Nothing at all?
    Mr. Kavanaugh. Nothing at all.
    Senator Leahy. What about the documents relating to the 
administration's policies and practice on torture; did you see 
anything about that, or did you first hear about that when you 
read about it in the paper?
    Mr. Kavanaugh. I think with respect to the legal 
justifications or the policies relating to the treatment of 
detainees, I was not aware of any issues on that or the legal 
memos that subsequently came out until the summer, sometime in 
2004 when there started to be news reports on that. This was 
not part of my docket, either in the Counsel's Office or as 
Staff Secretary.
    Senator Leahy. I have more questions. My time is up, and I 
will save them for the next round.
    Mr. Kavanaugh. Thank you.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Just on that last point, I gather that in the briefings to 
the President by the CIA and other members of the intelligence 
agency, there were a lot of things that did not come across 
your desk, that they were given directly to the President; is 
that correct?
    Mr. Kavanaugh. That's correct.
    Senator Kyl. I was not here, unfortunately, to hear the 
introduction of you, but I was impressed by what was said. It 
was written down for me, and I am very impressed that these 
judges for whom you clerked would have such a high opinion of 
you. Judge Kozinski, who is one of the finest judges that I 
know, said that you were one of the finest clerks he has had, 
and a breadth of mind and breadth of vision, and a great sense 
of humanity. And I think Judge Stapleton, a judge's dream as a 
law clerk, and that you understand the rule of precedent, 
exceptionally well qualified in terms of experience, superb 
candidate, and so on.
    I think those are important because they represent the 
opinion of someone for whom we have a great deal of regard, as 
sitting appellate judges, of you, and I think that is an 
important qualification.
    There have been a couple of questions raised about this 
matter of qualification, one, the ABA rating, and two, your 
relative age. I just want to talk about a couple of those here. 
As I understand it from Mr. Stephen Tober's statement, that 
this entire difference between qualified and well qualified 
boils down--and I will quote it from his statement, page 7, 
``It is, at its most basic, the difference between the highest 
standard and a very high standard.'' And so it seems to me that 
for us to try to make some distinction, and somehow deem you 
not qualified based upon that very fine distinction, is to 
establish a standard that we have never applied in this 
Committee in the past.
    May I just ask you, how many of the people that rated you 
were there again who either rated you qualified or well 
qualified, and was there anyone who dissented from either of 
those two rankings?
    Mr. Kavanaugh. Senator, from the ABA ratings, there were 42 
individual reviews conducted over the course of 3 years, and 
all 42 found me well qualified or qualified to sit on the D.C. 
    Senator Kyl. So this seems to me, in terms of making a 
decision on this Committee, a distinction without a difference. 
I will just quote from page 9 and then move on to the next 
point. After talking about your breadth of experience, 
consistently praiseworthy statements, and so on, here is what 
Mr. Tober said: ``The nominee enjoys a solid reputation for 
integrity, intellectual capacity, and writing and analytical 
ability.'' And it seems to me that that pretty well answers 
that point.
    Now, this matter of age is something that perhaps we should 
take a look at. As was noted, several important nominees--
Justice Kennedy, appointed to the Ninth Circuit when he was 38; 
Judge Kozinski, 35; Judge Stapleton, 35. I also note the 
current chief of the Ninth Circuit, my circuit, Marie 
Schroeder, 38 when she was appointed. Judge Sam Alito, age 40, 
all younger than you are. But it seems to me that we could 
actually take some solace from your age based upon the 
experience in this Committee, Mr. Chairman. We have to look no 
further than the distinguished Ranking Member of the Committee 
and the senior Senator from Massachusetts and the second-
ranking member of this Committee to note that in all three 
cases of Senator Biden, Senator Kennedy, and Senator Leahy--
    Senator Leahy. We were elected.
    Senator Kyl. Elected at the age of 30, 30, and 34. And look 
what great things each of them accomplished from those early 
    Senator Schumer. May I interrupt? Each of them has almost a 
lifetime appointment.
    Senator Kyl. Well, we did not have any say in that.
    Senator Leahy. My Republican State did.
    Senator Kyl. And it certainly makes the point that at the 
constitutional age, that is, the age at which the Constitution 
says one must be qualified, we have elected to the U.S. Senate 
and confirmed to the courts of appeals and even the U.S. 
Supreme Court some incredibly qualified individuals who have 
acquitted themselves very well, and I count all of the 
colleagues whom I have mentioned here in that category. And, 
therefore, it seems to me that if that is any precedent, we 
have nothing but the greatest expectations for your service on 
the court of appeals, and I am very proud to add my voice to 
those who are in support of that nomination.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kyl.
    Senator Brownback?
    Senator Brownback. Thanks, Mr. Chairman, and welcome, Mr. 
Kavanaugh. I appreciate your meeting with me. I think I am only 
one of two people on the Committee now that were not on the 
Committee when you previously--or the first time you came in 
front of the Committee, and I appreciated your time that you 
spent with me answering my questions. I appreciate the 
information you provided to my staff, and that has been very 
helpful in my decisionmaking process with you.
    I want to ask a couple of questions that I find important. 
You may have answered them in other types of settings, but I 
wanted to look at--and they are general, but I think they are 
the sort of thing that we on the legislative side need to get 
out in the open for our decisionmaking--your view of the 
Constitution and the issue of judicial restraint. These were 
key items on Judge Roberts's and Judge Alito's hearings. They 
are important going to a circuit court.
    Just if you would--and you have probably answered this 
already, and I apologize if you have and I have not heard it. 
But just give me your view of the Constitution as a document 
itself. Can you put yourself in a category? Do you have a view 
that it is established as a living document, as a strict 
constructionist of the Constitution itself?
    Mr. Kavanaugh. Senator, I believe very much in interpreting 
text as it is written and not seeking to impose one's own 
personal policy preferences into the text of the document. I 
believe very much in judicial restraint, recognizing the 
primary policymaking role of the legislative branch in our 
constitutional democracy.
    I believe very much, as a prospective inferior court judge, 
were I to be confirmed, in following the Supreme Court 
precedent strictly and absolutely. Once as a lower court judge, 
I think that is very important for the stability of our three-
level system for lower courts to faithfully follow Supreme 
Court precedent, and so that is something that I think is very 
    In terms of the independence of the judiciary, I think that 
is something that is the hallmark of our judiciary, the 
hallmark of our system that judges are independent from the 
legislative branch and independent from the executive branch. I 
think that is central to my understanding of the proper 
judicial role.
    So in terms of text, precedent, restraint, independence, 
those are the kinds of principles that I think would inform my 
approach to judicial decisionmaking were I to be confirmed.
    Senator Brownback. Let me go specifically to the issue of 
judicial restraint, if I could, on that particular area. I 
believe it was Judge Roberts who noted that that is the--where 
a number of us are concerned about areas that the court has 
gotten involved in in recent years, and that that has really 
led to the public's concern about the judiciary in general 
because it keeps getting into more and more areas that many of 
us thought were the proper purview of the legislative process 
rather than the judicial branch. And so the judicial activism 
charge then gets put forward.
    Several have said, well, the key restraint on the judiciary 
is the judiciary itself. And yet if the judiciary does not show 
restraint on what cases that it brings up or what cases that it 
takes, you know, the Congress is left to try to act on limiting 
review by the courts to try to amend the Constitution, to 
change the court interpretation, all of which are difficult 
things to do.
    There was a case recently--we just held the flag-burning 
amendment that passed through the Subcommittee that I chair, 
and that is in response to the Court saying that you can burn 
the flag as a statement of free speech. And it was as a 
response to a court that overturned a prior court opinion 
saying you could not do it.
    It is those sorts of things that I think really frustrate 
the public, and then the issue of marriage that is coming up 
that has been a longstanding issue for legislative process, 
coming now, working through the court system.
    Do you have a viewpoint on issues, say, as marriage and the 
determination of the definition of that? Is that something that 
the court should establish or is it left to the legislative 
    Mr. Kavanaugh. Well, Senator, that is the kind of question 
that, were I to be confirmed, could come before me, so I would 
hesitate to talk about the specific issue.
    In terms of your general principle about judicial activism, 
I do think that some of the worst moments in the Supreme 
Court's history have been moments of judicial activism, like 
the Dred Scott case, like the Lochner case, where the Court 
went outside its proper bounds, in my judgment, in interpreting 
clauses of the Constitution to impose its own policy views and 
to supplant the proper role of the legislative branch.
    So I think in terms of judicial activism, that is something 
that all judges have to guard against. That is something that 
the Supreme Court has to guard against. And throughout our 
history, we have seen that some of the worst moments in the 
Supreme Court history have been moments of judicial activism 
where courts have imposed their own policy preferences.
    Senator Brownback. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Brownback.
    Let me make an assessment here as to a potential second 
round. Senator Leahy, do you care for a second round?
    Senator Leahy. I do.
    Chairman Specter. Senator Schumer?
    Senator Schumer. Yes.
    Chairman Specter. I infer that all those absent do not.
    Senator Leahy. I would not infer. We will ask them on this 
    Chairman Specter. Could you find out?
    Senator Leahy. We are doing that right now.
    Chairman Specter. Senator Hatch?
    Senator Hatch. Frankly, I will pass for now.
    Chairman Specter. Senator Cornyn?
    Senator Cornyn. Mr. Chairman, my intention would be to 
pass, but if questions come up during the questioning, if you 
would give me an opportunity to followup on that. Otherwise, I 
will pass.
    Chairman Specter. That is a qualified pass. All right.
    Senator Hatch. Same here. Qualified pass.
    Chairman Specter. Qualified pass for Senator Hatch.
    Well, we will proceed with the second round. I think we 
will finish before 5 o'clock, as it appears to me, Mr. 
Kavanaugh. You declined a break 20 minutes ago. You may 
reconsider that without petition at any time you choose, if you 
would like a break.
    Mr. Kavanaugh. Thank you, Mr. Chairman. I am OK.
    Chairman Specter. You are OK. OK, then you have established 
a number of qualities without further comment.
    Chairman Specter. Mr. Kavanaugh, on the second round, which 
we begin now, I have noticed a reticence on your part to 
criticize people, not necessarily a bad habit. You did not want 
to criticize Karl Rove. You did not want to say how you would 
vote on impeachment to criticize President Clinton. You did not 
want to criticize Judge Pryor on Roe being an abomination. You 
did not want to criticize Judge Bybee on the Bybee memo. You 
did not want to criticize Mr. Manny Miranda. You did not want 
to criticize Judge Pickering. You did not even want to 
criticize the American Bar Association.
    Now, I do not consider that--and you did not want to 
criticize Justice Scalia or Justice Thomas. I do not consider 
that necessarily a bad quality. Senators sometimes criticize 
people. In fact, it is seldom when we do not. That seems to be 
a stock in trade by the United States Senators, and perhaps 
most people in public office. Maybe that is our calling really 
in connection with our oversight responsibilities.
    But let's take up the values behind your declination to 
criticize. As to what Judge Pickering is alleged to have done--
never mind the hypothetical--would you ask lawyers to write 
letters for you? If you were a judge sitting on their cases, 
and you were under consideration for a higher court, would you 
do that?
    Mr. Kavanaugh. No, Mr. Chairman.
    Chairman Specter. When you were asked about Mr. Manny 
Miranda, the investigation is still ongoing, but there has been 
considerable information about his having invaded the 
Democrats' computer system and downloaded and used it for 
partisan political purposes. Now, without characterizing it as 
larceny, would you engage in that kind of a practice?
    Mr. Kavanaugh. No, Mr. Chairman.
    Chairman Specter. Would you sanction or participate in 
    Mr. Kavanaugh. No, Mr. Chairman.
    Chairman Specter. Would you accept the principle that you 
could inflict any amount of pain in order to get information, 
as long as you were seeking information, no limit as to the 
amount of pain you would inflict?
    Mr. Kavanaugh. No, Mr. Chairman.
    Chairman Specter. Would you engage in rendition, send a 
suspect to a foreign country where torture was a practice, in 
order to get information where you would not have to commit the 
torture on U.S. soil?
    Mr. Kavanaugh. No, Mr. Chairman. I do not want to--no, Mr. 
Chairman. I think that is an issue I have not been involved in. 
I do not know the facts and circumstances--
    Chairman Specter. I know you have not been involved in it, 
but now we are trying to find out your values.
    Mr. Kavanaugh. Right, and I--
    Chairman Specter. You have not criticized certain people, 
and somebody may say you have not answered the question, so 
let's go beyond the hypothetical or let's go beyond the 
criticism, and let's take up the values, which is what I am 
asking you now.
    Now, you did not want to criticize Justice Scalia or 
Justice Thomas, but when you were asked the question would you 
consider yourself in their mold, you selected Justice Byron 
White and Justice Robert Jackson.
    Now, Mr. Kavanaugh, there may be some implicit criticism 
there, but we will move beyond that. Why do you choose Justice 
White? What are his qualities distinguished from Justice Scalia 
or Justice Thomas that you choose Justice White?
    Mr. Kavanaugh. I do not want to comment on currently 
sitting Justices. The reason I chose Justice White is for 
several reasons: He was a rock of integrity. His work as Deputy 
Attorney General in the Department of Justice enforcing the 
civil rights laws in the early 1960's I think was heroic. I 
think his approach to judging, judicial restraint, in terms of 
recognizing the primary policy--
    Chairman Specter. OK. That is enough. Why did you choose 
Justice Jackson?
    Mr. Kavanaugh. I chose Justice Jackson--
    Chairman Specter. You are not permitted to filibuster, Mr. 
    Mr. Kavanaugh. Yes, Mr. Chairman.
    Chairman Specter. Why did you choose Jackson?
    Mr. Kavanaugh. I chose Justice Jackson because of, again, 
his leading role in the Department of Justice, being involved 
in the public--
    Chairman Specter. That is enough, Mr. Kavanaugh.
    Now, on independent counsel, you have some criticism of the 
structure of independent counsel on the operation you had with 
Judge Starr, and that is why you made some recommendations for 
changes, right?
    Mr. Kavanaugh. That's correct, Mr. Chairman.
    Chairman Specter. And you have a value not to exclude 
blacks, African Americans, on peremptory challenges. That is 
your value.
    Mr. Kavanaugh. Yes, Mr. Chairman, and I believe in proper 
procedures to make sure that racial bias does not occur in the 
courtroom in the jury selection process.
    Chairman Specter. OK. My red light went on on round two. I 
will yield now to Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman.
    You know, the reason I kept asking about your taking 7 
months to answer the questions and why I found your answer 
inadequate, you did spend years vetting judicial nominees up 
here and telling them what they were supposed to do and 
everything else. And it is difficult to understand, having told 
them how they are supposed to answer, that you did not 
understand yourself.
    Be that as it may, tomorrow the White House is finally 
going to release its logs of visitors to the White House, 
having been forced by a Federal judge to do so, something they 
did not want to do. So I ask you this: Do you know Mr. 
    Mr. Kavanaugh. I do not.
    Senator Leahy. Have you ever met him or seen him at the 
White House?
    Mr. Kavanaugh. No.
    Senator Leahy. Have you ever met Susan Ralston, who is Karl 
Rove's personal assistant at the White House, formerly worked 
as Mr. Abramoff's secretary?
    Mr. Kavanaugh. She works in the Deputy Chief of Staff's 
office today.
    Senator Leahy. You know her.
    Mr. Kavanaugh. I do know her, yes, sir.
    Senator Leahy. Thank you. Have you ever met David Safavian?
    Mr. Kavanaugh. No.
    Senator Leahy. When did you learn that he was being 
investigated for receiving illegal payments?
    Mr. Kavanaugh. Senator, on that matter, I think whatever I 
learned, I learned reading the newspapers.
    Senator Leahy. So prior to the time it became public that 
he was being charged, you did not know about it prior to that 
    Mr. Kavanaugh. That's correct, Senator.
    Senator Leahy. Have you ever met Michael Scanlon?
    Mr. Kavanaugh. No.
    Senator Leahy. When did you learn that he was being 
investigated for criminal activities? These are all people from 
the White House. That is why I am asking.
    Mr. Kavanaugh. I don't think Michael Scanlon worked at the 
White House. I could be wrong about that.
    Senator Leahy. He was connected--well, go ahead. When did 
you first learn of his--
    Mr. Kavanaugh. Again, reading the newspapers is all I know 
about that matter.
    Senator Leahy. And what about the disclosure of the 
identity of Valerie Plame?
    Mr. Kavanaugh. I do not know anything about the facts and 
circumstances of that matter.
    Senator Leahy. So you did not do anything about it or were 
not required to do anything about it? You did not do anything 
about it?
    Mr. Kavanaugh. I didn't know anything about the facts and 
circumstances of that matter. I know it's under investigation, 
of course, and it's not part of my responsibilities nor have I 
learned about it.
    Senator Leahy. So what you would know about it would be 
what you have gotten from news sources, public sources?
    Mr. Kavanaugh. What I've read in the newspapers, that's 
correct. I do not know the facts and circumstances of that 
matter. It is under investigation, of course.
    Senator Leahy. Did you see documents of the President 
relating to the NSA's warrantless wiretapping program?
    Mr. Kavanaugh. No.
    Senator Leahy. What about documents related to the 
administration's policies and practice on torture? Did you see 
any documents on that whatsoever, according to the President?
    Mr. Kavanaugh. No. The only time I have learned of the 
legal memos and have read some of them was after there was 
public disclosure of some of those memos in the summer of 2004, 
and I think in late 2004 or early 2005 I might have read some 
of those memos. Of course, they had already been publicly 
released at that point.
    Senator Leahy. What about the Presidential signing 
statements that indicated reservation on the part of the 
President regarding provisions in law passed by the Congress? 
You have seen those signing statements, have you not?
    Mr. Kavanaugh. Signing statements come through the staff 
secretary's office and also when I was in the counsel's office 
before that, the counsel's office sometimes has a role in 
signing statements. So signing statements traditionally for 
past Presidents and this President identified potential 
constitutional issues such as Appointments Clause, Presentment 
Clause, or record--
    Senator Leahy. These signing statements reserving the 
President's rights of whether to follow or not follow some 
parts of the law that he is signing, there have been more--you 
said this has been done by past Presidents, but there have been 
more done by this President than all past Presidents put 
together. So let me ask you this: There was a great deal of 
publicity here on the Hill and at the White House when the 
President signed the so-called McCain amendment against torture 
or inhuman treatment of detainees and prisoners, far less 
fanfare a couple days later there was a signing statement to 
basically reserve--the President reserved the right to 
determine who is going to have to follow the law. Did you see 
that signing statement?
    Mr. Kavanaugh. I did see that signing statement, Senator.
    Senator Leahy. What was your reaction to it?
    Mr. Kavanaugh. Senator, the President has made clear that 
the United States and this Government does not torture or 
    Senator Leahy. That is not my question. Do you believe that 
the President had a right to reserve the exercise of parts of 
that law that he might not like or to reserve its application 
to certain people?
    Mr. Kavanaugh. My understanding of that signing statement, 
which is what the President's spokesman said a few days after 
it was issued, and questions like the one you are raising were 
raised to him, is that the President intends to follow that law 
as written. He shook hands with Senator McCain in the Oval 
Office about that. He has made clear and the President's 
spokesman made clear that the administration will follow that 
law as written, as I understand it.
    Senator Leahy. Then why the--I mean, you saw the signing 
statement. It passed through your hands. Why have a signing 
statement then that basically reserves the President's right 
not to follow the law if he does not want to? Why do that? Do 
you have any qualms about these kind of signing statements?
    Mr. Kavanaugh. Senator, that signing statement, as I recall 
it, identified a number of issues other than the one you are 
talking about. On the specific sentence that relates to the 
question you are raising, I believe the signing statement 
identified that this fell into something that the President has 
authority on, to go back to Justice Jackson's Youngstown 
concurrence that I--
    Senator Leahy. Well, that also makes it very clear if there 
is a law that the President's ability to act, as Justice 
Jackson pointed out, is at its absolute minimum.
    Let me ask you this: Does the President, if he is claiming 
a Commander-in-Chief override or anything else, does he have 
the authority to authorize or excuse the use of torture in 
interrogations of enemy prisoners despite domestic and 
international laws prohibiting the practice?
    Mr. Kavanaugh. Senator, the President under Article II of 
the Constitution has the constitutional responsibility to 
follow the Constitution and the laws passed by the Congress of 
the United States. That is part of his responsibility, 
    Senator Leahy. In treaties we--
    Chairman Specter. Let him finish his answer.
    Senator Leahy. I want to make--
    Chairman Specter. No, no. Let him finish his answer. He is 
in the middle of an answer.
    Senator Leahy. Go ahead.
    Mr. Kavanaugh. Including the laws against torture reflected 
in 18 U.S.C. 2340 and related provisions, including other 
statutes passed by this body. That is part of his Article II 
    Senator Leahy. Including treaties that this country has 
entered into, which have become the law of the land once we 
have entered into them.
    Mr. Kavanaugh. When the treaty is the law of the land, the 
President has the constitutional responsibility to follow the 
Constitution of the United States and the laws of the United 
    Senator Leahy. So is your answer--and I do not want to 
interrupt you from answering. Does the President have the 
authority to authorize or excuse the use of torture in 
interrogation of enemy prisoners when there are domestic or 
international laws that we have entered into prohibiting the 
    Mr. Kavanaugh. Senator, the President has said that the 
administration follows the law, that the United States does not 
torture, that the United States does not condone torture, the 
United States does not participate in torture. The President 
has said that many times. He said he met with Senator McCain in 
the Oval Office on one statute. The President's spokesman 
clarified a question you raised and said that the President 
intends to follow that law as written.
    Senator Leahy. You know, it is funny, but I would think 
differently after Abu Ghraib and after the rendition by 
Americans under the authority of the Commander-in-Chief, 
renditioning of people to countries knowing they would be 
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Hatch, anything further?
    Senator Hatch. Let me take just a few seconds. You know, I 
do not know why we needed this second hearing. In fact, I know 
we did not. Everybody had a shot at the first hearing and, 
frankly, I do not see any reason--and especially when I read 
through this transcript of the ABA. Here is what they say: 
``This nominee''--I am just reading a few of the accolades 
toward you. And, by the way, I read the ABA description of each 
member on the Standing Committee. A number of them are 
Democrats, have very strongly supported Democratic Senators and 
others, but found you not only qualified but well qualified.
    Here is what they say: ``This nominee enjoys a solid 
reputation of integrity, intellectual capacity, and writing and 
analytical ability. The concern has been and remains focused on 
the breadth of his professional experience and the most recent 
supplemental evaluation has enhanced that concern. Taken in 
combination with the additional concern of whether this nominee 
is so insulated that he should be unable to judge fairly in the 
future and placed alongside the consistently praiseworthy 
statements about the nominee in many other areas, the 2006 
rating can be seen in context.''
    And then he said, when he was asked by Mr. Jensen whether--
you know, you provided a few negative quotes about Mr. 
Kavanaugh in your written statement. He said, ``Let me 
underscore, Pete, that we did not find him not qualified. There 
is not a breath of bad in this report or the earlier report. We 
found him qualified, minority well qualified. What I said at 
the end is that, in fact, many people said he has a solid 
reputation for integrity, intellectual capacity. A lot of 
people refer to him as brilliant and an excellent writing and 
analytical ability. These are great skills to bring to the 
court of appeals.''
    Now, these are just a few of the comments. Let me just give 
a couple others.
    Mr. Tober again for the Bar Association: ``The positive 
factors haven't changed a whole lot. He is found to have high 
integrity. He is found to be brilliant. He is a very skilled 
writer and legal analyst. He has those components. And I have 
said this before, but I think you were probably doing better 
things. He has those skills that will serve him well certainly 
on a Federal court.''
    Well, I asked him, I said, ``I just wanted to mention that 
I am correct in looking at the record that he has had some 24 
people evaluate him, and not one has found him not qualified.'' 
Mr. Tober of the Bar Association: ``I don't know the number to 
be 24. I would take your word on that. But it is true there is 
not a single `not qualified' vote in the picture.''
    I wonder what all the fuss is about. Frankly, to force a 
second hearing--now, I acknowledge our colleagues have a right 
to do that, but the fact of the matter is I have not heard 
anything here today that would cause anybody to vote against 
you who is fair. I have just got to say, you know, I came here 
expecting to hear some bombastic things that might show that 
they think you might not be qualified to sit on the court. My 
gosh, your experience is virtually, other than the law firm 
experience where you were a partner in Kirkland and Ellis, one 
of the greatest law firms in the country, your experience has 
been an experience of service. And everybody with whom you have 
worked has felt the same way.
    I want to put in the record, Mr. Chairman, a whole list of 
letters from former Attorneys General, former Solicitors 
General, your classmates, bipartisan, both Democrats and 
Republicans, all of whom support you wholly and without 
    Again, I just say, you know, I do not want to question my 
colleagues. They have a right to ask these questions, and I 
suspect they had a right to call for this second meeting. But I 
have not heard anything here today that justifies having had 
the second meeting.
    Now, all I can say is that I am proud to support you 
because I believe that the Bar Association is right here.
    Thanks, Mr. Chairman.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Schumer?
    Senator Schumer. Thank you, and I would say to my good 
friend from Utah, hope springs eternal. Many of us had hoped 
that maybe Mr. Kavanaugh would answer some of the questions he 
did not answer in the first hearing in the writings, but he has 
not, in general.
    In your written responses to Senator Durbin, you said--
well, let me first--you said you were not involved in the 
nomination process either of Mr. Haynes or of Judge Bybee. Is 
that right? You said that in reference to questions asked 
    Mr. Kavanaugh. I did not have primary responsibility--
    Senator Schumer. I did not ask that. Were you involved?
    Mr. Kavanaugh. There is a Committee that meets to discuss 
prospective judicial nominees.
    Senator Schumer. Were you involved in those discussions? 
Did you voice opinions about Haynes and Bybee at that 
    Mr. Kavanaugh. Senator, I don't remember the timing of 
that, but if it was when I was in the counsel's office, it 
would have come through the Judicial Selection Committee when I 
was part of it, and it would have been part of the 
    Senator Schumer. Can you give me a yes or no answer? Were 
you involved in discussions involving the nominations of Haynes 
or Bybee?
    Mr. Kavanaugh. Senator, I believe those were when I was 
still in the counsel's office, so the answer would be yes.
    Senator Schumer. Thank you. I think before you--
    Mr. Kavanaugh. I want to--
    Senator Schumer. I would just like--I do not have the 
record in front of me, but I would like to look at what you 
said in reference to other people's questions there.
    Here is what you said in your written questions in 
response. You said, ``It is fair to say that all of the 
attorneys in the White House Counsel's Office who worked on 
judges, usually ten lawyers, participated in discussions and 
meetings concerning all of the President's judicial nominees.''
    Do you remember, were you supportive of the nominations of 
Haynes and Bybee at the time?
    Mr. Kavanaugh. I don't remember talking about them, but 
they were members of the administration who people had worked 
with and knew. So I don't--
    Senator Schumer. You don't remember talking--
    Chairman Specter. Let him finish his answer.
    Mr. Kavanaugh. I assume it would have come up at a Judicial 
Selection Committee meeting, and maybe I should explain how 
that works, Senator.
    Senator Schumer. I don't have that kind--unless I can have 
a little extra time, and I would be happy to let him explain.
    Chairman Specter. Well, that is part of the answer to the 
question, Senator Schumer.
    Senator Schumer. OK. Then I will--I will not--
    Chairman Specter. You can have an extra 2 minutes. Go 
    Senator Schumer. Well, that is very kind of you. Thanks, 
Mr. Chairman. Go ahead.
    Mr. Kavanaugh. Judge Gonzales, when he was counsel, set up 
a Committee which included members of the White House Counsel's 
Office as well as Justice Department officials. Within the 
White House Counsel's Office, one of the associate counsel--
there were eight of us--would ordinarily be assigned to 
particular States, particular circuit seats, so--
    Senator Schumer. I understand that. I am just asking a--
    Chairman Specter. Senator Schumer, let him finish his 
    Senator Schumer. Mr. Chairman, please, we have limited--all 
right. Then I will ask for a third round, because there is 
limited time here, and we know the general structure. It is 
described in the writings. I am asking a specific question. I 
am asking whether Mr. Kavanaugh can recall whether he was 
supportive in those discussions. He said here, it is fair to 
say, all of the attorneys participated in the discussions 
concerning all of the President's judicial nominations. He is 
brilliant. He went to every law school--or the best law 
schools--Haynes and Bybee, no, he cannot. OK. I am now on that. 
He said so he probably did.
    I am asking if he remembers being supportive of either of 
those nominees, not--you were not in charge of those nominees. 
We have established that three times over. Were you supportive 
in those general discussions, which you say all of the 
attorneys participated in?
    Mr. Kavanaugh. If both of them were nominated before July 
2003, then the answer is yes.
    Senator Schumer. Were you supportive?
    Chairman Specter. Now he is right in the middle of an 
answer, Senator Schumer. Let him finish.
    Senator Schumer. That was not my question.
    Mr. Kavanaugh. Then the answer would have been yes, because 
it would have come before the Judicial Selection Committee.
    Senator Schumer. Thank you. Now, let me ask you this.
    Mr. Kavanaugh. Senator, if I may--
    Senator Schumer. Please.
    Mr. Kavanaugh. What question--the answer is yes, that they 
would have been discussed at the Judicial Selection Committee.
    Senator Schumer. I thought you were answering--so, please, 
answer my question, not the general procedure. Were you 
supportive of the nominations of Haynes and Bybee when they 
came before that committee? Did you dissent? Did you say 
nothing? Were you supportive?
    Mr. Kavanaugh. With respect to--this is a line that I think 
Judge Gonzales has maintained--with respect to individual 
deliberations about prospective judicial nominees, that's 
something that it's not appropriate for me to disclose in this 
    Senator Schumer. And why is that?
    Mr. Kavanaugh. Because the President benefits from having 
candid and full discussions of his prospective judicial 
nominees, and for those to be candid, there has to be a 
guarantee of confidentiality there.
    Senator Schumer. Let me ask you this. Do you ever recall 
having dissented when a name was brought before this Committee 
in the general discussions? Did you ever--to any of them, do 
you ever recall having dissented and saying, ``I don't think 
this person should be put forward?''
    Mr. Kavanaugh. Senator, in all the deliberations that we've 
had on judges and other issues, I've never been a shrinking 
violet. I've always been--put forward my views, and you can 
assume I put forward my views strongly. Once Judge Gonzales or 
the President makes a decision, I also adhere to that decision.
    Senator Schumer. I understand. I am asking you did you 
dissent about potential nominees before--when the Committee 
discussed it before the President made a decision? You were the 
Committee that was vetting these people.
    Mr. Kavanaugh. And I'm giving you an answer that says there 
were a lot of deliberations. A lot of people would debate the 
merits of nominations, and you can assume that various people 
would disagree about particular nominees.
    Senator Schumer. Did you disagree?
    Mr. Kavanaugh. Senator, I don't want--
    Senator Schumer. To any of these nominees, any of these 
potential nominees when it came before the committee? You said 
you are a person of strong opinion, which you are. I know that, 
or my colleague, the Chairman, said you did not criticize this 
list of people, but I have a long list of people you were free 
to criticize, who happen to be at a different political 
viewpoint. But that is not what I am asking here. I am asking 
you, did you object and say, ``I don't think this person or 
that person should be nominated,'' when you were in this 
    Mr. Kavanaugh. Senator, I do not think it's appropriate--
    Senator Schumer. I am not asking about a specific person.
    Mr. Kavanaugh. I do not think it's appropriate for members 
of the President's staff to disclose whether they agreed or 
disagreed with recommendations on particular judicial nominees.
    Senator Schumer. Why is it not appropriate? There is no 
privilege, I presume?
    Mr. Kavanaugh. Because that would chill the candid 
discussion that the President benefits from in hearing advice 
about prospective--
    Senator Schumer. You mean not to mention a specific name, 
but to simply ask someone whether they dissented on any would 
chill discussion? That if you admitted you dissented on some, 
then people would be chilled from saying that? I did not ask a 
particular name.
    Mr. Kavanaugh. I'm saying that there were candid 
deliberations in the judicial selection process.
    Senator Schumer. We know that.
    Mr. Kavanaugh. That there would be particular people that 
would come up for consideration, and there would be debate 
about them.
    Senator Schumer. Did you dissent? Did you ever say in the 
meetings, ``I don't think this particular person belongs on the 
bench?'' That is not a question that should chill anybody. 
That, in fact, I would argue, sir, is your obligation to answer 
us. We do not have much of a record here. My colleagues here, 
justifiably, have said you have had a lot of Government service 
and that is what justifies you. We try to find out anything 
about that Government service, and we do not get an answer. 
Now, what is the harm to future deliberations of future 
counsels, deputy counsels, by your saying I did or I did not 
dissent and say certain people should not be on the bench, 
other than you just do not want to answer the question for us, 
and we cannot compel you, particularly when everyone on the 
other side is going to vote for you no matter what you say.
    Mr. Kavanaugh. Senator, let me try it this way. On a 
previous question you had, I said I needed to check with the 
counsel. I went back. Karl Rove does participate in the White 
House Judicial Selection Committee.
    Senator Schumer. Thank you.
    Mr. Kavanaugh. On this question I would like also to go 
back to the counsel, if I could, and I'll try to provide you a 
timely answer in the same way.
    Senator Schumer. But I have some followup questions I would 
then ask you to answer as well. What was the basis of your 
dissent? I do not want to ask about specific people. I would 
like to. I think it is relevant, but there you might have an 
argument. I would also like you then, if the counsel says that 
it is OK to answer, that you tell us the basis for the dissent. 
Was it temperament? Was it ideology? Was it this? Was it that?
    Chairman Specter. Senator Schumer, you are 2 minutes over 
the extended time. That means you are 9 minutes plus into this 
questioning. How much longer would you like?
    Senator Schumer. I would like another few minutes. I think 
it is important. I cannot tell you. It depends where the 
questions go, but I will not take a half hour. I will not take 
much time.
    Chairman Specter. Well, we are going to go--
    Senator Schumer. I think this is--
    Chairman Specter. You are almost up to 10 minutes. We are 
going to go to this side for a minute or two, and we will come 
back to you for another round.
    Senator Schumer. Thank you. That is just fine. Thank you, 
Mr. Chairman.
    Chairman Specter. Senator Schumer, I do not want you to be 
cut short.
    When you say that everybody on this side is going to vote 
in favor of Mr. Kavanaugh, if that raises any suggestion that 
everybody on this side is not going to vote against him, that 
might draw some raised eyebrows.
    Senator Schumer. Mr. Chairman--
    Chairman Specter. Now wait a minute. It is my 5 minutes. 
Start the clock. I am on round 3, because Senator Schumer is 
going to have round 3. And I will come back to you too, Senator 
    I have listened to your testimony very carefully, Mr. 
Kavanaugh, but, frankly, it has been hard because there have 
been so many interruptions. But let me plow this ground again 
to see if I understand what you have said.
    You have said that when you had a certain job up till 2003, 
it was your responsibility to sit on a panel, a group of people 
evaluating judges; is that right?
    Mr. Kavanaugh. That's correct, Senator.
    Chairman Specter. And then when you changed jobs, it was no 
longer your responsibility to sit on a panel evaluating judges?
    Mr. Kavanaugh. That's correct, Mr. Chairman.
    Chairman Specter. And what date is that?
    Mr. Kavanaugh. That would be early July 2003.
    Chairman Specter. And that is when you changed from being 
an Assistant White House Counsel to being Staff Secretary?
    Mr. Kavanaugh. That's correct.
    Chairman Specter. Now, you said that you are no shrinking 
violet and you disagreed when you thought that there was 
somebody up whom you disagreed with as to their qualifications. 
Isn't that what you said?
    Mr. Kavanaugh. Yes, Mr. Chairman.
    Chairman Specter. And you would not specify which 
individuals you disagreed on?
    Mr. Kavanaugh. No.
    Chairman Specter. You are not going to specify which 
individuals you disagree on because you think that is part of 
the deliberative process and it would unfairly impinge on 
freedom of discussion there, or a chilling effect. Is that what 
you have testified to, the Senator Schumer?
    Mr. Kavanaugh. That's correct, Mr. Chairman.
    Chairman Specter. Now, you also testified, as I could de-
garble it through the interruptions, that you do not remember 
which people you disagreed on, or do you remember which people 
you disagreed on? I am not asking you which ones they were, but 
do you recall the specific individuals whom you thought should 
not be submitted for a judgeship?
    Mr. Kavanaugh. I think the question here is because there 
can be multiple candidates for a particular judgeship that 
would come up, and you may rank them differently from how the 
ultimate decision comes out. That doesn't mean that the final 
selection is a bad decision.
    Chairman Specter. Are you saying then that you never said 
as to any, ``I think they're unqualified,'' but only that you 
ranked them?
    Mr. Kavanaugh. Well, Mr. Chairman, I don't think I should 
talk about that issue, at least without checking.
    Chairman Specter. Well, let's explore that for just a 
minute. We are talking about generalized procedures, and you 
sit on a panel. This is while you are Assistant White House 
Counsel. And you are asked about a number of possible nominees 
for a judgeship. That is the procedure. Do you feel comfortable 
answering that?
    Mr. Kavanaugh. Yes. Yes, Mr. Chairman, that's the 
    Chairman Specter. You have said that you are not a 
shrinking violet and you speak your mind. So at some point you 
either disagreed with the qualification of an individual, or 
thought that they fell behind some others in terms of a ranking 
system. Is that a fair inference or conclusion from your 
    Mr. Kavanaugh. I think it is, Mr. Chairman. The one thing I 
want to be careful about is talking about the qualifications of 
an individual as opposed to ranking individuals. And that's, in 
terms of the qualifications of an individual, some people are 
more qualified than others. You may rank them differently from 
how some other members of the committee, and you may disagree 
with the ultimate selection. I'm sure that happens all the time 
in any process like that.
    Chairman Specter. I am sure it does too. That is what you 
are testifying about. How many individuals were you 
considering, many, many, many, were you not?
    Mr. Kavanaugh. There have been hundreds, Senator, that have 
been confirmed, and that means that there are many hundreds 
more, because you assume for each one of those spots--
    Chairman Specter. OK, so we are in the hundreds.
    Mr. Kavanaugh. It could be over a thousand.
    Chairman Specter. I am not asking you whom you disagreed 
with or whom you ranked where. Do you remember among those 
hundreds you confirmed and hundreds more you considered, among 
those hundreds and hundreds of people, can you recall specific 
individuals and rankings at this time, some 3 years after the 
    Mr. Kavanaugh. I certainly, Mr. Chairman, do not recall the 
specific deliberations. I do recall some, of course, and that 
is natural. It is also natural for there to be debate and 
discussion on judicial nominations by the Judicial Selection 
Committee. That's what we want so that the President gets the 
best advice, the best recommendations of the staff.
    Chairman Specter. OK. There are some that you recollect 
because they stand out for one reason or another, right? 
    Mr. Kavanaugh. That's correct, Mr. Chairman.
    Chairman Specter. And you are not prepared to identify 
those individuals because you believe that would restrict the 
candid discussion. We have been through this on Chief Justice 
Roberts, on the Solicitor General's Office. We have been 
through it on a lot of decisionmaking processes, and I do not 
want to get into the question about limited privilege here 
today. I just want to understand your thinking as to why, among 
those whom you remember, you will not identify. And as I think 
you have testified in response to Senator Schumer, but I am not 
sure because of the garbled nature with the interruptions, that 
you will not be specific even as to those whom you remember 
because you do not want to impinge upon that deliberative 
process. Is that right?
    Mr. Kavanaugh. That's correct, Mr. Chairman.
    Chairman Specter. Senator Schumer, you have five more 
minutes, and then we are going to wrap up your side.
    Senator Leahy. I just wanted to respond to something that 
you said, Mr. Chairman, this idea of a closed mind. I spent 17 
months as Chairman of this Committee.
    Chairman Specter. Let's start the clock if Senator Leahy is 
    Senator Leahy. I spent 17 months as Chairman of this 
Committee during President Bush's term. We moved 100 judges. We 
have had two Republican chairmen since. Both are friends of 
mine. Neither one of them have moved President Bush's nominees 
through as fast as I did. So let's not talk about closed minds 
or the partisanship. And we did this notwithstanding the fact 
that the Republicans had pocket-filibustered 64 of President 
Clinton's nominees in the few years leading up to that. We 
Democrats moved 100 of President Bush's nominees through in 17 
months, an all-time record.
    Now, what I want to know is how do you approach recusal? 
You have been a key member of the Bush-Cheney administration. 
We have a President making sweeping claims, nearly unchecked 
executive power. A number of these matters, issues are going to 
come before the D.C. Circuit, assuming we have any check and 
balances. The Congress has not done much in the way--with some 
few notable exceptions, has not done much in the way of checks 
and balances. The rest of America waits for the courts to do 
that. How do you determine what you are going to recuse 
yourself from? What about if it is a challenge to the 
administration's practice of rendition, of sending people to 
other countries to be tortured? What if it is about the 
administration's interrogation practices in detention? What 
about their wiretapping of Americans without warrants through 
NSA? Where do you recuse yourself?
    Mr. Kavanaugh. Senator, if I am confirmed to the D.C. 
Circuit, I will do the analysis under 28 U.S.C. 455. There are 
some specific recusal obligations in Section 455(b), which I 
would of course follow. There's also a more general recusal 
prescription in Section 455(a), which talks about when a 
judge's impartiality reasonably might be questioned. I would do 
the analysis of that by looking at the precedents. There have 
been other people who have gone from the executive branch to 
the judicial branch, of course. I would do it by consulting 
with my colleagues, and do it by looking at the facts and 
circumstances of each particular case.
    I think it's hard to make a recusal determination in the 
abstract here--
    Senator Leahy. Would you think if a question came up about 
the administration's practice, the Bush-Cheney administration's 
practice of rendition of people to other countries, would that 
at least raise a red flag in your mind?
    Mr. Kavanaugh. Senator, on recusal questions generally, I 
don't think I can--because I haven't done the work necessary--
identify specific cases, and we don't know what those cases 
might be where I might recuse. I can pledge to you a serious 
process. I understand there could be issues. I would follow the 
precedents, look at the precedents, consult with my colleagues.
    Senator Leahy. What if it is questioning a policy or 
practice with which you were involved at the White House, 
either forming the policy or making the decisions; would that 
be a pretty easy one?
    Mr. Kavanaugh. Well, I think without knowing exactly where 
you're saying, on 28 U.S.C. 455(b), there's a specific 
prohibition that applies to Government lawyers who have worked 
on certain matters, and depending on the hypothetical, if that 
fell within that, I would have no hesitation about recusing. 
And just generally, Senator, I would have no hesitation about 
recusing. I just want to do the work and know the facts and 
circumstances before I make any determination.
    Senator Leahy. These are not dissimilar to questions I 
asked Judge Roberts both when he was up for D.C. Circuit, and 
the Supreme Court. In his case, I was satisfied with his 
answer, and I voted for him, in his case.
    I understand, Mr. Chairman, Senator Feingold is not able to 
return for another round. He has written a followup letter to 
Mr. Kavanaugh. I ask that that letter be made part of the 
    Chairman Specter. Without objection it can be made part of 
the record, but he is not seeking followup answers from the 
witness, is he?
    Senator Leahy. I think that this is--yes, there is a 
specific one to which the nominee has expressed a willingness 
to respond, so that is very specific. Mr. Kavanaugh has been 
handed this. He has not seen it yet. The staff has--
    Chairman Specter. I want all the questions for Mr. 
Kavanaugh to be asked because as stated during our Executive 
last week, it is the intention to vote on him on Thursday, and 
he is going to stay here long enough within reason to answer 
the questions.
    Senator Leahy. Well, I would hope that he would look at 
this, and I would hope that he might be prepared to answer. I 
think it can be done fairly quickly.
    Chairman Specter. Let me take a look at it first, and give 
him a copy, and I will pass it on to him, and meanwhile we will 
go on to Senator Coburn for a round of questions.
    Senator Coburn. Thank you, Mr. Chairman.
    Mr. Kavanaugh, does the president have--
    Chairman Specter. But we are coming back to you, Senator 
    Senator Coburn [continuing]. An obligation to try to 
preserve Presidential powers through signing statements? Is 
that not the purpose for them?
    Mr. Kavanaugh. Presidential signing statements have been 
used throughout our history, Senator, and particularly in the 
last four Presidents that I'm aware of, to identify specific 
constitutional issues that can arise in provisions of statutes. 
They're usually focused on things like the Appointments Clause. 
Suppose there's a new board or commission and there's an 
Appointments Clause issue. The Recommendations Clause, when 
reports are required that might be inconsistent with the 
Recommendations Clause. This is part of the conversation, the 
dialog, that the executive and the legislative branch have on 
issues like this through the years.
    Senator Coburn. But it is an important function of the 
president to elicit those areas of potential conflict on a 
constitutional basis, and to put a statement from the sitting 
President in regards to those. Is that not correct?
    Mr. Kavanaugh. That is correct, Senator, and Presidents 
have been doing that throughout our history.
    Senator Coburn. So a reasonable man could believe somebody 
would not necessarily believe in torture, but might put 
something into the record on a signing statement that might be 
related to preserve Presidential powers or appointments or some 
other area, and not necessarily believing in torture, but be 
castigated that they do believe in torture because they 
happened to put that in, not for the purpose of torture, but 
for the purpose of protecting and enhancing or--not enhancing--
protecting and securing what was there before in terms of 
Presidential powers. Is that not--a reasonable man could not 
think that?
    Mr. Kavanaugh. Senator, Presidential signing statements, I 
think, the Counsel's Office in particular in the Department of 
Justice, seek to rely on the precedents of the executive branch 
and legislative branch interaction, where there have been 
issues identified, and when new legislation comes up, say an 
Appointments Clause issue, a Presentment Clause issue, or 
Recommendations Clause issue, to identify that kind of issue.
    That's been done throughout our history, and I think it's 
very traditional.
    Senator Coburn. Would you think much of a President, who if 
they just ignored not doing that, they just decided, well, that 
is not important, I am not going to do that?
    Mr. Kavanaugh. Senator, I think all the Presidents, at 
least in modern times, have identified issues when they come 
up. And again, it's part of the conversation, part of the 
healthy back and forth between the executive and the 
legislative when these kinds of issues come up.
    Senator Coburn. But it is also done to preserve a point of 
view, so that when it is looked at in the future, somebody can 
understand what the debate was at that time; is that not 
    Mr. Kavanaugh. Exactly, Senator. Puts it on the record. 
People know. It's an open process. Then there can be discussion 
about issues that might be, for example, an Appointments Clause 
problem with a new board or commission, then there can be 
discussion back and forth. If there is a problem, it can be 
fixed in a subsequent statute, for example.
    Senator Coburn. Do you believe President Bush's statements 
on torture?
    Mr. Kavanaugh. President Bush has said the United States 
does not torture, condone torture--
    Senator Coburn. I know what he said. I am asking you do you 
believe him?
    Mr. Kavanaugh. Absolutely, Senator.
    Senator Coburn. So you do not have any heartburn over his 
signing statements in regard to anything if they are consistent 
with what he said and what he believes?
    Mr. Kavanaugh. That's absolutely correct, Senator. He has 
stated that the United States will not torture, does not 
condone torture, follows the laws against torture. He's made 
that clear.
    Senator Coburn. Thank you.
    I yield back, Mr. Chairman.
    Chairman Specter. Thank you, Senator Coburn.
    Senator Schumer, you had a little over 10 minutes on an 
opening statement, 6\1/2\ minutes on your first round, a little 
over 10 minutes on the last round. I want to conclude by five 
o'clock. You have five more minutes.
    Senator Schumer. Mr. Chairman, it is a lifetime 
appointment, and I think we should be allowed to ask questions. 
You put people in a box. If he goes on, I do not get a chance 
to ask all my questions. If I try to get to my answer by 
cutting him short, you take some umbrage. I do not think that 
is a fair way to proceed. OK?
    Chairman Specter. Well, I do not cut short. I asked you not 
to cut him short.
    Senator Schumer. Well, then just give me the time that I 
need instead of telling me we must end at five o'clock for a 
lifetime appointment.
    Chairman Specter. Well, your questions may exceed the 
tenure of his appointment, Senator Schumer.
    Senator Schumer. No. My questions are fair questions for 
somebody who is going to have tremendous power. I think they 
are relevant.
    Chairman Specter. Let's put the clock back to 5 minutes, 
and start in, and see how we do.
    Senator Schumer. Thank you, Mr. Chairman. I appreciate it. 
And I just make a couple of quick comments here.
    First, I did not ask you, Mr. Kavanaugh, although Senator 
Specter interpreted it that way, to name specific judges. I 
asked you did you ever dissent--and I was explicit--not on 
specific judges. And you said to me you would not be able to 
answer that question until you checked with counsel. Is that 
    Mr. Kavanaugh. That's correct, Senator.
    Senator Schumer. Did you then answer Senator Specter saying 
you did dissent? Did you change that answer? That is what I am 
trying to figure out here.
    Mr. Kavanaugh. I think it goes, Senator, to whether there 
was a different rank order in particular discussions, or 
whether you thought someone was unqualified for the--
    Senator Schumer. I never asked about a rank order. I asked 
    Mr. Kavanaugh. It just came up.
    Senator Schumer. Yes, Senator Specter did, but he was 
saying what I asked you, and he was not interpreting what I 
asked you. I asked you explicitly, was there ever a nominee--
you don't have to name him, and I was explicit--that you 
thought should not go forward and you said that? Not where you 
ranked him, but that you said should not go forward and you 
ranked him. Now, you said to me, as I recall--we can check the 
transcript--that you were not sure you could answer that 
question, although I expressed befuddlement as to why because 
we were not asking a specific name. Are you willing to say that 
you blocked certain--not blocked--that you urged that certain 
potential nominees not go forward, or do you want to go to 
counsel and see if you can answer that question?
    Mr. Kavanaugh. Senator, I'm sure I, in the course of 2\1/2\ 
years of debate over judges, I'm sure that all of us had 
preferences that weren't reflected in the final decision. Is 
that your question?
    Senator Schumer. My question is did you, do you recall 
having ever stated that you do not think X potential nominee 
should move forward for whatever reason?
    Mr. Kavanaugh. I'm confident, Senator, that on occasion, I 
would have rank ordered them differently from how the--so that 
the final decision was different from what my recommendation 
would have been.
    Senator Schumer. I did not ask that. I asked you did you 
ever express, at these meetings of the 10 counsel, this person 
should not be nominated? Do you want to go back and check your 
recollection and answer in writing before tomorrow?
    Mr. Kavanaugh. Can I just ask a followup?
    Senator Schumer. Please.
    Mr. Kavanaugh. Which is, do you mean should not go forward, 
period, regardless of who else was in the mix? Is that the--
    Senator Schumer. I mean, yes, that a person, regardless of 
who is in the mix, there might be certain people who you did 
not think deserved to be on the bench, whether someone else was 
in the mix or not?
    Mr. Kavanaugh. I think that kind of question goes to the 
heart of the deliberative process that the President relies on 
for picking judges, to talk about whether you disagreed with 
the final selection, really, that's something the President--
    Senator Schumer. OK. I am not asking an explicit name. I am 
just asking whether that happened. And you cannot recall, you 
cannot give me a yes or no answer to that?
    Mr. Kavanaugh. Senator, again, I think that would go to the 
heart of the deliberative process. As I understand it, it's 
important to protect the deliberative process so that the 
President gets the best advice. When the President makes a 
decision to nominate someone, it defeats the process for 
members of the staff subsequently to go out and say, ``Well, I 
disagreed with the President on that,'' or even if you don't 
name names, to say, ``I disagreed with some of his 
selections,'' that's--
    Senator Schumer. I think that is--
    Mr. Kavanaugh [continuing]. Inconsistent with--
    Senator Schumer. Is--
    Chairman Specter. Let him finish, Senator Schumer.
    Senator Schumer. I have 1:27 left here. Are you going to 
let me ask a few more questions if I might?
    Chairman Specter. How many?
    Senator Schumer. I do not know. A few.
    Chairman Specter. Finish your answer, Mr. Kavanaugh, if you 
can remember where you were.
    Mr. Kavanaugh. I think that's inconsistent with the 
deliberative process that the President needs to rely on to 
pick the best judges for the Federal judiciary.
    Senator Schumer. I fail to see any reason. I think people 
are put on the Committee to make that very decision, and I have 
a lot of questions. It puts questions in my mind why you refuse 
to answer that question. But let's move on.
    You did say you would check with counsel earlier, and then 
you came back to me about Karl Rove, and you said he was 
involved in the process. OK. In what capacity was he involved? 
How often did he consult with you and the other counsels about 
prospective nominees?
    Mr. Kavanaugh. Again, Senator, he's part of the committee. 
The Committee meets weekly. I'm not sure how often he attended. 
I know he participated though.
    Senator Schumer. Was it more than once?
    Mr. Kavanaugh. He was a regular participant.
    Senator Schumer. A regular participant in the Committee of 
    Mr. Kavanaugh. Well, it's actually much bigger than 10. The 
    Senator Schumer. But he was a regular participant in the 
    Mr. Kavanaugh. In the committee process there's many more 
than 10. I'd say it's about--
    Senator Schumer. And what do you recall--
    Chairman Specter. He is right in the middle of an answer, 
Senator Schumer.
    Senator Schumer. Go ahead.
    Mr. Kavanaugh. I just want to be careful to make sure you 
understood that the committee, at least when I was on it--I 
don't--haven't gone since 2003--but included all the people in 
the White House Counsel's Office plus several Justice 
Department lawyers, plus people from other White House offices 
like the Legislative Office on occasion it would attend. So 
it's many more than 10. I don't know the exact number though.
    Senator Schumer. And did he ever discuss politics relevant 
to why this judge should go forward or that one should not, 
like it is am important State to us, it is an important reason, 
so-and-so wants him? Did that ever come up?
    Mr. Kavanaugh. Senator, I think it's important not to 
disclose the internal deliberations that might occur. Of course 
we worked very closely with the Senators in each State. We've 
worked closely in New York with you and Senator Clinton on 
judicial nominations, and Judge Raggi, and many district court 
nominations. We've worked well together with you, and so that's 
of course part of the process, is, OK, the Senators in this 
home State are suggesting so-and-so. Is that person the best 
person? And then a back and forth of the home State Senators. 
That's part of the process, and those discussions would often 
occur at the--those kinds of discussions would often occur. And 
so I think that's--
    Senator Schumer. And Karl Rove was involved in those?
    Mr. Kavanaugh. Karl Rove participated in the process.
    Senator Schumer. OK. Let me ask you this. Who else was on 
that--you said Karl Rove was a regular participant. Who else 
who was not in the Counsel's Office was a regular participant?
    Mr. Kavanaugh. Senator, I would think the Counsel's Office, 
if the Counsel thought this was appropriate, could provide you 
a list, if she thought it was appropriate, and I don't know the 
answer to that question.
    Senator Schumer. But you said you consulted her and it was 
OK to mention that Karl Rove was part of the process?
    Chairman Specter. Mr. Kavanaugh, answer the questions 
within the scope of your recollection, not referencing anybody 
else who can provide a list. I do not want to have any strings 
outstanding. You are here today to answer questions.
    Senator Schumer. I thank you, Mr. Chairman.
    Chairman Specter. You answer the questions as to what you 
    Mr. Kavanaugh. Mr. Chairman, Senator Schumer, I don't know 
that it's appropriate for me to list everyone who's on the 
committee. I can tell you the offices that are in it, the White 
House Counsel's Office, the Department of Justice, offices that 
work closely with the committee, Office of Legal Policy on 
Judges, Karl Rove was involved. Chief of Staff's Office on 
occasion. I think those are the people--if I'm leaving anyone 
out, Senator Schumer, I'll make sure to--
    Senator Schumer. Was there ever anyone outside of 
Government who participated in these groups?
    Mr. Kavanaugh. No.
    Senator Schumer. And if you told us that Karl Rove 
participated, is there any legal, imaginable, legal reason that 
you couldn't tell us who else participated by name, not by 
their offices?
    Mr. Kavanaugh. Senator Schumer, I think I was saying that I 
could tell you the offices. I don't know that I could remember 
all the names, sitting here, of who was at the particular 
meetings, but I told you the offices.
    Senator Schumer. Anyone from outside those three offices 
that you mentioned, the White House Counsel, the Office of 
Legal Council, the Justice Department, anyone else from--Rove 
was not part of those--anyone else from outside of those 
    Mr. Kavanaugh. Office of Legal Policy. Again, going back, 
it was Office of Legal Policy at Justice, just to be clear.
    Senator Schumer. Right, thank you.
    Mr. Kavanaugh. Going back to my own time, from 2001 to 
2003, and keeping in mind what the Chairman told me to testify 
what I remember--
    Senator Schumer. Well, the Chairman is trying to move your 
nomination forward as quickly as possible. That is why he did 
    Chairman Specter. Senator Schumer and I finally found an 
agreeable point.
    Senator Schumer. There are more than you think, but not on 
    Mr. Kavanaugh. If I'm leaving anyone out, I'll send it in 
later, but Legislative Affairs, of course, on occasion because 
we deal with the Senate staffs; the Chief of Staff's Office on 
    Chairman Specter. When you send it in later, Mr. Kavanaugh, 
anything you are going to send in later has got to be in by 
    Mr. Kavanaugh. It will be in this evening, Mr. Chairman.
    Chairman Specter. OK.
    Mr. Kavanaugh. I just want to make sure I'm not leaving 
anyone out, so the offices that I've mentioned, Deputy Chief of 
Staff's Office on occasion would participate.
    Senator Schumer. OK. Just one final line of questioning, 
Mr. Chairman.
    And this involves what you said last time, which is that 
you testified that what the President is looking for is 
nominees who have respect for the law and who understand the 
legal system, and the role as a judge is different from one's 
personal views. Do you believe that Justice Ginsburg and 
Justice Breyer have a respect for the law?
    Mr. Kavanaugh. Absolutely, Senator.
    Senator Schumer. Why then do you believe the President 
keeps talking about judges in the mold of Scalia and Thomas, if 
the methodology, the rationale is respect for the law?
    Mr. Kavanaugh. Senator, I think the President has talked 
about a general judicial philosophy that he's looking for in 
prospective judicial nominees.
    Senator Schumer. But you indicated to me in the first 
hearing that you did not think ideology played a role at all in 
the selection of nominees, which I found incredulous.
    Mr. Kavanaugh. Senator, in the first hearing, there was--I 
don't think I explained clearly what ideology could entail. To 
my mind, the President considers, of course, one's judicial 
approach, whether someone believes in interpreting the law and 
not imposing their own policy views. We do not ask your views 
on specific cases or issues.
    Senator Schumer. Understood.
    Mr. Kavanaugh. Do not ask your views on policy issues that 
might exist. The President looks and wants his staff to look 
for people who share the kind of judicial approach he's 
outlined, and of course, with this President, as with past 
Presidents, most judicial nominees are of the same party--
    Senator Schumer. So let me ask you this. If you believe 
that Justice Ginsburg and Justice Breyer have a respect for the 
law, as well as Justice Scalia and Justice Thomas, why are 
there so few nominees who seem to have the judicial philosophy 
of Justice Ginsburg and Justice Breyer, and many, many, many, 
who have the judicial philosophy of Justice Scalia and Thomas 
if ideology does not play a role in the selection? I am not 
saying it is wrong that it does, and I am not saying that it--
but I was surprised that you, at your initial hearing, said it 
did not. If respect for the law is the judicial philosophy, 
that is what the President is looking for, then theoretically, 
the panoply of nominees should be much broader in terms of all 
kinds of things, their political affiliation, their judicial 
philosophy, their views on a variety of issues, and you are 
saying it did not play any role when you were there or others 
were there. I find that hard to believe, given who the 
President has sent before us.
    And one other point I would make just parenthetically. The 
reason I mentioned I sort of had an idea that that side of the 
Committee would vote one way, was because they voted yes on 
every single nominee the President has sent forward thus far. 
There has not been one single dissent of the 240 nominees, 
where on our side there have been a lot of yeses and a lot of 
noes. So it would be harder, at least by past experience, to 
judge that. That is why I said that.
    But anyway, go ahead.
    Mr. Kavanaugh. Senator, I want to be very clear that the 
President has said that one's judicial philosophy does play a 
role, does in fact play a role in the types of judges he's 
looking for. Your approach to judging, whether you're someone 
who believes in interpreting the law and not legislating from 
the bench. He's made it very clear that does matter. What 
doesn't matter is your view on--and what we do not ask--
    Senator Schumer. I understand. You have said that, and I 
accept that, that you do not ask about specific issues like are 
you pro-choice or pro-life.
    Mr. Kavanaugh. Correct.
    Senator Schumer. But still, do you think that, for 
instance, Justice Breyer and Justice Ginsburg have any less 
respect for the law or are less likely to try to interpret the 
law than say Justice Thomas or Justice Scalia?
    Mr. Kavanaugh. Well, Senator, as a nominee for an inferior 
court, I don't think I should be talking about the Supreme 
Court Justices and trying to assess them. What I will say is 
the President has--
    Senator Schumer. How about between--
    Chairman Specter. What he will say is? Let him finish his 
    Senator Schumer. He did not answer my question. That is why 
I am trying to get an answer.
    Chairman Specter. Well, that is his answer.
    Senator Schumer. Go ahead. As long as we have time.
    Chairman Specter. And you may have a followup question.
    Senator Schumer. Thank you.
    Mr. Kavanaugh. What I will say is the President has made it 
very clear that he does believe in appointing judges who will 
interpret the law as written, who will not legislate from the 
bench, who will not seek to impose their own policy views. He's 
made that very clear. So judicial philosophy is a part of the 
judicial selection process. He said that many times, and I just 
want to be clear on that.
    Senator Schumer. Do you think that former Justice, the last 
Justice Thurgood Marshall, and say, Robert Bork, have a 
different view of what interpreting the law is, as opposed to 
imposing their own views, or do you think they each do it the 
same way?
    Mr. Kavanaugh. I think Judge Bork has made clear that he 
has a different interpretive approach than say, Justice 
Marshall. For example, both in his testimony before this 
Committee, and in books he's written since, Judge Bork made 
clear he had a different type of approach than Justice 
    Senator Schumer. Even though both have a respect for the 
law and understand the legal system?
    Mr. Kavanaugh. Senator, I think--
    Senator Schumer. Those were your words.
    Mr. Kavanaugh. Respect for the law is a necessary 
qualification, of course, but it does not encompass judicial 
philosophy. That's a separate issue to look at in terms--
    Senator Schumer. The reason I ask you this is we rarely get 
an opportunity to question somebody who has sat on the 
Committee in this administration who does this. But it is 
obvious to me in what you say that clearly judicial philosophy 
and ideology make a difference here, and you have more or less 
said that. Nothing wrong with it. Democratic Presidents might 
do it too. But that is clearly happening. Would you disagree 
with that?
    Mr. Kavanaugh. Judicial philosophy is part of what the 
President looks at because he's made clear he wants to appoint 
judges who interpret the law.
    Senator Schumer. How is that different than the word 
``ideology'' which I used to you at the first hearing?
    Mr. Kavanaugh. Because I think ``ideology'' can encompass 
four different things, and we need to be very clear what we're 
talking about so there's no confusion. Ideology could encompass 
political affiliation. It could encompass your general approach 
to judging. It could encompass your specific view on particular 
cases, and it could encompass your policy views. The first two 
are the factors that are looked at in the final--
    Senator Schumer. But if what you mean by ideology is 
differing judicial philosophies, then clearly the President--if 
you mean that--then clearly ideology enters into the selection 
process, right?
    Mr. Kavanaugh. Judicial philosophy matters, and if that's 
how you're defining it, then judicial philosophy matters.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Schumer.
    Mr. Kavanaugh, I do not want the record to be incomplete in 
any way. Senator Feingold, rather, Senator Leahy handed to me a 
letter that Senator Feingold purportedly wrote to you, dated 
yesterday, marked ``hand delivery,'' relating to answers to 
questions 3 through 7, which he had asked you before. Did you 
get this letter? Aside from what was just handed to you, Mr. 
Kavanaugh--look at me--did you get this letter?
    Mr. Kavanaugh. Yes, sir.
    Chairman Specter. Hand him the letter, would you, please?
    Mr. Kavanaugh. I think this is a copy, sir. I was told 
about this letter and that--
    Chairman Specter. Now, never mind what you were told about. 
Just answer my question. Did you get this letter?
    Mr. Kavanaugh. I don't believe I got this letter, Senator. 
I'm just making sure.
    Chairman Specter. OK. Well, it is dated yesterday. Senator 
Feingold was here. He could have handed you the letter, or he 
could have asked you these questions. But he says he did not 
ask you questions 3 through 7, so I am going to take his part 
and ask his questions, although he should have. I do not want 
any loose threads hanging out of this hearing. I will ask them 
as best I can because his questions are not, with all due 
respect, self-explanatory. The staff has marked up the record 
on his written questions, saying that he had asked you all of 
the parts of question 3.
    Mr. Kavanaugh. That's correct.
    Chairman Specter. And moving on to question 4, he asked you 
about Judge D. Brook Smith's not resigning from a club which he 
promised during a Senate hearing he would resign from. If you 
promised to resign from a club, Mr. Kavanaugh, would you keep 
that promise and resign from the club?
    Mr. Kavanaugh. Yes, Mr. Chairman.
    Chairman Specter. On to question 5. This also refers to 
Judge Smith, but the relevant question is your values. And you 
probably already covered this in connection with other 
questions, but I will ask it to be sure that everything Judge 
Feingold wants asked is asked. Would you conform to the 
Judicial Disqualification Statute, 28 U.S.C. Section 455, and 
recuse yourself if it is called for by that statute?
    Mr. Kavanaugh. Yes, Mr. Chairman.
    Chairman Specter. On to Number 6. There was a question 
about whether Judge Smith complied with Advisory Opinion No. 
67, which sets forth the standards for free trips to 
educational seminars sponsored by, as he put it, ideological 
organizations, such as the Montana-based Foundation, et cetera. 
Will you comply with the requisite ruling with respect to 
acceptance of free trips?
    Mr. Kavanaugh. Yes, Mr. Chairman, I certainly will.
    Chairman Specter. Would you go further, and decline to go 
on free trips? There are quite a few of us around here who 
decline to go on free trips because of the conflicts question 
involved and the reporting. I made a speech at NYU several 
years ago on a legal issue, took the train up and back, and 
read about it in the newspaper forever. Would you consider 
declining going on free trips?
    Mr. Kavanaugh. That's my intention, Mr. Chairman, for the 
reason you identify, that I would not go on any trips, and, you 
know, basically would go by a pay my own way philosophy. That's 
my intention.
    Chairman Specter. Senator Feingold's last question, No. 7, 
was related to a district judge, after confirmed by the Senate 
to a district judgeship in Texas, he told the New York Times 
that despite his confirmation, right now he is running for 
State representative. If you are confirmed, will you run for 
any other office?
    Chairman Specter. Would that articulate a value that you 
would avoid?
    Mr. Kavanaugh. I will not run for any other office, Mr. 
    Chairman Specter. Wise answer. Now, back to a revisit on 
dissenting and ranking. We played a tennis game here with 
Senator Schumer questioning you and my trying to clarify it, 
and Senator Schumer going back and asking some more questions, 
some might say not clarifying it, but Senator Schumer would not 
agree with that, so I will not press it. But let me review the 
bidding here very briefly.
    You engaged in a system where you ranked prospective 
nominees where there were a number of people for a single 
judgeship, correct?
    Mr. Kavanaugh. That's correct, Mr. Chairman, through a 
process. It may not be as formal as you're describing, but, 
yes, basically.
    Chairman Specter. In that process, were you ever called 
upon to dissent, in Senator Schumer's terms, that is to say, 
``Candidate X is unqualified as far as I am concerned,'' or did 
you pursue the ranking, which you have already testified to?
    Mr. Kavanaugh. Well, certainly with respect to candidates, 
of course there would be certain candidates you'd say, ``I 
don't think this person is suitable for the bench,'' when 
you're talking about candidates. I think Senator Schumer was 
talking about whether ultimate nominees, if there was dissent 
on ultimate nominees.
    Senator Schumer. If I might, Mr. Chairman?
    Chairman Specter. I will yield to you, Senator Schumer.
    Senator Schumer. Thank you.
    Chairman Specter. For one question.
    Senator Schumer. I was asking about potential nominees. 
Were there potential nominees that you said, as it came before 
this committee--not the ranking system, I have said it three 
times. I think it is clear as a bell, even if my colleague does 
not want to say that is true.
    Chairman Specter. Are you saying who came before the 
    Senator Schumer. Who were discussed at this committee, who 
you said--I am not asking names--who said, ``This person does 
not belong on the bench, and I don't think we should recommend 
to the President that that person be nominated.'' It is a very 
simple, clear question that I have asked three or four times.
    Chairman Specter. I do not--
    Senator Schumer. Can I--
    Chairman Specter. Go ahead.
    Senator Schumer. And at one point you said to me that you 
would have to ask counsel if you could answer that question, 
and at another point I believed you said that you did not think 
it was appropriate to answer that question, and now, in 
reference to Senator Specter's question--maybe you did not know 
it was potential nominees--you said--well, why don't you answer 
    Mr. Kavanaugh. If it's talking about--
    Chairman Specter. If you understand that question, go 
    Mr. Kavanaugh. If we're talking about--
    Senator Schumer. I think everybody understands that 
    Mr. Kavanaugh. If we're talking about the general--
    Chairman Specter. I do not care about everybody. I care 
about him. Do you understand that question?
    Mr. Kavanaugh. I now do. I think there might have been some 
confusion. Of course, when there's a list of candidates that 
come before the committee, you might say someone's not 
qualified, of course, before the Judicial Selection Committee. 
Some people just are not suitable for the bench. They might be 
recommended by someone. For example, they get on a list of 
recommended people that come from a Senator, from a Governor, 
from a Member of Congress, and you might assess that person's 
record and say, ``You know what? That person is just not 
suitable for the Federal bench.'' Of course that happens.
    Senator Schumer. Then may I ask a followup question, Mr. 
    Chairman Specter. Yes.
    Senator Schumer. Give us some of the reasons. Did you ever 
invoke the notion that their judicial philosophy was not 
appropriate for a judge?
    Mr. Kavanaugh. The President's made clear that judicial 
philosophy matters, so if someone did not share the judicial 
philosophy that the President has articulated, of course, that 
would be a reason, yeah. Also--
    Senator Schumer. And you would say that? You would say, ``I 
don't think Mr. X or Ms. X shares the President's judicial 
    Mr. Kavanaugh. I think the President's made clear that he 
will not appoint judges who seek to use the bench to impose 
their own personal--
    Senator Schumer. I understand. So you would say that on 
occasion when a nominee came before the committee?
    Mr. Kavanaugh. Well, that's what the President wanted, so 
we work for the President.
    Chairman Specter. Can you give him a simple yes?
    Mr. Kavanaugh. Yes.
    Senator Schumer. Thank you. Thank you, Mr. Chairman. I 
think the question was pretty clear.
    And do you recall--and again, I do not need the name of the 
nominee--an example of why this person was not appropriate in 
terms of judicial philosophy?
    Mr. Kavanaugh. If someone in our judgment or the assessment 
of the committee or the assessment of the interviewers, 
concluded that this person, in either direction, had policy 
views that they couldn't separate from their judicial views, 
who didn't seem to understand the difference that I think I've 
articulated today between the judicial role and the legislative 
role--and there are such people who sometimes get interviewed--
if someone doesn't understand that role, then that person would 
be--could be deemed not suitable for--
    Senator Schumer. And how often did that happen? And I do 
not need an exact number or anything like it.
    Mr. Kavanaugh. I think most of the candidates that members 
of the Senate recommend, that Governors recommend, usually come 
with the proper appreciation of the judicial role, but there 
are occasions where people share a different philosophy, or 
where people simply do not--someone might be interviewed who 
simply does not seem to recognize the distinction, which is 
critical in my judgment, between the policymaking role and the 
judicial role, but that--
    Senator Schumer. But you would never use the words, too 
liberal or too conservative, or would you?
    Mr. Kavanaugh. Well, I think too activist.
    Senator Schumer. Would you? You would say too activist?
    Mr. Kavanaugh. If someone doesn't understand the judicial 
role and you would say that person believes in judicial 
activism and not judicial restraint, and the President's made 
clear to us and made clear to the American people, that he's 
looking for people who believe in judicial restraint to be 
judges. And, of course, that person wouldn't fit what the 
President told us to look for.
    Senator Schumer. So you would occasionally say somebody 
would be too activist, in your opinion, to meet the President's 
    Mr. Kavanaugh. Well--
    Chairman Specter. That is what you are saying, Mr. 
Kavanaugh. Can you give him another yes?
    Mr. Kavanaugh. I'll give him a yes, and say that's what the 
President said to the American people--
    Senator Schumer. I understand.
    Mr. Kavanaugh. --twice--
    Chairman Specter. OK, Senator Schumer.
    Senator Schumer. Just one more question. Were there ever 
people who were too activist from the conservative side as 
opposed to the liberal side?
    Mr. Kavanaugh. Yes.
    Chairman Specter. This is your last question, Mr. 
Kavanaugh. Did you say yes?
    Mr. Kavanaugh. Yes.
    Chairman Specter. Atta boy.
    Senator Schumer. You can see why the Senator from 
Pennsylvania was a very fine prosecutor. He is very good at 
helping his witness.
    Chairman Specter. All out in the open, all out in the open, 
all transparent.
    Senator Graham, you have been waiting patiently. I have 
tabulated Senator Schumer's questions were 42\3/4\ minutes, so 
you are limited now to 37\3/4\ minutes.
    Senator Graham. I really do not have much to add, but that 
will not stop me. I found it actually fascinating. I mean you 
seem no worse for the wear. Senator Kennedy's staff has a good 
question I think. Maybe I should not have said that, but I 
think it is a good enough question I will make it my own.
    Mr. Bybee, Judge Bybee, if you had known--well, you 
repudiated the memo, you thought it was not good legal 
reasoning; is that correct, the Bybee memo?
    Mr. Kavanaugh. Yes. The administration has repealed that 
memo, and I stated my own personal agreement with repealing the 
    Senator Graham. Would that have disqualified him, in your 
opinion, from being a judge if you had known it?
    Mr. Kavanaugh. Senator, I've drawn a line here today which 
I think is important for maintaining the integrity of the 
judicial selection process, not to talk about people who are 
currently sitting judges or other judicial nominees by name. I 
don't think that is appropriate for me to do.
    Senator Graham. I will just end it and take my time. There 
is a fine line between doing your job as a White House 
counselor, being part of the judicial selection team and being 
a judge yourself. There is a line between being advocate and 
being a judge. I think you understand that line. And I think 
the questions have been very, very good, to be honest with you. 
And I expect President Bush to live up to his campaign promise 
of picking strict constructionist, non-judicial activists as he 
sees it. That is what the election was about. And if you have 
been part of that weeding-out process to make sure somebody in 
the conservative movement or the liberal movement does not get 
on the court, then I think not only have you done a good job in 
the White House, you fulfilled your obligation to the 
    Now, your obligation is no longer to President Bush. Your 
obligation is to those people that come before you like they 
came before your mother. You are going to have a lot of 
characters come before you in a courtroom where their case is 
on appeal. And some of them you won't like, and some of them 
you may feel close to philosophically.
    If you could, just in a very short statement, tell me what 
your job, what you will do with that responsibility, no matter 
who the person is that comes before you. What is your job now?
    Mr. Kavanaugh. Senator, if I were confirmed, I believe in 
the absolute sanctity of ensuring the integrity of the--
sanctity and integrity of the judicial process, which means 
treating all parties who come before the court equally. I think 
I did that as a law clerk for the two Court of Appeals judges 
and Justice Kennedy. I understand that function. That's really 
central to the whole judicial role, equal justice under law. It 
doesn't matter where you come from, it doesn't matter what you 
look like, doesn't matter what your background is. When you 
come into that courtroom, you have the right to present your 
case, and if you're right on the law, you should prevail in 
your case. It doesn't matter.
    And that's the genius of our system. It's been part of our 
system throughout our history, and if I were confirmed, I 
pledge to you and to all the members of the Senate that I would 
absolutely fall within that tradition.
    Senator Graham. I look forward to voting for you. Thank 
    Chairman Specter. Thank you very much, Mr. Kavanaugh. As 
previously announced, we will proceed to a vote on Mr. 
Kavanaugh on Thursday. I believe at this date--and I have 
checked with staff, who have been listening attentively, as 
have I--there are no outstanding questions for you to answer. 
Gone over what Senator Feingold's letter said, and I believe 
you have responded on the Karl Rove answer, and I believe all 
the issues have been responded to.
    I want to compliment you on your stamina. I will reserve 
comments on your testimony until we meet on Thursday, when we 
will discuss your nomination, Mr. Kavanaugh, but I do not think 
there will be any disagreement in 3 hours and 27 minutes, 
without having moved from the witness chair, of your stamina, 
which is a tribute to your age and good health.
    Chairman Specter. That concludes the hearing.
    [Whereupon, at 5:27 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record